dJnrnpU IGaui irl^nnl library KF 154.0871878*'™"" ""'"' ^\imml?m\SZ,,'!S!?X'''°B'''^' ■» complete 3 1924 022 836 641 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022836641 LAW ENCYCLOPEDIA. ABANDONMENT. Abandonment. — The relinquishment or surrender of rights or property by one person to another. By Husband or Wife. — The act of a husband or wife who leaves his or her consort willfully and with an intention of causing perpetual separation. Abandonment is a ground of divorce. See Diyokce. In Insurance. — See Insueauce. Abandonment of Rights. — The relinquishment of a right. It implies some act of relinquishment done by the owner without regard to any future possession by himself or by any other person, but with an intention to abandon. Non- user of property does not necessarily or usually constitute an abandonment. • ' * What may be Abandoned. — Real or personal property may be abandoned; and the question of abandonment is one of fact for the jury to determine ; and the effect, when acted upon by another party, is to divest all the owner's rights in the thing abandoned. ABATEMENT. Abatement of a Suit. — A suspension of all proceedings in a suit from the want of proper parties capable of pro- ceeding therein. In Contracts. — A reduction made by a creditor for the prompt payment of a debt due by the payer or debtor. 2 ■i LAW ENCYCLOPEDIA. Of Legacies. — The reduction of a legacy on accoucl of the insufficiency of the estate of the testator to pay hw debts and legacies. In Mercantile Lavr. — The deductions from, or the re- funding of, duties, sometimes made at the custom house, on account of damages received by goods during importation or while in store. Of Nuisances. — The abatement or removal of a nuisance. See Nuisance. ABDUCTION. Abduction. — ^Forcibly taking away a man's wife, his child or his maid servant. The unlawful taking or detention of any female for purposes of marriage, concubinage or prosti- tution. Abduction is an offense at law. See Crimes aisd Punishments. A Man may recover Damages of the abductor for the unlawful abduction of his wife. The books are silent as to the remedy of the woman whose husband has been seduced away by another woman ; but the law in this respect will doubtless be reformed when woman achieves her full "rights." ABET. Abet, in Criminal La°w. — To encourage or set another on to commit a crime. Thi^ word is always applied to aiding the commission of a crime. To abet another to commit a crime is to command, procure or counsel him, to commit it. See Cbimes and Punishments. Abettor. — An instigator or setter on ; one that promotes or procures the commission of a crime. The distinction between abettors and accessories, is the presence or absence at the commission of the crime. Presence and participation are necessary to constitute a person an abettor. ABEYANCE — ABSCOND. ABEYANCE. In Abeyance. — ^That is, in expectation, remembrance and contemplation of law; the condition of a freehold when there is no peyson in beine; in whom it is vested ABJURATION. Al^uration. — A renunciation of allegiance upon oath. In the United States of America, every alien, upon application to become a citizen, must declare on oath or affirmation, before the Court where the application is made, that he doth absolutely and entirely abjure, all allegiance and fidelity which he owes to any foreign prince, etc. See Natubali- Z.^TION. ABORTION. Abortion. — ^The expulsion of the fetus at a period of utero- gestation so early that it has not acquired the power of sus- taining an independent life. See Chimes and Punishments. ABRIDGMENT. Abridgment. — An epitome or compendium of another and larger work wherein the principal ideas of the larger work are summarily contained. When fairly made, it may be justly deemed within the meaning of the law a new work, the publication of which will not infringe the copyright of the work abridged. ABROGATION. Abrogation. — ^The destruction of, or annulling, a former law by an act of the legislative power, or by usage. ABSCOND. Abscond. — To go in a clandestine manner out of the juris- diction of the courts or to lie concealed, in order to avoid their process. 4 LAW ENCYCLOPEDU. Absconding Debtor. — One who absconds from his cred- itors. ABSENCE. Absence. — The state of being away from one's domicile or usual place of residence. A presumption of death arises after the absence of a person for seven years without having been heard from. ABSENTEE. Absentee. — A landlord who resides in a country other than- that from which he draws his rents. The discussions on the subject have generally had reference to Ireland. ABSTRACT OP A TITLE. Abstract of a Title.— A brief account of all the deeds upon which the title to an estate vests. A synopsis of the distinctive portions of the various instnunents which consti- tute the muniments of title. ABUSE. Abuse. — Every thing which is contrary to good order es- tablished by usage. Abuse of a thing, is the destruction or great injury of it. In one sense, a thing is said to be abused when it is destroyed in using it. For example : The bor- rower of wine or grain abuses the article lent by using it, because he cannot enjoy it without consumiag it. ABUTTALS. Abuttals. — ^The butting or boundaries of lands, showing to what other lands, highways or places they belong or are butting. ACCEPTANCE. Acceptance. — ^The receipt of a thing offered by another AOCEPTAJSrCE — ^ACCESSAET. 5 witli an intention to retain it, indicated by some act suffi- cient for the purpose. Under the Statute of Frauds, delivery and acceptance are necessary to complete an oral contract for the sale of goods. In such case, it is said the acceptance must be abso- lute and past recall, and communicated to the party making the offer. Acceptance of Rent destroys the effect of a notice to quit for non-payment of such rent. Acceptance of Bills of Exchange. — An engagement to pay the bill in money when due. The following are differ- ent kinds of acceptances : Absolute — Which is a positive engagement to pay the bill according to its tenor. Conditional — Which is an undertaking to pay the bill on a contingency. Express — Which is an undertaking, in direct and express terms, to pay the bill. Implied — Which is an undertaking to pay the bill, inferred from acts of a character fairly to warrant such an inference. Partial — Which is one varying from the tenor of the bill — an acceptance to pay part of the amount for which the bUl is drawn. Qualified — Which is either conditional or partial. Supra-protest — Which is the acceptance of the bill after protest, for non-acceptance by the drawee, for the honor of the drawer or a particular indorser. See Bills and Notes. Acceptor. — The party who accepts a, bill of exchange — the party who undertakes to pay a bill of exchange in the first instance. ACCESSARY. Accessary. — He who is not the chief actor in the perpe- tration of the offense, nor present at its performance, but is some way concerned therein either before or after the offense was committed. See Cedces and Punishments. O LAW ENCYCLOPEDIA. ACCESSION. Accession. — ^The right to all which one's own property .produces whether that property be movable or immovable, and the right to that which is united to it by accession, either naturally or artificially. If a Man Builds a House on the ground of another with his own materials and without the consent of the owner of the ground, the building becomes, by accession, the prop- erty of the owner of the ground. If the Materials of one person are united by labor to the materials of another so as to form a single article, the property in the joint product is, in the absence of any agreement, in the owner of the principal part of the mate- rials by accession. ACCESSORY. Accessory. — ^A thing which is joined to another thing as an ornament, or to render it more perfect. Accessory Contract. — One made for assuring the per- formance of a prior contract, either by the same parties or by others : such as suretyship, mortgages and pledges. ACCOMMODATION PAPER. Accommodation Paper. — ^Promissory notes or bills of exchange made, accepted or indorsed, without any consider- ation therefor. Such Paper, in the hands of the party to whom it is made or for whose benefit the accommodation is given, is open to the defense of want of consideration, but when taken by third parties in the usual course of business, is governed by the same rules as other paper. See Bills and Notes. ACCOMPLICE. Accomplice. — One who is in some way concerned in the ACCORD — ACCOXmT STATKD. -commission of a crime, though not as principal. This term includes all persons who have been concerned in the com- mission of a crime whether as principals or accessaries before or after the fact. See Oeimes and Punishments. ACCORD. Accord. — A satisfaction agreed upon between the parties to a suit, or which when performed is a bar to all actions upon tiiis account; generally used in the phrase "accord and satisfaction.' The Agreement must be legal. An agreement to drop a criminal prosecution as a satisfaction for an assault is void, unless made by authority of Court. ACCOUNT. Acooimt. — A detailed statement of the mutual demands in the nature of a debt and credit between parties arising out of contracts express or implied. A Statement of the receipts and expenditures of an executor, administrator or other trustee, of the estate confided to him An Open Account is one in which some term of the contract is not settled by the parties, whether the account consists of one item or many. Account Book. — ^A book kept by a merchtot, trader, mechanic or other person, in which are entered from time to time the transactions of his trade or business. Such books, when regularly kept, may be admitted in evidence. Account Current. — An open or running account between two parties. ACCOUNT STATED. Account Stated. — If A sells goods, or does any service for B, and then presents him an account in writing of the same, stating the sum of money due, and B acknowledges it 8 LAW ENCYCLOPEDU. to be correct — ^this constitutes an "Account Stated." The old indebtedness is embraced in tlie new agreement, and the acknowledgment of the correctness of the account is a new promise or undertaking. It is conclusive as to the liability of the parties with, reference to the transactions included in it, except in cases of fraud or manifest error. What must be Shown.^It must be shown that the party to be charged accepted the account as correct. The acknowledgment that the sum is due is sufficient. If a party retains the account an unreasonable time without making an objection, an acceptance will be inferred. A Definite, Ascertained Sum must be stated to be due, and the demand should be made by a person of legal age. Who may State an Account. — Husband and wife may join in and state an account with a third person. An agent may bind his principal; and a partner may bind the partnership; and they may bind each other in the same way on settlement and dissolution. What must be Proved. — In an action on an "Account Stated," it is not necessary to prove the items, but only to prove an existing debt and demand and the stating of the account Acknovrledgment of Account. — ^It is always best to pro- cure an acknowledgment of the correctness of the account Lu writing. If the debtor lives at a distance, send the account in a letter requesting acknowledgment of the receipt; and the answer, if the debt is acknowledged, will be good evidence of acceptance. FOEM CiTT OF 18.. Mr To & Co. Dr. Jan 18.. To 1,000 lbs. flour 2}^ ct8 per lb $ 25 UO " ....18.. " 5,000 " " 3 cts " " 150 00 Total to date $175 00 I hereby acknowledge the-above account to be correct. Jan. 29 I [Signed] ACCEETION — ^ACKNOWLEDGMENTS. ACCRETION. Accretion. — ^The increase of real estate by the additions of portions of soil, by gradual depositions through the operation of natural causes to that already in possession of the owner. The term alluvium, is applied to the deposit itself, while accretion rather denotes the act. If an island iu a non-navigable stream results from accretion, it belongs to the owner of the bank on the side nearest to it. ACCUSATION. Accusation. — A charge made to a competent officer against one who has committed a crime so that he may be brought to justice and punished. See Magistrate and Ceimes and Punishments. ACKNOWLEDGMENTS. Ackno-wledgments Generally. — To "acknowledge" an instrument, means that the person who executes it ac- knowledges before an officer, appointed by law, that he executes the instrument before him freely and voluntarily and for the uses and purposes in such instrument mentioned. CALIFORNIA — ^Aoknowiedgments,' Civhi Codb. Conveyance. ^Every conveyance whereby any real es- tate is conveyed, or may be effected, must be acknowledged iin the manner provided by law. Proof of Ackno-wledgment. — Proof or acknowledgment of an instrument may be made at any place within this state before a' justice or clerk of the supreme court. In all other cases it must be made in the state and within the city, coun- ty or district for which the officer was elected or appointed, as follows: before a judge or clerk of a court of record; a mayor or recorder of a city; a court commissioner; a county recorder; a notary public, or a justice of the peace. Without the State. — Acknowledgments without the state 10 LAW ENOYOLOPEDU. but within the United States, and within the jurisdictibn of the officer — before a judge, justice or clerk of any court of record of the United States, or a judge, justice or clerk of any court of record of any state, or a commissioner appoint- ed by the governor of this state for that purpose; a notary public, or any other officer of the state where the acknowl- edgment is made, authorized by its laws to take such proof or acknowledgment. Without the United States. — The proof or acknowledg- ment of an instrument may be made without the United States, before either: A minister, commissioner, or charge d'affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made; or, a consul, vice consul, or consular agent of the United States, resident in the country where the proof or acknowl- edgment is made; or, a judge of a court of record of the country where the proof or acknowledgment is made; or, commissioners appointed for such purposes by the governor of the state, pursuant to special statutes; or, a notary public. By Deputy — When the law authorizes an officer within the foregoing classes to appoint a deputy, he may take ac- knowledgments in the name of his principal. V Requisites for AcknovT-ledgments. — An acknowledgment cannot be taken unless the officer taking it knows, or has satisfactory evidence, or the oath or affirmation of a credible witness that the acknowledger is the person who executed and is described in the instrument; or if executed by a cor- poration, that the person making such acknowledgment is the president or secretary of such corporation. Married Women — Acknowledgments by. — The ac- knowledgment of a married woman must not be taken, un- less she is made acquainted by the officer with the contents of the instrument on an examination without the hearing of her husband; nor certified, unless she thereupon acknowl- edges to the officer that she executed the instrument, and that she does not wish to retract such execution. ACKNOWLEDGMENT, FOBMS OF. 11 Conveyance by Same. — A conveyance by a married wo- man has the same effect as if she were unmarried, and may be acknowledged in the same manner, except as mentioned above; but such conveyance has no validity until so acknowl- edged. Duty of Officer. — An officer taking the acknowledgment of an instrument, must indorse thereon, or attach thereto, a certificate substantially in the forms prescribed by the code, as follows: General Form. State of „, ) county of J ^^' On this day of in the year , before me [here insert the name and quality of the ofiSeer J, personally appeared , known to me, [or proved to me on the oath of ] to be the per- son whose name is subscribed to the within instrument^ and acknowledged to me that he [or they] executed the same. By Corporation. The certificate of acknowledgment of an instrument exe- cuted by a corporation must be substantially in the follow- ing form : Stateof „. ) county of j On this day of in the JTear , before me [here insert the name and quality of the officer, ] personally appeared , known to mo [or proved to me on the oath of ] to be the President [or the Secretary] of the corporation that executed the within instrument, and acknowledged to me that such corporation executed the same.- J}y Married Woman. The certificate of acknowledgment by a married woman' must be substantially in the following form : stateof I county of ) On this day of , in the year , before me, [here insert the name and quality of the officer], personally appeared known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, described as a married woman ; and upon an examination without the hearing of her husband I made her acquainted with the contents of the instrument, and thereupon she acknowledged to me that she executed the same, and that she; does not wish to retract such execution. 12 LAW ENCYCLOPEDU. By Aitomey in Fact. The certificate of acknowledgment by an attorney in fact, must be substantially in the following form : State of 1 county of ) On this day of , in the year , before me [here insert the name and quality of the ofiScer,] personally appeared known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument as the at- torney in fact of , and acknowledged to me that he subscribed the name of thereto as principal, and his own name as attor- ney in fact. ■ Signature of Officers. — Officers taking and certifying acknowledgments or proof of instruments for record, must authenticate their certificates by affixing thereto their sig- natures, followed by the names of their offices; also, their seals of office, if by the laws of the state or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals. Certificate of Justice. — The certificate of proof or ac- knowledgment, if made before a justice of the peace, when used in any county other than that in which he resides, must be accompanied by a certificate under the hand and seal of the clerk of the county in which the justice resides, setting forth that such justice, at the time of taking such proof or acknowledgment, was authorized to take the same, and that the clerk is acquainted with his handwriting, and believes that the signature to the original qertifioate is gen- uine. Proof of Execution. — ^Proof of the execution of an in- strument, when not acknowledged, may be made either : 1. By the party executing it, or either of them; or, 2. By a subscribing witness; or, 3. By other witnesses^ in cases mentioned. in the in- stances following. Subscribing Witness. — If by a subscribing witness, such iWitness must be personally known to the officer taking the ACKNOWLEDGMENTS. ' 13 proof to be tlie person -n-hose name is subscribed to the in- strument as a witness, or must be proved to be such by the oath of a credible witness. Witness Must Prove What. — The subscribing witness must prove that the person whose name is subscribed to the instrument as a party is the person described in it, and that such person executed it, and that the witness subscribed his name thereto as a witness. Execution, how Established. — The execution of an in- strument may be established by proof of the handwriting of the party and of a subscribing witness, if there is one, in the following cases: 1. When the parties and all the subscribing witnesses are dead; or, 2. When the parties and all the subscribing witnesses are non-residents of the state; or, 3. When the place of their residence is unknown to the party desiriag the proof, and cannot be ascertained by the exercise of due diligence; or, 4. When the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due dili- gence in attempting to serve the subpoena or attachment; or, 5.. In case of the continued failure or refusal of the witness to testify, for the space of one hour, after his appearance. Evidence Must Show What. — ^The evidence taken under the preceding section must satisfactorily prove to the officer the following facts : 1. The existence of one or more of the conditions men- tioned therein; and, 2. That the witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signature, and that it is genuine; and, 3. That the witness testifying personally knew the per- son who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine; and, 4. The place of residence of the witness. 14 LAW ENCYCLOPEDIA. Certificate of Proof. — An oiEcer taking proof of the exe- cution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the matters re- quired by law to bo done or known by him, or proved be- fore him on the proceeding, together with the names of all the witnesses examined before him, their places of residence respectively, and the substance of their testimony. CEETIFICATE— Nevada, Idaho, Aeizona and Montana. Every Certificate should show that the person making the acknowledgment or proof, is personally known to the officer, or is proved by a competent witness to be such per- son, and should be signed by the officer, with his seal of office affixed, if he have one. If he be a judge or clerk, the seal of the court must be affixed. It should also state his full title, and the true date of the act — and that the person executed the same freely and voluntarily for the uses and purposes therein mentioned. In Oregon, it should also state the residence of the witness. By Married Women. — When the acknowledgment is made by a married woman it should show also that she was made acquainted with the contents of the conveyance, and acknowl- edged, on examination apart from and without the hearing of her husband, that she executed the same freely and volun- tarily, without fear or compulsion or undue influence of her husband, and that she does not wish to retract the execu- tion of the same. Proof of Execution. — ^When the execution of instruments is proved by the testimony of a subscribing witness, the cer- tificate should show that the witness is personally known to the officer to be the person whose name is subscribed to such instrument as a witness thereto, or was proved to be such, by the oath or affirmation of a reliable witness, whose name must be inserted in the certificate. The Certificate must then set forth the proof given by such witness, of his residence, of the execution of the instru- ment, and of the fact that the person whose name is sub- ACKNOWLEDGMENTS. 15 scribed to such instrument as 'a party thereto is the party who executed the same, and that such witness subscribed his name to such instrument as a witness thereto Wlien, in the absence or death of the subscribing wit- nesses, the proof is made by evidence of handwriting, the certificate must show : 1. That the officer is satisfied that all the subscribing witnesses to the instrument are dead or cannot be had to pirove its execution. 2. That A B, a competent and credible witness, stated on oath or affirma- tion, that he personally knew the individual whose name is subscribed to the instrument as a party, well knew his sig- nature (stating his means of knowledge), and believes the name of the person subscribed thereto as a party was sub- scribed by such person. 3. That C D, a competent and credible witness, gave the like proof as to the (or one of the) subscribing witnesses, setting it out at length. Subpena for Witness. — Upon application imder oath that a witness residing in the county refuses to appear and tes- tify to the execution of an instrument, and that the same cannot be proved without his evidence, the notary, or other officer, may issue a subpena to the witness, who, in case of refusing to appear or to answer, will be liable to fine, damages and imprisonment, until he shall submit to answer, and the instrument may be proved as when the witness is dead. OREGON. Who may take Ackno-wledgments. — 1st. In the State. — Any judge of the supreme court, county court, justice of the peace or notary public ; and the deed must be witnessed by two subscribing witnesses. 2d. Out oftlm State, hut in the United States — Any judge of a court of record, justice of the peace or notary public, or other officer authorized by the local laws to take acknowl- edgments, or a commissioner appointed by the governor of Oregon for such purpose ; and such deed may be exe- cuted according to the laws of the state, territory or district. In such cases, the statute of Oregon provides as follows : IG LAW ENCYCLOPEDIA. Certificate, etc. — In the cases provided for aforesaid, unless the acknowledgment be taken before a commis- sioner appointed by the governer of this state for that pur- pose, such deed shall have attached thereto a certificate of the clerk, or other proper certifying officer of a court of record of the county or district within which such acknowl- edgment was taken, under the seal of this office, that the person whose name is subscribed to the certificate of ac- knowledgment was, at the date thereof, such officer as he is therein represented to be, and that he believes the signa- ture of such person subscribed thereto to be genuine ; and that the deed is executed and acknowledged according to the laws of such state, territory or district. 3d. In any Foreign Country — The officers mentioned in the following provision of the Oregon statute, are the proper officers to take acknowledgments : Foreign Countries.-If such deed be executed in a foreign country, it may be executed according to the laws of such country, and the execution thereof may be acknowledged before any notary public therein, or before any minister plenipotentiary, minister extraordinary, minister resident, charge daffaires, commissioner or consul of the United States appointed to reside therein, which acknowledgment shall be certified thereon by the officer taking the same under his hand ; and if taken before a notary public, his seal of office shall be affixed to such certificate. Subscribing Witness. — Proof may be made by a sub- scribing witness, before any officer authorized tp take ac- knowledgments of deeds, who is personally acquainted with such witness, or has satisfactory evidence that he is the same person who was a subscribing witness; and the wit- ness must state his own place of residence, and that h© knew the person described and who executed such convey- ance. When any grantor is dead, out of the state, or re- fuses to acknowledge, and all the subscribing witnesses are dead or out of the state, proof may be made before the district court or any judge thereof, by proving the hand- writing of the grantor and of any subscribiag witness. ACKNOWLEDGMENTS. 17 WASHINGTON. Who may take Acknovrledgments. — Deeds or convey- ances of land, or of any estate or interest therein, situated in this territory, may be executed or acknowledged in any state or territory of the United States, in the form pre- scribed for executing and acknowledging deeds within this territory, and the execution thereof may be acknowledged before any judge of a court of record, notary public, justice of the peace, or before any comissioner appointed by the governor of this territory for such purpose. In the cases provided for in the preceding section, unless the acknowledgment be taken before a commissioner ap- pointed by the governor of this territory for that purpose, such deed shall have attached thereto a certificate of the clerk or other proper certifying officer of the court of record of the county or district within which such acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate of acknowledgment was at the date thereof such officer as he is therein repre- ' sented to be, and that he believes the signature of the per- son subscribed to be genuine. Forms of Acknowledgments. — The same forms of ac- knowledgment are not required in Washington as in Cali- fornia. See Acknowledgments, Califoenia. NEVADA. Who may take Acknovrledgments. — ^The proof of ac- knowledgment of every conveyance affecting any real estate, shall be taken by some one of the following officers : 1st. If acknowledged or proved within this state, by some judge or clerk of a court having a seal, or some notary pub- lic or justice of the peace : provided, when the acknowledg- ment is taken before a justice of the peace in any other county than that in which the real estate is situated, the same shall be accompanied with the certificate of the clerk of the district court of such county, as to the official charac- ter of such justice taking the proof or acknowledgment, and the authenticity of his signature. 2 18 LAW ENCYCLOPEDIA. 2d. If acknowledged or proved witliotit this state and ■within the United States, by some judge or clerk of any court of the United States, or of any state or territory hav- ing a seal, or by any commissioner appointed by the gov- ernor of this state for that purpose, or by a justice of the peace of any county in any state or territory in the United States, accompanied with the certificate of the clerk of a coiirt of record of the county having a seal, as to the official character of the justice and the authenticity of his signature. 3d. If acknowledged or proved without the United States, by the judge or clerk of any court of any state, kingdom or empire, having a seal, or by any notary public therein, or by any minister, commissioner or consul, of the United States, appointed to reside therein. * IDAHO. Who may take Acknov7ledgments. — The proof or ac- knowledgment of every conveyance affecting real estate, shall be taken by some one of the following officers : 1st. If acknowledged or proved within this territory, by some judge or clerk of a court having a seal, or some notary public or justice of the peace of the proper county. 2d. If acknowledged or proved without this territory and within the United States, by some judge or clerk of any court of the United States, or of any state or territory hav- ing a seal, or by any commissioner appointed by the gov- ernor of this territory for that purpose. 3d. If acknowledged or proved without the United States, by some judge or clerk of any court of any state, kingdom or empire, having a seal, or by a notary public therein, or by any minister, commissioner or consul, of the United States, appointed to reside therein. l^OEMS. Certificate of Acknowledgment hy Party known to the Officer. State of ) and County of j ^^' On this day of , a.d. one thousand eight hundred and , ACKNOWLEDGMENTS, J'OBMS.QI!. 19 before me , a notary public in and for said city and county, duly commissioned and sworn, personally appeared the -within named^ .... , whose name is subscribed to the annexed instrument, as a party thereto, personally known to me to be the individual described in and who executed the said annexed instrament, who acknowledged to me that he exe- cuted the same freely and voluntarily, and for the uses and pxirposes therein mentioned. In witness whereof, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written [ii.s.] Notary Public. Certificate where the Identity of Party is proven to the Officer. State of ) .... and County of ) ^^' On this day of , a.d. one thousand eight hundred and , before me , judge of the county court, in and for said city and county, the same being a court of record and having a seal, personally appeared , satisfactorily proven to me by the oath of a competent and credible witness, by me duly sworn for that purpose, to ba the individual described in and who executed the annexed instrument, and the said acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and caused the seal of said county coivrt to be affixed, the day and year in this certificate first above written, , [L.3.] Judge. [■ SB. By Husband and Wife knovm, to the Officer. State of . ... and County of . . . On this day of . . . , , a.d. one thousand eight hundred and be- fore me, , a notary pubUc in and for said city and county, duly commissioned and sworn, personally appeared and his wife, whose names are subscribed to the annexed instrument as parties thereto, personally known to me to be the individuals described therein, and who ex- ecuted the same, and they, and each of them, acknowledged to me that they executed the said instrument, each respectively, freely and voluntarily, and for the uses and purposes therein mentioned. And I do hereby further certify, that the said , wife of said , is personally known to me to be the person whose name is subscribed to said instrument as a party thereto, and that she was by me first made acquainted with the contents thereof, and thereupon acknowledged to me on examination separately, apart from and without the hearing of her said husband, that she executed the same freely and voluntarily for the uses and purposes therein mentioned, without fear or compulsion or undue influence of her said husband, and that she did not wish to retract the execution of the same. In witness whereof, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written , [li.s.] Notary Public 20 LAW ENCYCLOPEDIA. By Hvshand and Wife proven, to the Officer. State of .^, ) and County of f ^^• On this day of , before me, etc., etc., [as in the preceding forms], personally appeared and his wife, whose names are sub- scribed to the foregoing deed as parties thereto, satisfactorily proven to me to be the persons described in and who executed the within conveyance, by the oath of , a competent and credible witness for that purpose, by me duly sworn; and thereupon they, the said and his wife, and each of them, acknowledged to me that they executed the said instrument freely and voluntarily, for the uses and purposes therein mentioned. And I further certify, that the said , wife of the said , being first made acquainted with the contents of said instrument, on an examina^ tion separate and apart from and without the hearing of her said husband, acknowledged to me that she executed the same freely and voluntarily, with- out fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same. Witness my hand and seal, etc. Proof of the Execution of an Instrument where the Subscribing Witnesses are Dead or Absent. State of ) .... and County of P^' On the day of , i.D , before me a notarypnblic, in and for said county, duly commissioned and sworn, personally appeared and , competent and credible witnesses to me person- ally known; and the said , being by me duly sworn, deposed and stated on oath, that he personally knew , whose name is subscribed to the annexed instrument as a party thereto ; that he well knew said 's signature, from having frequently seen him sign his name, and believed the name of said so subscribed to said instrument as a party thereto, was subscribed by said And the said , being by me duly sworn, stated that he knew and , [or, "well knew , one of the persons "] whose nsimes are subscribed as witnesses to said instru- ment; that he well knew their signatures from having frequently seen them sign their names ; and that he believed the names of the said and subscribed thereto as witnesses,.were subscribed by said persons. And I hereby certify, that I am satisfied that none of the subscribing witness- es to said instrument can be had to prove the execution thereof — the said being dead, and the said being absent from the State of CaHfomia. Witness my hand and seal, etc., [as in the foregoing forms.] Aoknowledgmeni of Deed by a Corporation, State ot.. .-. 1 and County of j ^^' On this, etc., [date] before me personally came the president of , , t6 me personally known to be the individual whose name ACKNOWLEDGMENTS, FOEMff'.OE. 21 is subscribed to the foregoing instniment as the president of the and he acknowledged to me that he executed the same as president of said corporation for and on the behalf and in the name of said corporation, as its free and voluntary act and deed, for the uses and purposes therein mentioned, and in pursuance of the order and resolution of said corporation directing such deed to be executed, by signing the same as president thereof and afSx- ing thereto its corporate seal. In •witness ■whereof, etc., etc. By Attorney known to the Officer. State of .... and County of '.'.".'. . . [ ®^' On this day of a.d. one thousand eight hundred and . . . . , before me, , clerk of the county court of said and county, personally appeared personally known to me to be the same person who executed by power of attorney the foregoing deed, as the attorney in fact of , said .... being named in the annexed instrument as a party thereto, and therein described as the party executing the same ; and the said acknowledged to me that he executed the same freely and volun- tarily, as and for the act and deed of the said , and for the uses and purposes therein mentioned. ' In witness whereof, I have hereunto set my hand and afSxed the seal of said county court, the day and year in this certificate first abov& written. [1-S.3 Clerk Certificate of Proof by Subsmbing WUrwss kmmm or proven to the Officer. State of 1 . .... and County of P^ On this day of a.d., one thousand eight hundred and , before me, , a justice of the peace in and for said and county, duly commissioned and sworn, personally appeared , personally known to me [or, "satisfactorily proved to me by the oath of a competent and credible witness for that purpose, by me duly sworn "], to be the same person whose name is subscribed to the annexed instrument as a witness thereto, who being by me duly sworn deposes and says, that he resides in the and county of , that he was present and saw , personally known to him to be the same person described in and who executed the annexed instrument as a party thereto, sign, seal and deliver, the same ; and heard him acknowledge that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned; and that he, the deponent, thereupon signed his name as a subscribing witness thereto, at the request of the said In witness whereof, I have hereunto set my hand the day and year in this certificate first above written. Justice of the Peace. 22; LAW ENCYCLOPEDIA^ Acknowledgment hy a Married Woman whose Husband is not Residing in the State, State of I County of .... j ®^- On this .... day of 18 . . before me, district judge of the judicial district, in and for said county of personally appeared a married woman, to me personally known to be the individual described in and who executed the foregoing instrument; and at the same time also ap- peared and , two credible and disinterested citizens of this state, to me personally known as such, who being by me severally sworn each for himself said, that he is a citizen of the state of California and a resident of the town of , county , that he is acquainted with the said , and with her husband, and has known them, and each of them, for more than one year past. That more than one year ago, to wit: months ago, the said deserted his vrife, the said , and went to , to reside, announcing his determination and intention to that effect, and has never since returned. That according to the full belief of deponent the said does not reside in this state, and for one year and more next preceding this date, he has not been bona fide residing in this State. All of which is to me satisfactory proof thereof. And thereupon the said . . . acknowledged to me that she executed the said instrument freely and voluntarily for the uses and purposes therein mentioned. In witness whereof, I have hereto set my hand and caused the seal of said district court to be affixed the day and year first above written. [i-s.] District Judge. By Attorney proven to the Officer. State of 1 County of j ^^• On this day of etc., before me, personally came , proven satisfactorily to me to be the same person described in and who executed the within conveyance, as the attorney in fact of , by the oath of , a competent and credible witness for that purpose, by me duly sworn; and thereupon the said acknowledged before me that he executed the same as and for the act and deed of the said freely and voluntarily for the uses and purposes therein mentioned. Justice, etc. Sy an Execuior or Administrator, or Trustee. State of ) County, (■ ^^■ On this day of , etc., before me personally came , personally known to me to be the person described in, and who executed the within instrument, as the executor of the last wiU and testament [or, " admin- istrator of the estate "] [or, " trustee of the estate "] of as a party thereto, and the said acknowledged before me that he executed the same, as such executor [or, "administrator"], [or, "trustee "], as afore- said, freely and voluntarily for the uses and purposes therein mentioned. In witness, etc., Justice, etc. &,CKNOWLEDGMENTS, I'OEMS .QI". 23 By a Sheriff. State of ) . ^ .... and County of . . . . j ^^• On this day of , etc., before me, personally came £squire, sheriff [or, " late sheriff, " as may be], of the said city and county of to me personally known to be the same individual described in and ■who executed the foregoing instrument, and signed his name thereto as such sheriff; and acknowledged to me that as such sheriff he executed the same freely and voluntarily for the uses and purposes therein mentioned. In witness whereof, I have hereiinto set my hand and official seal, etc., [date.1 Notary Public. Satisfaction of Mortgage and Acknowledgment by Individnal knmon to the Officer. I, of the town of , in the county of and state of , do hereby certify, that a certain mortgage, bearing date the day of , in the year one thousand eight hundred and , made and executed by , of the first part, to me the said , of the second part, and recorded in the office of the recorder of the county of in book . . of mortgages, at pages . . . and . . . . , on the .... day of , a.d. 18 . . , [if the mortgage has been assigned, insert the name of the assignee in- stead of . . . ., at the commencement of the certificate; omit the words "me the said" in Italic, and insert here: " and which said mortgage was duly as- signed to me by the said , the mortgagee above named, by assign- ment, dated the .... day of , in the year and recorded in the office nf the clerk of the county of aforesaid, in book . . of mortgages, at page . , on the day of , a.d ], is fully paid, satisfied and discharged. Dated the day of , In presence of ■ County, ss. On this day of , in the year one thousand eight hundred and before me personally came , to me personally known to be the in- dividual described in and who executed the above certificate, and acknowl- edged that he executed the same freely and voluntarily for the uses and pur- poses therein mentioned. In witness whereof, I have hereunto set my hand and official seal, the day and year in this certificate first above written. [l.s.] Notary Public. Satisfaction of Judgment in a Justice's Court, where a Transcript is filed in the County Clerk's Office. State of ) County of ...:.... j ^^• County Clerk's Office. I Judgment rendered in favor of the plaintiff against defendant, > before , Esq., a Justice of the Peace in and for said . ) county, for dollars and cents, damages and costs. 24 iAW ENCYCLOPEDIA^ Transcript filed in this office and judgment docketed the day of . . in the year in the county court of this county. Satisfaction of the above mentioned judgment is hereby acknowledged. County of ss. I hereby certify that on this day of before me personally came the above named etc., [the usual form of acknowledgment.] /Saiisfociion of Judgment in a Court of Record. State of District Court of the I Judicial District, Coimty of J Of the day of , one thousand eight hundred. and Satisfaction for $ Satisfaction is acknowledged between , , plaintiff, and , . „ defendant, for dollars. Judgment docketed the day of , one thousand eight hundred and , in the ofSce of the clerk of said court. [For certificate, see preceding form.] Application for a Subpetia to compel a Subscribing Witness to attend before an Officer to prove the Execution of a Conveyance. To , Esq., notary public [or other officer authorized to take ac- knowledgments] of . . county: I, , do hereby make application to you to issue a subpena, re- quiring , who resides in the town of , in said county, to appear and testify before you, touching the execution of a certain conveyance of real estate, made and executed by , to me, the said , [or if the application is made by the heir or personal representative of the grantee, name such grantee], and to which the said is a subscrib- ing witness ; the said having refused, upon my request, to appoai and testify touching the execution of the said conveyance; and the same uol having been proved or acknowledged, cannot be so proved or acknowlodgtia without the evidence of the said Dated the day of , 18... County, ss. the applicant above named, being duly sworn, says ttat th* facts stated and set forth in the above appUcatiou are true. Sworn before me, this day of 18. . . Notary Public. Form of Subpena. State of ) County, P^- To , of the town of county of in said county: In the name of the people of the State of CaUfomia: You are hereby com- manded to appear before me, at my office [or, "dwelling-house"], in tho town of in sa' 1 county, on the day of , instant, at ten o'clock iii the forenoon, then and there to testify, touching the execution of a conveyance ACKNOWLEDGMENTS, FOEMS OR 25 of real estate, from to , to -whioh you are a subscribing witness, as appears by the application of the said to me made under oath. Hereof fail not at your peril. Given under my hand, this dayof ..... 18... Notary Public. Affidavit to obtain Warrant, to be Indorsed on the Original Svbpena. State of 1 County, j ^^ of , being duly sworn says, that on the day of , Instant, at the town of , in said county, he served the within subpena on , therein named, personally, by then and there showing him the same, and deUvering to him a true copy thereof, and by paying [or, " tender- ing "] to him the sum of for his fees for traveling to the place specified in the said subpena, and for his attendance in pursuance thereof, and his reasonable expenses. Sworn to before me, this. day of ^ etc Notary Public. Warrard against Tidiness. State of ) County,P^' To the sheriff of said coimty, greeting : In the name of the people of the state of California : Ton are hereby com- manded forthwith to apprehend , in your county, and biing him before me, Esq., county judge of said county, at my chambers, at the court-house in the town of , in said county, to testify touching the execution of a conveyance of real estate, from to , to which the said is a subscribing witness, as is said ; the said having been duly subpenaed to appear before a notary public, to testify touching the execution of the said conveyance, and having, without reasonable cause, neglected [or, "refused"] to attend in pursuance thereof. County Judge of County. Commitmeni for Befusal to Testify. The people of the state of to sheriff of the said county. having this day been brought before me, on a warrant by me issued to compel his attendance to testify, [where the vritueBS appears in pursuance of the subpena, say : "having this day appeared before me, in pursuance of a subpena by me issued, requiring him to appear and testify "], touching the execution of a conveyance of real estate, from to , to which the said is a subscribing witness, as is said ; and the said , although required by me, having refused to answer upon oath [if the commitment is made on account of the refusal of the wit- ness to answer a particular question deemed pertinent by the officer, insert here : ' ' the following question, "etc., specifying it particularly] touching the 26 LAW ENCYCLOPEDU. execution of the said conveyance. You are therefore commanded forthwith to convey the Baid to the jail of the said comity, and there commit him to close custody in said jaU, without bail, until he shall subnet to answer on oath as aforesaid [or, " the question aforesaid "], or be discharged accord- ing to law. County Judge of ... . County. Oath to be administered to a Subsoribing Witness. You do solemnly swear, that you will true answers make to such questions as shall be put to you touching the execution of this deed : So help you God ; [or, " You do swear, in presence of the ever-living God, that," etc., as above, omitting the words : " So help you God ; " or, " You do solemnly, sincerely and truly affirm and declare, that," etc., as above, omitting the words as aforesaid.] Oath to a Witness proving the Identity of the Parties or of the Svhsmbing Witness to a Convm/ance, You do solemnly swear, that you wiU true answers make to such questions is shall be put to you touching the identity of the parties [or, " the subecrib- ing witness"] to this conveyance : So help you God. [If necessary, vary as in the foregoing form.] Oath to a Deponent. You do solemnly swear, that the contents of this affidavit, by you sub- scribed, are true : So help you God. [Vary as above when necessary.] ACQUITTAL.. Acqiiittal, in Contracts. — ^A release or discharge from an obligation or engagement. In Criminal Practice. — The absolution of a party charged with a crime. After an acquittal, either by a court or jury, the accused can never be convicted of the same offense for which he has been once acquitted. ACQUITTANCE. Acquittance. — Ati agreement in writing to discharge a party from an engagement to pay a sum of money. It ia evidence of payment, and differs from a release : in this, thai the latter must be under seal, while an acquittance need nol be. ACT OJ" BANKRUPTCY — ACTUARY. 27 ACT OF BANKRUPTCY. Aot of Bankruptcy. — ^An act wliich subjects a person to be proceeded against as a bankrupt. See Bankrupt Law. ACT OF GOD. The phrase "Act of God," is often met witli in law pro- ceedings; where common carriers and others frequently en- deavor to limit their responsibility by claiming that the destruction or injury of goods in their keeping was caused by the "Act of God." In the folloAving cases the carrier or custodian of goods is not accountable for the loss or injury of goods in his keeping — ^when a storm, lightning or earthquake, destroys them — ^when they are captured by pirates or the public enemy — ^when a collision at sea is the cause of the loss; but only when no blame is imputable to the injured ship. Unless the loss 'wa.s occasioned by the "Act of God," so called, or the perils of the sea (which are considered the same), and the proof of the same lies on the carrier or cus- todian of the goods, their value may be recovered. ACTION. Action. — ^The formal demand of one's right from another person or party, made and insisted on in a court of justice. "Actions," includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person or party of another in such court, including an ad- judication upon the right, and its enforcement or denial, by the court. ACTUARY. Actuary.— The manager of a joint stock company, partic- ularly an insurance company. In some corporations a clerk is called an actuary. 2S LAW ENCYCLOPEDIA* A.D DAMNUM. Ad Damnum. — ^The teclmical name of that part of the ■writ or pleading that contains a statement of the amount of plaintiff's injury. As a general rule, the plaintiff canno recover greater damages than he hfis claimed in the ad-dat num clause of his complaint. AD INTERIM. Ad Interim. — In the mean time. An officer is sometimes appointed ad interim, when the principal officer is absent, or for some cause incapable of acting for the time. AD VALOREM. Ad Valorem. — ^According to the valuation. Duties are specific or ad valorem. Ad valorem duties are always esti- ated at a certain, per cent, on the valuation of the property. ADJUSTMENT. A(3justment, Insurance. — ^The determining of the amount of loss. To render an adjustment binding, it must be in- tended and understood by the parties to a policy to be absolute and final. It may be made by indorsement on the policy, or by payment of the loss, or the acceptance of an abandonment. If one party is led into a material mistake by fault of the other, the adjustment will not bind him. The general rule is, that th^ amount of loss is governed by that of the insurable interest, so far as it is covered by the insurance. See Insubanoe. ADMINISTRATOR. Administrator. — ^The management of the estate of an intestate, or of a testator who has no executor. See ExEC- UTOES AND AdmINISTBATOBS. ADMIRALTY— ADVANCES. E9 ADMIRALTY. Admiralty. — A court wliicli has a very extensive jurisdic- tion of maritime causes, civil and criminal. In the United States, admiralty jurisdiction is vested in the United States district courts. From this court cases may be removed to the circuit court, and ultimately.to the supreme court. ADMISSIONS. Admissions, Evidence. — Concessions or voluntary ac- knowledgments made by a painty of the existence or truth of certain facts. They niay be made by a party to the record, or by one identified in interest with him. An attorney's admissions in a case bind the client and parties to the suit. ADULT. Adxilt. — One of full age. See CoNTEACTS — ^MmoBS and Crimes aot) Punishments. ADULTERER. Adulterer. — One who corrupts; one who corrupts another man's wife. See Adults — Divorce. ADVANCES. Advances. — ^Payments made to the owner of goods by a factor or agent, who has or is to have possession of the goods for the purpose of selling them. An Agent is entitled to reimburse himself from the pro- ceeds of the goods, and has a lien on them for the amouni paid; and he may have his action against the owner if the saJns are not sufficient to cover the advances. 30 CLiW ENCYCLOPEDIA. ADVERSE POSSESSION. Adverse' Possession. — The enjoyment of land held ad- versely to all the world or to some person who claims the title or right of possession. When such possession cor- responds with the period prescribed by the limitation act, the law raises a presumption of a grant to the possessor. See Limitations. ADVERTISEMENT. Advertisement. — Information or knowledge communi- cated to individuals or the public in a manner designed to attract general attention. A man who advertises his busi- ness is wise; he who does not is little less than a fool. The TiSLVir in many instances requires parties to advertise in order to give notice of acts which are to be done; in these cases the advertisement is, in general, equivalent to notice. In certain cases, a summons must be published : that is, ad- vertised. ADVOCATE. Advocate. — ^An assistant; adviser; a pleader of eases. In America, an attorney at law is an advocate. In England, an advocate is distinct from attorney. See Attoeney at Law. ' AFFIDAVIT. Aifidavlt. — A statement or declaration reduced to writing, and sworn or affirmed to before some officer who has author- ity to administer an oath. It differs from a deposition: in this, that in the latter, the opposite party has an opportunity to cross-examine the witness, whereas an affidavit is always taken ex parte, AFFIRMANCE. Affirmance. — ^The confirmation of a voidable act by the party acting who is to be bound thereby. If it were not affirmed the act performed would not be binding. APFBAY— agency:. 31 AFFRAY. Affray. — ^The fighting of two or more persons in some pub- lic place to the terror of the people. It differs from a riot in not being premeditated. See Crimes and Punishments. AFORETHOUGHT. Aforethought. — Premeditated; prepense. The length of time during which the accused has entertained the thought of committing the offense is not very material provided he has in fact entertaiaed such thought; he is thereby rendered criminal in a greater degree than if he had committed the offense without premeditation. See Ckimes and Ptxnish- MENTSi AGENCY. Principal and Agent. — Whenever one person authorizes another to represent or do any business for him, the person so authoriziag is the principal, and the person authorized is the agent ; and the agent may bind the principal to the ex- tent of his authority and no further, unless after the unau- thorized act the principal confirms it expressly or by im- plication. Who may be Agent. — One who is disqualified from con- tracting on his own account may act as the agent of another competent person. Thus infants and married women may act as agents. Responsibility of Principal. — The principal is responsi- ble for the acts of his agent, and is not permitted to deny them whenever it appears that he has actually given author- ity to the agent to act for him; and also when by words or acts he has permitted those with whom he deals to believe him to be clothed with full authority. The responsibility of the principal rests on two grounds : 1st. The giving of actual authority. 2d. Leading those who deal with the agent to believe that such authority is given. 32 lAW ENCTCLOPEDIiCk DifTerent kinds of Agents.^Agents are of two kinds, general and special. A general agent is one who is author- ized to act for the principal in all his business of a particular kind. A special agent is only authorized to act for his principal in one or a few specified things. It is sometimes difficult to distinguish between a special and general agent, but it is always safe to conclude that an agent has authority to do any act within the scope of the business engaged in. JPor example : An agent doing a banking business in the name of another will be presumed to have authority to receive de- posits, general or special ; and also in mercantile transac- tions, an agent may buy or sell on credit if such is the cus- tom of those merchants engaged in similar business. 'In such cases, it may be a fact that the banking agent has no authority to receive deposits, nor the mercantile agent no authority to buy or sell on credit; still the principal will be bound unless he can show clearly that those dealing with the agent had notice of the want of authority in the agent. This is not the Rule, ia special agencies, because the agent is appointed for a specified purpose, and those who deal with him must inquire into the extent of his authority. Authority, ho-w Given. — Authority may be given to an agent either by writing or by word of mouth. If the agent is expected to deal with real estate in any way the authority must be in writirig, and such vrriting is called a power of attorney. [See Power op Attoeney, post.'] "Where the authority is oral the agent may make written contracts to bind his principal ; but not under seal. If one is repeated- ly employed to do certain things — as a wife, son or daughter, to collect rents, sign receipts and the like, or a servant to make purchases — in these cases one dealing with such per- son is justified in believing him authorized by the princi- pal to do those things. Confirmation of Agent's Acts. — An ageniy may be con- firmed by any subsequent adoption and ratisfaction ; but only in cases where the person so ratifying had knowledge of all the principal material facts ; and it is a general rule of law, that a person who holds and enjoys the beneficial AGENCY— ALIBI. 83 results of the acts of a person who assumes to act as his agent, is estopped from denying that such person was his agent. And this rule has been carried to the extent of hold- ing valid the acts, under seal, of an unauthorized person, where a benefit had resulted and had been enjoyed by his assumed principal. If the acts of a person assuming to be an agent, are not disavowed within a reasonable time by the supposed principal after knowledge, he wiU be bound. Responsibility of Agent. — Whenever an agent departs from his authority, so the principal is not bound by his acts, he becomes himself responsible as though he had not as- sumed to act as agent. AGISTER. Agister. — One who takes in horses or other animals to pasture at certain rates. He is not bound to take all horses offered to him, nor is he liable for any injury done to such animals in his care, unless he has been guilty of negligence. He has no lien on the animal for his charges; nor has a livery-stable keeper. An inn keeper has a lien. AGREEMENT. Agreement. — A coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing. All contracts are agreements. See Conteacts. ALIBI. Alibi. — Presence in another place than that described. When a person charged with a crime proves that he was at the time alleged in a different place from that in which it was committed, he is said to prove an aiibi, the effect of which is to lay a foundation for the necessary inference that he could not have committed it. 3 34 LAW ENOYCLOPEDU. ALIEN. Alien. — One of foreign birth. In the United States, one born out of the jurisdiction of the United States. See Naturalization. ALIENATION. Alienation of Estates. — The transfer of the property and possession of lands, tenements and other things, from one person to another. It is particularly applied to absolute conveyances of real property. ALIMONY. Support of Wife. — Alimony is defined to be the allowance which a husband, by order of court, pays to his wife, living separate from him, for her maintenance. Pending Suit. — ^Alimony, pending suit, is that ordered during the pendency of an action. See Divorce. Permanent Alimony. — Permanent alimony is that ordered by the court for the use of the wife afkr the termination of the suit. The Practice of all courts on the Pacific Coast is to decree costs and alimony where the husband drives the wife from his house, or refuses to support her without just cause; in such case the wife is not compelled to sue for di- vorce, but can sue to compel her husband to support her, and even in cases where she has no legal ground of divorce. "Where a divorce has been granted the court will always de- cree alimony, if the wife is without fault. During the pendency of an action for divorce, whether the wife be plaintiff or defendant, the court will decree alimony to her if it appears by affidavit that she has not sufficient means to carry on the suit. In such case, the court usually orders a certain sum to be paid her for costs, counsel fees and support, during the action. The amount depends ALIMONY— ALLTJTIUM. 35 on the wealth of the husband, who can defeat the applica- tion altogether if it appears that he is poor and without means. It is usually paid at stated periods, as for instance, on the first day of every month or every year, depending, in a great measure, on the situation of the parties; but it is never paid in one sum, as that would not be alimony but division of the property. In Utah, even, the courts decree alimony, notwithstanding the probable financial ruin of the husband in case thirty of his wives should join a bill for divorce. In such case alimony would become a word sy- nonymous with oppression. ALLEGIANCE. Allegiaace. — ^The tie which binds the citizen to the gov- ernment, in return for the protection which the government affords him. When a citizen of one country renounces his allegiance and becomes a citizen of another he acquires a new allegiance. Natural allegiance, is that which results from the birth ,of a person in the country of his father. See Nattjbalization. ALLIANCE. AUlance. — The union or connection of two persons or families by marriage; affinity. In International Lav/. — A contract, treaty or league, be- tween two sovereigns or states, made to increase their safety and common defense. ALLUVIUM. AUuvium. — ^The increSee of the earth on a shore or bank of a river by the force of the water, as by a current or by waves, which is so graded that no one can judge how much is added at each moment of time. The proprietor of the bank so increased is entitled to the addition so deposited. 36 L4.W ENCTOLOPEDU. AMBIGUITY. Ambiguity. — Uncertamty of meaning of an expression Tised in a written instrument. Latent — Is that which arises from some collateral circum- stance or extrinsic matter in cases where the instrument itself is sufficiently certain and intelligible, Patent — ^Is that which appears on the face of the instru- ment; that which occurs when the expression of an instru- ment is so defective that a court of law, which is obliged to put a construction upon it, placing itself in the situation of the parties, cannot ascertaia therefrom the parties' inten- tion. AMNESTY. Amnesty. — ^An act of oblivion of past offenses granted by the government to those who have been guilty of any neglect or crime; usually, upon condition that they return to their duly within a certain period. ANNUITY. Annuity. — A yearly sum stipulated to be paid to another, ia fee, or for life, or for years, and chargeable only on the person of the grantor. ANSWER. Ans-wer. — A defense in writing made by a defendant to the charges contained in a biU, information or complaint, filed by the plaintiff against him in a court. APPEAL. Appeal. — ^The removal of a case from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and re-trial, if necessary. See CouETS op Justice. AEPEABANOE — ABBITEATION AJTO AWAED. 37 APPEARANCE. Appearance. — A coming into court as a party to a suit, ■whether as plaintiff or defendant. The formal proceeding by which a party submits himself or case to the jurisdiction of the court. A party may appear in person or by attorney. APPELLANT. Appellant. — ^He who makes an appeal from one jurisdic- tion to another. See Appeal. APPRAISER. Appraiser. — ^A person appointed by competent authority to value goods or real estate. See Estates of Deceased Persons. APPURTENANCES. Appiutenances. — Things belonging to another thing as principal, and which pass as incident to the principal thing. If a house and land be conveyed, everything passes which is necessary to the full enjoyment thereof, and which is in- cident and appurtenant thereto. ARBITRATION AND AWARD. Arbitration and A'w^axd. — Whenever two or more people find themselves in trouble with each other, regarding mat- ters of business, before going into courts it is always best to try and settle the disputes by arbitration, and thereby save costs, annoyances and delays, of the law, and much vexation of spirit. If the following provisions of the law are fol- lowed and the forms properly used, the reader cannot well go astray: Submission. — ^The act by which two or more parties refer a matter in dispute to the decision of third parties, is called 38 JAM ENCYCLOPEDIA. submission; the parties to vrhom the matter is referred, arbitrators; and their decision, an award, A-vyard, •when Good. — The award, to be good, must not embrace any matter not comprehended in the submission. The award must comprehend every item or thing submitted. It must not be of a thing unreasonable nor against law, or impossible to the party; and it must also be certain and capable of being reduced to certainty. The foUcwing is the law of California, Nevada and Idaho, on this subject: Who may Submit. — Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civU action between them, except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property.* To be in Writing'. — The submission to arbitration shall be in writing, and may be to one or more persons. May be Entered as an Order of Court. — It may be stip- ulated in the submission, that it be entered as an order of the county court or of the district court, for which pur- pose it shall be filed with the clerk of the county where the parties, or one of them, reside. The clerk shall thereupon enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of submission, when filed, and the time limited by the submission, if any, within which the award shall be made. When so entered, the submission shall not be re- voked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment. If the submission be not made an order of the court, it may be' revoked at any time before the award is made. Po-wer of Arbitrators, — ^Arbitrators shall have power to appoint a time and place for hearing, to adjourn from time " This does not relate to Divorce. AEBITEATION AND AWAED. 39 to time, to administer oaths to witnesses, to hear the allega- tions and evidence of the parties, and to make an award thereon. Majority to Decide. — All the arbitrators shall meet and act together during the investigation; but when met, a ma- jority may determine any question. Before acting they shall be sworn before an officer aiithorized to administer oaths, faithfully and fairly to hear and examine the allega- tions and evidence of the parties in relation to the matter ia controversy, and to make a just award according to their understanding. Avraid to be in Writing. — The award shall be in writing, signed by the arbitrators, or a majority of them, and deliv- ered ,to the parties. When the submission is made an order of the court, the award shall be filed with the clerk, and a note made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit, showing that notice of filing the award has been served on the adverse party or his attorney, at least four days prior to such application, and that no order staying the entry of judgment has been served, the award shall be entered by the clerk in his judgment book, and shall thereupon have the effect of a judgment. Coiirt may Vacate ATvard.n— The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators or not, in its discretion : 1st. That it was procured by corruption or fraud. 2d. That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to post- pone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced. 3d. That the arbitrators exceeded their powers in making their award; or that they refused, or improperly omitted to consider a part of the matters submitted to them; or that the award is indefinite or cannot be performed. 40 LAW ENCYCLOPEDIA- Court may Modify or Correct. — ^The court may, on mo- tion, modify or correct the award, where it appears: 1st. That there loas a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein. 2d. When a part of the award is upon matters not submit- ted, which part can be separated from other parts, and does not affect the decision on the matter submitted. 3d. WJien the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded. Appeal -will Lie, ■vyhen. — ^The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action, but the judgment entered before a motion is made shall not be subject to appeal. [In Idaho, a writ of error may correct.] Costs and Damages. — ^If a submission to arbitration be revoked, and an action be brought therefor, the amount shall only be costs and damages sustained in preparing for and attending the arbitration. OEEGON. Controversy Submitted -without Action. — Parties to questions which might be the subject of an action at law in a court of record laaj submit the same to a court without action. The parties shall state in writing the facts of the case, and submit the same in person or by attorney. The statement must be verified by one of the parties on each side; and must state that the controversy is real, and the proceedings taken in good faith. "Where either party is the state, a county, public or private corporation, or minor, the verification and case may be subscribed by any person on whom a summons in an action upon the same facts might be served. The statement shall be filed with the clerk, and from the date of such filing the court shall have jurisdiction of the controversy, as if the same were an action pending in the courts, after a special verdict found, and shall proceed to hear and determine the same accordingly. ABBITBAlION AND AWABD — FOBMS 01*. 41 Arbitration. — In Oregon the law relating to abitration and award is substantially the same as in California. In addition the statutes provide that when the fence rails or other property, hi any person in the State shall be removed by high water and lodged upon the land of another, the owner shall proceed within four months upon the premises where such property is lodged and in case the proprietor of the land shall refuse to surrender the same the parties shall each select an arbitrator who shall examine and hear evidence upon all the circumstances and facts and deter- mine the case. The arbitrators then award whatever dam- ages either may be entitled to. FORMS. General Submission — Short Form. We, the undersigned, mutually agree to submit and do hereby submit all our matters in difference of eTery name or nature, to the award and decision of , , and for them to hear and determine the same, and make their award in writing, on or before the day of next. Witness our hands this day of 18 In presence of General Submission, Whereas, differences have for a long time existed, and are now existing and pending, between of, etc., and , of, etc., iu relation to divers subjects of controversy and dispute : Now, therefore, we, the undersigned and , aforesaid, do hereby mutually covenant and agree, to and with each other, that , , and , of, etc., or any two of them, shall abitrate, award, order, judge and determine, of and concerning all and all manner of actions, cause and causes of actions, suits, controversies, claims and demands whatsoever, now pending, existing or held, by and between us, the said parties ; and we do further mutually covenant and agree, to and with each other, that we will in all things faith- fully observe, keep and abide by, the decision and award said arbitrators shall make in writing, on or before the day of a.d. 18. . Witness our hands and seals this day of 18. . [i-.s.] [L.S.] Special Submission. Whereas, a controversy is now existing and pending, between of, etc., and , of, etc., in relation to certain mining claims and quart2 mills, made by and between the said parties, at the town of aforesaid, on the day of last past : Now, therefore, we, the undersigned and , aforesaid, do hereby submit the said controversy to 42 LAW ENCYCLOPEDIA. the arbitrament of , , and of, etc., or any two of them ; and we do mutually covenant and agree, to and with each other, that the award to be made by the said arbitrators, or any two of them, shall in all things, by us, and each of us, be well and faithfully kept and observed: provided, however, that the said award be made in writing, under the hands of the said , , and , or any two of them, and ready to be delivered to the said parties in difference, or such of them as shall desire the same, on the day of next. [If it is stipulated that the submission be entered as an order of court, add the following: " and it is hereby agreed and stipulated that this submission to arbitration shall be entered as an order of the court."] Witness our hands [as in the foregoing]. , Bond of Arbitration. Know all men by these presents, that I, of, etc., am held and firmly bound to , of, etc., in the sum of $ lawful money [or, " gold coin "] of the United States to be paid to the said , or to his ex- ecutors, administrators or assigns, for which payment, to be well and faithfully made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal ; dated the day of a.d. 18 . . . The condition of this obligation is such, that if the above bounden . . . . , his heirs, executors and administrators, shall, and do, in all things, well and truly abide by, perform, fulfill and keep, the award, order, abitrament, and final determination of , and , of, etc., arbi- trators, as well on the part and behalf of the above bounden , as of the above-named to abitrate, award, order, judge and determine, of and concerning all and all manner of action and actions, cause and causes of actions, suits, bills, bonds, specialties, judgments, executions, quarrels, controversies, trespasses, damages and demands whatsoever, at any time heretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depending by and between the said parties, so as the said award be made in writing, under the hands of the said , .... , and or any two of them, and ready to be delivered to the said parties in difference, or such of them as shall desire the same, on or before the day of then this obligation to be void, or else to re- main in full force. Sealed and delivered in presence of [l.s. ] [i-s.] Condition of Bond on a Special Suftmission. The condition of the above obligation is such: That if the above bounden shall well and truly submit to the decision of , , and , named, selected and chosen arbitrators, as well by and on the part and behalf of the said , as of the said , between whom a controversy exists, to hear all the proofs and allegations of the parties, of and concerning a certain mining claim made by and between them, at the town of . . . ., aforesaid, on the day of, etc., and all matters relating thereto, so as the award be made, etc., [as in the foregoing]. aebheation and awaed, pobms. oe. 43 Notice to Arbitrators of their Appointment. To , aad , Esquires: You are hereby notified, that you have been nominated and chosen arbitra- tors, as well on the part and behalf of the undersigned , of, etc., as of of, etc., also undersigned, to arbitrate, award, etc., [specifying the time within which, as stated in the submission or bond, the award must be made]; and you are requested to meet the said parties at the office of , in the town of , aforesaid, on the .... day of, etc., at . . . o'clock in the of that day, for the purpose of fixing upon a time and place when and where the proofs and allegations of the said parties shall be heard. Dated the .... day of, etc. Yours, etc., ifbtice of Hearing. In the matter of an arbitration, of and concerning certain) matters in difference between of the one>- part, and of the other part. ) Sir: You will please take notice that the arbitrators have appointed a hear- ing in the matter above specified, to be had before them, at the house of ... . , in the town of, etc., on the day of, etc. Dated the day of, etc. Yours, etc., Or, , Attorney for To Or, and Arbitrators. Arbiiraior's Oath. [To be administered "by any officer authorized to administer oatbs. You do severally swear, faithfully and fairly to hear and examine the mat- ters in controversy between , of the one part, and , of the other part, to make a just award according to the best of your understanding. Another Form, in Writing We, the undersigned arbitrators, appointed by and between and , do swear that we, respectively, will faithfully and fairly hear and ex.*mine the allegations and evidence of the said parties in relation to the matters in controversy between them, and will make a just award therein, ac- cording to the best of our understanding. Sworn to, this day of , 18 . . , before me, , iTustice of the Peace Subpema on Arbitration. County, J ^^• The People of the State of California, to and , greeting: We command you, and each of you, personally, to appear andatten'd at the house of , in the town of , in said county, on the day of 4:4: LAW ENCYCLOPEDIA. instant, at . . o'clock in the of that day, before , , and arbitrators chosen to -determine a controversy [or, "certain matters in controversy "], between and whereof the sub- mission is on file in this court, then and there to testify in relation thereto before said arbitrators, on the part of the said Hereof fail not at your peril. Witness, Hon , judge- of the district court of the judicial district in and for the county of and the eeal of said court, this day of , 18 . . [L.S.] Clerk. Oath of Witness before AriUrators. You do solemnly swear [or "affirm"] that the evidence you shall give to the arbitrators here present, on a controversy [or, "on certain matters in controversy "], between and shall be the truth, the whole truth, and nothing but the truth : So help you God. Hevocation by both Partks. To , and Esquires: Take notice, that we do hereby revoke your powers as arbitrators under the submission made to you by us in writing, and entered as am order of the district court [or, as the case may be], on-ihe day o^ .... 18. . Notice of Beuocation by one Party (the Submission not having been emtered as an Order of Court). To : You are hereby notified, that I have this day revoked the powers of , and , arbitrators chosen to settle the matters in con- troversy between us; and that the following is a copy of such revocation: [In- sert the revocation, made by one of the j)arties only]. Datedthe day of 18.. Yours, etc Award. In the matter of the arbitration of certain matters ) in difference between , on the one > part, and on th&other. ) Know all men, that , to whom were submit- ted, as arbitrators, the matters in controversy existing between , of, etc., and of, etc., as by their submission in writing, and bearing date the day of , a.b. 18 . . , more fully appears: Now, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing: that is to say, the said shall make, execute and deliver, to the said , on or before the day of instant, a good and sufficient assignment of a certain bond and mortgage ex- ecuted, etc., to the said , etc., and the said shall pay, oi cause to be paid, to the -said , the earn of dollars, immediately AEBITEATION AND AWAED — ^AEEEST OF DEBTOB. 45 upon the execution and delivery of the said assignment; [or, "the said .... shall pay or cause to be paid, to the said , the sum of dol- lars, within .... days from the date hereof, in full payment, discharge and satisfaction, of and for all moneys, debts and demands, due or owing from him, the said to the said ;" or, "the said shall henceforth forever cease to prosecute a certain suit commenced by him, against the said in the district court of, etc., now pending and undetermined in the said court; and the said shall pay, or cause to be paid, to the said on or before the day of, etc., the sum of dollars, in full satisfaction of the costs, charges and expenses, incurred by the said , in and about the prosecution of his suit, as aforesaid"]. And we do further award, adjudge and decree, that the said and shall, and do, within days next ensuing the date hereof, seal and execute unto each other, mutual and general releases of all actions, cause and causes of action, suits, controversies, claims and demands whatsoever, for or by reason of any matter, cause or thing, from the begin- ning of the world down to the date of the said submission. In witness whereof, we have hereunto subscribed these presents, this day of , one thousand eight hundred and .... In presence of AKEEST. Arrest. — To stay; to stop; to deprive a person of his lib- erty by legal authority. The seizing a person and detaining him in the custody of the law. See Magisteate. AEEEST OF DEBTOE.— C. C. P. or Cal. When Arrest may be Made. — 1st. In an action for tlie recovery of money or damages, on a cause of action arising upon a contract express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors. [When the action is for libel or slander. NevadaJ] 2d. In an action for a fine or penalty, or for money or prop- erty embezzled or fraudulently misapplied, or converted to his own use, by a public officer, or an officer of a corpora- tion, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for misconduct or neglect in office, 46 LAW ENCyOLOPEDIA. or in a professional employment, or for a TirillfTil violation of duty. 3d. In an action to recover possession of personal property, unjustly detained, when the property or any part thereof has been concealed, removed or disposed of, so that it can- not be found or taken by the sheriff. 4:th. JVJien the defendani has been guilty of fraud in con- tracting the debt, or incurring the obligation for which the action is brought; or in concealing or disposing of the prop- erty for the taking, detention or conversion, of which the action is brought. 5th. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. [Same in Idaho, except no female shall be arrested, except for an injury to person, character or prop- erty. Nevada and Arizona same as California.] Order for Arrest. — An order for the arrest of the defend- ant shall be obtained from a judge of the court in which the action is brought, or from a couniy judge. [Same in Idaho, except probate judge makes the order. Nevada and Oregon the same as California, except there are no county judges in Nevada.] Affidavit and Contents. — ^The order may be made when- ever it shall appear to the judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned aforesaid. The affidavit shall be either positive or upon information and belief; and when upon information and belief, it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the clerk of the county. [Same in Idado, Arizona and Nevada, except the affidavit is filed wtih the clerk of the court.] Security to be given by Plaintiflfl — Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs ABEEST OF DEBTOE. i7 and charges that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder or freeholder, within the state, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the court. [Same in Idaho, Arizona and Nevada.] Order and Form.— The order may be made to accompany the summons, or any time afterwards, before judgment. It shall require the sheriff of the county where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time therein mentioned to the clerk of the court in which the action is pending. [Same in Idaho, Arizona and Nevada.] Duty of Sheriff — ^The order of arrest, with a copy of the affidavit upon which it is made, shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him the copy of the affidavit, and also, if desired, a copy of the order of arrest. [Same in Idaho, Arizona and Nevada.] Arrest, hovr Made. — The sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged by law. Defendant to be Discharged on Bail or DejKJsit. — ^The defendant at any time before execution, shall be discharged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest. [Same in Idaho, Nevada and Arizona.] Bail, how Given. — ^The defendant may give bail by caus- ing a written undertaking to be executed by two or more sufficient sureties, stating their places of residence and oc- cupations, to the effect that they are bound in the amount mentioned in the order of arrest; that the defendant shall at all times render himself amenable to the process of the Court during the pendency of the action, and to such as 48 LAW ENCYCLOPEDIA. may be issued to enforce the judgment therein; or that they •will pay to the plaintiff the amount of any judgment which may be recbvered in the action. [Same in Idaho, Nevada and Arizona.] Surrender of Defendant. — ^At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration; or he may surrender him to the sheriff of the county where he was arrested. [ Same in Idaho, Arizona and Nevada. Siirrender of Defendant. — ^For the purpose of surrender- ing the defendant, the bail, at any time or place before they are finally charged, may themselves arrest him; or by a writ- ten authority, indorsed on a certified copy of the imdertak- ing, may empower the sheriff to do so. Upon the arrest of the defendant by the sheriff, or upon his delivery to the sheriff by the bail, or upon his own surrender, the bail shall be exonerated : provided, such arrest, delivery or surrender, take place before the expiration of ten days after judgment; but if such arrest, delivery or surrender, be not made with- in ten days after judgment, the bail shall be finally charged on their undertaking, and be bound to pay the amount of the judgment within ten days thereafter. [Same in Idaho, Arizona and Nevada.] Bail, hovr proceeded Against. — ^If the bail neglect or re- fuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of such original judgment. [Same in Idaho, Arizona and Nevada.] Qualification of Bail. — ^The qualification of bail shall be as follows : 1st. Each of them shall be a resident and householder or freeholder, within the county. 2d. Each shall be worth the amount specified in the order of arrest, or the amount to which the order is reduced, 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 AEEEST OP DEBTOR. 49 to justify severally, in amounts less than that expressed in the order, if the -whole justification be equivalent to that of two sufficient bail. [Same in Idaho, Nevada and Arizona.] Deposit of Money -with SheriflF! — ^The defendant may, at the time of his arrest, instead of giving bail, deposit with tho sheriff the amount mentioned in the order. In case the amount of the bail be reduced, the defendant may deposit such amount instead of giving bail. In either case, the sheriff shall give the defendant a certificate of the deposit made, and the defendant shall be discharged out of cus- tody. [Same in Idaho, Nevada and Arizona.] Motion to vacate Order of Arrest, or reduce Bail and Affidavit3 on Motion. — A defendant arrested may at any time before the justification of bail, apply to the judge who made the order, or the court in which the action is pending, upon reasonable notice to the plaintiff, to vacate the order of arrest, or to reduce the amount of bail. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affida- vits or other proofs, in addition to those on which the order of arrest was made. [Same in Idaho, Nevada and Arizona.] When the Order Vacated or Bail Reduced. — If upon such application it shall satisfactorily appear that there was not sufficient cause for the arrest, the order shall be vacated; or if it satisfactorily appear that the bail was fixed too high, the amount shall be reduced. [Same in Idaho, Nevada and Arizona.] OREGON AND WASHINGTON. When Defendant may be Arrested. — The defendant in an action at law may be arrested in the following cases : 1st. In actions for the recovery of money or damages due on contracts when the defendant is a non-resident of the state, or is about to remove therefrom, or when the ac- tion is for an injury to person or character, or for injuring or wrongfully taking, detaining or converting property. 2d. In an action for a fine or penalty, or on a promise 4 50 LAW ENCYCLOPEDU. to marry, or for money received, or property embezzled, or fraudulently misapplied, or converted to his own use by a public officer or by an attorney, or by an officer or agent of a corporation in the course of his employment as such, or by any factor, agent, broker or other person, in a fiduciary capacity, or for any misconduct or neglect in office, or in a ]5rofessional employment. 3d. In an action to recover the possession of personal prop- erty unjustly detained, when the property or any part thereof has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found and taken, or with the intent to de- prive the plaintiff of the benefit thereof. 4th and 5th. The same as in California. [The same in Washington except in subdivision first, arrest can only be had in cases not arising out of contract.] In Oregon, a female shall not be arrested in civil actions except for an injury to person, character or property. In California, a female may be arrested the same as a man in actions in the district courts; but a female shall not be ar- rested in actions in justices' courts. See Justices' Couets. The La-w of Oregon, in other respects, is substantially the same as in California. FOEMS. Affidavit for Order of Arr(si.-~Departing out of State with Intent to Defraud Creditors, In the District Court of the Judicial District of the State of Califomia, in and for the , county of iiainfiff, against V Aitidatit fob Okdee of Abeest. — Departing out of State, I with Intent to Defraud Creditors. Defendant. J , being duly sworn, says that he is the plaintiff in the above- entitled action; that the cause of action in this case arose after the passsage of the act of the legislature of the state of California, entitled ' ' An act to reg- ulate proceedings in civil cases in the courts of justice of this State," passed April 29, 1851. That it is an action for the recovery of money or damages, on a cause of action arising upon an express contract, and that the defendant in said action is about to depart from this state with the intent to defraud his creditors. And affiant further states and shows the following facts and circumstances AEEEST OF DEBTOE, FORMS OP. 5X in support of the above allegations of fraud, to -wit: [Facts and circum- stances]. Subscribed and sworn to before me, this day of a.d. 18 . . County Clerk. Affidavit for Order of Arrest — Fraudulent Debtor. In the district court of the judicial district of the state of California, in and for the county of 1 Plaintiffs, against Defendant. , being duly sworn, says, that he is one of the plaintiffs in the above-entitled action; that the cause of action in this case arose after the passage of the act of the legislature of the state of California, entitled "An act to regulate proceedings in civil cases in the courts of justice of this state, ' ' passed April 29th, 1851. That it is an action for the recovery of money or damages, on a cause of action upon an implied contract, and that defendant in said action has been guilty of fraud in contracting the debt and incurring the obligations for which the said action is brought. And affiant further states and shows the following facts and circumstances in support of the above allegations of fraud, to wit: [Facts and circum- stances]. Subscribed and sworn to before me, this day-of a.d. 18. . County Clerk. General Affidavit for Order of Arrest. State of California, I In the district court of the judicial district, et al, against \ one of the plaintiffs in this suit, being duly sworn, deposes and says, that the cause of action in this case arose after the passage of the act of the legislature of the state of California, entitled " An act to regulate pro- ceedings in civil cases of the courts of justice of this State, " passed April 29th, 1851. That it is an action for the recovery of money or damages, in a cause of action arising upon an express contract, and that the defendant is about to depart from this state with the intent to defraud his creditors [or set out other ground of arrest as prescribed by the statute]. And deponent further states and shows to the court the following facts and circumstances in support of the above allegations of fraud, that is to say: [Here set out the facts, etc.]. Sworn to before me this .... day of a.d. 18. . t Deputy Clerk. 52 LAW ENCYCLOPEDIA. Undertaking on Arrest, In the district court of the judicial district of the state of California, in and for the county of. plaintiff, Defendant. Whereas, in a certain action in the district court of the judicial district of the state of California, in and for the .... county of wherein .... is plaintiff , and defendant , an order was duly made and de- livered to the sheriff of the county of .... , requiring him forthwith to arrest the said defendant , and hold to bail, in the sum of dol- lars; and the said sheriff having arrested the said defendant and taken into custody by virtue of the said order: Now, therefore, we , residing at the , in the county of , by occupation a , and , residing at . . . . , in the county of . . . ., by occupation a , are jointly and severally bound in the sum of dollars, the amount in the said order of arrest mentioned, that the said defendant shall at all times render .... amenable to the process of the said court during the pendency of the said action, and to such as may be issued to enforce the judgment therein ; or, that we will pay to the said plaintiff the amount of any judgment which may be recovered in the said action. Dated the day of a.d. 18. . [Sureties must justify as in other undertaldnga. See Attachment.] Order of Arrest. In the district court uf the judicial district of the state of Califorma, in and for the county of Plaintiff, against Defendant. The people of the state of California, to the sheriff of the county of : The above-named plaintiff having commenced an action in the district court of the judicial district of the state of California, in and for the .... county of . . . . , against the above-named defendant , and it duly ap- pearing to me, from ajffidavits submitted on the part of the said plaintiff , that a sufficient cause of action exists, and that the case is one of those mentioned in section seventy-three of the act, entitled "An act to regulate proceedings in civil cases in the courts of justice of this state, ' ' passed April 29th, 18 . . , to wit : That the said defendant has been guilty of fraud in contracting the debt for which the said action is brought, and the necessary undertaking having been given, I, the undersigned, judge of the said district court, by virtue of the authority in me vested by law, do order and require yon, the said sheriff of the county of forthwith to arrest the said defendant , if may be found iu your county, and hold to bail in said action, in the sum of ARREST O? DEBTOR, FORMS OP — ASSAULT. 53 . dollars, and that you return this order, with your proceedings thereon, to the clerk of the said district Court, on the day of a.d. 18 , Dated the day of .... a.d. 18 . . Judge of said .... District. AEEEST OF JUDGMENT. Arrest of Judgment. — The act of a court, by which the court refuses to give judgment, because upon the face of the record or proceedings the plaintiff is not entitled to it. A motion, in arrest of judgment, is addressed to the court before which the action has been tried, and is based on the record. AESON. Arson. — The malicious burning of a house of another. See Crimes and Punishments. AETICLES OF PAETNEESHIP. Articles of Partnership. — A written agreement by which parties enter into a partnership upon the conditions therein mentioned. See Partnership. ASSAULT. In Ceilifornia. — An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. It is punishable by fine not exceeding five hundred dollars or by not exceeding three months im- prisonment. In Oregon — An assault by a person not being armed with a dangerous weapon is punishable hj not less than three months nor more than one years imprisonment in county jail or fined not less than fifty, nor more than five hundred dollars, or both. If the assaulter is armed then he may be imprisoned in the penitentiary not ovey one year. In Washington. — The same as in Oregon except there is no distinction between being armed or unarmed, and the 54 LAW ENCYCLOPEDIA. punishment is by fine not exceeding five hundred dollars or six months imprisonment. In Nevada and Arizona. — An assault is an unlawful at- tempt, ^coupled with the present ability, to commit a vio- lent injury on the person of another; and every person con- victed thereof, shall be fined in a sum not exceeding five hundred dollars, or imprisonment in the county jail not ex- ceeding six months. In Idaho. — Same as in Nevada except the fine shall not be less than twenty, nor more than one thousand dollars, or by not to exceed six months imprisonment. In Montana. — Same as in Nevada except the fine shall be no less than five nor more than fifty dollars. What Constitutes. — To constitute an assault, the defend- ant must intend to strike, have the ability to strike, and must make the attempt. An attempt to do violence accom- panied by acts which, avoided by the other party, would, in the usual course of crime be followed by violence, amounts to an assault; and in no case is it necessary that a blow should be given to constitute this oflense, nor is it always necessary that the assailant should be at any time within striking distance. Intention and Acts. — Drawing a pistol and pointing it at anothet, shaking the closed hand or striking at another, and in short, doing any act which, if not prevented or avoided in some way, would amount to a battery, is an assault. If A strikes or frightens a horse which B is rid- ing or driving,' with intent to cause it to run away [and we may here observe that in most cases the intent is judged by the act], it is an assault; and if the horse does run away and injures B, it is an assault and battery. Repelling Assaults. — In repelling an assault, the person assailed must beware or he too will lay himself liable. Ha should use no more force than is absolutely necessary [and it is for a jury to say whether he did or not] ; and if ho ASSAULT AND BATTERY. 55 does, he becomes himself the aggressor, and must answer to the offended law. We must not be understood as recom- mending a person on whom an assault is committed to con- sult a lawyer before he repels it. He must resist on the spot, inntanUy, or he must not resist at all. ASSA.ULT AND BATTEET. In California. — A battery is any unlawful use of force or violence upon the person of another; and is punishable by fine not exceeding one thousand dollars, or by imprison- ment in the county jail not exceeding one year. In Oregon. — The same as an assault. [See Assault, Oregon.] In Washin^on, Nevada, Arizona, Idaho and Montana. An assault and battery is the unlawful beating of an- other. The punishment is usually the same as for assault. At Conunon La-w. — The common law is substantially the same, and so is the law of the several States. Every battery includes an assault; and, on the same principle, the greater crime always includes the less of the same nature. Assault and battery is nothing more than perfected assault, as the object of the assault is carried out in the battery. Therefore, what we have said under the head "Assault," comes aptly in this place, and which see. A mere touch of the person, in an angry, rude or threatening manner, con- stitutes the offense as well as a violent blow. The two bat- teries only differ in degree. There have been cases where the slightest touch has been punished by the severest pen- alty. In England where the common law prevails, the pen- alty depends in a high degree upon the person aggrieved. Repelling Assault and Battery. — The same caution must be observed here as in cases of assault, and no more force should be used than is absolutely necessary to repel the assailant. If more force is used than is necessary for self- protection, the assailed becomes the assailant. On the other hand, the assailed is not required or expected to cal- culate, or weigh the force of the return blow. 56 LAW ENCYCLOPEDU. ASSAYER. CALIFOBNIA. Assayer of State. — The governor, by and with the advice and consent of the senate, may appoint a person skilled in the art of assaying ores and metals, to be state assayer, who shall hold office for two years. He shall give a bond for the faithful performance of his duties, in the sum of fifty thou- sand dollars. Duty of Assayer. — ^It is his duty to assay such ores and metals as shall be offered to him for that purpose. He is not allowed to charge greater fees than are charged in the United States mint for similar services. He is allowed two dollars for attaching his official seal to his certificate. ASSESSMENT. Assessment — Determining the value of a man's property or occupation, for the purpose of levying a tax. Determin- ing the share of a tax to be paid by each individual. Of Damages. — ^Fixing the amount of damages to which the prevaiHag party in a suit is entitled. ASSIGNMENTS. CALIFOKNIA, OKEGON, NEVADA AND IDAHO. Assigmnents, \^rhen Valid. — An assignment is the trans- fer of some interest or claim in or to any estate, property or thing, to another. It must be made in good faith. And any party interested in testing its validity can do so in an action; if it can be shown that the assignment was made to evade debts due to creditors, it will be set aside. By Debtor. — An assignment by a debtor for the benefit of his creditors must be an unconditional surrender of all his effects. If he secretly hold back any property, such with- holdiag is fraudulent. An Assignment by an Insolvent debtor, in trust to pay ASSIGNMENTS. 57 ceiiain creditors, who are to transfer the residue to the debtor, is void as to the remaining creditors; and evidence that there would be no surplus will not render it valid. All Assignments, for the benefit of creditors, must be accompanied by immediate delivery of the'property. What Constitutes. — In general delivery of the thing as- signed, is sufficient to pass the title to the assignee; but it is always best to have assignments evidenced by writing, signed by the assignor. The person assigning is the assignor. The person to whom the thing is assigned is the assignee. No particular form of words is necessary. Effect of, Etc. — Assignments place the absolute title to the thing assigned [without the assignment is to a trustee for a particular purpose] in the assignee, who must sue in his own name; and the assignee takes the thing assigned subject to any set-off, or other defense existing at the time of, or before notice of, the assignment; but this rule does not apply to a negotiable promissory note, or bill of ex- change, transferred in good faith and upon good considera- tion, before due. When Void. — Every assignment, in writing or otherwise, of any estate or interest in lands, or of goods in action, or of any rents or profits issuing therefrom, made with intent to hinder, delay or defraud, creditors or other persons, of their lawful suits, damages, forfeitures, debts or demands, is void. Same. — ^Every assignment, verbal or written, of goods, chattels or things in action, made in trust for the use of the person making the same, is void against the creditors, exist- ing or subsequent, of such person. Interest in Land. — ^When any interest in land, excepting leases for one year or less, or any trust or power over or concerning lands, or in any manner relating thereto, is as- signed, the assignment must be in writing, signed and sealed by the party assigning, or by his agent, lawfully authorized in writing. 58 LAW ENCYCLOPEDIA. Of Goods and Chattels. — ^Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and. continued change of possession of things sold or assigned, shall be conclusive evidence of fraud, as against the creditors of the vendor or assignor, or subse- quent purchasers in good faith; except in cases of contracts of bottomry, respondentia or assignments, or hypotheca- tions of vessels or goods at sea, or in foreign states, or out of the state, provided possession of such vessel or goods be changed as soon as may be after their arrival. Assignment of Stock. — Transfers of stock in a corpora- tion, to be valid as against third parties, must be entered in the books of the company, so as to show the names of the parties, by whom and to whom transferred, the number and designation of the shares, and the date of the transfer. FOKMS. Simple Form of Assignment, to be Indorsed upon an Instrument. In consideration of the sum of dollars to me in hand paid, by , of, etc., the receipt whereof is hereby acknowledged, I do hereby trans- fer, assign and set over, to the said his heirs and assigns foreyer, all my right, title or interest, in and to the within instrument. "Witness my hand and seal, this day of 18. . ['•«•] In presence of Assignment of Bond. Know all men by these presents: That I of, etc., of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, to me in hand paid by of, etc., of the second part, the receipt whereof is hereby acknowledged, have bargained, sold and assigned, and by these presents do bargain, sell and assign, unto the said party of the second part, his executors, administrators and assigns, a certain written bond or obligation, and the condition thereof, bearing date the day of one thousand eight hundred and executed by to the said , and all sum and sums of money due or to grow due thereon. And I hereby coTeuant with the said party of the second part, that there is now due on the said bond or obligation, according to the condi- tion thereof, for principal and interest, the sum of doUars. In witness, etc. ASSIGNMENTS, FOBMS OP. 59 Assignment of Note and Mortgage. Mortgage dated the day of , etc., executed by , and his wife, to on certain premises described therein, being pari of lot No , in the county of , recordpd in the office of the recorder of said county, in book No of mortgages, pages , etc. Note bearing date the day aforesaid, executed by to , aforesaid, in the sum of dollars, secured by the above mortgage, on the .... day of 18 . . , with interest at per cent, per month. In consideration of dollars, to me paid, by , of, etc., I do hereby assign, transfer and set over, unto the said the mortgage above described, and the note accompanying the same, aB aforesaid, for his use and benefit; hereby authorizing him to collect and enforce payment thereof, but at his own costs and charges. And I do hereby covenant that the sum of dollars, with interest fromthe day of ... . last past, is now due and owing on the said bond and mortgage, and that I have good right to sell and assign the same. In witness, etc. The Same, Indorsed on Mortgage. In consideration of dollars, to me in hand paid, by , of , etc., I do hereby sell, assign, transfer and set over, unto the said the within indenture of mortgage, together with note accompanying the same, for his use and benefit. ■Witness my hand and seal, etc. [ljs.] [Of Book Accounts — Same as in ABsignment of Bond.] Assignment of the Partnership Property by one Partner to the other, to vAnd up ,ihe Concern. This indenture, made this day of one thousand eight hundred and . . . ., between of the . . . ., of , in the county of and state of and , of the same place. Whereas, a copartnership has heretofore existed between the said and under the style and name of .... & which said copart- nership has been this day dissolved by mutual consent: Now, therefore, this indenture witnesseth, that the said has sold, assigned, transferred and set over, and by these presents does sell, transfer, assign and set over, unto the said , his half part of all the goodsi wares, merchandise, property and effects, and stock in trade, belonging to the said copartnership, and also all the accounts, notes, bills, bonds, things in action, claims and demands, due and owing to the said firm. To have and to hold the same unto himself and his assigns, in trust to sell the said property and effects in such manner as he may think proper, but not on a longer credit than .... days, and to collect, demand, sue for and receive, all Slims of money due or to become due upon the said bills, notes, bonds, ac- counts, claims and demands, and with the moneys thus collected, reahzed and obtained, to pay off and discharge all the debts and obligations of the said firm, if the same shall be suf&cient therefor, and of the balance, if there 60 LAW ENCYCLOPEDIA. shall be, after satisfying all the claims and demands against the said firm, to pay over the one half part to the said or his legal representa- tives. And the said doth hereby make, constitute and appoint, the said , his true and lawful attorney, irrevocable in the name of the late firm or otherwise, to sell the said property and effects of the late firm, and all the interest of the said in and to the same; and also ask, demand, sue for, collect and receive, any and all debts, claims and demands, due or to become due and owing to the said late firm, to compound the same and prosecuta suits for the recovery thereof in his discretion; to defend any and all suits that may be brought against the said firm ; and to make, execute, deliver aud acknowledge, all necessary deeds, conveyances, releases, receipts, and discharges, in the premises, and generally to do any and every act and thing requisite and necessary to secure a full, entire, complete and speedy, settlement of all the business and affairs of the late firm of & , hereby ratifying and confirming any and every thing which the said may lawfully do in the premises. And the said , for himself, his heirs, executors and administra- tors, covenants with the said his heirs, executors and adminis- trators, that he will sell the aforesaid property to the best of his ability, and for the best price he can obtain therefor; and will use all diligence to col- lect all the debts, claims and demands, due the said late firm, and that he ■will faithfully apply the proceeds of such sales and claims in accordance •with the above-recited trust. And the said , for himself, his heirs, executors and administra- tors, covenants with the said , that if, after the entire proceeds of said property and effects, claims and demands, of the said late firm have been faithfully applied to the payment of the debts, liabilities and obliga- tions, of the said late firm, there shall remain any debt or liability unsatis- fied, that then he the said his heirs, executors and administrators, will I3ay and satisfy the moiety or one half part of any and every such debt or liability, and the said , his heirs, executors or administrators, from the one-half part thereof, save harmless and keep indemnified. In witness whereof, etc. £Signed] Aisignmeni of Partnership Property and Debts iy one Partner to another for a certain Sum. This indenture of two parts, made and concluded this day of in ASSIGNMENTS, FOBMS OF. 61 the year of , by and between , of . . . , printer, of the first part, and of , printer, of the second part, witnesseth : That, whereas, the said parties were lately copartners in the business ol printing, which partnership was dissolved and determined on the day oi .... last; and whereas, many debts, due and owing to the said parties on ac- count of their said copartnership, are still outstanding, and debts due by the said firm are yet unpaid ; and whereas, it is agreed that the said party of the second part shall assign and release to the said party of the first part all his interest in the stock in trade, goods and effects, belonging to the said fiira, and in the debts now owing to the said firm, and that the said party of the first part shall assume all the debts and liabilities of the said firm, and shall discharge and indemnify the said party of the second part from all liabilitiea and losses arising from the said partnership : Now, therefore, in pursuance of the said agreement, and in consideration of the sum of , paid and secured to the said he, the said .... . . . . , doth hereby fully and absolutely sell, assign, release and make over, to the said 1 all his right, title, interest and share, in and to all stock in trade, goods, merchandise, machinery, tools, books, leasehold premises and effects, belonging to the said partnership, of whatever kind or nature and wheresoever situated; also, all his right, title and interest, in and to all the debts and sums of money now due and owing to the said firm, whether the same be by bond, bUl, note or account, or otherwise ; and the said doth hereby make and appoint the said , his executors, administra- tors and assigns, to be his attorney and attorneys, to receive all and several the debts and sums of money above mentioned, to his and their own use and benefit; and doth hereby authorize the said , his executors, etc., to demand, collect and sue for, the said debts and sums of money, and to use his the said . . . . 's name in any way or manner that the collection, recovery and realization, of the said debts and demands may render necessary, as well in court as out of court, but at their own proper costs and charges, and without cost or damage to the said And the said doth hereby further authorize the said to convey and transfer to his own name, and for his own use and benefit,- any and all sums of money and effects, real and personal estate, which may be taken or received in the name of the said firm, and to hold the same free from all claims of the said , his executors, administrators or assigns. And these presents further witness, that, in pursuance of the said agree- ment, the said , for himself, his executors and administrators, doth hereby covenant to and with the said , his executors and administra- tors, that he, the said , and his, etc., shall pay and discharge, and at all times hereafter save harmless and indemnify the said , his, etc., from and against aU and every the debts, duties and liabilities, which, at the dissolution and termination of the said partnership, were due and owing by the said firm to any person or persons, for any matter or thing touching the said partnership, and of and from all actions, suits, costs, expenses and dam- ages, for, or concerning the said debts, duties and liabilities, unless the said shaU have contracted any debts or incurred any liabilities, in the name and on account of the said firm, which are unknown to the said 62 LAW ENCYCLOPEDIA. and do not appear in the books of the said firm; for -which, if any sach exists, the said does not hereby intend to make himself responsible. In testimony whereof, etc., [as in General Form of Assignment]. ' Assignment of a Bond hy Indorsement. Know all men by these presents, that I, the within named , for and in consideration of the sum of , to me paid by , of at or before the sealing of these presents (the receipt whereof is hereby ae- kowledged), have granted, bargained, sold, assigned, transferred and set oyer, and by these presents do grant, bargain, sell, assign, transfer and set over, Tmto the said , his executors, administrators and assigns, the within written bond or obligation, and the sum of mentioned in the condition thereof, together with all interest due and to grow due for the same, and all my right, title, interest, claim and demand, whatsoever, of, in and to, the same. And I authorize the said to demand, sue for, receive, have, hold and enjoy, the said sum of , and interest, to his own use absolutely forever. In testimony, etc., [as in General Form of Assignment]. Assignment of Judgment — Fall Form. In consideration of the sum of hundred and .... dollars, lawful money of the United States of America, to me in hand paid, at or before the enseal- ing and delivery of these presents, by , of the city of the re- ceipt whereof is hereby acknowledged, I, , of the city of do hereby sell, assign, transfer and set over, to the said and his assigns, all my right, title and interest, in and to a certain judgment, recovered by me in the district court of the twelfth judicial district of the State of California, against , and , composing the firm of & Co., for the sum of hundred and dollars, besides costs, dollars, making in all hundred and dollars, on the day of , a.d. 18 . . , and all sum and sums of money that may be had or obtained by means thereof, together with the said judgment. Hereby constituting and appoint- ing the said my true and lawful attorney irrevocable, with power of substitution and revocation, for his use and at his cost and charges, to take all lawful ways and means for the recovery of the money due or to become due on said judgment, and on payment to acknowledge satisfaction of or dis- charge the same. Hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In witness whereof, I have hereunto set my hand and seal this day of ....A.D. 18.. [l.s.] Sealed and delivered in presence of Assignm,ent of Mortgage and Note — Another Form. Know all men by these presents: That I, , of the first part, in consideration of the sum of dollars, lawful money of the United States of America, to me in hand paid by , of the second part, the receipt of which is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, unto the said party of the second part, a certain ASSIGNMENTS, FOEMB OP. 63 indenture of mortgage, bearing date the .... day of a.d. one thousand eight hundred and , made and executed by , to the said party •of the first part, to secure the payment of the sum of dollars; together ■with the promissory note or obligation therein described, and the money due or to grow due thereon, with the interest; which said indenture of mortgage is recorded in the office of the recorder of the .... county of . . /. , in liber of mortgages, page on the day of a.d. 18. . , to have and to hold the same unto the said party of the second part, his executors, ad- ministrators and assigns, for their use and benefit; subject only to the proviso in the said indenture of mortgage mentioned. Aufi I do covenant to and with the said party of the second part, that I am the lawful owner and holder of the said note and mortgage, and that I have good right to sell, transfer and assign, the same as aforesaid. And I do hereby covenant to and with the said party, of the second part, that there is now due and owing upon the said note and mortgage, the sum of dol- lars, with interest from the day of a.d. one thousand eight hundred and . In witness whereof, I have hereunto set my hand and seal, the day of A.D. one thousand eight hundred and .... [L.S.] Signed, sealed and delivered in the presence of Assignment of Bond and Mortgage as Collateral Security. This indenture, etc., [as in the forms preceding, then add:] But this in- denture [or, "this assignment"] is, nevertheless, made upon this express condition, that if the said , his heirs, executors or administrators, shall well and truly pay, or cause to be paid, unto the said his heirs, executors, administrators or assigns, the sum of dollars, on or before the day of X8 . . , vrith interest from the date hereof, this in- denture [or, " this assignment"] shall be void and of no effect; it being made for the purpose of securing the payment of the said sum of dollars, with interest, as aforesaid, and for no other purpose whatever. And in case the said , his heirs, executors, administrators or assigns, shall col- lect and receive the money due on said mortgage hereby assigned, he or they shall, after retaining the sum of dollars, with the interest thereon, and his or their reasonable costs and charges in that behalf expended, pay the surplus, if any there be, to the said , his heirs, executors, ad- ministrators or assigns. In witness whereof, the said parties have hereto set their respective hands andseals, the day and year first above written, [or, "the ... dayof ..., 18. ."] [I..S.] [L.S.] Signed, sealed and delivered, in the presence of Assignment of Judgment — Short Form. For and in considejation of one dollar, to me in hand paid, and for pro- fessional services rendered nie by Esq., I do hereby assign, trans- 64; LAW ENCYCLOPEDIA. fer and make over unto Mm, all my right, title and interest, in a certain judgment by me obtained against in the county court of the .... County of , and docketed, this day of , a.d. 18 . . , for the sum of dollars damages, and dollars costs. In -witness whereof, I have hereunto set my hand, the day and year last mentioned. [i<.s.] The Same, in another Form. County court county: against > Judgment docketed .... 18.., for dollars damages 1 and dollars costs. For value received, I do hereby assign, transfer and set over, the above mentioned judgment, to , for his use, and at his risks, costs ajid charges, in all respects. Dated the day of a.d. 18.. [l.s.] As^gnmsrd of Judgment, This indenture, made the day of , in thd year of our Lord one thousand eight hundred and between of the first part and of the second part, witnesseth : AVhereas, the said party of the first part, on the .... day of one thousand eight hundred and recov- ered judgment in the district court of the .... judicial district of the state of California, against for the sum of dollars. Now this indenture witnesseth, that the said party of the first part, in con- sideration of the sum of dollars, to him duly paid, has sold and by these presents does assign, transfer and set over, unto the said party of the second part and his assigns, the said judgment, and all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon. And the said party of the first part does covenant, that there is now due on the said judgment the sum of dollars, and that he will not collect or receive the same, or any part thereof, nor release or dis- charge the said judgment, but will own and allow all lavrful proceedings therein, the said party of the second part saving the said party of the first part harmless of and from any costs in the premises. In witness whereof, the party of the first part has hereunto set his hand and seal the day and year first above written. [l.s.] Assignment of Lease. Know all men by these presents: That I, of, etc., for and i» consideration of the sum of dollars, lawful money of the United States, to me paid, by of, etc., have sold and by these presents do grant, convey, assign, transfer and set over, unto the said , a cer- tain indenture of lease, bearing date the day of , in the year one thousand eight hundred and [when recorded, add the name of the county, the volume and page], made-by , of, etc., to me, the said of a certain dwelhng-house and lot, situate in, etc., with all and singular the premises therein mentioned and described, and the buildings ASSIGNMENTS, POEMS OF. 65 thereon, together \idth the appurtenances; to have and to hold the same unto the said his heirs, executors, administrators and assigns, from the .... day next, for and during all the rest, residue and remainder, of the term of years mentioned in the said indenture of lease ; subject, never- theless, to the rents, covenants^ conditions and provisions, therein also men- tioned. And I do hereby covenant and agree, to and with the said , that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, back rents, taxes, assessments and incumbrances, whatsoever. In witness, etc. [as above]. [i.s.] Assignment of a Debt or Wages. Know all men by these presents: That I , of, etc., for and in consideration of the sum of dollars, to me paid by , of, etc., the receipt whereof is hereby acknowledged, have sold, and by these presents do sell, assign, transfer and set over, unto the said a. certain debt due me from , amounting to the sum of dollars, for goods sold and delivered [or, "work, labor and services]," with full power to sue for, collect and discharge, or sell and assign the same. And I hereby cove- nant, that the said sum of dollars is justly due as aforesaid. In, witness, etc. Assignment of Account Indorsed tJwreon. In consideration of one dollar value received, I hereby sell and assign to the within account which is justly due from the within named , and I hereby authorize the said , to collect the same. In witness, etc. Assignment of Policy of Insurance. Know all men by these presents : That I, , of, etc., in the annexed policy named, for and in consideration of the sum of doUars to me in hand paid by of, etc., the receipt whereof is hereby acknowledged, have sold, assigned, transferred and set over, and by these presents do seU, assign, transfer and set over, unto the said , the annexed policy of insurance, and all sum and stuns of money, interest, benefit and advantage whatsoever, now due or hereafter to arise, or to be had or made by virtue thereof; to have and hold the same unto the said and assigns for- ever. In witness, etc. The above assignment is approved. , President [or, " Secretary"], of the Insurance Company. Assignm£nt of Policy as Security. Know all men, etc. [as in the foregoing to the end, and then add :] upon the condition, however, that if a certain promissory note for the sum of doUars, bearing date the day of , given by the said .... ..... to the said , is well and trtJy paid, according to the terms thereof, then this assignment is to be void. 5 66 LAW ENCYCLOPEDIA. In -witness -whereof, etc., [adding the approval in the foregoing if neces- sary]. Assignment of a Seaman's Wages. Kno-w all men : That I for and in consideration of the sum of , in -which I am justly indebted to of, etc., have hereby as- signed, sold and set over, and by these presents I do hereby assign, sell and set over, unto the said , all sums of money as are now due and owing to me, the said for -wages or services on board the ship or vessel called the , from the master or o-wner of said vessel, on board of -which vessel I served as a mariner on her voyage from to , ■which has recently terminated, -with full po-wer to prosecute the said vessel, her taolde, apparel and furniture, freight, cargo, and any and all persons liable therefor, and receive and recover the same, and give discharges therefor. [Add covenants that A B has not released, and that he -will give further assurance. ] In -witness -whereof, etc. General Assignment by an Insolvent Debtor for the Benefit of his Creditors. This indenture, made the day of eighteen hundred and , by and between , of , merchant, of the first part, of of the second part, and the several persons creditors of the said party of the first part, of the third part, -witnesseth : That -whereas, the party of the first part is indebted to divers persons in considerable sums of money, which he is at present unable to pay in fuU, and he is desirous to convey all his property for the benefit of all his creditors, -without any preference or priority other than that provided by law. Now, the party of the first part, in consideration of the premises, and of one dollar paid to him by the party of the second part, hereby grants, bargains, sells, assigns and conveys, unto the party of the second part, and his heirs and assigns, all his lands, tenements, hereditaments, goods, chattels, property and choses in action, of every name and nature, and description, wheresoever the same may be, except such property only as is exempted by law from attachment and execution, as fully described and set forth in the schedule hereto annexed and made a part of this assignment. To have and to hold the said premises unto the said party of the second part, and his heirs and assigns : But in trust and confidence, nevertheless, to sell and dispose of the said real and personal estate, and to collect the said choses in action, using a reasonable discretion as to the times and modes of selling and disposing of said estate, as it respects making sales for cash or on credit, at public auction or by private contract, and -with the right to compound for the said choses in action, taking a part for the whole, where the trustee shall deem it expedient so to do; then in trust to dispose of the proceeds of the said property in the manner following, viz: 1st. To pay all such debts as by the laws of the United States or of this state are entitled to a preference in such cases. 2d. To pay the costs and charges of these presents, and the expenses of executing the trusts declared in these presents. ASSIGNMENTS, FOEMS OP. 67 3d. To distribute and pay the remainder of the said proceeds to and among all the parties of the third part, ratably, in proportion to their respective debts. And, if there should be any surplus, after paying all the parties of the third part in full, then in trust. 4:th. To pay over such surplus to the party of the first part, his executors, administrators or assigns. And the party of the first part hereby tonstitutes and appoints the party of the second part his attorney irrevocable, with power of substitution, author- izing him, in the name of the party of the first part or otherwise, as the case may require, to do any and all acts, matters and things, to carry into effect the true intent and meaning of these presents which the party of the first part might do if personally present. And the party of the second part, hereby accepting these trusts, covenants to and with each of the other parties hereto, to execute the same faithfully. And the party of the first part hereby covenants with the said trustee, from time to time, and at all times when requested, to give him aU the in- formation in his power respecting the assigned property, and to execute and deliver all such instruments of further assurance as the party of the second part shall be advised by counsel learned in the law to be necessary, in order to carry into full effect the true Intent and meaning of these presents. In witness whereof, the said parties have hereto set their hands and seals the day and year first above written. Sealed and delivered in presence of [is.] [i-s.] [L-S.] Assignment 6y a Debtor to Thistees, for the Benefit of his Creditors. This indenture, made the .... day of . . . . , eighteen hundred and . . . . , by and between , of .... , merchant, of the first part, of .... , of the second part, and the several persons, creditors of the said party of the first part, who have executed or shall hereafter execute or accede to these presents, of the third part, witnesseth: That whereas, the party of the first part is indebted to divers persons in considerable sums of money, which he is at present unable to pay in full, and he is desirous to convey aU his property for the benefit of all his creditors, without any preference or priority other than that provided by law: Now, the party of the first part, in consideration of the premises, and of one dollar paid to him by the party of the second part, hereby grants, bargains, sells, assigns and conveys, unto the party of the second part, and his heirs and assigns, all his lands, tenements, hereditaments, goods, chattels, property and choses in action, of every name, nature and description, wheresoever the same may be, except such property only as is exempted by law from attach- ment. To have and to hold the said premises unto the said party of the second part, and his heirs and assigns : But in 'trust and confidence, nevertheless, to sell and dispose of the said real and personal estate, and to collect the said choses in action, using a reasonable discretion as to the times and modes of selling and disposing of 68 lATV ENCYCLOPEDIA. said estate, as it respects making sales for cash or credit, at public auction or by private contract, and with the right to compound for the said ohoses in action, taking a part for the -whole, where the trustee shall deem it expedient so to do; then in trust to dispose of the proceeds of the said property in the man- ner following, vi2 : 1st. To pay all such debts as by the laws of the United States or of this state are entitled to a preference in such cases. 2d. To pay the costs and charges of these presents, and the expenses of executing the trusts declared in these presents. 3d. To distribute and pay the remainder of the said proceeds to and among all the parties of the third part, ratably, in proportion to their respective debts [or, if there is a statute regulating the distribution, say:] according to the true intent and meaning of an act, entitled "An act," etc. And, if there should be any surplus, after paying all the parties of the second part in full, then in trust. 4th. To pay over such surplus to the party of the first part, his executors, administrators or assigns. And the party of the iirst part hereby constitutes and appoints the party of the second part his attorney irrevocable, with power of substitution, author- izing him, in the name of the party of the first part, or otherwise, as the case may require, to do any and all acts, matters and things, to carry into effect the true intent and meaning of these presents, which the party of the first part might do if personally present. And the party of the second part, hereby accepting these trusts, covenants to and with each of the other parties hereto, to execute the same faithfully. And the party of the first part hereby covenants with the said trustee, from time to time, and at all times when requested, to give him all the information in his power respecting the assigned property, and to execute and deliver aU such instruments of further assurance as the party of the second part shall be advised by counsel learned in the law to be necessary, in order to carry into full effect the true intent and meaning of these presents. And the parties of the third part, by signing and sealing these presents, express their assent to this assignment, and accept the provision for them made herein, pursuant to the statute aforesaid. In testimony whereof, etc., [as in General Form of Assignment]. Transfer of Stock. i For and in consideration of the sum of ten thousand dollars to me in hand paid, I do hereby sell, assign and transfer, to , three shares of stock belonging to me, of the " Mining Association, ' ' of the denom- ination of thousand dollars each, and being shares numbered respect- ively, ... , and , and now standing in my name on the books of said company. And I do guarantee, that all assessments to date are duly paid upon said shares and each of them, and I authorize the secretary or other proper officer of said company, to enter this transfer upon the books of said company, showing that I have this day transferred to said the said three shares of stock of -the numbers and designation above mentioned. Dated the 18.. ASSUBANCE — ATTACHMENT. 69 ASSURANCE. Assurance. — Any instrument which confirms the title to an estate. In commercial law, it has the same meaning as insurance. See Insueanoe. ATTACHMENT. IN THE DISTRICT COUETS OF CALIFOENIA, NEVADA, OREGON, WASHINGTON, IDAHO, MONTANA AND UTAH. Attachment, -wrhen and in -wrhat Cases may Issue. — The plaintiff at the time of issuing the summons, ur at any time afterward, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided in the fol- lowing cases: 1st. In an action npon a contract, express or implied, for the direct payment of money, which contract is made or is payable in this State, and is not secured by a mortgage, lien or pledge, upon real cr personal property; or if so secured, that such security has been rendered nugatory by the act of the defendant. [Same in Nevada, except the security must be on property in the State. , In Montana it may issue without regard to when the debt was contracted.] 2d. In an action upon a contract, express or implied, against a defendant not residing in this State. Affidavit for Attachment, -what to Contain. — The clerk of the court shall issue the writ of attachment upon receiv- ing an affidavit by or on behalf of the plaintiff, which shall be filed, showing : 1st. That the defendant is indebted to the plaintiff [speci- fying the amount of such indebtedness over and above all legal set-offs or counter claims] upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this State, and that the payment of the same has not been secured by any mort- gage, lien or pledge, upon real or personal property. 70 LAW ENCYCLOPEDU. [Same in Nevada, except tlie security must be ou property in the State.] 2d. That the defendant is indebted to the plaiatiff [speci- fying the amount of said indebtedness, as near as may be, over and above all legal set-offs or counter claims], and that the defendant is a non-resident of the State. 3d. That the sum for which the attachment is asked is an actual, bona fide, existing debt, due and owing from the de- fendant to plaintiff, and that the attachment is not sought and the action is not prosecuted to hinder, delay or de- fraud, any creditor or creditors of. the defendant. Undertaking on Attachment. — ^Before issuing the writ, the clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, nor exceeding the amount claimed by the plaintiff [in Nevada in gold coin], with sufficient sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attach- ment, not exceeding the- sum specified in the undertaking. Shares of Stock and Debts due Defendant, how At- tached and Disposed of. — The rights or shares which the defendant may have in the stock of any corporation or com- pany, together with the interest and profits thereon, and all debts due such defendant, and all other property in this State of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution. 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 his posses- sion, or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to defendant, the sheriff shall serve upon such person a ATTACHMENT. 71 copy ol fclie Tvrit, and a notice that such credits, or other property or debts, as the case may be, are attached in pur- suance of such -writ. Garnishnient, vrhen Garnishee liable to Plaintiff— All pel sons having in their possession or under their con- trol, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, shall be, unless such property be delivered up or trans- ferred, or such debts be paid to the Sheriff, liable to the plaintiff for the amount of such credits, property or debts, until the attachment be discharged, or any judgment re- covered by him be satisfied. Citation to Garnishee to appear before a Court or Judge. — Any person owing debts to the defendant, or having in his possession or under his control any credits, or other personal property belonging to the defendant, may be re- quired 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 respecting his property, and* may be examined on oath. The court or judge may, after such examination, order personal property 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 against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof. Attachment may be Discharged. — ^Whenever the defend- ant shall have appeared in the action, he may, upon reason- able notice to the plaintiff, apply to the court in which the action is pending, or to the judge thereof, or to a county judge [in Idaho, probate judge], for an order to discharge the attachment wholly or in part; and upon the execution of the undertaking mentioned in the next paragraph, such order may be granted, releasing from the operation of the at- tachment any or all of the property attached, and ordering all of the property so released, and all of the proceeds of the 72 LAW ENCYCLOPEDIA.. sales thereof, be delivered' to the defendant, upon the jus- tification of the sureties on the undertaking, if required by the plaintiff. [Same in Nevada, except district judge to make order]. UndertaMng Required. — ^Before granting such order, the court or judge shall require an undertaking on behalf of the defendant, by at least two sureties, residents and free- holders or householders in the county, to the effect that in case the plaintiff recover judgment in the action, defendant will, on demand, redeliver such attached property so re- leased to the proper officer, to be applied to the payment of the judgment, and that in default thereof the defendant and sureljies will, on demand, pay to the plaintiff the full value of the property released. The court or judge granting such release may fix the sum for which the undertaking shall be executed; and, if necessary, in fixing such sum to know the value of the property released, the same may be ap- praised by three disinterested persons to be appointed for that purpose. The sureties may be required to justify before the court or judge, and the property attached shall not be released from the attachment without their justifica- tion, if the same be required. [The sam'e in Nevada, only the bond must be in money or currency, as the case may be.] When a motion to Discharge an Attachment may be Made, and upon -what Grounds. — The defendant may also, any time before the time for answering expires, apply, on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the judge thereof or to a county judge, that the attachment be discharged, on the ground that the writ was improperly issued. [Same in Nevada, except there is no county judge.] OEEGON AND WASHINGTON. When, to Issue. — In an action to recover money or dam- ages, the plaintiff, at any time after the commencement of the action and before the judgment, may attach in the fol- lowing cases : Affidavit. — The affidavit shall state that a cause of action ATTACHMENT, FOEMS OP. 73 exists against the defendant, and the grounds thei-eof, and that the defendant is either : 1st. A foreign corporation; or, 2d. That he is not a res- ident of this state, or has departed therefrom with intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like in- tent; or, 3d. That he has removed or is about to remove any of his property from this state with intent to delay or defraud his creditors; or, 4th. That he has assigned, se- creted or disposed of, any of his property, or is about to assign, secrete or dispose of, it with intent to delay or de- fraud his creditors; or, 5th. That the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought. Undertaking. — Before executing a writ the sheriff, to whom it is directed, shall require a written undertaking on the part of the plaintiff, with one or more sureties, in a sum not less than one hundred dollars, nor exceeding the amount claimed by the plaintiff, to the effect that if the defendant recover judgment, the plaintiff will pay all the costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. FORMS. Affidavit for Aitacliment against Besident. Plaintiff, against Defendant. State of California, I and county of f , the plaintiff in the above entitled action, being duly sworn, Bays : That he is the agent of [or, "is the plaintiff"] the said plaintiff in said and county, and as such is better acquainted with the facta than the said plaintiff. That the defendant in the said action is indebted to the said plaintiff in "the sum of dollars, gold coin of the United States, over and above all legal set-offs and counter claims, upon an express [or "implied"] contract fwr the direct payment of money, to wit: upon a , and that such contract was made and is payable in this State, and that the payment of the same has not been secured by any mortgage, lien or pledge, upon real or personal property. That the sum for which the attachment is asked in the said action: that is to say, the amount of indebtedness which is above stated, is an actual, bona 74 LAW ENCYCLOPEDIA. fide, existing debt, due and owing from the said defendant to the said plaintiff; and that the said attachment is not sought and the said action is not prose- cuted to hinder, delay or defraud, any creditor or creditors of the said defendant. [Signed] Affidavit for Attachment against Non-Eesidenis. In the District Court of the Judicial District of the State of California, in and for the , County of "plaintiff, I against Defendant. J State of ..'...., ) and County of J , being duly sworn, says : That he is the plaintiff in the above entitled action. That the defendant in the said action is indebted to him in the sum of dollars, gold coin of the United States, over and above all legal set-offs and counter claims, and that the said defendant is a non-resident of this State. That the sum for which the attachment is asked in the said action : that is to say, the amount of indebtedness which is above stated, is an actual, hona fide, existing debt, due and owing from the said defendant to the said plaintiff; and that the said attachment is not sought and the said action is not prosecuted to hinder, delay or defraud, any creditor or creditors of the said defendant. ^.... Subscribed and sworn to before me, this day of A. n. 18 . . . J County Clerk of County. XJndertalcing on Attachment. .... District Court. against f "Whereas, the above-named plaintiff has commenced, or is about to com- mence, an action in the District Court of the Judicial District of the state of , against the above-named defendant, upon a contract for the direct payment of money, claiming that there is due to said plaintiff from said defendant the sum of dollars, or thereabouts, and he is about to apply for an attachment against the property of said defendant, as security for the satisfaction of any judgment that may be recovered therein: Now, therefore, we, the undersigned residents of the .... and county of , in consideration of the premises and of the issuing of said attachment, do jointly and severally undertake in the sum of and doUai-s, and promise, to the effect that, if defendant recovers judgment in said action, said plaintiff will pay all the costs that may be awarded to the said defend- ATTACHMENT, FORMS OF. 75 ant and all damages which he may sustain by reason of the said attachment, not exceeding the sum specified in said undertaking of and dollars. Dated at , this .... day of , a.d. 18. . , and County of ss: .... and -whose names are subscribed as sureties to the above under- taking, being severally sworn, each for himself, deposes and says, that he is worth and dollars, the sum in the said undertaking specified as the penalty thereof, over and above all his debts and liabilities, exclusive of property exempt from execution. [I'-s.] [i-s.] Subscribed and sworn to before me, this .... day of a.d. 18 . . . ■ •••• **» Deputy Clerk. Indorsement on the above Undertaking. Approved and filed this day of a.d. 18 . . . , Clerk, By , Deputy Clerk. Writ of Attachment. In the district court of the judicial district, . . . and county of against \ The people of the state of to the sheriff of the and county of greeting: Whereas, the above entitled action was commenced in the district court of the judicial district of the state of by the above-named plaintiff, to recover from the said defendant the sum of dollars or thereabouts, besides interest and costs of suit; and the necessary affidavit and undertaking herein having been filed, as required by law : Now we do therefore command you, the said sheriff, that you attach and safely keep all the property of the said defendant, within your said county (not exempt from execution) , or so much thereof as may be sufficient to satisfy the said plaintiffs demand, as above mentioned, unless the said de- fendant gives you security, by the undertaking of at least two sufficient sure- ties, in amount sufficient to satisfy such demand, besides costs, in which case you will take such undertaking, and hereof make due and legal service and return. Witness, the Hon , judge of the said district court, of the judicial district, this day of A. D. 18 , . Attest my hand and seal of the said court, the day and year last above written. Clerk, By Deputy Clerk. 76 LAW ENCYCLOPEDIA. Slieriff's Notice of Atiachment. Office of tlie Sheriff of the ... ., I County of , , 18.. .f [Title of Case. J To Mr You wUl please take notice, that all moneys, goods, credits, effects, debts due or owing, and all other personal property in your posses- sion or udner your control, belonging to the defendant named in the writ, of which the annexed is a copy (or to either of them), are attached by Tirtuo of said writ; and you are hereby notified not to pay over or transfer the same to any one but myself. Please furnish a statement. , Sheriff, By Deputy Sheriff. Sheriff's Notice of Attachment of Stock. Office of the sheriff I Of the county of J [Title of Case. J To Mr secretary of the Gold and Silver Min- ing Company: You wiU please take notice, that all stocks or shares, or interest in stocks or shares, of the Gold and Silver Mining Company, in your possession, or under your control, belonging to the defendant named in the writ, of which the annexed is a copy, or to either of them, are attached by virtue of said writ; and you are hereby notified not to transfer or pay over the same to any one but myself. Please furnish a statement. , 18... Sheriff, By Deputy Sheriff. Beply of Garnishee to Notice of Attachment. To , sheriff of county: In reply to the notice of attachment in the case of [here state the title ol the ease], I reply that I am indebted to the said defendant in the sum of $ , [or, I " am not indebted to him;" or, " I have no property in my possession, or under my control, belonging to him;" or, " I have no stocks," etc.] Dated , 18... Undertaking on Belease of Attachment. In the district court of the judicial district of the state of California, in and for the county of Plaintiff, against Defendant. ■Whereas, the above named plaintiff commenced an action in the district ASSIGNMENT, FOEMS OF — ATTESTATION. 77 court of tte judicial district of the state of California, in and for the county of against the above-named defendant claiming that there ■was due to said plaintiff from said defendant, the sum of dollars, or theTeabouts, gold coin of the United States, besides interest, and thereupon an attachment issued against the property of the said defendant, as security for the satisfaction of any judgment that might be recovered therein, and certain property and effects of the said def mdant have been attached and seized by the sheriff of the , county of , under and by virtue of the said ■writ. And ■whereas, the said defendant has appeared in the said action, and has applied to the judge of the said court, upon reasonable notice to the said plaintiff, for an order to discharge the same , upon the execution of an undertaking on behalf of the said defendant by at least two sureties. residents and freeholders or householders of the said county of , in accordance ■with the provisions of section 136 of the act, entitled "An act to regulate proceedings in civil cases in the courts of justice in this state," and the said Judge of said Coiut having fixed the sum for ■which the undertaking shall be executed at the sum of and dollars : No^w, therefore, we, the undersigned residents and freeholders in the said . . . . , county of , in consideration of the premises, and in considera- tion of the release from attachment of all of the property attached, as above mentioned, and the discharge of said attachment, do hereby jointly and severally undertake in the sum of and dollars, and promise that in case the said plaintiff recovers judgment in the said action, the said de- fendent ■will, on demand, re-deliver such attached property so released to the proper ofBcer, to be applied to the payment of the judgment, and that in default thereof, the said defendant and sureties ■will, on demand, pay to the said plaintiff the full value of the property released, not exceeding the sum of and doUars. Dated this day of a.d. 18. . . [I-S-] [n.s.] State of California, , comity of , ss. and , ■whose names are subscribed as ths sureties to the above undertaking, being severally duly sworn, each for him- self, says : That he is a resident and freeholder in the , county of , and is worth the sum in the said undertaking specified as the penalty thereof, over and above all his just debts and UabUties, exclusive of property exempt from execution. Subscribed and sworn to before me, this day of , a.d. 18 . . . , County Clerk. ATTESTATION. Attestation Clause. — That clause wherein the ■witnesses certify that the instrument has been executed before them, and the manner of the execution of the same. 78 LAW ENCYCLOPEDIA. ATTOENEY AT LAW. CALrPOKNU, HEVADA, IDAHO, MONTANA A^a> AEIZONA. [See Babbatbt. ] Who may be an Attorney.— Any white male citizen or person who shall have declared his intention to become a citizen, in the manner required by law, of the age of twenty- one years, and qualified in other respects, may be admitted to practice in all the courts of this state. He shall be ex- amined in open court and, if found qualified, admitted. [In Oregon any citizen may be. 2 In Justices' Courts. — Any person may practice before a justice's court outside of the city and county of San Fran- cisco. There, none but licensed attorneys can practice, ex- cepting parties to the action; such may prosecute or defend in person before any court in the state. Authority of Attorney. — ^An attorney has authority: 1st. To bind his client, in any of the steps of an action or proceeding, by his agreement, filed with the clerk oi entered upon the minutes of the court, and not otherwise. 2d. To receive money claimed by his client, in an action or proceeding during the pendency thereof, or within one year after judgment, and upon the payment thereof and not otherwise to discharge the claim or acknowledge satisfaction of the judgment. Changing Attorneys. — ^The attorney in an action or special proceeding may be changed at any time before judgment, before final determination, as follows: 1st. Upon his own consent, filed with the clerk or entered upon the minutes. 2d. Upon the order of the court or judge thereof, on the application of the' client. When an attorney is changed, written notice of such change must be given to the adverse party. Removal of Attorney. — ^An attorney may be removed or suspended: 1st. On his conviction of a felony or misdemeanor involv- ing moral turpitude. ATTORNEY AT LAW — ATTOENEY-GENERAL. 79 2d. For willful disobedience of the order of the court, requiring him to do or not to do an act connected with, or in the course of, his profession. » Satisfaction of Judgment. — An attorney has power to enter satisfaction of a judgment, in any case in which he is the attorney of record, within one year after the judgment is rendered, unless a revocation of his authority is pre- viously filed. OEEGOK AND WASHINGTON. Compensation. — The measure and mode of compensation is left to the agreement of the parties; but there may be allowed the prevailing party, in the judgment or decree, certain sums by way of indemnity, for his attorney's fees in managing the action. Costs. — He has a lien for his fees on all money or papers in his hands belonging to his client. Also on judgment, and on all money in hands of adverse party belonging to ^ his client. ATTOENEY-GENEEAL. CALIFOKNIA AND NEVADA.* Election. — The attorney-general shall be elected in the manner prescribed by the constitution and laws, and shall hold his office for four years. Residence, Bond, etc. — He shall keep his office at the seat of government, give bond in the sum of twenty thou- sand dollars and shall not depart from the state, without leave of absence from the legislature, for more than thirty days at any one time. [The same in Nevada, except the bond is five thousand dollars, and he shall not absent him- self sixty days without leave from the legislature.] Duties. — He shall attend each of the terms of the supreme court, and there prosecute or defend, as the case may be, all cases in which the state may be a party; also all causes to which any officers in the state in their official capacity, *Iu Oregon, Washington, Montana and Idaho there are no such officers. In Arizona he is appointed by the governor. 80 LAW ENCYCLOPEDIA. may be a party; also all causes to -whicli any county may be a party, other than those in -which the interest of the county may be adverse to the state or any officer of the state act- ing in his official capacity. Written Opinion. — When required, he shall give his opinion in writing, without fee, to the legislature, or either house thereof, upon any question of law, and to the gov- ernor, the secretary of state, controller, treasurer, surveyor- general, the trustees of state hospitals or asylums, and any district attorney, upon any question of law relating to their respective offices. To Supervise District Attorneys. — He shall supervise the district attorneys of the state in all matters pertaining to the duties of their office. He may require them to report to him the condition of public business intrusted to their charge, as may be prescribed by law, regulating the duties of district attorneys. Report, etc. — He shall report annually to the governor the condition of the affairs of his office ; and the governor may order him to repair to any county in the state and assist the district attorney in the discharge of his duties. AUDITOR. Auditor. — ^An officer of the government, whose duty it is to examine the accounts of officers who have received and disbursed public moneys by lawful authority. AVERAGE. Average is oif Three Kinds — General, particular and petty. General Average. — General average, in insurance, con- sists of expense incurred, sacrifice made or damage sustain- ed, for the safety of a vessel, freight and cargo, or the two; and it is to be contributed for by the several interests, in the proportion of their several values, exposed to the common AVEBAGE— BAIL. 81 danger and overcoming it — ^including the amount of expense, sacrifice or damage, so incurred. If a part of the goods only are damaged, those goods escaping contribute to make good the loss in proportion to their value. Partieular Average. — Particular average is a loss on the ship, cargo or freight, to be borne by the owner of the sub- ject on which it happens, and is so called in distinction from general average, and if not total is also called a partial loss. It is insured against in marine policies. Petty Average. — Petty average consists of small charges assessed on the cargo, to pay pUotage, towage, light-money, beaconage, anchorage and the like. AWARD. Avraid. — See Abbitbament and Awaed BAIL. Bail. — Those persons who become sureties for the appear- ance of a defendant in court. As to the qualification of bad, see SinBETiES. See also Magistrate. Bail Bond. — ^A specialty by which the defendant and other persons become bound to the people of a state or to a sheriff, in a penal sum, for the appearance of the defendant to answer at a time stated. BAILEE. Bailee. — One to whom goods are bailed; the party to whom personal property is delivered, under a contract of bailment. He must act in good faith and perform his un- dertaking in respect to the property intrusted to him, with the diligence and care required by the nature of his en- gagement. If a person borrows goods to use, he becomes 82 LAW ENCYCLOPEDIA. a bailee, and is bound to exercise eodraordiyiary care of the goods, and is responsible if they are lost or injured. When the BaUinent is mutually beneficial to the parties, as where goods are hired or pledged to secure a debt, the bailee is only bound to exercise ordinary care in preserving the property. When the Bailee receives no benefit from the bailment, as where he accepts goods, chattels or money, to keep with- out recompense, or undertakes, gratuitously, the perform- ance of some commission in regard to them, he is answer- able only for the use of the ordinary care which he bestows upon his own property of a similar nature. He must re- turn the property according to his engagement; he cannot dispute his bailor's title to the goods. BAlfK ACCOUNT. Bank Account. — A fund which merchants and others have deposited into the common cash of some bank, to be drawn out by checks, from time to time, as the depositor may re- quire. The statement of the amount deposited and drawn, which is kept in duplicate, one in the depositor's bank-book and the other in the books of the bank. Bank Business and Accounts ^It is safe to say that' every person of consequence, doing business, finds it to his advantage to keep an account with some bank. This is, so to speak, an age of banks, and where there are so many, it is truly wonderful that so few turn out, when a "run" takes place, to be insolvent. A merchant keeping a bank account, has three advantages: His nloney is safe and secure; he saves time in counting, and runs no risk of losing in counting; he can leave his notes with the bank for collec- tion, and have no trouble in notifying indorsers. He is, in effect, his own banker — ^his checks represent his bills. Opening an Account. — When a person opens an account with a bank, he receives a small account book, called a deposit book. This deposit book he should send to the BANK ACCOUNT — BAB TO ACTION. 83 bank, not only wlien he makes a deposit, but also at the close of each month, to be balanced. Discountirg Notes, etc. — When he offers a note or bill for discount, the request should be made in writing, and contain the names of promiser and indorsers [with their places of residence, if not stated in the note], amount due on note and the time it has to run. This memorandimi should be addressed to the cashier, and is usually left with the discount clerk. When a note is discounted, the interest, for the time the note has to run, with three days' grace, is taken in advance. Drafts sent for Acceptance.- _When a draft is sent to a distant place for acceptance, notice should be sent to the person on whom it is drawn so as to precede its arrival. Forwarding Money. — ^When money is to be transmitted by mail to a distant place, it would be safer and more con- venient to send a draft, check or certificate of deposit. BANKRUPT. Bankrupt. —A trader who secretes himself, or does certain other acts tending to defraud his creditors. A person who has done or suffered to be done some act, to do which is by law declared to be an act of bankruptcy. BONDS OF MATRIMONY. BoiJifls of Matrimony. — Public notice or proclamation of a matrimonial contract, and the intended celebration of the marriage of the parties in pursuance of such contract, to the end that persons objecting to the sAme may have an oppor- tunity to declare such objections before the marriage is solemnized. Formerly, such proclamation was always made ii the churches, but now the custom is nearly obsolete. BAR TO ACTION. Bar to Action. — ^A perpetual destruction of the action of 84 LAW ENCTCLOPEDIA. the plaintiff. In personal actions, a recovery by tlie plaint- iff is a perpetual bar to another action for the same matter. So, where a defendant h&,s judgment against the plaintiff, it is a perpetual bar to another action of like nature for the same cause. When the Statute of Limitations has run against a cause of action, the action is said to be barred. See Limitations. BAEGAIN AND SALE. Bargain and Sale. — A contract or bargain by the owner of land, in consideration of money or something of value, to sell land to another person, called the " bargainee," As to the effect of the words "grant, bargain and sell," see CoN- TEXANCING. BAEEATEY. California Penal Code. — Common barratry is the prac- tice of exciting groundless judicial proceedings. It is pun- ishable by imprisonment in tbe county jail not exceeding six months, and by fine not exceeding five hundred dollars. [In Washington the same as here. The other states and territories have no laws on the subject.] It must be proved that the "barrator" has excited proceedings at law in at least three instances and with an intent to annoy. An at- torney who buys or is interested in buying any evidence of debt, or right to sue with intent to sue thereon, is guilty of a misdemeanor. In Maritime Law and Insurance. — An unlawful act or culpable negligence of the master or sailors of a vessel in violation of duty as such, and prejudicial to the owner, and against his commands or without his consent; piratically or feloniously appropriating the cargo, or running away with the vessel or cargo, or voluntarily delivering the ves- sel or cargo into the hands of pirates, are acts of the gross- est barratry, and capital offenses by the laws of the United States of America. BASTAED. Bastard. — One born of illicit connection and before the BASTAEIX 85 lawful marriage of his parents. One begotten and bom out of lawful wedlock. One born of an illicit union. A Man is a Bastard, if born before the marriage of his parents; but he is not a bastard, if born after marriage, although begotten before. A man is a bastard, if born dur- ing coverture, under such circumstances as to make it im- possible that the husband of his mother can be his father. IN CALIFOKNIA, NEVADA AND IDAHO. Every niegitiinate Child shall be considered as an heir of the person who shall, in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child j and shall in all cases be considered as heir of his mother, and shall inherit his or her estate, in whole or in part, as the case may be, in the same manner as if he had been bom in lawful wedlock; but he shall not be allowed to claim, as representing his father or his mother, any part of the estate of his or her kiudred, either lenial or collateral, unless before his death his parents shall have intermarried, and his father, after such marriage shall have acknowledged him as aforesaid, or adopted him into his family, in which case such child and all the legitimate child- ren shall be considered as brothers and sisters; and on the death of either of them intestate and without issue, the others shall inherit his estate, and he theirs, as hereiubefore provided, in like manner as if all the children had been legitimate, saving to the father and mother respectively their rights in the estates of all the said children, as provided hereinbefore, in like manner as if all had been legitimate. The Issue of all marriages deemed null in law,* or dis- solved by divorce, shall be legitimate. Descent. — If any illegitimate child shall die intestate, without lawful issue, his estate shall descend to his mother; * Tl^e issue of sucli marriages are legitimated by the statute without regard to the grounds of nulUy. Marriages between whites and blacks are mill and v»id; but the issue is legitimate. 86 LAW ENCYCLOPEDIA. X5r in case of lier decease, to her heirs at laTT. [jSame in Montana.} OKEGON. Concealing Death of Child. — If any unmarried woman shall conceal the death of any issue of her body, so that it may not be known whether such issue was born alive or not, or whether it was not murdered, such woman, upon convic- tion thereof, shall be punished by imprisonment in the penitentiary not less than six months nor more than one year, or by imprisonment in the county jail not less than three months nor more than one year. Indictment of Mother for Murder of Bastard. — ^When a woman is indicted for the murder of her bastard infant, she may also be charged in the same indictment with the crime of concealing the death of her bastard child; and if she shall be found not guilty of the charge of murder, she may be found guilty of the crime of concealing the death of her bastard child, and punished accordingly. Illegitimate Child Heir of Mother. — An. illegitimate child is heir of its mother, the same as in California; but such child shall not be entitled to receive, as represent- ing his mother, any property, real or personal, of the kin- dred of such mother. If such child dies before he is mar- ried, his property descends to his mother. If after the birth of such child his parents intermarry, such child shall be considered legitimate to all intents and purposes. BATTERY. Battery. — Se© Assaiilt akd Battery. BmCR. Bench. — A tribunal for the administration of justice. The jiidges taken collectively, as distinguished from the coun- selors and advocates who are called the bar. Bench "Warrant. — An order issued by or from a court for BEQTJEATH — ^BILLS AOT) NOTES. 87 tlie attachment or arrest of a person. It may be issued eitlier in case of a contempt or where an indictment has been found. BEQUEATH. Bequeath. — ^To give personal property by will to ahother. The word will be construed devise, so as to pass to real estate. BIAS. Bias. — ^A particular influential power which sways the judgment; the inclination or propensity of the mind toward a particidar object. A juror's mind should be free from bias; that is, impartial. BIGAMY. - Bigamy. — Willfully contracting a second marriage when the contracting party knows that the first is stUl subsisting. See Ckimes and Punishments. BILL OF COSTS. Bill of Costs. — ^A statement of the items which form the total amount of the costs of a suit or action. See Costs. BILL OF EXCEPTIONS. Bill of Exceptions. — A written statement of objections to the decision of the court upon a point or points of law, made by a party to a cause, and properly certified to by the judge or court who made the decision. The object of the bill is to put the decision objected to upon record for the information of the court having cognizance of the cause on appeal. BILLS AND NOTES. Bin of Exchange. — A till of exchange is a written order °° LAW ENCYCLOPEDIA. or open letter of request, written by one merchant, banker or person, to another, requesting him to pay a sum of money therein mentioned to a third person or to his order, or to bearer The Writer or Maker, is the drawer; the person to whom it is directed is the drawee, and the person in whose favor it is drawn is the payee. . Aeceptanee of. — If the bill is not paid when presented the drawee accepts it, by writing across the face of the bill "accepted," and signing his name. This fixes his liability and makes him the principal debtor. Indorsement of. — ^If the payee wishes to use this bill in the business world, he writes his name across the back of the bill, and thus adds a new party to the bill, and he becomes the indorser. Whoever receives it after this is called the indorsee or holder. This holder may indorse the biU again, and so on ad infinitum. These constitute all the parties to a bill of exchange. Promissory Note. — A promissory note is a promise in writing, to pay a specified sum, at a time therein limited, or on demand or on sight, to a person therein named, or to his order or to bearer. The signer of a promissory note is called the maker, and the person to whose order it is made payable is called the payee. Two Classes of Parties. — There may be two classes of parties on negotiable paper. The one embraces those who are primarily liable, who are the real debtors, and who are dbsoliUely liable for the full face of the paper to the payee, indorsee or holder, however he may have neglected to demand payment and give notice of non-payment. These are the acceptor of the bill and the maker of the note. The other includes those who are secondarily liable, whose lia- bility is contingent, and who are discharged entirely if the holder fails to make the proper demand of payment, and give the required notice in case of non-payment. These are the indorser and draiver. This distinction must be kept constantly in view by the holder of negotiable paper. BILLS AND NOTES. 89 The General Rule of Parties.— The general rule, is that parties who are of age and reason, legally competent to con- tract, may become liable as parties to negotiable paper. An apparent exception obtains in the case of married women, who although competent in equity, under certain circum- stances, to make contracts such as will bind them to per- formance and payment out of their separate property, are nevertheless not legally competent to bind themselves by becoming parties to negotiable paper. Form. — No particular form of words is required to consti- tute a bill or note, yet there must be sufficient in it to make out an order or promise to pay. A promise to deliver or to be accountable or responsible for such a certain sum of money, has been held by the courts to be a promissory note. It must be for the payment of money, and the sum to be paid must be certain. It must not be contingent, but must be a " courier without luggage," and must tell its story on its face or back. Must be for the Payment of Money. — ^It must be for the payment of money at all events; and hence, if there be any contingency as to its payment, it is no bill or note; but if made payable on the happening of an event, however remote, yet if it be of a certain occurrence the bill or note is good, as : if made payable two months after the death of the maker's mother-in-law. A Bill or Note must contain some amount, and some date should be inserted. "Month" means a calendar month. It is usual to insert "value received," but these words are un- necessary. On the Pacific coast, the parties to a note or bill are at liberty to stipulate as to the kind of money to be paid; and if it is agreed that the note or bill shall be paid in gold, a clause is inserted to that effect. Transfer. — ^The payee or holder may transfer the bill or note by writing his name across the back of the instrument; and if so transferred, in the ordinary course of business, before it is due, to a person who takes it bona fide for value and without notice, he receives it free and blear of most of 90 LAW ENCYCLOPEDIA. the defenses wliich migM have been available against it in the hands of the party from who he receives it. Indorsement. — If the indorser wishes to make it payable to a particular person, A B, he writes across the back: "Pay to A B or order." This is called a special indorse- ment, because it is good only in the hands of A B, and cannot be again transferred unless indorsed by A B. How Indorsed. — ^If the note be drawn to the order of several persons, not copartners, it must be indorsed by each of such persons upon transfer. Guarantor, who is. — A guarantor is one who puts his name on the back of the paper, out of the usual course of regular transfer and negotiability. Under the CalifoiTiia decisions, he is liable to pay if the maker does not, provided there has been due presentment made to the maker, and strict notice of non-payment given to the guarantor.* Foreign Bills of Exchange. — Bills of exchange are called foreign when drawn upon a party and place out of the state, and inland when between parties withia the state. Checks. — Checks upon a banker partake of the character of inland bills of exchange. Drafts and Orders. — ^What aria commonly called drafts, orders and acceptances, upon other persons for the payment of money, are, in general, inland bills of exchange. Due Bills and Certifioates. — Due bills and certificates of deposit are considered in the character of promissory notes. When Negotiable, if not Dra-vTn for Money. — ^When the instrument is not drawn or made to order, or to bearer, but to A B, or is not for the payment of money but for goods, it is binding between the parties and is assignable, but is ' not a negotiable note. When made payable to A B, it is subject to any defense the maker may have, even if assigned before maturity, but if made payable to A B, or order, the assignee before maturity is not prejudiced by an offset the maker may have provided the holder takes it without notice. ■"A delivery ol a negotiable promissory note to the assignee, -without \mtten indoraemRTit, is good, and the title passes. BILLS AND NOTES. 91 For Goods. — Frequently agreements are made to pay a sum of money in goods. Such contracts though by some writers called "notes for goods" are in no sense promissory notes. They are contracts, if anything, to deliver goods, and should never be considered or treated as promissory notes. As has already been said, a " promissory note must be for the payment of money." If drawn "payable "in goods, or in work, or in land, it is not a promissory note. Payable on Demand. — When a bill is drawn payable on demand, or at a certain period, say ten days after sight, it should be presented to the party upon whom it is drawn as promptly as may be convenient for acceptance, that the day of payment may be determined. If accepted, the acceptor should write the acceptance on the face of the bill. The holder should then present the bill for payment at the end of the time allotted, with the days of grace added, which in the case supposed would be thirteen days; or if on demand, it would be at the end of the days of grace — three days. Protest of. — ^If acceptance be refused, the bill should be protested for non-acceptance, and notice should be given to the drawer in order to hold him liable. If it be accepted, but not paid at the proper time, the bill should be protested for non-payment, and notice given as above for the same purpose. If, after acceptance, the bill has been transferred from hand to hand by indorsement, upon protest for non- payment, notice should be given to each of the indorsers, as well as to the drawer, in order to hold them liable also. The Requisites of Protest and Notice, how, when and where, to demand payment, etc., will be found in this vol- ume under the head of Notabx. When Presented for Payment. — The same doctrine applies to promissory notes. If the note be drawn to the order of any person, payable at a certain day, say ten days, it should be presented for payment within reasonable hours, on the thirteenth day, and if not paid, notice should be given to the indorser in order to hold him liable; and if 92 LAW ENCYCLOPEDIA. there be several indorsers, notice should be given to each one, for the same purpose. Payable on Demand, -when Presented. — If payable on demand, the demand should be made within a reasonable time; and on the third day thereafter, within reasonable hours, the note should be presented for payment; and on failure of payment, notice should be given to the indorser or indorsers in like manner and for the like object. Not Necessary to Protest. — It is not necessary to pro- test a promissory note, although it is usual to do so. A demand of payment and, upon neglect or refusal, notice to the indorser is aU that is requisite STATUTOBY PKOVISIONS. The following provisions in relation to bills and notes are found in the statutes of California, Oregon, Washington, Nevada, Idaho, Montana and Arizona. Notes Payable to Order or Bearer, Efibct of. — Promis- sory notes, payable to order or bearer, have the same effect and are negotiable, and may be sued on like inland bills of exchange, according to the custom of merchants. Such notes may be signed by an agent, if lawfully authorized, and by corporations capable by law of making contracts. Such notes made payable to the maker, or to the order of a ficti- tious person, shall have the same effect and be of the same validity as against the maker and all persons having knowl- edge of the facts, as if payable to the' bearer. No person within the' state or territory shall be charged as an acceptor on a bin of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent. The following provisions are found in the statutes of Cali- fornia, Washington, Nevada and Idaho : When Acceptance Binds, etc. — If such acceptance be written on a paper other than the bill, it shall not bind the acceptor, except in favor of a person to whom such accept- ance shall have been shown, and who, on the faith thereof, shall have received the bUl for a valuable consideration. BILLS AND NOTES. 93 Damages on Protest. — The provisions of the several statutes in regard to damages are as f olows : CALIFORNIA. Damages are allowed upon bills drawn upon any person : 1. If drawn upon any person in this State, two dollars upon each one hundred dollars of the principal sum spec- ified in the bill. 2. If drawn upon any person out of this State, but in any of the other States west of the Eocky Mountains, five dol- lars upon each hundred dollars of the principal sum speci- fied in the bill. 3. If drawn upon any person in any of the United States east of the Kocty Mountains, ten dollars upon each hun- dred dollars of the principal sum specified in the bill. 4. If drawn upon any person in any place in a foreign country, fifteen dollars upon each hundred dollars of tlae principal sum specified in the bill. Interest. — From the time of notice of dishonor and de- mand of payment, lawful interest must be allowed upon the aggregate amount of the principal sum specified in the bill, and the damages mentioned above. NEVADA, MONTANA AND ARIZONA. Isfc. If drawn upon any person in the United States east of the Rocky Mountains, fifteen dollars upon the hundred upon the principal sum. 2d. If drawn upon any person in a foreign country, twenty dollars. If the contents of the bill be expressed in money of account of the United States, the amount due is computed without reference to the rate of exchange; but if expressed in the money of account or currency of any for- eign country, the amount ia ascertained and determined by the rate of exchange on the value of such currency at the time of the demand for payment. Such Diamages are allowed only to a bona fide holder for a valuable consideration, and are in lieu of interest and all charges previous to and at the time of giving notice ; but the interest may be recovered upon the principal sum and damages from the time of giving notice. 94 LAW ENCYCLOPEDIA. In Idaho, damages are allowed as follows : "When drawn on persons west of the Eocky Mountains, including Utah and Montana, twenty per cent, upon the principal sum. If drawn on persons east of the Bocky Mountains, in the United States, twenty-five per cent. If drawn on persons in any place in the British possessions in North America, west of the Eocky Mountains, including Vancouver's Island, twenty-five per cent. If drawn upon any person in Europe, thirty per cent. In Oregon, upon protest for non-acceptance or non-pay- ment of bills drawn in the state : 1st. On any place out of the United States, ten per cent, upon the contents, with interest on the contents from the date of protest, with the addition of the current rate of exchange at the time of the demand. 2d. On any place out of Oregon and within the United States, the amount of the bill, with legal interest, according to its tenor, and five per cent, damages, together with costs and charges of protest. In Washington, upon protest for non-payment of bills drawn or indorsed in the territory, if payable without the limits of the United States, ten per cent, upon the contents thereof ; if payable within the United States, out of the ter- ritory, five per cent, on the contents : such damages to be in lieu of interest, charges of protest and all other charges, incurred previous to and at the time of giving notice; but interest upon the amount of the principal sum and the dam- ages may be recovered from the time of giving notice. Days of Grace. — Three days of grace are allowed in Montana, Utah and Idaho, except on sight bills or drafts, and the first of January, the fourth of July and the twenty- fifth of December (and in Nevada the twenty-second of Feb- ruary also), for the purpose of presentment, protest and no- tice, are considered as Sunday. In Oregon and "Washington, grace is allowed on all bills payable at sight, or at a future day certain within the state or territory, and on all promis- sory notes, orders and drafts, payable at a' future day certain within the state or territory, except that in Oregon grace is not allowed on bills, notes or drafts, payable on demand. BILLS iND NOTES, FORMS OP. 95 In California, bills and notes may be made or drawn by telegraph. Days of grace are not allowed. FOEMS. Bills of Exchange. $ 3an Francisco, , Ten days after sight, pay to the order of & Co., ten thousand dollars, and charge the same to account of &Co. To Messrs & Co., New York. A Set of Bills of Exchange. & Co., BanHng ofloe. No Ex. for $ San Francisco, Cal , 18. . At sight of this first of exchange (second and third unpaid), pay to the order of Value received, and charge the same to accoTint of &Co. To Messrs & Co , New York. & Co Banking Oface. No Ex. f or $ ' San Francisco, Cal , 18. . At sight of this second of exchange (first and third unpaid), pay to the order of , dollars. Value received, and charge the same to account of &Co, To Messrs & Co New York. & 06 Office. No Ex. for $ San Francisco, Cal., 18. . At sight of this third of exchange (first and second unpaid), pay to the order of , Value received, and charge the same to account of &Co. ToMessrs & Co , New York. Bank Check. No San Francisco 18. . & Co., pay to or order dollars ($ ) Promissory Note, Negotiable. $. ... San Francisco 18 . . .... days -from-date, forvalue received, I promise to pay to the order of & Co., .... thousand dollars, with interest at two per cent, per month. Another Form. $ month after date, for value received, I promise to pay to .... , or bearer, hundred and dollars, with interest after maturity al per cent, per month. San Francisco, , 18. . 96 LAW ENCYCJLOPEDIA. Another Form.'^ $••.. 18.. .... ^ys from date, I promise to pay to or order, dollars. , Note- not Negotiable. $•■•■ '-' 18.. days from date I promise to pay to .^ .... dollars, value received. Note Payable on Demand. $ On demand, for value received, I promise to pay to or bearer thousand hundred dollars, with interest from date until paid, at per oent.'per month, compounded. 18.. .' Note Payable at a Banker's. ■ 18.. $ days from date, value reoeived, I promise to pay to the order of and . . . . , at the banking house of thousand dollars. Note for Zoan, to be accompanied by Mortgage. $ Six months from date, without grace, for value received, I promise to pay to or order, at the banking house of and , thousand dollars, with interest thereon, at the rate of two and one-half per cent, per month, payable monthly in advance, agreeing that upon failure to pay said monthly interest at any time for more than five days after any day when the same may be due, the whole amount of principal and interest shall at once become due and payable ; and further, that such interest may be added to the principal, such, aggregate of principal and interest to bear the same rate of interest both before and after judgment until paid ; and further, that in the event of a suit to enforce the collection of this note, a counsel fee of ten per cent, upon the amount of principal and interest due at the time of judgment may be added to and form a part of such judgment Note Secured by Collateral, with Power to SeU. , ,18.. $ days after date, without grace, I promise to pay to the order of , at the banking house of , in the city of San Francisco, thousand dollars, value reoeived, with interest after days until paid, at the rate of per cent, per month, payable monthly. I hereby deposit, as collateral security, for the payment of the above note, shares ($ each) of the Mining Co., and I hereby appoint and constitute his heirs or assigns, my attorney irrevocable, with power of substitution, to sell without notice to me, the whole or any part of said security, either at public or private sale ; the proceeds to be applied to the payment of the above note, interest due and expenses of sale, in case of non-payment of said note when due ; any surplus, after payment of said note, interest and expenses, to be subject to my order. But in case of pay- BILLS AND NOTES, FORMS OF. 97 ment of above note and interest, according to the terms of the former, then this agreement to be void, and the above-named security to be returned to me. Noti Saydble by Insiallmenis. ...V. • til. 18.- $. . . . For value received I promise to pay to , at county, one thousand dollars, in one month from date, one thousand dollars, one year from date ; and one thousand dollars, one day after thu death of my great-grandfather. Said respective sums to bear interest, at the rate of one per cent, per month until paid. Memorandum Note for Money Lent. $. . . . Borrowed of , dollars, to be paid when demanded. 5th, 18.. Witness : Due Bin. Due hundred dollars. 18.. Draft or Order. Mr : 18.. Please pay or bearer, dollars, and charge the same to account of IndoTsenwnt, in Blank. [Signed] Indorsement to a Particular Person, Pay to [Signed] Indorsement to Avoid MabUiiy. Withaat recourse. [Signed] Special Indorsement. Pay to order of [Signed] Indorsement of an Agent. , by his agent. Notice of Protest of Bill, or Note, or Check, for Non-payment. San Francisco, 18 . . Snt: Please take notice that a certain bill of exchange [or, "note " or "check"], dated 18, .,for thousand dollars, payable one montl 7 98 LAW ENCYCLOPEDIA. from date, drawn by in favor of [and accepted by ], [or, " and indorsed by , " etc.,] was this day pre- sented by me, to [or, " "], and payment thereof demanded, which was refused; the said bill [or, "note," (W, "check"] having been dis- honored, the same was this day protested by me, for the non-payment thereof, and the holder looks to you for the payment thereof, together with all costs, charges, interest, expenses and damages, already accrued or that may here- after accrue thereon by reason of the non-payment of said bill of exchange [or, "note," or, "check"]. Very respectfully. Your obedient servant. Notary Public. To [or" "etc.] For other forms of notice and of protest, see Notaey. BILL OF INDICTMENT. Bill of Indictment. — A written accusation of one or more persons, of a crime or misdemeanor, lawfully presented by a. grand jury. If the grand jury are satisfied that the accused ought to be tried, the return is made as " A true bill ;" but when no suiHcient ground is shown for putting the accused on trial, a return is made: "Not a true bill;" or, "Not found;" or "BiU ignored." BILL OF LADING. Bill of Lading. — ^The written evidence of a contract for the carriage and delivery of goods sent by sea or land, for a certain freight. It should contain the name of the shipper or consignor, the name of the consignee, the names of the vessel and her master, the places of shipment and destina- tion, the price of the freight, and in the margin the marks and numbers, of the things shipped. It is usually made in three or more original parts, one of which is sent to the consignee with the goods, one or more others are sent to him by different conveyances, one is retained by the mer- chant or shipper, and one should be retained by the master. It is assignable by indorsement, and the assignee is entitled to the goods, subject to the shipper's right of stoppage in transitu. BILL OP PARCELS — ^BILL OP SALE, POEMS OP. 99 BILL OP PARCELS. Bill of Parcels. — An account containing in detail the names of the items which compose a parcel or package of goods. It is usually transmitted with the goods to the pur- chaser, in order, if any mistakes have been made, it may be corrected. BILL OP PARTICULARS. Bill of Particulars. — A detailed, informal statement of a plaintiff's cause of action, or a defendant's set-off. It is an account of the items of the claim, and shows the manner in which they arose. BILL OP SALE. The term, " Bill of Sale," is applied to a written instru- ment, which is the evidence of an act of sale of goods and chattels. A distinction exists between an assignment and a bill of sale, in this, that the term "assignment" applies to transfers of real as well as personal estate, and to transfers of personal estate made verbally, or by deed or other writ- ing. No Writing is Necessary to the sale of personal prop- erty ; delivery is only necessary. Still, it is better, in cases of importance, to preserve some evidence in writing of what is bought and sold. To be good against creditors, there must be an actual and continued change of possession of the thing sold. See Contracts. See also, Assignments. FOKMS. SiM of Sale — Simple Form. In consideration of hundred and dollars to me in hand paid by , I do hereby sell and deliver to him my horse, branded , on left hip. , .18... Another Form, Eeceived of $ in payment of .... thousand fruit trees, I have sold and delivered to him, this .... day of , 18 . . . 100 LAW ENCTCLOFEDIA. Bill of Sale of Goods and Chattels.* Know all men by these presents: That I, , of the town of . . . . , in the county of , and state of , of the first part, for and in consideration of the sum of dollars, lawful money of the United States, to me paid by , of, etc, of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his erecutors, ad- ministrators and assigns, the one equal, undivided half, of hundred acres of barley, now growing on the rancho of near the town ol aforesaid, one roan horse and thousand sheep, belonging to me, and jiow in my possession, at the place last aforesaid; to have and to hold the 'same unto the said party of the second part, his executors, administra- tors and assigns, forever. And I do, for myself, my heirs, executors and administrators, covenant and agree, to and with the said party of the second part, his executors, administrators and assigns, to warrant and defend the sale of the said property, goods and chattels, hereby made, unto the said party of the second part, his executors, administrators and assigns, against aU and every person and persons whomsoever. Witness my hand and seal this .... day of ....,i.i>. 18. . [Signed] BINDING OUT. Binding Out. — A term applied to the contract of appren- ticeship. The contract must be by deed, to which the infant, as well as the parent or guardian, must be a party, or the infant wiU not be bound. BLANK INDORSEMENT. Blank Indorsement. — An indorsement that does not men- tion the name of the person in whose favor it is made. See Bills and Notes. BONA FIDES. Bona Fides. — Good faith; honesty, as distinguished from mala fides (had. faith). Bona fide, in good faith. A pur- chaser, bona fide, is one who actually purchases in good faith. * This form may be varied so as to suit any case that may arise. BONDS. BONDS. Bonds, in General. — A bond or obligation, is a deed where- by the obligor binds himself, his heirs, executors and admin- istrators, to pay a certain sum of money to another at a day appointed, or to perform some act. If in a bond the obli- gor bind himself and his heirs to do anything whatsoever, his heirs are bound ; therefore, if it is intended to bind the heirs the term "heirs" must be named in the bond; exec- utors and administrators are bound, though not named. If a man covenant for himself only to pay money, build a house or the like, and do not say in the covenant "his executors and administrators," yet his executors and admininislrators are bound, and shall be charged. Executors and Administrators. — Executors and admin- istrators need not be named in any legal instriunent; they are bound by every covenant, unless it is such a covenant as is to be performed personally by the covenanter, and there has been no breach of the covenant before his death. Bonds and other Instruments are often found, where the repetition of the words "his executors and administrators and assigns," constitute about one-third of the instrument. As these words are mere surplusage, and serve only to ob- scure the sense and lengthen the instrument, they may always be omitted. Single Bonds, etc. — ^A bond without a condition is called a single one; but a condition is generally added which makes the obligation void if the act be performed, other- wise it remains in full force. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor. A penalty for non-fulfillment of the condition is annexed, in double the principal sum. If a bond be sealed and delivered, though it bear no date, it is valid. If a bond be interlined, or words are erased, in important parts, it will render it void unless done before signing. Bonds and all penal obligations, in whatever form, to do an act forbidden by law, or to forego any priv- 102 LiW ENCYCLOPEDIA,. ileges secured to a man by law, are void. The same is true of agreements,- or obligations to divide the profits or gains to be derived from illegal speculations or business. Thus, a bond or note to pay illegal interest, a sum of money won at gaming, or to commit a trespass on the property, or an assault on the person of another, is void; as is likewise an obligation not to plead usury, infancy or any other legal defense, to a suit, or not to prosecute a man for a crime, or for cheating or taking an illegal advantage of another. This is invariably the rule as between the parties to the instru- ment. Bottomry Bond. — ^A bottomry bond is an obligation founded on the joint security of a ship and its owners, and given for money borrowed, which is to be repaid on the suc- cessful termination of a voyage. At home, the bond is exe- cuted by the owners or the master, as their agent. In a foreign country, the master has full authority to bind the owners, and pledge the ship and cargo, by a bottomry bond, in cases of necessity. Any amount of interest may be exacted, so long as the sea-risk continues, irrespective of the usury laws ; but when that terminates, the obligation will only draw legal interest. Eespondentia is a contract similar to bottomry, except that the loan is made upon the chance of the safe arrival of the cargo. Like bottomry, it is used in cases of emergency. FOKMS. Common Sond, wvlh- Securitt/. Elnow all men by these presents : That I of the town of in the county of and state of am held and firmly bound unto of, etc., in the sum of dollars, lawful money of the United States, to be paid to the said his executors, administrators or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal. Dated the day of , one thousand eight hundred and The condition of the above obligation is such, that if the above bounden his heirs, executors or administrators, shall well and truly pay, or cause to be paid, unto the above named his executors, admin- istrators or assigns, the just and fuU sum of hundred dollars, in BONDS, POBMS OP. 103 equal annital payments, from the date hereof, with annual interest, then the above obligation to be void ; otherwise to remain in full force and virtue. Sealed and delivered in presence of [l.s.] Sond — Several Payments. Know all men by these presents : etc., [as in common bond, and then add :] the just and full sum of ... . dollars, in manner following : that is to say, the sum of dollars on the day of ... . next ; the sum of ... . dollars on the day of 18 . . ; and the remaining sum of ... . dol- lars in one year from the said last-mentioned date, together with the legal interest on the whole sum remaining unpaid at the time of each payment ; then the above obhgation to be void ; else to remain in full force and virtue. Sealed, etc., [as in common bond Bond, with Interest Condition. Know all men by these presents : etc., [as in common bond, and then add:] the just and full sum of dollars, on the .... day of , in the year of our Lord, 18. ., and the legal interest thereon, to be computed from the day of the date hereof, and to be paid , on the day of .... , and the day of , in each and every year ; then the above obligation to be void ; else to remain in fuU force and virtue. And it is hereby expressly agreed, that should any default be made in the payment of said interest, or any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of .... days, the aforesaid principal sum of ... . dollars with all aiTearages of interest thereon, shall, at the option of the said . . . . , his executors, administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired; anything herein-before contained to the contrary thereof, in any wise notwithstanding. Sealed, etc., [as in common bond]. ^ Bond to a Corporation. Know all men by these presents : That I, of, etc., am held and firmly bound unto the Insurance Company, in the sum of .... dollars, lawful money of the United states, to be paid to the said Insurance Com- pany or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal. Dated the day of , one thousand eight hundred and The condition of the above obligation is such, that if the above bounden , his heirs, executors or administrators, shall well and truly pay or cause to be paid unto the above-named Insurance Company or assigns, the just and full sum of, etc., [as in common bond]. Bond to Executors. Know all men by these presents : That I, , of, etc., am held and 104 LAW ENCYCLOPEDIA. firmly boond unto and of, etc., executors of the last will and testament of , deceased, late of, etc., in the sum of dol- lars, lawful money of the United States, to be paid to the said and , executors as aforesaid, the survivors or survivor, or his or their assigns ; for which payment, well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal. Dated the .... day of , one thousand eight hundred and . The condition of the above obligation is such, that if the above bounden his heirs, executors or administrators, shall well and truly pay or cause to be paid unto the above-named and , executors as aforesaid, the survivors or survivor, or his or their assigns, the just and full sum, etc., [as in common bond]. 'ndmrnUy Bond to Sheriff, Know all men by these presents : That we , and , . . . , are held and firmly bound unto , sheriff of the county of : Whereas, the above bounden did obtain li judgment in the court of the state of , on the day of , 18 . . , against , for dollars and cents, damages and costs, whereupon execution has been issued, directed and delivered to the said , sheriff as afore- said, conmianding him, that of the goods .and chattels of the said he should cause to be made the damages and costs aforesaid. And, whereas, certain goods and chattels that appear to belong to the said are claimed by of, etc. : Now, therefore, the condition of this obliga- tion is such, that if the above bounden shall well and truly keep, and bear harmless and indemnify the said , sheriff as aforesaid, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damages, costs, suits, actions, judgments and executions, that shall or may at any time arise, come or be brought against him, them or any of them, as well for the levying and making sale, under and by virtue of such execution, of all or any goods and chattels which he or they shall or may judge to belong to the said as for entering any shop, store, building or other premises, for the taking of any such goods and chattels, then this obligation to be void ; else to remain in full force and virtue. Sealed, etc^ [as in common bond]. Bond, with Warrant of Attorney to confess Judgment. Know all men, etc., [as in common bond, and then add :] the just and full sum of dollars, on demand, then the above obligation to be void ; else to remain in full force and virtue. Sealed, etc., [as in common bond]. Whereas, I , of, etc., am held and firmly bound unto , of, etc., by a certain bond or obligation of this date, in the penal sum of dollars, conditioned for the payment of dollars, on demand : Now, therefore, I do authorize and empower any attorney in any court of record in the Etat« of , to appear for me at the suit of the said obligee or his BONDS, FOEMS OP. 105 representatives, in an action of debt, and confess judgment against me upon the said bond or obligation, or for so much money borrowed, of any term or vacation of term, antecedent or subsequent to this date ; and to release to the said obligee all errors that may intervene in obtaining such judgment, or in issuing execution on the same. Signed and sealed this day of a.d., 18.,. In presence of [l.b. ] Bond to Execute a Conveyance. Know all men, etc., [as in common bond to the petition, and then add :] The condition of the above obligation is such, that if the above bounden . . . . , on or before the day of next, or in case of his death before that time, if the heirs of the said , withia months after his decease (if such heirs shall then be of full age, or if within age, then within three months after such heirs shall be of full age) shall and do, upon the reasonable request and at the cost and charge of the said , his heirs or assigns, make, execute and deliver, or cause so to be, a good and sufficient warranty deed, in fee simple, free from all incumbrance and with the usual covenants, of the following described premises, to wit : all, etc., [describe the premises], then the above obligation to be void ; else to remain in full force and virtue." Sealed, etc., [as in common bond]. Bond of an Officer of a Bank or Company. Know all men, etc., [as in bond to a corporation, substituting the name of the bank for that of the company, if necessary, and then add :] Whereas, the above bounden has been chosen and appointed cashier [or, "teller," or "treasurer," as the case may be] of the Company [or, " bank "], by reason whereof divers sums of money, goods and chattels and other things, the property of the said company [or "bank"], will come into his hands : Now, therefore, the condition of the above obligation is such, that if the said , his executors or administrators, at the expiration of his said office, upon request to him or them made, shall make or give unto the said company [or, "bank"], or their agent or attorney, a just and true account of all such sum or silms of money, goods and chattels and other things, as have come into his hands, charge or possession, as cashier [or, "teller," or "treasurer"] as aforesaid, and shall and do pay and deliver over to his successor in office, or any other person duly authorized to receive the same, all such balances or sums of money, goods and chattels and other things, which shall appear to be in his hands, and due by him to the said company [or, "bank "] ; and if the said shall well and truly, hon- estly and faithfully, in all things, serve the said company [or, "bank"], in the capacity of cashier [or, "teller," or, " treasurer "J, as aforesaid, during * The above form may be readily va»ied if tlie condition should be to procure an heir-at- iaw to convey, ^vhen of age ; and a clause may be added to warrant and defend the obligee, in the quiet enjoyment of the premises, until such conveyance be executed, or his execu- tors may be bound, etc. 106 LAW ENCYCLOPEDIA. nis continuance in office, then the above obligation to be void ; else to remain in full force and virtue. Sealed, etc., [as in common bond]. £(md of Indemnity to a Surety in a Bond. Know all men, etc., [as in common bond to the condition, and then add :] Whereas, the said at the especial instance and request of the above boundeu , has bound himself, together with the said , unto one of, etc., in a certain obligation, bearing even date herewith, in the penal sum of dollars, lawful money of the United States, con- ditioned for the payment of the sum of dollars, due and owing by the said to the said , on, etc., [as in the bond, or, if a baU bond be referred to say : " conditioned for the appearance of the said " etc. ; or, " conditioned that the said shall put in special bail, "etc. :] Now, therefore, the condition of the above obligation is such, that if the said shall well and truly perform and fulfill the condition of the said bond, executed to the said , in manner and form as he is therein required to do, and at all times hereafter, save harmless the said , his heirs, executors and administrators, of and from the said obligation, and of and from all actions, costs and damages, for or by reason thereof, then this obligation to be void ; else to remain in full force and virtue. Sealed, etc., [as in common bond]. Sond of Indemnity on Paying Lost Note. Know aU men, etc., [as in common bond] : Whereas, the said on the day of , 18 . . , did make, execute and deliver, unto the above named , for a valuable consideration, his promissory note, for the sum of hundred dollars, written due and payable, on or before the day of , then next, with interest, which said promissory note the said since the deUvery of the same to him, as aforesaid, has in some man- ner, to him unknown, lost out of his possession ; and whereas, the said .... hath this day paid unto the said , the sum of dollars, the receipt whereof the said doth hereby acknowledge, in fuU satisfac- tion and discharge of the said note, upon the promise of the said , to indemnify and save harmless the said in the premises and to deliver up the said note, when found, to the said to be canceled : Now, therefore, the condition of this obligation is such, that if the above bounden , his heirs, executors or administrators, or any of them, do and shall, at all times hereafter, save and keep harmless the said , his heirs, executors and administrators, of, from and against, the promissory note aforesaid and of and from all costs, damages and expenses, that shall or may arise therefrom ; and also deliver or cause to be delivered up the said note, when found, to be canceled, then this obligation to be void ; else to remain in full force and virtue. Sealed, etc., [as in common bond]. Bund for Performance, to be Indorsed on a Contract or Agreement. Know all men, etc., [as in common bond]. The condition of this obliga- BONDS, FOEMS OF. 107 tion ia such, that if the above bounden , his executors, administra- tors or assigns, shall, in all things, stand to and abide by, and well and truly keep and perform, the covenants, conditions and agreements, in the within instrument contained, on his or their part to be kept and performed, at the time and in the manner and form therein specified, then the above obligation shall be void ; else to remain in full force and virtue. Sealed, etc., [as in common bond]. Bottomry Bond.^ Know all men by these presents : That I , master and one-third owner of the ship for myself and , who owns the other two- thirds of said ship, am held and firmly bound, unto in the penal sum of dollars, lawful money, for the payment of which to the said , his heirs, executors, administrators or assigns, I hereby bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal. Dated the . day of a.d. 18 . . Whereas, the above bounden hath taken up and received of the said the just and full sum of dollars, which sum is to run at respondentia, on the block and freight of the said , whereof the said is now master, from the port of , on a voyage to the port of , having permission to touch, stay at and proceed to call, at all ports and places within the limits of the voyage, at the rate of premium of ... . per cent, for the voyage : In consideration whereof, usual risks of the sea, rivers, enemies, fires, pirates, etc., are to be on account of the said And for fm-ther security of the said the said doth, by these presents, mortgage and assign over to the said , his heirs, exec- utors, administrators and assigns, the said ship and her freight, together with aU her tackle, apparel, etc. And it is hereby declared, that the said ship and her freight is thus assigned over for the security of the respondentia taken up by the said and shall be delivered to no other use or purpose whatever, until payment of this bond is first made, with the premium that may become due thereon. Now, therefore, the condition of this obligation is such, that if the above bounden , his heirs, executors or administrators, shall and do well and truly pay or cause to be paid, unto the said , or to his attorneys, legally authorized to receive the same, his or their executors, administrators or assigns, the just and full sum of thousand dollars, being the principal of this bond, together with the premium which shall become due thereon, at or before the expiration of days after the arrival of the ship at the port of ; or in case of the loss of the said ship, such an average as by custom shall have become due on the salvage, then this obligation is to be voidj otherwise to remain in full force and virtue. Having signed to three bonds of the same tenor and date, the one of which being accomplished, the other two to be void and of no effect. , for self and [l.s.] Sealed and delivered in presence of * This same form may be used as a respondentia bond, only the loan is made on the cargo of the vessel. 108 LAW ENCYCLOPEDIA. £ond of Treasurer lor, " Trustee "] of a Lodge of I. 0. of 0. F., or of any similar Association. Know all men by these presents : That we, , as principal, and , and as sureties, all of , in the county of and state of are held and firmly bound unto [state name of association] in the sum of .... dollars, to be paid unto the said and , their successors, or their certain attorneys, executors, administrators or assigns. To which payment well and truly to be made, we jointly and sev- erally bind ourselves and our respective heirs firmly by these presents. Sealed with our seals aad dated the .... day of , eighteen hundred and The condition of this obligation is : That whereas, theabove named has been chosen by an association known as the , treasurer, [or, " one of the trustees"] of said association, by reason whereof and as such treasurer [or, "trustee"], he will receive into his hands and posses- sion divers sums of money, goods and chattels and other things, the property of said association ; and is bound to keep true and accurate accounts of said property, and of his receipts and disbursements for and on account of said association. Now, therefore, if the said shall well and truly perform all and singular the duties of treasurer [or, " trustee "J of said association, for and during his of&cial term,- and until he shall deliver all the property which he may receive as such treasurer [or, "trustee "] to his successor in said office, or to such other person as the said association or its authorized officers may direct, accdrding to the provisions of the constitution, by-laws, rules and regulations, of said association now existing, or which may be by-said asso- ciation adopted ; then this obligation shall be void. [I.-S.] [L.S.] Signed, sealed and delivered in presence of [l.s.] Another Form of Bond of Treasurer or Trustee of an Association. Know all men by these presents : That we , as principal, and and . , as sureties, all of the city of , in the county of . . . . , and state of are held and firmly bound unto and .... in the sum of dollars, lawful money of the United States, to be paid unto the said and , their successors in office, or their certain attorneys, executors, administrators or assigns ; to which pay- ment, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated the day of , one thousand eight hundred and The condition of this obligation is such : That whereas, the above-named has been chosen by an association known as the Association, treasurer [or, " one of the trustees "] of said association, by reason whereof, and as such treasurer [or, "trustee"], he will receive into his hands and BONDS, FORMS OF. 109 possession divers sums of money, goods, and otLer things, the property of said associaticn ; and is bound- to keep true and accurate accounts of said property, and of his receipts and disbursements for and on account of said association. Now, therefore, if the said shall well and truly perform all and singular the duties of treasurer [or, " trustee "] of said association, for and during his official term, and until he shall deliver all the property -which he may receive as such treasurer [or, "trustee"] to his successor in office, or to such other person as the said association or its authorized officers may direct, according to the provisions of the constitution, by-laws, rules and regulations, of said association now existing, or which may be by said asso- ciation adopted ; and shall keep true and just accounts of all property be- longing to the said association that may come into his hands ; and shall submit to the said association, or to persons by them thereunto appointed, his said accounts and vouchers therefor, whenever he shall thereto be prop- erly requested ; and shall, at the expiration of his term of office, by any cause whatever, deliver up to his successor in office all the property of the said association that may be found to remain in his hands, and his books of accounts, and the vouchers thereunto belonging, then this obligation shall be null and void ; otherwise to remain in fuU force and virtue. Signed, sealed, etc., [as in other bonds]. Bond to Produce Bill of Lading. Know all men by these presents : That we, and , compos- ing the firm of & Co., and and , of city and county of and state of California, are held and firmly bound, unto the owners, master and consignees, of the ship , in the penal sum of dollars, to be paid unto the said owners, master or consignees, their executors, ad- ministrators or assigns ; to which payment, well and truly to be made, we do bind ourselves, our heirs, executors and administrators, firmly by these presents. The condition of this obligation is such: That whereas, & Co., claim to be true and lawful consignees of certain goods, wares and merchandise, now on board the ship of which they hold no valid bill of lading: Now, in consideration of the delivery of said goods to the said & Co., by & Co., the consignees of said ship , without presentation of bill of lading, we, the undersigned, hereby agree to furnish to the said con- signees of said ship, with, days from the date hereof, a proper bill of lading of said goods, duly filled up to the order of said & Co. or in default of furnishing such bill of lading, we hereby agree to hold the said owners, master and consignees, of said ship harmless- against the claims for delivery of any party or parties whatsoever, and bind ourselves to pay to the said owners, master or consignees, all loss or damage which they may be called upon to pay in consequence of such delivery of said goods to the said & Co. Now, if the said & Co., do well and truly fulfill the conditions of the above agreement, then this obligation is to be void and of no effect, otherwise to remain and be in full force and virtue. 110 LAW ENCYCLOPEDIA. In witness whereof, we have hereunto set our hands and seals, this . . . .day of eighteen hundred and .... In presence of ..[L.S.] ..[L.S.] .. [L.S.] .. [I..S.] Bond of Indemnity. Know all men by these presents: That I, of the city of , in the state of am held and firmly bound, unto , of the city of .in the state of , in the sum of and dollars, lawful money of the United States of America, to be paid to the said , his executors, administrators or assigns, for which payment, weU and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed withmy seal. Dated the day of in the year of our Lord, one thousand eight hundred and Whereas, heretofore, one filed his bill in the district court of the United States, for the district of , against the steamship , upon cause of action alleged to have accrued to him in the early part of the year 18 . . ; and whereas such proceedings were afterward had in said cause in said court, that a judgment or decree was made and entered therein, on the day of , A.D. 18 . ., that the said do recover in said action, the sum of and dollars, for his damages therein, and also the sum of and dollars and cents, for his costs of said action, and that the said steamship be condemned and sold to satisfy Tn'm for his said damages and costs; and whereas, at the time when said alleged cause of action accrued, the above bounden obligor was the mortgagee and owner of the said steamship, and liable ever for the payment of such damages and costs ; and whereas, an appeal has been taken from the said judgment or decree, to the circuit court of the United States for the districts of ; and whereas, the said above-bounden obligor has applied to the above-named obligee to become one of the sureties in the stipulation to be given on the said appeal to stay the execution of said decree and abide the judgment and decree of the appel- late ; and whereas, the said obligee hath consented to become such surety, upon being indemnified against all loss or damage by reason thereof, and hath executed and acknowledged the necessary stipulations on such appeal. Now, the condition of this obligation is such, that if the said obligor, the said and his heirs, executors and administrators, shall and do at aU times hereafter, well and truly save and keep the said obUgee, , his executors and administrators, harmless of and from all actions, costs, damages and counsel fees, of and from and by reason of or growing out of such suretyship, and shall well and truly repay or cause to be repaid to the said obligee, his executors or administrators, on demand, any and all such sum and sums of money that he may be required to pay as such surety as aforesaid, then this obligation to be void ; else to-remain in full force and virtue. [l.s.] By , his attorney in fact. Sealed and delivered in presence of BONDS, POEMS OE. Ill Zegatees' Sond. R.now all men by these presents, that we, , principal and and , of, etc., are held and firmly bound nnto and , of, etc., executors of the last will and testament of , deceased, late of the town of in the sum of dollars, lawful money of the United States, to be paid to the said and , executors, as aforesaid, the survivor or survivors, or his or their assigns ; for which pay- ment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of one thousand eight hundred and Whereas, in and by the last will and testament of the said de- ceased, a legacy of thousand dollars is bequeathed to the said , which has been paid to him by the said and , executors as aforesaid. Now, the condition of this obligation is such, that if any debts against the deceased, above named, shall duly appear and which there shall be no other assets to pay, and if there shall be no other assets to pay other legacies or not sufficient, then the said shall refund the legacy so paid or such ratable proportion thereof, with the other legatees of the deceased, as may be necessary for the payment of such debts and the proportional parts of other legacies, if there be any, and the costs and charges incurred by reason of the payment of the said ; and that if the probate of the will of the said deceased be revoked or the will declared void, then the said shall refund the whole of the legacy, with interest, to the said and , their executors, administrators or assigna. Sealed, fitc, [as above]. [i,.s.] [L-s.] [I..S.] Sond, conditioned that if the Interest is not paid within a certain tinie after it is due, the whole Sum, Principal and Interest, shall, at the option of the Obligee, be due immediately. Know all men by these presents: That I, , of the of in the county of , and state of , am held and firmly bound unto , of the same place, in the sum of dollars, lawful money of the United States, to be paid to the said his executors, administrators or assigns, for which payment, well and truly to be made, I bind myself, my heirs, executors and administrators, and every of them, firmly by these presents. Sealed with my seal. Dated the day of , one thousand eight hundred and The condition of the above obligation is such, that if the above bounden , or his heirs, executors and administrators, shall well and truly pay or cause to be paid, unto the above-named , his executors, admin- istrators or assigns, the just and full sum of dollars, on the day of , which will be in the year one thousand eight hundred and , and the interest thereon, to be computed from the date hereof, at and after the 112 LAW ENCYCLOPEDIA. rate of per cent, per anmim, and to be paid , then the above obli- gation to be void ; else to remain in full force and virtue. And it is hereby expressly agreed, that should any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear tor the space of days, then and from thenceforth, that is to say, after the lapse of the said days, the aforesaid principal sum of dollars, together -with all arrearage of interest thereon, shall, at the option of the said , his executors, administrators and assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything herein-before contained to the contrary thereof, notwithstanding.* [I..S.] Sealed and delivered in the presence of Scmd for a Seed. Know all men, etc. : Now, the condition of this obligation is such, that if the above bounden obligor shall, on the day of next, make, exe- cute and deliver, unto the said [provided that the said shall, on or before that day, have paid to the said obligor the sum of dollars, the price by said agreed to be paid therefor], a good and sufficient conveyance, in fee simple, with the usual covenants, of aU that cer- tain piece or parcel of land [here describe the land], then this obligation to be void ; otherwise, to remain in full force, virtue and effect. [i-s.] Sealed and delivered in the presence of BOOK ACCOUIWS. When "Books" may be Used as Evidence. — Accotint books may be given in evidence, as proof of the charges ia them, in courts of law. Before they -will be received, the person offering them must prove them to be : 1st. His book of original entries. 2d. That it was kept by the witness. 3d. That the entries were made by him at the time therein stated. If the party testifying kept no clerk, he must so state, and * If an agreement is made to compound the interest due, insert the follow- ing clause : " And the said interest shall be added to the principal as fast as it becomes due, and shall bear the same interest as the principal." BOOK ACCpmraS — BOTTOMET. 113 also that he kept no other books. When these facts are proven, and also that the person offering them has the gen- eral reputation of keeping correct books, by those dealing with him, they make out a prima facie case of themselves. In California and elsewhere, where interest does not exclude a witness, the books are used to refresh the memory of the witness, and no proof need be made of correctness, general reputation, etc. An Account, purporting to be drawn out by the party himself, from his original and daily minutes, is not admissi- ble in evidence, though the book containing such statement should be accidentally destroyed, unless it could be proved that the items of the amount drawn out had actually existed in the party's books. If the Party is Daad, the books may be offered by the executor or administrator, he making oath that they came to his hands as the genuine and only books of account of the deceased, with proof of the party's handwriting. If the Clerk who made the entries is dead or insane, the book is admissible, upon proving his handwriting. When the Day-book contains marks which show that the items have been transferred to a ledger, the ledger must be produced. It is Usual to Prefix the initials E. & O. E. (for errors and omissions excepted) to the signature to accounts, but the omission of those letters forms no bar to the subsequent correction of errors. The settlement and discharge of an account is no bar to a claim for any other demand not in- cluded in the settled account. It may be impeached by proof of unfairness, mistake or fraud. BOTTOMRY. Bottomry, Maritime Law. — See Bonds. 8 114 LAW ENCTCLOPEDU. BOUNDARY Boundary. — Any separation, natural or artificial, wMch marks tlie confines or lines of two contiguous estates. A Natural Boundary, is a natural object remaining where it was placed by nature. A river or stream is a natural boundary, and as a general rule, the center of the stream is the line. An Artificial Boundary, is one erected by man, such as a wall, fence or monument. BREACH. Breach. — In contracts, the violation of an obligation, engagement or duty. BREACH OF THE PEACE. Breach of the Peace. — ^A violation of public order. The offense of disturbing the peace. See Crimes and Punish- ments. BREACH OF TRUST. Breach of Trust. — The willful misappropriation, by a trustee, of a thing which has been lawfully delivered to him in confidence, BRIBERY. Bribery. — The receiving or offering any reward by or to any person whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office, and so incline him to act contrary to his duty and the known rules of honesty. The law is very severe when it lays its hand on a briber's shoulder ; and so salutary have been its penalties that the officers of the different states of the Pacific, including the several legisla- tures, have seldom been suspected of .this offense. It is BE0KEK8. 115 feared that bribery and bribes will become more frequent when the population becomes more dense. See Crimes and Punishments. BROKERS. Broker. — ^A broker is a person who is engaged for others in the negotiation of contracts relative to property with the custody of which they have no concern. A broker is fre- quently the agent of both parties ; but, in the first place, he is deemed the agent only of the person by whom he is originally employed, and does not become the agent of the other until the bargain or contract has been definitely set- tled as to the terms between the principals. Bill and Note Brokers. — ^Those who negotiate the pur- chase and sale of bills of exchange and promissory notes. Their commission is paid by the seller of the securities ; and it is not their custom to disclose the names of their principals. There is an implied warranty that what they sell is what they represent it to be, and should a security sold by them turn out to be a forgery, they are responsi- ble for the loss. Exchange Brokers. — ^Those who negotiate bills of ex- change, drawn on foreign countries or on places in the coun- try in which they live. Insurance Brokers. — ^Those who procure insurance and negotiate between insurers and insured. Merchandise Brokers. — Those who negotiate the sale of merchandise, without having possession or control of it as factors have. Real Estate Brokers. — Those who negotiate the purchase or sale of real property. They sometimes procure loans on mortgage security, collect rents, and attend to the leasing and letting of houses and lands. Ship Brokers. — ^Those who negotiate the sale and pur- chase of ships, and the business of freighting vessels. Their commission is paid by the seller only. 116 LAW ENCYCLOPEDIA. Stock Brokers. — Those employed to buy and sell shares of stock in incorporated companies and the indebtedness of gOYernments. In large cities, stock brokers are associated together under the name of the "board of brokers." Mem- bership of such boards is forfeited for default in carrying out contracts ; and rules are prescribed for the conduct of business which are enforced on all members. The pur- chases and sales are made at sessions of the board, and are officially recorded and published by an officer of the asso- ciation. Stock brokers charge commissions to both the buyers and sellers of stocks. Pa'wnbrokers. — Those who lend money in small sums on the security of personal property, such as watches, coats and other articles, of ornament or use. Hard times is their pasture, yielding to them full crops. " Tightness " in the money market is, to them, a day of rejoicing ; and absence of rain and dry signs in seed time, is a fountain of joy. Other brokers wax thin on a tight money market, while they grow sleek and fat. What is other brokers' poison, is their meat. In California, they are licensed by the authori- ties and placed under the surveillance of the police. See Pawnbkokek. BURGLARY. Burglary. — The breaking and entering the house of another, in the night-time, with intent to commit a felony therein. See Ckimes and Punishments. BY-BIDDING. By-bidding. — Bidding with the connivance or at the re- quest of the vendor of goods at auction, without an intent to purchase, for the purpose of obtaining a higher price than would otherwise be obtained. By-Bidders are also called puffers. The practice oi puffing is allowable if it be done fairly, with an intention only to prevent a sale at an unduly low price. CANCELLATION — CAPITAL STOCK. 117 CANCELLATION. OanoftllaUon. — ^The act of crossing out a writing. The manual operation of tearing or destroying a written instru- ment. Canceling a Will, is a revocation; and the destruction or obliteration need not be complete, but must be by the tes- tator, or in his presence and by his direction and consent. CANVASS. Canvass. — ^The act of examining the returns of votes for a public officer. In the states of the Pacific, the supervisors or county commissioners act as a board of canvassers, and declare the result of elections. A Party may go behind the canvass, to the ballots, and show the number of votes cast for him or his candidate. CAPACITY. Capacity. — ^Ability, power, qualification or competency, to act in legal proceedings or in office. Infants have not the capacity to contract, generally. CAPITAL CRIME. Capital Crime. — One for which the punishment of death is infiicted. Murder, in the first degree, is a capital crime, yet it may be punished by imprisonment for life on commu- tation of sentence. See Ceiueb and Punishments. CAPITAL PUNISHMENT. Capital Punishment. — The punishment of death. CAPITAL STOCK. Capital Stock. — The sum divided into shares, which is 118 hkVr ENCYCLOPKDIA. raised by mutual subscription of the members of a coi'po- ration. It is said to be the sum upon which assessments may be made, and on which dividends are to be paid. OARRIEB. Carrier.— One who undertakes to transport goods from one place to another. They are either common or private. See Common Oaeeteb. GARRIBRS OF PASSENGERS. Carriers of Passengers and their Duty. — Carriers of passengers are such as carry persons for hire. They are bound to carry aU who offer ; but they will be excused when there is an imexpected press of travel, and all their means of transportation are exhausted. Degree of Care Required of Them. — They are not in- surers of the safety of their passengers, as common carriers of goods are, but they are bound to the highest degree of care and watchfulness, in regard to all their appliances for the conduct of their business ; and as far as human fore- sight can secure the safety of passengers, they are bound to exercise it. They may Demand Pare in Advance. — They have a right to demand fare in advance; but this will not release them from responsibility, if they have not exacted it in advance. Where servants of passenger carriers are allowed to carry parcels or packages of goods, the principal is responsible for any damage to them, although the servant is allowed to keep to his own use the freight-money as his perquisites. Degree of Care Required of Carriers of Passengers. — In regard to the particulars of the duty of carriers of pas- sengers, as to their duty in providing the best machinery and servants, the decisions are numerous, but they all concur in the result, that if there was anything more which could have been done by the carrier to insure the safety of his passen- OAEBEEBS OF PASSENGEK3. 119 gers, and injury occurs in consequence of the omission to do so, he is liable. If any accident occurs, by reason of any defect in machinery or neglect on the part of servants, which might have been avoided by the exercise of the greatest watchfidness on the part of the carrier, he is responsible for any injury sustained ; but where the defect was one which no degree of watchfulness in the carrier or his servants would enable him to discover, he is clearly not liable. Where Negligence of Passenger Contributes to Injury. — ^If, by negligence on his own part, a passenger is injured, the carrier is clearly not liable, but where the passenger's negligence contributed but remotely to the injury, and the carrier's culpable want of care was its immediate cause, a recovery may be had. So, also, if the defendant is guilty of such a degree of negligence that the plaintiff could not have escaped its consequences, he may recover, notwith- standing there was a want of prudence on his part. Pas- sengers leaping from cars or other vehicles, either by land or water, from any just sense of peril, may, if they are injured, still recover. Who they need not Carry. — They are not bound to carry persons of offensive habits, or disorderly persons, or those infected by contagion, or otherwise unsuitable com- panions for other passengers. They are liable in damages for failing to deliver passengers in reasonable time, accord- ing to their public announcements. In such case, the actual, direct damage alone can be recovered. Who liable for Injury. — When tickets are sold for an entire route composed of several companies, not partners, and an injury occurs, the company on whose route it occurred is alone liable. Measure of Dajnages for Injuries. — When a passenger is injured by the culpable negligence of a carrier, damages may be recovered for not only the injuries actually sus- tained up to the time of trial, but also prospective damages likely to accrue from the injury, as he can have but one action. 120 LAW ENCYCLOPEDU. They may Establish Rules. — Tliey may establish reason- able regulations to govern passengers, and it is their duty to caution them against danger; and if their regulations require prepayment of fare, they may charge extra to all who neglect or refuse to comply. They may require pas- sengers to go through in the conveyance in which they started, and if they do not comply, the fare already paid will be forfeited. When a Passenger profcures a ticket marked, "good for this trip," or, "this day only," and he is unavoidably de- tained, he may lawfully claim to go on the same ticket on a subsequent trip or day. See Common Caeeiees — ^Act of God CARTE BLANCHE. Carte Elanche. — ^The signature of one or more persons on a white paper, with a sufficient space left above it to write a note or other writing. If authority is given to fill up a blank thus left, such indorsements are binding. CASE. Case. — A question contested before a court of justice. An action, or suit. CASH BOOK. Cash Book. — A book in which a merchant enters an ac- count of all the cash he receives or pays. CASHIER. Cashier. — ^An officer who is entitled, by his office, to take care of the cash or money of his employes. Banks are bound, as a general rule, by the acts of the cashier within the scope of his authority, express or implied. CAUSE — CENSUS. 121 CAUSE. Cause. — ^A suit or action. Any question contested be- fore a court of justice. CAUSE OF ACTION. Cause of Action. — Matter for which an action may be brought. When wrong has been committed, or a breach of duty has occurred, the cause of action has accrued, although the claimant may be ignorant of it. When a debt of any kind becomes due, a cause of action has accrued. CAVEAT. Caveat. — A legal notice not to issue a patent of a particu- lar description to any person without allowing the caveator an opportunity to establish his priority of invention. See Patents. CAVEAT EMPTOR. Caveat Emptor. — [Let the purchaser take care.J In every sale of real property, a purchaser's right to relief, on account of defects or incumbrances in or upon the property sold, depends solely upon the covenants for title which he has received. In Sales of Personal Property, the purchaser buys at his own risk, unless the seller gives an express warranty, or unless the law implies a warranty from the circumstances of the case or the nature of the thing sold, or unless the seller be guilty of fraudulent misrepresentation or conceal- ment in respect to a material inducement to the sale. See MiSEEPKESENTATION — CONCEALMENT — WaEBANTY. CENSUS. Census. — An official reckoning; an enumeration of the 122 LAW ENCYCTiOPEDIA. inhabitants and wealtli of a country. The census of the United States is taken every tenth year, in accordance with the provisions of the constitution. It was taken in 1860, and is to be taken in 1870, and every tenth year there- after. On the returns of the census, representation in con- gress and the state legislatures is based. CERTIFIED CHECK. Certified Check. — ^A check drawn on some bank which has been recognized by the proper officer as a valid appro- priation of the amount of money therein specified to the person, or his assignee therein named, and which bears upon itself the evidence of such recognition. When the Check is Certified, the officer authorized or who assumes to bind the bank in that manner, writes his name across the face of the check, and he sometimes adds, '■certified." When this is done the bank is responsible for the sum stated in the check. CEHTIOEAEI OE EEVIEW. CALIFOBNIA, NEVADA, IDAHO, AEIZONA, MONTANA AND TTTAH. Writ of Certioraii, or of Review. — This writ may be granted on application, by any court of this state, except a justice's, recorder's, or mayor's court; the writ shall be granted in all cases when an inferior tribunal, board or offi- cer, exercising judicial functions, has exceeded the jurisdic- tion of such tribunal, board or officer, and there is no ap- peal nor in the judgment of the court any plain, speedy and adequate remedy. Application, hovr Made. — The application shall be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it ^hould not be allowed, or may grant the writ without notice. How Directed. — ^The writ may be directed to the inferior CEETIOEAEI. 123 tribunal, board or officer, or to any other person having the custody of the record or proceedings to be certified. When directed to a tribunal, the clerk, if there be one, shall return the writ with the transcript required. Contents of Writ. — The writ of review shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and annex to the writ, a transcript of the record and proceedings [de- scribing or referring to them, with convenient certainty], that the same may be reviewed by the court ; and requiring the party in the meantime to desist from further proceed- ings in the matter to be reviewed. Proceedings may be Stayed, or not. — If a. stay of pro- ceedings be not intended, the words requiring the stay shall be omitted from the writ ; these words may be inserted or omitted, in the sound discretion of the court ; but if omitted, the power of the inferior court or officer shall not be sus- pended, nor the proceedings stayed. Service of the Writ. — The writ shall be- served in the same manner as a summons in a civil action, except when otherwise expressly directed by the coiu't. Extent of Revie-w. — The review upon thisvnit shall not be extended further than to determine whether the inferior tribunal, board or officer, has regularly pursued the author- ity of such tribunal, board or officer. Hearing and Judgment. — If the return of the writ be defective, the court may order a further return to be made. When a full return has been made, the court shall proceed to hear the parties, or such of them as may attend for that purpose, and thereupon give judgment, either affirmrag, annulling or modifying, the proceedings below. Copy of Judgment to be sent to Inferior Tribunal. — A copy of the judgment, signed by the clerk, shall be trans- mitted to the inferior tribunal, board or officer, having the custody of the record or proceeding certified up. Judgment Roll and Appeals.— A copy of the judgment, 121: LAW ENCYCLOPEDIA. signed by the clerk, entered upon, or attached to, the writ and return, shall constitute the judgment roll. If the pro- ceeding be had in any other than the supreme court, an ap- peal may be taken from the judgment in the same manner and upon the same terms as from a judgment in a civil action.* FOEM. In the .... couit of the .... county of ... . Plaintiff, against Cebtiobasi. Defendant. The people of the state of to greeting : Whereas, it manifestly appears to us, by the affidavit of the part., beneficially interested, that in a certain action pending before you, against at the suit of , you, exercising judicial functions, have exceeded your jurisdiction, and that there is no appeal nor any other plain, speedy and adequate remedy, and being therefore willing to be certi- fied of the said action or proceedings : We therefore command you, that you certify and send to our court, of the , county of , at the , in the , county of , on the day of , A.D. 18 . . , annexed to the writ a transcript of the record and pro- ceeding in the action aforesaid, with all things touching the same as fully and entirely as it remains before you, by whatsoever names the parties may be called therein, that the same may be reviewed by our said court, and that our said court may further cause to be done thereupon what it may appear of right ought to be done, and in the meantime we com- mand and require the said to desist from further proceedings in the matter so to be reviewed. Witness, the honorable , judge of our court of the , at the in the county of , and the seal of said court, this day of , A.D. 18.. Clerk, By Deputy Clerk. CESTUI QUE TRUST. Cestui que Trlist. — This phrase often occurs in judicial proceedings. It means he for whose trust another person is seized of property of any description. He who has a right to an interest in and out of an estate the legal title to which •is vested in another, is a cestui que trust. *In Oregon and "Washington the law is substantially the same. CESTUI QUE USE — CHAETEE PARTY. 125 CESTUI QUE USE. Cestui que Use.— He for whose benefit land is held by another person. He has the right to take profits of lands of which another has the legal title and possession. CHAMBERS. Chambers. — ^The private room of a judge. When a case or motion is made or heard, before a judge out of court, it is said to be made or heard "in chambers." Orders and decrees may be made in chambers when permission is given by law. CHAMPERTOR. Champertor. — One who institutes suits and prosecutes them at his own costs upon condition of having part of the gain. Champerty. — A bargain with the plaintiff or defendant, in a suit for a portion of the land or other matter sued for in case of a successful termination of the suit, which the champertor undertakes to carry on at his own expense. In other days, this was an offense at law, punishable by fine. A common instance was when an attorney agrees with a clieiit to collect by suit a -demand, and retain a part for his fee. [See Attorney at law.] CHARTER PARTY. Charter Party. — A contract by which the owner of a ship or other vessel, lets the whole or a part of her to a merchant or other person, for the conveyance of goods on a particu- lar voyage, in consideration of the payment of freight. It shoiild Contain — 1st. The name and tonnage of the vessel. 2d. The name of the captain. 3d. The name of the letter and freighter. 4th. The place and time agreed upon for the loading and discharge. 126 LAW ENCYCLOPEDIA. 5th. The price of the freight. 6th. The demurrage or indemnity in case of delay. 7th. Such other conditions as the parties may agreeupon. ^ CHASTITY. Chastity. — That virtue which denies unlawful commerce on solicitation by one of opposite sex. A woman may de- fend her chastity by killing her assailant. Men have been killed for resisting a woman. 43 Cal., p. 137. CHATTEL. Chattel. — ^Every species of property which is less than a freehold. Chattels Real, are interests which are annexed to the land, as a lease for years of land. Personal Chattels are things movable. This book is a personal chattel. Any description of personal property not attached permanently to the ground. Chattel Mortgage. — A mortgage of personal property. See MOETGAGE. CHECK. Check. — A written or printed order, addressed to a bank by a party having money on deposit, desiring it to pay, on presentation, to a person therein named or to bearer, or to his order, a named sum of money. See Certified Check — Bills ahd Notes. CHOSE IN" ACTION. Chose in Action. — A right to receive or recover a debt or money, or damage for breach of contract, or for a wrong connected with a contract. If A owes to B a sum of money, the right to recover, is a chose in action. CIRCUIT COURTS. Circuit Courts. — Courts whose jurisdiction extends over CIECUIT COURTS — CIVIL ACTIONS. 127 several counties or districts, and of which terms are held in the various counties, In the United States, courts are held in each district as provided by law, by United States circuit judges. These courts have such jurisdiction as is conferred by congress, and also common-law jurisdiction. CITATION. Citatioii. — ^A writ issued out of a court, commanding a person therein named to appear on a day named, and do some act in the writ mentioned, or show cause why he should not. This Writ is common in probate practice, and it may be considered as a summons. CITIZEN. Citizen. — Formerly, an inhabitant of a city. By virtue of the fourteenth amendment of the constitution of the United States: "All persons born or naturalized in the United States : and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside." Ey Virtue of this Amendment, all Indians, Chinese and other perscms, born or naturalized in the United States, are citizens : provided, they are subject to the jurisdiction thereof. We have only then to ask : "Would the person born in the United States be subject to the jurisdiction of the United States if he should lead or join a rebellion or riot, or commit any crime whatever?" If the answer is in the affirmative, then such person is a citizen. See Voter. CIVIL ACTION. Civil Action. — ^A personal action, which is instituted to compel payment, or the doing of some other thing which is purely civil. ' 128 LAW ENCYCLOPEDIA. On the Pacifio Coast, all actions which are not criminal are said to be civil. CIVIL DEATH. Civil Death. — The change of state of a person, which is considered, in the law, as equivalent to death. A person sentenced to imprisonment for life is, in law, considered the same as dead. C^VIL OFFICER, Civil Officer. — An officer of the government not holding under military authority. CIVIL REMEDY. Civil Remedy. — The remedy which the party injured by the commission of a wrongful act has, by action, against the party committing it, as distinguished from the proceeding by indictment, by which the wrongdoer is punished. CLAIM. Claim. — The demand entered of record of , a mechanic, contractor or material-man, for work done or material fur- nished in the erection of a building or other superstructure. See Liens, Mechanics'. The AESertion of a Liability to the party making it to do some service or pay a sum of money. The Possession of a settler upon the public lands of the United States ; the lands which such possessor holds pos- session of. See Pee-emption. CLEARANCE. Clearance. — A certificate given by a collector of a port, in which it is stated, that the master of a ship or vessel named and described, bound for a port named, has entered and CLEABING-HOUSE — COLLECTOR OF THE CUSTOMS, 129 cleared his ship according to law. Such a certificate evi- dences the right of a vessel to depart on her voyage CLEARING-HOUSE. Clearing-house. — ^An office where banters settle daily with each other the balances of their accounts. CODICIL. Codicil. — ^An addition to or qualification of a last will and testament. A codicil is part of a will, and is to be con- strued as such. See Wills. COHABIT. Cohabit. — ^To live together in the same house claiming to be married. To live together in the same house. COLLECTOR OF THE CUSTOMS. Collector of the Customs. — An officer of the United States, appointed for the term of four years, but removable at ihe pleasure of the president, subject to the provisions of the tenure of office act. His Duties axe to receive all reports, manifests and doc- uments, to be made or exhibited in the entry of any ship or vessel ; to record all manifests, receive the entries of all ships or vessels, and of all goods imported in them. He shall, together vdth the naval officer (when there is one), or alone (when there is none), estimate the amount of duties payable thereupon, indorsing the amounts upon the respect- ive entries; receive all moneys paid for duties, and take bonds for securing the payment thereof ; grant permits for the unlading and delivery of goods ; and shall, with the approbation of the principal officer of the treasury depart- ment, employ proper persons as weighers, gaugers, meas- urers and inspectors, at the several ports within his district ; 130 LAW ENCYCLOPEDU. and, also, witli tlie like approbation, provide, at the public expense, storehouses for the safe keeping of goods, and such scales, -vreights and measures, as may be necessary. COLLUSION". Collusion. — ^An agreement between two or more persons to defraud a person of his rights, by the forms of law, or to obtain an object forbidden by law. Collusion and Fraud of every kind vitiate all acts which are infected with them, and render them void. COMMERCIAL LAW. Conunerdal Law. — A phrase employed to denote those branches of the law which relate to the rights of property and relations of persons engaged in commerce. COMMISSION. Commission, — A body of persons authorized to act in a certain matter. The Act of perpetrating an offense. An In3trunient, issued by a court of justice, or tribunal, to authorize persons to take depositions, or do any other act by authority of such court or tribunal, is called a com- mission. Letters granted by the government under the public seal, to a person appointed to office, giving him authority to per- form the duties of his office. Such commission is not tho appointment, but only evidence of it, and as soon as It is signed and sealed vests the office in the appointee. COMMITMENT. Commitment. — ^The warrant or order by which a court or magistrate directs a ministerial officer to take a person to prison. See Magisteate. COMMON CABEIEBS. 131 COMMON CARRIERS. Common Carriers. — Sucli as carry goods for hire indiffer- ently for all persons. The different express, railway, and freight-carrying steamship companies, truckmen, wagoners, carmen and porters, are common carriers. Common Carriers are responsible for all loss or damage during transportation from whatever cause, except the act of God or the public enemy. See Act of God. Carrisrs, when they undertake the general business of carrying every kind of goods, are bound to carry all who offer; and if they refuse, without just excuse, they are liable to an action. But they may restrict their business within such limits as they may deem expedient ; and are not boimd to accept goods out of the line of their usual busi- ness. They may require freight to be paid in advance; and have a lien upon the goods for freight and for advances made to other carriers. The Bill of Lading is generally the written evidence of the contract between the parties, and is expected to contain all the exemption from general responsibility which it is com- petent for the carrier to claim. As between the immediate parties, the bill of lading is not conclusive as to the quantity or condition of the goods at the time of shipment, especially when there was no op- portunity to inspect them. See Bill of Lading. Their Responsibility begins upon the delivery of the goods for immediate transportation. A delivery at the usual plape of receiving freight, or to the employes of the company in the usual course of business, is sufficient. The responsibility terminates after the arrival of the goods at their destination, and a sufficient time has elapsed for the owner to receive them in business hours. After that, they may be placed in a warehouse, and the carrier is only re- sponsible for ordinary care. See Oaeriees of Passengers. 132 LAW ENCYCLOPEDIA. COMMON LAW. CommoTi Lavr. — Common law frequently occurs in tHs work ; and as its meaning is imperfectly understood by not a few merchants, farmers, mechanics and other unprofes- sional men, it is necessary to endeavor to make its meaning clear to all. Coininon Law is that system of law, or form of the science of jurisprudence, which has prevailed in England and the United States of America, in contradistinction to other great systems, such as Eoman or civil law. Those principles, usages and rules of action, applicable to the government and security of persons and of property, which do not rest for their authority upon any express and positive declaration of the wiU of the legislature. (1 Kent's Com. 492.) The law of any country to denote that which is common to the whole country, in contradistinction to laws and customs of local application. The most prominent characteristic which marks this contrast, and perhaps the source of the distinction, lies in the fact that in the common law, with the stiff rule of long antiquity on the one hand, nor on the other the sudden changes of a present arbitrary power, are allowed ascend- ancy, but under the sanction of a constitutional government each of these is set off against the other, so that the will of the people, as it is gathered from long-established custom, and from the expression of the legislative power, gradually forms a system ; just, because it is the deliberative will of a free people ; stable, because it is the growth of centuries ; progressive, because it is amenable to constant revision of the people. The phrase, " Common La'w," is used in contradistinc- tion to " statute law ;" and to designate unwritten, as distin- guished from written, law. It is that law which derives its force and authority from the universal consent and imme- morial practice of the people. It has never received the sanction of the legislature by an express act, which is the COMMON LAW. 133 criterion by -which it is distinguished by statute law. When it is spoken of as the lex non scripta, it is meant that it is law not written by the authority of the law. The statutes are the expression of law in a written form, which form is essential to the statute. The decision of a court which establishes or declares a rule of law, may be reduced to writing and published in the reports ; but this report is not the law ; it is only the e\-idence of the law ; it is but the written account of one application of a legal principle, which principle, in the theory of the common law, is still unwritten. It is only by the legislative power that law can be bound by phraseology and by forms of expression. The common law eludes such bondage ; its principles are not limited or hampered by the mere forms in which they may have been expressed, and the repeated adjudications de- claring such principles are but the instances in which they have been applied. The principles themselves are still un- written, and ready, with all the adaptability of truth, to meet every new and unexpected case. Hence it is said that the rules of the common law are flexible. Legislative Action. — One of the first acts of the legisla- tures of California, Nevada and Idaho, was the passage of the following act : "The common law of England, so far as it is not repug- nant to or inconsistent with the constitution of the United States, or the constitution or laws of the state of California [Nevada, Idaho], shall be the rule of decision in all the courts of this state." In this Country, when the courts inquire into a legal proposition, they first examine the statutes, and if they are silent on the subject under investigation, they turn to the common law as found in the law reports, and are governed by the law as there laid down. COMMON NUISANCE. Common Nuisance. — One which affects the public in general, and not merely some particular person. See Nui- sance. IIJI LAW KNCYCLOPEDIA. COMMUTATION". Commutation. — The change of a punishment to which a person has been condemned, into a less severe one. This can only be granted by the executive authority, in which the pardoning power resides. See Pakdons. COMPETENCY. Competency. — ^The legal fitness or ability of a person to be heard on a trial of a cause. It also means the quality of evidence which renders it proper to be given on the trial of a cause. A Witness may be competent, and, on examination, his story may be so contradictory and improbable that he may not be believed ; on the other hand, he may be incompetent, and yet be perfectly credible, if he were examined. See Witnesses. COMPLAINT. Complaint. — The allegation made to a proper oflScer that some person has been guilty of an offense against law. See Magistrate. The Written Statement of the plaintiff's cause of action, filed in a court of justice, on the commencement of a civil suit. The defendant's reply is his answer. COMPROMISE. Compromise. — An agreement made between two or more parties as a settlement of the matters in dispute between them. Such settlements are sustained in law. See CunfES AOT) Punishments. CONCEALMENT. Concealment. — The improper suppression of any fact or CONCEALMENT — CONDONATION. 135 circumstance by one of tlie parties to a contract, from the otlier, which in justice ought to be known. The Omission, by an applicant for insurance, to state facts known to him, material to the risks proposed to be in- sured against, or omission to state facts expressly inquired about by the underwriters, to whom application for insu- rance is made, whether the same are or not material to the risk. See Instjbance. Fraudulent Concealment avoids the contract, or renders the party using it liable for the damages arising in conse- quence thereof. The concealment must be of such facts as iiie party is bound to communicate. When confidence is reposed, concealment becomes more fraudulent. CONDITION. Condition. — ^A clause in a contract, which has for its object to suspend, rescind or modify, the principal obliga- gation ; or, in case of a will, to suspend, revoke or modify, the devise or bequest. A Qualification or restriction annexed to a conveyance of lands, whereby it is provided, that in case a particular eve,nt does or does not happen, or in case the grantor or grantee does or omits to do a particular act, an estate shall com- mence, be enlarged or be defeated. In Mortgages, a condition is inserted, providing that the conveyance shall be void, upon certain conditions therein named, as the payment of the same secured. CONDONATION. Condonation. — ^The conditional forgiveness or remission by a husband or wife, of a matrimonial offense which the other has committed. Condonation is chiefly applied to the offense of adultery. As a general rule, any cohabita- tion with the guilty party, after the commissioii of the offense, and with knowledge or belief, on the part of the 136 LAW ENCTCLOPEDIA. injured party, of its commission, will amount to conclusive evidence of condonation. CONFEDERACY. Confederaoy. — ^In criminal law, confederacy is an agree- ment, between two or more persons, to do an imlawful act or an act which, though not unlawful in itself, becomes so by the confederaoy. This offense is the same as conspiracy. CONFESSION. Confession. — The voluntary declaration made by a person who has committed a crime, to another, of the agency or participation which he had in the same. "When a person is arraigned (that is, brought before a court to plead' to or an- swer the charge against him) for an offense, if he acknowl- edges himself guilty, such acknowledgment is termed a cov/ession, and is generally designated as a plea of "guilty." Judicial Confessions are such as are made in open court or before a magistrate, in the due course of judicial pro- ceedings. Extra Judicial Confessions are those made by a defend- ant elsewhere than before a magistrate, or in open court. Confessions are not admissible in evidence, when they are obtained by temporal inducement, by threats, promise or hope of favor, held out to the defendant in respect of his escape from the danger against him, by a person in author- ity. If an officer or person in authority over the prisoner informs him that it will be better for him to confess, and that it will not be as hard for him if he does — any con- fession made under such or similar inducements cannot be used against the prisoner. It is the officer's duty to inform the prisoner that any confession made will be used against him ; then a confession will be admitted as evidence. CONFESSION OF JUDGMENT. 137 CONFESSION OF JUDGMENT. CALIFOENIA, NEVADA, IDAHO, MONTANA AND AEIZONA, Judgment by Confession. — Judgment by confession may be entered 'without action, eitber for money due or to be- come due, or to secure any person against contingent lia- bility on bebalf of tbe defendant, or both, in the manner following : Statement in Writing. — ^A statement in -writing shall be made, signed by the defendant and verified by his oath, to the following effect : 1st. It shall autliorize-the entry oi judgment for a specified sum. 2d. If it be for money due or to become due, it shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due or to become due. 3d. If it he for the purpose of securing the plaintiff against a contingent liability, it shall state concisely the facts con- stituting the liability, and shall show that the sum confessed therefor does not exceed the same. Statement to be Filed. — The statement shall be filed •with the clerk of the county in which the judgment is to be entered, who shall indorse upon it and enter in the judg- ment book a judgment of such court for the amount con- fessed, with ten dollars costs. The statement and affidavit, ■with the judgment indorsed, shall thereupon become the judgment roU. Praotioe in Other States. — In some of the states where the statutes are similar to the foregoing, it is not xmcommon to give a promissory note, and confess judgment for the sum to become due thereon, provided it is not paid at maturity. Indeed, the foregoing sections of the ,law expressly permit judgment to be confessed for sums to become due, in any form or manner, without limitation. If the" Form given belovr is made use of when the note is not yet due, the holder of the note should, as soon as it is due, take it to the clerk of the court, and order judgment and execution. 138 LAW ENCYCLOPEDIA. FOEMS. Confession to Secure Note. In the district court of the judicial district, oounty of . . .., state of . vs. :\ I , defendant above-named, do hereby confess judgment in this case in favor of the said plaintiff, for the sum of and dollars and cents ; and I hereby authorize the clerk of said court to enter a judgment therein therefor against me, for said sum of money, to- gether with costs of entering the same. This confession of judgment is for a debt hereafter to become due, and owing to the said plaintiff upon the fol- lowing promissory note : $ City of ,18.. [Time when due] after date, for value received, I promise to pay to [the plaintiff], the sum of and dollars and cents, together with interest on the same at the rate of per cent, per month. [Signed] State of , I County of ) , the defendant above-named, being duly sworn, deposes and says, that the facts stated in the above confession are true of his own knowl- edge. Sworn to before me this day of 18. . , coimty clerk. Confession of Judgment for Money- due. In the district court of the judicial district and county of . . . . , State of California. } I, , defendant above-named, do hereby confess judgment inthis case in favor of said plaintiff, , for the sum of and dol- lars and . . . ., cents ; and I hereby authorize the clerk of said court to enter a judgment therein therefor against me for said sum, together with costs of entering the same, with legal interest thereon from date. This confession of judgment is for a debt now justly due and owing to the said plaintiff, arising from the following facts, to wit : Money had and re- ceived at said county, qf the said plaintiff, for the use and benefit of the said defendant, at his special instance and reo[uest, at various times, be- tween the of , 18 . . , and the of 18 . . , amounting to said sum of and dollars and cents. , th, 18.. ■ State of California, I and County of J , the defendant above-named, being duly sworn, deposes nad CONCESSION OF JUDGMENT, FOBMS OF — CONEIBMATION. 139 says, that the facts stated in the above confession are true, and further he saith not. Sworn and subscribed to before me this .... day of 18 . . Deputy County Clerk. 'Eidry of Judgment on the Foregoing Confession. In the district court of the judicial district of the State of California, in and for the county of .... vs. > Begister No th, a.d. 18.. In this action the defendant, , having filed his confession of judgment, -wherein he consents that judgment be entered in favor of the plaintiff, , for the sum of and dollars and hun- dredths ($....), on apphcation of , attorney for plaintiff, ordered that judgment be entered in accordance -with said confession. "Wherefore, by reason of the law and the premises aforesaid, it is ordered, adjudged and decreed, that plaintiff, do have and recover of and from defendant, the sum of and .... dollars ($ ), and cents, with interest thereon at the rate of per cent, per annum from the date hereof until paid, together with said plaintiff's costs and dis- bursements incurred in this proceeding, amounting to the sum of dol- lars and cents ($ ). Judgment entered , a.d. 18 . . I hereby certify the foregoing to be a true copy of the judgment entered in the above-entitled action. Attest my hand and seal of said .... district court, this .... .day of A.D. 18.. [L.S.] Clerk, By Deputy Clerk. CONFIRMATION. Confirmation. — ^When a party, acting for himself or by previously authorized agent, has attemped to enter into a contract, but has done so in an informal or invalid man- ner, he confirms the act, and thus renders it valid, in .which case it will take effect as between the parties from the original making. To make a Binding confirmation, the party must be ap- prized of his rights ; and where there has been a fraud ia the transaction, he must be aware of it, and intend to con- firm his contract. 140 LAW ENOYCLOPEDU. CONFISCATE. Confiscate. — To appropriate to 'the use of the State. CONFUSION OF GOODS. Confusion of Goods. — Such a mixture of the goods of two or more persons that they cannot be distinguished. When this takes place by the mutual consent of the owners, they have an interest in the mixture in proportion to their respective shares ; but where it is caused by the willful act of one party, without the other's consent, the one causing the mixture must separate them at his own peril, and must bear the whole loss. CONSIDERATION. Consideration. — ^The material cause which moves a con- tracting party to enter into a contract. The price, or mat- ter of inducement to a contract, whether it be the compen- sation which is paid, or the inconvenience which is suffered by the party from whom it proceeds. Eqmtable Considerations, are moral considerations. Executed Considerations, are those done or received, before the obligor made the promise. Executory Considerations, are those by which it is un- dertaken to do something at a future time. Gooi Considerations, are those of blood, natural love or affection, and the like. Motives of natural duty, generosity, affection borne toward relations, etc., come under this class. Love or affection are sufficient considerations for the con- veyance of land. Gratuitous Considerations, are those which are not founded on such a deprivation or injuiy to the promisee as to make the consideration valid at law. Illegal Considerations, are agreements to do things con- trary to law. OONSIDEEATION — CONTRACTS, 141 Impossible Considerations, are those whicli cannot be performed. Moral Considerations, are such as are sufficient to sup- port an executed contract. Valuable Considerations, are those which confer some benefit upon the party to whom the promise is made, or upon a third party at his instance or request. Consideration, is the life-blood of a contract ; and a con- tract or promise, for which there is no consideration, is void. See Gonteact. CONSIGNEE. Consignee. — One to whom a consignment is made. When the goods consigned to him are his own and he has ordered them to be sent, they are at his risk the moment the con- signment is made according to his direction. When the goods are not his own, he takes no risk, so long as the directions of the owner are obeyed. CONTEMPT. Contempt. — Courts of justice have an inherent power to punish all persons for contempt of their rules and orders, for disobedience of their process and for disturbing them in their proceedings. CONTRACTS. Contracts. — A contract is an agreement between two or more persons, upon a sufficient consideraation, to do or not to do a particular thing. To constitute a valid contract or agreement, there must be : 1st. The mutual assent of two or more persons competent to contract; an intelligent meeting of the minds of the par- ties. 2d. A Qood a/nd valid consideration: i. e., motive or indue- 142 LAW ENCYCLOPEDIA. ing cause to make the promise upon whicli the party is to be held or charged. 3d. A subject matter of the contract: i. e., a thing to be done or omitted. And the thing agreed to be done must be one not forbidden by law; or if the agreement be to omit or forbear from doing a certain thing, it must be a thing not enjoined or made a duty by law- Difibrent Kinds of. — Contracts are divided into agree- ments by specialty, made by a written instrument under seal, and agreements without specialty, made either by a written instrument without a seal or verbally without any writing. In practical effect, the only difference between a written contract without a seal and a mere verbal agreement is, that the former is more easily proved. In certain cases agreements by specialty are of higher consideration in the law than agreements without specialty; and it is therefore advisable for laymen, who are not supposed to know in what cases a seal may be dispensed with, and for what purposes it may be desirable, to add a seal whenever they draw their own contracts or act "without a legal advice. Execution of. — In this state, a seal made of a foreign substance and affixed to the docimient, is not necessary, and a stamp or impression upon the paper is a good seal. A mere scrawl with a pen made upon the paper in the form of a seal, with the initials of the party written within the out- line of the seal, has been held to be sufficient by the su- preme court of California. What Constitutes. — ^The essence of an agreement is the intelligent assent or union of the minds of the parties, and in its construction the actual intent of the parties is to be regarded. But, if the terms of the contract are clear, it will be binding even though contrary to the intention of the parties; for parol proof cannot be resorted to to modify the language of a written contract where it admits of a sensible construction. Only where there is a doubt or ambiguity in the terms of the written instrument, can parol proof or ex- trinsic circumstances be invoked to aid in its construction. Mistake in. — ^If, however, a written instrument fails to C0NTBACT8. 143 express the real contract designed to be made by the parties, in consequence of a mistake in the words or language used, courts having equity jurisdiction will generally reform the contract by making it conformable to the intention of the parties. Who may Contract. — Incapacity to contract arises, among other causes, from infancy, from marriage (on the part of the woman) and from insanity. Infants are incapable of binding themselves by contract, except for necessaries: The contract entered into by an infant may be repudiated at his option, either before his majority or within a reasonable time after it. He may also ratify and confirm it. This, however, must be done by a new promise, made after he has attained his majority. If the promise be a conditional one, the party seeking to enforce it must show the fulfill- ment of the condition. The contract of an infant may also be confirmed without an express new promise ; and where he has neither disavowed nor affirmed it by words, a ratifi- cation is sometimes inferred from his acts. The question as to precisely what act or omissions amount to a confirmation, is one which would require too much space and is in its na- ture too nice to be capable of proper discussion in a work of this kind. Exceptions. — The exception to the rule permitting an infant to repudiate contracts made by him, is the case where the promise or agreement is for necessaries. What InvzJidates. — Fraud vitiates and annuls all con- tracts which are tainted by it, and the party guilty of the fraud cannot enforce the contract ; nor can he, on the other hand, himself avoid it for his own benefit if it is sought to be enforced by the other party. Even one who executes a fraudulent bill of sale to a third person, with intent to de- fraud his creditors, cannot set the bill aside though the creditors may do so. Statutory Provisions, California, Nevada and Idaho. — 1st. Every contract for the leasing for a longer period than one year, or for the sale of any lands or any interest in lands, shall be void unless the contract, or some note or memr 144 liAW ENCYCLOPEDIA. orandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made. 2d. Every instrument required to be subscribed by any ( » person, may be subscribed by the ageat of such party, law- fully authorized. 3d. In the folhmng cases every agreement shalL be void unless such agreement or some note or memorandum there- of, expressing the consideration, be in writing and sub- scribed by the party charged therewith : 1. Every agreement that by the terms is not to be performed within one year from the making thereof . 2. Every special promise to answer for the debt, default or miscarriage, of another. 3. Every agreement, promise or undertaking, made upon consideration of marriage, except mutual promises to marry, 4th. Every contract for the sale of any goods, chattels or things in action, for the price of two hundred dollars or over, shall be void, unless : 1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therewith ; or, 2. JJnhss theluyer shall accept or receive part of such goods, or the evidences or some of them, of such things in action ; or, 3. Unless the buyer shall, at the time, pay some part of the purchase money. 5th. WJienever goods shall be sold at auction and the auctioneer shall, at the time of sale, enter in a salerbook a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale, within the meaning of the last section. 6th. Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, imless the same be acpompanied by an immediate delivery, and be followed by an actual and continued change of possession of things sold or assigned, shall be conclusive evidence of fraud as against the creditors CONTRACTS. 145 of the vendor or the creditors of the person making such assignment, or subsequent purchasers in good faith. 7th. Every instrument required by any of the foregoing provisions to be subscribed by any party, may be sub- scribed by the lawful agent of such party. 8tli. The term "lands," as used in the foregoing statutory provisions, is to be construed as coextensive in meaning ■with lands, tenants and hereditaments; and the terms "estate and interest in lands," are to be construed to em- brace every estate and interest, present and future, vested and contingent, in lands, as above defined. ' Of Certain Contracts in -which Officers are Prohibited from being Interestei* — 1st. It sliall not he lawful for any officer of state or member of legislature, alderman or mem- ber of the common council of any city in this state, or for the trustees of any city, town or village, or for the super- visor of any county, to become a contractor under any con- tract or order for supplies authorized by or for the state or any department thereof, or the legislature or either branch thereof, or by or for the aldermen or common council, board of trustees or board of county supervisors of which he is a member, or to be in any manner interested directly or indirectly as principal in any such contract. 2d. It shall not be lawful for any town, city, county or state officer, or member of the legislature, to be interested in any contract made by such officer or legislature of which he is a member or be a purchaser, or be interested in any purchase at any sale made by such officer, or a seller at any purchase made by such officer, in the discharge of his offi- cial duties. 3d. All contracis made in violation of the provisions of the first and second sections of this act may be declared void, at the instance of the city, town or village, or coxmty interested, or of any other party interested in such contract, except the officers prohibited in said sections from making or being interested in such contract. * The law on this subject is substantially the same throughout the United States. 10 146 LAW ENCTCLOPEDU. 4th. Any person violating the provisions of this act, directly or indirectly, shall forfeit his office, and shall be punished by fine not less than five hundred nor more than five thousand dollars, or by imprisonment in the county jail for not more than six months, or both. Punishment, of Certain Fraudulent Contracts. — 1st. If any debtor shall fraudulently remove his property or effects out of this state, or shall fraudulently sell, convey, or assign or conceal, his property or effects, with intent to defraud, hinder or delay, his creditors of their just rights, claims or demands, he shall, on conviction, be punished by imprisonment in the county jail for any term not exceeding one year, or by fine not exceeding five thousand do|lars, or by both fine and imprisonment. See Crimes and Punish- ments. 2d. Any person against whom an action is pending or against whom a judgment has been rendered, for the recov- ery of any personal property or effects, who shall fraudu- lently conceal, sell or dispose of, such property or effects, with intent to hinder, delay or defraud, the person bringing such action or recovering such judgment, or shall, with such intent, remove such property or effects beyond the limits of the county in which it may be at the time of the commencement of such action, or the rendering of such judgment, shall, on conviction, be punished as provided in the above section. See Chimes and Punishments. SPECIFIC contracts. Payment in Civil Cases to follow Contract. — In an action to recover the possession of personal property, judg- ment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had and damages 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 proj)erty or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.* In an action on a • In Nevada, the words, " or the value of the use thereof," are added. CONTEACTS, FORMS OF. 147 contract or obligation in writing,* for the direct payment of money, made payable in a specific kind of money or cur- rency, judgment for the plaintiff, whetber the same be by default or after verdict, may follow the contract or obliga- tion and be made payable in the kind of money or currency specified therein; f and in an action against any person for the recovery of money received by such person in a fiduciary capacity or to the use of another, judgment for the plaintiff, whether the same be by default or after verdict, may be made payable in the same kind of money or currency so received by such person. J And in all actions for the recov- ery of money, if the plaintiff shall allege in his complaint that the same was understood and agreed by the respective parties, to be paid in a specified kind of money or currency, and the same shall be admitted by the default of the defend- ant, or established by evidence to the satisfaction of the court, referee or jury, by whom the action shall be tried, the judgment for the plaintiff shall be made payable in the kind of money or currency so specified in the complaint. [Ap- plicable to California alone.] fOEMS. Oeneral Form of Contract. This contract, made the day of , one thousand eight hundred and , between , of the city of , in the county of and state of , of the first part, and of the village of , in said county and state, of the second part. Witnesseth, that the said , in consideration of the covenants on the part of the party of the second part, hereinafter contained, doth cove- nant and agree to and with the said . , , that [here insert the agreement on the part of the party of first part]: And the said , in consideration of the covenants on the part of the party of the first part, doth covenant and agree to and with the said , that [here insert the agreement on the part of the party of the second part], * It need not be in writing in Nevada. t The Nevada statute reads: " Or decision of the court or referee, may fol- low the contract or obligation, and be made payable in the kind of money oi currency therein specified or thereby agreed." t The Nevada statute reads: "Whether the same be by default or after de- cision of the court or referee, may be made payable in the same kind ol money or currency so received by such person; and in aU cases of damage the judgment shall be for gold coin. 143 LAW ENOYCLOPEDIA.. In 'witness whereof, tre have hereunto set our hand and seals the day and year first above Trntten. [l.s. ] [i-s.] Sealed and dehvered in presence of [When required this clause may be inserted:] And it is further agreed, betweei^he parties hereto, that the party that shall fail to perform this agreement on his part, will pay to the other the fall sum of dollars, as liquidated, fixed and settled, damages. Contract for the Purchase of a House and Lot. Memorandimi of an agreement, made this day of , in the year , between , printer, of the city of and , merchant, of the same city: Wituessetli, that the said agrees to sell, and the said , agrees to purchase, for the price or consideration of ... i dol- lars, the house and lot known and distinguished as number . . . ., in the .... street, in the said city of ...... The possession of the property is to be de- livered on the day of next, when .... per cent, of the purchase money is to be paid in cash, and a bond and mortgage on the premises, bear ing per cent, interest, payable in years (siloh interest payable quarterly), is to be executed for the balance of the purchase money, at which time also a deed of conveyance in fee simple, containing the usual full cov- enants and warranty, is to be delivered, executed by the said and wife, and the title made satisfactory to the said : It being understood that this agreement shall be binding upon the heirs, executors, administra- tors and assigns, of the respective parties; and also, that said premises are now insured for dollars; and in case the said house should be burnt be. fore the said first day of next, that the said shall hold the said insurance in trust for and wiU Uieu transfer the same to the said with the said deed. In witness, etc., [as in generaHorm]. Contract for the Sale of Beat Estate. Articles of agreement made and entered into, this day of , between of , of the one part, and , of of the other part, as follows: The said doth hereby agree with the said to sell to him the lot of ground [here describe it], for the sum of ; and that he, the said , shall and wiU, on the day of next, on receiving from the said the said sum, at his own cost and expense, execute a proper conveyance for-the conveying and assuring the fee simple of the said premises to the said , free from all incumbrances, which conveyance shall contain a general warranty and the usual full covenants. And the said agrees with the said that he, the said , shall and will, on the said .... day of next, and on ex- eciition of such conveyance, pay unto the said , the sum of aforesaid. And it is further agreed, between the parties aforesaid, as follows: The said shall have and retain the possession of the property, and CONTRACTS, FOEMS OP. 149 receive and be entitled to the rents and profits thereof, until the said . . . .day of next, when and upon the delivery of the conveyance, the possession is to be delivered to the said And it is understood that the stipu- lations aforesaid are to apply to and to bind the heirs, executors and admin- istrators, of the respective parties. And in case of failure, the parties bind themselves each unto the other, in the sum of which they hereby con- sent to fix and liquidate the amount of damages to bo paid by the failing party for his non-performance. In witness, etc., [as in general, form]. Contract for SuUdiruf a Souse. Memorandum. — ^That on this .... day of it is agreed between of and of , in manner following, viz: The said , for the considerations hereinafter mentioned, doth for himself, his heirs, executors and administrators, covenant with the said , his executors, administrators and assigns, that he, the said , or his as- signs, shall and will, within the space of next after the date hereof, in a good and workmanlike manner, and at his own proper charge and expense, at , well and substantially erect, build and finish, one house, or messuage, according to the draft, scheme and explanation hereunto annexed, with such stone, brick, timber and other materials, as the said or hia assigns shall find or provide for the same. In consideration whereof, the said doth for himself, his executors and administrators, covenant with the said , his executors, administrators and assigns, well and truly to pay unto the said his executors, administrators and assigns, the sum of of lawful money of , in manner following : . . . . part thereof at the beginning of said work ; another part thereof when the said work shall be half done, and tha- remaining , in full for the said work, when the same shall bo completely finished : And also that he, the said his executors, administrators or assigns, shall and will from> time to time, as the same shall be required, at his and their own proper ex- pense, find and provide stone, brick, timber and other materials, necessary for making, building and finishing, the said house. And for the performance of all and every the articles of agreement above-mentioned, the said .... and do hereby bind themselves, their executors, administra- tors and assigns, each to the other, in the penal sum of , firmly by these presettts. In witness, etc., [as in general form]. Contract respeMng a Party WdU. This agreement, made this day of in the year , between .... of the city of . . . . , merchant, of the first part, and of said city, merchant, of the second pai-t : Witnesseth, whereas, the said is the owner in fee of the lot and st re known as number , in .... stieet, in the ward of the city of , and the said the owner in fee of the lot known as number , in street aforesaid, immediately ad- joining to and on the southerly side of said lot and btore number on which lot of the said he is about to erect a brick store. And 150 LAW ENCYCLOPEDIA. whereas, it lias been agreed by and between the said parties, that the said , in erecting his store, shall make use of the gable end wall oi the said store of the said , immediately contiguous to and ad- joining the said lot of the said as a party wall, upon the terms, conditions and considerations, hereinafter mentioned, the said gable end, wall of the said , so to be used as a party wall, standing and being entirely on the said lot of the said Now, therefore, this agree- ment witnesseth : That the said , for and in consideration of the Bum of dollars to him in hand paid by the said , at or before the ensealing and deUvery of these presents, the receipt whereof is hereby acknowledged, doth, for himself, his heirs, executors, administrators and assigns, covenant, grant, promise and agree, to and with the said , his heirs, executors, administrators and assigns forever, that he, the said , his heirs and assigns, shall and may, in erecting and building the said store upon the said lot of the said freely and lawfully, but in a workmanlike manner, and without any interruption, molestation or hinder- ance of or from the said his heirs or assigns, make use of the said gable end wall of the said store of the said , immediately adjoin- ing or contiguous to the said lot of the said or such parts and so much thereof as the said , his heirs or assigns, may choose as a party wall. And further, that should the said wall, hereby made a, party wall, be at any future time or times injured or destroyed, either by decay, lapse of time, fire, accident or other cause whatever, so as to require to be either repaired or rebuilt, in whole or in part, then, and in every such case, the said and the said , by these presents, for themselves re- spectively, and their respective heirs and assigns forever, mutually cove- nant and agree, to and with each other, and their respective heirs and as- signs forever, that such reparation or rebuilding, as the case may be, shall be at the mutual, joint and equal, expense of them the said and their respective heirs and assigns forever ; as to so much and such l^arts of the said wall as shall be used by the said his heirs and as- signs, in erecting and building the said store which he is now about erecting on his said lot, and as to all coping of the said gable end, whether such cop- ing be used by the said , his heirs or assigns, in erecting and build- ing the said store or not, and as to the residue of the said wall not used by the said his heirs or assigns, in erecting and building the said store, such reparation or rebuilding of i such residue of the said wall shall be at the sole and separate expense of the said his heirs or assigns forever ; and that in every case of such reparation or rebuilding, should the same be necessary and proper, and either party, his heirs or assigns, request the other to unite in the same, and to contribute to the expense thereof, according to the true intent and meaning of this agreement, then the other party, his heirs or assigns forever, may cause such reparation or rebuilding to be made and done, and charge the other party, his heirs and assigns for- ever, with the proportion of expenses, costs and charges thereof, according to the true intent and meaning of this agreement ; and that in every case of such reparation or rebuilding, as the case may be, such repairs shall restore the said wall to the state and condition in which it now is in all respects, as nearly as may be ; and that in every case of rebuilding, such wall shall bo CONTEACTS, FOEMS OF. 151 rebuilt upon the same spot on which it now stands, and bo of the same size and the same materials, as far as they may go, and as to the deficiency, with others of the same quality and goodness, and in all respects shall be made of the same quality and goodness as the present wall. It being further in like manner mutually understood and agreed, by and between the said par- ties, that this agreement shall be perpetual, and run with the land, and bp obligatory upon the heirs and assigns of the said parties, respectively, for- ever, and in all cases and on aU occasions, shall be construed as a covenant running with the land ; but that this agreement shall not have the effect oz operation of conveying to the said , his heirs or assigns, the fee simple of the one moiety or any part of the ground or land on which tho said wall now stands, but only the right to the use and benefit of the said wall, as a party wall, forever. In witness, etc., [as in general form]. Contract for Making and Delivering Boots. This agreement, made this day of in the year ..... by and be- tween of and of : Witnesseth, that the said , in consideration of the covenants on the part of the party of the second part to be performed, doth covenant and agree, to and with the said that he will, within [here insert the time] from the date hereof, mak« and deliver to the said pairs of boots, made from , of the first quality, and of the fol- lowing sizes [here insert sizes]. And the said covenants to pay to the said dol- lars for each pair, upon the completion of the delivery of the said pairs, if the same are delivered within [insert time agreed upon] from the date hereof, as aforesaid. In witness, etc., [as in general form]. Contract for Sale of Wheat. Memorandum. — It is agreed by and between of, etc. : That he, the said in consideration of bushels of wheat, sold to him this day by the said and by him agreed to be delivered to the said free of all charges and expenses whatsoever, at, on or before, etc., next, shall and will pay or cause to be paid to the said or his assigns, within three months after such delivery, the sum of, etc. And the said , in consideration of the agreement aforesaid of the said .... , doth promise and agree, on or before, etc., aforesaid, at his proper ex- penses, to send and deliver to the said or his assigns, tho said bushels of wheat, so Bold him as aforesaid, and that he, the said .... shall and will warrant the same to be good, clean and merchantable, grain. In witness, etc., [as in general form]. Contract to BuUd a House according to a Plan Annexed. Be it remembered, that on this day of a.d. 18. ., it is agreed by and between , of and of in manner and form following, viz : 152 LAW ENCYCLOPEDIA. The said for the considerations hereinafter mentioned, doth, for himself, his executors and adruinistrators, promise and agree to and with the said his executors, administrators and assigns, that he, the said or his assigjis, shall and will, within the space of next after the date hereof, in good and workmanlike manner and accotding to the best of his ait and skill, at , weU and substantially erect, build, set up and finish, one house or messuage, according to the draft or scheme hereunto annexed, of the dimensions following, viz: etc., and to compose the same ■with such stone, brick, timber and other materials, as the said or his assigns shall find and provide for the same. In consideration -whereof, the said doth for himself, his executors and administrators, promise and agree, to and with the said , his executors, administrators and assigns, well and truly to pay or cause to be paid, unto the said or his assigns, the sum of , in manner following: that is to say, the sum of part thereof at the beginning of the said work ; the sum of more, another part thereof, wrhen the same shall be completely finished : and also that the said his executors, administrators or assigns, shall and will, at his and their own proper expense, find and providd aU the stonfe, brick, tile, timber and other materials, necessary for making and building the said house. And for the performanea of all and «very the articles of agree- ment above mentioned, the said and do hereby bind themselves, their executors, etc., each to the other, in the penal sum of , firmly by these presents. In -witness whereof, etc., [as in general form]. [Here annex plan.] ^ Contract to Change a Mortgage Security. This agreement, made the day of in the year , between the rector, wardens and vestrymen, of the church, in the city of , of the first part, and of the said city, gentleman, of the second part : AVitnesseth, that -whereas, the said parties of the first part have sold and conveyed in fee unto the said party of the second part, the .... several lots of ground in said city knovvTi as numbers , for the price or con- sideration of 5 part of which sum has been paid down on the delivery of the deeds therefor ; and, -whereas, in order to secure to the said parties of the first part the payment of the residue of said purchase money, to wit: the sum of $ , in six equal payments of S . ' each, in years, with interest thereon at the rate of percent, per annum, the said party of the second part and his -wife have executed and delivered to the said parties of the first part, several mortgages on the said premises, as collateral security for the several bonds of corresponding amounts, executed and delivered by the said party of the second part to the said parties of the fiist part ; and, whereas, also, it may at some future period become expedient or advantageous for the said party of the second part to sell or otherwise dis- pose of the said premises so by him purchased as aforesaid, free and clear from the incumbrance of the said mortgages : Now, therefore, this agree- ment witnesseth, that the said parties of the first part, for and in consider- ation of the said premises, do, for themselves, their successors and assigns. CONTRACTS, FOKMS OF. 153 forever covenant, promise and agree, to and ■with the said party of the second part, his heirs, executors, administrators and assigns, that he, the said party of the second part, shall and may at all times hereafter have and retain the right of changing the security above mentioned, by substituting, instead of any, either or all of the said mortgages, the like security on other real estate or property of at least equal value with the said mortgaged premises. And this agreement further witnesseth, that -whenever the said party of the sec- ond part, his heirs, executors, administrators or assigns, shaU furnish the said parties of the first part, then- successors or assigns, -with such other sat- isfactory security as aforesaid, the said parties of the first part, their success. ors and assigns, shall and will, upon request to them made, forthwith execute and deliver to the said party of the second part, his heirs, executors, administrators and assigns, good and sutficient releases and discharges of the said mortgages, or any of them, and of the said premises therein mentioned. In witness, etc., [as in general form]. Contract for the Sale and Purchase of Land. Articles of agreement, made and concluded this day of , a.d. 18. . , at in the state of , by and between of said , and of , in the state of : 1st. The said , in consideration of the sum of dollars to Tiiwi paid by the said (the receipt whereof is hereby acknowledged) , and in farther consideration of the promise of the said hereinafter contained, doth hereby promise and agree, to and with the said , that he will, on or before the day of next, make and deliver to the said a good and sufficient deed, with the usual covenants of warranty, release of dower, etc., of all that tract of land situats, lying and being, in the town of , in the county of , and state of , known asthe , etc., [or, " bounded and described a3 follows " : ]. 2d. In consideration whereof, the said doth hereby promise and agree, to and with the said , that he will, on such deed being ten- dered to him by the said on or before the said day of next, pay to the said the farther sum of dollars, ia addition to the payment already made, being the balance of the purchase money hereby agreed upon for the said tract of laud. And to the true and faithful performance of all the agreements herein con- tained, on the part of the said and , each of them binds himself, his heirs, executors and administrators, to the other and his heirs, executors and administrators. In witness whereof, etc., [as in general form]. Contract to be Signed by an Auctioneer, after a Sale of land at Auction, I hereby acknowledge that has been this day declared by me the highest bidder and purchaser of [describe the land], at the sum of dol- lars, [or, " at the sum of dollars cents per acre or foot "], and that ho has paid into my hands the sum of as a deposit, and in part payment of the purchase money ; and I hereby agree that the vendor Khali in all respects fulfill the conditions of sale hereto annexed. Witness my hand, at , on the day of a.d. IS.. Auctioneer. 154 LAW ENCYCLOPEDIA. Contract to be Signed by Hie Purchaser of Lands at Auction. I hereby acknowledge that I have this day purchased at public auction all that [describe the land], for the sum of dollars, [or, " for the price of dollars cents per acre or per foot "], and have paid into the hands of the auctioneer, the sum of , as a deposit, and in part payment of the said purchase money ; and I hereby agree to pay the re- maining sum of unto the vendor, at on or before the day of and in all other respepts, on my part, to fulfill the annexed conditions of sale. Witness my hand, this .... day of a.d. 18. . , Contract for the Sale an^ Delivery of Personal Property. ' This agreement, made this day of one thousand eight hun- dred and between of the city of , of the first part, and , of the said city, of the second part : Witnesseth, that the said in consideration of the covenants on the part of the said .... , doth covenant to and with the said , that he will deliver to the said , at his storehouse in aforesaid bushels of wheat, of good merchantable quality, on or before the day of next. And the. said , in consideration of the covenants on the part of the said , doth covenant and agree to and with the said , . , that he will pay to the said , at the rate of , for each bushel of wheat so delivered, immediately on the completion of the delivery thereof. In witness, etc., [as in general form]. Agreement to Sell Shares of Stock in an Incorporated Company. This agreement, made the day of, etc., between ol', etc., and , of, etc. : Witnesseth, that the said .agrees to sell and convey to the said , on or before the day of next shares of the capital stock of the company, now owned and held by the said , and standing in his name on the books of the said com- pany, and to made and execute imto the said , all assignments, transfers and conveyances, necessary to assure the same to him, his heirs and assigns. In consideration whereof, the said agrees to pay unto the said , for each and every share of such stock, the average cash market price of the same, for and during days preceding the day of aforesaid, to be determined by the sales made in the city of In witness, etc. ' Agreianenl or Subscription for Saising Money to Build a Church or other Work. We, the undersigned, do hereby severally promise and agree to pay to and , the trustees of the church and society, in the city of , the sums set opposite to our respective names, on demand [or as the terms of payment may be], for the purpose of building a church or place of worship for the said society in the city of , afore- said ; and we request the said trustees to contract for the building of such CONTEACTS, FORMS OP. 155 church or place of worship, and to build the same, and to apply the sums of money hereto subscribed in pajrment therefor. ' "Witness our hands, this day of 18.. NAMES. AMOUNT. Contract to Cultivate Zand on Shares. This agreement, made the day of, etc., between of, etc., and , of, etc. : Witnesseth, that the said agrees that he will break up, plough, properly fit and sow, with wheat, all that field belonging to the said , lying immediately of the town of aforesaid, and containing two hundred acres or thereabouts, on or be- fore the day of next ; that when the said crop, to be sown as aforesaid, shall be in fit condition, he will cut, harvest and properly thresh, clean and sack, the same, and deliver one-half of the wheat, being the produce thereof, to the said at on or before the .... day of ...... in the year 18 . . It is understood between the parties, that one-half of the seed wheat is to be found by the said ; that the said is to perform all the work and labor necessary in the premises or cause it to be done, and that the straw is to remain upon the ground and be the property of said In witness, etc. Caniceling Agreement on Contract. This agreement, made this day of , between of the first part, and and of the second part, witnes- seth: Whereas, on a.d. 18 both the said parties mutually agreed in writing, among other things, to this, namely : The party of the first part to devote his whole time and attention for years, from said .... a.d. 18 .. . to the care and management of certain real estate (in said agreement in writ- ing more particularly described), and the buildings thereon, and the business there done and transacted, and the parties of the second part to employ the party of the first pni-t as aforesaid and for the said term of years. And whereas, it is deemed desirable by all the parties hereto, that the said care, management and employment, of the party of the first part by the parties of the second part, should end and determine from this date. Now, therefore, both parties hereto assent to the said ending and determi- nation of the said care, management and employment. And the party of the first part, does hereby discharge, release and acquit, the parties of the second part, of and from all obligation and liability to him, the party of the first part, by reason of the said employment or of any salary due or to become due, by reason hereof. And the parties of the second part hereby release, acquit and discharge, the party of the first part, of and from any obligation or liability, by reason of his agreement for the care and management of the said real estate, property and business as aforesaid, or of the acts of any person hereafter employed 156 LAW ENCYCLOPEDIA.. by the parties of the second part, in the care and management thereof, dur- ing the said vinexpired term. Ani they also agree that the party of the first part may have access to the books, papers and accounts, of tho management of said real estate, property and business, kept during the management thereof by the party of the first part. In mtness whereof, etc., etc. Cordracl to Sell Stock in a. Store. This agreement, made the day of . . . , in the year 18. ., between of, etc., and of, etc. : Witnesseth, that tho said , for the consideration hereinafter specified, agrees to sell to the said , and the said agrees to buy of the said , all the stock of groceries, dry goods, hardware and goods, wares and merchandise, belonging to the said ; . , . , and now being in the store occupied by him, in the town of , together with the furniture and fixtures thereunto appertaining, and also all the barley, hams, cheese, potatoes and produce, oi every name and nature, bought or contracted for by the said and intended for sale within the said store. The stock of goods, wares and mer- chandise, is to be inventoried to tho said at the original cost, without including transportation expenses; and deduction is to be made for any depreciation in value, on account of damage, wear or tear: the furniture and fixtures are to be inventoried at their fair cash value; and if the above parties cannot agree as to such valuation, and as to such deduction as afore- said, the same shall be determined according to the appraisal of , and of aforesaid, or a majority of them, the barley, hams, cheese, potatoes and produce, are to be inventoried at their original cost. Said inventory is to be completed within days from the date hereof, and the property above specified delivered over to the said immediately thereupon. In consideration of the premises, the said agrees to pay to the said as and for the purchase money of the above-mentioned property, the sum of thousand dollars in cash. And the said , further covenants and agrees, to and with the said , that he will not, at any time hereafter, engage, directly or indirectly, or concern himself, in carrying on or conducting the business of keeping a store in said town of And it is expressly understood that the stipulations aforesaid are to apply to and to bind the heirs, executors and administrators, of the respective parties; and in case of failure, the parties bind themselves, each unto the other, in the sum of thousand dollars, as fixed and settled damages, to be paid by the failing party. In witness, etc. CONVEYANCING. Conveyanoing. — Strictly speaking, eveiy instrument un- der seal is a deed ; "but, in ordinary language, a conveyance of land is intended. CONVEYANCING. 157 A IJeed in Pes Simple, is a conveyance of the entire own- ership of the land. A Warranty Deed, is a conveyance in which the grantor agrees to be answerable for any defect whatever that there may be in the title. A Qultolaini Deed, is one whereby the grantor conveys away his interest in the land, be it great or small. A Trust Deed, is a conveyance by which the grantee takes the estate upon some trust or for some purpose, specified in the deed. These Instruments should always be sealed, subscribed by the person whose estate is conveyed, and by that person acknowledged before the proper officer. If it be Impossible to acknowledge the instrument at the time of execution, it is advisable always that it should be witnessed by two subscribing witnesses. The person to whom the conveyance is made should im- mediately have the instrument recorded in the proper office. See Eecobdeb and Eecoeding. Who can Execute. — Infants, idiots, persons of unsound mind and incompetetent persons, can only make deeds that bind themselves through legally appointed guardians. A married woman can make a deed, in certain cases. See Intants — ^Maeeied Women — Husband and Wife. Consideration for. — A deed should be founded on a suf- ficient consideration and executed by persons able to con- tract and be contracted with; the subject matter must be set forth in sufficient words to describe the agreement and bind the parties; and it should be read by or to the grantor, previous to the execution, unless the reading is expressly waived. The consideration of a deed may be either good or valuable; it must not partake of any thing immoral, ille- gal or fraudulent. Every deed or contract is void, when made for any fraudident purpose or in violation of law. See CONSIDEEATION. Description. — In drawing a deed, it is material to have a 158 LAW ENCYCLOPEDIA. proper description by metes and bounds, of the land con- veyed. When the description in a deed is perfect, and the deed properly acknowledged, it is safe to say that the deed is perfect, no matter what form is used,, so long as it is signed, sealed and properly acknowledged. Exchange or Paxtition. — ^In drawing deeds for exchange of lands or amicable partition, the true and actual consider- ation or the value thereof, should be expressed, so that in the event of eviction or failure of title of either portion, the amount of the recovery by the .losing pariy, if he is entitled to recover for his loss, may be fixed. Delivery of. — ^A deed will not take effect, so as to vest the estate or interest intended to be conveyed, except from the time of its delivery. Almost any act of the party executing a deed, importing an intention to deliver it, will be suffi- cient; or it may be delivered as an escrow, on conditions, and will take effect, on the performance of such conditions, from the time of the delivery. Must be in Writing. — "So estate or interest in lands, other than lease,' for a term not exceeding one year, nor any trust or power over or concerning lands or in any manner relat- ing thereto, can be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring, the same, or by his lawful agent thereunto authorized by writing. Trusts and Wills. — This cannot be construed to affect in any manner the power of a testator in the disposition of his real estate by a last wiU and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law. Words of Inheritance. — The term "heirs" or other words of inheritance, are not necessary to create or convey an es- tate in fee simple; and every conveyance of real estate passes all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms or be necessarily implied in the terms of the grant. CONVEYANCING. 159 Grant, Bargain and Sell.— The words "grant, bargain and sell," unless restrained by express teins contained in the conveyance, are construed to be the following express cove- nants and none other, on the part of the grantor for himself, his heirs and assigns, and may be sued on as such : 1st. Ihat previa IS to the time of the execution of such convey- ance, the grantor has not conveyed the same real estate or any right, title or interest, therein to any person other than the grantee. 2d. That such real estate is at the time of the execution of such conveyance, free from incumbrances done, made or suffered, by the grantor or any person claim- ing under him. Possession. — It is not necessary that the grantor should be in possession, but even if the land is held adversely he may sell and convey his interest therein. Conveyance in Pee Simple. — If conveyance be made in fee simple absolute, and the grantor have not the legal es- tate, but should afterward acquire the same, the legal estate subsequently acquired passes immediately to the grantee, and the deed is as valid as if such legal estate had been in the grantor at the time of the conveyance. Contracts to Sell. — Contracts for the sale of lands or any interest therein, or for leasing for over a year, are void, un- less the contract or some note or memorandum thereof, ex- pressing the consideration be in writing and subscribed by the party making the lease or sale, or by his lawful author- ized agent. Deeds of Gift. — ^Deeds of gift, where no valuable con- sideration passes, may be made; and when made under- standingly and without fraud, will be held good. A gift of personal property may be made without deed, but to avoid doubt, a writing is generally passed. To make a deed of gift complete and valid, the property must be delivered. The gift is then executed and is binding. Gifts, Causa Mortis. — Gifts, caiisa mortis, are gifts made in contemplation of death, which take effect if the death oc- curs, provided the property is not needed for the payment of the debts of the deceased. 160 LAW ENCYCLOPEDIA. When Void. — All gifts are Toid, ■wMcli are made to hinder, delay and defraud, creditors, so far as such creditors are con- cerned, oven where the gift is mado as a settlement upon the Arif or children of the donor. To Wife— In California, a deed of gift may bo mado by the husband to the wife directly, without the intervention of a third party, as trustee or otherwise. [Same in Nevada and Idaho.] See Eecobds and Eecording — Acknowledg- ments — Power of Attoeney — Husband and Wife — ^Maemed "Women. OEEGON. Conveyance, how Made. — The deed must be acknowl- edged, signed, sealed and delivered, the same as in Cali- fornia. Husband and Wife. — ^A husband and wife may, by joint deed, convey the real estate of the wife, in like manner as she might do by her separate deed, if she were unmarried; but the wife shall not be bound by any covenant contained in such joint deed. Effect of Quitclaim. — A deed of quitclaim and release, of the form in common use, shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale. Words cf Inheritance and Construction of Words. — [The same as in California.] Covenants not Implied. — ^No covenants shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not. Mortgage not to imply Covenant to pay Money. — No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured ; and where there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage. CONVEYANCING, FORMS OP, 161 FOEMS. Grant —Form prescribed by the Oal. Code. " I, A B, grant to D nil thnt renl yiropertv situated in [insert name of county] County, State of California, bounded [or deseribedj as follows: [here insert description, or if the land sought to be conveyed has a descrip- tive n.ime, it may be described by the name, as for instance, ' The Non-is Kanch.' " Witness my hand this [insert day] day of [insert month], 18. . "A B." [Acknowledgment before the proper ofScer.] Deed of Bargain and^ale — ilie Form generally Used. This indenture, made the day of , in the year of our Lord one thousand eight "hundred and . . . ., between , of , part. . of the first part, und of , party of the second part : Witnesseth, that the said part. . of the first part, for and in consideration of the sum of .... dollars, lawful money of the United States of America, to them in hand paid by the said party of the second part, at or before the ensealing and de- livery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, remised, released, conveyed and con- firmed, and by these presents do grant, bargain, sell, alien, remise, release, convey and confirm, unto the said party of the second part, and to his heirs and assigns forever, all that certain lot, piece or parcel, of land, etc., [descrip- tion], together ■with all and singular tho. tenements, hereditaments and ap- piurtenances, thereunto belonging or in anywise appertaining, and the rever- sion and. reversions, remainder and remainders, rents, issues and profits thereof ; and also the estate, right, title, interest, claim of homestead, prop- erty, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in or to, the above described premises, and every 4)art and parcel thereof, with tho appurtenances. To have and to hold all and singular the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof, the said part. . of the first part ha. . hereunto set their hands and seals, tho day and year first above written. [i-s.] Signed, sealed and delivered, in the presence of Form of Deed by Attorney-in-Fact. This indenture, made this .... day of , 18. ., between of, etc., party of the first part, and , of, etc., party of the second part : Witnesseth, [proceed as in foregoing forms to the conclusion, and sign it]. [L.S.] By his attorney-in-fact. [Or, conclude thus :] In witness whereof, the said party of tha first part, acting by , his attorney-in-fact, hath hereto set his hand and seal, etc., etc. 11 162 LAW ENCYCLOPEDIA. Quitclaim Deed. This indenture, made the .... day of . . . , in the, year of our Lord one thousand eight hundred and between , of of the nrst part, and , of the second part : Witnesseth, that the said party of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, to him in hand paid hy the said party of the second part, receipt of which is acknowledged, has remised, re- leased, quitclaimed, and by these presents does hereby remise, release and forever quitclaim, unto the said party of the second part, and to his heirs and assigns forever, all that certain lot [description], together with all and singular the tenements, hereditaments and appurtenances thereunto belong- ing or in anywise appertaining. To ham and to hold the same, with all and singular the appurtenances and improvements thereunto belonging, unto the said party of the second part, his heirs and assigns forever. In witness whereof, etc. Quitclaim, or Transfer of Interest in Property. Know all men, that I, of etc., etc., do hereby grant, bargain and sell [or, "sell, assign, transfer and set over," or, "sell and convey," or, "sell and quitclaim," or, "remise, release and quitclaim"], unto , of, etc., etc., all my right, title and interest, in and to aU that certain lot or parcel of land situate, lying and being, in, etc., [here insert description, and conclude:] To have and to hold the same, together with aU and singular, etc., [as in foregoing forms]. Deed of stock as may be necessary to pay the assessment and charges thereon, according to the terms of sale; if payment is made before the time fixed for sale, the party paying is only required to pay the actual cost of advertising, in addi- tion to the assessment. Highest Bidder to be the Purchaser. — The person offer- ing at such sale to pay the assessment and costs for the smallest number of shares or fraction of a share is the highest bidder, and the stock purchased must be transferred to him on the stock books of the corporation, on payment of the assessment and costs. In Default of Bidders, Corporation may Purchase. — If, at the sale of stock, no bidder offers the amount of the assessments and costs and charges due, the. same may be bid in and purchased by the coi-poration, through the secretary, president, or any director thereof, at the amount of the assessments, costs, and charges due ; and the amount of the assessments, costs, and charges must be credited as paid in full on the books of the corporation, and entry of the transfer of the stock to the corporation must be made on the books thereof. While the stock remains the prop- erty of the corporation it is not assessable, nor must any dividends be declared thereon; but all amsessments and dividends must be apportioned upon the stock held by the stockholders of the corporation. Disposition of Stock Purchased by Corporation. — All purchases of its own stock made by any corporation vest COEPOKATE STOCK, ASSESSMENTS OF. 201 the legal title to the same in the corporation; and the stock so purchased is held subject to the control of the stock- holders, -who may make such disposition of the same as they deem fit, in accordance with the by-laws of the corporation or vote of a majority of all the remaining shares. When- ever any i^ortion of the capital stock of a corporation is held by the corporation by purchase, a majority of the re- maining shares is a majority of the stock for all purposes of election or voting on any question at a stockholders' meeting. Extension of Time of Delinquent Sale. — The dates fixed in any notice of assessment or notice of delinquent sale, published according to the provisions hereof, may be ex- tended from time to time for not more than thirty days, by order of the directors, entered on the records of the corporation; but no order extending the time for the per- formance of any act specified in any notice is efiectual un- less notice of such extension or postponement is appended to and published with the notice to which the order relates. Assessment not Invalidated. — No assessment is invali- dated by a failure to make publication of the notices here- inbefore provided for, nor by the non-perfornunce of any act required in order to enforce the payment of the same; but in case of any substantial error or omission in the course of proceedings for collection, all previous proceed- ings, except the levying of the ascossment, are void, and publication must be begun anew. Recovery of Stock.— No action must be sustained to re- cover stock sold for delinquent assessments, upon the ground of irregularity in the assessment, irregularity or defect of the notice of Cile, or defect or irregularity in the sale, unless the party seeking to maintain such action first pays or tenders to the corporation, or the party holding the stock sold, the sum for which the same was sold, together with all subsequent assessments which may have been paid thereon and interest on such sums from the time they were paid; and no such action must be sustained unless the same is commenced by the filing of a complaint and tlie issuing 202 LAW ENCYCLOPEDIA. of a summons thereon within six months after such sale was made. Proof of Publication and EflTect of. — The publication of notice required by this article, may be proved by the affidavit of the printer, foreman, or principal clerk of the newspaper in which the same was published; and the affi- davit of the secretary or auctioneer is prima facie evidence of the time and place of sale, of the quantity and particular description of the stock sold, and to whom, and for what price, and of the fact of the purchase-money being paid. The affidavits must be filed in the office of the corporation, and copies of the same, certified by the secretary thereof, are prima facie evidence of the facts therein stated. Certfi- cates signed by the secretary and under the seal of the corporation, are prima facie evidence of the contents thereof. Waiver of Sale and Action to Recover Assessment. — On the day specified for declaring the stock delinquent, or at any time subsequent thereto, and before the sale of the delinquent stock, the board of directors may elect to waive further proceedings for the collection of delinquent assess- ments, or any part or portion thereof, and may elect to pro- ceed by action to recover the amount of the assessment and the costs and expenses already incurred, or any part or portion thereof. FOEMS. Certificate of the Trustees of Mining Company. This is to certify that the ttncteisigned have this day nuited themselves and formed a corporation, under the corporate name of the min- ing company of county . The company is formed for the purpose of extracting gold and other metals from all ores, in the county of in the State of by a new process discovered by Messrs , and for aoquirins, by pur- chase or otherwise, such real and personal estate as may be necessary to carry on the above-described undertaking. The amount of the capital stock of the company shall be dollars. The time of its existence shall be years. The stock shall consist of shares of dollars each. There shall be three trustees, and .... and shall be the trustees to manage the coneerns of the company for the first six mouths. The principal place of business of ths company shall be located in the city of COEPOEATIONS, FOKMS OF. 203 In witness whereof, we have hereunto set oar hands, at on this day of Petition, for Disincorporation. County court in and for the county of , state of Matter of the disincorporation of the corporate I company " the company." J To the Hon , judge of the court aforesaid. The subscrihers, being ofaoers of the coinpany aforesaid and also owners of two-tliirds of the capital stock, in behalf of the same and the stockholders thereof, respectfully represent, that on or about the day of a.d. said corporation was formed under and by virtue of an act of the legis- lature of passed of , a.d , entitled, "An act to provide for the formation of corporations for certain purposes, ' ' as will be particularly seen by reference to the certificate of corporation, on file in the office of the county clerk of the county aforesaid; that the business of said corporation was the importation and sale of in and elsewhere, and the principal place of business of said corporation and place of meeting of the trustees thereof has been ever since the city of , state aforesaid; that the business of said corporation and the consequent necessity of its continuance, has entirely ceased; that at the request of stockholders of said company, representing and owning more than two-thirds of the stock thereof, the trustees thereof called a special meeting of the stockholders by advertise- ment, in accordance with the law and by-laws of said company, to be held on the day of , a.d , at o'clock of that day, at the office of , in the city of aforesaid, which has been and is also the usual place of meeting of said trustees, to take into consideration the expediency of said disincorporation, and that at said meeting, at the time and place aforesaid, there was present and represented, more than two-thirds of the capital stock of said company, and that said stockholders resolved then and there, unanimously, that said company should be immediately dissolved and disincorporated, which said resolution was adopted by a vote of more than two-thirds of all the stockholders of said company; that other necessary preliminary steps hereto have been taken, and that all valid claims against the corporation have been discharged. Dated President. Secretary. Notice of PuUication, County court in and for the county of state of Matter of the disincorporation of the corporate I company, "the company." j Notice is hereby given, that on the day of a.d , at the eourt-room of the county court of the city of and county of in said city, at o'clock of that day, will be heard the application and 204 LAW ENCYCLOPEDU. petition of )lie officers and stockholders of corporate company, " company " (said petition being now on file in the office of the clerk of said court) . The objsct of said application and petition is to dissolve and disincorporate said company aooordinj to law. Dated , Clerk. By , Deputy. Order of Disincorporation. Comity court in and for the city of and county of state of In the matter of the disincorporation of the corporate I company, " company." j ^he jjetition of the officers and stockholders of the vjorporate company, "the company," to dissolveand disincorporate said company, coming to be heard, and due proof being made of the publication of the notice of said i^etition and of the time of hearing thereof, on motion of , . , counsel for said petitioners, it is ordered that the corporate company, known by the name of " the company," be and the same is hereby dissolved and disincorporated. day of A.D. .... , County Judge. COSTS. COSTS IN CIVIL ACTIONS, CALIFORNIA, NEVADA AND IDAHO Costs Al'o-wed, " of Course." — Costs shall be allowed of course to the plaintiff upon a judgment in his favor in the following cases : 1st. In an action for the recovery of real property 2d. In an action to recover the possession of personal property, when the value of the property amounts to three hundred dollars or over. * Such value shall be determined by the jury, court or referee, by whom the action is tried. 3d. lu an action for the recovery of money or damages, where plaintiff recovers three hundred dollars or over. * 4th. In a special proceeding in the nature of an action. 5th. "Where the action involves title or possession of real property, or the legality of a tax, import, assessment, toll or municipal fine. * In Idaho, one hundred dollars ia the value fixed. 5th is not applicable to Nevada and Idaho. COSTS. 205 1st. When a new trial is ordered. 2d. "When a judgment is modified. Other Costs and Appor^-ioninents. — In other actions than the foregoing, costs may bo allowed or not, and if allowed, may be apportioned between the parties on the samo or ad- verse sides, in the discretion of the court; but no costs shall be allowed in an action for the recovery of money or dam- ages, when the plaintiff recovers less than three hundred dollars,* nor in an action to recover the possession of per- sonal property, when the value of the property is less than three hundred dollars. When Tender is Made. — When, in an action for the re- covery of money only, the defendant alleges in his answer that before the commencement of the action he tendered to the plaintiff the fuU amount to which hfe was entitled, and thereupon deposits in court for the plaintiff the amount so tendered, and the allegation be found to be true, the plaintiff shall not recover costs, but shall pay costs to the defendant. In cases of Foreign CoTpDrafio^s and Non-resident PlaintiflE^ — When the plaintiff in an action resides out of the state or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment or in the progress of the notion, not exceeding the sum of three hundred doUars. A aew or an additional undertaking may be ordered by the court or judge, upon proof that the original undertakiag is LnsuflGicient security, and proceedings in the action stayed ■ until such new or additional undertaking be executed and filed. Affidavit to Bill of Costs and Piling of. — The party in whose favor judgment is rendered and who claims his costs, shall deliver to the clerk of the court, within two days after * In Idaho, one hondred dollais is the value fixed. 205 LAW ENCYCLOPEDIA. tlie verdict or decision of the court, a memorandum of tlio items of his costs and necessary disbursements in the action or proceeding, which memorandum shall be verified by the oath of the party or his attorney, stating that the items are correct and that the disbursements have been necessarily incurred in the action or proceeding. [In California within five days after notice of decision a copy of the bill must be served and filed.] FOBMS. lu the court, district court. [Title of case.] ueuobanda of costs. Sherifif'sFees Clerk's Fees Witness' Fees Total. SISBUBSEMENTS, County of ss. , being duly sworn, deposes and says, that he is , the attorney for the , in the above-entitled action, and as such, is better informed relative to the above costs, and disbursements than tht said That the items in the above memorandum contained, are correct, to the best of this deponent's knowledge and belief, and that the said disbursements have been necessarily incurred in the said action. Subscribed and sworn to before me, this day of a.d Clerk. COUNTY CLERK. CALIFOENIA, NEVADA, IDAHO AND SAN FRANCISCO. CALIFORNIA. Election of County Clerk. — The county clerk is chosen by the electors of the county, to serve for two years. Office, -wrhere to Keep. — He is required to keep his office at the county seat of the county, and take charge of, and safely keep or dispose of according to law, all books, papers and records, which may be filed or deposited in his office. In San Francisco, he is required to keep his office open for the transaction of business on all judicial days (Sun- day, New Tear's Day, the Fourth of July, Christmas and Thanksgiving days, Twenty-second of February and elec- COUNTt CLERK. 207 tion days, being non-judicial days), during the following hours : from nine a.m. to four p.m. Additional Duties. — In some counties, the county clerk has the additional duties of other officers, as county auditor and county recorder, and in some counties he is clerk of the board of supervisors. He is ex officio clerk of the dis- trict court and the probate court of his county, and is re- quired, either in person or by deputy, to attend each term of either of said courts held in his coimty. Duties of. — He shall issue all writs and process required to be issued from any court of which he is clerk ; he shall enter, under the direction of the court, all orders, judg- ments and decrees, proper to be entered ; and shall keep in each of said courts a docket, in which shall be entered the title of each cause, with the date of its commencement, a memorandum of every subsequent proceeding in said tause, with the date thereof, and a list of all the fees charged in the cause, and shall keep such other books of record as may be required by law or by the mles of the court. Deputies, to Appoint. — Each county clerk may appoint one or more deputies, who shall have the same power, in all respects, as their principal. The appointment shall be in writing and signed by the county clerk, and shall be filed in the office of the recorder of the cbunty. He may revoke the appointment of any deputy at will, by writing, filed in the same office. Each deputy, before entering on his duties, shall take the oath of office, which shall be indorsed on his appointment. Bond of Deputies. — The county clerk may take from each of his deputies a bond, with sureties for the faithful per- formance of his duties ; but the clerk and the sureties on his official bond shall be liable for aU the official acts of each deputy. ProseES, how Issued. — ^AU process issued by any deputy clerk shall be issued in the name of the principal. Not to Practice as Attomey-at-Law. — ^No clerk or dep- uty clerk shall be permitted to practise as attorney or coun- 203 LAW ENCYCLOPEDIA. selor-at-law in any action or proceeding in any court what- ever ; for violating the provisions of this provision he shall be deemed guilty of a misdemeanor. May tako Aoknovrledjmente. — Authority is given him as clerk to take and certify ackno-wledgments. He is also authorized to administer oaths and affirmations, and ^o cer- tify the attestations of certain officers. Various Duties. — By various statutory enactments, other duties fall uuder the province of the county clerk. He re- ceives the election returns of his county, estimates the vote, issues certificates of election, and makes report to the sec- retary of state. He is required to certify to the governor of certain vacancies in office; also, to notify the governor of applications made under the act concerning applications for pardon of criminal offenses. It is his duty to assist in the drawing of jurors, to record the bonds of public officers, that are required by law to be filed in his office, to record certificates of incorporation of religious and benevolent associations, to file with the county recorder for registry, a statement of any decree of divorce granted, or any letters testamentary or of administration issued, and to furnish certified copies of papers or records under his charge. The records of a justice of the peace of the county are de- posited with him, when a vacancy in that office occurs, and upon the filing of a transcript of judgment from a justice's court, he may be required to docket such judgment in the county court judgment docket, and issue execution thereon into any other coxmty of the state. He is also required to deliver the writ of habeas corpus to the sheriff or other min- isterial officer of the court, when the writ is directed to such officer, and to furnish a bill of items of any fees charged by him when demanded. He is entitled to charge fees as regulated by law, except in a few instances, for all services required of him ; nor can he be compelled to per- form any service until the fees fixed by law for such ser- vice have been paid or tendered to him. For the collec- tion of any fees due him for services rendered, he may have execution in his own name against the party for whom the services were performed. COUNTY CLEEK. 209 OREGON. County Clerk. — The constitution provides for the elec- tion of county clerk, treasurer, sheriff, coronor and sur- veyor, who shall severally hold their offices for the term of two years, and until their successors are elected and quali- fied. Who Eligible. — A person is not eligible to either of the above-mentioned offices unless he be a citizen of the United States, an elector and a resident of the county where he is elected for the period of one year next preceding his elec- tion. Their terms of office commence on the first Monday of July next following their election ; and they must take and subscribe an oath to support the constitution, and give bonds as follows : Sheriff, ten thousand dollars, with two or more sureties who must reside in the county. The un- dertaking must be approved by the county court and filed with the county clerk, and may be substantially in the fol- lowing form : Whereas, at an election held on the .... day of . . . . , 18 was duly elected sheriff of the county of we, and . . . . , hereby undertake, that if the said shall not faithfully pay over according to law all moneys that may come into his hands, by virtue of said of&ce, and otherwise well and faithfully perform the duties of such office, then we, or either of us, will pay the State of Oregon the sum of ten thousand dollars. The OfSoial undertaking of a county clerk or coroner must be given, approved, and filed, in the manner prescribed for the official undertaking of a sheriff, and must be in the same amount, except that of the coroner, which may be in the sum of three thousand dollars, and such undertaking may be in substantially the same form as a sheriff, substi- tuting the name of "coroner," or "county clerk," as the case may be, for that of sheriff. Duties. — His duties are substantially the same as in California, and particularly as follows : He may take dep- ositions, administer oaths, certify and file jury lists, deposit and draw names of jurors, appoint deputy, take proof and acknowledgments of deeds, assist at examination of assess- U 210 LAW ENCYCLOPEDIA. ment roll. He must provide books of record, and record, make and give, notice of appointment of judges of, election, make notice of election, canvass returns of election and give certificate of election ; keep record of estrays, record licenses to agents of foreign vessels, give grand jury list of licenses, issue to sheriff licenses for dance houses, record stock, mark or brand, issue marriage license, file certificate of marriage, record married woman's declaration of sepa- rate property, record organization of mining district, ap- point deputy for mining districts, record conveyancing of mining claims, give list of taxable property to supervisor, examine return of delinquent taxes and make list of and deliver the same to sheriff. He shall not act as attomeyi and may be punished by fine for neglect of duty. FOEMS. Forms of Oath. You do solemnly swear that, etc. So help you God. You do swear in the presence of the ever-living God [or, " of Almighty God"], that, etc. Form of Affirmation. You do solemnly, sincerely and truly, declare and afSrm that, etc Assent to Oath, or Affirmation. I do. Oaih of Foreman of the Grand Jury. You, as foreman-of the grand jury, shall diligently inquire into, and true presentment make, of all public offenses against the people of this state, committed or triable within this county, of which you shall have or can obtain legal evidence. You shall present no person through malice, ha- tred or ill-will, nor leave any unpresented through fear, favor or affection, or for any reward or the promise or hope thereof, but in all your present- ments you shall present the truth, the whole truth and nothing but the truth, according to the best of your skill and understanding. So help you God. Oaih of the other Grand Jurors. The same oath which your foreman has now taken before you on his part, you and each of you shall weU and truly observe on your part. So help yon God. Oaih, as to Excuse of Juror. That you will well and truly answer the questions put to you concerning your excuse to serve as a grand [or " trial," as may be] juror. So help you God. COUNTY CLEKE, FORMS OP. 211 Oath of TViers, on CliaUenge to Juror for Actual Sias. That you will truly inquire whether or not the several persons challenged, or who may be challenged, ais trial jurors in this issue joined, between , plaintiff, and , defendant [or, " between the people, " etc.], and in respect to whom the challenges shall be given to you in charge, are biased against the challenging partj', and decide the same truly according to the evidence. So help you God. Finding of the TViers. We find [or, "the majority of the triers find" ] the challenge true [or, "not true"], Oafh as to Competency of Juror. That you will well and truly answer such questions as may be put to you concerning your competency to serve as a trial juror in this issue pending between , plaintiff [or, " the people of the state of California, com- plainants "], and , defendant. So help you God. Oath of Impaneled Jury. Ton and each of you, do solemnly swear, that you will well and truly try this matter at issue, wherein is plaintiff [or, " the people of, etc., as above, are complainants "], and is defendant, and a true verdict render therein according to the evidence. So help you God. Oath of Interpreter. That you will well and truly interpret between the court, the jury, the counsel and the witness [or, " the witnesses "], in this cause, wherein is plaintiff and is defendant. So help you God. Another Form. That you will well and truly interpret from French into English and from English into French, the testimony to be given by this witness [or, " the wit- nesses "], in this issue pending between , plaintiff and defendant. So help you God. Oath on Voir Dire. Tou do solemnly swear that you will true answers make to such questions as may be put to you touching your interest in the event of this cause between .... ..-.., plaintiff, [or, " the people of the state of California, com- plainants "], and , defendant. So help you God. Oath of a Witness. That the evidence you shall give in this issue pending between plaintiff [or, "complainants "], and , defendant, shall be the truth, (he whole truth and nothing but the truth. So help you God. 212 LAW ENCYCLOPEDIA. Oath of Parti/ or Interested Witness, to admit Evidence of the Contents of a Paper not Produced. That you ■vdll true answers make to such questions as shall be put to you touching the power or control you have over any paper [or, "the loss or destruction of any paper "] which would be proper evidence in this cause. So help you God. Of a Party or Interested Witness, preliminary to Proving the SandwrHing of a Subscribing Witness. That you will trueanswers make to such questions as shall be put to you touching your [or, " the plaintiff's, " or " defendant's "] ability to procure the attendance of , a subscribing witness to this paper [or, the paper in question]. So help you God. Of Officer, on Retiring with a Jury or Jurors on Leave. That you will retire with such jurors as will have leave of absence from this court. Youwill not speak to them yourself in relation to this trial nor suffer any person to speak to them; and you wiU return with them without delay. So help you God. (fpon a Plea of a Former Conviction or Acquittal of the Same Offense.' We find for the people [or "for the defendant"]. Special Verdict, where Defendant is under fourteen years of age, rendered in San Francisco, under tlie Act in relation to the Industrial School. We find that the defendant is under the age of fourteen years, and that he has committed an act which, if committed by a person of responsible age, would warrant a conviction of the offense alleged in the indictment. Special Verdicts in Probate Matters — Jury Trial. In answer to the question, is the person styhng herself in the opposition to the issuance of letters of administration, the surviving wife of , deceased ? We say, yes. We find that the said promissory note was not made and executed by the intestate, , in his lifetime and deUvered to the said , for a valuable consideration, and that said promissory note is not a valid claim against the said estate. In Action for Damages, We find for defendant, [or, " for plaintiff," damages dollars; or, "for plaintiff against defendant," , damages dollars, and verdict for the defendant ], [or, if it be a special verdict, insert the same at length]. * A special verdict need not be in any particular form — it must intelligibly present tbe facts found by the jury. It must be reduced to writing by the jury or in their presence entered upon the minutes of the court, read to the jury and agreed to by them before they are diachari;ed. COUNTY CLEKK, FORMS OP. 213 Verdict, with Assessntenl of Value of Personal Propertrj. We find, [as in the preceding forms and tlien odd :] and the jury assess the value of the said [mention the property in question] at dollars. [If necessary add :] and they further assess the damages of the said defend- ant by occasion of the delivery and detention of the said property, at . ... dollars. Verdict where Personal Property is in Question. We find the title of the horse in question to be in the plaintiff, and assess the value thereof at one hundred dollars. In Cases of Lanacy, Etc We find that is a lunatic, of unsound mind and incapable of managing or conducting hisafiairs [or, "that was of unsound mind"] at the time of the execution of the will [or, " deed"] in question to wit: on the day of IS . . , and incompetent to execute the same ; [or that was of unsound mind and incompetent to contract matrimony, at the time of solemnization of the marriage to to wit : on the .... day of...., 18..]. In Action for Recovery of Ileal Property. We find the title of the land in question to be in the plaintiff [or, " defend- ant " ; if there is a claim for the mesne profits add :] and assess the damages for withholding the said premises, against the defendant, at dollars and costs. lorm of Foiling the Jury. [Begin with the first name on the panel, as in criminal actions] , you say you find [as the verdict may be: after the answer is given then call at the next juror] , is that your verdict ? [Proceed in this manner through the list, and when all have answered, say:] Then, gentlemen of the jury, hearken to your verdict, as the court has recorded it. You say you find [as the verdict may be], and so you say all. * Erdry of Default. Clerk's office of the district court of the judicial district, ss. In this action, the defendants and , having been regularly served with process, as appears by the papers on file herein, and having failed to appear and answer the complaint of the plaintiff on file herein, and the legal delay for answering having expired, the defaults of the said defendants and in the premises, are hereby entered according to law. Attest my hand and seal of said court this .... day of , a.d. 18 . . [L-s-i Clerk. Deputy Clerk. 214 LAW HUCXCLOfEDU. Form ef Docketing Judgment Name ofjudg- meut debtor. Name ofjudg- 'ment creditor Judgment. Time of entry. Where entered in judgment book. Appeal when taken. apjpellate court. Satisfaction of judg- ment enter- ed. CD. A.B. Dam's.,$555 00 Josts,....39 75 18... May.. Fol. 288. 18... June . 18 .. July .. Judgment af- firmed, with 5 percent.dam- ages; costs on appeal taxed. Satisfied in full, Aug. .th, 18... S'or CfHifiying and Transmitting Indictment to the District. City and county of ss. I, , county clerk of said city and county, and ex officio clerk of the county court thereof, do hereby certify, that on motion of esq., district attorney of said county, made in open court in said county court, on the day of , 18. . , it was ordered by said court, that the indictment found against , the within-named defendant, and filed in said court on the day of 18.., charging him with the crime of , be certified and transmitted to the district court of the judicial district of the state of , in and for the county of , for trial. And in pursuance of the said order, I do hereby certify the within to be the original indictment so found and filed, as aforesaid in said county court, on the day of , 18 . . , and do hereby transmit the same to said district court for trial. Witness my hand and the seal of said county court, this day of 18.. Clerk. By Deputy. You are hereby commanded, forthwith, to attach the body of and bring him before the comity court of said county, to answer, etc., [as may be]. Witness, hon ., county judge of the- county of this dayof .....18.. Clerk By , Deputy Clerk. Bench Warrant on a Presentment. State of I county of f The people of the state of , to any sheriff, constable, marshal or policeman, in this state. A presentment having been made, on the day of IS.., to the court of of the county of charging COUNTY CLEEK, FOBMS OP. 215 mth the crime of [designating it generally] : TTou are therefore commanded forthwith to arrest the above-named and take him before a magistrate of this county, or in case of his absence or inability to act, before the nearest or most accessible magistrate in this county. Given under my hand, with the seal of said court affixed, this day of ,A.D. 18... By order of the court. Clerk. Bench Warrant on an Indictment. State of , 1 gg county of ( The people of the state of to any sheriff, constable or policeman, in this state: An indictment having been filed, on the day of . . . , a.d. 18 . . , in the county court of the county of , charging with the crime of [designating it generally]. You are therefore commanded, forthwith, to arrest the above-named , and bring . . . before that court to answer the indictment ; or if the court have adjourned for the term, that you deliver into the custody of the sheriff of the county of or if require it, that you take before any magistrate in that county or in the county in which you arrested that may give bail to answer the indictment. Given under my hand, with the seal of the court affixed, this the day of A.D. 18.. By order of the court. , Clerk. [The above must be indorsed as follows] : The defendant, to be admitted to bail in the sum of dollars. , Clerk. Subpena in a Criminal Case. The people of the state of to You are commanded to appear before the county court of the city and county of state of , at the court-house of said court, in the city-hall of said city and county, on the day of , A.u. 18 . . , at ten o'clock, A.M., as a witness in a criminal action, prosecuted by the people of the state of against , on the part of the defendant. [If books, papers or documents, be required, insert a direction to the follow- ing effect in the subpena:] And you are required also to bring with you the following [describe intelligibly the books, papers or documents required]. By order of the court. Clerk. [I..S.] By , Deputy Clerk. Beturn of Sheriff on Service of Subpena in a Criminal Action. Sheriff's office, I and county of ) I hereby certify, that I served the within subpena on the within-named wit- ness , at the city and county of , on the day of , 216 IJ.W ENCYCLOPEDIA. 18. ., by Bhowing the original to said witness, personally, and informing him of the contents thereof. , Sheriff of the and county of ... . By ,18.. Deputy. Affidavit as to Norirresident Witnesses. County court of the and county of The people of the state of . against State of I and county of ) ^^' , being duly sworn, deposes and says, that he is the district attorney in and for said and county; that above entitled cause is ut issue and is set to be tried on the day of instant thereon; that is a necessary and material witness in the above cause, and resides and now is in , county, in this state; that is a necessary and material witness in above cause, and resides at or near in the county of or in this state; that each and every of said witnesses is out of the city and county of ; that the evidence of each and every of said witnesses is material on the trial of said cause on the part of the people, and that the attendance of such and every of said witnesses is material on the trial of said cause on the part of the people, and that the attendance of such and every of said witnesses at said trial, on the .... day of instant, is necessary; and further deponent says not. Subscribed and sworn to before me, this day of a.d. 18. . By County Clerk. Deputy. Order on the above Affidavit, to be Indorsed on the Subpena It satisfactorily appearing to me, upon an af&davit of district attorney for the .... and county of , that the evidence of the within- named witness is material, and his attendance necessary at the trial, and that he resides out of said and county where the trial is to take place, it is ordered that the within-named witness attend at the time and place men- tioned in the within subpeua, in obedience to the commands thereof and of this order. •Dated , ,18.. County Judge of the .... and county of Order against Defaulting Witness, Svbpenaed before the Grand Jury. County court of the and county of Term, 18. . . 18. ., as yet of said term.' The grand jury came into court, and by their foreman represented to the court that is a material witness in a proceeding before said grand COUNTY CLEKK, FOEMS OF. 217 jury, and that haTing been served with a subpena to attend before them, ha had nevertheless neglected so to attend, and the said grand jury thereupon by their foreman ask for an attachment against said And upon said application and due proof being filed of the facts stated therein and of the service of a subpena upon said .' and his failure to obey the same, it is ordered by the court that said appear before said county court, at ten o'clock, a.m. on and show cause why he should not be punished for contempt in disobeying said subpena. Jtecogmaance of Bail before Indiciment. Stateof I county of J An order having been made on the day of a.d. 18 . . , by , justice of the peace of county [or, as the case may be], that , be held to answer upon a charge of [stating briefly the nature of the offense], upon which he has been duly admitted to bail, in the sum of dollars, we, and [stating their place of residence], hereby vmder- take that the above-named , shall appear and answer the charge above-mentioned, in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the comt, and if convicted shall appear for judgment and render himself in execution thereof, or if he fail to perform either of these conditions, that wo will pay to the people of the state of California the sum of dollars [inserting the sum in which the defendant is admitted to bail], •Witness, etc. Xlecognizance of Sail after Indictment. Stateof I and county of j An indictment having been found, on the day of , a.d. 18. ., in the county court of the city and county of charging with the crime of grand larceny, and he having been duly admitted to bail in the sum of one thousand dollars, we and , residents of , hereby undertake that the above-named shall appear and answer the indictment above-mentioned, in whatever court it may be prosecuted, and shall at all limes render himself amenable to the orders and processes of the court, and if convicted shall appear for judgment, and render himself in execution thereof, or if he fail to perform either of these conditions, that we will pay to the people of the state of California the sum of one thousand dollars. State of ) and county of f We do solemnly swear that we and each of us are worth the sum of one thousand dollars, the amount specified in the above recognizance, exclusive of property exempt from execution, and that we ore householders [or, "free- holders"] and residents in said state. 218 LAW ENCYCLOPEDIA. Sworn, to before me, fliis .... day of ...., 18.. , County Judge. [Indorsed] Approved this .... day of ..... 18 Oounty Judge. Jteoognizanix on a Beccmmitment. An order. haying been made on the day of ... . a.d. 18. ., by the court [naming it], that be admitted to bail in the sum of . . . dollars, in an action pending in that court against him in behalf of the people of the state of , upon an [information, presentment, indictment or appeal, as the case may be], we , . and , of [stating tlieir places of residence], hereby undertake, that the above-named , shall appear in that or any other court in which his appearance may be lawfully required upon that [information, presentment, indictment or appeal, as the case may be], and shall at all times render liimself amenable to its orders and processes, and appear for judgment and surrender himself in execution thereof; or if he fail to perform either of these conditions, that he will pay to the people of the state of . . .... . , the sum of ...... dollars [inserting the sum in which the defendant is admitted to bail]. Witness our hand, etc. Fo7-m of Plea. ' The plea shall be entered in substantially the following form: 1st. If the defendant plead guilty, "the defendant pleads that he is guilty of the offense charged in this indictment." 2d. If he 'plead not guilty, "the defendant pleads that he is not guilty of the offense charged in this indictment." 3d. If he plead a formal acquittal or conviction, "the defendant pleads that he has ah-eady been convicted [or, "acquitted," as the case may be] of the offense charged in this indictment, by the judgment of the court of , [naming it], rendered at [naming the place], on the day of " Order for Change of Place of Trial, in County Court. County court of the county of The people of the state of .... against } Application having been made by the defendant heretofore, to wit: on the .... day of A.D. 18 . . , of the present term, in open court, and in writing verified by the oath of the defendant and proof of service of a copy of said affidavit upon the district attorney, on the day of a.d. 18 ... , being filed, and said application being made on the ground /that a fair and impartial trial cannot be had in this county, and prajing that this action may be removed to the county of for trial, which matter was taken under advisement by the court, and the same having been duly considered, and the com't being satisfied that the representation of the defendant is true, it is hereby ordered that this action be removed to the county court of state of And the said defendant being in custody, it is further ordered, that the sheriff of this county remove the said defendant to the custody of the sheriff of the county of COUNTY CliEBK, rOEMS 01". 219 Forfeit of Saili^Ojetofore indicted for grfvid larceny, and duly admitted to bail in the sum of one thousand dollars, and the said , on the . day of , a.d. 18. ., having, without sufficient excuse, neglected to appear in court for trial, although the said was thrice solemnly called to appear in court for trial, and although and the bail of said were thrice solemnly called to produce in court for trial, yet the said neglected and. refused to appear for trial, and the said bail neglected and refused to produce the said for trial : Now, therefore, it is ordered by the court that the recognizance executed by the said and be, and the same is hereby, declared forfeited; and it is further ordered that the said be arrested and committed to the custody of the sheriff of the and county of , until legally discharged therefrom. It is further ordered, that the foregoing facts and order be entered on the minutes of this cOTirt. Forfeit of Money Deposited as Bail. County court of the .... and county of term, 18. . The people of the state of ) against > Indictment for grand larceny. indicted as ) The above-named defendant , indicted by the name of , having neglected to appear in court for the purpose of pleading, when his presence was lawfully required in court, although he was called to appear in court for the purpose of pleading to the indictment therein, in a loud and audible voice at the court-room door, and iwoclamation publicly made that, unless he appear, the money, to wit : fifteen hundred dollars, deposited in lieu of bail for-that amount, would bo forfeited, and the said still neglecting to appear in court: Now, therefore, it is ordered that the foregoing facts be entered in the minutes of the court, and that the said sum of fifteen hundred dollars deposited in lieu of bail be, and the same is hereby, declared forfeited. 220 LAW ENCYCLOPEDU. And it is furtlior ordered, that the said be re-an-ested by any slierifT, constable or ijolicemau, within this state, and be committed to the ou&fody of the sheriff of the and county of and that ho be detained until legally discharged. Urdry of Judgment on Conviclion of Grand Larceny. In the county court of the and county of , State of , .... term, a.d. 18.. Present, hon county judge. The people of the state of 1 against \ Con-victed of stealing property of. The district attorney, with the defendant and his counsel, , came into court. The defendant was duly informed by the court of the indictment found against him for the crime of stealing property of , on the . . . day of 18 . . , of his arraignment and plea of " not guilty, as charged in the indictment," of his trial and the verdict of the jury, on the day of , 18 . . — " guilty, as charged in the indictment. ' ' The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him ? To which he repUes that he has none. And no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment: That, whereas, the said having been duly convicted in this court of the crime of stealing property of : It is therefore ordered, adjudged and decreed, that the said be punished by imprisonment in the state prison of the state of for the term of years. The defendant was then remanded to the custody of the sheriff of the said and county, to be by him delivered into the custody of the proper offi- cers of said state prison. Office of the county clerk of the . . . and county of I, county clerk of the and county of , and ca: o.^cio clerk of the county court thereof, do hereby certify the foregoing to be a true and correct copy of the judgment entered on the minutes of said county court of the and county of , state of , in the above-en- titled cause. Attest my hand and the seal of said county court, this .... day of , A.D.18.. Clerk. Commitmeni. In the county court of the and county of state of The people of the state of to the sheriff of the .... and county of and the warden and officers in charge of the state prison of the state of , greeting : "Whereas having been duly convicted in our county court of the and county of , of the crime of stealing property of and judgment having been pronounced against him, that he bo punished by imprisonment in the state prison of the state of for COiniTY CLEEK, POBMS 01?. 221 the term of years. All of which appearing to ua of record, and a certi- fied copy of the judgment being indorsed hereon, and made a part hereof : Now this is to command you, tho said sheriff of the and county of to take and keep and safely deliver the said into the custody of the said or other officer in charge of tho state prison of the state of at your earliest convenience. And this is to com- mand you, the said warden and other officers in charge of the state prison of the state of , to receive of and from tho said sheriff of the and county of , the said , convicted and sentenced as afore- said, and him, the said keep and imprison in tho state prison of the state of , for the term of years. And these presents shall be your authority for the same. Herein fail not. Witness : Hon county judge and judge of the said county court, at tho court-house, in the and county of , this day of A.D. 18.. Attest my hand and the seal of said court, the day and year last above written. filerk. rrial of Issue of Insanity. County court of the and county of The people of the state of ] against > This case having been formerly tried, and the defendant having been con- victed of burglary, and afterward, upon application founded upon affidavits on behalf of defendant, an issue of the insanity of defendant having been ordered to be tried by a jury, the defendant's counsel and tho district attorney being now present in court ready to try said issue, a jury is now ready to^e drawn. And thereupon the following jurors having been called and examined as to their competency and duly accepted by the parties, who agree to go to trial with said jury, the said jurors are duly impaneled and sworn, the issues herein joined well and truly to try, to wit: , etc. And thereupon the evidence is proceeded vrith, and , , , and were duly called, sworn and examined, on the part of the defendant as witnesses to establish the insanity of defendant; and was then called, sworn and examined, as a witness on the part of the people. And the evidence being closed on both sides, the case was submitted to the jury under the charge of the court ; and the jury having retired for deliberation in charge of a sworn officer, returning into court after such deliberation, say by their foreman: "We find tho defend- ant insane at the time of the committing of the burglary, and insane at the present time." And said verdict having been duly recorded by the clerk, is read to the jury, who are asked by the clerk if the same is their verdict, to which all ol said jurors duly assent 222 LAW ENCYCLOPEDIA. And thereupon it is ordered by the court upon application of : the district attorney assenting thereto, that the said defendant, so found to be insane aforesaid, be committed to the care and custody of th« said a proper and responsible person, until the further ordej of the court. Entry of Verdict on Issue of former Acquittal. County court of the and county of term, 18 . . The people of the state of | against V The district attorney being in court, and the defendant with his counsel and the JTixy, duly impaneled herein, on the inst., being all present the respective counsel for the complaina&ts and the defendant being fullj heard, the court proceeds to charge the jury, which charge is delivered in ■writing, and defendant by his counsel excepts thereto. The jiiry retire under a sworn officer, and returning into court, they by their foreman say: "We find for the people," which verdict the court orders of record, and the same being duly recorded and read to them by the clerk, and being asked if that was their verdict, aU assented. Defendant by his counsel then moved to set the above verdict aside, on the ground that it is contrary to law and evidence, which motion is overruled by the court, to which decision the defendant by his counsel then and there excepts. Defendant then enters his plea and pleads that he is not guilty, as charged in the indictment. Order Appointing an Elisor. Third district court, county of against . , sheriff, county of . It appearing to the satisfaction of this court that 8 suit has been com. menced as above entitled, and that the sheriff and the coroner of said county are parties, and are incapacitated to execute the orders and processes therein, on motion of plaintiff's attorneys, it is ordered that , a citizen of be and he is hereby appointed as an elisor to execute aU orders and process in said cause, in the same manner as the sheriff would be required to do by law if he were not a party to said suit ; and the said elisor shall give security in the sum of dollars Subpenor—CivU Cases. The people of the state of California send greeting to We command you, that all and singular business and excuses being set aside, you appear and attend before the county court of the city and county of ....... state of , at a term of said court to be held at the court- house of said court, in the city-hall of said city and county, on the day of i..D. 18. ., at o'clock a.m., then and there to testify in a certain COUNTY CLEEK, POEMS OP. 223 case now pending in said court, then and there to be tried, between plaintiff and defendant, on the part of plaintiff. And for a failure to attend you will be deemed guilty of a contempt of court and liable to pay all loss and damages sustained thereby to the party aggrieved. Witness, hon , county judge of the ; . . . and county of , at the court-house in said and county, and the seal of said court, this ....day of ,Ai). 18.. Clerk By Deputy' Clerk. Order Confirming Mortgage Sale. In the district court of the judicial district, state of , and others against }■ and county of . ].... esq., sheriff of the .... and county of ........ having filed his report of the sale of the mortgaged premises set forth and described in the final decree herein, by which it appears that said premises were duly sold, and produced the net sum of thousand and hundred and dollars and cents, which has been applied in part satisfaction of said mortgage debt, leaving the sum of thousand and dollars and cents unpaid and unsatisfied, and now due and payable by said defendant to and others: Now, on motion of said plaintiffs by their attorneys and , it is ordered that said report and all things and matters therein contained do stand ratified and confirmed. ,18.. Order for Execution fat Deficiency on Mortgage Sale. . district court, 1 against | On reading and filing report of sale herein, by which it appears that there is a deficiency due the plaintiff herein, after applying the proceeds of sale of the property described in decree herein, the sum of $ , with interest thereon at the rate of per cent, per month, from the day of 18 . . , until paid. On motion of , attorney for plaintiff, ordered that said report of sale be and the same is hereby confirmed, and the said plaint- iff , have judgment and execution against said defendant, for said sum of $ with interest thereon at the rate of per cent, per month, from said day of , 18. ., until paid. Writ of Venditioni Exponas. State of , county of The people of the state of to the sheriff of , greeting : Whereas, heretofore we issued our writ of execution to yon, directed in the words and figures following, to wit : [here copy in full the execution, omit- ting the return under which the sheriff made the sale of 18 . ] and you on the day of 18. ., made your return to the said writ, 224 LAW ENCYCLOPEDIA. by which returii it appears that you levied on the real estate deficribed as follows [here insert description thereof as in the leTyjrwhich real estate so levied on by yon under said writ remained unsold for want of buyers. Therefore, wo command you that you sell, or cause to bo sold, the real estate by you taken as aforesaid, and every part thereof, for the best jirioo that can be obtained for the same, or so much thereof as may be sufficient to satisfy the said judgment, and make return of your proceedings herein within thirty days after the receipt of this writ by you. Witness, the hon , judge of the district court of the judicial district, in and for county, and the seal of said court, this day of A.D. 18.. Clerk. Order for Writ of Assistance. State of 1 city and county of ) In the district court of the judicial district. against ] On reading and filing the affidavit Of setting forth that he was the purchaser of the premises described in the complaint herein, that ho has presented to the defendant the sheriff 's deed for said property, and demanded possession thereof, and that said has refused to deliver to him possession of said premises, and it appearing that due notice has been given of this notice to Messrs & . . . . , the attorneys of said defendant : Now, on motion of . . . . , .... and . . . . , on behalf, of said , it is ordered that a writ of assistance issue to the sheriff of . . . county, to put the said in possession of the said premises, and him in possession thereof from time to time to maintain and defend. . Writ of Assistance, In the district court of the judicial district of the state of , in and for the and county of against The people of the state of to the sheriff of the and county of send greeting : Whereas, by a certain decree or judgment of our district court of the .... judicial district, in a certain cause there pending, between plaint- iff, and defendant, made at a district court of the judicial district, held at the ..... in the .... and county of on the day of , in the year one thousand eight hundred and , in and for the and county of , before the honorable judge of the judicial district, it was, among other things therein contained, ordered, adjudged and decreed, by the said court, that the purchaser at the sale therein described should, on the production of the sheriff's deed for said premises, be forthwith put in possession of a certain piece or parcel of land COUNTY CLEEK, FORMS OP. 225 situate in the said city and county, and therein described as follows, to wit 3here insert description] : And whereas, the time for redemption having expired, and the said sheriff's deed duly executed and delivered to , who was the purchaser at said sale, yet the said has not been let into nor taken possession of the said piece of land or any part thereof, according to the tenor of the said decree ; and whereas, the said piece of land is in the tenure and occupation of said ; and whereas, by an order of said district court of the judicial district, made in the same cause on the day of , 18 . . , it was ordered that our writ of assistance should issue to you, the said sheriff, to put the said in possession of the said piece or parcel of laud, and him in possession thereof from time to time to maintain and defend. Therefore, we command you, that immediately after receiving this writ you go to and enter upon the said piece or parcel of land, and that you eject and remove therefrom all and every person or persons holding or detaining the same, or any part thereof, against the said ; and that you put and place the said or his assigns in the fuU, peaceable and quiet, possession of the said piece or parcel of land without delay ; and him, the said , in such possession thereof from time to time to maintain, keep and defend, or cause to be kept, maintained or defended, according to the tenor and true intent of the said decree and order of the said court. Witness, hon , judge of the judicial district, at the , in the and county of and the seal of said court, this . . .* . day of , A.D. 18. [1..B.] Clerk. By Deputy Clerfc Writ of Mxeauiion. State of , I and county of ...... f In the district court of the judicial district. The people of the state of to the sheriff of the and county of , greeting : Whereas, on the day of , a.d. 18. plaintiff, recovered a judgment in the district court of the judicial district, against , for the sum of dollars damages, with interest thereon at the rate of per cent, per annum till paid, together with his costs and disbursements at the date of said judgment and accruing costs, amounting to the sum of hundred and .... dollars, as appears to us of record. And whereas, the judgment roll in the action in which said judgment was entered, is filed in the clerk's office of said court, in the , in saia .... and county of , and the said judgment was docketed in said clerk's office, in said and county, on the day of 18 . . , and the sum of hundred and dollars, with interest as aforesaid, is now fat the date of this writ) actually due on said judgment. Now, you, the said sheriff, are hereby required to make the said sum of said dollars damages, with interest as aforesaid, and said sum of 15 ' 226 LAW ENCYCLOPEDIA. hundred and dollars of costs, to satisfy the said judgment, out of the personal property of the said debtor , in your county; and if suffi- cient personal property of said debtor cannot be found, then out of tbe real property in your county belonging to said , on the day of , 18. . (the day whereon said judgment was docketed your county), or at any time thereafter ; and to have those moneys before our said court, at the clerk's office of said court, at the , in the and county aforesaid, on the day of , a.d. 18 . . , to render unto the said plaintiff, in satisfaction for the damages, interest and costs aforesaid : and have you then there this writ with a return under your hand of what you have done thereunder. Witness, hon , judge of our district court of the judicial district, at the in the said and county, this day of , A.D. 18.. Attest my hand and the seal of said coxut, the day and year last above written. [l-s-] Clerk. Order for Semovcd of Cause to United States Court. In the district court of the judicial district of the state of , in and for the county of against Upon reading and filing the petition of , the defendant in the above-entitled action, and upon finding the bond and sureties offered by him, the said defendant in the premises, good and sufficient, and the same being by me, the judge of said district court, duly accepted, it is hereby ordered that no further proceedings be had in this cause, and the removal of the same to the circuit court of the United States for the district of , to be held in and for the northern district of , be and the same is hereby allowed and ordered, in accordance with the aforesaid petition and the statute of the United States in such case made and provided. Dated, , 18 . . Certificate to Transcript on Appeal to the Supreme Court. State of . . and coun' tyof....}' against |- Olerk's office of the district court of the judicial district. I, , clerk of the district court of the .... judicial district, do hereby certify, that the foregoing complaint, amended answer, judgment, set- tled statement and notice of appeal, are true and correct copies of the orig- inal papers on file in my office, and of the order of trial entered in the minutes of said court, and that the same constitute the transcript or appeal from the judgment made and entered on the day of a.d. 18 . . , in favor of said plaintiff and against said defendant. COUNTY CLERK, FORMS OF — COURTS OF JUSTICE. 227 I do further certify, that the undertaking on appeal has been duly filed according to law. In witness whereof, I have hereunto set my hand and seal of said district court of judicial district, this day of 18. . [L.S.] Clerk. By , Deputy Clerk. CerHficate of Official CJiaracter. State of J gg and county of ) I, clerk of the county court of the and county of state of , do hereby certify, that , whose genuine signa- ture is affixed to the foregoing certificate, was at the time of signing the same, and still is of the city and county of , duly authorized by law to take such acknowledgment or to administer such oath and certify the same [or, "to make such certificate "], and that full faith and credit are due to all his official acts. Witness my hand and the seal of said county court, this day of , A.D. 18.. Clerk [I..S.] By Deputy Clerk. COUETS OF JUSTICE. Courts of Justice.— The followmg are the courts of jus- tice of California : 1st. The supreme court. 2d. The district courts. 3d. The couaty courts. 4th. The probate courts. 5th. The justices' courts. 6th. The police and other inferior municipal courts. Courts of Record. — The supreme court, the several dis- trict courts, the several county courts and the several pro- bate courts, of this state, are courts of record. Public Sittings. — ^The sittings of every court of justice shall be public, except as is provided below. In Divorce Cases. — In an action for divorce, the court may, direct the trial of any issue of fact joined therein to be private; and upon such directions all persons maybe ex- 228 LAW ENCYCLOPEDIA. eluded, except the officers of the court, the parties, their ■witnesses and counsel. General PoTwers of Courts. — ^Every court has power: 1st. To preserve and enforce order in its immediate pres- ence. 2d. To enforce order in the proceedings before it or be- fore a person or persons empowered to conduct a judicial investigation under its authority; 3d. To compel obedience to its lawful judgments, orders and process, and to the lawful orders of its judge out of court, in an action or proceeding pending therein . dth. To control, in furtherance of justice, the conduct of its ministerial officers. When a Judge shall not Act. — ^A judge shall not act as such in any of the following cases : 1st. In an action or proceeding to which he is a party or in which he is interested. 2d. When he is related to either party, by consanguinity or affinity withia the third degree, computed according to the rules of the civil law, 3d. When he has been attorney or counsel for either party in the action or proceeding. But this shall not apply to the arrangement of the calendar or the regulation of the order of business, nor to the power of transferring the cause to another county. Judge not to act as Counsel. — ^A judge shall not act as attorney or counsel in a court in which he is judge, or in an action or proceeding removed therefrom to another court for review, or in an action or proceeding from which an appeal may lie to his own court. Same.^A judge of the supreme court or of the district court, shall not act as attorney or counsel in any court of this state, except in an action or proceeding to which he is a party on the record. No judge or other elective judicial officer or district court commissioner, shall have a partner acting as attorney or counsel in any court of this state. COURTS 01" JUSTICE. 229 Leave of Absence.— The legislature shall have no power to grant leave of absence to a judicial officer; and any such officer who shall willfully absent himself from the state for upwards of thirty consecutive days, shall be deemed to have forfeited his office Judicial Days. — ^The courts of justice may be held and judicial business may be transacted on any day, except on non-judicial days. Non-judicial Days. — ^No court shaU be opened, nor shall any judicial business be transacted, on Sunday, on New Tear's day, on the Fourth of July, on Christmas day, on Thanksgiving day, or on a day on which the general election or judicial election is held, except for the following pur- poses : 1st. To give, upon their request, iastructions to a jury when deliberating on their verdict. 2d. To receive a verdict or discharge a jury. 3d. For the exercise of the powers of a magistrate in a proceeding of a criminal nature. When Courts axe to be Held. — ^Every court of justice, ex- cept a justice's, police or other inferior municipal court, shall sit at the county seat of the county in which it is held. Justices' courts shall be held in their respective townships or cities, and police and other inferior mimicipal courts, in their respective cities or towns. Jurisiictioii of Supreme Court. — The supreme court shall have appellate jurisdiction in all cases in equity ; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand, exclusive of inter- est or the value of the property in controversy, amounts to three hundred doUars ; also, in all cases arising in the pro- bate courts ; and also in all criminal cases amounting to felony, on questions of law alone. The court shall also have power to issue writs of mandamus, certiorari, prohibition and' habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction. Each 230 LAW ENCYCLOPEDIA. of the justices shall have power to issue writs of habeas cor- pus to any part of the state, upon petition on behalf of any person held in actua,! custody, and may make such writs re- turnable before himself or the supreme court, or before any district court or any county court in the state, or before any judge of said courts. Revie^ws. — The supreme court shall have jurisdiction to review, upon appeal : 1st. A final judgment in any of the foregoing cases; and to review upon the appeal from such' judgment any inter- mediate order or decision involving the merits and necessa- rily affecting the judgment. 2d. An order granting or refusing a new trial ; an order granting or dissolving an injunction, and an order refus- ing to grant or dissolve an injunction; an order dissolving or refusing to dissolve an attachment ; any special order made after final judgment, t,nd such order or judgment in actions for partition as determines the rights of the respect- ive parties and directs partition or sale to be made. Ne-w Trial. — ^The supreme court may reverse, affirm or modify, the judgment or order appealed from, as to any or all of the parties, and may, if necessary or proper, direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. Jurisdiction of District Courts. — The district courts shall have original jurisdiction in all cases in equity; also, in all cases at law which involve the title or possession of real property, or the legality of any tax, impost,' assessment, toll or municipal fine, and in all other cases in which the de- mand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars ; and also in all criminal cases not o&erwise provided for. The district courts and, their judges shall have power to issue writs of haheas corpus on petition by or on behalf of any person held in actual custody in their respective districts. Jurisdiction of County Courts. — The county court shall have original civil jurisdiction ; COUKTS OF JUSTICE. 231 1st. Of vactions of forcible entry and detairer. 2d. Of proceedings in cases of insolvency. 3d. Of actions to prevent or abate a nuisance. 4tli. Of all such special cases and proceedings as are not otherwise provided for. Same. — The county court shall also have jurisdiction : 1st. To inquire, by the intervention of a grand jury, of all public offenses committed or triable in their respective counties. 2d. To try and determine aU indictments found therein, for aU public offenses, except treason, misprision of treason, murder and manslaughter. Jurisdictionof Probate Court. — The probate court shall have power to open and receive the proof of last wills and testaments, and to admit them to probate ; to grant letters testamentary, of administration and of guardianship, and to revoke the same for cause shown according to law ; to compel executors, administrators and guardians, to render an account, when required, or at the period fixed by law ; to order the sale of property of estates or belonging to mi- nors ; to order the payment of debts due by estates ; to order and regulate all partitions of property or estates of deceased persons ; to compel the attendance of witnesses ; to appoint appraisers or arbitrators ; to compel the produc- tion of title deeds, papers or other property, of an estate or of a minor; and to make such other orders as maybe neces- sary and proper in the exercise of the jurisdiction conferred upon the probate court. Jurisdiction of Justices' Courts. — These courts have ju- risdiction, within their respective townships or cities, of the following actions or proceedings : 1st. Of an action arising upon contract for the recovery of money only, if the sum claimed exclusive of interest is less than three hundred dollars. 2d. Of an action for damages for injury to the person, or for taking or detaining personal property, or for injury to 232 LAW ENCYCLOPEDU. personal property, if the damages claimed are less than three hundred dollars. 3d. Of an action for a fine, penalty or forfeiture, in a sum less than three hundred dollars, given by statute or the ordinance of an incorporated city or town. dth. Of an action on a bond or undertaking conditioned for the payment of money, in a sum less than three hundred dollars, though the penalty exceed three hundred dollars ; the judgment to be given for the sum actually due. When the payments are to be made by installments, an action may be brought for each installment as it becomes due. 5th. Of an action to recover possession of personal prop- erty, when the value of such property is less than three hiin- dred dollars. 6th. To take and enter judgment on the confession of a defendant, when the amount confessed is less than three hundred dollars, exclusive of interest. 7th. Of proceedings respecting vagrancy and .disorderly persons. Justices' courts shall have no jurisdiction in a civil action where the title or right of possession of real property shall necessarily come in question. The jurisdiction of justices' courts within an incorporated city- shall extend to the limits of such city or township in which the city is situated. Mesne and final process of jus- tices' courts may be issued to any part of the county in which they are held. These courts shall have jurisdiction of the following pub- lic offenses committed within the respective counties in which such courts are established; 1st. Petit larceny. 2d. Assault and battery not charged to have been com- mitted upon a public, officer in the discharge of his duties or with intent to kill. 3d. Breaches of the peace, riots, affrays, committing a willful injury to property, and all misdemeanors punishable 00UBT3 OF JUSTICE. 233 by fine not exceeding one thousand dollars, or'imprison- ment not exceeding one year, or by both such fine and imprisonment. There shall be no terms in justices' courts. These courts shall always be open. IDAHO. Judicial Power of Territory. — The judicial power of the territory is vested in a supreme court, district courts, probate courts and ip justices of the peace. Jurisdiction of Supreme Court. — The supreme court has appellate jurisdiction in all civil cases where the amount in dispute exceeds in value one hundred dollars, and in all criminal cases tried in district courts. Jurisdiction of District Courts. — ^The district courts have original jurisdiction in all civil cases where the amount in dispute exceeds one hundred dollars, and in all criminal cases not otherwise provided for. Their appellate jurisdic- tion extends to hearing upon appeal, on order or judgment of a probate court or justice of the peace, in cases prescribed by statute. Jurisdiction of Probate Courts. — Their jurisdiction is the same as in California — which see. In addition they have further jurisdiction, concurrent with the district courts of an action to enforce the liens of mechanics and others, and in all civil actions when the amount in controversy shall not exceed eight hundred dollars; and concurrent jurisdiction with courts of justice of the peace in all cases ; and the same rules of practice shall be observed before the probate courts as those governing the practice before justices' courts. The court and judge has power at chambers to try and determine writs of mandamus, certiorari and quo war- ranto, and to issue all writs necessary or proper to the com- plete exercise of the powers conferred upon it by law. Jurisdiction of Justices' Courts. — Justices' courts shall have jurisdiction of the following actions and proceedings : 1st. Of an action arising on contracts for the recovery of 234 LAW ENCYCLOPEDU. money only, if the sum claimed, exclusive of interest, does not exceed one hundred dollars. 2d. Of an action for damages for injury to the person, or for taking or detaining personal property, or for injuring real or personal property, if the damages claimed do not exceed one hundred dollars. 3d. Of an action for a fine, penalty or forfeiture, not ex- ceeding one hundred dollars, given by statute or the ordi- nance of an incorporated city. ■4th. Of an action upon a bond conditioned for the pay- ment of money not exceeding one hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due; when the payments are to be made by installments, an action may be brought for each install- ment as it becomes due. 5th. Of an action upon a surety, bond or undertaking, taken by them though the penalty exceed, if the amount claimed does not exceed one hundred dollars. 6th. Of an action for the foreclosure of any mortgage, or the enforcement of any lien on real or personal property, when the debt secured does not exceed, exclusive of inter- est, one hundred dollars. 7th. Of an action to recover the possession of personal property, when the value of such property does not exceed one hundred dollars. 8th. To take and enter judgment on the confession of a defendant, when the amount confessed does not exceed one hundred dollars. 9th. Of an action for a forcible or unlawful entry upon, or a forcible or unlawful detention of, lands, tenements or other possession. 10th. Of an action to determine the right of a mining claim, and for damages for injury to the same, when the damages claimed do not exceed one hundred dollars. 11th. Of proceedings respecting vagrants and disorderly persons. COUETS OF JUSTICE. 235 They have no jurisdiction where the title to real property- is in question. They also have jurisdiction in the following cases : 1st . Petit larceny. 2d. Assault and battery not charged to have been com- mitted upon a public officer in the discharge of his duties or with intent to kill. 3d. For drawing and exhibiting deadly weapons in the presence of two or more persons, in a rude and angry and threatening manner. 4th. Breaches of the peace, riots, affrays, committing a wiUful injury to property; and all misdemeanors, punish- able by fine, not exceeding five hundred dollars, or impris- onment not exceeding six months, or by both such fine and imprisonment. When Open. — Justices' courts are always open. Disqualification of Judges, and Prohibitions.— [The same as in California, which see. J Judicial Days. — [The same as in California, except Wash- ington's birth-day is a non-judicial day.] General Po-wers of Courts. — [The same as in California.] NEVADA. Courts of Justice. — ^The judicial power of the state of Nevada is vested in a supreme court, district courts and in justices of the peace. Jurisdiction of Supreme Court. — ^The supreme court has appellate jurisdiction in all cases in equity, also in all cases in law in which is involved the title or right of possession to, or the right of possession of, real estate or mining claims, or the legality of any tax, impost, assessment, toll or municipal fines, or in which the demand, exclusive of interest or the value of the property in controversy, exceeds three hundred dollars; also in all other civil cases not included in the general subdivision of law and equity, and .also on questions of law alone, in all criminal cases in which the offense charged amounts to a felony. The court also 236 LAW ENCYCLOPEDIA. has power to issue writs of mandamus, certiorari, prohibi- tion, quo tuarranto, and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate JTarisdicti,on. Jurisaiction of District Courts. — The district courts have original jurisdiction in all cases in equity; also in all cases at law, which involve the title or the right of possession to, or the possession of, real property or mining claims, or the legality of any tax, impost, 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, exceeds three hundred dollars; also in all cases relating to the estates of deceased persons and the persons and estates of minors and insane persons, and of the action of forcible entry and unlawful detainer; and also in all criminal cases not otherwise provided by law. They also have final appel- late jurisdictipn in cases arising in justices' courts, and such other inferior tribunals as may be established by law . The courts and judges also have power to issue writs of man- damus, injunction, qua warranto, certiorari and all other writs proper and necessary to the complete exercise of their jurisdiction. They also have power to issue writs of habeas cm-pus, on petition by or on behalf of any person held in actual custody in their respective districts. Jurisdiction of Justices' Courts — Justices' courts have jurisdiction in the following actions and proceedings : 1st. Of an action arising on contract for the recovery of money only, if the sum claimed, exclusive of interest, does not exceed three hundred dollars. 2d. Of an action for damages for injury to the person, or for taking or detaining personal property, or for injuring real or personal property, if the damages claimed do not exceed three hundred doUars. 3d. Of an action for a fine, penalty or forfeiture, not exceeding three hundred dollars, given by statute or the ordinance of any incorporated or unincorporated town, city or village. - COUBTS OF JUSTICE. 237 4:tli. Of an action upon a bond conditioned for tlie pay- ment of money, not exceeding three hundred dollars, though the penalty exceed that sum, the judgment to be given for the actual sum due. "When the payments are to be made by installments, an action may be brought for each install- ment as it becomes due. 5th. Of an action upon a surety bond or undertaking, though the penalty exceed, if the amount claimed does not exceed three hundred dollars. 6th. Of an action to recover the possession of personal property when the value of such property does not exceed three hundred dollars. 7th. To take and enter judgment on the confession of a defendant when the amount confessed does not exceed three hundred dollars. 8th. Of actions for the possession of lands and tenements where the relation of landlord and tenant exists. 9th. Of actions where the possession of lands and ten- ements has been unlawfully or fraudulently obtained or withheld, in which case the proceedings shall be as pre- scribed by the acts upon that subject. 10th. Of proceedings respecting vagrants and disorderly persons. 11th. Of suits for the collection of taxes when the amount of the tax sued for does not exceed three himdred dollars. The Jurisdiction conferred by this section shall not ex- tend to a civil action in which the title to mining claims or questions as to boundaries to lands are involved, or to actions to enforce mechanic's liens ; and, if questions of title to real property be involved, cases involving such questions shall be sent to the district court of the district for trial. Justices' Courts shall always be open. Disqualification of Judges and Prohibitions. — [The same as in California, which see.] Judicial Days. — [The same as in California, except Wash- ington's birthday, which is a non-judicial day.] General Powers of Courts. — [The same as in California.] 238 LAW ENCYCLOPEDIA. COVENANT. . Covenant. — An agreement between two or more persons, entered into by deed, whereby one of the parties promises the performance or non-performance of certain acts. See Agreements and Contkacts. Covenants of Warranty are agreements of assurance by the grantor of an estate that the grantee shall enjoy the same without interruption by virtue of paramount title. The form in common use is as follows (See Conveyancing) : Form of Covenawt. And I, the said , for myself, my heirs, executors and administra- tors, do covenant -with the said his heirs and assigns, that I will, and my heirs, executors and administrators, viarraiii and defend the same to the said his heirs and assigns, forever, against the lawful claims and demands of all persons [or, "of all persons claiming by, through or under, me, but against none other", or other special covenant, as the case may be]. COVERTURE. Coverture. — ^The condition or state of a married woman. During coverture the civil existence of a wife is, for many purposes, merged in that of her husband. See Husband AND Wife. CREDITOR. Creditor. — ^He who has a right to require the fulfillment of a contract or obligation. Preferred Creditors are those who, in consequence of some provision of law, are entitled to preference in the pay- ment of debts. See Executoes and Administeatoes, subdi- vision — "Payment of Debts" — as to who are preferred cred- itors. CRIMES AND PUNISHMENTS. CALIFO^EliriA, NEVADA AND IDAHO. Crime Defined. — ^A crime or public offense is an act or omission forbidden by law, and to which is annexed either of the following punishments : CEIMES AND PUNISHMENTS, 239 1st. Death. 2d. Imprisonment. 3d. Fine. 4tli. EemoTal from of&ce. 5tli. Disqualification to hold or enjoy any office of honor, trust or profit, in this state. Division of Public OflEenses. — Public offenses are divided into : 1st. Felonies. 2d. Misdemeanors. Felony. — A felony is a public offense punishable by death, or imprisonment in a state prison. Misdemeanor. — Every other public offense is a misde- meanor. liSgal Conviction. — No person can be punished for a public offense, except upon legal conviction in a court hav- ing jurisdiction thereof. Mode of Proceeding. — ^Every public offense must be prosecuted by indictment, except : 1st. When proceedings are had for the removal of civil officers of the state. 2d. Offenses arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep with the consent of congress in time of peace. 3d. Offenses tried in justices', recorders' and mayors' courts. , Criminal Action. — The proceedings by which a party charged with a public offense is accused and brought to trial and punishment, shall be known as a criminal action. Prosecutions. — A criminal action shall be prosecuted in the name of the people of the state of California [Nevada and Idaho] as a party against the party charged with the offense. 240 - LAW ENCYCLOPEDU. Defendant. — The party prosecuted in a criminal action is designated in criminal proceedings as the defendant. Rights of Defendant. — In a criminal action, the defendant is entitled : 1st. To a speedy and public trial. 2d. To be allowed counsel as in civil actions, or he may appear and defend in person or with counsel. 3d. To produce witnesses on his behalf ; and to be con- fronted with the witnesses against him in the presence of the court, except that where the charge has been prelimi- narily examined before a committing magistrate, and testi- mony there taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross- examine the witness, or wherfi the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has either in person or by counsel cross-examined or had an opportunity to cross-examine the witness; the deposition of such wit- ness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due dili- gence be found within the state. Second Prosecution. — ^No person shall be subject to a second prosecution for a public offense for which he had once been prosecuted and duly convicted or acquitted. Witness against One's Self, Etc. — No person shall be compelled, in a criminal action, to be a witness against himself, nor shall a person charged with a public offense be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. Requisites of Legal Conviction. — ^No person can be con- victed of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty or upon a judgment against him upon a demurrer to the indictment in the case. CBIMES AOT) PUNISHMENTa. 241 Pbevention of Public Offenses. See, also, Magistra.te. La-wfiil Resistance. — Lawful resistance to the commis- sion of a public offense may be made i 1st. By tlie party about to be injured. 2d. By otber parties. The Party about to be Injured. — Eesistance sufficient to prevent tbe offense may be made by the party about to be injured : 1st. To prevent an offense against his person or his family, or some member thereof. 2d. To prevent an illegal attempt by force, to take or injure property in his lawful possession. By Other Persons. — Any other person in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. Essence of Crime. — In every crime there must be a union or joint operation of act and intention or criminal negli- gence. Intent. — Intention is manifested by the circumstances connected with the perpetration of the offense and the sound mind and discretion of the accused. Sound Mind. — A person shall be considered of sound mind, who is neither an idiot nor lunatic, nor affected with insanity, and who hath arrived at the age of fourteen years, or before that age if such person knew the distinction between good and evil. Infants. — ^An infant, under the age of fourteen years, shaU be deemed incapable of knowing the distinction between good and evil, unless the contrary be clearly shown. Idiots. — An idiot shall not be found guilty or punished for any crime with which he or she may be charged. Counseling Infants, Etc. — Any person counseling, advis- ing or encouraging, an infant, under the age of fourteen years, a lunatic or idiot, to commit any offense, shall be prosecuted for such offense, when committed, as principal, 16 242 LAW ENOTOLOPEDU. and if found guilty shall suffer the same punisliment that would have been inflicted on such person counseling, advis- ing or encouraging, as aforesaid, had he or she committed the offense directly without the intervention of such idiot, lunatic or infant. Married Woman. — A married woman, acting under the threats, command or coercion, of her husband, shall not be found guilty of any crime not punishable with death; in California under like coercion she shall not be found guilty of any crime except for felonies; and in such case the hus- band shall be prosecuted as principal, and receive the pun- ishment which would have otherwise been inflicted on the wife if she had been found guilty. Drunkenness no Excuse. — Drunkenness shall not be an excuse for any crime, unless such drunkenness shall be occasioned by the fraud, contrivance or force, of some other person or persons, for the purpose of causing the perpetra- tion of an offense, in which case the person or persons so causing said drunkenness for such malignant purpose shaU be considered principal or principals, and suffer the same punishment as would have been inflicted on the person or persons committing the offense, if he, she or they, had been possessed of sound reason and discretion. Misfortune and Accident. — All acts committed by. mis- fortune or accident, shall not be deemed criminal when it satisfactorily appears that there was no evil design or inten- tion or culpable negligence. Duress by Threats or Menaces. — ^A person committing a crime not punishable with death, under threats or menaces, which sufficiently show that his or her life was in danger, or that he or she had reasonable cause to believe and did believe that his or her life was in danger, shall not be found guilty, and such threats or menaces being proved and established, the person or persons compelling by such threats or menaces the commission of the offense, shall be considered as principal or principals, and suffer the same punishment as if he or she had perpetrated the offense. crimes ahd punishments. 243 Accessories in Crime. Accessories. — An accessory, is he or she who stands by and aids, abets or assists, or who not being present aiding, abetting or assisting, hath advised and encouraged the per- petration of a crime. He or she who thus aids, abets or assists, advises or encourages, shall be deemed and con- sidered as principal and punished accordingly. Accessories after the Fact. — An accessory after the fact, is a person who after full knowledge that a crime has been committed, conceals it from the magistrate or harbors and protects the person charged with or found guilty of the crime. The punishment, if found guilty, is by imprisonment for any term not exceeding two years and fined in a sum not exceeding five thousand dollars, to be regulated by the cir- cumstances of the offence and the enormity of the crime. Witnesses. Party Injured. — The party injured and the defendant may be witnesses. [In Idaho and Nevada, when two or more persons are concerned in the commission of a crime, one may be sworn as a witness against the other. Such evi- dence, shall not be used against the party testifying. Any person may be compelled to testify.] All persons may be witnesses, except those of unsound mind, chijdren under ten years of age who appear incapable from lack of intel- lect, and those who sustain such confidential relations to- wards either of the parties as to render them privileged from testifying. [In Nevada, Indians and Chinese, are not permitted to give evidence for or against any white person; and in Idaho are also included persons having one-eighth or more of negro blood. Affirmation. — The solemn affirmation by a witness shall be sufficient, and false affirmation is perjury. Crimes against the Government and People. Crimes against Government. — Crimes against the" gov- ernment and people shall consist in treason and misprision of treason, and can be committed only by persons owing allegiance to the state. 244 LAW ENCYCLOPEDIA. Treason. — ^Treason against the state shall consist only in levying war against it, adhering to its enemies or giving them aid and comfort. Two witnesses are necessry to con- vict, and the punishment is death. Offenses against the Peksons of Individuals. Murder. — Murder is the unlawful killing of a human being, with malice aforethought, either expressed or im- plied. The unlawful killing may be effected by any of the various means by which death may be occasioned. Express Malice. — Express malice is that . deliberate in- tention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Implied Malice. — Malice shall be implied where no con- siderable provocation appears or where all the circum- stances of the killing show an abandoned and malignant heart. All murders which shall be perpetrated by means of poison, lying in wait, torture or by any other kind of willful, deliberate and premeditated, killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed mur- der in the first degree, and all other kinds of murder shall be deemed murder in the second degree. The jury in their verdict shall say whether the offense be murder in the first or second degree. Murder in the first degree is punishable by death, and in the second degree by imprisonment in the state prison not less than ten years, and which may extend to life. [In California every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life at the discretion of the jury trying the same; or, upon a plea of guilty, the court shall determine the same.] Manslaughter. — Manslaughter is the unlawful killing of a human being without malice express or implied, or with- out any mixture of deliberation. It must be voluntarily CRIMES AND PUNISHMENTS. 245 "upon a sudden heat of passion, caused by a proTOcation apparently sufficient to make the passion irresistible or involuntary in the commission of an unlawful act, or a lawful act without due caution or circumspection. Voluntary Manslaughter. — ^In cases of voluntary man- slaughter, there must be a serious and highly-provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person or an attempt by the person killed to -commit a serious personal injury on the person killing. Irresistible Passion. — The killing must be the result of that siidden, violent impulse of passion supposed to be irresistible, for if there should appear to have been an interval between the assault or provocation given sufficient for the voice of reason and humanity to be heard, the kill- ing shall be attributed to deliberate revenge, and punished as murder. Involuntary Manslaughter. — Involuntary manslaughter consists in the killing of a human being without any intent so to do. Punishment. — Every person convicted of the crime of manslaughter, shall be punished by imprisonment in the state prison for a term not exceeding ten years. Death. — In order to make the killing either murder or manslaughter, the party injured must die within a year and a day after the stroke received or cause of death admin- istered; in the computation of which the whole of the day on which the act was done shall be reckoned as the first. Justifiable Homicide — Justifiable homicide is the killing of a human being in necessary self-defense or in defense of habitation, propertyor person, against one who manifestly intends or endeavors by violence or surprise to commit a felony, or against any person or persons who manifestly in- tend or endeavor, in a violent, riotous or tumultuous, man- ner to enter tiie habitation of another for the purpose of assaulting or offering personal violence to any person dwell« ing or being therein. 246 LAW ENCYCLOPEDIA. Self-defense. — ^If a person Mil another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiv- ing great bodily harm, the killing of the other was abso- lutely necessary; and it must appear also that the person killed was the assailant, and that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. Killing by Oificer. — If an officer, in the execution of his office in a criminal case, having legal process, be resisted and assaulted, he shall be justified if he kill the assailant. If an officer or private person attempt to take a person charged with felony, and ller or they be resisted in the en- deavor to take the person accused, and to prevent the escape of the accused by reason of such resistance, he or she be killed, the officer or private person so killing shall be justi- fied : provided, such officer or person, previous to the killing, shall have used all reasonable efforts to take the accused without success, and that from all probability there was no prospect of being able td prevent injury from such resist- ance, and the consequent escape of such person. Unavoidable Necessity. — Justifiable homicide may also consist in unavoidable necessity, without any will or desire, and without any inadvertence or negligence in the party killing. An officer who puts a person to death in virtue of a judgment of a competent court must proceed according to the sentence and the law of the land. Homicide by Misadventure. — ^Excusable homicide by misadventure, is when a person is doing a lawful act, with- out any intention of killing, yet unfortunately kills another : as where a man is at work with an ax and the head flies off and kills a by-stander, or a parent is moderately correcting his child, or a master his servant or scholar, or an officer punishing a criminal. Analogous Cases. — All other instances which stand upon the same footing of reason and justice as those emimerated. shall be considered justifiable or excusable homicide. CEIMES AHD PUNISHMENTS. 247 Burden of Proof. — ^The killing being proved, tlie burden of proving circumstances in mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution shows the same. Conoealing Death of Bastard. — If any woman shall en- deavor, privately, either by herself or the procurement of others, to conceal the death of any issue of her body, male or female, which, if bom alive, would be a bastard, so that it may not come to light, whether it shall have been mur- dered or not, every such mother being convicted thereof, shall suffer imprisonment in the county jail for a term not exceeding one year : provided, however, that nothing herein contained shall be construed as to prevent such mother from being indicted and punished for the murder of such bastard child. Dueling. Fighting Duel. — If any person shall, by previous ap- pointment or agreement, fight a duel with a rifle, shot-gun, pistol, bowie-knife, dirk, small sword or other dangerous weapon, and in so doing shall kill his antagonist or any person or persons, or shall inflict such wound as that the party or parties injured shall die thereof within one year thereafter; every such offender shall be punished, upon con- viction thereof, by imprisonment in the state prison for any term not exceeding seven years, nor less than one year. Pn Idaho and Nevada the punishment is death.] Posting for not Fighting.— If any person shall post an- other, or in writing or printing shall use any reproachful or contemptuous language to or concerning another not fight- ing a duel or for not sending or accepting a challenge, he shall be imprisoned in the county jail for a term not exceed- ing six months, and fined in any sum not exceeding five hundred dollars. [In Idaho the same fine, but not more than one year's imprisonment. In Nevada the same as Cal- ifornia, except imprisonment not less than six months, nor more than one year.] Every person who fights a duel, or who sends or accepts a challenge to fight a duel, is punishable by imprisonment in 248 LAW ENCYCLOPEDIA. the state prison or in a county jail not exceeding one year, and shall in addition thereto be forever disqualified from holding any office, or from exercising the elective franchise in this state, and shall be declared so disqualified in the judgment upon conviction. [Applicable to California alone.] Fighting out of State. — Every person who leaves this state with intent to fight a duel and who fights a duel out of this state is punishable in the same manner as he would have been had such duel been fought in this state. [Ap- plicable to California alone. J Officers Neglecting to Prevent Duels. — Every judge, justice of peace, sheriff or other officer bound to preserve the public peace who has knowledge of the intention on the part of any persons to fight a duel and who does not exert his official authority to arrest the parties and prevent the duel every such officer shall be fined in a sum not ex- ceeding one thousand dollars. [Not applicable to Nevada.] Abortion. — Every person who shall administer, or cause to be administered or taken or shall take any medicinal substances, or shall use or cause to be used any instru- ments whatever, with the intention to procure abortion or miscarriage, of any woman then beiug with child, and any woman who shall knowingly cause to be used upon herself, or consent to the use of such instrument upon herself, with th& intent to procure abortion or miscarriage when with child, and shall be thereof duly convicted, shall be punished by imprisonment in the state prison for a term not less than two years, nor more than five years: provided, that no physician shall be effected by the last clause of this section, who, in the discharge of his professional duties, deems it necessary to procure abortion or miscarriage, of any woman, in order to save life ; nor shall any woman be affected by said last clause when her physician deems it necessary to have said abortion or miscarriage produced, in order to save her life; nor shall such physician or sur- geon be arrested, indicted or put on trial or convicted, by CBIMES AND PUNISHMENTS. 249 the testimony of such -woman alone. [Same in Idaho; ex- cept as to testimony of woman. In Nevada the punishment is not less than ten years, and may extend to life imprison- ment.] The provision respecting physician not applicable to California. Mayhem. — Mayhem consists in unlawfully depriving a human being of a member of his or her body, or disfiguring or rendering it useless. Punishment by imprisonment in the state prison not to exceed fourteen years. Rape. — Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator : — where she is under the age of ten years — where she is incapable, through lunacy or unsoundness of mind, of giving legal consent — where she resists; but is overcome by force or violence — where she is prevented from resisting by threats or by intoxicating, narcotic or ansesthetio substances 'ad- ministered by or with the privity of the accused — where she is at the time unconscious of the nature of the act, and this is known to the accused — where she submits under a belief, induced by artifice practiced by the accused, that the person committing the act is her husband. Punish- ment not less than five years in the state prison. [In Idaho and Nevada the age of female is under twelve years. J Assault, and Assault and Battery. — [See those heads.] Assault ■with Intent to Commit Felony. — An assault with intent to commit murder, rape, the infamous crime against nature, mayhem, robbery or grand larceny, shall subject the oflfender to imprisonment in the state prison not less than one nor more than fourteen years. False Imprisonment. — False imprisonment is an unlaw- ful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal author- ity. The punishment is by fine, not exceeding five thou- sand dollars, or imprisonment in the county jail for a term not exceeding one year. Abduction. Abduction— Kidnapping.— Kidnapping is the forcible ab- 250 LAW ENCYCLOPEDU. duction or stealing away of a man, -woman or child, from his or her own country and sending or taking him or her unto another. Every person who shall forcibly steal, take or arrest, any person in this state, and carry him or her into another country, state or county, or who shall forcibly take or arrest any person or persons whatsoever, with a design to take him or her out of this state, without having established a claim, according to the laws of the United States, or of this state, shall upon conviction be deemed guilty of kid- napping, and be punished by imprisonment in the state prison for any term not less than one nor more than ten years for each person kidnapped or attempted to be kid- napped. Abduction of Woman. — Every person who shall take any woiban unlawfully, against her will and by force, menace or duress, compel her to marry him or to marry any other person or to be defiled, and shall be thereof convicted, shall be punished by imprisonment in the state prison for a term not less than two nor more than fourteen years. [Same in Idaho and Nevada, and in addition the record of convic- tion operates as a divorce.] Abduction of Children. — Every person who shall malici- ously, forcibly or fraudulently, lead, take or carry away, or decoy or entice away, any child under the age of ten years, with intent to detain and conceal such child from its parent, guardian or other person, having the lawful charge of such child, shall upon conviction thereof be punished by im- prisonment in the state prison, not exceeding ten years or by fine not exceeding five thousand dollars, or by both such fine and imprisonment. [In California the child shall be under the age of twelve years and the penalty is not exceed- ing ten years in the state prison, or one year in the county jail and a fine not exceeding five hundred dollars.] BUEGLAEY. Burglary. — Every person who shall in the night time forcibly break and enter or without force enter (the doors CRIMES AND PUNISHMENTS. 251 and windows being open), any liouse, room, apartment or tenament, or any tent, vessel, water-craft, or railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary, and on conviction thereof, shall be punished by imprisonment in the state prison for a term not less than one nor more than ten years. [In California fifteen years.] Offenses against Pkopertt. Robbery. — Eobbery is the felonious and violent taking of money, goods or other valuable thing, from the- person of another, by force or intimidation. Punishment, not less than one year in the state prison, and which may extend to life. [Same in Idaho, except not less than five years.] Grand Larceny. — Grand larceny is stealing personal property of the value of fifty dollars or more. Punishment, not less than one nor more than ten years in the state prison. [In Idaho and Nevada fourteen years.] Petit Laiceny. — Petit larceny is stealing personal prop- erty under the value of fifty dollars. Punishment, not more than six months in the county jail, or by fine not ex- ceeding five hundred dollars, or by both such fine and im- prisonment. Receiving Stolen Goods. — To buy or receive stolen goods knowing the same to have been stolen, is punishable by imprisonment in the state prison not exceeding five years or by fine not exceeding one thousand dollars. [Same in Idaho, except the judgment may be both fine and imprison- ment.] [In California if the property consists of jewelry, silver or plated ware, or articles of personal ornament, it is presumptive evidence that such property was stolen, if pur- chased or received from a person under the ago of eighteen, unless sold by such minor at a fixed place of business car- ried on by him or his employer.] Altering Brands. — Altering brands on any animals, the property of another, with intent to steal the same, or to pre- vent identification thereof by the owner, on conviction thereof, the offender shall be punished by Imprisonment in 252 LAW ENCYCLOPEDIA. the state prison for a term not less tlian one nor more tlian five years. [Same in Idaho, except imprisonment not less than six months.] Embezzlement by Officers. — Every servant, officer or person, employed in any public department or station of this state or county in the state, or in any office of a cor- porate body, -who shall embezzle, steal or secrete, any money or goods, the property of such state, county or corporation, on conviction thereof, shall be punished in the state prison not less than one nor more than ten years. Officers Failing to Pay Over Money. — Any public offi- cer failing to pay over to the proper custodian any public moneys whatever, unless prevented by unavoidable acci- dent, on conviction thereof shall be imprisoned in the state prison not less than one nor more than ten years. Destroying Deeds. — Every person who shall fraudulently or maliciously tear, bum, efface, cut or in any other way, destroy any deed, lease, bond, will or any other writing sealed, or any bank bill, note or check, warrant or certifi- cate, for the payment of money or other thing, or other security for the payment of money or the delivery of goods, or any receipt, acquittance, release, defeasance, discharge of any debt, suit or other demand, or any transfer or assur- ance of money, stock, goods, ■ chattels or other property, or any letter of attorney or other power, or any day-book or other book of account, or any agreement or contract whatever, with intent to defraud, prejudice or injure, any person or body corporate, shall, upon conviction thereof, be punished by imprisonment in the state prison for a term not less than one year nor more than five years. Pn Idaho same, except imprisonment is not more than two years, when the sum not paid over amounts to more than one hun- dred dollars.] Removing Monuments. — Maliciously removing or alter- ing any monument erected for the purpose of designating the boundary of any tract of land, is a misdemeanor, and punishable by fine not more than one thousand dollars, or CEIMEg AND PUNISHMENTS. 253 by imprisonment in the county jail not less than one month nor more than one year. [Same in Idaho, except not more than six months' imprisonment.] Embezzlement by Clerk. — Any clerk, apprentice, serv- ant, or agent, to whom any money, or goods, or chattels or property, shall be intrusted by his master or employer, in the course of his employment, who shall withdraw himself from such master or employer, and go away with said goods, with intent to steal the same, shall be guilty of embezzle- ment, and, on conviction, shall be punished as provided by law for feloniously stealing property of the article so taken, embezzled or converted. Bailee's Conversion. — If any bailee of money, goods or property, shall convert the same to his own use, with the intent to steal the same, he shall be deemed guilty of grand or petit larceny, according to the amount of money or value of the goods, etc., so converted, in the same manner as if the original taking had been felonious, and, on conviction thereof, shall be punished accordingly. See Bailment. Lodgers Removing Furniture. — ^If any lodger shall take away, with intent- to steal, embezzle or purloin, any bed- ding, furniture, goods or chattels, which he is to use in or with his lodgings, he shall be deemed to be guilty of grand or petit larceny, according to the value of the property so taken, and, on conviction, shall be punished accordingly. FOBGEEY AND COUNTEEFEITING. Forgery. — ^To falsely make, alter, forge or counterfeit, any record or other authentic matter of a public nature, or any charter, letters patent, deed, lease, indenture, writing ob- ligatory, will, testament, codicil, annuity, bond, covenant, bank bill or note, post note, check, draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for money or property, power of attorney, and, in short, to feloniously forge anything what- ever, with intent to obtain money or property, is punish- able, on conviction, by imprisonment in the state prison for a term not less than one nor more than fourteen years. 25i LAW ENCYCLOPEDIA. Counterfeiting Coin. — Counterfeiting gold or silver coin, current in this state, gold dust or bullion, or possessing or giving in payment the same with intention to defraud, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. Possessing or Receiving Counterfeit Coin. — Having in one's possession or receiving for any other person any counterfeit gold or silver coin, current in this state, gold dust or bullion, with intent to defraud any person or body corporate, knowing the same to be counterfeit, on convic- tion, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. r Possessing or Receiving Forged Notes, Etc. — Having in one's possession or receiving forged bills or notes, with intent to utter them, knowing the same to be forged and with intent to defraud any person, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. Making or Possessing Counterfeit Dies or Plates — Mak- ing or knowingly having in one's possession any die, plates apparatus, paper, metals, machine or other thing whatever, made use of in counterfeiting the coin now current or here- after to be made current in this state, or in counterfeiting bank notes or bills, is punishable upon conviction, not less than one nor more than fourteen years, and aU such dies, plates, etc., shall be destroyed. Forging Seal of State, Etc. — Fraudulently foiling the seal of this state or of any officer of the state or counties, or counterfeiting the seal of any public officer, etc., is pun- ishablti) by imprisonment in the state prison not less than one nor more than fourteen years. Counterfeiting or Forging Rail Road Tickets, — Forging, counterfeiting or altering any ticket, check, order, coupon, receipt for fare or pass of any railroad company is punish- able by imprisonment in the state prison or county jail not exceeding one year, or by fine not exceeding one thousand dollars. Eestoring cancelled tickets, punishable by im- prisonment in county jail not exceeding six months or by CEISTES AND PUNISHMENTg. 255 fine not exceeding one thousand dollars. [Applicable to California alone. J Crimes against Public Justice. Perjury and Subornation of. — Every person having taken a lawful oath or made affirmation in any judicial proceeding or in any other matter, where by law an oath or affirmation is required, who shall swear or affirm willfully, corruptly and falsely, in a matter material to the issue or point in question, or shall suborn any other person to swear or affirm, as aforesaid, shall be deemed guilty of perjury or suborna- tion of perjury (as the case may be), and upon conviction thereof shall be imprisoned in the state prison for any term not less than one nor more than fourteen years. Beibeey op Officees. Bribery. — If any person shall, directly or indirectly, give any sums of money or other bribe, present or reward, oi any promise, contract, obligation or security, for the pay- ment or delivery of any money, present, reward or any other thing, to corruptly obtain or to procure the opinion, judgment or decree, of any judge or justice of the peace act- ing without this state, or to corruptly induce or influence any such judge or justice of the peace to be more favorable to one side than the other in any suit, action, proceeding, matter or cause depending or to be brought before any such judge or justice of the peace; or shall, directly or indi- rectly, give away any sum or sums of money, present or reward, or any promise, contract, obligation or security, for the payment or delivery of any money, present or reward or any other thing, to corruptly obtain, procure or influence, any member or officer of the legislature, or to corruptly in- cline, induce or influence, any such officer or member of the. legislature to be more favorable to one side or the other of any question, election, matter or thing, pending or to be brought before the legislature or either house thereof; or shall, directly or indirectly, give any sum or sums of money, present or reward, or any promise, contract, obligation or security, for the payment or delivery of any money, present 256 LAW ENCYCLOPEDIA. or reward or other tHng, to corruptly obtain, procure or influence, any member or officer of any legislative caucus, political convention, committee, primary election or politi- cal gathering, of any kind, held for the purpose of nomi- ating candidate or candidates for any office or offices of honor, trust or profit, in this state, or of any common council, board of supervisors or board of trustees, of any city or corporation; or to corruptly incline, induce or influ- ence, any member or officer of any such caucus, convention, committee, common council, board of supervisors or board of trustees, to be more favorable to one candidate than another candidate, before, or to be brought before, such caucus, convention, committee, common council, board of supervisors or board of trustees; or shall directly or indi- rectly give any sum or sums of money, present or reward, or any promise, contract, obligation or security, for the pay- ment or delivery of any money, present or reward or other thing, to corruptly obtain, procure, induce or influence, any member or officer of any common council of any city, or any member or officer of any board of supervisors of any county, or board of trustees of any city or corporation, to be more favorable to one side than to the other, of any question, matter or thing, pending, or to be brought be- fore such common council, board of supervisors or board of trustees, the person or persons so giving any money, bribe, present or reward, promise, contract, obligation or security, with intent and for the purpose aforesaid; and the judge, justice of the peace, member or officer of the legislature, caucus, conyention, committee, common council, board of supervisors or any board of trustees of any city or corporation, who shall accept or receive the same, shall be deemed guilty of bribery, and, on conviction thereof, shall be imprisoned in the state prison for a term not less than one year nor more than fourteen, and shall be dis- qualified from holding any office of honor, trust or profit, in this state. [Same in Idaho, except the imprisonment not more than ten years. In Nevada, same as California, except not less than one year's imprisonment.] CEIMES AKD PUNISHMENTS. 257 Same — other Ofiaoers. — ^It is the same offense to bribe, or attempt to bribe, any judge, justice of the peace, sheriff, coroner, clerk, constable, jailer, attorney-general, district or county attorney, member of the legislature or other offi- cer, ministerial or judicial, with intent to induce or influ- ence such person to appoint any person to office, or to execute any of the powers in him vested, or perform any duty of him required with partiality or favor, or to appoint any person to office. The punishment is imprisonment in the state prison not less than one year nor more than ten years, and shall be disqualified to hold any office of honor, trust or profit, in this State. See Bkibeet. Bribery of Telegraph Operator or Agent. — Payment or promise of any bribe, inducement or reward to telegraph agent, operator or employee, to disclose any private message or the contents, purport, substance or meaning thereof, or any private information received by him as sudh agent, etc., is punishable by imprisonment in the state prison not ex- ceeding five years, or in the county jail not exceeding one year, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment. [California.] Stealing, Altebing or Defacing Eecokds, Etc. Stealing or Defacing Records, Etc. — If any person what- soever, shall steal, embezzle, corrupt, alter, withdraw, falsify or avoid, any record process, or any proceeding, paper or document, whatever, belonging to any public office within this state, the person so offending and being thereof duly convicted, shall be punished by imprisonment in the state prison for a term not less than one nor more than ten years and be fined in a sum not exceeding five thousand dollars. Miscellaneous Offenses. Inhumanity to Prisoners. — ^Every sheriff who shall be guilty of wiUful inhumanity or oppression to any prisoner under his care or custody, shall be fined in any sum not exceeding two thousand dollars, and be removed from office. * Refusing to Deliver Records. — If any officer who has resigned, been removed or whose term of office has expired, 17 258 .tA-W ENCYCLOPEDIA. sliall willfully and unlawfully refuse to deliver to his succes- sor all documents or records belonging to his office, on con- viction thereof shall be imprisoned in the state prison not less than one year nor more than ten years, [hi Idaho, the imprisonment shall not exceed two years and the fine five thousand dollars.] Personating Another. — Falsely representing or personat- ing another, and in such assumed character marrying another, becoming bail, confessing judgment, making acknowledg- ments, or doing any act in a suit or proceeding to the injury of 'any person so misrepresented, is punishable by imprison- ment in the county jail not exceeding two years or by fine not exceeding five thousand dollars. [In Idaho and Nevada, the punishment is by imprisonment in the state prison not less than one nor more than two years, or by fine not exceed- ing five thousand dollars.] Personating another to Receive Money. — ^Every person who shall falsely represent or personate another, and in such assumed character shall receive any money or valuable property of any description, intended to be delivered to the person so personated shall, upon conviction, be punished in the same manner and to the same extent as for feloniously stealing the money or property so received. Resisting Officers. — If any person shall knowingly and willfully obstruct or resist any officer or person duly author- ized in serving or attempting to serve any law process or order of any court, or any legal process whatsoever, or in making or attempting to make any arrests, or shall assault or beat such officer or person, for having done or at- tempted so to do, he shall, on conviction, be fined in any sum not exceeding five thousand dollars, and imprisoned in the county jail for any term not exceeding five years : pro- vided, any officer or person whatsoever, who may or shall assault or beat any individual under color of his commis- sion or authority, without lawful necessity so to do shall, on conviction, suffer the same punishment. [In Idaho and Nevada, the punishment is by imprisonment not less than one jeaif in the territorial prison.] CRIMES AND PUNISHMENTS. 259 Rescning Convicts. — Eescuing or setting at liberty any person 'ionvicted of a crime, the punishment of which is death, is punishable by imprisonment in the state prison not less than one year nor more than fourteen years. If the person so set at liberty or rescued shall have been found guilty of a crime the punishment of which is imprisonment in the state prison, the person so offending, on conviction thereof, shall be sentenced to the same punishment that would have been inflicted on the person so set at liberty or rescued. Rescuing Persons charged v/ith Crime.— Eescuing or setting at liberty, before conviction, any person who stands charged with any capital offense or any crime punishable in the state prison, is punishable by fine not exceeding one thousand dollars and imprisonment in the county jail not exceeding two years. If the person so rescued or set at liberty stands charged with any offense not a felony, the person so rescuing or liberating shall be fined in a sum not exceeding five hundred dollars, or be imprisoned in the county jail not exceeding six months. Officers Suffering Prisoner to Escape. — Any sheriff', jailer or guard, who fraudulently or voluntarily suffers the escape of any convict in custody, shall, on conviction, be punished by imprisonment in the state prison for a term not exceeding ten years, and fined in a sum not exceeding ten thousand dollars. [In Idaho, the imprisonment is not less than one nor more than five years, and the fine not to exceed five thousand dollars.] Carrying Convicts Instruments to Aid Escape. — Carry- ing any tool or weapon to a convict, in prison, to enable such convict to escape or aiding any escape, is punishable by fine not exceeding five thousand dollars and imprisonment in the state prison not exceeding five years. Pn California, five years and five thousand dollars.] Rescue of Person Arrested on Civil Process. — If any person shall rescue another in legal custody on civil process, he shall, on conviction, be fined in any sum not exceeding one thousand dollars. [In Idaho and Nevada, the imprison- 260 LAW ENCYCLOPEDIA. ment is not less than one nor more than five years, and not more than five thousand dollars.] [Not applicable to Cal. j Suffering Escape of Prisoner before Convietion. — Vol- untarily suffering a prisoner to escape, or to go at large, before conviction, is punishable by fine not exceeding five thousand dollars and imprisonment in the county jail not exceeding five years. If the prisoner so escaping or suffered to go at large, be in custody charged with murder or other capital offense, then the punishment is by imprisonment in the state prison not less than one nor more than ten years. [In Idaho and Nevada, the fine is not less than one nor more than five thousand dollars and imprisonment not more than five years.] Officers Refusing to Receive or Arrest. — If any ojfficer shall willfully refuse to receive or arrest any person charged with a criminal offense, he shall, on conviction, be fined in any sum not exceeding five thousand dollars and imprisoned in the county jail not exceeding five years. Compounding and Compromising OflEfenses. — Every per- son having a knowledge of the commission of a public of- fense, who shall take money or any reward, upon any agree- ment to compound or conceal any offense, or to abstain from any prosecution therefor, or to withhold evidence, shall, upon conviction, be fined in any sum not exceeding five hundred dollars or imprisoned in the county jail not more than six months. This does not apply to those offenses which may lawfully be compromised by leave of the court.* [In California the penalty is greater where the offense is a felony.] If the party injured appear before the court and ac- knowledge in writing that he has received satisfaction for the injury, the court may, on the payment of costs, order * When a defendant is held to answer on a, charge of misdemeanor, for which the person injured has a remedy by a civil action, the offense may ba compromised, except when it is committed : 1st. Bv or upon any officer of justice while in the execution of the duties of his office. 2d. Biotously. 3d. With an intent to commit felony. CRIMES AND PUNISHMENTS. 261 all proceeding to be stayed upon the prosecution, and the defendant discharged. When so compromised, there can be no other prosecution for the same offense. Offenses cannot be compromised, except as above provided. See COMPKOMISE. Conspiracy. — If two or more persons conspire either to commit any offense or to cheat or defraud any person of any property, or to commit any act injurious to the public health, to public morals or to trade or commerce, they shall, on conviction, be punished by imprisonment in the county jail not more than one year or by fine not exceeding one thousand dollars or both. [In Idaho and Nevada, the im- prisonment is not more than six months.] Personating Officers. — If any person shall take upon himself to exercise or officiate in any office in the place of another, in this state, without being lawfully authorized thereto, he shall, upon conviction, be fined in auy sum not exceeding one thousand dollars. [In California not exceed- ing five hundred dollars or by imprisonment in county jail ndt exceeding six months.] ■ Embracery. — ^Embracery is an attempt to influence a juror or jurors corruptly to one side, by threats or menaces, or by promises, persuasions, entreaties, money and the like. The punishment is by fine not exceeding five thousand dollars oi by imprisonment in the state prison not exceeding five years, and also disqualifies the party from ever acting as juror. [In Idaho, the punishment is imprisonment not more than six months and fine not more than five thousand dollars.] Extortion. — If any officer of this state shall willfully or corruptly take any fee or reward to do or exercise his duty as such officer,' except such as is allowed by law; or if such officer shaU willfully or corruptly ask or demand, as a con- dition precedent to the performance of his duty as such officer, any fee or reward, except such as shall be allowed by law, upon conviction, he shall be fined in any sum not exceeding five hundred dollars. [In Idaho, the fine is not more than one thousand dollars and removal from office. Nevada same as California, except the fine is not more than one thousand dollars.] 262 LAW ENCYCLOPEDIA. Justice or Constable Pvirehasing Judgment. — ^If any justice of the peace ov constable, of the same township, shall directly or indirectly purchase any judgment or part thereof on the docket of such justice or any docket in his possession, he shall, upon conviction thereof, be imprisoned in the county jail not to exceed six months or fined not to exceed five hundred dollars, or both. Corrupt Grant of Authority. — Any officer exercising any office, who shall for any reward grant to another the right to discharge the duties of such office, on conviction shall be fined not exceeding five thousand dollars, and shall forfeit his office, and be forever disqualified from holding any office in this state. Threatening Letters. — If any person shall knowingly send or deliver any letter or writing, threatening to accuse another of any crime or misdemeanor, or to expose or publish any of his infirmities or failures, with intent to extort money, goods, chattels or other valuable things, or threatening to maim, wound, kill or murder, or to destroy his house or other piioperty, or to accuse another of a crime or misdemeanor, or expose or publish any of his infirmities, though no money, goods, chattels or valuable thing, be demanded, such person so offending shall, on conviction, be fined in a sum not exceeding five hundred dollars and imprisoned in the county jail not exceeding six months. Opening Letters of Others. — ^If any person shall willfully open or read or cause to be read, any sealed letter not addressed to himself, without being authorized so to do, either by the writer of such letter or by the person to whom it shall be addressed, and every person who shall mali- ciously publish the whole or any part of such letter, without the authority of the writer thereof, or of the person to v^hom the same shall be addressed, knowing the same to have been opened, shall, upon conviction, be punished by fine not exceeding five thousand dollars. [In Idaho, the fine is not more than one thousand dollars. [In California the fine does not exceed five hundred dollars or imprisonment not to exceed six months, or both fine and imprisonment.] crimes and punishments. 263 Ceimes against the Public Peace and Teanquility. Disturbing the Peace in the Night Time. — Maliciously and willfully disturbing the public peace or quiet of any neigbborhood, at late or unusual hours of the night, by loud or unusual noises or by ofifensive conduct, challeng- ing to fight or fighting, is punishable by fine not exceeding two hundred dollars or imprisonment in the county jail not more than two months. Refusing to Disperse. — If two or more persons assemble for the purpose of disturbing the peace or doing any unlaw- ful act, and do not disperse on being desired or commanded so to do by anypublic officer, the persons so offending shall, on conviction, be severally fined in any sum not exceeding five hundred dollars and imprisoned in the county jail not more than six months. Aflfray. — If two or more persons shall, by agreement, fight in public, on conviction, they shall be punished by fine not exceeding two hundred dollars and imprisoned in the county jail not more than one month. [In Idaho, the imprisonment is not more than three months.] Unlawful Assembly.— If two or more persons shall assemble to do an unlawful act, such persons shall be guilty of an unlawful assembly, and, upon conviction, shall be severally fined in a sum not exceeding two hundred dol- lars or imprisoned in the county jaU not»exceeding three months. [In California, not exceeding five hundred dol- lars or six months.] Routs and Riots. — If two or more persons shall meet to do an unlawful act, upon a common cause of quarrel, and make advances towards it, they shall be deemed guilty of rout, and, upon conviction, shall be severally fined in any sum not exceeding five hundred dollars or imprisoned in the county jail not more than six months; and if two or more persons shall actually do any unlawful act of violence, either with or without a common cause of quarrel, or even do a lawful act in a violent, tumultuous and illegal, manner, shall be deemed guilty of a riot, and, upon conviction, fined in any sum not exceeding five hundred dollars each or 264 LAW ENCYCLOPEDIA. imprisoned in the county jail not exceeding six months or by both such fine and imprisonment. Disturbing Religious Assemblies. — Willfully disquieting or disturbing any congregation or assembly of people, met for religious worship, by making a noise or by rude behavior, is punishable by fine not exceeding five hundred dollars or by imprisonment in the county jail not exceeding six months. Selling Liquor at Camp-meeting. — Erecting a booth or tent or other contrivance, for the purpose of selling or dis- posing of wines or liquors, or selling the same within a mile of any camp-meeting for religious purposes, is punishable by fine not less than five nor more than five hundred dollars. This does not affect stores or saloons established previously to the appointment of such religious meeting. Libel. — See Libel. Offenses against Public Morality, Health and Police. BigEimy. — Bigamy consists of having two wives or two husbands at one and the same time, *knowing the former husband or wife is still alive. If any person or persons within this state, being married, or who shall hereafter marry, do at "any time marry any person or persons, the former husband or wife being alive, the person so offending shall, on conviction thereof, be punished by fine not exceed- ing two thousand dollars and be imprisoned in the state prison not more than three years. Nothing herein con- tained shall extend to any person or persons whose .husband or wife shall have been continually absent from such person or persons for the space of five years together, prior to the said second marriage, and he or she not knowing such hus- band or wife to be living within that time. Also nothing herein contained shall extend to any person that is or shall be at the time of such second marriage divorced by lawful authority from the bonds of such former marriage, or to any person when the former marriage hath been by lawful author- ity declared void. [In Idaho and Nevada, the punishment is CEIMES AND PUNISHMENTS. 265 by imprisonment not lesS than one nor more than two years and one thousand dollars fine.] Marrying a Husband or Wife. — If any man or woman, being unmarried, shall knowingly marry the husband or wife of any other, such man or woman shall, on conviction, be fined not less than two thousand dollars or imprisoned in the state prison not more than three years. [Same punishment as in bigamy, in Idaho and Nevada.] Adultery and Incest. — Persons being within the degrees of consanguinity,* within which marriages are declared by law to be incestuous and void, who shall intermarry with each other or who shall commit fornication or adultery with each other, shall, on conviction, be punished by imprisonment in the state prison not exceeding ten years. Pn Idaho and Nevada, imprisonment not less than one year.] Public Nuisance. — See Nuisance. Selling Un-wholsome Provisions. — Selling any flesh of any diseased animal or other unwholsome provisions or any poisonous or adulterated drink or liquors, is punishable by fine of not more than five hundred dollars or imprisonment in the county jail not more than six months. , Destroying Oflacial Posters.— Intentionally defacing, obli- terating or tearing down, any proclamation, advertisement or notification, set up at any place in this state by authority of any law of the United States or of this state or of any court, is punishable by fine of not more than one hundred nor less than twenty dollars or imprisonment in the county jail not more than one month. This does not apply to such proclamations, etc., as have expired. Possession of Burglarious Instruments. — If any person shall be found having upon him any picklock, crow, key, bit or other instrument or tool, with intent feloniously to break and enter into any building containing valuable prop- erty, or who shall make or alter any key or other instrument for such purpose, or shall be found in any such place with * See Mabeiagjs — Ditoecb and Husband and Wife. 266 LAW ENCYCLOPEDIA. intent to steal, shall, on conviction, be imprisoned in the county jail not more than six months or pay a fine not ex- ceeding five hundred dollars. [In Nevada the penalty is not less than one year and not more than five years impris- onment in the state prison.] Possession of Offensive Weapons. — If any person ^hall have upon him any offensive weapon with intent to assault any person, on conviction, he shall be fined not more than one hundred dollars' or imprisoned in the county jail not more than three months. [In California the fine may reach five hundred dollars and imprisoned six months.] Refusing to Aid OflEicers. — Every male person above eighteen years of age, who shall neglect or refuse to join the posse comitaius or power of the county, by refusing to aid and assist in taking or arresting any person against whom there may be issued any process or who may have escaped, or by refusing to aid and assist in preventing a breach of the peace or the commission of any criminal offense, being required by any officer concerned in the ad- ministration of justice, shall, upon conviction, be fined in any sum not less than fifty nor more than one thousand dol- lars. [In Idaho, the fine is not less than fifty nor more than five hundred dollars and imprisonment for thirty days.] Cheats, Swindles amd Peauds. Fraudulent Conveyances. — All and every person who shall be a party to any fraudulent conveyance of lands or goods, or any right or interest issuing out of the same, or to any bond, suit, judgment or execution, contract or con- veyance, had, made or contrived, with intent to deceive and defraud others, or to defeat, hinder or delay, creditors or others of their just debts, damages or demands, or who being parties aforesaid, at any time shall wittingly and wil- lingly put in use, avow, maintain, justify or defend, the same or any of them as true and done, had or made, in good faith or upon good considerations, or shall alien, assign, or sell, any of the lands, hereditaments, goods, chattels or other CRIMES AND PUNISHMENTS. 267 thing before mentioned, to him, her or them, conveyed as aforesaid or any part thereof, he, she or they, so offending, shall on conviction, be fined in any sum not exceeding five hundred dollars or by imprisonment in the county jail not exceeding six months. [In Idaho and Nevada, the pun- ishment is imprisonment not less than six months and a fine not exceeding one thousand dollars.] Svirindiing. — If any person by false representations of his own wealth or mercantile correspondence and connec- tions, shall obtain any credit thereby, and defraud any per- son, of money, goods, chattels or any valuable thing, or pro- cure others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtain credit, and thereby fraudlently get possession of goods, wares of merchandise, or other valuable thing, on convic- tion shall be sentenced to return the property so fraudu- lently obtained, if it can be done, and shall be fined not exceeding one thousand dollars, and imprisoned in the county jail Hot more than six months. [In California the penalty is imprisonment in the county jail not exceeding one year and by fine not exceeding three times the value of the money or property so obtained.] Married Person Selling Lands Under False Represen- tations. — Every married person who falsely and fraudulent- ly represents himself or herself as competent to sell or mortgage any real estate, to the validity of which sale or mortgage the assent or concurrence of his wife or her hus- band is necessary, and under such representations willfully conveys or mortgages the same, is punishable by imprison- ment in the state prison not to exceed five years. Selling Land Twice.— If any person after once selling, bartering or disposing, of any tract of land, shall willfully and with intent to defraud previous or subsequent purchas- ers sell the same a second time, or make any agreement to sell or dispose of the same for a valuable consideration, on conviction, he shall be punished by imprisonment in the state prison not less than one nor more than ten years. [In Idaho and Nevada, imprisonment is not to exceed five years.] 268 LAW ENCYCLOPEDU. False Weights and Measures. — If any person shall know- ingly soil any goods, wares or merchandise, or- any valua- ble thing, by false weights or measures, or shall knowingly use any false measures at any mill in taking toll for grindr ing corn or grain, on conviction, shall be fined not exceed- ing five hundred dollars and imprisoned in the county jail not more than six mouths. Frauds Against Creditors. — If any debtor shall fraudu- lently remove his property or effects out of this state, or shall fraudulently convey, sell or assign or conceal, his property or effects, with intent to defraud, hinder or delay, his creditors of their just rights, claims or demands, on conviction, he shall be imprisoned in the county jail not exceeding one year, or fined not exceeding five thousand dollars, or by both such fine or imprisonment. [In Idaho and Nevada, imprisonment is not to exceed six months. ] Same. — Any person against whom an action is pending or against whom a judgment has been rendered, for the re- covery of any personal property or effects, who shall fraud- ulently conceal, sell or dispose of, such property or effects, with intent to hinder or defraud the person bringing such action or recovering such judgment, or shall remove such property beyond the limits of tho county in which it may be at the time of the commencement of the action or the rendering of such judgment, shall, on conviction, be pun- ished by imprisonment in the county jail for any term not exceeding one year, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment. [In Idaho and Nevada, imprisonment not to exceed six months.] Malicious Mischiee. Poisoning Cattle. — Willfully administering poison to an animal, the property of another, or maliciously exposing tho same, with the intent that the same shall be taken by any such animal is punishable by imprisonment in the state prison not exceeding three years or in the county jail not ex- ceeding one year, and by fine not exceeding five hundred dollars. [In Nevada by both such fine and imprisonment.] CRIMES AND PUNISHMENTS. 269 Malicious Injury to Animals. — Maliciously killing or wounding any horse or domestic animal belonging to an- other, or maliciously or cruelly beating or torturing such animal, whether belonging to himself or another, is punish- able by fine not exceeding five hundred dollars, or by im- prisonment in the county jail not exceeding six months, or by both such fine and imprisonment. Malicious Injury to Goods. — Willfully, unlawfully and maliciously, destroying, burning, cutting or otherwise injur- ing, property of any description belonging to another, is punishable by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exfteeding six months, or by both such fine and imprisonment. [In Idaho, the fine is not to exceed two hundred dollars.] Malicious Iiyury to Houses. — Willfully, maliciously and unlawfully, breaking, destroying or injuring, the door or window of any dwelling-house,_ shop, store or other house or building, or severing therefrom or from any gate, fence or inclosure or any part thereof or any material of which it is formed, or severing from the freehold any produce thereof or anything attached thereto, or pulling down or destroying any gate, post, railing or fence or any part thereof, or cutting down, tapping, girdling or otherwise in- juring or destroying, any fruit or ornamental or shade tree, being the property of another, is punishable by fine not exceeding two hundred dollars, or imprisonment in the county jail not exceeding six months. [In California the fine shall not exceed five hundred dollars.] Injury to Lumber or Water-craft.— Willfully and mali- ciously burning, injuring or destroying, any pile or raft of wood, plank, boards or other lumber, or cutting loose or setting adrift any such raft, or cutting, breaking, injurirlg, sinking or setting adrift, any vessel or water-craft, being the property of another, is punishable by fine not exceed- ing five hundred dollars, or imprisonment in the county jail not exceeding six months. 270 LAW ENCYCLOPEDIA. Malicious Injiuy to Bridges, Canals. Etc. — Maliciously injuring any mill, dam or other structure, erected to create hydraulic power, or to drain any swamp or overflowed land, or to conduct water for mining, manufacturing, re- claiming or agricultural purposes, or any embankment necessary to the same, or making any aperture in the same with the intent to injure the same, is punishable by fine not exceeding one thousand dollars, or imprisonment at hard labor in the state prison not more than two years, or by both such fine and imprisonment. Willful Injury to Jails. — Willfully an d intentionally break- ing down or*Injuring any public jail or other place of con- finement, is punishable by fine not exceeding ten thousand dollars, nor less than the value oj said jail or other place of confinement so destroyed, or of such injury as may have been done thereto by such unlawful act, and be imprisoned in the state prison not exceeding five years. [In Idaho and Nevada, the imprisonment not to be less than one year.] [The words in italics not applicable to California.] Willfully Setting Fire to any Wood, Grass, Etc.— Wil- fully and intentionally or negligently and carelessly setting fire to any wood, prairie, grass or other lands or grounds, in this state, is punishable by fine not less than two hun- dred nor more than one thousand dollars, or imprisonment in the county jail not less than ten days nor more than six months, or by both such fine and imprisonment in the dis- cretion of the jury trying the case : .provided, that this shall not extend to any person who shall set on fire any wood, prairie, grass or other lands, adjoining their own farm, house, plantation or inclosure, for the necessary preserva- tion thereof from accident or injury by fire, by giving to his, or her or their, neighbors reasonable notice of such in- tention. [In California, the fine shall not exceed five hun- dred dollars, the imprisonment not to exceed six months in the county jail.J ceimes and punishments. 271 General Provisions. Punishment for Felonies and Misdemeanors. — Every offense or act which by law is declared to be a felony, is punishable by imprisonment in the state prison not exceed- ing five years Every ofl'ense or act declared to be a misde- meanor, and for which no punishment is specially provided, shall be punished by imprisonment in the county jail not exceeding six months, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment, [Applica- ble to California alone.] • Effect of Sentence to State Prison. — A sentence of im- prisonment in the state prison for a term less than l^fe, sus- pends all civil rights of the person so sentenced during the term of imprisonment, and forfeits all public offices and all private trusts, authority and power; and the person sen- tenced to such imprisonment for life, shall thereafter be deemed civilly dead. Persons, Females and Intent. — Where the term "psr- son" is used, it includes within its meaning all states, terri- tories or governments, and all counties or corporations, and the United States. [In California corporations only included.] The Provisions of all criminal law extend to females as well as males. Where the Intent to injure, defraud or cheat, is required to be shown in order to constitute an offense, it is sufficient if such intent be to injure, defraud or injure, the United States, this state or any other state or territory or county, or the government or any public office thereof, or any county, city or town, or any corporation, body politic or private individual. Counterfeiting Labels and Stamps. Counterfeiting Trade Marks, Labels and Stamps.— Knowingly and willfully forging or counterfeiting, or cau8- 272 ■ LAW ENQYCLOPEDIA. ing to be forgerl or counterfeited, upon goods or merchan- dise, the private trade marks, stamps or labels of any me- chanic or manufacturer, with intent to defraud, is punish- able by imprisonment in the county jail not exceeding six months, or by fine not less than three nor more than six hundred dollars. Selling Goods •with Counterfeit Stamps and Labels. — Selling any goods, wares and merchandise, having any such forged and counterfeited trade marks, stamps or labels, knowing the same to be "forged or counterfeited, without disclosing the fact to the purchaser, is punishable by im- prisonment in the county jail not exceeding six months, or by a fine not less than three nor more than six hundred dollars. Poisoning Spkings. Poisoning Springs. — ^Every person who shall willfully poison any spring, well or reservoir, of water shall, upon conviction thereof, be punished by imprisonment in the state prison for a term not less than one nor more than ten years. Offenses against Habitations, Etc. Arson— First Degree. — Willfully and maliciously burn- ing or causing to be burned, in the night-time any dwell- ing-house in which there shall be at the time some human being, shall be deemed arson in the first degree. Any per- son convicted thereof shall be punished by imprisonment not less than two years, and which may extend to life, in the state prison. Arson — Second Degree. — Willfully and maliciously burn- ing or causing to be burned, any dwelling-house the prop- erty of another, in the day-time, or in the night or day- time willfully burning or cause to be burned, any kitchen, office, shop, barn, stable, storehouse, warehouse or other building, or stack or stacks of grain, or standing crops, the property of any other person or corporation, or any church, meeting-house, school-house, state-house, court-house, or CRIMES AND PUNISHMENTS. 273 other public building, or any ship, vessel, boat or other ■water-craft, or any bridge of the value of fifty dollars or more, erected across any of the waters of this state, such person so oifending shall be deemed guilty of arson in the second degree, and upon conviction' thereof, shall be pun- ished by imprisonment in the state prison for a term not less than one year nor more than ten years; and should the life or lives of any person or persons be lost in consequence of such burning, such offender shall be deemed guilty of murder, and shall be indicted and punished accordingly. D"welling-house. — Every house, prison, jail or other edi- fice, which shall have been usually occupied by persons lodging there at night, shall be deemed a dwelling-house of any person so lodging therein; but no warehouse, barn shed or other outhouse, unless used as a dormitory, shall be deemed a dwelling-house or part thereof, within the meaning of the two proceeding sections, unless the same be joined to and immediately connected with a dwelling- house. Burning Insured Property. — Every person who shall willfully burn or cause to be burned, any building, ship, vessel or other water-craft, or any goods, wares, merchan- dise or other chattel, which shall be at the time insured against damage or loss by fire, with intent to injure or de- fraud such insurer, whether the same be the property of such person or of any other, shall, upon conviction, be ad- judged guilty of arson in the second degree and punished accordingly. Fraudulently Pitting Out and Destroying Vessels.— Every captain or other officer or person in command or charge of any vessiels who within this state (California,) willfully wrecks, sinks or otherwise injures or destroys such vessel, or willfully permits the same to be wrecked, sunk, or otherwise injured or destroyed with intent to prejudice or defraud any other person, is punishable by imprison- ment in the state prison not less than three years. Aijy 18 274 LAW ENCYCLOPEDIA. person other than above designated guilty of like acts, punishable by imprisonment in the state prison not exceed- ing ten years. Making False Manifest. — Every person guilty of pre- paring, making, or subscribing any false or fradulent man- ifest, invoice bill of lading, ship's register, or protest, with intent to defraud another, is punishable by imprisonment in the state prison not exceeding three years. Bribery op "Witness. Bribing or Hindering Witness. — Every person who shall, directly or indirectly, give or offer to give any sum or sums of money or other bribe, present or reward, to procure the absence of any person who is or may become a witness, from any trial of any issue in any action or proceeding in this state, and every person who shall, by any means, will- fully hinder or prevent any person who is or may become a witness, from attending any trial in any court in this state; and every such person who shall willfully absent himself or agree or offer to absent himself, in consideration of money or anything, shall, on conviction thereof, be fined not ex- ceeding five thousand dollars, or imprisoned in the county jail not exceeding six months, or by both such fine and imprisonment. Housebreaking in Day-time. Breaking or Entering Into Houses in Day-time. — If any person shall, in the day-time, enter into any dwelling-house, shop, warehouse, store, mill, barn, stable, out-house or other building, vessel or railroad car, with intent to steal or to commit any felony whatever therein, every such per- son, upon conviction thereof, shall be punished by impris- onment in the state prison for a term not less than one nor more than £ve years. Counterfeiting Gold. Counterfeiting Uncoined Gold.— Counterfeiting any spe- CRIMES AND PUNISHMENTS. 275 cies of gold dust, bars, bullion or lumps of gold, of any description whatsoever uncoined, or knowingly selling the same or making any instrument to be used in so counter- feiting, knowing the use to which it is to be put, or know- ingly having in one's possession and secretly keeping any instrument for the purpose of so counterfeiting, is punish- able by imprisonment in the state prison not less than one nor more than fourteen years. Possessing or Receiving Counterfeit Gold. — Knowingly having in possession or receiving counterfeit gold, with the intent to sell or utter the same, is punishable by imprison- ment in the state prison not less than one nor more than fourteen years. Injueious Publication^. Publication of Abortionist Advertisements. — Every per- son who willfully writes, composes, or publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the preven- tion of conception, or who offers his services by any notice, advertisement or otherwise, to assist in the accomplish- ment of any such purpose, is punishable by imprisonment in the state prison not exceeding five years. [Applicable to California alone.] Improper tJsE or Deadly Weapons. Exhibiting or Using Deadly Weapons. — Any person who shall, in the presence of two or more persons, draw or exhibit any deadly weapon in a rude, angry and threatening manner, not in necessary self-defense, or who shall unlaw- fully use the same in any fight or quarrel, on conviction, shall be fined in any sum not less than one nor more than five hundred dollars, or imprisoned in the county jail not less than one nor more than six months, or by both such fine and imprisonment, with the costs of prosecution. 276 law encyclopedia. Stealing of Dogs. Stealing Dogs. — ^Every person who shall feloniously steal, take and carry, lead or drive, away, any dog, either of the male or female kind, belonging to another, on conviction, shall be punished by imprisonment in the county jail not more than six months, or by fine not less than twenty nor more than one hundred dollars, or by both such fine and imprisonment. [Applicable to Nevada alone.] [The following, in relation to " Crimes and Punishments," is applicable to California alone.] Dance-house and Huedy-gurdy Giels. Every person -who causes, procures or employs any fe- male for hire, drink or gain to play upon any musical in- strument, or to dance, promenade, or otherwise exhibit her- self, in any drinking saloon, dance cellar, ball room, public- garden, public highway, common, park, or street or in any ship, steamboat or railroad car, or in any place whatsoever, if in such place there is connected therewith the sale or use, as a beverage, of any intoxicating, spirituous, vinous, or malt liquors, or who shall allow the same in any premises under his control, where intoxicating, spirituous, vinous, or malt liquors are sold or used, when two or more persons are present, is punishable by a fine not less than fifty nor more than five hundred dollars, or by imprisonment in the county jail not exceeding three months, or by both; and every female so playing upon any musical instrument or dancing, promenading or exhibiting herself, as herein afore- said, is punishable by a fine not exceeding one hundred dollars, or by imprisonment in the county jaU not exceeding one month, or by both. Minors Playing at Games of Chance. — ^Every owner or lessee or keeper of any house used in whole, or in part, as a saloon or drinking place, who knowingly permits any per- son under twenty-one years of age to play at any game of chance therein, is guilty of a misdemeanor, and punishable by fine not exceedihg five hundred dollars, or by imprison- CEIMES AND PUNISHMENTS, 277 ment in the county jail not exceeding six months, or by both fine and imprisonment. Exhibiting Deformities for Hire.— Every person exhibit- ing the deformities of another, or his or her own deformi- ties, for hire, or, by any artificial means giving to any per- son the appearance of a deformity, and exhibiting such person for hire, is punishable by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both fine and imprisonment. Stealing Animals. — Feloniously stealing, taking and car- rying away, any horse, mare, gelding, cow, steer, bull, calf, mule, jack or jenny, goat, sheep or hog, the property of another, witliout respect to. value, is grand larceny, and pun- ishable by imprisonment in the state prison not less than one nor more than ten years. Game. Killing of Certain Game.— It is unlawful to take, kill or destroy any of the following game within the time herein- after specified, namely: quail, partridges or grouse, mallard duck, wood duck, teal duck and spoon-bill duck, and all other broad-bill ducks, shall not be taken, killed or de- stroyed between the fifteenth day of March and the fifteenth day of September in each year; provided, that in the coun- ties of San Bernardino and Los Angeles the taking, killing, or destroying of any of the birds or game above enumerated shall be lawful at any time between the first day of August and the first day of April of the next year, and at no other time; and, provided further, that in the counties of Sierra, Plumas and Lassen, the taking, killing or destroying any of the birds or game above enumerated, except quails, par- tridges and grouse, shall be lawful at any time between the fifteenth day of August and the fifteenth day of March of the next year, and at no other time. Elk, Deer and Antelope.— It is unlawful to take, kill or 278 LAW ENCYCaiiOPEDIA. destroy; the male or female of any elk, deer or antelope, between tlie first day of January and the first day of July, of each year. Penalty. — To have any of the aforesaid game in one's possession during the time when the killing is prohibited, except such as are tamed or kept for show or curiosity, is punishable by fine of not over five hundred dollars, and imprisoment not more than thirty days in the county jail, or by both such fine and imprisonment. Phosphorus, Use of. — Every person who in the counties of Santa Clara, Contra Costa, San Joaquin, Santa Cruz or San Mateo, uses or distributes phosphorus upon any land or ground, between the first day of March and the first day of November in any year, is guilty of a misdemeanor. Genebal Summaet op Crimes not in the Act Conoebning, BUT FOUND IN OTHER LaWS. Crimes not before Specified.^To cruelly treat lunatics or any animals; to adulterate or dilute liquors or food; to en- tice apprentices away; to issue and circulate paper money of any state bank; to injure signals or monuments of United States coast survey; to willfully injure or obstruct railroads or plank or turnpike roads or bridges; to obstruct or break gas or water pipes; to injure or obstruct telegraph lines; to vote more than once at one election; to keep or deal game of chance for money; to moor vessels to buoys; to throw ballast in a harbor; to obstruct channels of Humboldt Bay; to keep house of ill-fame; to import foreign convicts into this state; to tamper with juror or juror-box; to injure levees around swamp land; to maintain a lottery; to alter marks or brands of cattle; to obstruct navigable streams; to injure or destroy willfully files of newspapers in the re- corder's ofiice; to violate revenue or road laws; to kill sea lions at Point Lobos; to entice seamen to desert; to kill or trap birds or destroy nests in any public cemetery; to bet upon the result of any election; to disturb or break up any CRIMES AND PXJNISHMENTS. 279 public meeting; to present or dissuade a witness from at- tending any trial; to assault or beat a person tinder color of authority; to maliciously procure a search warrant or war- rant of arrest to be issued and executed; to have unauthor- ized communications with convict in state prison; to keep any vinous, malt or spirituous liquors within two miles of state prison; to bring to or land within this state any Chi- nese or Japanese without first satisfying the commissioner of immigration that such person desires to come and is of good character; to willfully neglect to provide food, cloth- ing, shelter or medical attendance for one's child or to de- sert such child with intent to abandon it; to mutilate or remove the dead body of a human being from its grave; to arrest or attach any dead body of a human being upon any debt, demand, lieu or charge; to inter the dead body of a human being within the limits of any incorporated city or town, or of the city and county of San Francisco, except in a cemetery; to keep open on Sunday, any store, work- shop, bar, saloon, banking house or other place of business for the purpose of transacting business therein; to cut out, alter or deface marks upon logs, lumber or wood, so as to prevent the owner from discovering its indentity; to com- mit any fraud in the affairs of any special partnership, by special partner; to counterfeit seal or stamp of any person engaged in manufacturing or selling quicksilver, or to will- fully sell as pure, any debased or adulterated quicksilver; to act as pilot of any vessel without due authority, not be- ing the master or owner; to omit to label the contents of any box, bottle or other package containing drugs or med- icines; to put within any package any extraneous matter for the purpose of increasing its weight and to defraud the purchaser; to refuse to pay toll at any ferry, toll-bridge or toll-gate; to become intoxicated while in charge of a loco- motive engine, or acting as conductor or driver upon rail- road train or horse car, train despatcher or telegrapher op- erating in relation to the movement of trains; to make or spread any false statement or rumor with intent to affect the market price of any kind of property; to sell intoxicat- 280 LAW ENCYCLOPEDIA. ing liquors to any habitual or common drunkard, or indian; to aid, advise or encourage another to commit suicide; to upbraid, insult or abuse any teacher of the public schools in the presence or hearing of a pupil thereof; to sell or furnish to any indian any firearm, or ammunition therefor; to engage in or be present as a spectator of any prize fight; to appropriate to one's own use property lost by another; to tamper with gas or water pipes for the purpose of appro- priating gas or water and evading payment therefor; to ap- propriate goods saved from fire; to purchase or receive in pledge from any person under the age of sixteen years any junk, metal, mechanical tools or implements; to sell at mock auction; to present any false or fraudulent claim for the payment of any loss upon any contract of insurance; to poison any animal, the property of another; to remove any buoy or beacon; to obstruct navigable streams; to in- jure or destroy any written instrument the property of an- other, the false making of which would be forgery; to fail to attend parade, etc., by a member of the National Guard; to require a minor, ward or apprentice to labor more than eight hours in any one day, except in vinicultural or horti- cultural pursuits or in domestic or household occupations. OKEGOK. Bigamy. — ^If any person having a former husband or wife living, shall marry another person or live or cohabit with another person as husband or wife, such person shall be deemed guilty of polygamy, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than four years, or by imprisonment in the county jail not less than six months nor more than one year, or by fine not less than three hundred nor more than one thousand dollars. The preceding Paragraph does not extend to or apply to any person whose husband or wife shall have voluntarily withdrawn and remained absent from such person for the period of seven years together — the party marrying again CEIMES AND PUNISHMENTS. 281 not knowing the otlier to be living within that time, nor to any person legally divorced from the bonds of matrimony. Adultery. — ^If any person shall commit the crime of adul- tery, such person, upon conviction thereof, shall be pun- ished by imprisonment ia the penitentiary not less than six months nor more than two years, or by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than two hundred nor more than one thousand dollars. A Prosecution for the crime of adultery shall not be Com- menced, except upon the complaint of the husband or wife, and within one year from the time of committing the crime or the, time when the same shall come to the knowledge of such husband or wife. When the crime of adultery is com- mitted, between a married woman and an unmarried man, the man shall be deemed guilty of adultery also and be pun- ished accordingly. If any Man or Woman, not being married to each other, shall lewdly or lasciviously cohabit or associate together, such man or woman, upon conviction thereof, shall be pun- ished by imprisonment in the county jail not less than one nor more than six months, or by fine not less than fifty nor more than three hundred dollars. Producing Abortion. — If any person shall administer to any woman pregnant with a child, any medicine, drug or substance, whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter. Burning House in Night-time. — If any person shall, will- fully and maliciously, bum in the night-time any dwelling- house of another, or shall, in the night-time, willfully or maliciously set fire to any building owned by himself or another, by the burning whereof any dwelling-house of another shall be burned in the night-time, such person shall 282 LAW ENCYCLOPEDIA. be deemed guilty of arson, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than ten nor more than twenty years. Dueling. Sec. 9, Art. n, of the constitution of the state of Oregon is substantially the same as the constitution of California, on the subject of dueling. Statutory Provisions. — If any person shall, by previous appointment, fight a duel within the jurisdiction of Oregon, I and, in doing so, inflict a wound upon another whereof the person so injured shall die, such person shall be deemed guilty of murder in the second degree. [The punishment for murder in the second degree is by imprisonment for life.] If any Person engage in a duel or send a challenge to fight one, although no killing ensue, such person shall be imprisoned in the penitentiary not less than one nor more than ten years. If any Person accept a challenge to fight a duel or know- ingly carry a challenge to fight one — although no duel be fought — or shall be present as aid, second or surgeon, or shall advise, encourage or promote, such duel, such person shall be imprisoned in the penitentiary not less than one nor more than five years. If any Person shall post another, or in writing or print use any reproachful or contemptuous language to or con- cerning another for not fighting a duel, such person shall be imprisoned in the penitentiary not less than one nor more than two years. Accessoeies. Acoessories. — AH persons who, after the commission of a felony, conceal or aid the offender, with knowledge that he has committed a felony and with intent that he may avoid or escape from arrest, trial, conviction or punishment, are accessories. CKDIB3 AJTO PUNISHMENTS — DAMAGE. 283 Punishment. — Except in cases -where a different punish- ment is prescribed by law, an accessory to a felony, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one year nor more than five years, or by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than one hundred dollars nor more than five hundred dollars. In Misdemeanor, there are no accessories. CUSTOM. Custom. — Such a usage as has common consent and uni- form practice, has become the law of the place or of the matter to which it relates. The common law is custom ripened into law. ' General Customs, are such as constitute a part of the common law, and extend to the whole country. Particular Customs, are those which are confined to a particular place. To Establish a Custom, it wUl be necessary to show its existence for so long a time that "the memory of man run- neth not back to the period of its non-existence," and that the usage has continued without any interruption of the right. It must have been peaceably acquiesced in and not subject to dispute, for, as customs owe their origin to com- mon consent, the fact that they have been disputed shows that such consent was wanting. See Common Law. DAMAGE. Damage. — The loss caused by any person to another or to his property. He who has caused the damage is bound to repair it 5 and, if he has done it maliciously, he may be compelled to pay beyond the actual loss. When damage occurs by accident, without blame to any one, the loss is borne by the owner of the thing injured ; as, if a horse run 284 LAW ENCrCLOPEDU. away with his driver, without any fault of the latter, and injure the property of another person, the injury is the loss of the owner of the thing injured. When the damage hap- pens by the " act of God" or inevitable accident, as by tem- pest, earthquake or other natural cause, the loss must be borne by the owner. See Act op God. DAMAGES. Damages. — ^The sum claimed as indemnity in a complaint or answer. Compensatory Damages, are those allowed as a recom- pense for injury actually received. Consequential Damages, are those -whiph, though directly, are not immediately consequential upon the act or default complained of. Exemplary Dsunages, are those allowed as a punishment for wrongs committed with fraud, malice or deliberate vio- lence or oppression. General Daunages, are those which necessarily and by implication of law result from the act or default com- plained of. DAYS OF GRACE. Days of Grace. — Certain days allowed to the acceptor of a bill or the maker of a note, in which to make payment, in addition to the time contracted for by the bill or note itself. According to La-w, days of grace are allowed on bills payable at the following places, according to this table : In the United States, three days, except Vermont, where no grace is allowed, and Louisiana, where, although on bills and notes made and payable in the state three days are allowed, the bill or note is considered to be due with- out the grace for purposes of set-off. DAYS OF GRACE — ^DE FACTO. 285 In Ne-w York, bills on bank corporations are not entitled to grace by statute. Altona and Hamburg. — Twelve days. Great Britain, Ireleind, Berlin, Trieste and Vienna. — Three days. Ainsterdam, Ant-werp, Genoa, France, Iieghom and Palermo. — None. Brazil, Eio Janeiro and Bahia. — Fifteen days. Frankfort-on-the-Main. — [Sundays and holidays not in- cluded] four days. Spain. — ^The time varies in different parts — generally fourteen days on foreign and eight on inland bills. At Cadiz, six days are allowed. When bills are drawn at a certain date fixed — no grace. Bills at sight are not entitled to grace, nor are any bills, unless accepted. » Ijisbon and Oporto. — Fifteen days on local bills and six on foreign, but if not previously accepted, no grace. In Nevada, Oregon, Washington, Utah, Idaho, Montana, New Mexico and Arizona, three days' grace are allowed. See Bills and Notes. [None allowed in California.] Days of Grace are computed in America, by adding three days to the term of the biU or note, irrespective of the fact that the day on which the bill would be due, without the days of grace, is a Sunday or a holiday. Banters' checks are payable on demand, without days of grace. See Bills and Notes, as to the rule on the Pacific Coast DE FACTO. De Facto. — ^Actually ; in fact ; in deed. A term used to denote a thing actually done. An officer, de facto, is one who performs the duties of an office with apparent right and under claim and color of an appointment, but without being actually qualified in law so to act. 286 LAW ENOYCLOPEDU, DEBT. Debt. — ^A sttm of money due by agreement, or any claim for money. Hypothecary Debts, are those -which are liens upon an estate. Judgment Debts, are those demands evidenced by judg- ment of record. Privileged Debts, are those ■which are to be paid before others in case a debtor should be insolvent. A debt may be evidenced by matter of record, by con- tract under seal or by a simple contract. DECEIT. Deceit. — A fraudulent misrepresentation, by which one man deceives another who has no means of detecting the fraud, to the injury and damage of the latter. Fraud, or the intention to deceive, is the very essence of the injury ; for, if the party misrepresenting was himself mistaken, no blame can attach to him. It may be by the deliberate assertion of a falsehood to the injury of another, or by the failure to disclose a latent defect, or by conceal- ing an apparent defect. See Caveat Emptoe. DECLARATION OP INTENTION". Declaration of Intention. — The act of an alien who goes before a court of record and in a formal manner declares that it is, bona fide, his intention to become a citizen of the United States. See Natuealization. DEDICATION. Dedication. — ^An appropriation of land to some public use, made by the owner and accepted for such use by or on behalf of the public. DEDICATION — DEFAULT. 287 Express Dedication, is made by deed, vote or declara- tion. Implied Dedication, is that presumed from acquiescence in the public use. In making the Appropriation, no particular formality is required; any act or declaration which clearly expresses an intent to dedicate, will amount to a dedication, if ac- cepted by the public, and will conclude the donor from ever after asserting any right incompatible with the public use. Without Acceptance, a dedication is incomplete. The various town governments, county commissioners or super- visors, are the proper bodies to accept land dedicated to public use ; and when so accepted, the title vests in the public. DEED. Deed. — A written instrument under seal, containing a written contract or agreement, which has been delivered by the party to be bound, and accepted by the obligee or covenantee. See Conveyancing. DEFAMATION. Defamation. — ^The speaking or writing words of a person BO as to hurt his good fame. Written defamation, is termed a Kbel, and oral defamation, slander. See Libel and Slan- DEE and Ceimes and Punishments. DEFAULT. Default. — ^The non-performance of a duty, whether aris- ing under a contract or otherwise. In Practice of La-w, the non-appearance of a plaintiff or defendant at court within the time prescribed by law, to prosecute his claim o]; make his defense. A neglect of a 288 LAW ENCTOLOPEDU. defendant to a suit to file an answer witMn the period allowed by law. DEFEASANCE. Defeasance. — ^An instrument which defeats the force or operation of some other deed or estate. Mortgages are usually drawn in the form of a deed conveying the land absolutely to the mortgagee, with a clause inserted after the granting part, providing that, upon payment of a sum named, the conveyance shall be nuU and void. Such a clause is termed a defeasance. DEFEND ANT. Defendant. — A defendant is a person called upon to answer to either a civil or criminal proceeding. DEFENSE. Defense ^A forcible resistance of an attack by force. A Man is justified in defending his person, also that of his wife, children and servants, and for this purpose he may use as much force as may be necessary, even to killing the assailant ; remembering, that the means used must aliuays he proportioned to the occasion, and that an excess iecomes itself an injury. The resistance must be in defense and not in revenge. Let no Man deceive himself in the belief that he is the judge of the necessity to kill. The jury before whom he must be tried are the sole judges of that fact ; and, if from the evidence it appears that he was mistaken as to such necessity, he must atone to the offended law. See Ceimes AND Punishments — ^Assault and Assault and Battery. Defense in Civil Proceeding, is the answer of a defendant to the plaintiff's complaint, and facts proved by him that tend to defeat plaintiff's claim. . DELIVEOT — DEMAND. 289 PELIYERY. Delivery. — The transfer of a deed from the grantor to the grantee or some person acting in his behalf, in such a man- ner as to deprive the grantor of the right to recall it at his option. Atsolnte Delivery, is that which is complete upon the actual transfer of the instrument from the possession of the grantor. Conditional Delivery, is that which passes the deed from the possession of the grantor, but is not to be completed by possession in the grantee or a third person as his agent until the happening of a specified event. A delivery in this manner is an escrow, and such a delivery must be always made to a third person. DEMAND. Demand. — Demand is a word of an extent greater in its signification than any other word, except claim- A Release of all Demands, is a release of all agreements, conditions, bonds, obligations, contracts and the like, and is a bar to actions on the demands released. In Civil Practice, it is often necessary to secure to a party all his rights and to enable him to bring an action, that he should make a demand upon the party bound to perform the contract or discharge the obligation ; thus, where property is sold, to be paid for on delivery, a demand must be made and proved on trial before bringing an action for non-deliv- ery ; but no demand need be proved if the seller has inca- pacitated himself from delivering them. This rule applies also to contracts to marry. In Case3 vrhere the Talons' of Goods is lawful but their subsequent detention becomes illegal, it is in all cases necessary, before bringing suit, to give a formal notice of the owner's right to the property and possession, and make 19 290 LAW ENCYCLOPEDIA. a formal demand, in writing, of the delivery of such pos- session to the owner ; but if the property is detained by a trespasser or if the goods have come illegally into the par- ty's hands, no demand need be made. DEMURRAGE. Demurrage. — The delay of a vessel by the freighter be- yond the time allowed for loading, unloading or sailing. Payment for such delay is demurrage, DEMURRER. Demurrer. — In pleading, an allegation that — admitting the facts of the complaint or answer to be true, as stated by the party making it — ^he has yet shown no cause of action or defense. For example : A has a demand against B for the erection of a house. A sues B, and alleges in his com- plaint, that B agreed to pay him (A) a certain sum on the completion of the house, but he neglects to allege that the house has been built. Now, it is evident that A cannot re- cover of B until he has completed his contract — that is, completed the house — and, having failed to allege that fact, his complaint is said to be demurrable; and B demurs to the complaint on the ground that it fails to state facts suffi- cient , to constitute a cause of action — that is, it fails to allege that the house was completed. Such plea is a de- murrer. DEPONENT. Deponent. — One. who gives .information on oath or in- formation, respecting some facts known to him, before a magistrate ; he who makes a deposition. Deposit. Deposit. — A naked bailment of goods, to be kept for the depositor without reward and" to be returned when he shall require it. DEPOSIT — DEPOSITION. 291 In case of Deposits with a banker the banker becomes a debtor of the depositor. The money deposited ceases alto- gether to be the money of the depositor and belongs to the banker. It is his to do what he pleases with it, and there is no trust created. If he refuses to pay the debt, on de- mand, the depositor may sue and recover the amount the same as any other debt. The banker is not liable for inter- est unless expressly contracted for, and the deposit is sub- ject to the statute of limitations. See Limitations. DEPOSITION. Deposition. — ^The testimony of a witness reduced to writ- ing, in due form of law, by virtue of a commission or other authority of a competent tribunal or according to the pro- visions of some statute law, to be used on the trial of some question of fact in a court of justice. In California, Nevada and Idaho, the testimony of a witness may be taken by deposition in an action, at any time after the service of the summons or the appearance of the defendant; and in a special proceeding, after a ques- tj;on of fact has arisen therein, in the following cases : 1st. When the witness is a party to the action or pro- ceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended. 2d. When tha witness resides out of the county in which his testimony is to be used. 3d. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required. 4th. When the witness, otherwise liable' to attend the trial, is nevertheless too infirm to attend. Either Party may have the deposition taken of a wit- ness before any judge or clerk, or any justice of the peace or notary public, on serving on the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is one men- 293 LAW ENC3YCL0PEDU. tionecl in the last section. At any time during tlio forty days immediately after tlie service of summons by puolica- tion has been completed, and at any time thereafter, when the defendent has not appeared, the notice required by this section may be served on the clerk of the court where the action is pending. Such notice shall be at least five days, and in addition, one day for every twenty-five miles of the distance of the place of examination from the resi- dence of the person to whom the notice is given, unless for a cause shown a judge, by order, prescribe a shorter time . When a shorter time is prescribed, a copy of the order shall be served with the notice. Eitlier Party may attend such examination, and put such questions, direct and cross, as may be proper. The depo- sition, when completed, shall be carefully read to the wit- ness and corrected by him in any particular if desired; it shall then be subscribed by the witness, certified by the judge or officer taking the deposition, inclosed in an en- velop 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 trans- mitted through the mail or by some safe private oppor- tunity ; 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 exceptioiis. 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 ex- amination. If the deposition be taken by the reason of the absence or intended absence from the county of the wit- ness, or because he is too infirm to attend, proof by affida- vit or oral testimony shall be made at the trial, that the witness continues absent or infirm, to the best of deponent's knowledge or belief. The deposition thus taken may'also be read in case of the death of the witness. The Testimony of a Witness out of the state or territory may be taken by deposition, in an action, at any time after DEPOSITION — ^DESCENT AITD DI8TEIBUTIQN. 293 the service of tlie summons or the appearance of the de- fendant ; and in a special proceeding, at any time after a question of fact has arisen therein. Depositions may be taken in criminal cases under the provisions of the criminal practice statutes. DESCENT. Descent. — Title by descent is the title by which one per- son, upon the death of another, acquires the estate of the latter as his heir-at-law. DESCENT AND DISTRIBUTION. CALIFOENIA, NEVADA AND IDAHO. Descents and Distributions. — ^When any person, having title to any estate not otherwise limited by marriage con- tract, shall die intestate as to such estate, it shall descend and be distributed, subject to the payment of his or her debts, in the folic wing manner : 1st. If there be a surviving husband or wife and only one child or the lawful issue of one child : in equal shares to the surviving husband or wife and child, or issue of such child. If there be a surviving husband or wife and more than one child living, and the lawful issue of one or more deceased children: one-third to the surviving husband or wife, and the remainder in equal shares to his or her chil- dren and to the lawful issue of any deceased child by right of representation. If there be no child of the intestate liv- ing at his or her death, the remainder shall go to all of his ar her lineal descendants ; and if all the said descendants are in the same degree of kindred to the intestate, they shall share equally, otherwise they shall take according to the right of representation. 2d. If he or she shall leave no issue, the estate shall go in equal shares to the surviving husband or wife and to the intestate's father. If there be no father, then one-half shall ^9i L^W ENCYCLOPEDIA. go in equal sliares to, the brotliers and sisters of the intes- tate, and to the children of any deceased brother or sister, by right of representation : provided, that if he or she shall leave a mother also, she shall take an equal share with tha brothers and sisters. If he or she shall leave no issue, oi husband or wife, the estate shall go to his or her father. 3d. If there be no issue, nor husband, nor wife nor fa ther, then in equal shares to the brothers and sisters of the intestate, and to the children of any deceased brother or sister by right of representation : provided, that if he or she shall leave a mother also, she shall take an equal share with the brothers and sisters. 4th. If the intestate shall leave no issue, nor husband, nor wife nor father, and no brother or sister living, at his or her death, the estate shall go to his or her mother, to the exclusion of the issue, if any, of deceased brothers and sisters. 5th. If the intestate shall leave a surviving husband, or wife and no issue, and no father, mother, brother or sister, the whole estate shall go to the surviving husband or wife. 6th. If the intestate shall leave no issue, nor husband, nor wife, and no father, mother, brother nor sister, the estate shall go to the next of kin in equal degree, except- ing that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be pre- ferred to those claimins; through an ancestor more remote : provided, however — 7th. If any person shall die, leaving several children or leaving one child, and the issue of one or more children, and any such surviving child shall die under age and not having been married, all the estate that came to the de- ceased child by inheritance from such deceased parent, shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died by right of representation. • 8th. If, at the death of any such child who shall die under age, and not having been married, all the other chil- dren of his sivid p3.rent shall also be dead, and any of them DESCEND AUD DISTEIBUTION — DESEETION. 295 Bliall have left issue, the estate that came to siach child by inheritance from his said parent, shall descend to all the issue of other children of the same parent; and if all the said issue are in the same degree of kindred to the said child, they shall share the said estate equally, otherwise they shall take according to right of representation, 9th. If the intestate shall leave no husband or wife, nor kindred, the estate shall escheat to the state for the sup- port of common schools. niegitimate Children. — ^Every illegitimate child shall be considered as an heir of the person who shall, in writing, signed in the presence of a competent witness, have ac- knowledged himself to be the father of such child. The estate of illegitimate children, leaving no issue, decends to the mother. Issue of Null Marriages. — The issue of all marriages deemed null in law or dissolved by divorce shall be legiti- mate. Degrees of Kindred. — Kindred of the half blood inherit equally with those of the whole blood. Aliens may Inherit. — Aliens may hold, by inheritance, real and personal estate in as full manner as though they were native-born citizens of this or the United States : provided, such non-resident alien claims the same within five years. If such estate is not claimed within five years, then it must be sold, and the proceeds placed in the state treasury. Within five years after such sale, the proceeds may be claimed by the person entitled to the same. If not claimed within five years, the proceeds go to the school fund. DESERTION. Desertion. — An offense which consists in the abandon- ment of the public service, in the army or navy, without leave. In the Domestic Relation, it means the act by which a 296 XAW ENCYCLOPEDU. man abandons his wife, or a woman lier husband or child- ren. On proof of desertion, the courts possess the power to grant the wife alimony. A continued desertion by either husband or wife, after a certain lapse of time, en- titles the innocent party to a divorce. See Alimony and DrvoECE. DETAINER Detainer. — The act of keeping a person against his will, or of withholding the possession of goods or other per- sonal or real property from the owner. See Landloed AND Tenant. DEVIATION. Deviation. — ^In insurance, deviation means varying from the risks insured against, as described in the policy, with- out necessity or just cause after the risk has begun. See Instjeance. When a Contract is made, to build a structure of any description, according to any plan, and the contract is varied by alteration of the plan, this alteration or variance is called a deviation. DEVISEE. Devisee — A person to whom a gift has been made by will. Devisor. — ^A person wno devises or gives property to another by his will. See WiLLSr DISCOUNT. Discpunt. — ^Interest reserved from the sum of money loaned at the time of making the loan. Discount is fre- qiiently allowed for prompt payment of bills, notes or other money demands. Frequently, the holder of a note or other obligation for the payment of money, assigns such DISCOUNT — DIVORCE. 297 obligation before it is due to a bank or money broker for a less sum than the face of the instrument. The sum gen- erally deducted is the interest. The contract is binding, and is called discounting. DISHONOR. Dishonor. — A term applied to the non-fulfillment of com- mercial engagements. To dishonor a bill of exchange or promissory note, is to refuse or neglect to pay it at matur- ity. Tlie holder is bound to give notice to the parties to such instrument of its dishonor, and, if such notice is not given, the indorsera are discharged. See Bills and Notes, DIVORCE. Divorce. — ^The dissolution of the marriage relation by decree of court on operation of law during the life of the parties. In California the district courts have exclusive jurisdic- tion in divorce matters; and divorces may be granted for any of the following grounds: 1st, adultery; 2 J, extreme cruelty; 3d, willful desertion; 4th, willful neglect; 5th, hab- itual intemperance; 6th, conviction of felony. Adultery. — Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or Avife. Extreme Cruelty. — Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage. Desertion. — Willful desertion is the voluntary separation of oue of the married parties from the other with intent to desert. Desertion Manifested.— Persistent refusal to have rea- sonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal rea- sonably necessary, or the refusal of either party to dwell 298 LAW ENCYCLOPEDIA. in the same house with the other party, when there is no just cause for such refusal, is desertion. Fraud or Stratagem. — When one party is induced, by the stratagem or fraud of the other party, to leave the fam- ily dwelling place, or. to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other. Absence by Cruelty. — Departure or absence of one par- ty from the family dwelling place, caused by cruelty or by threats of bodily harm from which danger would be reason- ably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party. Separation by Consent. — Separation by consent, with or without the understanding that one of the parties will ap- ply for a divorce, is not desei'tion. Separation may become Desertion. — Absence or separa- tion, proper in itself, becomes desertion whenever the in- tent to desert is fixed during such absence or separation. Consent to Separate Revocable. — Consent to a separation is a revocable act, arid if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion. Offer to Return and Desertion Cured. — If one party de- serts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfill the marriage con- tract, and solicits condonation, the desertion is cured. If the other party refuse such offer and condonation, the re- fusal shall be deemed and treated as desertion by such party from the time of refusal. Husband may Choose Home. — The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion. If Living or Home Unfit, Wife may Refuse to Live ■with Husband. — If the place or mode of living selected by DIVOECE. 299 the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him. Willful Neglect. — Willful neglect is the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation. Habitual Intemperance.— Habitual intemperance ig that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would rea- sonably inflict a course of great mental anguish upon the in- nocent party. Willful Desertion. — Willful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for divorce. Denial of Divorce. — Divorce will be denied upon show- ing: 1st, connivance; 2d, collusion; 3d, condonation, or 4th recrimination, or lapse of time. When the earnings of the wife are sufiicient for her support the neglect of the husband to provide is no cause of divorce. Successive Acts of Cruelty, Etc. — Where the cause of divorce consists of a course of offensive conduct, or arises in cases of cruelty, from successive acts of ill-treatment which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness, shall not be evi- dence of condonation of any of the acts constituting such cause, unless accompained by an express agreement to con- done. Witness. — Either party may be a witness, but a divorce will not be granted on their uncorroborated testimony. Legitimacy of Children. — When a divorce is granted on the ground of adultery on the part of the wife, the legitimacy of any children, born or begotten of her before the act of adultery complained of, shall not be affected by the divorce. 30Q XAW ENCYCLOPEDU. Alimony allovred. — In any action for a divorce, tlie court may, during the pendency of the action or at the final hear- ing or afterward, make such order for the support of the wife and the maintenance and education of the children of the marriage as may be just, and may at any time thereafter annul, vary or modify, such order, as the interest and wel- fare of the children may require. Ifo Divcrce allo^ved by Default. — No divorce shall be granted in any action by default of the defendant, nor on the admission or statement of either party, but in all cases the court shall require proof of the facts alleged as the grounds for a divorce. No Eivoree shall be gra::te:l in any action, by default of the defendant, nor on the admission or statement of either party, but in all cases the court shall require proof of the facts alleged as the grounds for a divorce, which proof, if taken before a referee, shall be upon written questions and answers, and free from all legal exceptions as to its competency, admissibility and sufficiency. Nor shall it be lawful for any court to grant a divorce upon any statement or finding of facts by a referee, but only upon the legal testimony taken in the cause. In every action for a divorce, the complaint must be verified. OEEGON. Certain Marriages Void. — All mariiages which are pro- hibited by law on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, shall, if solemnized within this state, be absolutely void, without any decree of divorce or other legal proceedings. Marriage of Minors and Others may be Voided. — "When either of the parties to a marriage, for want of age or under- standing, shall be incapable of assenting thereto, or when the consent of either party shall have been obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be DIVOECE. 301 void from the time its nullity shall be declared by a court of competent authority. In no ease shall a Marriage te a:3judged a Nullity, on the ground that one of the parties was under the ago of legal consent, if it shall appear that the parties, after they had attained such age, had, for any time, freely cohabited to- gether as husband and wife ; nor shall the marriage of any insane person be adjudged void, after his restoration to rea- son, if it shall appear that the parties freely cohabited to- gether, as husband and wife, after such insane person waa restored to a sound mind- When a Marriage is supposed to be Void or the validity thereof is disputed, for any of the causes mentioned in the two preceding sections, either party may file a complaint in the district court of the county where the parties or one of them reside, for annulling the same, and such complaint shall be filed, and proceedings shall be had thereon as in the case of proceedings in said court for a divorce, and upon due proof of the nullity of the marriage it shall be adjudged null and void. Grounds of Divorce and -where to be Tried. — Divorce from the bonds of matrimony may be obtained by com- plaint, under oath, to the district court of the county in which the cause therefor shall have occurred or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either the county in which the parties last cohabited or in which the plaintiff shall have resided for six months before suit be brought, for the fol- lowing causes : 1st. Impotency at the time of the marriage, continuing to the time of the divorce. 2d. Adultery since the marriage, remaining unforgiven. 3d. "WilKul desertion of either party by the other for the space of one year. 4th. Conviction of felony or infamous crime. 6th. Habitual, gross drunkenness, eonlracted since mar- riage. 302 LAW EKCYCLOPEDIA. 6tli. Harsh and cruel treatment or personal indignities, rendering life burdensome^ Ttli. Voluntary neglect of the husband to provide the wife with a home and the common necessaries of life for the space of one year. Duty of District Attorney. — In any suit to dissolve the man-iage contract the state is to be deemed a party, and the summons must be served on the district attorney. In case the defendant makes default or fails to defend in good faith, he shall conduct the defense and defend such action on the part of the state. ■WASHINGTON. Ground of Divorce.— Divorces may be granted for the following causes : 1st. When the consent to the marriage of the party apply- ing for the divorce was obtained by force or fraud and there has been no subsequent voluntary cohabitation. 2d. For adultery on the part of the wife or of the husband when unforgiven, and application is made within one year after it shall come to his or her knowledge. 3d. Impotency. 4th. Abandonment for one year. 5th. Cruel treatment of either, party by the other. 6th. Habitual drunkenness of either party, or the neglect or refusal of the husband to make suitable provisions for his family. 7th. The imprisonment of either party in the peniten- tiary, if cotaplaint is filed during the term of such imprison- ment. And divorce may be granted on application of either party for any other cause deemed by the court sufficient, or where the court shall be satisfied that the parties can no longer live together. Decree of Nullity. — When there is any doubt as to the facts rendering a marriage void, either party may apply for and, on proof, obtain a decree of nullity of marriage. Who may Sue. — Any person who has been a resident of the territory for one year may file his or her complaint for DIVORCE. 303 a divorce or decree of nullity of marriage, under oatli, in the district court of tlie county where he or she may reside, and like proceedings shall be had thereon as in civil cases. Proceedings on Default. — When the defendant does not answer, or answering, admits the allegations in the com- plaint, the court shall require proofs before granting a divorce or a decree of nullity. Eispocition of Property. — In granting a divorce, the court shall also make disposition of the property of the par- ties as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the bur- dens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody and support and education, of the minor children of such mar- riage. Narae may be Changed. — The order of divorce from the bonds of matrimony shall, if granted, completely dissolve the marriage as to both parties ; and the court may, on granting the divorce, change the name of the female, who shall thereafter be known by the name fixed by the court. Duty of Prosecuting Attorney. — It is made the duty of the prosecuting attorney to resist aU petitions for divorce which are undefended. NEVADA. Certain Marriages Void. — ^All marriages which are pro- hibited by law on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, shall, if solemnized within this state, be absolutely void, without any decree of divorce or other legal proceedings. Wlien either of the Parties to a marriage, for want of age or understanding, sliall be incapable of assenting there- to, or when fraud shall have been proved and there shall have been no subsequent voluntary cohabitation of the par- 304 XAW ENCYCLOPEDIA. ties, the marriage shall be void from the time its nullity shall be dcclarecl by a court of competent authority. In no ca-e shall a marriage be acTjuclged a nullity, on the ground that one of the parties was under age of legal con- sent, if it shall appear that the parties, after they attained such age had, for any time, freely cohabited together as husband and wife, nor shall the marriage of any insane person bo adjudged void after his restoration to reason, if it shall appear that the parties freely cohabited together as husband and wife, after such insane person was restored to a sound mind. Prooe3dm:j had. — ^When a marriage is supposed to be void, or the validity thereof is disptited, for any of the causes mentioned in the two preceding sections, either party may file a complaint in the district court of the county where the parties, or one of them, resided, for an- nulling the same ; and such complaint shall be filed and proceedings shall be had thereon, as in the case of pro- ceedings in said court for a divorce; and upon due proof of the nullity of the marriage, it shall be adjudged null and void. Grounds of Divorce. — Divorce from the bonds of matri- mony may be obtained by complaint, under oath, to the probate court of the county in which the cause therefor shall have accrued, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either the county in which the parties last co- habited or in which the plaintiff shall have resided for six months before suit be brought, for the following causes : 1st. Impotency at the time of the marriage, continuing to the time .of the divorce. 2d. Adultery since the marriage, remaining unforgiven. 3d. Willful desertion of either party by the other, for the space of two years. 4th. Conviction of felony or infamous crime. 5thi, Habitual, gross drunkenness, contracted since mar- riage, of either party, which shall incapacitate such party DIVOECE. 305 from contributing his or her share to the support of the family. 6th. Extreme cruelty in either party. 7th. Neglect of the husband for the period of two years, to prpvide the common necessaries of life, when such neg- lect is not the result of poverty on the part of the hus- band which he could not avoid by ordinary industry. Non-residents. — If the defendant is not a resident of the state, or cannot for any cause be personally summoned, the court or judge, in vacation, may order notice of the pendency of the suit to be given in such manner and dur- ing such time as shall appear most likely to convey a knowl- edge thereof to the defendant, without undue expense or delay; and if no such order be made, it shall be sufficient to publish such notice in a weekly newspaper printed in, or nearest to, the county in which the suit is pending, three months in succession; and if the defendant fail to appear and make defense at the first term after such notice, or after thirty days' personal service of summons, the evi- dence may be heard and the cause decided at that term, or compulsory process may be had to obtain an appearance or answer, if it be necessary to the disposition of property or children. Disposition of Property. — The court in granting a de- cree, shall make such disposition of and provisions for the children as shall appear most expedient under all the cir- cumstances, and wisest for the present comfort and future well-being of such children; and when, at the commence- ment and during the pendency of said suit, it shall be made to appear to the court or to the judge, in vacation, that any child of the wife, whether she be plaintiff or defendant, which is too young to dispense with the care of its mother or other female, has been or is likely to be taken or detained from her, or that any child of either party has been or is liltely to be taken or removed by or at the instance of the other party out of the county or concealed within the same, it shall be the duty of the court or of such judge, in vacation, 20 306 LAW ENCYCLOPEDIA. forthwith to order such child to be produced before him, and then to make such disposition of the same, during the pendency of the suit, as shalL appear most advantageous to such child and most likely to secure to it the benefit of the final order to be made in its behalf; and all such orders may be enforced and made effectual by attachment, commitment and requiring security for obedience thereto or by other means, according to the usages of the courts and to the circumstances of the case : provided, the court, upon good cause shown, may change the custody of such minor chil- dren if they should be satisfied that such change will be for the welfare of such children. Discretion of Court. — In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired and to the bur- dens imposed upon it for the benefit of the children; and all property and pecuniary rights and interests, and all rights touching the childron, their custody and guardian- ship, not otherwise disposed of, be regulated by the order of the court, shall, by such divorce, be divested out of the guilty party and vested in the party at whose instance the divorce was granted; and if, after the filing of the petition, it shall be made to appear probable to the court or to the judge, in vacation, that either party is about to do any act that would defeat or render less effectual any order which the court might ultimately make concerning property or pecuniary interests, an order shall be made for the preven- tion thereof, to be enforced as such preliminary orders are enforced respecting children, Testinaony of Witnesses. — The testimony of witnesses in suits for divorce shall be given orally in court, with the right to either party to take and use depositions on the same terms and in the same manner as in actions at law, and the proceedings, pleadings and practice, shall conform to those at law as nearly as conveniently may be, but all preliminary DI70R0E. 307 and final orders may be in such form as will best effect the object of this act and produce substantial justice. Alimony may be Granted. — When the marriage shall be dissolved, by the husband being sentenced to imprisonment, and when a divorce shall be ordered for the cause of adul- tery committed by the husband, the wife shall be entitled to the same proportion of his lands and property as if he were dead ; but in other cases, the court may set apart such portion for her support and the support of their children as shall be deemed just and equitable. In any suit for divorce now pendiug or which may hereafter be commenced, the court or judge may, in its discretion, upon application, of which due notice shall have been given to the husband or his attorney at any time after the filing of the complaint, require the husband to pay such sums as may be necessary to enable the wife to carry on or defend such suit and for her support and the support of the children of the parties during the pendency of such suit ; and the court or judge may direct the application of specific property of the hus- band to such object, and may also direct the payment to the wife, for such purpose, of any sum or sums that may be due or owing to the husband from any quarter, and may enforce all orders made in this behalf. Efffect of Decree. — Whenever an order of divorce from the bonds of matrimony is granted in this state, by the court of competent authority, such order shall fully and completely dissolve the marriage contract as to both par- ties ; and in all suits for a divorce, brought by a female, if a divorce be granted, the court may, for just and reasonable cause, change the name of such female, and shall in its order decree and appoint. Jury Trial may be had.— Either party, on application to the court, may be entitled, at such trial, to have the issue of fact involved in such case and presented by the plead- ings, tried by a jury, in accordance with the general rules governing the trial of civil actions in the district court. 308 LAW ENCYCLOPEDU. DOMICILE Domicile.— The place where a man has his fixed and per- manent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Two things must concur to establish domicile— the fact of residence and the intention of remaining. The character of the residence is of no importance ; and, if it has once existed, mere temporary absence will not destroy it, how- ever long continued. A man may change his domicile, but the original domicile continues till it is fairly changed for another. The Domicile of the husband is that of the wife. A woman, on marriage, takes the domicile of her husband ; but if she is entitled to a divorce, she may acquire a sepa- rate domicile, which may be in the same jurisdiction. DOWER. Do^wer. — ^The provision which the law makes for the widow, out of the lands or tenements of her deceased hus- band, for her support. Oregon is the only state on the Pacific Coast where dower is allowed. In California, Ne- vada, Idaho and Washington, one-half of all the common property becomes the property of the widow, on the death of her husband. See Husband and Wife. DURESS. Duress. — Personal restraint, or fear of personal injury or imprisonment. If a Man be illegally deprived of his liberty until he sign or seal an instrument, such as' a bond, note or the like, he may prove this duress and avoid the instrument so signed. If a Man is held in fear of great personal injury, and, laboring under such fear, signs a bond, note or the like, he may avoid such act on the ground of duress ; but the vio- DUEESS — EASEMENT. 309 lence or threats must be such as are calculated, to operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputa,tion or fortune. In consider- ing such duress, the age, sex, state of health, temper and disposition, of the party, and other circumstances calcu- lated to give greater or less effect to the violence or threats, must be taken into consideration. EARNEST. Earnest. — The payment of a part of the price of goods sold, or the delivery of part of such goods for the purpose of binding the contract. The effect of Earnest, is to bind the goods sold; and, upon the price being paid, the purchaser is entitled to them. After earnest paid, the vendor cannot sell the goods to another ; and, therefore, if the vendee does not come and pay and take the goods, the vendor ought to go and request him, and then if he does not pay for the goods the agreement is at an end and the vendor may sell the goods. EASEMENT. Easement. — A right of the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose. Easements are as various as the purposes to which lands and tenements may be applied. The folio-wing are a few of the many easements : Of pas- ture; taking game; of right of way over land; taking wood, minerals or other produce, of the soil; of receiving air, light or heat, from over other land; of receiving or discharging water over; or having support to buildings from other land; of going on other land to clear a stream or repair its banks, or draw water from a spring there; of do some other act not involving ownership, etc. All Easements must originate in a grant or agreement, 310 LAW ENCYCLOPEDIA. express or implied, of tlie owner of the soil. The evidence of this grant may be by proof of the agreement itself or by proof of immemorial usage or usage, iu the states of 4he Pacific, for five years under a claim of right. Easements are extinguished the same as other rights are extinguished. See Eight of Wat. EFFECTS. Efifects. — Property of any description. In a will, "ef- fects " carry the whole personal estate, but not real estate, unless the word "real" be added. EJECTMENT. Ejectment. — ^A form of action which lies to regain the possession of real estate, with damages for the withholding. Ejectment is a possessory action, and must be brought against the occupant; it determines no rights but those of possession at the time, and it matters not who has or claims to have the title of the premises. In California, Nevadg. and Idaho, an action may be brought by any person in possession, by himself or his ten- ant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate or interest. If the Defendant, in such action, disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff shall not recover costs. In an Action for the Recovery of Real Property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has termi- nated during the pendency of the action, the verdict and judgment shall be according to the fact, and the plaintiff may recover damages for withholding the property. EJECTMENT — ELEOTOE. 311 When Damages are Claimed for -withlioldmg the prop- erty recovered, upon wliicli permanent improvements have been made by a defendant or those under whom he claims, holding under color of title adversely to the claims of the plaintiff, in good faith, the value of such improvements shall be allowed as a set-off against such damages. The Plaintiff must recover on the strength of his own title, and cannot rely on the weakness of the defendant's. ELECTION. Election. — The selection of one man from amongst more, to discharge certain duties in a state, corporation or society. The Obligation imposed upon a party to chose between two inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one that he shall not enjoy both- In Contracts, when a debtor is obliged to do one of two things, as to pay one hundred dollars or deliver one hundred bushels of wheat, he has the choice to do one or the other until thetime of payment; he has not the choice, however, to pay part in each. If a man sells or agrees to deliver one of two articles, as a horse or an ox, he has the election till the time of delivery, it being a rule that "in case an elec- tion be given of two several things, always he which is the first agent and which ought to do the first act, shall have the election." ELECTOR. Elector. — One who has the right to make choice of pub- lic officers ; one who has a right to vote. The Qualifications of electors are generally the same as those required in the person to be elected. To this rule there is one exception : A naturalized citizen may be an elector of president of the United States, although he could not, under the constitution, be elected to that office. 312 LAW ENCYCLOPEDIA. Electors of President, are persons elected by the people of a state, whose sole duty is to elect a president and vice- president of the United States. Each state elects the same number of electors as it has senators and representatives. California has five, Nevada and Oregon, three each. The territories have no voice in the election of a president. ELOPEMENT. Xjlopement. — ^The departure of a married woman from her husband and dwelling with an adulterer. While the Wife resides with her husband and cohabits with him, however exceptionable her conduct may be, yet he is boTind to provide her with necessaries and to pay for them ; but when she elopes, he is no longer liable for her support, and is not bound to pay debts of her con- tracting, when the separation is notorious ; and whoever gives her credit, does so, under these circumstances, at his peril. EMBARGO. Embargo. — A proclamation or order of state, usually issued in time of war or threatened hostilities, prohibiting the departure of ships or goods from some or all the ports of such state, imtil further orders. EMBEZZLEMENT. Embezzlement. — The fraudulent removing and secreting of personal property, with which the party has been in- trusted, for the purpose of applying it to his own use. See CbIMES and PxraiSHMENTS. EMBLEMENTS. Emblements. — The right of a tenant to take and carry away, after his tenancy has ended, such annual profits of the land as have resulted from his own care and labor. EMBLEMENTS— ENGEOSS. 313 All such Crops, as, in the ordinary course of things, return the labor and expense bestowed upon them within the current year, become the subject of emblements, con- sisting of grain, peas, beans, hemp, flax and annual roots, such as parsnips, carrots, turnips and potatoes, as well as the artificial grasses, which are usually renewed like other crops. But such things as are of spontaneous growth, as roots and trees not annual, and the fruit on such trees, although ripe, and grass growing, even if ready to cut, or a second crop of clover, do not fall within the description of emblements. EMBRAOEOR. Embraceor. — He who, when a matter is on trial, comes to the bar with one of the parties, and, for a reward, pri- vately corrupts the jury or stands there to survey or over- look them, thereby to put them in fear or doubt. Embracery, is an attempt to corrupt or influence a court or jury, or any way incline them to be more favorable to one side than the other, for a reward or through fear. See Crimes and Pttnishments. EMINENT DOMAIN. Eminent Domain. — The power to take private property for public use in cases where the public good demands its exercise. This Power can never be exercised until a fair compen- sation is made for the property taken by the public. ENGROSS. Engross.— To copy the rude draught of an instrument, in a fair, large hand. The term is applied to statutes, which, after being read and acted on a sufficient number of times, are ordered to be engrossed. 314 lAW ENCYCLOPEDIA. ENTER. Enter. — ^To go uppn lands for the purpose of taking pos- session ; to take possession. An attorney is said to enter his appearance, or the party himself may enter an appear- ance. A voluntary appearance of a defendant is equivalent to personal service of summons upon him. See Appeae- ANCE. ENTRY. Entry. — ^The submitting to the inspector of oificers ap- pointed by law, who have the collection of the customs, goods imported into the United States, together with a description of such goods and the original invoices of the same, for the purpose of estimating the duties to be paid thereon. In Criminal Law, the act of entering a dwelling-house or other building in order to commit a crime. See Cbimes AND Punishments. In Civil Practice, the act of gomg upon the lands of another or lands claimed as one's own, with intent to take possession. See Landlokd and Tenant. EQUALITY. Equality. — Likeness in possessing the same rights, and being liable to the same duties. Persons are all equal before the law, whatever adventi- tious advantages some may possess over others. All per- sons are protected by the law, and obedience to it is required by all. By virtue of section one, article four- teen, of the constitution of the United States, "no state * * * deny to any person within its jurisdiction the equal protection of the law." In Contracts, the law presumes that the parties act upon a perfect equality; when, therefore, one party uses any EQUALITY— EQUITY. 315 fraud or deceit to destroy this equality, tlie party injured may avoid the contract. In case of a grant to two or more persons jointly, without designating what each takes, they are presumed to take in equal proportions. EQUITY. Equity. — A branch of remedial justice by and through which relief is afforded to suitors in the courts of equity. In the States and territories of the Pacific, legal and equitable relief are administered by the same tribunal. Formerly, courts of equity had rules and forms distinct ' from courts of law governing proceedings in them ; but now, by authority of legislative enactment, there is but "one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs." The Statute makes no distinction in matters of form be- tween actions of contract and those of tort, and relief is administered without reference to the technical and arti- ficial Vules of the common law ; and all matters arising and constituting part of the same transaction may be litigated in the same action. Every action under our system may be termed an action on the case, and any ground of relief which can be regarded as part of the case may be included in the action, but the general principles which govern such actions are retained. Rules and Maxims of Equity. — Equity has certain rules and maxims which are of special significance : 1st. Equity, having once had jurisdiction of a subject matter, because there is no remedy at law or because the remedy is inadequate, does not lose tJie jurisdiction merely because the courts of law afterwards give the same or simi- lar relief. 2d. Equity follows the law. This is true as a general maxim. Equity follows the law, except in relation to those matters which give title to equitable relief, because 316 LAW ENCYCLOPEDU. the rules of law would operate to sanction fraud or injustice in the particular case. 3d. When there is equal equity the law must prevail. The ground upon which a suitor comes into a court of equity is, that he is entitled to relief there. But if his ad- versary has an equally equitable case the complainant has no title to relief. 4th. Equality is equity. This is applied to cases of contribution, apportionment of moneys due among those liable or benefited by the payment ; abatement of claims on account of deficiency of the means of payment, etc. 5th. He who seeks equity must do equity. A party can- not claim the interposition of the court for relief unless his own hands are clean ; unless he will do what is equita- ble should be done by him as a condition precedent to that relief. 6th. Equity considers that as done which ought to be done. In favor of parties who would have had a benefit from something contracted to be done and who have an equitable right to have the case considered as if it had been done, equity applies this maxim. For example : "Where there is an agreement for a sale of land, and the vendor dies, the land may be treated as money, and the proceeds of the sale, when completed, go to the distrib- utees of personal estate instead of to the heir. If the vendee dies before the completion of the purchase, the purchase money may be regarded as land for the benefit of the heir. EQUITY OF REDEMPTION. Equity of Redemption. — A right which the mortgagee of an estate has of redeeming it, after it has been forfeited at law by non-payment at the time appointed of the money secured by the mortgage to be paid, by paying the amount of the debt, interest and costs. See Eedemption. EQUITY OP BEDEMPTION — ^ESCROW. 317 ESCAPE. Escape. — The deliverance of a person who is lawfully imprisoned, out of prison, before such person is entitled to such deliverance. The voluntarily or negligently allowing any person, lawfully in confinement, to leave the place. Negligent Escape takes place when the prisoner goes at large, unlawfully, either because the building or prison in which he is confined is too weak to hold him, or because the keeper by carelessness lets him go out of prison. Voluntary Escape takes place when the prisoner has given to him volimtarily any liberty not authorized by law. An officer is liable for the escape of a prisoner in his cus- tody. See Cbimes and Punishments. ESCHEAT. Escheat. — It seems to be the imiversal rule of civilized society, that when the deceased owner left no heirs, his estate vests in the public, to be disposed of by the govern- ment. Such revesting of lands or other property js an " escheat," and the property escheated is termed "escheated estate." In California, Nevada and Idaho, if a person dies within their limits, seized of any real or personal estate, and leav- ing no heirs, representatives or devisees, capable of inherit- ing or holding the same, and in all cases where there is no owner of such real estate capable of holding the same, such estate escheats to and vests in the state. ESCROW. Escro-w. — A deed delivered to a stranger, to be by him delivered to the grantee upon the happening of certain con- ditions. When the conditions happen and the deed delivered, the transmission of title is complete. The delivery must be to a stranger, and has no effect as a deed till the performance of the condition. 318 LAW ENCYCLOPEDIA. ESTATES OF DECEASED PERSONS. CALIPOBNIA, NEVADA AITO IDAHO. Probate Coiirts and Jurisdiction of. — See Couets op Justice. Jiixisdiction of Estates.— Wills shall be proved and let- ters testamentary or of administration granted : 1st. In the county of which deceased was a resident, at or immediately previous to his death, in whatever place his death may have happened. 2d. In the county in which he may have died, leaving estate therein and not being a resident of the state. 3d. In the county in which any part of his estate may be, he having died out of the state, and not having been a resident thereof at the time of his death. ith. In the county in which any part of his estate may be, he not being a resident of the state, and not leaving estate in the county in which he died. 5th. In all other cases, in the county where application shall first be made. Order of Administration. — Administration of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled in the following order : 1st. The surviving husband or wife, or some person as he or she may request to have appointed. 2d. The children. 3d. The father or mother. 4th. The brothers. 5th. The sisters. 6th. The grandchildren. 7th. Any other of the next of kin who would be entitled to share in the distribution of the estate. 8th. The public administrator. 9th. The creditors. [In California creditors are 8th.] ESTATES OP DECEASED PERSONS. 319 lOth. Any person or persons legally competent: pro- vided, that when there was any partnership existing between the intestate, at the time of his death, and any other per- son, the surviving partner shall in no case be appointed administrator of the estate of such intestate. [In Nevada, the tenth order is as follows : "10th. Any of the kindred not above enumerated within the fourth degree of consanguinity." The eleventh is the same as the tenth in the foregoing. In Idaho, the seventh reads : "7th. Any other of the children," etc. The remainder is like Nevada.] Meirried Women. — "When any unmarried woman who shall have been appointed administratrix, shall marry, her marriage shall extinguish her authority. A married woman shall not be appointed administratrix. Application for Letters of Administration. — Applica- tions for letters must be in writing, signed by the applicant or his counsel, and filed with the clerk of the court. .Contest for Administration. — Any person interested may contest the application by filing written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administrations and pray that letters be issued to himself, after proper petition filed and due notice given. Proof of Death. — The fact of death shall be proved, and the place of residence of deceased, and the character and value of his property. It shall also be ascertained whether deceased left any will. Re-issue of Letters. — If letters have been issued to oth- ers than the surviving husband or wife, the child, father, mother or brother, of the intestate or any one of them, may have such letters revoked and letters issued to him or her. Bonds of Administrator.— Each administrator must give bond in twice the value of the personal property of the estate, for the faithful performance of his duty. In cases of wills, no bond need be given if the will expressly waives a bond. 320 LAW ENCYCLOPEDIA. Inventory of Estate. — ^An inventory must be made of the estate of deceased, and returned to the court at the first term after the appointment of the executor or adminis- trator. Appraisement. — Three disinterested persons are appoint- ed by the court to make the appraisement. If the estate consists entirely of money, appraisers need not be appoint- ed; but the inventory must be made by the executor or administrator in all cases. Support of Family. — The probate court may make a just and reasonable allowance for the support of the deceased's family, to be paid out of the estate. See Homesteaj) and Exempt feom Execution. Claims against the Estate. — Immediately after his ap- pointment, the executor or administrator shall cause to be published a notice to all creditors of deceased, to present their claims to him within ten months after the first publica- tion of such notice or they will be forever barred. Such notice shall be published at least once a week for four weeks, in a paper selected by the court. When Claims must be Presented. — If a claim be not presented within ten months after the first publication of the notice it shall be forever barred: provided, if it be not then due, or if it be contingent, it may be presented within ten months after it shall become due or absolute. If the claimant had no notice by reason of his being out of the state, the claim may be presented at any time before the decree of distribution is made. Afladavit to Claim. — Every claim shall be supported by the affidavit of the claimant that the amount is justly due, that no payments have been made thereon, and that there are no offsets to the same, to the knowledge of the claim- ant or other affiant : provided, that when the affidavit is made by any other person than the claimant, he shall set forth in the affidavit the reasons why it is not made out by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or adminis- ESTATES or DECIIASED PERSONS. 321 trator may also require satisfactory vouchers or proof to be produced in support of liis claim. The amount of in- terest shall bo computed and included in the cJaim, and the rate of interest determined. AUoTv^ance or R^eciion of Claim. — When a claim is presented, the fact of its allowance or rejection must be indorsed on the claim, with the day and date thereof. If allowed, the same shall be presented to the probate judge for approval or rejection. EfTeot of Neglect or Refusal — If the executor, admin- istrator or judge, refuse or neglect to approve or reject such a claim within ten days after it is presented to Lim, such refusal may be considered as equivalent to a reject- tion. Action upon Claim. — When a claim is rejected, the holder shall bring suit in the proper court against the executor or administrator within three months after the date of its rejection, if it be then due, or within three months after it becomes due, otherwise the claim shall be forever barred. Salss of Property. — No sale of any property of an estate of a deceased person shall be valid unless made under aaid by virtue of an order of the probate court.* Application to Sell Property. — ^Applications to sell prop- erty belonging to estates of deceased persons must be made in writing and presented to the probate court, which wiU either allow or refuse the same as the best interests of the estate may demand. When the order to sell is made, it will provide for either a public sale at auction, or private sale by the executor or administrator, as may to the judge seem best for the estate. All sales must be confirmed by the court before they are valid. General Duties of Executors and Administrators. — They must take charge of the property of the estates they * This does not conflict with special acts of the legislature authorizing the sale of property belonging to certain estates named in the acts. 21 322 LAW ENCYCLOPEDIA. represent, collect all debts and pay all just claims duly proven. They may sue and be sued, and, in short, man- age the estate, under the supervision of the court, so that it will suffer no injury. They are not allowed to speculate with the funds of the estate, nor can they make any profit for themselves out of it, except their commissions. They must report to the court from time to time the condition of the estate, and obey all orders made by the court. They are liable to be removed at any time by the court after notice and cause shown, and may be punished for any em- bezzlement or appropriation of the funds of the estate. They are not responsible for losses to their estate without their fault. Payment of Debts. — The debts of the estate shall be paid in the following order : 1st. Funeral expenses. 2d. Expenses of the last siclmess. 3d. Debts having preference by the laws of the United States. 4th. Judgments rendered against the deceased in his lifetime, and mortgages in the order of their date. 5th. All other demands against the estate. Insolvent Estates. — If the estate be insufficient to pay all the debts of any one class, each creditor shall be paid a dividend in proportion to his claim, and no creditor of any one class shall receive any payment until all those of the preceding class shall be fully paid. When Payments to be Made. — As soon as sufficient funds come in, the expenses of the funeral and last sickness shall be paid, and also the allowance made to the family of deceased. Sufficient may be retained to pay the neces- sary expenses of administration, but no legacy or debt need be paid until such payment has been ordered by the court. See Descents and DiSTBiBimoNS. ESTATES OF DECEASED PEESONS, EOBMS OP. 323 fOEMS. Inventory with tlie AffidavUs,-(tc. Probate court, connty of .1 I county clerk of the county of and ex officio clerk of the probate court, do hereby certify that ;, and have been duly appointed appraisers of the estate of deceased, by ordei of the court, duly entered and recorded on the day of , a.d. IS . . Witness my hand and seal of said probate court, this day of [i,.s.] Clerk. In the matter of the estate of deceased. Stateof I county of ) ' , and , duly appointed appraisers of the estate of deceased, being duly sworn, each for himself says, that he will truly, honestly and impartially, appraise the property oi said estate which shall be exhibited to him, according to thq best of his knowledge and ability. Subscribed and sworn to before me, this . . ; . day ot 18 . . - . . . , Deputy Clerk. XNYENTOBT AHD APPBAISEMENT. In the matter of the estate of I deceased. { Seal Estate. 1. A certain lot of land in the county of , described os follows, etc., etc., valued at $ . „, 2. A certain tract of land in the county of , described, etc., etc., valued at Petiojial Estate. 3. Promissory note, made by dated 18. ., for $ indorsed by ..... Pay- ment of $ receipted. Valued at , 4. Promissory note $ . . - , considered worthless 5. One horse, valued at v 6. One'half partnership in the house of , valued at 7. Clothing and furniture, small items, valued. at. 8. Moneys that have come to the hands of the adminis- trators ; , All the personal estate is common property. 32i LAW liNCYCLOPEDU. State of I county of f administrator of the estate of , deceased, being duly sworn says, that the annexed inventory contains a true statement of all the estate of the deceased that has come to the knowledge and possession of deponent, and particularly of all the moneys belonging to said deceased, an ■I all just claims of said deceased against this deponent. Subscribed and sworn to before me, this day of a.d. 18 . . • ■■■• , Deputy Clerk of the Probate Court. We, the undersigned, duly appointed appraisers of the estate of , deceased, do certify that the property mentioned in the foregoing appraise- ment has been exhibited to us, and we appraise the same at dollars and cents. ' 18.. , Estate of deceased, To and Appraisers, Dr. To compensation for services in appraising said estate, items as follows : day's services, at dollars per day each $ Necessary disbursements, as follows : Fare to county and return $ Beceived payment, This bill of appraisers' fees allowed this day of 18. . Probate Judge. Stateof 1 • county of f , and , the appraisers above-named, being duly sworn, each for himself says, that the foregoing bill of items is correct and just, and that the services have been duly rendered as therein set forth. Subscribed and sworn to before me,- this .... day of ... . ,-a.d. 18 . . • •• ...., Deputy Clerk. Crtc^ior's Claim. In the matter of the estate of I deceased. [, Letters of administration upon the above-named estate having been granted to the undersigned presents his claims against said estate, with ESTATES OF DECEASED PEESONS, FOKMS OF— ESTOPPEL. 325 the necessary vouoliers, to said i administrator, for approval, as follows, to wit: Estateof To , Dr. To amoxmt of promissory note herewith filed, dated 18 . . . . $ To interest on same, from , 18. ., at per cent, per month, till paid. Amount of interest at this date To cash loaned, ,18 To agreed price of horse sold and delivered, 18 county of state of . whose foregoing claim is heriswith presented to the adminis- trator of said estate, being duly sworn says, that the amount thereof, to wit: the sum of dollars, with interest as above set forth, is justly due to this claimant; that no payments have been made thereon, and there are no offsets to the same, to the knowledge of this claimant Subscribed and sworn to before me, , ▲.d. 18. . Deputy Clerk. [Indorsement upon this claim:] The within claim is allowed and approved for dollars, with interest as claimed, and dollars for the horse. The item of dollars is without voucher or proof, is barred by the statute of limitations and is rejected. 18.. , Administrator. Allowed and approved, this day of . , 18 . . , f or all but the item of dollars, which latter is rejected. Probate Judge. ESTOPPEL. Esto"p3l. — ^A preclusion in law, which prevents a man from alleging or denying a fact in consequence of his own previous act, allegation or denial, of a contrary tenor. A plea which neither admits or denies the facts alleged by the plaintiff, but denies his right to allege them. A special plea in bar of an action, which happens when a man has done some act or executed some deed which precludes him from averring anything to the contrary. An Estoppel by Deed, arises from the provisions of a deed. It is a general rule, that a party to a deed is estop- ped to deny, anything stated therein which has operated 326 LAW ENCYCLOPEDIA. upon the otlier party as the inducement to accept and act under such deed. An Estoppel by matter of Record, arises from the adju- dication of a competent court. EVASION. Evasion. — A subtle desire to set aside the truth or es- cape the punishment of the law ; as, if a man should tempt another to strike him first, in order that he might have an opportunity of returning the blow with impunity. In such case, he is punishable, because he is, in the eyes of the law, the real aggressor. EVICTION. Eviction. — ^Depriving a person of the possession of his lands or tenements. Total eviction takes place when the possessor is wholly deprived of his rights in the premises. Partial eviction takes place when the possessor is deprived of only a portion of them ; as, if a third person comes in and ejects him from the, possession of half of the land, or establishes a right to some easement over it by a title which is prior to that undfer which he holds. EX OFFICIO. Ex Officio. — By virtue of his office. Many powers are granted and exercised by public officers which are or are iiot expressly delegated. In all the states and territories of the Pacific, many officers have duties to perform outside of the office they hold by name; for example, in many counties the county clerk is, ex officio, clerk of the board of super- visors, county recorder and auditor. EX POST FACTO LAW. Ex Post Facto La^v. — A statute which would render an act punishable in a manner in which it was not punishable EX POST FACTO LAW — EXECUTE. 327 wlien it was committed. By the constitution of the United States, congress is forbidden to pass ex 'post facto laws. A similar provision is found in all state constitutions. The folio-wing are examples of ex post facto laws Every Law that makes an act — done before the passing of the law and which was innocent when done — criminal, and punishes such action. Every La-w that aggravates a crime or makes it greater than it was when committed. Every Law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed, though it would be otherwise of a law miti- gating the punishment. Every Law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to con- vict the offender. EXCHANGE. Exchange. — A transfer of funds, which the transferer has at a certain place, to a second person. See Bills and Notes. In Conveyancing, a mutual grant of equal interests in land, the one in consideration of the other. In the United States, exchange of lands does not differ from bargain and sale. An exchange of one piece or kind of property for another is a good consideration for a deed. EXECUTE. Execute. — The term is frequently used in law; as, to execute a deed, which means to make a deed, including, especially, signing, sealing, acknowledging (when neces- sary) and delivery. To execute a contract, is to perform the contract. To execute a writ, is to do the act command- ed in "the writ. 828 LAW ENCYCLOPEDIA. EXECUTION. Execution. — In civil actions, execution is the mode of obtaining tlie debt, or damages or other thing recovered by the judgment, and it is either for the plaintiff or defendant. The fo!lo-57ln;j are the provisions of law regulating exe- cutions in California, Nevada and Idaho. The writ of exe- cution shall be issued in the name of the people, sealed with the seal of the court and subscribed by the clerk, and shall be directed to the sheriff, and shall intelligibly refer to the judgment, stating the court, the county where the judgment roll is filed, and if it be for money, the amount thereof and the amount actually due thereon, and if made payable in a specified kind of money or currency, the exe- cution shall also state the kind of money or currency in which the judgment is payable, and shall require the sheriff Bubstantially as follows : 1st. If it be against the property of the judgment debtor, it shall require the sheriff to satisfy the judgment, with in- terest, 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 upon real property, then out of the real property belonging to him on the day when the judgment was docketed, or if the exe- cution be issued 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, stating such day or any time thereafter. 2d. If it be against real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants of real property or trustees, it shall require the sheriff to satisfy the judgment, with interest, out of such property. 3d. If it be against the person of the judgment debtor, it shall require the sheriff to arrest such debtor and commit Tn'm to the jail of the county until he pay the judgment, with interest, or be discharged according to law. dth. If it be issued on a judgment made payable in a EXECUTION. 329 specified kind of money or currency, it shall also require the sheriff to satisfy the same in the kind of money or cur- rency in which said judgment is made payable, and the sheriff shall refuse payment in any other kind of money or currency; and in case of levy and sale of the property of the judgment debtor, he shall refuse payment from any pur- chaser at such sale in any other kind of money or currency than that specified in the execution. The sheriff collecting money or currency, shall pay to the plaintiff or party enti- tled to recover the same, the same kind of money or cur- rency received by him, and in case of neglect or refusal so to do, he shall be, liable on his ofiicial bond to the judgment creditor in three times the amount of money so collected. 5th. If it be for the delivery of the possession of real or personal property, it shall require the sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may, at the same time, require the sheriff to satisfy any costs, damages, rents or profits, recovered by the same judgment, out of the personal prop- erty of the person against whom it was rendered and the value of the property for which the judgment was ren- dered, to be specified therein if a delivery thereof can- not be had, and if sufficient personal property cannot be found, then out of the real property, as provided in the first subdivision of this article. When a Wiit of Execution is issued on a judgment recovered against two or more persons, in an action upon a joint contract, in which action all the defendants were not served with summons or did not appear, it shall direct the sheriff to satisfy the judgment out of the joint property of all the defendants, and the individual property only of the defendants who were served or who appeared in the action. In other respects, the writ shall contain the direction speci- fied in subdivisions one and four of the foregoing. Notwithsianding the Death of a party after the judg- ment, execution thereon may be issued, in case of the death of the plaintiff, the same as if he were living, upon the ap- plication of his executor or administrator or successor in 330 LAW ENCYCLOPEDIA. interest, by the court in which the judgment was rendered or exists. And in case of the decease of the defendant, if the judgment be for the recovery of real or personal prop- erty, execution may be issued and executed against the property recovered in the same manner and with the same effect as if he were still living. In all cases, other than for the recovery of money, 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 on supplemental pleadings. See Exempt fbom Execution. EXECUTOR. Executor. — One to whom another man commits his last will and the carrying out of the directions of that will. See Estates of Deceased Persons. EXEMPLARY DAMAGES. Exemplary Damages. — Damages allowed as a punish- ment for wrongs committed with fraud, actual malice or deliberate violence or oppression. Actions of libel, assault and battery, seduction, false imprisonment and the like, are those in which exemplary damages are most frequently given. EXEMPT PROxM EXECUTION. Executions. — In California the following property is ex- empt from execution under section 690 of the code of civil procedure. It was evidently the intention of the legisla- ture by the act of April 1st, 1-872, that its amendment to section 219 of the act to regulate proceedings in civil cases passed April 29th, 1851, should supercede section 690 of the code of civil procedure, but as the act of April 29th, 1851 was repealed by the'code aforesaid, the amendment of April 1st, 1872 was the law only from the date of its pas- sage until January 1st, 1873. EXEMPT FROM EXECUTION. 331 1. Chairs, tables, desks and books, to the value of two hundred dollars, belonging to the judgment debtor; 2. Necessary household, table and kitchen furniture be- longing to the judgment debtor, including one seioing ma- cJiine and one piano, in actual use, in a family, or belonging to a tvoman; stoves, stove-pipe and stove furniture, wearing apparel, beds, bedding and bedsteads, and provisions, act- ually provided for invidual or family use, sufficient for one month; 3. The farming utensils or implements of husbandry of the judgment debtor; also, two oxen, or two horses or two mules, and their harness, one cart or wagon, and food for such oxen, horses, or mules for one month: also, all seed grain or vegetables actually provided, 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; 4. Tools or implements of a mechanic or artisan necessa- ry to carry on his trade; the notarial seal and records of a notary public: the instruments and chest of a surgeon, physician, surveyor, and dentist, necessary to the exercise of their profession, with their scientific and professional li- braries; the law professional libraries and office furniture of attorneys, counselors, and judges, and the libraries of ministers of the gospel; 5. The cabin or dwelling of a miner, not exceeding in value the sum of five hundred dollars; also. Lis sluices, pipes, hose, windlass, derrick, cars, pumps, tools, imple- ments, and appliances necessary for carrying on any kind of mining operations, not exceeding in value the aggregate sum of five hundred dollars; and two horses, mules, or oxen, with their harness; and food for such horses, mules, or oxen for one month, when necessary to be used in any whim, windlass, derrick, car, pump, or hoisting gear; 6. Two oxen, two horses, or two mules, and tbeir har- ness, and one cart or wagon, one dray or truck, one coupee, one hack or carriage for one or two horses, hj the use of which a cartman, drayman, truckman, huckster, peddler, 332 LAW ENCYCLOPEDIA. hackman, teamster, or other laborer habitually earns liis living; and one horse, with vehicle and harness, or other equipments, used by a physician, surgeon, or minister of the gospel, in making his professional visits, with food for such oxen, horses, or mules for one month; 7. Four cows, with their sucking calves, and four hogs, with their sucking pigs; 8. Poultry not exceeding in value fifty dollars; 9. The earnings of the judgment debtor for his personal services, rendered at any time within thirty days next pre- ceding the levy of execution, or levy of attachment, when it appears, by the debtor's affidavit or otherwise, that such earnings are necessary for the use of his family, residing in this state, supported wholly or in part by his labor; 10. The shares held by a member of a homestead asso- ciation duly incorporated, not exceeding in value one thou- sand dollars — if the person holding the share is not the owner of a homestead under the laws of this state; 11. All moneys, benefits, privileges, or immunities ac- cruing, or in any manner growing out of any life insurance on the life of the debtor, made in any company incorporated under the laws to this state, if the annual premiums paid do not exceed five hundred dollars; 1*2. All fire engines, hooks and laders, with the carts, trucks, and carriages, hose, buckets, implements, and ap- paratus thereto appertaining, and all furniture and uniforms of any fire company or department organized under any law of this state; 13. All arms, uniforms, and accouterments required by law to be kept by any person; 14. All court houses, jails, public offices and buildings, lots, grounds, and personal property, the fixtures, furni- ture, books, papers, and appurtenances belonging and per- taining to the court house, jail, and public offices belong- ing to any county of tbis state; and all cemeteries, public squares, parks, and places, public buildings, town halls, markets, buildings for the use of fire departments and mil- itary organizations, and the lots and grounds thereto be- EXEMPT FROM EXECUTION. 333 longing and appertaining, OTvned or held by any town pr in- corporated city, or dedicated by such town or city to health, ornament or public use, or for the use of any fire or mili- tary company organized under the laws of this state; but no ^ article or species of property' mentioned in tliis section is exempt from execution issued upon a judgment recovered for its price or upon a mortgage thereon. [See Home- steads.] Exempt from Execution. — ^In Nevada, the following property is exempt from execution : 1st. Chairs, tables, desks and books, to the value of two hundred dollars, belonging to the judgment debtor. 2d. Necessary household, table and kitchen, furniture be- longing to tlio judgment debtor, including stoves, stovepipe and stove furniture, wearing apparel, beds, bedding and bedsteads, and provisions actually provided for individual or family use sufficient for one month; also, firewood. 3d. The farming utensils or implements of husbandry of the judgment debtor; also, two oxen or two horses, or two males with their harness, four cows with their sucking calves, one cart or wagon, and food for such oxen, horses, cows or mules, for one month; also all seed grain or veg- etables actually provided, reserved or on hand, for the pur- pose of planting or sowing at any time within the ensuing six months, not exceeding in value the sum of two hundred dollars. Two cows are exempt; their calVes are not. 4th. Tools or implements of a mechanic or artisan neces- sary to carry on his trade; the instruments and chest of a surgeon, physician, surveyor-and dentist, necessary to the exercises of their profession, with their scientific and pro- fessional libraries; the law libraries of attorneys and coun- selors, and the libraries of ministers of the gospel. 5th. The cabin or dwelling of a miner, not exceeding in value the sum of five hundred dollars; also, his sluices, pipes, hose, windlass, derrick, cars, pumps, tools, imple- ments and appliances, necessary for carrying on any kind of mining operations, not exceeding in value the aggregate 334 LAW ENCYCLOPEDIA. sum of five hundred dollars; and two horses, mules or oxen, with their harness, and food for such horses mules or oxen, for one month, when necessary to be used for any whim, •windlass, derrick, car, pump or hoisting apparatus. 6th. Two oxen, two horses or two mules, and their har- ness, and one cart or wagon, one drag or truck, one coupee, one hack or carriage for one or two horses, by the use of which a cartman, drayman, truckman, hackman, huckster, peddler, teamster or other laborer, habitually earns his liv- ing; and one horse, with vehicle and harness or other equipments, used by a physician, surgeon, or minister of the gospel, in making his professional visits, with food for such oxen, horses or mules, for one month. 7th. All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, implements and appa- ratus thereto appertaining, and all furniture and uniforms of any fire company or department organized under any law of this state. 8th. All arms, uniforms and accouterments, required by law to be kept by any person. 9th. AH court-houses, jails, public offices and buildings, lots, grounds and personal property, the fixtures, furniture, books, papers and appurtenances, belonging and pertaining to the court-house, jail and other public offices, belonging to any county of this state, and all cemetries, public squares, parks and places, public buildings, town halls, markets, buildings for the use of fire departments and mili- tary organizations, and the lots and grounds thereto belong- ing and appertaining, owned or held by any town or incor- porated 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; but no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recov- ered for its price or upon a mortgage thereon. 10th. The earnings of the judgment debtor for his per- sonal services rendered at any time within thirty days next preceding the levy of execution (or levy of attachment), EXEMPT FROM EXECUTION. 335 when it shall be made to appear by the debtor's affidavit or otherwise, that such earnings are necessary for the use of his family residing in this state, supported wholly or in part by his labor. In addition to the foregoing, there shall be exempted one sewing machine, of a value not exceeding ono hundred and fifty dollars, in actual use by each debtor or the family of the debtor. See, also, Homesteads. OREGON. What Exempt. — The following is exempt from execu- tion, if selected and reserved by the judgment debtor-or his agents, at the time of the levy or as soon thereafter before sale thereof as the same shall be known to him, and not otherwise : 1st. Books, pictures and musical instruments, owned by any pei'son, to the value of seventy-five dollars. 2d. Necessary wearing apparel, owned by any pei'son, to the value of one hundred dollars; and if such person be a householder, for each member of his family, to the value of fifty dollars. 3d. The tools, implements, apparatus, team, vehicle, har- ness or library necessary to enable any person to carry on the trade, occupation or profession, by which such per- son habitually earns his living, to the value of four hundred dollars. Also, sufficient quantity of food to support such team, if any, for sixty days. The word " team," in this sub- division, shall not be construed to include more than one yoke of oxen or a pair of horses or mules, as the case may be. 4th. The following property, if owned by a householder and in actual use, or kept for use by and for his family, or when being removed from one habitation to another, on a change of residence: Ten sheep, with one year's fleece or the yarn or cloth manufactured therefrom; two cows and five swine; household goods, furniture and utensils, to the value of three hundred dollars; also, food sufficient to sup- port such animals, if any for three months, and provisions Odb LAW ENCYCLOPEDIA. actually provided for family use and necessary for the sup- port of such liouseliolder and family for six months. 5th. The seat or pew occupied by a householder or his family in a place of worship. 6th. All property of the state or any county, incorporated city, town or village, therein, or of any other public or municipal corporation of like character. 7th. No article of property, or if the same has been sold or exchanged, then neither"th,e proceeds of such sales or the article received in exchange therefor, shall be exempt from execution issued on a judgment recovered for its price. See Homesteads. I IDAHO. Property Exempt. — 1st. Chairs, tables, desks and books, to the value of one hundred dollars, belonging to the judg- ment debtor. 2d. Necessary household, table ahd kitchen, furniture, belonging to the judgment debtor, including stove, stove- pipe and stove furniture, of whatsoever kind, wearing ap- parel, beds, bedding and bedsteads, and provisions actually provided for individual or family use, sufficient for three months. 3d. The farming utensils or implements of husbandry of the judgment debtor ; also, two oxen or two horses, or two mules and their harness, two cows, one cart or wagon, and food for such oxen, horses, cows or mules, for three months ; also, all seed, grain or vegetables, actually provided, "re- served 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. 4th. The tools or implements of a mechanic necessary to carry on his trade ; the instruments and chests of a surgeon, physician, surveyor and dentist, necessary to the exercise of their profession, with the professional library, and the law libraries of an attorney and counselor ; also, the ward- robe and books of an actor. 5th. The tent and furniture, including a table, camp- EXEMPT FEOM EXECUTION— EXPEETS. 337 stools, bed and bedding, of a miner ; also, his rocker, shov- els, spades, wheelbarrows, pumps and other instruments, used in mining, with provisions necessary for his support for three months. 6th. Two oxen, two horses or two mules, and their har- ness and one cart or wagon, by the use of which a cartman, teamster or other laborer, habitually earns his living, and food for such oxen, horses or mules, for three months ; and a horse, harness or vehicle, used by a physician or surgeon in making his professional visits. 7th. All fire engines, with the carts, buckets, hose and apparatus thereto appertaining, of any fire company or de- partment organized under any law of this territory. 8th. All arms and accouterments required by law to be kept by any person. But no article mentioned in this sec- tion shall be exempt from execution issued upon a judgment recovered for its price, or upon a mortgage thereon. 9th. All court-houses, jails, public offices and buildings, lots, grounds and personal property, the fixtures, furniture, books, papers and appurtenances, belonging and pertaining to the court-house, jail and public offices, belonging to any county of this territory ; and all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings appertaining to the fire departments, and the lots and grounds thereto belonging and appertaining, owned and held by any incorporated city, or dedicated by such town or city, to health, ornament or public use. See Homesteads. EXPERTS Expert:!.— Witnesses who are admitted to testify from a peculiar knowledge of some art or science, a knowledge of which is requisite or of value in settling the point at issue. In taking accounts, professional book-keepers may be exam- ined as experts as to the meaning of certain entries. Pen- men of skill and experience may be examined as experts in regard to the genuineness of writings, etc. 22 338 LAW ENCYCLOPEDIA. EXTORTION. Extortion. — The unlawful taking by any officer, by color of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. See Ceimes and Punishments. EXTRADITION". Extradition. — The surrender by one state to another, on its demand, of persons charged with the commission of crime within its jurisdiction, that they may be proceeded against according to law. The states of the United States surrender criminals to each other on proper demand of the governor of the state from which the person charged with crime has escaped. Treaties have been made between the United States and the following foreign states for the mutual surrender of per- sons charged with any of the crimes specified, viz : Great Britain. — Crimes — ^murder, assault with intent to commit murder, piracy, arson, robbery, forgery and utter- ance of forged paper. France. — Crimes — murder, attempt to commit murder, rape, forgery, arson and embezzlement by public officer? when the same is punishable with infamous punishment, burglary and robbery, forgery, utterance of forged paper and embezzlement by servants. Prussia, Saxony, Hesse Cassel, Hesse Darmstadt, Saxe- Weimar-Eisenach, Saxe-Meiningen, Saxe-Altenburg, Saxe- Coburg-Gotha, Brunswick, Anhalt, Dessau, Anhalt-Bern- burg, Nassau, Schwarzburg-Budolstadt, Schwarzburg-Sou - dershausen, Waldeck, Eeus-elder, Eeus-junior, Lippe, Hesse- Homburg, Frankfort, Fue-Hansiatic, City of Brenfen, Meck- lenburg-Schwerin, Oldenburg and Schaumburg-Lippe, de- liver up persons charged with murder, assault with intent to commit murder, piracy, arson, robbery, forgery, utter- ance of forged paper, fabrication or circulation of counter- feit money and embezzlement of public money. EXTBADITION — EXTEEMIS. 339 Bavaria and Hanover. — Crimes — the same as in tlie treaty with Prussia. Austria. — Crimes — ^murder, assault with intent to commit murder, piracy, arson, robbery, forgery, fabrication or cir- culation of counterfeit money and embezzlement of public moneys. S^wlss Confederation. — Crimes — murder, attempt to com- mit murder, rape, foigery or the emission of forged papers, arson, robbery witl-. violence, intimidation or forcible en- try of an inhabited house, piracy, embezzlement by public officers or by persons hired or salaried to the detriment of their employers, when these crimes are subject to infamous punishment. Two Sicilies. — ^Murder, attempt to commit murder, rape, piracy, arson, the making and altering of false money, forg- ery, robbery with violence, intimidation or forcible entry of an inhabited house, embezzlement by public officers (includ- ing appropriation of public funds), where these crimes are subject to infamous punishment. Havraiian Islands. — Crimes— murder, piracy, arson, rob- bery, forgery and the utterance of forged paper. The United States has made treaties for the mutual sur- render of deserters, with the following states : Austria, Belgium, Brazil, Central America, ChUe, China, Columbia, Ecuador, France, Greece, Guatemala, Hanover, the Hanse- atic towns, Hawaiian Islands, Mecklenburg-Schweriu, Mex- ico, New Granada, Peru, Portugal, Prussia, Sardinia, Two Sicilies, Spain, Sweden, Norway and Venezuela. EXTREMIS. Extremis. — ^When a person is sick, beyond the hope of recovery and near death, he is said to be in extremis. A Will made in this condition, if made without imdue influence, by a person of sound mind, is valid. 340 LAW ENCYCLOPEDIA. FACT. Pact. — ^I'act is much Tiscd in distinction from law. Material Facts, are those which are essential to the right of action or defense. Xmmaterial Facts, are those which are not essential to the right of action or defense. The existence of facts is generally determined by the jury, but there are niany facts of which a court takes cog- nizance. FACTOR. Factor. — ^An agent employed to sell goods, consigned or delivered to him by. a second person. His compensation is called "factorage" or "commission." When such agent accompanies a ship on a voyage, for the purpose of dispos- ing of the cargo, he is called a supercargo. Such factor may pay and sell in his own name for his principal. A broker must pay and sell in the name of his principal ; and herein is the principal difference between them. Domestic Factors. — A domestic factor is one who resides in the same country with his principal ; a foreign factor is one who resides in a different country from his principal. • Responsibility. — When a purchase has been made by a factor, he as well as his principal is liable for the debt; and in case of a sale, the purchaser is responsible, both to the factor and principal, for the purchase money ; but this pre- sumption may be rebutted by proof of exclusive credit. His Duties. — He must use reasonable skill and ordinary diligence in his business. When he has no instructions, he must act in his sales according to the general usages of trade ; but, if express instructions are given, he must follow them. If he has nO instructions, he may give credit, if such is the usage of trade ; and, in all cases, he is entitled to the usual compensation allowed to factors engaged in the same FACTOIl — FALSE EETUEN. 341 business, if no express contract be uiado ; and he must ac- count to his principal for all moneys received. His rights generally. — He may sell in his own name — ^may recover the price in his own name, and may give receipts and discharge debtor, unless the debtor has been notified not to pay the factor. He has a lien on the goods for ad- vances he has made on them and for his commissions. He must not barter or exchange his principal's goods when his commission is to sell, nor may he pledge them to raise money for himself or to secure money he may owe ; but he may pledge them for advances made to his principal or to raise money for him ; or, what is more important, to reim- burse himself to the amount of his own lien for advances on tJie same goods. Dealing ^vith Factor, Principal Unknown. — Where third persons deal with the factor, in good faith, not know- ing the name of the principal, they will be protected against all claims he may make, leaving him to deal-with his factor ; but, when the person dealing with the factor knows who the principal is and also the extent of authority of the factor, he must have his eyes open to the power and authority of such factor. FALSE IMPRISONMENT. False Imprisonment. — Any unlawful restraint of a man's liberty, whether in a place made use of generally or in one used only on a particular occasion, or by words and an array of force, without bolts or bars, in any locality whatever. The Remedy is, in order to be restored to liberty, by writ of habeas corpus, and, to recover damages for the injury by civil action. False imprisonment is also a crime. See Ceimes and Punishments and Habeas Coepus.* FALSE RETURN. False Return. — A return made by a sheriff or other min- isterial officer to a writ, in which is stated a fact contrary 342 ' LAW ENCYCLOPEDIA. to tlie truth and injurious to one of tlie parties or some one > having an interest in it. The officer making a false return is liable for damages to the party injured. FARRIER. Farrier. — One who takes upon himself the public employ- ment of shoeing horses. Like an Innkeeper, a common carrier, and other persons who assume a public employment, a farrier is bound to sei-ve the public, so far as his employment goes, and an action lies against him for refusing, when a horse is brought to him at a reasonable time, for such purpose, and he is liable for un- skill fulness of himself or servant in performing such work. FATHER. Father. — By law, the father is bound to support his chil- dren, if of sufficient ability. He is not bound by their con- tracts even for their necessaries, unless an actual authority be proved, or a clear omission of his duty to furnish such necessaries, or unless he suffer them to remain abroad with their mother, or forces them from home by hard usage. His obligation to maintain his child ceases as soon as the child becomes of age, unless the child becomes chargeable to the public as a pauper. The obligation also ceases during the minority of the child, if the child voluntarily abandons the home of his father, either for the purpose of seeking his fortune in the world or to avoid parental discipline and re- straint. He is guardian of his children and entitled to their custody in preference to their mother. See MmoES. FEE-SIMPLE. Fee-simple. — An estate. It is the largest possible estate which a man can have, being an absolute estate in perpetu- ity. It is where lands are given to a man and to his heirs absolutely, without any end or limitation put to the estate. FEE-SIMPLE — FINDEK. 343 FELON. Felon. — One convicted and sentenced for a felony. A felon is infamous, and cannot fill any office or become a wit- ness in any case unless pardoned, except in case of absolute necessity. See Witness. FINAL JUDGMENT. Final Judgment. — A judgment which puts an end to the action by declaring that the plaintiff or defendant has or has not entitled himself to any relief asked in the pleadings. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case re- quires it, determine the ultimate rights of the parties on each side, as between themselves. , FINDER Finder. — One who lawfully comes to the possession of another's personal property which has been lost. The Finder of an article is entitled to recover all ex- penses which have necessarily occurred in preserving the thing found ; as, if a man were to find an animal, he would be entitled to be reimbursed for its keeping, for advertising in a reasonable manner that he had found it, and to any reward which may have been offered by the owner for the recovery of such lost thing. In California, the finder of property lost is required by law to hand the same to the sheriff of the county where the property was found. If the Finder knows the owner and fails to return the property to him, he is guilty of larceny. 344 LAW ENCYCLOPEDIA. riRM. Firm. — ^Tlie persons composing a partnership taken col- lectively. See Paetneeship. FISH COMMISSIONERS. See Appendix. FIXTURES. ft Fixtiires. — Personal chattels affixed to the real estate, ■which may be reserved and removed by the party who has affixed them, or by his personal representative, against the will of the owner of the land. Questions frequently arise as to whether given append- ages to a house or land are to be considered part of the real estate, or whether they are to be treated as personal prop- erty. The Annexation may be actual or constructive. By an- nexation, is understood every mode by which a chattel can be joined or united to the freehold. The article must not be merely laid upon the ground; it must be fastened, fixed or set, into the land, or into some erection as is unquestion- ably part of the realty, otherwise it is in no sense a fixture. Locks, iron stoves set in brickwork, posts and window- blinds, afford examples of actual annexation. But loose, movable machinery used in prosecuting any kind of busi- ness to which , the realty is adapted, cannot be considered part of the real estate nor in any way appurtenant to it. As between Landlord and Tenant, the rule is that a tenant may sever at any time before the expiration of his teiiaii- cy and carry away all such fixtures of a chattel nature as he has himself erected upon the demised premises for the piir- poses of ornanient, domestic convenience or to carry on a trade: provided, that the removal can be effected without material injury to the freehold. See Landloed and Tenant. FOLIO. Folio. — A certain number of words specified by statute as FOLIO— FKATJDS, STATUTE OF. 345 a folio. On the Pacific coast one hundred words make one folio. FORCIBLE ENTRY. [See LA.NDLOKD AND TENANT.] FORECLOSURE. Foreclosure. — A proceeding at law, by which the mort- gagor or his assignee obtains judgment against the property mortgaged, and against the mortgagee and a decree of the court ordering the property sold to satisfy the mortgage. See MOBTGAGE. FORGERY. Forgery. — The falsely making or naaterially altering with intent to defraud, any writing, which if genuine, might ap- parently be of legal efficacy or the foundation of a legal lia- bility. See Chimes and Punishments. FRANCHISE. Franohise — A special privilege' conferred by government on individuals, and which does not belong to the citizens of the country generally by common right. Eailroads and canals, to which is granted any special privileges, are fran- chises. FRAUD. Fraud. — The unlawful appropriation of another's property with knowledge, by design and with criminal intent. Effect of. — Fraud, when proved, avoids a contract, ah initio that is, from the beginning, whether the fraud be in- tended to operate against one of the contracting parties or against third parties, or against the pubHc. See Crimes and Punishments. FRAUDS, STATUTE OF. Frauds, Statute of.— See Conveyancing and Contracts. 346 LAW ENCYOLOPEDU. FREEHOLD. Freehold. — A freehold ■which has descended to a man, upon which he may enter at pleasure, but which he has not entered upon. FREEHOLDER. Freeholder, — The owner of a freehold estate. Freeholder appears to be for all practical purposes the same as owner. See SUBETBES. GARNISHMENT. Gamishnient.^-In the practice of the states of the Pacific, all persons having in their possession or under their control, any credits or other personal property belonging to the de- fendant or owing any debts to the defendant at the time of service upon them of a copy of the writ of attachment and notice, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff, for the amount of such credits, property or debts, until the attachment be discharged or any judgment recov- ered by him be satisfied. GIFT. Gift. — ^A voluntary conveyance : that is, a conveyance not founded on the consideration of money. Delivery is essen- tial, for without possession the title does not pass. A mere intentiou or naked promise to give, without some act to pass the property, is not a gift. If the thing given be not capa- ble of actual delivery, there must be some act equivalent to delivery. GOOD WILL. Good Will. — ^There is a species of personal property pos- sessing a mercantile character called, in law, "goodwill," a question as to the ownership of which often arises on the dissolution of a partnership. This consists in the proba- GOOD WILL. 347 bility that the old customers will resort to the old place. The question presented has been whether, on the death of a partner, the good will of the business went to the surviving partners or whether it was a partnejjghip effect and, as such, liable to be accounted for by the survivors. Ill Professional Partnerships. — So far as concerns profes- sional partnerships, there seems to be but little doubt of its surviving, but in those which are mercantile-it is sometimes of great value; and in proper cases, perhaps in all cases that admit of it, the courts will direct it to be sold, and will re- strain the former owners from pursuing a business which would render it valueless to the purchasers. Name or Trade-mark. — ^An interest somewhat analogous to good will is the right to the exclusive use of a particular name or mark upon goods and merchandise, usually known as "trade-marks." This right can only be acquired by spe- cial appropriation and undisturbed enjoyment. The name or marks to which the right attaches, must be such as des- ignate the origin or ownership of the articles, not those merely indicating their name or quality. Ii^juaetion to Restrain use of Name or Trade-mark.^ A merchant or manufacturer will not be permitted to use the name or trade-mark of another, although he may be ignorant of the fact. In cases of violation of this right, the courts are usually applied to for an injunction to restrain all further use of the name or mark. In granting relief in such cases, the court does not require an exact similarity to be shown between the two marks. It is enough that one is so closely imitated from the other as to deceive the public and draw away customers. The Law of Trade-marks in California. — In California, any person wishing to secure the exclusive use of any trade- mark or name, shall file his claim to the same, and a copy or description of the same, with the secretary of state. A fee of five dollars is required to be sent with trade-mark. Any imitation or violation of a trade-mark so secured, is a crime punishable by fine and imprisonment. 348 LAW ENCYCLOPEDIA. FORMS. Sale of Good WiU. Know all men by these presents : That for and in consideration of the sum of dollars, to me in hand this day paid, by ,1 have sold and assigned to the said [or to and my former partners] the " good will," custom and trade, of my business of No street, city of [or, if the sale is to former partners, " my interest in the ' good will,' etc., of said partnership "]. Tn witness whereof, etc. . Notice of Trade-mark. Know all men by these presents : That I claim the following as my trade- mark : [give copy of trade-mark, if possible] and notice is hereby given that the same is my exclusive property, and all persons are forbid using the same without my authority. In witness whereof, etc. GROWING CROPS. Gro^vin;^ Ciops. — Growing crops raised by the cultivation of man, are, in certain cases, personal chattels, and in oth- ers part of the realty. If planted by the owner of the land, they are part of the realty, but niay, by sale, become per- sonal chattels, if they are fit for harvest and the sale contem- plates their being cut and carried off, and not a right in the vendee to enter and cultivate. If a tenant plants annual crops, they are personal chattels when fit for harvest. See Lahdlobd and Tenant. GUARANTY. Guaranty and Guarantor. — ^A person who is bound to another for the fulfillment of a promise of a third person, is a guarantor. Surety for Another. — The law declares every special promise to answer for the debt, default or miscarriage, of another, to be void, unless such agreement, or some note or memorandum thereof expressing tJie consideration, be in writ- ing and subscribed by the party charged therewith. No special form or words are necessary to such contract. If the whole contract shows clearly that A promises B to guaran- GUAEANTY, JOBMS OF. 349 tee the debt of C, no matter what language is used to ex- press the contract, it will do, and the courts will sustain it. This promise is good, although not in writing, when the guarantor has some interest in the contract. That interest may be much or little, as the courts in these cases do not inquire into the extent of the interest, but the question — "Has the grantor any interest whatever?" is alone material to take the case oub of the statute above quoted. To v^hom to looiibr Pay. — The guarantee is entitled to receive payment, in the first place, from the debtor, and, secondly, from the guarantor. He must be careful not to give time to the debtor to pay the debt without the consent of the guarantor. If he does give time, without such con- sent, the guarantor is thereby discharged. Duty of Creditor to Sue. — The creditor should, at the request of the guarantor, bring an action against the debtor to secure the debt, and, unless he does so, on tender of costs by the guarantor, such neglect may act also as a discharge. If the creditor declines to sue, the guarantor may pay the debt himself, and become subrogated to all the rights and securities of the creditor, and sue in his own name to secure himself. He may, also, without requesting the creditor to sue, pay the debt, take an assignment of the debt and sue in his own name. When Guaranty is not Binding. — A guaranty is not bind- ing, unless the guaranty is accepted by the creditor. This acceptance may be expressed or implied. It is best, in all cases of importance, to notify the guarantor of the accept- ance of the guaranty. For the La^ on the subject of indorsement, see Bills ABD Notes.* FOEMS. Chiarardy to he Indorsed on Note. [Date.] For value received, I guarantee the due payment of the ■within note. [Signed] * In the Btates and territories of the Pacific, the courts treat a guarantor of a note or bU] as an indorser, and entitled to notice of no payment. 350 LAW ENCYCLOPEDIA. Guaranty of a Note on Separate Paper. [Date] ITor value received, I guarantee the payment of the following-desfribed promissory note. [Full description.] [Signed] Letter of Guaranty. SrE : If you will sell to Mrs of [or, "the firm of," or, " & Co."] all the goods she [or, " they wish "] wishes to buy, to the amount of , within [so many days, months or years] from date, for the consideration of one dollar paid me by the said I hereby promise and guarantee that the price agreed ' upon between you and the said , for said goods, shall be duly paid. [This letter may also state the terms on' which the said goods are to be sold ; and also, any condition the guarantor may see fit to a£ax to his guaranty.] In witnesis, etc. [Signed] [Date.] Xcifer of Acceptance, to be Registered at the Past-office, to insure Delivery and preserve Evidence of Beceipt of same by Guarantor. Sib : Your letter of ..... [state fully the contents of the letter of guaranty so that there can be no mistake as to what is meant], is received, and you are hereby notified that your promise to guarantee the payment of any debt the said may contract, and the payment of the price of any goods he may purchase, as stated in your letter of .guaranty aforesaid, is accepted, and we will supply the said any goods he may wish to purchase of us on the faith of your said promise as limited in said letter of guaranty. In Tidtness, etc. [Signed] [Date.] When Goods, stocks or securities, of any kind are given as "collaterals" for any debt, an instrument is generally given, tlie intention of which is to guarantee that the collat- eral should remain sufficient to secure the indebtedness. It may be in one of the following forms, as the bargain re- quires. These are sometimes called "margin guarantees": Guaranty with Collaterals authorizing Sale. Whereas, I-have deposited with a.s collateral security for - payment at maturity, of the following [describe the debt guaranteed]. Now these presents witness : That in the event of the non-payment at maturity of any or aU these, I hereby authorize or his assigns, to sell the above described [description of collaterals], at public or private sale, or at the broker's board, without notice to me, and apply the proceeds to the pay- ment of said debt and all necessary expenses, holding me responsible for any deficiency. In witness, etc. [Signed] GUAEANTY, FORMS OF— GUABDIAN. S51 Ovara«iy with Collaterals promising Additional Security or authorinng a Sale Having borrowed this day of the sum of , on the fol- lowing collaterals [here descrille the collaterals], I hereby agree, in case the market price of said stock shall fall at any time during the continuance of the said loan to an amount insufficient to cover the sum loaned, with per cent, margin added thereto, that in such event I will, on demand, deposit additional security, to be approved bj' him, which shall be sufficient to keep the collaterals thus deposited equal to a sum .... per cent, above said loan, and so as often as said collaterals shall diminish ; and that in default thereof the said shall have the power to sell at public or private sale, without notice, all or any of the said securities (as well as any others he may hold), to pay the amount of the said loan, with all interest and charges thereof, and for so doing I fully release him from all claims, actions and causes of actions, therefor which I may or might have against him. In vritness, etc. [Signed] [l.s.] GUARDIAN. Guardian. — One who has the care and management of the person or estate, or both, of a child during its minority. The following is statutory and applicable to the Pacific coast : When an Infant is a party to a suit, he shall appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof or a county judge. The Guardian shall be appointed as follows. 1st. 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. 2d. "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; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a rela- tive or friend of the infant. A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. 352 LAW ENCYCLOPEDIA. HABEAS CORPUS. Who miy prD3ecu.t3 the Writ. — In California, Nevada and Idaho, every person unlawfully committed, detained, confined or restrained, of his liberty, imder any pretense whatever, may prosecute a wiit of habeas corpus to inquire into the cause of such imprisonment or restraint. Appl'-oation for Writ. — ^Application for such writ shall be made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf, and shall specify; 1st. That the person in whose behalf the writ is applied for, is imprisoned or restrained of his liberty; the officer or person by whom he is so confined or restrained, and the place where, naming all the parties if they are known, or describing them if they are not known. 2d. If the imprisonment be alleged to be illegal, the peti- tion must also state in what the illegality consists. 3d. The petition must be verified by the oath or affirma- tion of the party making the application. Who may grant Writ. — Such writ may be granted by the supreme court, or any judge thereof, or any district or cotmty court in term time, or by any judge of such courts at any time, whether in term or vacation. [In Nevada and Idaho, there are no county courts.] Discharge of Person detained in Custody. — When the officer or person having the custody of the person brought up under the writ shows by his return any one of the follow- ing cases, such prisoner may be discharged : 1st. When the jurisdiction of such court or officer has been exceeded. 2d. When the imprisonment was at first lawful, yet by some act, omission or event, which has taken place after- wards, the party has become entitled to be discharged. 3d. When the process is defective in some matter of sub- stance required by law rendering such process void. HABEAS CORPUS, FOBMS OP, 353 4tli. When the process, though proper in form, has been issued in a case not aUowecl by law. 5th. "When the person having the custody of the prisoner is not the person allowed by law to detain him. 6th. Where the' process is not authorized by any judg- ment, order or decree, of any court, nor by any provision of law. 7th. Where a party has been committed on a criminal charge without reasonable or probable cause. FORMS. PetUion for Writ. In the district coTirt of the .... judicial district of the state of . .- . in and for the county of ... . In the matter of the application of | for a ■writ of habeas corpus. ) To the hon judge of the district court of the judicial district of the state of , in and for the county of The petition of , respectfully shows, that , is unlawfully imprisoned, detained, confined and restrained, of liberty by , at in the county of in the state of That the said imprisonment, detention, confinement and restraint, are ille- gal, and that the illegality thereof consists of this, to wit : [State cause or reason of illegal restraint or confinement]. Wherefore, your petitioner ' prays that a writ of hxibeas corpus may be granted, directed to the said , commanding to have the body of before your honor at the time and place therein to be specified, to do and receive what shall then and there be considered by your honor, concerning together with the time and cause of deten- tion and said writ ; and that , may be restored to ... . liberty Dated 18.. Stateof I county of j , being duly sworn says, that .... is the petitioner named in the foregoing petition, that has read the said petition and knows the contents thereof, and that the same is true of own knowledge, except as to the matters which are therein stated on information or belief, and as to those matters that .... believes it to be true. Subscribed and sworn to before me, this day of a.d. 18 . . 354 LAW ENCYCLOPEDIA. Order granting Writ, In the district court of the judicial distrit of the state of ... . in and for the county of ... . In the matter of the application of ] for a writ of habeas corpus. ) Upon reading and filing the petition of , duly signed and veri- fied by -whereby it appears that is illegally imprisoned and restrained of liberty by at the , in the county of , in the state of , and stating ■wherein the alleged illegality consists, from which it appears to me that a writ of habeas corpus ought to issue. It is ordered, that a writ of habeas corpus issue out of and under the seal of the district court of the judicial district of the state of , in and for the county of , directed to the said , command- ing to have the body of the said , before me, in the court-room of the said court, on the day of a.d. 18. ., at o'coloet, . .M. of that day, to do and receive what shall then and there be considered concerning the said , together with the time and cause of detention, and that have then and there the said writ. Bated 18.. In the district court of the judicial district of the state of .... in and for the .... county of District Judge, .... District. The people of the state of , to , greeting: "We command you, that you have the body of , by you imprisoned and detained, as it is sajd, together with the time and cause of such imprison- ment and detention, by whatsoever name said shall be called or charged, before , judge of the judicial district of the state of at the court-room of the district court of said district, in and for the county of , on the day of , a.d. 18 . . , at o'clock, in the noon of that day, to do -and receive what shall then and there be considered concerning the said And have you then and there this writ. Witness hon , judge of the said district court, at the court- room thereof, in the .... county of , this day of a.d. 18 . . Attest my hand and the seal of said court, the day and year last above- written. , • Clerk. By Deputy Clerk. HABITUAL DRUNKARD. Habitual Drunkard. — A person given to the excessive use of intoxicating drink, who had lost the power or the will, by frequent indulgences, to control his appetite for it. The HABITUAL DBUNKAED— HOMESTEADS. 355 courts of California hold a person not to be an habitual drunkard who is capable of attending to his business or calling the principal part of his time. Habitual drunken- ness is a ground of divorce. See Divobcb. HEARSAY EVIDENCE. Hearsay Evidence. — That kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person. As a general rule, such reports of transactions are not admissible in evidence. Mat- ters relating to public interest may be proved by hearsay evidence. HOMESTEADS. An Ad of Congress to secure Homesteads to Actual Settkrs on the Public Domain, passed May 20(A, 1862. Homestead, "who may Acctuire. — Section 1. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that any person who is the head of a family, or who has arrived at the age of twen- ty-one years, and is a citizen of the United States, or who shall have filed his declaration of intention to become such, as required by the naturalization laws of the United States, and who has never borne arms against the United States government, or given aid and comfort to its enemies, shall, from and after the first of January, eighteen hundred and sixty-three, be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emp- tion at one doUar and twenty-five cents or less, per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal sub-subdivisions of the public lands, and after the same shall have been surveyed : provided, that any person owning and residing on land may, under the 356 LAW ENCYCLOPEDIA. provisions of this act, enter other land lying contiguous to his or her said land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty acres. Affidavit to be Filed. — Sec. 2. And be it further enacted, that the person applying for the benefit of this act shall, upon application to the register of the land office in which he or she is about to make such entry, make affidavit before the said register or receiver that he or she is the head of a family or is twenty-one years or more of age, or shall have performed service in the army or navy of the United States, and that he has never borne arms against the government of the United States or given aid and comfort to its enemies, and that such application is made for his or her exclusive use and benefit, and that said entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person or persons whomsoever; and upon filing the said affidavit with the register or receiver, and on payment of ten dollars, he or she shall thereupon be permitted to enter the quantity of land specified: provided, however, that no certificate shall be given or patent issued therefor until the expiration of five years from the date of such entry; and if, at the expira- tion of such time or at; any time within two years thereafter, the person making such entry; or, if he be dead, his widow;, or, in case of her death, his heirs or devisee; or, in case of a widow making such entry, her heirs or devisee, in case of her death, shall prove by two credible witnesses that he, she or they, have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit aforesaid, and shall make affidavit that no part of said land has been alienated, and that he has borne true allegiance to the government of the United States; then, in such case, he, she or they, if at that time a citizen of the United States, shaU be entitled to a patent, as in other cases provided for by law : and 'provided, further, that in case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure to the benefit of said infant child or children; HOMESTEADS. 357 and the executor, administrator or guardian, may, at any time -witliin two years after tlie death of the surviving parent, and in accordance with the laws of the state in which such children for the time being have their domicil, sell said lands for the benefit of said infants, but for no other purpose; and the purchaser shall acquire the absolute title by the pur- chase and be entitled to a patent from the United States, on payment of the office fees and sum of money herein speci- fied. Register of Entries. — Sec. 3. And be it further enacted, thjat the register of the land office shall note all such appli- cations on the tract books and plats of his office, and keep a register of all such entries, and make return thereof to the general land office, together with the proof upon which they have been founded. Exempt from Execution. — Sec. 4. And be it further en- acted, that no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor. Abandonment. — Sec. 5. And be it further enacted, that, if at any time after the filing of the affidavit, as required in the second section of this act, and before the expiration of the five years aforesaid, it shall be proven, after duo notice to the settler, to the satisfaction of the register of the land office, that the person having filed such affidavit shall have actually changed his or her residence, or abandoned the said land for more than six months at any time, then and in that event the land so entered shall revert to the government Amount of Land. — Sec. 6. And be it further enacted, that no individual shall be permitted to acquire title to more than one quarter section under the provisions of the act; and that the commissioner of the generalland office is here- by required to prepare and issue such rules and regulations, consistent with this act, as shall be necessary and proper to carry its provisions into efiect; and that the registers and receivers of the several land offices shall be entitled to re- 358 LAW ENCYCLOPEDIA. ceive the same compensation fpr any lands entered undei tlie provisions of tMs act that they are now entitled to receive when the same quantity of land is entered with money, one- half to be paid by the person making the application at the time of so doing, and the other half on the issue of the cer- tificate by the person to whom it may be issued; but this shall not be construed to enlarge the maximum of compen- sation now prescribed by law for any register or receiver : provided, that nothing contained in this act shall be so construed as to impair or interfere in any manner -whatever with existing pre-emption rights: and provided, further, that all persons who may have filed their applications for a pre-emption right prior to the passage of this act, shall be entitled to all privileges of this act : provided, further, that no person who has served, or may hereafter serve, for a period of not less than fourteen days in the army or navy of the United States, either regular or volunteer, under the laws thereof, during the existence of an actual war, domes- tic or foreign, shall be deprived of the benefits of this act on account of not having attained the age of twenty-one years- Crimes under Act. — See. 7. And oe it further enacted, that the fifth section of the act entitled "An act in addition to an act more effectually to provide for the punishment of certain crimes against the United States and for other pur- poses," approved the third of March, in the year eighteen hundred and fifty-seven, shall extend to all oaths, affirma- tions and affidavits, required or authorized by this act. Price may be Paid at Once, on Taking Up. — Sec. 8. And be it further enacted, that nothing in this act shall be so construed as to prevent any person who has availed him or herself of the benefits of the first section of this act, from paying the minimum price or the price to which the same may have graduated for the quantity of land so entered, at any time before the expiration of the five years, and obtain- ing a patent therefor from the government, as in other cases provided by law, on making proof of settlement and cultiva- tion, as provided by existing laws granting pre-emption rights. HOMESTEADS. 359 Homestead.— In California the homestead consists of the dwelling house in which the claimant resides, and the land on which the same is situated selected as hereinafter stated. If the claimant be married it may be selected from the com- munity property; or the separate property of the Imshand, or with the consent of the wife from her separate property. When the claimant is not married but is the head of a fam- ily as hereinafter stated, the homestead may be selected from any of his or her property. When the homestead is selected from the wife's separate property she must join in the declaration. Exempt. — The homestead is exempt from execution or forced sale in satisfaction of judgment obtained : 1. Before the declaration of homestead was filed for re- cord, and which constitute liens upon the premises; 2. On debts secured by mechanics', laborers', or vendors' liens upon the premises : 3. On debts secured by mortgages upon the premises, executed and acknowledged by the husband, wife, or an un- married claimant. 4. On debts secured by mortgages upon the premises, executed and recorded before the declaration of homestead was filed for record. How Conveyed, Etc. — The homestead of a married per- son cannot be conveyed or incumbered unless the instru- ment by ^yhich it is conveyed or incumbered is executed and acknowledged by both husband and wife. How Abandoned. — A homestead can be abandoned only by a declaration of abandonment, or a grant thereof, exe- cuted and acknowledged : 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried. Same. — A declaration of abandonment is effectual only from the time it is filed in the office in which the home- stead was recorded. Excess in Value. — If the property claimed exceed in value the amount allowed by law, the property may be di- 360 LAW ENCYCLOPEDIA. vided or sold under execution, and the excess applied to the satisfaction of the execution. At the sale no bid will be received unless it exceeds the amount of the homestead exemption. The money paid to claimant is exempt from execution for six months thereafter. Who may Select, and Amount of. — Homesteads may be selected and claimed : 1. Of not exceeding five thousand dollars in value by any head of a family; 2. Of not exceeding *ne thousand dollars in value by any other person. Head of a Family Defined. — The phrase "head of a family," as used in this article, includes within its meaning: 1. The husband, when the claimant is a married person; 2. Every person who has residing on the premises with him or her and under his or her care and maintenance, either: (1.) His or her minor child, or the minor child of his or her deceased wife or husband; (2.) A minor brother or sister, or the minor child of a deceased brother or sister; (3.) A father, mother, grandfather, or grandmother; (4.) The father, mother, grandfather or grandmother of a deceased husband or wife; (5.) An unmarried sister, or any other of the relatives mentioned in this section who have attained the age of ma- jority, and are unable to take care of or support them- selves. Mode of Selection. — In order to select a homestead, the husband or other head of a family, or in case the husband has not made such selection, the wiie must execute and ac- knowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record. Declaration -what to Contain. — The declaration of home- stead must contain : * 1. A statement, showing that the person making it is the HOMESTEADS, 361 head of a family; or, -when the declaration is made by the wife, showing that her husband has,not made such declara- tion, and that she therefore makes the declaration for their joint benefit; 2. A statement that the person making it is residing on the premises, and claims them as a homestead; 3. A description of the premises; 4. An estimate of their actual cash value. Survivorship. — From and after the time the declaration is filed for record, the premises therein described consti- tute a homestead. If the selection was made by a married person from the community property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this article; in other cases, upon the death of the person whose property was selected as a home- stead, it shall go to his heirs or devisees, subject to the power of the probate court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner, except as pro- vided in this article. In Nevada and Idaho, the exemption is the same as in California. In Idaho the exemption is three thousand dol- lars and the homestead vests in the survivor. Abandonment and Alienation of. — In Nevada no mort- gage or alienation of any kind, made for the purpose of securing a loan or indebtedness upon the homestead prop- erty, is valid for any purpose whatever: provided, that a mortgage or alienation to secure or pay the purchase money is valid, if the wife signs the same and acknowledged the instrument separate and apart from her husband. If the wife be a non-resident of the state, her signature and ac- knowledgment shall not be necessary to any mortgage or alienation of the homestead before it becomes the homestead of the debtor. In Idaho, if the husband or wife leave the coun- ty where the homestead is recorded, and reside in some other county, the homestead is no longer valid. 362 LAW ENCYCLOPEDIA. Excess in Value. — Where the homestead exceeds in value the exemption allowed the excess may be taken on execution, the same as in California. In Nevada and Idaho, on the death of the husband or wife the homestead is set apart for the benefit of the survivor and his or her legitimate children. If there is no survivor nor legitimate children, the property is subject to the payment of the debts of the deceased. On Death of Claimant and Unmarried Persons Claiming. — No unmarried person shall be entitled to select or hold a homestead, as provided in the preceding section of said act, unless such person has the care and maintenance of his or her minor child, or of a minor brother or sister, or of a minor child of a deceased brother or sister or of a father or mother, or of a grandfather or grandmother, or of an un- married sister, then residing on the homestead property with such person. FOKMS. Declaration of Homestead — Nevada and Idaho. Know all men by these presents: That I, of the county of , state of do hereby certify and declare that I am married, and that I do now, at the time of making this declaration, reside with my family on the lot of land and premises situate, lying and being, in the county of , state of bounded and described as follows, to wit: [Description.] And that it is my intention to use and claim the said lot of land and premises, together with the dwelling-house thereon and its appurtenances, as a home- stead; and I do hereby select and claim the same as a homestead, under the provisions of an act of the legislature of the state [or, " territory "] of entitled "An act to exempt the homestead and other property from forced sale in certain cases," passed April 21st, 1851, and of the several acts amend- atory thereof and supplementary thereto. In witness whereof I have hereunto set my hand and seal, this day of one thousand eight hundred and [l s.] Declaration of Abandonment of Homestead. Know all men by these presents: That we, and , his wife, of the city and county of , state of do Lereby abandon, release and discharge, from any and all claim by us as a home- stead, the lot of land and premises situate, lying and being, in the citv and county of state of bounded and described as tal- lows, to wit: [description.] Together with the tenements and appurte- nances thereunto belonging. In witness whereof, we have hereunto set our hands and seals, this day of A.D. 18.. [i..s.i [l-s,} HOUSEHOLD — HUSBAND AND WIFE. 363 HOUSEHOLD. Household.— Those who dwell under the same roof and constitute a family. It is not necessary that they should be under a roof, or that the father of a family be with it, if the mother and children keep together yo as to constitute a family. HOUSEHOLDER. Householder. — Mother or chief of a family; one who keeps house with his family. A keeper of a tavern or boarding- house, or a master or mistress of a dwelling-house. A per- son having and providing for a household. HUSBAND AND WIFE. Husband and Wife, how regarded by the Law. — The re- lation of husband and wife is regarded by the law purely as a civil contract, and as such, in order to make it binding, it must be characterized, in the main, by the same essentials requisite to the validity of other contracts. Hence, the con- sent of parties legally competent to contract is necessary. The chief peculiarity which distinguishes this from other contracts is, that it continues during the lives of the parties, and cannot be dissolved by. mutual consent, but only for certain specific causes, defined by law ; yet it may be sus- pended by agreement of the parties. [See Separation.] Statutory Regulations. — The California Civil Code has in many respects changed the common law obligations, rights and duties of both husband and wife. Rights of Husband,— The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. Interests Separate. — Neither husband nor wife has any interest in the property of the other, but neither can be ex- cluded from the other's dwelling. 364 LAW ENCYCLOPEDIA. Make Contracts. — Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occu- pying confidential relations with each other. Separation and LegEd Relations. — A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree, in writing, to an immediate separation, and may make provision for the support of either of them and of their children during such separation. Consideration for Separation. — The mutual consent of the parties is a sufficient consideration for such an agree- ment as is mentioned in the last section. May be Joint Tenants. — A husband and wife may hold property as joint tenants, tenants in common, or as com- munity property. Separate Property of Wife. — All property of the wife, owned by her before marriage, and that acquired after, wards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property. The wife may, without the consent of her husband, convey her separate property. Separate property of the Husband. — All property owned by the husband before marriage, and that acquired after- wards by gift, bequest, devise, or descent, with the rents, issu2S, and profits thereof, is his separate property. Common Property. — All other property acquired after marriage, by either husband or wife, or both, is community property. Inventory Made. — A full and complete inventory of the separate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the acknowledgment or proof of a grant HUSBAND AND WIFE. 365 of real property by an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside. Evidence of Wife's Property. — The filing of the inven- tory in the recorder's office is notice and prima facie evi- dence of the title of the wife. Wife's Debts. — The property of the community is not lia- ble for the contracts of the wife, made after marriage, unless secured by a pledge or mortgage thereof executed by the husband. Earnings of Wife. — The earnings of the wife are not lia- ble for the debts of the husband. Earnings when living separate. — The earnings and accu- mulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, are the separate property of the wife. Liability for Debts of Wife. — The separate property of the husband is not liable for the debts of the wife con- tracted before the marriage. Wife's Property not liable. — The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after mar- riage. Power of the Husband.— The husband has the manage- ment and control of the community property, with the like absolute power of disposition (other than testamentary) as he has of his separate estate. Courtesy and Dower not allowed. — No estate is allowed the husband as tenant by courtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. ' 366 LAW ENCYCLOPEDIA. Husband liable for Wife's Support. — If the husband neg- lect to make adequate provision for the support of his wife, except in the cases mentioned in the next paragraph, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. When not liable. — A husband abandoned by his wife is not liable for her support until she offers to return, unless she -was justified, by his misconduct, in abandoning him ; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement. Wife to support Husband. — The wife must support the husband, when he has not deserted her, out of her separate property, when he has no separate property, and there is no community property, and he is unable, from infirmity, to support himself. Marriage Settlements, in Writing and Recorded. — All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. When such, contract is acknowledged or proved, it must be recorded in the office of the recorder of every county in which any real estate may be situated which is granted or affected by such contract. The recording or non-recording of such contract has a like effect as the re- cording or non-recording of a grant of real property. Minor's Marriage Contract. — A minor capable of con- tracting marriage may make a valid marriage settlement. Death of Husband or Wife. — Upon the dissolution of the community by the death of the wife, the entire common property shall, without administration, go to the surviving husband. Upon the dissolution of the community by the death of the husband, one-half of the common property shall go to the surviving wife, and the other half shall be HUSBAND AND WIPE, FOBMS OP. 367 subject to the testamentary disposition of the husband; and, in absence of such disposition, shall go to his descend- ants, equally, if such descendants are in the same degree of kindred to the intestate, otherwise, according to the right of representation; and, in the absence of both such dispo- sition and such descendants, shall be subject to distribution in the same manner as the separate property of the hus- band : 'provided, that in case of the dissolution of the com- munity, by the death of the husband, the entire common property shall be equally subject to his debts, the family allowance and the charges and expenses of administration. FOBMS, Article of Separation between Susband and Wife, This indenture of three parts, made the day of one thousand eight hundred and between , of the city of of the first part, and his wife, of the second part, and trustee of the said , of the third part : Whereas, divers disputes and unhappy differences have arisen between the said party of the first part and his said wife, for which reason they have consented and agreed to live separate and apart from each other during their natural life ; therefore, this indenture wit- nesseth, that the said party of the first part, in consideration of the premises and in pursuance thereof, doth hereby covenant, promise and agree, to and with the said trustee and also to and with his said wife, that it shall and may be lawful for her, his said wife, at all times hereafter to live separate and apart from him; and that he shall and will allow and permit her to reside and be in such place and places, and in such family and families, and with such relations, friends and other persons, and to follow and carry on such trade or business as she may, from time to time, choose or think fit to do ; and that he shall not nor will at any time sue or suffer her to be sued, for living separate and apart from him, or compel her to live with him, or sue, molest, disturb or trouble, her for living separate and apart from him, or any other person whomsoever, for receiving, entertaining, or harboring her ; and that he will not, without her consent, visit her, or knowingly enter any house or place •where she shall dwell, reside or be, or send or cause to be sent, any letter or message to her; nor shall or will, at any time hereafter, claim or demand any of her money, jewels, plate, clothing, household goods, furniture or stock in trade, which she now hath in her power, custody or possession, or which she shall or may at any time hereafter have, buy or procure, or which shall be de- vised or given to her, or that she may otherwise acquire ; and that she shall and may enjoy and absolutely dispose of the same as if she were a /emme sole and unmarried ; and further, that the said party of the first part shall and will well and truly pay or cause to be paid unto her, his s»d wife, for and towards 368 LAW ENCYCLOPEDIA. her better support and maintenance, the yearly sum of dollars, free and clear of aU charges and deductions whatever, for and during her natural Ufe, at or upon the days of , . . . . , and , in each and every year during her said natural Ufe, which the said trustee doth hereby agree to take, in full satisfaction for her support and maintenance, and all alimony what- ever. And the said trustee, in consideration of the sum of one dollar, to him duly paid, doth covenant and agree to and with the said party of the first part, to indemnify and bear him harmless of and from all debts of his said wife, contracted or that may hereafter be contracted by her or on her account ; and if the said parties of the first part shall be compelled to pay any such debt or debts, the said trustee hereby agrees to repay the same, on demand, to the said party of the first part, with all damage and loss that hfi may sustain thereby. Li witness, etc., [as in marriage settlement]. Conveyance of Husband's Property to a Trustee for Benefit of the Wife. This indenture, made the .... day of , in the year one thousand eight hundred and , between of, etc., of the first part, and of, etc., of the second part, that whereas, the said party of the first part, being in solvent circumstances and desirous of making provision for his wife, against future contingencies and for her maintenance and support, now this indenture witnesseth, that in consideration of the jsremises and of one dollar, lawful money of the United States, to him in hand paid by the said party of the second part, at or before the enaeahng or delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these pres- ents doth grant, bargain, sell, alien, remise, release, convey and confirm, unto the said party of the second part, and to his heirs and assigns, forever, aU [ description ], together with all and singular the tenements, heredita- ments and appurtenances, thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits, thereof ; and also, aU the estate, right, title, interest, property, pos- session, claim and demand, whatsoever, as well in law as in equity, of the said party of the first part, of, in or to, the above-described premises, and every part and parcel thereof, with the appurtenances, to have and to hold, aU and singular, the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns, upon the trusts, nevertheless and to and for the uses, interests and purposes, hereinafter limited, described and declared, that is to say : 1st. In trust to lease the same and to take, coUect and receive, the rents, issues and profits, thereof, and out of the same to keep the said premises in good order and repair and properly insured, and pay aU taxes, assessments and charges, thereon. 2d. In trust to pay the residue of such rents, issues and income, to his said wife, upon her sole and separate receipt, to the intent and purpose that she may enjoy, possess and have, the same free from the interference or control of any person whatsoever, during the term of her natural Ufe. 3d. In trust to convey the said laud and premises to such person as she. HUSBAND AND WIFE, FOEMS OP. 369 the said , by her last •will and testament or instrument in the nature of a last \rill and testament, subscribed by her, in the presence of two com- petent witnesses, may direct and appoint. And it is hereby further declared and agreed by and between the parties hereto, that upon the decease of the said , the said above-recited trust shall cease and determine, and the said land and premises hereinbefore described, shall belong in fee simple, absolute, to such person or persons as the said , shall so, as aforesaid, direct and appoint, and in default of such appointment the said land and premises shall revert to the said party of the first part and to his heirs, to his and their sole use and behoof forever; Provided, always, nevertheless, and it is hereby expressly declared and understood by and between the parties thereto, that it shall and may be law- ful, to and for the said party of the second part, his heirs and assigns, from time to time, to retain and reimburse to himself and themselves, out of the property hereby granted and assigned, all such costs, charges and expenses, aa he or they may be put to in the performance or execution of the said trust oi anything relating thereto. And provided, also, that in case the trustee herein appointed, or any succeed- ing trustee or trustees of the said trust estate, to be appointed as hereinafter mentioned die, or shall neglect, decline or be incapable, to act in said trust, before the same shall be fully performed and executed, then, and as often as the same may happen, it shall and may be lawful for the said , by any instrument of writing under hand and seal, to nominate, substitute and appoint, some other fit person or persons, to be trustee or trustees of and in the said premises, in place and stead of the trustee or trustees so dying, neg- lecting, declining or becoming incapable, to act as aforesaid ; and, upon such nomination and appointment, the person or persons so to be appointed, shall be and stand seized of said premises with the appurtenances, in trust for the same uses, intents and purposes, and subject to the provisos and conditions hereinbefore mentioned and declared of and concerning the same. And the said , f or himself and his heirs, the above-described and hereby gi'anted and released premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, against the said party of the first part and his heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents forever defend. In witness, etc. Appointment of a New Trustee in place of one Deceased. Whereas, by a certain indenture, made, etc., between of, etc., of the first part and , of, etc., of the second part, certain real estate therein described was conveyed to the said upon certain trusts therein mentioned and declared; and whereas, the said , the tnistee therein named is since deceased, and the said trusts remain unperformed and unexecuted; now, therefore, I, , of, etc., the wife of the said in pursuance and performance of the power and authority therein given and reserved to me for that purpose, have nominated and appointed, and by these presents do nominate and appoint , of, etc., to be a new trustee in place of the said , deceased, for the trusts, and to and 2i 370 LAW ENCYCLOPEDU. for the ends, intents and purposes, therein mentioned, expressed or declared, of and coneeming the same, and to and for no other use, intent or purpose, whatsoever. In witness, etc. Deed of Trust for Benefit of Wife. This indenture, made, ete., witnesseth, etc. [as in other forms], all that certain lot, piece or parcel, of land, situate, lying and being, in said city of bounded and described as follows, to wit : [here insert description] and also all and singular the household furniture, goods and chattels, now in the dwelling-house on said premises, together with all and singular the buildings, tenements, hereditaments and appurtenances, there- unto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits, thereof ; and all the right, title, interest, estate, property, possession, claim and demand, whatso- ever, both at law and in equity, of the said parties of the first part, in and to the above-described premises, and every part and parcel thereof, \rith the ap- purtenances ; to have and to hold, all and singular, the above-mentioned and described premises, household furniture, etc., together with the appurte- nances unto the said party of the second part, his heirs and successors, for- ever, intrust, nevertheless, for the sole and separate use, benefit and behoof, of said , wife of said , her heirs and assigns, forever, free from the control and disposition, and from the debts and liabilities, of her said husband, and to collect and receive the rents, issues and profits, thereof, and pay over the same, when and as received, to said , to and for and to be applied to her sole and separate use, free from the control and dis- position, debts and liabilities, of her said or any future husband. In witness whereof, the said parties of the iirst part have hereunto set theii hands and seals, the day and year first above written. [l-s-] [L-S-] Sealed and delivered in presence of Inventory of Separate Property of Wife, ■\ Inventory of the separate property of , wife of , of the coun- ty of state of Know all men by these presents : Whereas, , of the county of , did, in and by his certain indenture, bearing date the . . day of , A.D. 18 . . , grant, bargain, sell, alien, remise, release, convey and confirm, unto me , wife of , of the county of , certain real estate in the county of , in said indenture, and hereinafter particularly described, for the consideration in said indenture mentioned, the said prop- erty being conveyed to me by way of gift from my said husband, no valuable consideration passing therefor from me or my said husband, to the said .... . . . . , which said real estate is described as follows : [here insert description], together with the rents, issues and profits, of said premises, which are there in expressly reserved and conveyed to my sole and separate use. HUSBAND AND WIFE, FOBMS OF — INCUMBEANCE. 371 And -whereas, by gift or other right, I own and am possessed of certain other property, real estate, described as follows : [here insert description], and also certain personal property, to wit : [here describe the articles of per- sonal property]. Now, therefore, I, the said wife of the said , by and with the consent of my said husband, signified by his signing and executing these presents, do hereby publish, make known and declare, that the above- mentioned and described real and personal estate is my separate property, and that the foregoing is a full and complete inventory of such separate property. In witness whereof, I and my said husband have hereunto set our respect- ive hands and seals, this . . day of a.d. eighteen hundred and [i-s.] [I.-S-] In presence of Declaration by a Married Woman as Sole Tradar. To all whom it may concern : Take notice, that I, , wife of am a married woman, and reside in the county of , state of , that I am desirous of availing my- self of the benefits of an act of the legislature of the said state, entitled " An act to authoriae married women to transact business in their own name as sole traders," passed , 18.., and all acts amendatory of or sup- plementary thereto, and for that purpose it is my intention to, and I shall, on the day of , a.d. 18 . . at ten o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, apply to the district court of the judicial district of the state of , in and for the county of at the court-room of said court, in said county, for an order of said court per- mitting me to carry on, in said county, in my own name, and on my own account, as a sole trader, the business of a [description of business]. Dated , this day of a.d. 18 . . Notice of Application of Married Woman to become Sole Trader. Notice is hereby given that , of the county of (wife of ), intends to make an application to the district court of the judicial district of the state of , in and for the county of , on the .... day of . . . . , 18 . . , for an order of said court permitting her to carry on business in the county of , in her own name and on her own account, pursuant to an act of the legislature of the state of , passed , 18 • ■ , entitled "An act to authorize married women to transact business in their own name as sole traders," and of the act amendatory thereof and supplemental thereto passed 18 . . . The business she intends to carry on is that of [de- scription of business.] INCUMBRANCE. Incumbrance. — Any right to, or interest in, land which may subsist in third persons. A mortgage or other lien is 372 LAW ENCYCLOPEDIA. an incmnbrance on land. The vendor of land is bound to disclose incumbrances. INDEMNITY. Indemnity. — Contracts made for the purpose of indemni- fying a person for doing an act for which he could be in- dicted, or an agreement to compensate an officer for doing an act which is forbidden by law, or for omitting to do one which the law commands, are absolutely void. INDENTURE. Indenture. — See Deed. INDICTMENT. Indictment. — A written accusation against one or more persons, of a crime or misdemeanor, presented to and pre- ferred upon oath or affirmation by a grand jury legally con- voked. An Indictment cannot be found without the concurring of at least twelve grand jurors ; when so found, it shall be indorsed "a true biU," and the indorsement shall be signed by the foreman of the grand jury. If an Indictment is not found the charge is dismissed, but may be presented to another grand jury, if the court directs, but not otherwise. The names of the witnesses examined shall be indorsed on the indictment. INDORSEMENT. Indorsement. — That which is written on the back of an instrument, in writing, and which has relation to it. See Bills and Notes. INJUNCTION. Ipjunction — ^A prohibitory writ, issued by authority of and under the seal of a court, to restrain a defendant from INJUNCTION. 373 doing an act which is deemed to be unjust or inequitable, so far as regards the rights of some other party or parties to such suit or proceedings. The order or writ may be granted by the court in which the action is brought, or by a judge thereof, or by a county judge ; and when made by a judge, may be enforced as the order of the court. An Iryunction may be Granted in the following Cases : 1st. When it shall appear by the complaint that the plaint- iff 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. 2d. When it shall appear by the complaint or affidavit that the commission or continuance of some act, during the litigation, would produce great or irreparable injury to the plaintiff. 3d. When it shall appear, during the litigation, that the defendant is doing, or threatens or is about to do, or is pro- curing 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. On granting an rnjunetion, the court or judge shall re- quire, except where the people of the state are a party plaint- iff, a written undertaking on the part of the plaintiff, with sufficient 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. If the Court or judge deem it proper that the defendant, or any of several defendants, should be heard before grant- ing the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunc- tion should not be granted; and the defendant may, in the meantime, be restrained. An Iiy'unotion to suspend the general and ordinary busi- ness of a corporation shall not be granted, except by the D74 LAW ENCYCLOPEDIA. court or a judge thereof; nor shall it be granted without due notice of the application therefor to the proper officers or managing agent of the corporation, except when the people of the state are a party to the proceeding. INNKBEPEKS. Innkeeper, Definition of. — ^An innkeeper is defined to be the "keeper of a common inn for the lodging and entertain- ment of travelers and passengers, their horses and attend- ants, for a reasonable compensation." The inn which he keeps is defined to be a "house where a traveler is furnished with everything he has occasion for whilst on his way." An Innkeeper differs from the keeper of a boarding-house, in that the former holds himself out to the public as ready to receive all travelers or wayfarers that ask for accommo- dations, for such compensation as shall be just and reasona- ble; while the latter keeps only select persons, usually mak- ing with each a separate contract. There is a eorresponding difference between the guest of an inn and the boarder or lodger of a boarding-house. The former is a traveler, passenger, wayfaring man, not a friend or neighbor. The length of time he remains there, whether one hour or a month, has no effect in determining his character. If he takes lodging, leaving his horse there, and goes elsewhere to lodge, he is still a guest. The boarder or lodger, on the other hand, becomes such by the contract made with the keeper of the boarding-house, and if he comes to an inn tmder a special contract to board and sojourn there, and not as a traveler, he is simply a boarder, and not a guest; nor is a guest simply created by leaving goods at an inn, for which no compensation is paid, and lodging else- where. Duties and Besponsibilities. — The rights, duties, respon- sibilities and remedies, applying to the innkeeper and his guest, and to the boarding-house keeper and his boarder, are wholly different in their origin, nature and character. The latter are mainly governed by the contract into which INNKEEPERS. 375 tlie parties enter, while tlie former are left to the principles of the common law. As an Innkeeper makes a standing offer to the public to accommodate all who call upon him for that purpose, he is bound to receive as guests, and to entertain as far as his accommodations extend, all such ordinary travelers as may desire to avail themselves of his offer. Liable for Damages, Wi'iea. — By improperly refusing he may subject himself to an action for damages. He is not, however, obliged to receive or retain a guest who con- ducts himself disorderly, nor any one having an infectious disease, nor any one who would endanger the safety of his guests or bring his house into disrepute. The principal contract with an innkeeper relates to the accommodation of his guests, but, as accessorial to that, is also included the receiving and safe keeping of the baggage of his guests. This he is, also, bound to receive, and cannot refuse to take charge of, because of suspected persons at the inn, for whose conduct he is not willing to be responsible. He is under no obligations to entertain such persons at the inn, but it is his duty to eject them. When Relation of Hoarder Ceases.— A traveler who enters an inn as a guest, does not cease to be a guest by proposing to remain a given number of days, or by ascer- taining the price that will be charged for his entertain- ment, or by paying in advance for a part or the whole of the entertainment, or paying for what he has occasion for as his wants ase supplied. Responsitility of Innkeeper.— The responsibility for the safe keeping of his guests' property extends equally to such as the guests have with them, in their immediate possession, at the moment of arrival at the inn, and that which subse- quently arrives at the inn; and the rtde is in no wise differ- ent where the property is acquired by the guests subsequent to arrival at the inn. When Liable as Insurer.— The rule is, that an innkeeper is liable dls an insurer of the goods of his guest committed 376 lAW ENCYCLOPEDIA. to liis care. The responsibility of the innkeeper extends to all his domestics and servants, and to all the movable goods and chattels and moneys of his guests which are placed within the inn, and is therefore liable for all the losses of the property of his guests occurring within the inn, except those occasioned by the "act of God" or the public enemy, or the neglect or fraud of the guest, or the acts of his own servant. It is not Necessary to show a delivery to the innkeeper in order to charge him. Goods stolen from the chamber of the guest in the inn, the innkeeper having no actual notice of them, will nevertheless render him liable. Nor would it divest him of liability if the guest had himself the key of the chamber in which he lodged, and left the door open. But if the guest be directed to put his goods in a particular chamber imder lock and key, otherwise their safety wotdd not be warranted, and it is not done, and they are stolen, the innkeeper is not responsible. If the Guest deposits his goods in a room, making use of it as a warehouse, having the exclusive possession of it, and they are stolen, the innkeeper is not responsible. Burden of Proof in Actions. — One more topic only re- mains to be discussed under this head, and that is the in- quiry as to the burden of proof. The guest makes out his case by proving the defendant to be the keeper of a public inn ; that he was there in the character of guest, and that whUe there in such character, his goods, being baggage or a reasonable sum of money, were lost ; and their value should be proved also. The burden of proof is then upon the de- fendant — the fact of loss being presumptive evidence of neg- ligence on the part of the inn-keeper or of his domestics. He may show that loss came within the excepted cases of the "act of God" or the public enemy, or that the guest was robbed by his own servant, or by one who came to the inn as the companion of the guest, or that. the loss occurred through his own negligence; or he may show a release, and, in short, any fact that will tend to lessen his responsibility or show that the plaintiff should not recover. INSANK ASYLUM, FORMS OF. 377 INSANE ASYLUM. Location of. — The asylum for the insane of the state of California is located ut Stockton and one is in process of erection at Napa. The county judges have power in conjunc- tion with medical examiners to commit insane persons to the asylum for treatment. FOKMS. Application to send a iMnatic to the Asylum, State of I and county of . . . . f Tohon , county judge of Baid and county: , respectfully represents, that there is now in said city and county, a person named who is insane) and suffering under mental derangement, and is, by reason of insanity, unsafe to be at large, and is a proper subject for the insane asylum. And the said , being duly sworn, deposes and says the fore- going statement is true : wherefore he prays that such action may be had as is by law required, and that the said may be sent to the insane asylum at Subscribed and sworn to this .... day of a.d. 18. ., before me, County Judge. We and , being duly sworn, do depose and say, that we are' physicians, residing in said and county : that, at the request and in presence of , county judge of said and county, wo have carefully examined , named in the foregoing apphoation, and do find and so certify, that said is insane, suffering under mental derangement, and by reason of insanity unsafe to be at large, and is a proper subject for the insane asylum, as set forth in said application. That, as near as can be ascertained, said is years old, was bom in has been in this state one month, came here from the state of , his previous habits good, cause of insanity epilepsy, has been affected from early life, class of insanity dementia from epilepsy, and his present con- dition is quiet, physical health good. M.D. ,M.D. Subscribed and sworn to before me, this .... day of , A.t>. IS . . County Judge. Certificate on the above Application. The foregoing application having been duly made to me, , county judge of the and county of and , named in said application, having this day been brought before me, and in my presence 378 LAW ENCYCLOPEDIA. carefully examined by and two respectable phy- sicians, and they having thereupon made the foregoing certificate, by them duly subscribed and sworn to, and being myself fuUy satisfied of the truth of all the matters set forth in said application and certificate, I do hereby order the said , to be conveyed to and placed in the insane asylum at ; and the sheriff of said and county is charged with the execu- tion of this order. Upon inquiry duly made, as by law reqiiired, I find, as the result thereof, that the said has no means of paying the charges and expenses for the time he may remain at the asylum. Witness my hand, the seal of our county court, this day of , a.d. 18.. County Judge. Attest: County Clerk. By Deputy County Clerk. PetUJonfor Appointment of Guardian for an Insane Person. To the Hon county judge and judge of the probate court of the county of . . . . : The petition of , of the of , respectfully showeth — That she is the sister of , whose maiden name was , and who is at present at the residence of near , in the said of That the said is the owner and possessed or entitled to the pos- session of certain property ; that she is insane and mentally incompetent to manage her property. Wherefore, yovu: petitioner prays that such proceedings may be had and taken in the premises, as may be necessary for the appointment of a guar- dian of the person and estate of the and that such guardian be appointed. [Signed] Sworn to, etc. Order for Appointing Guardian of an Insane Person. Probate court of said county. In the matter of the guardianship of 1 charged with insanity, f State of , I county of f Having heretofore, upon the petition of , representing that the above-named , is insane and mentally incompetent to manage his property, and praying for the appointment of a guardian of the person and estate of the said caused a notice to be given to the said of the time and place of hearing the case, not less than five days before the time so appointed ; and on reading and filing proof of due personal service of said notice upon said After a full hearing and examination upon such petition, it appearing to the probate judge that the said , is insane and incapable of taking care of himself and managing his property, it is ordered that , of said .... county, who is hereby required to execute INSANE ASYLUM, P0BM3 OP. 379 to the said , a bond, according to the statute in such cases made and provided, with sufficient sureties, to be approved by said probate judge, in the sum of dollars, be, and he is hereby appointed guardian of the person and estate of above-named, upon giving such bond. [Dated.] County Judge. Order that Insane Person be Notified and be Produced before Probate Judge. In the matter of the insanity ) of f On reading the foregoing petition, it is ordered, that the above matter come up for hearing before me at the county court room [or, " at my cham- bers "] in the city-hall of the county of , on the day of , a.d. 18 . . , at o'clock , of that day, and that notice be given to the said of the time and place of hearing the case, not less than five days before the time so appointed. And that the said , if able to attend, be produced before me on the hearing. [Date.] County Judge. Onardians' Sond. Knovf all men by these presents, that we, , and . . . . , are held and firmly bound unto an insane person, in the sum of dollars lawful money of the United States of America, to be paid to the said for which payment well and truly to bo made, wo bind ourselves, our executors, administrators and assigns, jointly and severally, and firmly by these presents. Sealed with our seals, and dated this .... day of 18. . The condition of the above obligation is such that: Whereas, application has been made to the judge of the probate court of the county of state of , f or the appointment of guardian of the person and estate of the said Now, therefore, if the said be appointed such guardian, and shall faith- fully perform the duties of his trust according to law, and shall: 1st. Make a true inventory of all the estate, real and personal, of his said ward that shall come to his possession or knowledge; and shall return the same vrithin such time as the said judge shall order. 2d. Shall dispose of and manage all such estate according to law, and for the best interest of said ward, and faithfully discharge his trust in relation thereto; and also in relation to the care, custody and education, of said ward. 3d. Shall render an account on oath of the property, estate and moneys, of said ward in his hands; and all proceeds or interest derived therefrom, and of the management and disposition of the same w^ithin one year after his appoint- ment, and at such other times as the court shall direct. 4th. At the expiration of his trust shall settle his accounts with the probata judge, or with the said ward, if he be of full age, or his legal representatives; and shall pay over and deliver all the estate, moneys and effects, remaining in his hands or due from him on such settlement, to the person or persons who shall be lawfully entitled thereto. 380 . LAW ENCYCLOPEDU. Then this obligation Bhall be void and of no effect, else to remain of full force and virtue. [i/.s.] [L.S.] Sealed and delivered in the presence of [l.s.] State of 1 gg and county of f and being duly sworn, each for himself says, that he is a freeholder, resident in said state, and is worth the said sum of dollars over and above all his just debts and liabilities, exclusive of property exempt from execution. Sworn to before me this .... day of 18... f Deputy Clerk of the Probate Court. INSTALLMENT. Installment. — A part of a debt due by contract and differ- ent from tliat fixed for the payment of the other part. For example : If A agrees to pay B one thousand dollars in two payments, one on the first day of January, and the other on the first day of July, each of these payments or obligations to pay is an installment. In each Case, each installment is a separate debt so far that it may be tendered at any time, or the first may be sued for although the other shall not be due. INSURANCE. Marine, Pire and Life Insurance. — ^Every business man should know the general principles goyerning insurance contracts. There are three kiads of insurances, marine, fire and life,. Each of these, if discussed fully, would make a volume as large as this book. But it is a subject of such great importance, that notwithstanding the impossibility to do it justice in a work of this kind, it cannot be passed. over in silence. The information given below is carefully com- piled from the best authors, and as far as it goes, is correct : Insurer or Underwriter. — The party insuring is called the insurer, or in marine policies of insurance, the under- writer. The party insured is called the assured, or more INSUEANCE. 381 commonly, the insured. The instrument embodying the contract is called the policy of insurance. This contract is strictly one of indemnity. The insurer undertakes, in case of loss, either partial or total, to make good all damage sus- tained to the amount insured. Bisk Idmited to Statements in the Policy. — In all cases the thing or risk insured must distinctly appear in the pol- icy, and is limited to what is therein stated. If a ship is specified, it is part of the contract and cannot be substi- tuted for another ship. A cargo of a ship, where the cargo is insured, may be shifted from one ship to another in cases of danger, and the insurer is still liable. Foreign Voyages. — ^A voyage from abroad may be insured with very little of the specification in description, and yet be sufficient. This often happens from necessity. The party wishing to insure may be ignorant of the name of the ship, or master or port of discharge, but the insurance will be good if the goods insured be laden in any ship or to any port. It is only necessary that the cargo should be known and identified as that insured. The subject-matter must be legal and so must the voyage; and if there be any illegality at the commencement of the voyage, the whole voyage is illegal for the purpose of insurance. Interest necessary to Insure. — As regards the person in- suring, the rule is that any person having an interest in any thing, may get himself insured to the extent of his interest. This is the rule in all insurance. If a person would be dam- aged by injury, in any manner of the thing insured, it is a certain test of insurable interest. An agent may insure the goods of his principal, and so may the mortgagor and mort- gagee insure the property mortgaged ; but the mortgagee can only insure to the amount of his claim. He-insurance. — By the policy of insurance the insurer acquires an insurable interest in the property insured, and he may re-insure to secure himself against loss by reason of his own insurance. By so doing he sometimes makes a profit by securing a second insurance for less rates than he received 382 lAW ENCTCLOPEDU. himself. All insurance companies do so when they have more risks out than their capital can safely carry. Contract to be expressed in the Itolicy. — The policy must express the contract entered into between the insurer and the insured. It should be in writing and signed by the in- sured or his agent. The value of the thing insured should be inserted in the policy, and the names of the insurer and assured. Sometimes insurance is effected in favor of A or of vjhom if may concern; and an insurance thus made by one partner wiU cover partnership goods, but if made in the name of one partner it will not have that effect. Where an insurance of this kind is made it will apply to the person who is intended to be insured, even if he gave no authority to effect the insurance. He may adopt it either before or after the loss. Perils or Risks Insured Against. — ^The perils insured against are named in the policy. They are enumerated as those of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters-of-mark, reprisals, takings at sea, arrests, restraints and detainments, of all kings, princes and people, of what nation, condition or quality, soever ; barratry of the master and mariners, and all other perils, losses and misfortunes, that have or shall come to the hurt or damage of the ship or cargo. Perils of the Sea. — The term, "perils of the sea," in- clude aU losses occasioned strictly by sea damage, such as stress of weather, wind, waves, and also in addition, what is termed the "act of God." See Act of God. Special Insurance. — The insurance may be on the ship or a particular voyage, or it may be for a time stated or for part of a voyage. In such case the loss must occur during the voyage or within the time, or no recovery can be had. These policies usually protect the ship until she is anchored twenty-four hours in the harbor where the voyage termi- nated. If the voyage insured be to a state or country by name, the risk ends at the first port entered for the purpose of unloading. INSURANCE. 383 Ves-el deviating from Usual Course. — If the Tessel vol- iintarily deviates from the prescribed course, the effect is to discharge the insurer, as it is considered as enlarging the risk and substituting a new voyage in the place of one the risks of which he insured against. This is on the principle familiar to all law that a violation of a contract, when the violation is material, avoids it. This doctrine is adhered to with great strictness in marine risks. A deviation that is not voluntary does not have this effect; as, for instance, where a vessel is chased by the enemy or is driven by storms out of her course. After such deviation, to save the risk, the vessel must take the most direct course to the end of the voyage, unless the enemy is in her way or storms threaten, then she may deviate again. The very object of deviating from the way usually traveled is to save the ship and conse- quent loss to the underwriter. Character and Extent of Loss. — When a loss occurs in insurance contracts, the first point to be settled is whether the loss be total or partial. As the instrument is one of indeninity before any remedy is applied, the character and extent of the loss must be ascertained. A loss is total when the whole thing insured is destroyed. It may not be actually cksiroyed, but if it is so injured that it can be of no use to the assured, he may abandon it to the insurer. If the goods or ship be damaged to more than half the value by any of the perils insured against, the insured may abandon and recover as for a total loss. Abandonment and Efffeot of.— The effect of an abandon- ment, made and accepted, is to divest the property of the assured in the subject matter, and to vest it wholly in the insurer. Partial Loss. — ^A partial loss, is where a part only of the thing insured meets with an injury, and the point most dif- ficult to arrive at, in case of partial loss, is the amount of the injiu-y and the sum to be paid. When the loss is total, the invoice price is considered the sum to be paid. When the loss is partial, it is estimated by appraisement. 384 LAW ENCYCLOPEDU* Payment of Premium and Return of. — ^As payment in advance of the premium is always required as the condition of insurance, the assured may enforce its return in the fol- lo-jving cases : 1st. Where the risk has never commenced. 2d. Where it turns out that the assured had no insurable _ interest in the subject matter either at the time of insurance or afterward. 3d. Where the vessel never sailed on the voyage insured. 4th. Where the contract of insurance was void from the commencement the premium will not be returned if the risk once commences. INSUBANCE, FIBE. Fire Insurance, Definition of. — ^Fire insurance is a con- tract by which the insurer, in consideration of the premium, agrees to indemnify the insured against all loss or damage which may occur to his houses, buildings, furniture, etc., by means of fire happening within a prescribed period. It may be made on all species of property, real or personal, that is subject to destruction or direct damage by fire. Insurable Interest. — ^It is essential to the contract of in- surance that the insured should have a legal interest in the thing insured, the money value of which may be computed ■iT valued. The interest must be such that it may be lost or destroyed by the risks insured against. It frequently hap- pens that many persons have each an interest in a thing, and each may secure himself against loss by insurance, as mortgagor and mortgagee, lessor and lessee, and the like. Contents of Policy. — The application for insurance should be in writing, signed by the applicant, or reduced to writing by the insurance agent. It should state all the facts relating to the property to be insured, its situation, character, value, ownership, and whether it has been insured and in what company. All questions propounded by the insurance agent must be truthfully answered. The insurer usually draws out a survey of the building which exhibits its size, division into rooms, and situation relative to other buildings. The application and survey are usually referred to in the policy. INSUEANCE. 385 if the risk is taken, and made part of it, and tnereby become as mncli a part of the policy as if it had been set out in full in it, and renders all its statements express warranties and material facts on which the risk is based. It is, therefore, very important that the applicant for insurance should state nothing but facts in his application as ho warrants his rep- resentations to be true. Time of Risk to be Stated. — A fire policy is always on time, and the commencement and termination of the risk must be stated in the policy, and it commences and expires at the exact time stated. Conditions in Policy. — Policies are usually clogged with conditions which are expressly made a part of ^he instru- ment and are construed as so many district warranties, and must be performed by the insured as a condition precedent to a right of recovery. "Where the policy reads : "If the risk shall be increased by any means within the control of the insured, the insurance shall be void," or words to the like effect, and the insured erect buildings on his own premises so as to increase the risk, without permission by the insurer, it avoids the policy. But where there are no such restric- tions in the policy, the insured may increase the risk by such new buildings or other improvements without invali- dating the policy. Prohibition in Policy. — It is a very common provision in a policy that the insured shall not use or store camphene or other inflammable materials of the like nature in the build- ing insured, '^his is part of the contract, and if violated, whether the breach affects the risk or not, it avoids the policy, and even where the use or storage of the prohibited material was discontinued some time before the fire that caused the loss. Second or Further Insurance.— Frequently a condition requires that if any further insurances are made on the same property, notice shall be given and the same shall be in- dorsed on the policy or approved in writing. If more than one policy is effected on the same property without the con- 25 386 LAW ENCYCLOPEDIA. sent of tlie insurer, and a loss occurs, it seems to be the settled law that no recovery can be had on the second policy, but only on the first, as the second policies are void. Restrictions Regarding further Insurance. — Frequently there is inserted a condition, that if there is another insur- ance oh the same property, and a loss occurs, the insured shall not receive on his policy any greater proportion of the damage sustained than the amount then insured shall bear to the whole amount insured upon the same property. The effect of this is that each office then stands in the relation of co-surety with the other, according to the amounts for which they undertook, just as if they had all underwritten the same policy. No matter how many subsequent policies there may be, when a loss occurs they are considered as one ; and the insurer may sue and recover his entire loss of one or more, and those who pay the loss may recover of the others their proportion of the amount paid, adjusted in the proportion that each of the sums subscribed by them bears to the whole amount insured. Hazardous and not Hazardous Risks. — Other clauses are sometimes inserted classifying the goods insured. One class is ^'haiardous," one "extra liamrdous" and yet one more is " rvot liamnrdmis." The first and second are usually applied to certain trades and occupations, and prohibit the insured from carrying on the hazardous occupation in the building insured or within certain limits, without extra payment for the increased risk. A mere temporary deposit of the haz- ardous goods in the building does not forfeit j;he policy, nor will the introduction of them for the piirpose of repairs be a breach of the condition, as the object of the prohibition is to prevent the buildings insured from being constantly used for the deposit or use of the prohibited articles. Warranties and Construotions of. — Warranties and con- ditions have applied to them a strict rule of construction; but the construction placed on them must be in consonance with the intention of the parties. Where a clause was in- serted prohibiting "the storing of hazardous goods," this INSXmANCE. 387 ■was held not to apply to a grocer who rented the prem- ises and kept a small quantity of Mzardous goods in the store on sale ; and also where the storage of liquors of all kinds was prohibited, it was held not to apply to what was kept on hand for the purposes of sale. The same rule would undoubtedly apply in all cases of similar nature when simple storage "is prohibited." But if the prohibited article is entirely excluded from the premises, and in terms not to be misunderstood then a violation of the contract woxdd, be- yond question, avoid the policy. Representations by the Insured. — Eepresentations made by the insured, which are material to the risk taken which turn out to be false or fraudulent, avoid the policy. In a recent case in New York, it was held that where the insured represented his building to be of stone, but neglected to state that he had a wooden building attached to it — this omission was fatal to the validity of the policy. Assignment of Policy. — Clauses are most always con- tained in the policy rendering it void in case the insured parts with his interest in the property insured. In such case if he sells the property and a loss occurs, no recovery can be had because he lost nothing. Under these clauses, there- fore, it is frequently important to determine whether a sale has actually taken place. It has been held that a mortgage and transfer of possession was not a sale; nor would a sale, on its face, be an assignment of interest if it was really made to secure a debt and to be void when the debt is paid. These prohibitions against assignment, only extend until a loss occurs. After a loss the policy may be assigned the same as any other debt or demand, but the assignee takes it subject to any defense the insurer may have against the insured. Where a clause against assignment is inserted, it becomes inoperative when the consent, either express or implied, of the insurer is obtained to the assignment. It is express when he consents in writing; and implied when he accepts the premium from the assignee with knowledge of the assignment. 388 LAW ENCYCLOPEDIA, Payment of PremiTun. — Where a loss occurs it is mate- rial to the recovery that the premium has been actually paid. In a recent case in California the supreme court held that even if the policy was issued and delivered to the insured he could not recover unless he could show that the premium was actually paid. It appears to be the settled law that where policies are issued without pre-payment, no recovery can be had if a loss occurs before payment. This should be generally known, as not a few merchants and others repose in fancied security on their policies of insurance, thinking delay in paying the premium can work no injury in case of loss. Procsedings in Case of Loss. — Total abandonment or deducting from the expenses "one third new for old," is not known to fire insurance being confined to marine risks. The insurer is bound to the extent agreed upon by the policy and no further. Where the property is mortgaged and the debt due, and the insurance efiiected by the mortgagee, the insurer is bound to pay the sum insured to the mortgagee if it does not exceed the debt. If there is an excess, the bet- ter opinion is that it must be paid to the mortgagor, although very respectable authorities hold that the mortgagee may recover the insurance from the insurer and also the debt from the mortgagor. This is in effect recovering the debt twice, a proceeding our courts would not be apt to favor, and the question may be considered as still open, notwith- standing the law is dififerent elsewhere. Notice of Loss to be given. — The policy generally re- quires notice of loss to be immediately communicated to the insurer, and proof made of loss, stating the extent of it and the manner of its occurrence. This statement must be veri- fied before some officer named, and furnished to the insurer. These provisions are made part of the contract and must be strictly observed by the insured that the insurer may inform himself of the facts and circumstances of the loss while the ashes of (lie fire are yet warm. INSUEANCE. 389 INSUEANCE, LIFE, Life Insurance, Definition of. — Life insurance is a con- tract by which the insurer agrees, in consideration of a stated sum of money either paid down or to be paid in yearly in- stalhnents, to insure the life of the insiu-ed for the benefit of his heirs or some person named. The contract may also be to pay a stated sum when the insured reaches, if he shoidd live as long, a certain age. In the first the insurance money becomes due at the death of the insured or within a reason- able time thereafter. In the second it becomes due if the insured dies before the stated age is reached, the same as in the first. If he lives until the stated age is reached, the in- surance is then due and payable. Benefits of Insurance. — The following objects are sought to be attained by insurance : The Head of a Family, by meana-of a small annual pay- ment, can provide for those of his.household in case of his death. Unmarried Persons can make similar provision for friends. ' A Creditor can Insxire the life of his debtor, and thus create security for the debt. A Man may Strengthen his own credit by insuring his life for the benefit of his creditors and assigning the policy to them. Insurable Interest. — The law requires the insurer to have some interest in the life of the insured. A stranger, with- out he be a creditor, cannot insure the life of a person, as that would be a mere "gambling contract" which is never tolerated in law. The classes enumerated ie the preceding paragraph, as we have seen, have insurable interests in the life of the insured. A father has no insurable interest in the life of a child, unless it be a pecuniary interest, but the child has in the life of its father, as it looks to him for sup- port. A single woman may insure the life of a brother if 390 LAW ENCYCLOPEDIA. she depends on Jiim for support. In California, a ■wife may insure the life of her husband, and she takes the insurance against creditors. Contract of Insurance, on What Based. — The contract of insurance is made upon the strength of certain answers to questions propounded by the insurer, and upon the report of the physician of the company. The questions have espe- cial reference to the health of the insured, and the diseases, if any, to "which he is or has been subject. These questions must be truthfully answered, as the answers become part of the contract, and are in the nature of a warranty, if inserted in the policy. If they are not referred to in the policy, they stand as representations, and must be material to avoid the policy. These objections are, in theory, always made by the insurer ; but, in one novel case in California, the widow of a minister of the gospel refused to take the insurance on her deceased husband's life, because he had misrepresented the facts when he applied for insurance. Assignability of Life Insurance. — Life insurance poli- cies are assignable the same as other contracts, and the assignee is entitled to recover, no matter what the consid- eration of the assignment was ; and it is not necessary that the assignee should have an insurable interest in the life ot the insured, to entitle him to recover. When a valid ■assign- ment is proved, the right to recover follows. . In these cases, it can make no difference to the insurer who pays the pre- mium, so long as it is regiolarly paid after the issuance of the policy. Proof of Death of Insured. — The death of the insured must be proved, either directly or by presumption, by the party averring it. In most cases, it can be proved by wit- nesses who have seen the dead body ; but, where such proof cannot be had, facts that leave no reasonable doubt of the death may be shown, as, the loss of the ship in which he sailed, etc. Where a person has not been heard of for seven years, the law, in such case, presumes him to be dead. INSUBANCE, FOEMS OP. 391 Forfeiture of Policy. — Where a policy stipulates that non-payment of the yearly or other premium shall work a forfeiture, the same -will be good, and a neglect to pay, for- feits all that has been paid. If the insurer, after forfeiture, accepts payment of the premium, the forfeiture is relieved, and the policy is good until it is again forfeited. INSURANCE, ACCIDENTS. Insurance against Accidents. — Frequently, policies are issued against accidents occurring within a certain time or on a certain journey. These policies are usually issued to any person who applies, and the premium regulated accord- ing as the employment or journey is more or less dangerous. FOEMS. ilotice of Zoss. To the fire insrirance co. : Please take notice, that on the [or, "night"] of 18.., a fire broke out in the btiilding known as [or, " No ," or other- wise describe the premises, following the description in the policy], whereon, I am insured by your company, in the sum of dollars; as per policy issued to jne, No , and dated 18.. I do not know what caused the fire or where it caught, nor is it possible for me to ascertain. [If known it should be stated.] Said house [or, "other building "] was totally destroyed [or, "partly"] by said fire, and I hereby claim a payment from you of the total sum guar- anteed by said policy Dated 1&. . Signed, Witness to sending, To be «sed icJun the Policy requires a Sworn StcUemeta of the Facts and Cir- cumstances of the Loss, To the fire insurance co. : Whereas, the said insurance company, by their policy Mo. ...... dated , 18. . , ipsured me against loss by fire, in the sum of dollars, on the following described building [or, " other property "], [hero describe property insured as described in the policy]. Now I, the said being the person insured in said policy, having been first duly sworn do depose and say: That on the day of , 18 . . , between the hours of and , a fire broke out in said building, whereby the same was greatly damaged [or, "was destroyed," or if the insurance is on personal property, in a building destroyed [state the facts regarding such destruction]; and said 392 LAW ENCYCLOPEDIA. fire was according to my Imowledge and belief caused by [state the cause of fire if possible, if not, so state], and I aver that the said fire was not caused by me or my design or concurrence, or with any previous knowledge on my part, or in any manner attributable to me or to my agency. That at the time of said fire I was interested in said property, in the man- ner following, that is to say [here state the interest of the insured] : That there was no other insurance on said property [if there was, state the name of company and the sum]. That the occupants of the building at the time of said fire, were as follows: [here give names of tenants.] That to the best of my knowledge the said building was worth, as it stood the day previous to the fire the sum of dollars. [If the property was personal, give schedule, if possible.] That the whole of said value was lost by said fire, and being more than the gum issued thereon, I hereby give notice that I claim of your said company the sum of dollars, being the sum guaranteed by you in said poUcy. [If personal property state the amount of loss and make claim, etc.] Witness my hand, this day of 18 . . Signed, Stateof ...... ) coxinty of f [Name of affidavit], being duly sworn, deposes and says, that he has read the foregoing affidavit and knows the contents thereof, and that the same is true of his own knowledge, except as those matters and things therein stated upon his informatiou and belief, and that as to those matters he beUeves H to be true. Subscribed and sworn to before me, this day of 18 . . Notary Public. Assignment of Policy to be Endorsed thereim. [See, further, Assignment and FoBus.] I hereby, for the sum of one doUar paid me, sell and assign to , the within policy of insurance, and aU the right and interest which I now or may hereafter have in the same.* Witness my hand, eto Signed, IFTEREST. CALIFORNIA. Legal Interest. — Where there is no express contract in writing, fixing a different rate of interest, interest shall be • We have heretofore called attention to the necessity of obtaining the assent of the insurer to the assignment ; and as soon as such consent has been obtained and the assignment had, notice must be given to the insurer or his agent, of the same, so he may make the proper entries of such transfer in his books INTEREST. 593 allowed at the rate of ten per cent, per annum for all moneys, after they become due on any bond, bill, promis- sory note, or other instrument of writing; and for money due on the settlement of accounts from the day on which the balance is ascertained, and for money received for the use of another, and the rate of interest on any judgment recovered before any court in this state, for money lent, shall be seven per cent, per annum. . Agreement of Parties. — Parties may agree, in writing, for the payment of any rate of interest whatever, on money due or to become due, and it shall be allowed, -according to the terms thereof, until the entrance of judgment thereon ; but, whatever may be the rate of interest agreed upon, no judgment or decree in any court of this state shall draw in- terest at a rate to exceed seven per cent, per annum. OREGON. Rate Allowed. — ^Ten per cent, per annum is allowed when there is no contract to pay more, but in no case to exceed one per cent, per month. If a greater sum has been contracted for, the whole debt is forfeited to the school fund. Judgments bear the interest the contract sued on bore, but in no case to exceed twelve per cent, per annum. NEVADA AND IDAHO. Where there is no other Contract, ten per cent, per year is allowed. Parties are at liberty to agree on any rate ; and all judgments shall conform to the rate stipulated in the contract sued on, and bear the same interest. 394 LAW ENCYCLOPEDIA. INTESTATE. Intestate.— One ■who having lawful power to make a will has made none, or one which is defective in form. In that case, he is said to die "intestate," and his estate descends to his heir at law. JETTISON. Jettison.^— The casting out of a vessel, from necessity, a part of the lading. It differs from flotsam in this, that in the latter the goods float, while in the former they sink and remain under water. The Jettison must be made from sufficient cause and not from groundless timidity. It must be made in a case of ex^ tremity, when the ship is in danger of perishing by the fury of a storm or is laboring upon rocks or shallows, or is closely pursued by pirates or enemies. If the Residue of the cargo be saved by such sacrifice, the property saved is bound to pay a proportion of the loss. In ascertaining such average loss, the gbods lost and saved are both to be valued at the price they would have brought at the place of delivery oni:he ship's arrival there, freight, duties and other charges, being deducted. See Insueance. JOBBER. Jobber. — One who buys and sells articles for others. Stock jobbers are those who buy and sell stocks for others. This term is also applied to those who speculate in stocks on their own account. See Broeeb. JOINDER OF ACTIONS. Joinder of Actions. — The union of two or more causes of action in the same declaration. In California, Nevada and Idaho, the statutory regulations on this subject are as fol- lows: JOINDER OF ACTIONS— JOINDER OF PARTIES. 395 What Causes of Action may be Joined. — The plaintiff may unite several causes of action in the same complaint, when they all arise out of : 1st. Contracts, express or implied. 2d. Claims to recover specific real .property, with or without damages, for the withholding thereof or for waste committed thereon, and the rents and profits of the same. 3d. Claims to recover specific personal property, with or without damages, for the withholding thereof. 4th. Claims against a trustee, by virtue of a contract or by operation of law. 5th. Injuries to character. 6th. Injuries to person. 7th. Injuries to property. But the causes of action so united shall all belong to only one of these classes, and shall affect all the parties to the action, and not require different places of trial, and shall be separately stated. Provided, however, that an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person. JOINDER OF PARTIES. Joinder of Parties. — When a married woman is a party, her husband shall be joined with her, except that : 1st. When the action concerns her separate property she may sue alone. 2d. When the action is between herseil and her husband, she may sue or be sued alone. Persons severally Ijiable, upon the same obligation or in- strument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate in- struments, may all or any of them be included in the same ..action at the option of the plaintiff. AU Persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided by law. 396 LAW ENCYCLOPEDIA. Of the Parties to the action, those who are united in in- terest shall be joined as plaintiffs or defendants ; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the rea- son thereof being stated in the complaint; and when 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. Any Person may be a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settle- ment of the question involved therein. JUDGE ADVOCATE. Judge Advxjcate. — An officer of a court-martial who is to discharge some duties at the trial of offenders. His duties are to prosecute in the name of the United States ; but he shall so far consider himself as counsel for the pris- oner, after the prisoner shall have made his plea, as to object to leading questions to any of the witnesses, or any questions to the prisoner, the answer to which might tend to criminate himself. He is further to swear the members of the court before they proceed upon the trial. JUDGMENT. Judgment. — The conclusion of law upon facts found or admitted by the parties, or upon their default in the course of the suit. In California, Nevada and Idaho, the statu- tory regulations on this subject are as follows : When a Trial by jury has been had, judgment shall be entered by the clerk, in conformity with the verdict, within twenty-four hours after the rendition of the verdict, im- less the court order the case to \^ reserved for argument, or further consideration, or grant a stay of proceedings. JUDGMENT. 397 If a Counter Claim, established at the trial, exceed the plaintiff's demand so established, judgment for the defend- ant shall be given for the excess ; or if it appear that the defendant is entitled to any other affirmative relief, judg- ment shall be given accordingly. In an Action to recover the possession of personal prop- erty, judgment for the plaintiff may be for the possession, or the value thereof in case a delivery cannot be had, and damages for the detention. If the property have been de- livered 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. Immediately after filing a judgment roll, the clerk shall make tbe proper entries of the judgment, under appropriate heads, in the docket kept by him ; and from the time the judgment is docketed, it shall become a lien upon all the real property of the judgment debtor, not exempt from exe- cution, in the county, owned by him at the time, or which he may afterwards acquire, until the said Uen expires. The lien shall continue for two years, unless the judgment be previously satisfied. A TranECript of the original docket, certified by the clerk, may be filed by the recorder of any other county; and from the time of the filing, the judgment shall become 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 afterwa,ras acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied. Satisfaction of a Judgment may be entered in the clerk's docket upon an execution returned satisfied, or upon an acknowledgment of satisfaction filed with the clerk, made in the manner of an acknowledgment of a conveyance of real property, by the judgment creditor, or within one year after the judgment, by the attorney, unless a revocation of his authority be previously filed. Whenever a judgment 398 LAW iENCYCLOPEDIA. shall be satisfied in fact, otherwise than upon an execution, it shall be the duty of the party or attorney to give such acknowledgment, and upon motion the court may compel it, or may order the entry of satisfaction to be made with- out it. See Concession of Judgment. Judgment Roll. — Immediately after entering ihe judg- ment, the clerk shall attach together and file the following papers, which shall constitute the judgment roll : 1st. In case the complaint be not answered by any de- fendant, the summons, with the affidavit or proof of ser- vice, and the complaint, with a memorandum indorsed upon the complaint that the default of the defendant in not an- swering was entered, and a copy of the judgment. 2d. In all other cases the summons, pleadings, verdict of the jury or finding of the court, commissioner or referee, all bills of exceptions taken and filed in said action, copies of orders sustaining or overruling demurrers, a copy of the judgment, and copies of any orders relating to a change of parties. JUDICIAL RECORDS. The following are the provisions of the laws of California, Nevada, Idaho and Arizona, in regard to sealing and certi- fying records. It is the same in Oregon, although the phraseology of the law is, in some respects, different : United States and this State. — ^A judicial record of this state or of the Unite4 States may be proved by the produc- tion of the original, or a copy thereof, certified by the clerk or other person having the legal custody thereof, under the seal of the court, to be a true copy of such record. Other States. — The records and judicial proceedings of the courts of any other state of the United States may be proved or admitted in the courts of this state by the attesta- tion of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief-jus- tice or presiding magistrate, as the case may be, that the said attestation is in due form. JUDICIAL EECOEDS. 399 Of Foreign Country.— A judicial record of a foreign country may be proved by the prqduction of a copy thereof, certified by the clerk, with the seal of the court annexed, if there be a clerk and seal ; or by the legal keeper of the record, with the seal of his office annexed, if there be a seal, to be a true copy of such record, together with a cer- tificate of a judge of the court that the person making the certificate is the clerk of the court, or the legal keeper of the record, and in either case that the signature is genuine and the certificate in due form ; and also, together with the certificate of the minister or embassador of the United States, or of a consul of the United States in such foreign country, that there is such a court, specifying generally the nature of its jurisdiction, and verifying the signature of the judge and clerk or other legal keeper of the record. A Copy of the Judicial Record of a foreign country shall also be admissible in evidence upon proof : 1st. That the copy offered has been compared by the wit- ness with the original, and is an exact transcript of the whole of it. 2d. That such original was in the custody of the clerk of the court or other legal keeper of the same. 3d. That the copy is duly attested by a seal, which is proved to be the seal of the court where the record remains, if it be the record of a court ; or, if there be no such seal, or if it be not a record of a court, by the signature of the legal keeper of the original. Statutes or other Written La-w. — Printed copies in volumes of statutes, code or other written law, enacted by any other state or territory or foreign government, purport- ing or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts and judicial tribunals of such state, territory or government, shall be admitted by the courts and officers of this state on all occasions as presump- tive evidence of such laws. Seal of Court. — A. seal of a court or public office, when required to any writ or process or proceeding, or to au- 400 LAW ENCYCLOPEDIA. thenticate the Signature and Attestation of an Officer. State of ) county of ...... | I, , judge of the judicial district of the state of in and for the county of do hereby certify that by whom the annexed transcript [or, "record," or, "copy of," as the case may be], cer- tificate and attestation, were made and given, and who, in his own proper 26 402 LAW ENCSCLOPEDU. handwriting has thereunto subscribed his name [where he is an officer hav- ing a seal, add, " and affixed his official seal"], was, at the time of so doing, and now is, county recorder, in and for the said county of state of , duly commissioned and qualified; to all whose acts as such, fuU faith and credit are and ought to be given, as well in courts of general jurisdiction as elsewhere, and that the said transcript [or, "record," or, "copy of," as iiie case may be], certificate and attestation, are in due form and made by the proper officer. In witness whereof , I have hereunto set my hand, this. . . .day of . . . ., one thousand eight hundred and .... , District judge. Certificate of Clerk of Court to the Signature of the Judge. County of , ss. I, county clerk of the county of , state of and ex officio clerk of the district court of the judicial district, in and for the county of , do hereby certify that the Hon , by whom the foregoing attestation was made, and whose genuine signature is subscribed thereto, was at the time of signing the same, and stUl is, judge of the district court of the judicial district, in and for the coimty of ...... duly commissioned and sworn, to whose acts as such full faith and credit are due. In witness whereof, I have hereunto set my hand and seal of said district court, this .... day of a.d. 18 . . [l.s.] ^ Clerk. JUEISDICTION-. Jurisdiction. — The authority by wMch judicial officers take cognizance of and decide causes. It includes power to en- force the execution of what is decreed. See Cottrts of Justice. JURORS. CALIPOBNIA. Qualification of Jurors. — ^A person shall be competent and qualified to act as a grand or trial juror, if he be : 1st. A citizen of the United States, a qualified elector of the county, and a resident of the township at least three months before being selected and returned. 2d. In possession of his natural faculties and not decrepit. 3d. "Who has sufficient knowledge of the language in which the proceedings of the courts are conducted. jxmoKS. 403 4th. Assessed on the last assessment roll of his county on property belonging to him. Incompetency. — A person is not competent to act as a juror — 1st. Who does not possess the qualifications pre- scribed above. 2d. Who has been convicted of a felony or misdemeanor involving moral turpitude. Exempt — ■who is. — A person is exempt from liability to act as a juror, if he be — 1. A judicial, civil, or military oflScer of the United States or of the state of California, or a county ofl&cer ; 2. A practicing attorney and counselor at law ; 3. A minister of the gospel or a priest of any denomina- tion following his profession ; 4. A teacher in a college, academy, or school, or prac- ticing physician or dentist ; 5. An officer, keeper, or attendant of an almshouse, hos- pital, asylum, or other charitable institution ; 6. Engaged in the performance of duty as officer or at- tendant of the county jail or the state prison ; 7. Employed on board of a vessel navigating the waters of this state ; 8. An express agent, mail carrier, superintendent, em- ploye, or operator of a telegraph line doing a general telegraph business in this state, or keeper of a public ferry or toll-gate ; 9. An active member of the fire department of any city, town, or village in this state, or an exempt member by reason of five years' active service ; 10. A superintendent, engineer, or conductor on a rail- road ; an editor or local reporter of a newspaper. Claim of Exemption. — If any person exempt from liabil- ity to act as a juror be summoned as a juror, he may make and transmit his affidavit to the clerk of the court for which he is summoned, stating his office, occupation, or employ- ment, and such affidavit shall be delivered by the clerk to the judge of the court when the name of such person is called ; and, if sufficient in substance, shall be received as an excuse for non-attendance in person. The affidavit shall then be filed by the clerk. 404 LAW ENCYCLOPEDIA. » NEVADA. Who Exempt from Serving. — ^The following-named per- sons shall be exempted from serving as grand or trial jurors, viz : all priests and ministers of the gospel, attorneys, law- reporters, practicing physicians, druggists and apothecaries, editors, all regularly-enrolled firemen, in actual service, and all state, county, township, town and municipal officers : provided, that no fixeman, when summoned to act on any jury, shall be excused from serving as such juror until he shall have been sworn by the judge, as follows: "I , do solemnly swear (or affirm), that I am a regularly-enrolled fireman, in active service in the fire department of [here state the city, town, or ward of the fire department of which such fireman claims to be an enrolled and active member], and that I am constant and active in the discharge of all the duties that devolve upon me, as a member of such fire de- partment, so help me God [if an oath], under the pains and penalties of perjury [if an affirmation]." IDAHO Who Exempt from Serving. — The following persons shall be exempted from serving as grand or petit jurors, viz: all priests or ministers of the gospel, attorneys and counselors at law, practicing as such, practicing physicians, all county, township or territorial officers, editors and regularly en- rolled firemen in active service not exceeding sixty-five in number to each company. FORMS. CertificaU-of Drawing-a-Jury. Stat& of J county of ... . J In pursuance of an order issued by the Hon judge of county, dated , a.d directed to, and ordering iheBheriff of county to summon a trial jury for tlie term, a.d of the court of said county, to be held on the etc., etc., said trial jury to be in attendance on said court on, etc. We, the undersigned, county judge, county clerk and pheriff, proceeded to copy from the assessment roll of the said county, the names of .... per- sons, to wit: , etc., etc. JUEOES, FORMS OF. 405 In witness whereof , we have hereunto set our hands, this day of , A.D Judge. County clerk. Sheriff. State of J county of J We, judge, , county clerk, a_-d , sheriff of the county of , state of , met at the chambers of the judge, in , on the day of . . . ., A.D at o'clock, in pursuance of the order of the county judge and notices given fey said sheriff, proceeded and placed in a box prepared by the county clerk, the names of the before-named persons, each name being on a separate piece or slip of paper. The said county clerk, in the presence of the .... judge, and the said sheriff drew from the box the names of four persons, to serve as trial jurors, until discharged, in the said court, to wit: etc., etc. In testimony whereof, we have herexmto afSxed our names, this day of A.D , Judfje. , Clerk. Sheriff. FetiMon for Summoning a Grand Jury. To the Hon , judge of the ... . court of the county of , district attorney of the county of . . . ., respectfully repieiiCfl'.;S, that since the commencement of the present term of this court, ceitdia indict- ments found in this court at the last term thereof, and transfeirod to tiie district court of the judicial district, against divers persons, charging them with the crime of murder, have been set aside by said coui't for iadulficiency, and the oases have been ordered to be resubmitted to a grand jury of this county. That it is important that the cases should be speedily invesiigatod, as par- ties are now in the county jail of said county, under a cummicment for said offenses, and that there are other persons now confinea iu said jail upon charges of felony, whose cases require the immediate invtsUgation of a grand jury. Wherefore your petitioner prays that a grand jury may oc forthwith order- ed to be summoned before this court for the purpose of transacting such business as may lawfully come before it. Dated , district attorney. Juror's Summons. Sheriff's office 18. . To Mr : You are hereby commanded to be and appear before the court of the and county of on the day of at o'clock, . . . ., at the court room of said court, at the in the county then and there to serve as a trial juror [or, " grand juror"]. Herein fail not, under the penalty of the law. Sheriff. By Deputy sheriff. 406 LAW ENCTCLOPEDU. JUSTICES' COURTS. CAIiirOBNIA, NEVADA AND IDAHO.* Jurisdiction. — See Cotjets of Justice. Parties may Appear in Person or by Attorney.— Parties in justices' courts may prosecute or defend ia person, or by- attorney ; and any person, on the request of a party, may act as Ms attorney, except that the constable by whom the summons or jury process was served, shall not appear or act on the trial in behalf of either party. Venue of Action. — No person shall be held to answer to any summons issued against him from a justice's court, in a civil action, in any township or city other than the one in which he shall reside, except in the cases following: 1st. When there shall be no justice's court for the town- ship or city in which the defendant may reside, or no jus- tice competent to act on the case. ^ 2d. When two or more persons shall be jointly, or jointly and severally, bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different town- ships or different cities of the same county, or in different counties, the plaintiff may prosecute his action in a justice's court of the township or city in which any of the debtors or other persons liable may reside. 3d. In cases of injury to the person, or to real or personal property, the plaintiff may prosecute his action in the town- ship or city where the injury was committed. 4:th. When personal property imjustly taken or detained is claimed, or damages therefor are claimed, the plaintiff may bring his action in any township or city in which the property may be found, or in which the property was taken. 5th. When the defendant is a non-resident of the county, he may be sued in any township or city wherein he may be foimd. *In Nevada, Arizona, and Idaho, an appeal lies to the district court. Wherever "county court" occurs, read " district court," as far as Nevada, Arizona and Idaho are concerned. In Oregon an appeal lies to the Circuit Court of the County. justices' couets. 407 6tli. Where a person has contracted to perform any obli- gation at a particular place, and resides in another township or city, he may be sued in the township or city in which such obligation is to be performed, or in which he resides. [And for the purpose of justice's court jurisdiction under this clause, 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 con- tract to the contrary — applicable to California alone. J 7th. When the foreclosure of a mortgage or the enforce- ment of a lien upon personal property is sought by the ac- tion, the plaintiff may sue in the township or city where the property is situated. [Not applicable to California.] 8th. Any person or persons residing in the city of San Francisco may be held to answer to any summons issued against him or them from the court of a justice for any township within the corporate limits of the city of San Francisco, in any action or proceeding whereof justices of the peace of the city or county of San Francisco have or may have jurisdiction by law : provided, nothing herein shall be construed to allow any justice of said city or county to hold a court in any other township than the one for which he shall have been elected. [Applicable to California alone.* In Idaho, justices of the peace have jurisdiction throughout the county for which they are elected.] 9th. When the defendant is a non-resident of the State he may be sued in any township or city in the State. 10th. In all other cases, in the township or city in which the defendant resides. Judgment by Confession. — Judgment upon confession may be entered up in any justice's court in the state, speci- fied in the confession. See Confession ^f Jxidgment. Voluntary Appearance of Parties. — Justices' courts shall have jurisdiction of an action and the persons of the parties thereto upon the voluntary appearance of the parties with- *In San Francisco, by a subsequent law, the several justices ' courts are consolidated into one, with five judges, one of whom is chief justice. 408 LAW ENCYCLOPEDIA. out summons, and -without regard to their residences, or the place where the cause of action arose, or the subject matter of the action may exist. [Same in Nevada and Arizona to here.] The plaintiff may commence an action by summons, either in the township or city where the contract was by its terms to be performed, or in which the defendant resides, as he may elect. Commenceinent of Actions. — Actions in justices' courts shall be commenced by filing a copy of the account, note, bill, bond, or instrument upon which the action is brought, or a concise statement in writing of the cause of action, and the issuance of a summons thereon, within one year after the filing of the same, or by the voluntary appearance and pleading of the parties without summons. In the lat- ter case, the action shall be deemed commenced at the time of appearance. Service of Summons. — Personal service of a summons must be had except in certain cases specified in the next paragraph. Service must be made by a sheriff, constable, or person specially deputed. In Idaho and Arizona the constable is not allowed to appoint a deputy. In San Fran- cisco the office of constable is abolished — all papers are served by the sheriff. Service by Publication. — When the person upon whom the 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, and the fact shall appear, by affidavit, to the satisfaction of the justice, and it shall, in like man- ner, appear that a cause of action exists against the defend- ant in respect to whom the service is to be made, the justice shall grant an order that service be made by the publication of the summons. The order shall direct the publication to be made in a newspaper, to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week ; provided, that publication against a defendant residing out justices' couets. 409 of the State, or absent therefrom, shall not be less than three months. [In California, two months ; and in Nevada, where the defendant resides in California, Oregon, Utah, or Washington Territory, one month — and instead of pub- lication the justice may order the summons to be posted. In Oregon the publication shall be not less than once a week for six weeks. J The service of summons shall be deemed complete at the expiration of the time prescribed by the order of publication ; the justice shall also direct a copy of the summons to be forthwith deposited in the post- office, directed to the person to be served, at his place of residence, if such residence be known. In Idaho, the proceedings are as follows: When the person upon whom the service is to be made resides out of the county in which the action is brought, or absents himself therefrom for more than six months, or conceals himself to avoid the service of summons, and that fact shall appear by affidavit to the satisfaction of the justice, and it shall in like manner appear that a cause of action exists against the defendant in respect to whom the service is to be made, and that such defendant has property within the county, subject to attachment and execution, the summons may be served by delivering a copy thereof to the person in possession of such property, and leaving the same with such person, or in case such person cannot be ascertained, then by posting such copy at the place where such property is situated, in either of which cases the service of summons shall be deemed complete for the purpose of the action. Order of Arrest. — An order to arrest the defendant may be indorsed on a summons issued by the justice, and the defendant may be arrested thereon by the sheriff or consta- ble, at the time of serving the summons, and brought be- fore the justice, and there detained until duly discharged, in the following cases, arising after the passage of this act: 1st. In an action for the recovery of money or damages, on a cause of action arising upon contract, express or im- plied, when the defendant is about to depart from the state, 410 LAW ENCYCLOPEDIA. with intent to defraud his creditors; or where the action is for a willful injury to the person, or for taking, detaining or injuring, personal property. [In California, is not in- cluded injury to the person or property.] 2d. In an action for fine or penalty, or for money or prop- erty embezzled, or fraudulently misapplied, or converted to his own use, by an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity. 3d. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought. 4th. When the defendant has removed, concealed, or dis- posed of his property, or is about to do so, with intend to defraud his creditors. But no female shall be arrested in any action. [No prohibition appears in the Nevada statutes against the arrest of a female. In Oregon, an order for ar- rest in a civil action also includes, as a cause : injury to character, promise to marry, misconduct or neglect in office or in a professional employment.] Affidavit and Undertaking. — Before an order for an arrest shall be made, the party applying shall prove to the satisfaction of the justice, by the affidavit of himself or some other person, the facts on which the application is founded. The plaintiff shall also execute and deliver to the justice a written undertaking, with two or more sureties, to the effect that if the defendant recovers judgment, the plaintiff will pay to him all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least two hundred dollars. [In California, three hundred dollars.] Duty of Officer making Arrest. — The officer making the arrest shall keep the defendant in custody until duly dis- charged by order of the justice. Defendant may DemEind inamediate Trial. — The defend- ant under arrest, on his appearance with the officer, may , justices' couets. 411 demand a trial immediately, and upon such demand being made, the trial shall not be delayed beyond three hours, except by the trial of another action pending at the time; or he may have an adjournment, and be discharged on giv- ing bail, as provided in the next paragraph. An adjourn- ment at the request of the plaintiff, beyond three hours, shall discharge the defendant from arrest; but the action may proceed, notwithstanding, and the defendant shall be sub- ject to arrest on the execution, in the same manner as if he had not been so discharged. [Not applicable to Califor- nia.] Attachment as Security. — In an action upon a contract, express or implied, made after the passage of this act, for the direct payment of money, which contract is made or is payable in this state, and is not secured by mortgage, lien or pledge, upon real or personal property, the plaintiff at the time of issuing the summons, or at anytime afterwards, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided. Affidavit for Attachment. — A writ to attach the prop- erty of the defendant shall be issued by the justice, on receiving an affidavit by or on behalf of the plaintiff, show- ing the same facts as are required to be shown by the affi- davit for attachment in district court. See Attachment. Undertaking on Attachment. — Before issuing the writ, the justice shall require a written undertaking on the part of the plaintiff, with two or more sufficient sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attach- ment. Writ of Attachment and Substance of. — The writ may be directed to the sheriff or any constable of the county, and shall require him to attach and safely keep all the property 412 LAW ENCYCLOPEDIA. of the defendant -within his county, not exempt froni exe- cution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which shall be stated in conformity with the complaint, unless the defendant give him security by the undertaking of two sufficient sureties, in an amount sufficient to satisfy such demand besides costs; in which case, to take such undertaking. Replevy of Personal Property. — The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him. Affidavit in Replevin. — When a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing: 1st. That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the possession thereof. 2d. That the property is wrongfully detained by the defendant. 3d. The alleged cause of the detention thereof, according to his best knowledge, information and belief. 4;th. That the same has not been taken for a tax, assess- ment or fine, pursuant to statute, or seized under an execu- tion, or an attachment against the property of the plaintiff, or, if seized, that it is by statute exempt from such seizure. 5th. The actual value of the property. [In Arizona, not exceeding $100.] Order to take Property. — The justice shall thereupon, by an indorsement in writing upon the affidavit, order the sheriff or a constable of the county to take the same from the defendant, and deliver it to the plaintiff, upon receiving the undertaking mentioned below. Undertaking in Replevin. — Upon the receipt of the affi- davit and order, with a written undertaking, executed by two or more sufficient sureties, approved by the officer, to the effect that they are bound in double the value of the justices' courts. 413 property as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the plaintiff, the officer shall forthwith take the property de- scribed in the affidavit, if it be in the possession of the de- fendant or his agent, and retain it in his custody. He shall also, without delay, serve on the defendant a copy of the affidavit, order, and undertaking, by delivering the same to him personally, if he can be found within the county, or to his agent, from whose possession the property is taken ; or, if neither can be found within the county, by leaving them at the usual place of abode of either within the county, with some person of suitable age and discretion; or if neither have any known place of abode within the county, by put- ting them in the nearest post-office, directed to the de- fendant. Defendant may object to Sureties. — The defendant may, within two days after the service of a copy of the affidavit and undertaking, give notice to the officer that he excepts to the sufficiency of the sureties; if he fails to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice before the justice; and the officer shall be responsi- ble for the sufficiency of the sereties until the objection to them is either waived, as above provided, or until they justify. If the defendant except to the sureties, he cannot reclaim the property as provided in the next paragraph. Return of Property to Defendant. — A.t 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, re- quire the return thereof, upon giving to the officer a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudg- ed, and for the payment to him of such sum as may for any 414 LAW ENCTCLOPEDIA. cause be recovered against the defendant. If a return of the property be not so required within five days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as otherwise provided. Justification of Defendant's Sureties. — The defendant's sureties, upon three days notice to the plaintiff shall justify before the justice; and upon such justification, the officer shall deliver the property to the defendant. The officer shall be responsible for the defendant's stireties until they justify, or until the justification is completed or expressly waived, and may retain the property until that time; but if they or others in their place fail to jiistify at the time ap- pointed, he shall deliver the property to the plaintiff. Concealed Property, Duty of Officers. — If the property or any part thereof be concealed in a building or inclosure, the officer shall publicly demand its delivery; and if it be not delivered, he shall cause the building or inclosure to be broken open, and take the property into his possession. Pleadings in Justices' Courts. — The pleadings in justices' courts shall be: 1st. The complaint by the plaintiff, stating the cause of action. 2d. The answer by the defendant, stating the ground of the defense. Same. — The pleading shall be in writing, and verified by the oath of the party, his agent or attorney, when the ac- tion is : 1st. For the foreclosure of any mortgage, or the enforce- ment of any lien on personal property. [Not applicable to California.] 2d. For a forcible or unlawful entry upon, or a forcible or unlawful detention of, lands, tenements, or other pos- "This provision, although found in the law governing justices' courts, has no application, as the county courts in California have jurisdiction in such cases. justices' courts. 415 3d. In other cases the pleading may be oral or in writing. [California alone.] Form of Pleadings. — When the pleadings are oral, the substance of them shall be entered by the justice in his docket ; when in writing, they shall be filed in his office, and a reference to them made in the docket. Pleadings shall not be required to be in any particular form, but shall be such as to enable a person of common understanding to know what is intended. Complaint, Contents of. — The complaint shall state in a plain, direct manner the facts constituting the cause of action. Ans-wrer, Contents of. — The answer may contain a denial of any of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constitut- ing a defense or a counter claim, upon which an action may be brought by the defendant against the plaintiff in a jus- tice's court. Insufficient Kno^vledge. — A statement in an answer that the party has not sufficient knowledge or information, in respect to a particular allegation in the previous pleading of the adverse party, to form a belief, shall be deemed equivalent to a denial. [Not applicable to California.] Written Instrument, Pleading. — When the cause of ac- tion or counter claim arises upon an account or instrument for the payment of money only, it shall be sufficient for the party to deliver a copy of the account or instrument to the court, and to state that there is due to him thereupon, from the adverse party, a specified sum, which he claims to recover or set off. The court may, at the time of the pleading, require that the original account or instrument be exhibited to the inspection of the adverse party, and a copy to be furnished : or if it be not so exhibited and a copy furnished, may prohibit its being afterwards given in evidence. 416 LAW ENCYCLOPEDIA. Written Instruments, Note, Bill, etc— If the plaintiff annex to his complaint, or file with the justice at the time of issuing the summons, a copy of the promissory note, bill of exchange, or other written obligation for the payment of money, upon which the action is brought, the defendant shall be deemed to admit the genuineness of the signatures of the makers, indorsers or assignors, thereof, unless he specifically deny the same in his answer, and verify the answer by his oath. Demurrer to Pleadings. — Either party may object to a pleading of his adversary, or to any part thereof^ that it is not sufficiently explicit to enable him to understand it, or that it contains no cause of action or defense, although it be taken as true. If the court deem the objection well founded, it shall order the pleading to be amended, and if the party refuse to amend, the defective pleading shall be disregarded. Variance betvreen Pleadings and Proof. — A variance be- tween the proof on the trial and the allegations in a plead- ing shall be disregarded as immaterial, unless the court be satisfied that the adverse party has been raisled to his prej- udice thereby. Title or Possession of Ileal Property not to be Litigated. — The parties shall not be at liberty to give evidence upon any question which involves the title or possession of real property, or the legality of any tax, impost, assessment, toll or municipal fine, nor shall any issue presenting such ques- tion be tried by said justice; and if it appear from the plaintiff's own showing on the trial, or from the answer of the defendant, verified by his oath, 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 shall suspend all further proceedings in the action and certify the pleadings, or if the pleadings be oral, a transcript of the same, from his docket to the district court of the county, and from the time of filing such pleadings or transcript justices' coubts. 417 with the county clerk, the district court shall have over the action the same jurisdiction as if it were commenced therein. [In Idaho, justices' courts may try the right to the posses- sion of real property and the legality of any tax, impost, assessment, toll or municipal fine, and when the pleadings are certified to the district court, upon the answer of de- fendant he shall file a bond with two or more sureties to pay all costs. Justices cannot try the title of real estate. In Nevada and California, they cannot try the right to the possession of mining claims or the title to them. In other respects the law is the same as in California.] Judgment in Certain Cases. — If the plaintiff fail to ap- pear at the return day of the summons, the action shall be dismissed. If the defendant fail to appear at the return day of the summons, or if either party fail to attend at a day to which the trial has been adjourned, or fail to make the necessary pleading or proof on his part, the case may, nevertheless, proceed at the request of the adverse party, and judgment shall be given in conformity with the plead- ings and proofs. Trial by Jury. — A trial by jury shall be demanded at the time of joining issue, and shall be deemed waived if neither party then demand it. When demanded, the trial of the case shall be adjourned until a time and place fixed for the return of the jury. If neither party desire an adjourn- ment, the time and place shall be determined by the jus- tice, and shall be on the same day, or within the next two days. The jury shall be summoned upon an order of the justice, from the citizens of the city or township, and not from the bystanders. Dismissal of Case virithout Prejudice. — Judgment that the action be dismissed without prejudice to a new action, may be entered with costs in the following cases : 1st. When the plaintiff voluntarily dismisses the action before it is finally submitted. 2d. When he fails to appear at the time specified in tho 27 418 LAW ENCYCLOPEDIA. summons, or upon adjournment, or within one hour therer after. 3d. When it is objected at the trial, and appears by the evidence that the action is brought in the wrong county, or township, or city ; but if the objection be taken and over- ruled, it shall be cause only of reversal on appeal, and shall not otherwise invalidate the judgment ; if not taken at the trial, it shall be deemed waived, and shall not be cause of reversal. Judgment by Default. — When the defendant fails to ap- pear and answer, judgment shall be given for the plaintiff, as follows : 1st. When a copy of the account, note, bill, or other ob- ligation upon which the action is brought, was filed with the justice at the time the summons w'as issued, judgment shall be given without further evidence for the sum speci- fied in the summons. 2d. In other cases, the justice shall hear the evidence of the plaintiff, and render judgment for such sum only as shall appear by the evidence to be just, but in no case exceeding the amount specified in the summons. [The second clause is applicable to California and Nevada alone.] Entry of Judgment and Coin Contracts. — Upon a verdict the justice shall immediately render judgment accordingly. When the trial is by the justice, judgment shall be entered immediately after the close of the trial, if the defendant has been arrested and is still in custody ; in other cases it shall be entered within four days after the close of the trial. If the action be on a contract against two or more defendants, and the summons is served on one or more, but not on all, the judgment shall be entered up only against those who were served, or have voluntarily appeared, if the contract be a several or a joint and several contract; but if the con- tract be a joint contract only, the judgment shall be entered up against all the defendants, but shall only be enforced against the joint property of all and the individual prop- erty of the defendants served [the same in Idaho to here; justices' coxmis. 419 the balance is only applicable to California], or v/ho have voluntarily appeared in the action. In an action on a con- tract or obligation in writing for the direct payment of money, made payable in a specified kind of money or cur- rency, judgment for the plaintiflf, -whether the same be by default or after verdict, may follow the contract or obliga- tion, and be made payable in the kind of money or currency specified therein; and in all actions for the recovery of money, if the plaintiflf 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 default of the defendant or estab- lished by evidence, the judgment 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 received by such person in a fiduciary capacity, or to the use of another, judgment for the plaint- iff must be made payable in the kind of money or currency so received by such person. Costs. — In California, the prevailing party is entitled to costs of the action and also of any proceedings taken by him in aid of an execution issued upon any judgment recovered therein. Disability of Justice, — In case of the sickness or other disability, or necessary absence of a justice on return of summons or at time of trial, another justice of the same township or city may, at his request, act as such justice in his stead ; and if the case is adjourned, the justice before whom the summons was returnable may resume jurisdic- tion. [Applicable to California.] Deposit for Costs. — Justices of the peace may in all cases require a deposit of money, or an undertaking, as security for costs of court before issuing a summons. Part of Sum found due Remitted. — When the amount found due to either party exceeds the sum for which the jus- tice is authorized to enter judgment, such party may remit the excess, and judgment may be rendered for the residue. 420 LAW ENCYCLOPEDIA. Offer to Compromise. — If the defendant, at any time be- fore the trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immedi- ately have judgment therefor, with the costs then accrued ; but if he do not accept such offer before the trial, and fail to recover in the action a sum equal to the offer, he shall not recover costs, but- costs shall be adjudged against him, and if he recover, deducted from his recovery. But the offer and failure to accept it shall not be given in evidence to affect the recovery otherwise than as to costs, as above provided. Judgment on Arrest. — When a judgment is rendered in a case where the defendant is subject to arrest and imprison- ment thereon, it shall be so stated in the judgment and en- tered in the docket. Costs. — When the prevailing party is entitled to costs the justice shall add their amount to the verdict ; or in case of a failure of the plaintiff to recover, or in case of a dis- missal of the action, shall enter up judgment in favor of the defendant for the amount of such costs. Appeal to County Court. — Any party dissatisfied with a judgment rendered in a justice's court may appeal therefrom to the county court of the county, at any time within thirty days after the rendition of the judgment. [In Arizona, ten days. J The appeal shall be taken by filing a notice of ap- peal with the justice, and serving a copy on the adverse party. [The same in Nevada to here.] The notice shall state whether the appeal is taken from the whole or a part of the judgment, and if from a part, and whether the appeal is taken on questions of law or fact, or both. [Not appli- cable to Arizona or Oregon.] Statenaent on Appeal and Settlement of. — When a party appeals to the county court on questions of law alone, he shall, within ten days from the rendition of the judgment, prepare a statement of the case, and file the same with the justice. The statement shall contain the grounds upon which the party intends to rely on the appeal,, and so much of the evidence as may be necessary to explain the grounds, justices' C0UET3. 421 and no more. Within ten days after lie receives notice that the statement is filed, the adverse party, if dissatisfied with the same, may file amendments; the proposed statement and amendments shall be settled by the justice; and if no amendments be filed, the original statement shall be adopt- ed. The statement thus adopted, or as settled by the jus- tice, with a copy of the docket of the justice, and all motions filed with him by the parties during the trial and the notice of appeal, shall be used on the hearing of the appeal before the county court. [California and Idaho.] Statement need not be Made, When. — When a party ap- peals to the county court on questions of fact, or on ques- tions of both law and fact, no statement need be made, but the action shall be tried anew in the county court. [Cali- fornia and Idaho.] Notice of Appeal and Statement. — Upon receiving the notice of appeal, and on payment of the fees of the justice, and filiag an undertaking as required in the next paragraph, the justice shall, within five days, transmit to the clerk of the county court: if the appeal be on questions of law alone, a certified copy of his docket, the statement as admitted or as settled, the notice of appeal and the undertaking filed; or if the appeal be on questions of fact, or both law and fact, a certified copy of his docket, the pleadings, all noti- ces, motions and other papers, filed in the cause, the notice of appeal and the undertaking filed; and the justice may be compelled by the county court, by an order entered upon motion, to transmit such papers, and may be fined for neglect or refusal to transmit the same. A certified copy of such order may be served on the justice by the party or his attorney. In the county court, either party shall have the benefit of all legal objections made in the justice's court. Undertaking on Appeal and Justification of Sureties. — An appeal from a justice's court shall not be effectual for any purpose, unless 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 proceed- ings be claimed, in a sum equal to twice the amount of the 422 LAW ENCICLOPEDU. judgment, inoluding costs, -when the judgment is for the payment of moneiy; or twice the value of the property, in- cluding costs, when the judgment is for the recovery of spe- cific personal property, and shall be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the said action in the county court. When the action is for the recovery of specific personal property, the undertaking shall be conditioned that the appellant will pay the judgment and costs appealed from, and obey the order of the court made therein, if the appeal be withdrawn or dismissed, or any judgment and costs that may be re- covered against him in said action in the coimty court, and will obey any order made by the court therein. The under- taking shall be accompanied by the affidavits of the sureties that they are residents of the county, and are each worth the amount specified in the undertaking, over and abqve all their just debts and liabilities, exclusive of property exempt from execution;' or the bond shall be executed by a suffi- cient nimiber of sureties who can justify, in the aggregate, to an amount equal to double the amount specified in the bond, or a deposit of the amount of the judgment, includ- ing all costs appealed from, or of the value of the property, including all costs in actions for the recovery of specific personal property, with the justice. And such deposit shall be equivalent to the filing of the undertaking in this act mentioned; and in sucfh cases the justice shall transmit the money to the clerk of the county court, to be by him paid out on the order of the court. The adverse party may, how- ever, except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they, or other sureties, justify before the justice before whom the appeal is taken, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affi- davits, the appeal shall be regarded as if no undertaking had been given. [In Nevada, the bonds for costs must be made payable in gold coin, and all the undertakings must JITSTICES' COURTS, FORMS OP. 423 must be made payable in the currency in which the judg- ment appealed from is payable.] [In California the affida- vits of the sureties must state that they are each residents and householders, or freeholders, within the state.] Stay of Proceedings. — If an execution be issued, on the filing of the imdertaking staying all proceedings, the justice shall, by order, direct the officer to stay all proceedings on the same. Such officer shall, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property or proceeds thereof, as may be necessary to pay the same. FOBMS. Summons. State of in the justice's court of the township, in and for the .... county of The people of the state of .... to ... . greeting: Yon are hereby summoned to appear before me, at my ofSce in the township, in the county of on the day of A.n. 18 . . at o'clock , to answer unto the complaint of ..... upon » promissory note, etc. [describe it, stating the amount) etc.}, when judgment will be taken igainst you for the said amount, together with costs and damages, if you ail to appear and answer. To the sheriff or any constable of said county, greeting; Make legal service and due return hereof. Given under my hand, this .... day of a.d. 18. . StaMof i ■of f Justice of the peace of said township. Order of Arrest. county < The people of the state of to the sheriff or any constable of said county; You are hereby commanded to arrest the within-named defendant and bring him before me forthwith \3tmy office in said township), to answer the plaintiff's complaint, £lcd. Given under my hand, this .... day of .... a.d. 18. . Justice of the peace. I hereby certify that I have served the above order, by arresting and brin^ ing into court the said this .... day of a.d. 18. . Constable. 424 LAW ENCYCLOPEDU. Complaint on Wrilten Instrument. In the justice's court of the. . . .township, State of } county of J against :.\ The above-named , as plaintiff, commences this action in the justice's court of the township, state of against the said , a resident of said county, as defendant, and for cause of action complains and alleges as follows, to wit: That heretofore, to wit, on the . . . day of , in the year of our Lord one thousand eight hundred and , at the said county, the said defendant made his certain instrument in writing, hearing date on that day, in the words and figures following, to wit: [here insert copy of the note], and then and there delivered the same to said plaintiff, who thereby became and Btill is the legal owner and holder thereof, and entitled to demand and receive the sum of money therein expressed. And the said plaintiff avers that the isaid sum of money in said instrument mentioned, is now past due, and payable from the said defendant to said plaintiff, and that the said defendant, although the same has been duly pre- sented and payment thereof demanded, unjustly neglects and refuses to pay the same or any part thereof, and that said sum, in said instrument men- tioned, is still wholly due and unpaid, together with the interest due thereon. Wherefore, -the said plaintiff claims and prays for a judgment of this honorable court against the said defendant for the said sum of [amount of the note] dollars with interest thereon, from the .... day of . . . ., A., d. 18. ., at the rate of per cent, per , besides costs of suit. Dated this .... day of , a. d. 18. , Plaintiff's attorney. Affidavit for Order of Arrest. In the justice's court of the township. State of , Kg county of against \ the plaintiff in this suit, being duly sworn, desposes and says that the cause of action in this case arose after the passage of the act of the legis- tatnre of the state of , entitled "An act to regulate proceedings iu civil cases in the courts of justice of this state," passed , 18. . ; that it is an action for the recovery of money or damages, is a cause of action arising upon an express contract, and that the defendant is about to depart from this state withthe intent fo defraud his creditors. [Or set out other cause of arrest, as may be.] justices' COtTRTS, FOEMS OP. i25 And the deponent further states and isho-ws to the court the following facts and circumstances [or of other ground of arrest ] in support of the above alle- gations of fraud, that is to say: [here state the facts and circumstances par- ticularly]. ^worn to before me, this .... day of . . . . , a. d. 18 . . Justice of the peace. Undertaking on Order of Arrest. justice's court, township. Stateof ) county of j against Whereas, an order to arrest the above-named defendant has been this day issued: Now, therefore, we, the undersigned, to undertake on the part of the above-named plaintiff in the sum of dollars, that if the defendant re- cover judgment the said plaintiff will pay all costs that maybe awarded to the defendant, and all damages ■which he may sustain by reason of the said arrest — not exceeding .... hundred dollars above specified. [In California the undertaking must be in the sum of J300, and after the word " arrest " should be inserted if the " same be wrongful, or without sufficient cause."] Witness our hands and seals in the county of , on the day of A. D. 18 . . [l.s,] [L.S.] ["•] Approved , Justice of the Peace. [Affidavit of justification in usual form.] [In California the affidavits of the sureties must state that they are each residents and householders or freeholders within the state. ] XTndertaking hy Defendant on Arrest. Justice's court township. Stateof I county of ) agabxst Whereas, the above-named defendant has been arrested at the suit of the above-named pl.-iintiff. Now, therefore, we, the undersigned, do undertake on the part of the above defendant, that he will render himself amenable to the process of the court during the pendency of the action, and such as may be issued to enforce the judgment therein; or that we will piiy to the plaintiff the amount of any judgment which he may recover in this action, not exceed- ing .... hundred dollars. 426 lATT ENCTOLOFEDU. ' Witness our hands and seals in the cormtyoi ....... on the day of ...., A.D. 18.. [l.s.] [i-s-] Approved, [l.s.] Justice of the peace. Venirt. Justice's court, .... township, before , esq., justice of the peace. state of , county of against The people of the state of to the sheriff or any constable of said county, greeting : You are hereby commanded to summon twelve good and lawful men, citi- zens of the .... of and not from bystanders, to act as jurors to try theissue in the above-entitled cause; said jurors to meet at my office in said township for said pturpose, on the day of , A.i]. 18. ., at o'clock precisely. Make lawful return hereof. Given under my hand this .... day of . . . . , a.d. 18. . Justice of the peace of said township. Writ of AUachnumi. Justice's court township, county of-. . \ agairist J The people of the state of to the sheriff or any constable of the county of , greeting: You are hereby commanded to attach and safely keep all the property of the above-named defendant within in this county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, to wit: dollars, beside the costs; unless the said defendant shall give yon security by an undertaking in two sufficient sureties, for said amount and costs, in which case you will take such undertaking. Make due return hereof. Criven under my hand, and dated at the .... township, on the .... day of A.D. 18., Justice of the peace-of said township. Notice of Attachment. County of , ,18.. To : By virtue of an attachment issued out of the justice'Dooort, JUSTICES GOUKTS, FOEMS OF. 427 and to me directed against above defendant, I attaeli all money, debts, effecta and credits, in your hands, or under your control, belonging to the above- named defendant, or so much thereof as will satisfy the claim, to wit: dollars, with cost and accruing cost. Witness my hand, this .... day of a.d. 18. . Execution. Justice's-court, township. Constable. f ss. United States of America, state of , county of The people of the state of , to the sheriff or any constable of the county of greeting ; JusauENT. ' AOOBUINO COSTS. Damages Costs Whereas, a judgment was ren- dered before me, a justice of the peace for the township in said county of , on the day of a.d. 18 . . , against , and in favor of for the sum of dollars, damages; and .... dollars, costs of suit. These are therefore to command you, that out of the personal property, and if sufficient per- sonal property cannot be found, then out of the real property of the said , you levy and cause to be made, by distress and sale of the said amount of dollars damages, and .... dollars costs of suit, together with the cost that may accrue — and of this writ make legal service and due return within days from the data hereof. Given under my hand this day of a.d. 18. . Execution and filing Levy - . - Percentage Advertisement Keeping Other costs - ' Justice of the peace of said township. Undertaking on lielease of Attachment. Know all men by these presents, that we, , as principal, and . . . . , and as sureties, all of ttie county of are held firmly bound unto , of the city and county aforesaid, in the sum of hundred dollars, lawful money of the United States of America, to be paid to the said his heirs, executors, administrators or as- signs; for which payment, weU and truly to be made, we bind ourselves, our heirs, executors, administrators or assigns, jointly and severally, firmly by these presents. Sealed with our seals. Dated this day of , 18. Kow the condition of this obUgation is such, that, whereas a writ of at- tachment has issued against the above bounden , at the suit of and certain of his goods and chattels have been attached under and by 428 LAW ENCYCLOPEDU. Tirtue thereof. Now, in consideration of the release of said goods and chat- tels from such attachment, if the said shall well and truly pay any judgment and costs that the said may recover against him, the said then this obligation to be null and void; otherwise to remain in full force and effect. [I'-S-] [i-.s.] [I.-S-] [Affidavit of justification in usual form.] Order on Oamiskee to Appear and Answer. United States of America, justice's court, .... township. Stateof I county of f against \ The people of the state of , to , greeting : Whereas, it has been alleged and made to appear to the undersigned, one of the justices of the peace of said township, that an execution has been duly issued out of this court against the properly of the above-named defendants and is still in force; and that you have in your possession or under your con- trol certain debts, moneys, effects, credits and other property, owing to or belonging to the said defendant. You are therefore commanded, to be and appear before me, at my office in said township, in said county, on the day of a.d. 18 . . , at o'clock M., then and there to be examined on oath concerning the same; and you are further commanded not to pay, transfer, return or otherwise part with or dispose of, any such debts, moneys, effects, credits, or other prop- erty, until duly released according to law. Given under my hand, this day of a.d. xS . . » Justice of the peace of said township. Constable's Jury Summons. Justice's court township. To Mr : Tou are hereby notified and required to attend before the justice's court of the township, on the day of .... at o'cloek u., in the court-room in the '. . . county of then and there to serve as a juror. Herein fail not, under the penalty of the law. ...... - I Constable. Attachment for DefavMers. Justice's court, township. State of , ) county of J The people of the state of to the sheriff or constable of said county, greeting : You are hereby commanded forthwith to attach the body of , a justices' coubts, foems of. 429 defaulting Jiiror, and have him before our said court, on , the day of 18 . . , then and there to show cause why he should not be punished foi contempt in disobeying the mandate of said court. Justice of the peace of said township. St»H of county of. Notice of Transfer of Cause. Justice's court township. .1 against To the plaintiff and defendant: Please take notice that the above-entitled case, transferred to this court from the township, justice's court, is set for trial before me at my court- room in said township, a.d. 18 . . , at o'clock, Yours, etc. Justice of the peace. , A.D. 18.. Satisfaction of Judgment. Justice's Court of the .... township, state of ^ county of against Satisfaction is acknowledged between the plaintiff and the defendant, for the sum of .... dollars, being the amount of a judgment entered in the judgment book of the justice's court, county of the day of one thousand eight hundred and [L.S-] state of ...... I county of ( On this day of , a.d. one thousand eight hundred and , be- fore me , a justice of the peace, in and for the said county, person- ally appeared , to me personally known to be the individual de- scribed in and who executed the annexed instrument, and acknowledged to Die that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and affixed my official seal, the day and year first above vrritten. Justice of the peace. Notice of Appeal. Justice's court of the ■.... district, .... township, county of against f You will please take notice, that the defendant in this action, above-named. 430 LAW ENCYCLOPEDIA. hereby appeals to the court of the county of , from the judg- ment therein made and entered in the justice's court on the .. .. day ol , A.s. 18. ., in favor of said plaintiff, against defendant, and from the 'whole thereof, this appeal is taken on questions of both law and fact [or, "this appeal is taken on questions of law alone "]. Dated, . . , this day of , a.d. 18 , . Yours, etc., Attorney for appellant. To the justice of said justice's court, and . , . , , attorney for respondent. Vndertakirig an Appecu, State of In the justice's court of the .... township, in and for the county of Know all men by these presents, that we, as principal, and .... and as sureties, are held and firmly bound unto , his executors, administrators and assigns, in the full sum of hundred dol- lars, to the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Signed with our hands, and sealed' 'with our' seals, this day of A.D. 18.. The condition of the above undertaking is this, that whereas the said .... obtained a judgment against the said , before , esq., justice of the peace of the to'wnship, county aforesaid, on the day of ', A.D. 18. . , for dollars costs, . and whereas the above bounden is desirous of appealing from the decision of said justice, to the court of the county of Now, if the above bounden shall well and truly pay, or cause to be paid, the amount of said judgment and all costs, and obey any order the said county court may make therein, if the said appeal be 'withdra'wn or dis- missed ; or pay the amount of any judgment and all costs that may be re- covered against the said appellant, in said county court, and obey any order the said court may make therein, then this obligation to be null and void, otherwise in full force and virtue. [i-s.] [i-s.] [I..S.] [Affida'vit of justification to be added.] Complaint for Taking Personal Property. In the justice's court, state of , county of , of the .... to-wnship. against County of . :} ., plaintiff in this action, by , his attorney, complains of , resident of said city and county, defendant, an4 for cause of action shows: justices' COtJEXS, POBMS OP. 431 That heretofore, to •wit: on the day of , in the year of our Lord one thousand eight hundred and at the said , the said defendant, with force and anus, seized and took certain goods and chattels of the plaintiff, to wit: [here describe the property], of great value, to wit: of the value of hundred dollars, and carried away the same and converted and disposed thereof to his own use, and other wrongs to the plaintiff, then and there did, against the peace of the people of the state of , and to the damage of the said plaintiff, of hundred dollars. And the said plaintiff further alleges, that the said defendant refuses to return said property, although demand has been made therefor. Wherefore, he brings this suit, and prays judgment against the said de- fendant, for his damages aforesaid, to hundred dollars and his costs, and that execution to enforce the same may issue as well against the body of the said defendant as against his estate. Plaintiff's attorney. County of , ss. , the plaintiff, being sworn, deposes and says, that he has read the foregoing complaint ; and knows the contents thereof, that the same is true, of his own knowledge, except as to the matters which are therein stated on his information and beUef, and asto those matters, that he believes it to be true. Sworn to before me, this ..... day of . . . . , a..j>. 18 . . Justice, etc CompUtint on Claim and Delivery of Personal Property. In the justice's court of the township. Staiaof ) county of J against f The above-named plaintiff complains of the above-named defendant, a resident of said county, and for cause of action respectfully shows to this honorable court that heretofore, to wit : on the day of June, a.d. 18 . . , at the county of the defendant has become possessed of and wrong- fully detains from the plaintiff the following goods and chattels, the property of the plaintiff, that is to say : [here describe the property], the same being of the value of hundred dollars ; and the plaintiff further alleges that the said defendant refuses to return said property although demand has been made therefor. Wherefore the plaintiff demands that the defendant may be adjudged to deliver forthwith to the plaintiff the said goods and chattels, and to pay to the plaintiff damages for the detention thereof in the sum of . . . .hundred dollars, or to pay to the plaintiff the sum of .... hundred dollars, the value thereof, in case the delivery is not made, together with the costs of this 432 LAW ENCYCLOPEBIA. action, or that such further or other relief in the premises may be given to the said plaintiff as may be just and ec[uitable , Plaintiff's attorney. [Affidavit as preceding.] Affidavit on Claim and Delivery of Personal Property. State of I county of , township.) ^" ] plaintiff in this action above-named, being duly sworn, deposes and says, that the said plaintiff is the owner of and is lawfully entitled to the possession of the following described property, to wit : [here describe the property], that the said property is in possession of and wrongfully detained by the above-named defendant, and that the alleged cause of said detention, according to this deponent's best knowledge, information and belief, is as follows, to wit : [here state the cause], that the said property or any part thereof, has not been taken for a tax, assessment or fine, pursuant to a statute, or seized under an execution, or an attachment against the prop- erty of the said plaintiff, and that the actual value of said property is hundred dollars. Subscribed and swoiu to before me, this day of A. d. 18. . ^usticeof the peace. Order to Take the Propertp. State of , ) county of township. ) The people of the state of , to the sheriff or any constable of said county, greeting : You are hereby commanded to take the within-described property from the defendant, and deliver the same to the plaintiff, , on his complying with the requirements of section of the act entitled "An act to regulate proceedings in courts of justice of this state." Witness my hand, this day of , a.d. 18 . . . Justice of the peace. Undertaking on Claim and Delivery of Personal Property. State of 1 county of township. J Whereas, the above-named plaintiff has this day filed his complaint in this court against the said defendant, claiming the dehvery of [here describe the property]. Now, therefore, we, principal, and and justices' COUBTS, rOKMS OF. 433 sureties, do hereby agree and undertake, in consideration of said deliv- ery, in the sum of hundred dollars, for the prosecution of the action for the return of the said property, if return thereof be adjudged by the court, and for the payment to the defendant of such sum as shall, for any cause, be recovered against said plaintiff, not exceeding hundred dollars- In witness whereof, we have hereunto set our hands and seals, this .... day of A.D. 18. .. [l.s.] [L.S.] [L-S.] Approved, Constable. Affldamt of Justification. State of 1 county of f and , sureties in the within undertaking, being duly sworn, say, each for himself, and not one for the other, that he is worth the sum of hundred dollars, over and above aU legal debts and liabilities, of property not exempt from execution, and is a resident and freeholder or householder of said county. Subscribed and sworn before me, this .... day of , i..D. 18 . . ...... .....•, Justice of the peace. State of county of , Vhdertalcing on Attachment. Justice's court, .... Township. against >:} Whereas, an attachment against the property of the above-named defend- ant has been demanded and is about to issue. Now, therefore, we, the un- dersigned, do undertake on the part of the above-named plaintiff, that if the defendant recover judgment, or if the attachment should be dismissed, the said plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the said attachment, not ex- ceeding the sum of hundred dollars. Witness our hands and seals, in the city and county of , on the day of , A.r. 18. .. [I-S-] [i-.s.] [i-s.] Approved, , Justice of the peace. [Affidavit of justification as in other forms.] 28 434 LAW ENCYCLOPEDIA. Affidamtfor Attachment. In the justice's court of the .... township, in and for the county of .. against County of ss. , the plaintiff in the action above-named, being duly sworn, de- poses and says, that the defendant above named is indebted to him, the said plaintiff, in a certain sum, that is to say, in the sum of hundred dollars, over and above all legal set-offs and counter-claims, upon an express con- tract for the direct payment of money, and that such contract was made and is payable in this state, and that the payment of the same has not been secured by any mortgage on real or personal property. And this deponent further says, that he, this deponent, has good reason to believe, and does believe, that the following cause for issuing an attach, ment in this action actually exists at the time of making this af6davit, to wit : that the said defendant, the debtor above-named, is a non-resident o, this state [or, state other ground of attachment as per statute], that the facts upon which such belief is founded, are as follows : [here state the facts]. Sworn and subscribed before me, this day of , a.d. 18 . . , Justice of the peace. Bond of Indemnity. Know all men by these presents, that we, , as principal, .... and , as sureties, are held and firmly bound unto f constable of the .... township of the county of and state of , in the sum of hundred dollars, for the payment whereof, well and truly to be made, we bind ourselves, our heirs, executors and administrators- jointly, severally and firmly, by these presents. Witness our hands and seals, at said county, this day of , 18 . . . The condition of the above obligation is such, that, whereas, in a certain suit at law lately pending before , esq., justice of the peace of the tovmship of said county wherein was plaintiff and was defendant, a writ of attachment, bearing date the .... day of . . . . , 18 . . , has issued, directed to said constable to execute ; and, whereas, the follow- ing property [here describe the property] has been seized and taken, by vir- tue and under the authority of said writ ; now, if the said shall save and keep said , constable as aforesaid, harmless in the matter, and well and truly pay all damages, costs and expenses, which said constable may incur by reason of the return of said property, or of the claim, estate or title, of the said , or any other person or persons to or in the same, then the above obligation to be void, otherwise to remain in fuU force and effect. [L-s.] [L-s.] Executed in presence- of [l.s.] [Witli the usual afidavit of justification.] JCSTICES' COURTS, F0EM3 OF. 435 Complaint — Forcible Entry. rFor Nevada and Idaho.! In the justice's court of the township, of the state of ,.„.., in and for the county of ] against County of , ss. the plaintiff in this suit, by , his attorney, complains of the defendent, a resident of said county, and, for cause of complaint, shows that at the time of the commencing of the wrongs here- inafter complained of, he was, and for a long time before had been, in the peaceable and quiet possession of, and is still entitled to the possession of, that certain piece or parcel of land, lying and being situate in the of , and bounded and described as follows, to wit : [here describe the property]. And the said plaintiff further alleges, that being so in the peaceable and quiet possession of said described premises, and entitled to the possession of the same, the said defendant, on, etc with great force and violence, and with a multitude of people, unlawfully entered on said described prem- ises, and with force and violence removed, put out and expelled, the said plaintiff therefrom, and took possession of the same, and the said has ever since illegally, forcibly and unlawfully, detained possession of the same from plaintiff, to his great damage, to wit : the sum of .... hundred dollars, and said plaintiff alleges that the monthly value of the rent« and profits of said premises is dollars. Plaintiff therefore prays for judg- ment against the said defendant for the restitution of the above-described, premises, and for the damages suffered by said plaintiff by the said foroible and unlawful entry upon and forcible and illegal detention of the above- described premises, for the monthly rents and profits during the said unlaw- ful detention, and that said damages may be trebled, and for such other and (further relief as by law and right they may be entitled to, and for their costs in this behalf expended. Plaintiff's attorney. County of ss. the plaintiff, being sworn, deposes and says, that he has read the foregoing complaint, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated on' his information and belief, and as to those matters that he believes it to be true. Sworn to before me, this .... day of ...., a.d. 18.. • .1. ..., Justice of the peace. 436 LAW ENCYCLOPEDU. Summons — Forcible Entry. [For Nevada and Idaho.] In the justice's court of tlie township, county of The people of the state of to the sheriff or any constable of said county, greeting : Whereas of the county of hath exhibited unto me, a justice of the peace of said county, a complaint against , of the said county, wherein he alleges that he has been in the peaceable and quiet possession of, and is entitled to the possession of, that certain piece or parcel of land, lying and being situate in the of , and bounded and described as follows, to wit : [here describe the property], and the said plaint- iff further alleges that being so in the peaceable and quiet possession of said described premises, and entitled to the possession of the same, the said de- fendanton, etc., with great force and violence, and with a multitude of people, unlawfully entered on said described premises, and with force and violence removed, put out and expelled, the said plaintiff therefrom, and took possession of the same, and the said has ever since illegally, forci- bly and unlawfully, detained possession of the same from plaintiff, to his great damage, to wit : the sum of hundred dollars. And the plaintiff alleges that the monthly value of the rents and profits of said premises is dollars. Plaintiff therefore prays for judgment against the said defend- ant for the restitution of the above-described premises, and for the damages suffered by said plaintiff by the said forcible and unlawful entry upon and forcible and illegal detention of the above-described premises, for the monthly rents and profits during the said unlawful detentioii, and that the damages may be trebled, and for such other and further relief as by law and right he may be entitled to, and for his costs in this behalf expended. You are therefore commanded to summon the said if he be found in your county, to be and appear before me at my court-room in said town- ship, in said county of , on the day of , 18 . . , at the hour of . . A.M., then and there to make answer unto the complaint aforesaid. Given under my hand this .... day of , 18 . . . Justice of the peace. I hereby certify the above to be a true and correct copy of the original sum- mons by me issued in the above-entitled cause. Justice of the peace, township. Writ of Eestitution. [For Nevada and Idaho.] State of , county of , township. The people of the state of to the sheriff and constable of the county aforesaid : Whereas , of the county of , at a court of inquiry of a justices' courts, forms of — KNOWLEDGE. 437 forcible entry and unlawful detainer, held at my office in the county afore- said, on the .... day of . . . ., a.d. 18. ., before me, a justice of the peace for the county aforesaid, by the consideration of the court, hath recovered judgment against , to have restitution of all that [here insert de- scription]. You are therefore commanded that, taking -with you the force of the county, if necessary, you cause the said to be immediately removed from the aforesaid premises, and the said to have peaceable restitution of the same. > And you are also commanded that of the goods and chattels of the said within said county, you cause to be made the sum of .... hundred dollars for the said plaintiff, together with the costs of suit indorsed thereon, and make return hereof within .... days from this date. Given under my hand, this .... day of a.d. 18 . . Justice of the peace. KIDNAPPING. Kidnapping. — ^The forcible abduction or stealing away of a man, woman or child. See Ceimes and Punishments. KNOWLEDGE. Kno'wledge. — ^Information as to a fact. Many acts are perfectly innocent wben the party performing them is not aware of certain circumstances attending them : For exam- ple, a man may pass a counterfeit note, and be guiltless if he did not know it was so ; he may receive stolen goods if he were not aware of the fact that they were stolen. In these and the like cases it is the guilty knowledge which makes the crime. Such Giiilty Knovrledge is part of the offense, and must be averred and proved as such. But it is a general rule that which by the common law or by statute is unlawful, and in pursuing his criminal purpose does that which con- stitutes another and different offense, he shall be held re- sponsible for all the legal consequences of such criminal act. When a man without justifiable cause intends to wound or maim another, and in doing it kills him, it is murder, though he had no intention to take life. See Oeimes and Punishments. 438 LAW ENOYCLOPEDU. LABOR LIENS. CALIFOKNIA. Iialiorers and Servants preferred Creditors. — ^In all as- signments of property, made bj any person to trustees or assignees, on account of the inability of the person, at the time of the assignment, to pay his debts, or in proceedings in insolvency, the wages of the miners, mechanics, sales- men, servants, clerks, or laborers employed by such person, 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 assignees before any other creditor or creditors of the assignor. Same, against Estates. — ^In case of the death of any em- ployer, the wages of each miner, mechanic, salesman, clerk, servant, and laborer, for services rendered within the sixty days next proceeding the death of the employer, not ex- ceeding one hundred dollars, rank in priority next after the funeral expenses, expenses of the last sickness, the charges and expenses of administering upon the estate, and the al- lowance to the widow and infant children, and miTst be paid before other claims against the estate of the deceased per- son. Iiien in Cases of Executions, etc. — In cases of execu- tions, attachments, and writs of a similar nature, issued against any person, except for claims for labor done, any miners, mechanics, salesmen, servants, clerks, and labor- ers, who have claims against the defendant for labor done, may give notice of their claims, and the amount thereof, sworn to by the person making the claim, to the creditor and the officer executing either of such writs, at any time before the actual sale of property levied on; and, unless such claim is disputed by the debtor or a creditor, such officer must pay to such person, out of the proceeds of the sale, the amount each is entitled to receive for services ren- dered within the sixty days next proceeding the levy of the LABOR LIENS--LABOR, HOURS OF. 439 ■writ, not exceeding one hundred dollars. If any or all of the claims so presented, and claiming preference under this paragraph, are disputed by either the debtor or a creditot, the person presenting the same must commence an action with- in ten days for the recovery thereof, and must prosecute his action with due diligence, or be forever barred fronf any claim of priority of payment thereof; and the officer shall retain possession of so much of the proceeds of the sale as may be necessary to satisfy such claim until the determina- tion of such action; and in case judgment be liad for the claim, or any part thereof, carrying costs, the costs taxable therein shall likewise be a preferred claim, with the same rank as the original claim. LABOR, HOURS OF. Hours of Labor. — Eight hours labor constitute a day's work unless it is otherwise expressly stipulated by the par- ties to a contract. Work for State or Municipalities. — Eight hours' labor shall constitute a legal day's work in all cases wher6 the same is performed under the authority of any law of this state, or under the control or by the authority of any officer of this state, acting in his official capacity, or under the di- rection, control, or by the authority, of any municipal corporation within this state, or of any officer thereof acting as such; and a stipulation to that effect shall be made a part of all contracts to which the state or any municipal cor- poration therein shall be a party. OREGON. There is no Law on the subject, except that eight hours constitute a legal day's work on the public roads. NEVADA AND IDAHO. There is no Lavr on the subject of labor. 440 LAW ENOYCLOPEDU. FOEMS. Contracts for Labor. Know all men by these presents, that I have this day bargained and agreed to work and labor for as porter in his store, from month to month, at the monthly wages of dollars, and board. Wages to be paid on the last day of each month. [Date.] Know all men by these presents, that I have this day bargained and agreed to employ as porter in my store, from month to month, at the monthly wages of dollars, and board. Wages to be paid on the last day of each month. , Clerk. LDate.] Under Mghi-hour Law. Know all men by these presents, that I have this day bargained and agreed to work and labor for , at my trade — as carpenter and joiner — for such length of time as he may find employment for me, for the daily wages of dollars for each day's work. And it is expressly stipulated that under this agreement ten hours' labor, and no less, shall constitute a day's work.* [Date.] If the agreement is to work a longer or shorter period than is stated in the above forms — so state in the agreement. If wages are to be paid in gold coin, it must be so set out in the agreement, or payment in legal tender notes will be legal. Notice of Claim — To be given to the Officer Attaching or Levying on Property. [Title of Cause.] To [sheriff or other officer]: You are hereby notified that , the defendant in the suit of vs , is indebted to me in the sum of ... . hundred dollars in gold coin. Said sum is due me as wages earned by me as salesman in his store, No , city of which store and goods have been attached [or, "levied on "] by you in said suit, and are now in your possession. Said wages were earned by me within forty days preced- ing the day of said attachment [or, " writ of execution "]. Said sum is justly due, and I claim the same by virtue of an act of the legislature of the state of ..'.., entitled an act to protect the wages of labor. Approved ,18.. [Signed] LACHES — LANDLOED AND TENANT. 441 State of I county of J being duly sworn, says, that the foregoing claim is just and true in every particular. Subscribed and sworn to before me, this day of 18 . . Notary public. [Date.] LACHES. Laches — Negligence. — ^In general, when a party has been guilty of laches, in enforcing his right by great delay and lapse of time, this circumstance will prejudice and some- times operate in bar of a remedy, which it is discretionary and not compulsory in the court to afford. Laches may be Excused from ignorance of the party's rights, from obscurity of the transaction, by the pendency of a suit, and where the party labors under a legal disabil- ity, as insanity, coverture, infancy and the like. LANDLORD AND TENANT. Landlord and Tenant, Definition of. — The term "land- lord " is applied to one who furnishes the use and occupa- tion of lands or tenements to another, who is called the ten- ant, for a compensation or return, which is termed rent. The right and condition or estate of the tenant, is called a tenancy. The respective relations of the parties are deter- mined by the contract between them, which is named a lease. When such contract is expressed in writing, the written instrument is itself called a lease, and the parties described therein are respectively denominated lessor and lessee. Term of Lease. — The period of time mentioned in the lease for which the tenant or lessee is to have the use of the property, is called the term. If the Term be for one year or less, from the time of making the contract, a verbal lease or agreement to let, will be sufficient to bind the parties ; but if the term be fixed for any longer period than one year, the lease must be 442 LAW EN0Y0LOPEDI4. expressed in writing, duly executed under seal, and should be acknowledged. Agreement to Lease. — If there be any agreement zo mate a lease at a future time, or if there be a lease made to commence at, a future day, and such lease is for such a pe- riod of tin^e that it will not expire within one year from the time of the contract, it must be in writing, and should also be acknowledged. Tenancies. — Tenancies are for life, for years, at will and at suffrance. A Transfer of lands or tenements, for the use of the ten- ant during his life, or the life of any other person, is a tenancy for life. The Ordinary Tenancy, which is held under the usual lease or agreement to let, is called a tenancy for years ; which may be for a number of years, or less than a year, a half year, a month, or even a few days. The principal dis- tinguishing feature between a tenancy for years and a ten- ancy at will, or any other tenancy, is, that it be for a time certain, prefixed by agreement, either expressed or implied. Tenancy at Suffrance. — ^Tenancy at suffrance, is a mere holding over of the land by one who came rightfully into possession. It cannot arise by contract, either express or implied ; for, if the owner of the land were to assent to it, it would become a tenancy at will by means of that very assent. Tenancy at Will. — A tenancy at will takes place where the demise or lease is for a certain term, but is to con- tinue^-during the joint will of both parties. It may arise by implication, as, where a party agrees to buy a piece of land, and enters upon it before his deed is executed. Its more important incident, however, is its capability of being ex- tended into a tenancy from year to year, which is the con- dition of most of the tenancies of the present day, where there is no written lease, or where the term under the writ- ten lease has expired and the tenant still continues to hold the premises with concurrence of the landlord. This ten- ancy derives its name from the circumstance that, in the LANDLORD AND TENANT. 443 more important leases, the rent is prescribed for tlie year ; and wliere the written lease has expired, or no written lease is made, and the tenant continues to occupy without any new lease, but with the assent of the landlord, he is consid- ered as holding for another year. But the same designa- tion and the same rules of law apply to the tenancy where the leasing is by the month, or week, or other period. Ho-w Terminated. — To terminate such tenancy, due no- tice must be ^iven. Formerly, in case of a tenancy at will, notice was not necessary. The later and more liberal rule seems to be, that tenants at will are regarded as holding from year to year, so far as to be entitled to notice to quit before they can be ejected by process of law. In California the grantee or devisee of the landlord is en- titled to the same remedy for the recovery of rent for non- performance of any of the terms of the lease or for any waste or cause of forfeiture as the landlord might have had; and the grant or devise is good and effectual without attorn- ment of the tenant, but no tenant who before notice of the grant shall have paid rent to the grantor must suffer any damage thereby. Assignment of Lease. — ^If the tenant transfer his whole right to another, such transfer is called an assignment of the lease. If he make a transfer of a part of the term or of a portion of the premises, it is an under-lease. It is QueEifionable whether a restriction in a lease against assignment can be enforced, so as to make a forfeiture in any case, as it is in restraint of alienation, and therefore against the policy of the law. In New York, it is well settled that it cannot be so enforced. If a Lease contains a covenant not to assign, and the restriction is once removed, it operates as a removal of the restriction forever. When a Lessee makes assignment of the lease to another 444 LAW ENCYCLOPEDIA. he is still liable to the lessor for the rent, unless, the lessor accept the assignee as his tenant, either expressly or im- pliedly; as, by receiving rent from him as a tenant, and giving him receipt in his name. But it seems an assignee may assign over, even to an insolvent person, and free him- self from all future liability. Use and Occupation. — A sub-tenant is liable to the orig- inal lessor for use and occupation, or for rent, only for the time he actually occupied the premises. An Action for Use and Occupation can only be main- tained where the relation of landlord and tenant exists. When Void. — ^All conveyances of land by lease or other- wise, made for more than ten years, and all conveyances of town or city lots, or other real property for a longer time than twenty years, except in fee and perpetual succession, are declared by our statute, to be void. When a Conveyance. — A lease for a longer period than one year is considered a conveyance, under the statute in relation to recording conveyances, and must be recorded in the county where the premises lie, otherwise it will not be binding against a subsequent purchaser in good faith for a valuable consideration. Forfeitures. — The questions arising as to forfeiture for non-payment of rent, the respective obligations of landlord and tenant, as to repairs and other matters of tenancies, etc., are determined very much by the character of the ex- press covenants in the lease. The present object is, so far as these brief remarks extend, to treat more particularly of tenancies where there is no written lease, or where the lease does not contain covenants. Landlord's Rights. — The chief rights of the landlord are, to have the stipulated compensation paid him for his prop- erty, and to have it properly treated while it remains out of his possession. The great and principal right of the tenant against the landlord is, to be maintained in the peaceable and quiet enjoyment of the property demised to him. Description of Premises. — A description of premises in LANDLOED AND TENANT. 445 a lease is sufficiently certain if the boundaries can be ascer- tained with a reasonable degree of certainty, and the lessee has occupied them under the lease. Obligation of Landlord. — The landlord, in the absence of express agreement, is under an implied obligation to indem- nify the tenant against eviction or disturbance by his own act, or the acts of those who claim under or paramount to him, but not against the tortious acts of third persons. Removal of Buildings. — Tenants have a right to remove buildings erected by them, at any time before the expiration of their leases : provided, there be no forfeiture or re-entry for covenant broken. A Tenant who puts up machinery for a mill in a house leased, and fastens it by bolts, screws, etc., to the house, has the right to remove it; but as between vendor and vendee, such machinery would be considered as a part of the realty. See FrsTUEES. Who must Pay Rent in Certain Cases. — When the owner of mortgaged premises leases the same for a term of years, and the rent is paid in advance by the tenant, the purchaser under the mortgage sale can require the tenant to pay the rent over again to him. After sale, and before redemp- tion, in California, the purchaser is entitled to the rents. Right of Way. — Where the owner of a building leases a portion, and has access to the part reserved without going through the part leased, he has no implied right of way to the part reserved, through any portion of the lessee's premises. Destruction of Premises. — Without an express covenant to the contrary, the tenant is bound to continue the payment of rent, though the premises be destroyed by fire, and the landlord refuse to rebuild. If a lessee covenants to pay rent and to repair, with an express exception of casualties by fire, he may be obliged to pay rent during the whole term, though the premises are burnt down by accident, and never rebuilt by the lessor. Nor can he be relieved by a court of equity, unless perhaps the landlord has received 446 LAW ENCYCLOPEDIA. the value of his premises by insuring. And if he covenants to repair generally, without any express exceptions, and the premises are burnt down, he is bound to rebuild them. Repairs, Who Liable for. — Unless there is an express covenant to repair on the part of the landlord, he is not liable for the cost of repairs. The tenant must repair at his own expense, unless his landlord voluntarily does so. LAWS OP CALIFOENLA. Repairs. — The lessor of a building intended for the oc- cupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are occasioned by the ordinary negligence of the tenant. If, within a reasonable time after notice to the lessor, of dilap- idations which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the costs of such repairs do not require an expenditure greater than one month's rent of the premises, and deduct the expenses of such repairs from the rent, or the lessee may vacate the premises, in which case he shall be discharged from further payment of rent, or performance of other conditions. Term of Lease. — A hiring of real property, other than lodgings and dwelling houses, in places where there is no usage on the subject, is presumed to be for one year from its commencement, unless otherwise expressed in the hiring. A hiring of lodgings or a dwelling house for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hiring at a monthly rate of rent is presumed to be for one month. In the absence of any agreement respect- ing the length of time or the rent, the hiring is presumed to be monthly. Renewal of Lease by Continuing in Possession. — If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the LANDLORD AND TENANT. 447 hiring on the same terms and for the same time, not exceed- ing one month when the rent is payable monthly, nor in any case one year. Notice to Quit. — A hiring of real property, for a term not sepecified by the parties, is deemed to be renewed as stated in the last paragraph, at the end of the term implied by law, unless one of the parties gives notice to the other of his in- tention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not ex- ceeding one month. Rent, When Payable. — When there is no usage or con- tract to the contrary, rents are payable at the termination of the holding, when it does not exceed one year. If the holding is by the day, week, month, quarter, or year, rent is payable at the termination of the respective periods, as it saccessively becomes due. Effect of Attornment to Stranger. — The attornment of a tenant to a stranger is void, unless it is made with the con- sent of the landlord, or in consequence of a judgment of a court of competent jurisdiction. Tedant to Notify Landlord of Proceedings. — Every ten- ant who receives notice of any proceeding to recover the real property occupied by him, or the possession thereof, must immediately inform his landlord of the same, and also deliver to the landlord the notice, if in writing, and is re- sponsible to the landlord for all damages which he may sus- tain by reason of any omission to inform him of the notice, or to deliver it to him if in writing. [In Oregon, if the tenant defend, he must give the name and residence of his landlord in his answer.] Terms of Lease may be Changed by Notice. — In all leases of lands or tenements, or of any interest therein, from month to month, the landlord may, upon giving notice in writing at least fifteen days before the expiration of the month, change the terms of the lease, to take effect at the expiration of the month. The notice, when served upon the tenant, shall of itself operate and be effectual to ere- 448 LAW ENCYCLOPEDIA. ate and establish, as a part of the lease, the terms, rent, and conditions specified in the notice, if the tenant shall continue to hold the premises after the expiration of the month. [Same in Nevada.] Letting Peirts of Rooms Forbidden.— One who hires part of a room for a d\7elling is entitled to the whole of the room, notwithstanding any agreement to the contrary; and if a landlord lets a room as a dwelling for more than one family, the person to whom he first lets any part of it is entitled to the possession of the whole room for the term agreed upon, and every tenant in the building, under the same landlord, is relieved from all obligation to pay rent to him while such double letting of any room continues. Summary Proceedings for Obtaining Possession. — A tenant of real property, for a term less than life, is guilty of an unlawful detainer; 1. Where he continues in possession in person, or by sub-tenants, of the property, or of any part thereof, after the expiration of the term for which it is let to him, with- out permission of his landlord; but, in a case of a tenancy at will, it must first be terminated by notice, as prescribed on the preceding page; 2. Where he continues in possession in person, or by sub- tenants, without the permission of his landlord, after de- fault in the payment of rent, pursuant to the lease or agree- ment 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 be a sub-tenant in ac- tual occupation of the premises, also upon such sub-tenant. Such notice may be served at any time within one year after the rent becomes due; 3. Where he continues in possession in person, or by sub-tenants, after a neglect or failure to perform other con- ditions or covenants of the lease or agreement under which the property is held, than the one for payment of rent, and three days notice, in writing, requiring the performance of such conditions or covenants, or the possession of the prop- LANDLOED AND TENANT. M9 erty, shall have been served upon liim, and if there be a sub-tenant in actual occupation of the premises, also upon such sub-tenant. Within three days after the service of the notice, the tenant, or any sub-tenant in actual occupa- tion 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 forfeiture. A tenant may take proceedings similar to those herein prescribed to obtain possession of premises let to an under-tenant, in case of his unlawful detention of the prem- ises underlet to him. Service of Notice. — The notices required by the pro- ceeding section may be served either : 1. By delivering a copy to the tenant personally; or, 2. If he be absent from his place of residence, and from his usual pLice of business, by leaving a copy with some person of suitable age and discretion at either place, 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 as- certained, or a person of suitable age or discretion there can- not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also send- ing a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a sub- tenant may be made in the same manner. Jurisdiction of the Action.— The county court of the county in which the property, or some part of it, is situated, has jurisdiction. Parties Defendant.— No person other than the tenant of the premises, and sub-tenant, if there be one, in the actual occupation of the premises, need be made parties defendant in the proceeding, nor shall any proceeding abate, nor the plaintiff be nonsuited for the nonjoinder of any persons •who might have been made parties defendant; but when it 20 450 LAW ENCYCLOPEDIA. appears that any of the parties served with process or ap- pearing in the proceeding are guilty of the offense charged, judgment must be rendered against him. In case a married woman be a tenant or a sub-tenant, her coverture shall con- stitute no defense; but in case her husband be not joined, or unless she be doing business as a sole trader, an execu- tion issued iipon a personal judgment against her, can only be enforced against property on the premises at the com- mencement of the action. Ccmplaint and Summons. — The plaintiff must file with the clerk of the county court his written complaint, verified, setting forth therein the facts on which he seeks to recover, and describe the premises with reasonable certainty, and may set forth therein any circumstances of fraud, force, or violence which may have accompained the alleged forcible entry, or forcible or unlawful detainer, and claim damages therefor. In case the unlawful detainer charged be after default in the payment of rent, the complaint must state the amount of such rent. On filing the complaint, the clerk must issue a summons thereon, returnable at a day desig- nated therein, which shall not be less than three days nor more than twelve days from its date. Summons, What to State. — ^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 defendant, 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 returned. Upon the return of any summons issued under this section, where the same has not, for any reason, been served, the plaintiff may have an alias summons issued. Appearance — ^Default. — On or before the day fixed for his appearance, the defendant may appear and answer or demur. If, at the time appointed, the defendant do not appear and LANDLOKD AND TENANT. 451 defend, the court must enter his default and render judg- ment in favor of the plaintiff, as prayed for in the complaint. 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 county court. Verdict and Judgment. — If, upon the trial, the verdict of the jury, or, if the case be tried without a jury, the find- ing 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 de- tainer after neglect or failure to perform the conditions or covenants of the lease or agreement under which the prop- erty is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement. The jury, or the court, if the proceeding be tried without a jury, shall also assess the damages occa- sioned to the plaintiff by any unlawful detainer, alleged in the complaint, and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of rent, and the judgment shall be rendered against the defendant guilty of the unlawful de- tainer, for three times the amount of the damages thus as- sessed, 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 sub-tenant, 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 detainer, and the costs of the proceeding, and thereupon the judgment shall be satisfied and the tenant be restored 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, 452 LAW ENCYCLOPEDIA. and for the possession of the premises. In all other cases the judgment may be enforced immediately. An appeal taken by the defendant does not stay proceedings upon the judgment unless the county judge so directs. Relief of Tenant after Judgment of Forfeiture. — The county court may relieve a tenant against a fortfeiture of a lease, and restore him to his former estate, in cases of hard- ship, where application for such relief is made within thir- ty days after the forfeiture is declared by the judgment of the court. The application may be made by a tenant, or sub-lenant, or a mortgagee of the term, or any person in- terested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. Notice of the application, with a copy of the petition, must be served on the plaintijBf in the judgment, who may appear and contest the application. In no case shall the 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, is made. LAWS RELATING TO LANDLORD AND TENANT IN NEVADA, OREGON. IDAHO AND ARIZONA. Unlawful Detainer. — A tenant is guilty of unlawful de- tainer for the same causes as are assigned in the California Code; and in addition thereto the laws of Oregon and Ari- zona make the holding of premises sold by virtue of any mortgage or execution, after the expiration of the time limited by law for the redemption of such premises an un- lawful detainer. Demand of Possession and Proceedings. — In Nevada an action will lie for the possession after the expiration of three days from the service of notice of demand for rent due or for possession; and justices of the peace have jurisdiction of the action, and, rent may be demanded at any time within one year after it shall have become due. In Oregon ten days notice is required. In Arizona fourteen days notice is re- quired in the case of non-payment of rent; and ten days, when a tenant at will or by sufferance shall hold over after the determination of his estate. In Idaho, three days notice. lANDLOED AND TENANT, rORMS OP, 453 Void Leases. — Whenever the lessee of any dwelling-house shall be convicted of keeping a house of ill-fame, the lease or contract for letting such house shall, at the option of the lessor, become void ; and such lessor shall thereupon have the like remedy to recover the possession, as against a ten- ant for holding over after the expiration of his term. [Oregon.] Taxes paid by Tenant. — When any tax on any real estate shall have been paid by or collected from any occupant or tenant, when there is some other person who, by agreement or otherwise, ought to pay such tax, or any part thereof, such occupant or tenant shall be entitled to recover by ac- tion the amount which such person should have paid, with interest thereon ; or he may retain the same out of any rent due or accruing from him to such person, for real estate on which such tax is so paid. [Oregon.] FOEMS. [Especially for Nevada and Idaho, prescribed by law.] iiummons. The people of the state of ... . to the sheriff or any constable of the county aforesaid : Whereas , of the county of hath exhibited unto me, a jus- tice of the peace for said county, u complaint against , of the county of , for the said , of the county of , on the day of , A.D , at the county of , [here insert the substance of the complaint with sufficient certainty]. You are therefore commanded to summon the said , if he be found in your county, to be and appear before me at my ofEce [or, staling the place], on the .... day of , a.d , then and there to make answer unto the complaint aforesaid. Given under my hand and seal, this day of a.d . . Justice of the peace. Writ of Heslitution. The people'of the state of to the sheriff or any constable of the county aforesaid : Whereas of the county of at a court of inquiry of an un- lawful or forcible entry, or unlawful detainer [as the case may be], held at my office [or, state the place], in the county aforesaid, on the day of ... . A.D. ...-., before me, a justice of the peace for the county aforesaid, by the consideration of the court, hath recovered judgment against , to have restitution of [here describe the premises, as in the complaint]. You are therefore commanded that, taking with you the force of the courty, if 454 LAW ENCYCLOPEDU. necessary, you cause the said to be immediately removed from the aforesaid premises, and the said to have peaceable restitution of the same ; and you are also commanded that, of the goods and chattels of the said , within said county, you cause to be made the sum of dollars, for the said plaintiff, together with the costs of suit indorsed hereon, and make return hereof within thirty days from this date. Given under my hand, this day of a.d Justice of the peace. GSNBBAI, FOBMS. Landlord's Agreemmt. This to certify that I have, this day of , 18. ., let and rented imto , the house and premises known as , in the of .... and the sole and uninterrupted use and occupation thereof, for .... months, to commence on the inst., at the monthly rent of hundred dollars, payable monthly in advance. Given under my hand this day of 18. .. Tenant's Agreement. This is to certify, that I have, this day of , 18.., hired and taken from , the house and premises known as in the .... of , for .... months, to commence on the .... day of 18 . . , at the monthly rent of hundred dollars, payable monthly, in ad- vance. And I do hereby promise to make punctual payment of the rent in manner aforesaid. And I do further promise and agree to quit and sur- render the premises at the expiration of the term in as good condition as reasonable use and wear thereof will permit, damages by the elements ex- cepted. And I do hereby agree not to let or underlet the whole or any part of said premises, and that, in case of default in the payment of the rent above specified in manner aforesaid, or upon the expiration of the term above ex- pressed, without requiring notice, or demand being made, it shaU and may be lawful for said landlord, into and upon said demised premises, wholly to re-enter, and the same to have again, repossess and enjoy, as of the lormer estate, any thing herein contrary notwithstanding. [Date.] Sliort Form of Lease. This indenture, made the day of , in the year one thousand eight hundred and between , of the county of .... and state of , of the first part, and , of the same place, of the second part, witnesseth, that the said party of the first part hath letten, and by these presents doth grant, demise and to farm-let, unto the said party of the second part, all that, etc . [here describe the premises intended to be let] with the appur- tenances, for the term of year from this date, at the yearly rent of .... hundred dollars, to be paid monthly in advance. And it is agreed that if any rent shall be due and unpaid, or if default shaU be made in any of the cove- XANDLOED AND TENANT, FOEMS OF. 455 nants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises, and to remove all persons therefrom. And the said party of the second part doth covenant to pay to the said party of the first part the said yearly rent as herein specified, namely, in monthly payments on the day of each month of the said term : and that at the expiration of the said term, the said party of the second part -will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damages by the elements ex- cepted ; and the said party of the first part doth covenant that the said party of the second part, on paying the said yearly rent, and performing the cove- nants aforesaid, shaU and may peaceably and quietly have, hold and enjoy, the said den^sed premises for the term aforesaid. In witness whereof, we have hereunto set our hands and seals, this day of , one thousand eight hundred and Sealed and delivered in the presence of [I'-s.] [i-.s.] Agreement for a Lease. This agreement, made this day of , in the year eighteen hundred and between , of , and of said city, mer- chant, witnesseth, that agrees, by indenture, to be executed on or before the day of ..... next, to demise and let to the said , a certain house and lot in said city, now or late in the occupation of , known as No , in street, to hold to the said , his execu- tors, administrators and assigns, from the day of , aforesaid, for and during the term of three years, at or under the clear yearly rent of .... dollars, payable quarterly, clear of all taxes and deductions except the ground rent. In which lease there shall be contained covenants on the part of the said , his executors, administrators and assigns, to pay the rent, (except in case the premises are destroyed by fire, the rent is to cease until they are rebuilt by the said ) , and to pay all taxes and assessments, (except the ground rent) ; to repair the premises, (except damages by fire) ; not to carry on any offensive business on the same, (except by written per- mission of the said ) > to dehver the same up at the end of the term, in good repair, (except damages by fire, aforesaid) ; with all other usual and reasonable covenants, and a proviso for the re-entry of the said , his heirs and assigns, in case of the non-payment of 'the rent for the space of fifteen days after either of the said rent-days, or the non-per- formance of any of the covenants. And there shall also be contained cove- nants on the part of the said his heirs and assigns, for quiet enjoyment ; to renew said lease at the expiration of said term, for a further period of years at the same rent, on the said his executors, administrators or assigns, paying the said , his executors, adminis- trators or assigns, the sum of ... hundred dollars, as a premium for such renewal ; and that in case of an accidental fire, at any time during the term, the said will forthwith proceed to put the premises in as good repair as before such fire, the rent in the meantime to cease. And the said 456 LAW ENCYCLOPEDIA. hereby agroea to accept BL'ch le^se en the terms aforesaid. And it is mutually agreed that the cost of this agreemenv, and of making and re- cording said lease, and a counterpart thereof, shall be borne by the said p^^" ties equally. As ■witness our hands and seals, the day and yecr ^''t ibore -written. [x..?-] In presence of [J^'.s.] Landlord's Agreement of Lease. This is to certify that I have, this day of 18. ., lot and rented imto Mr , my house and lot, known as No , in «... street, in the city of with the appurtenances, and the sole and unintei-rupted use and occupation thereof, for . . . year, to commence the day of ... . next, at the yearly rent of dollars, payable quarterly ; rent to cease in case the premises are destroyed by fire. Tenant's Agreement. This is to certify, that I have hired and taken from Mr his house and lot, known as No in street, in the city of with the appurtenances, for the term of . . . year, to commence the .... day of next, at the yearly rent of dollars, payable quarterly. And I do hereby promise to make punctual payment of the rent in manner aforesaid, except in ease the premises become untenantable from fire or any other cause, when the rent is to cease ; aijd do further promise to quit and surrender the premises, at the expiration of the terra, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements ex- cepted. Given under my hand and seal, the day of 18 . . In presence of .— [l.s.] Securiiy for Rent. In consideration of the letting of the premises above described, and for the sum of .... dollars, I do hereby beobme surety for the punctual pay- ment of the rent, and performance of the covenants in the above written agreement mentioned, to be paid and performed by , as therein specified and excepted ; and if any default shall be made therein, I do hereby promise and agree to pay unto Mr such sum or sums of money as ■will be sufficient to make up such deficiency, and fuUy satisfy the conditions of the said agreement, -without requiring any notice of non-payment or prooi of demand being made. Given, etc. [as in Tenant's Agbeement]. Tenant's Agreement for a House, embracing a Mortgage of his Chattels. This is to certify, that I, have hired and taken from , the premises known as No. . . , in street, in the of for LANDLOED AKD TENANT, FORMS OF. 457 the term of ... . year from the . . day of next, at the yearly rent of ... . hundred dollars, payable quarterly. And I hereby promise to make punc- tual payment of the rent in manner aforesaid, and quit and surrender the premises at the expiration of said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements ex- cepted ; and engage not to let or underlet the whole or any part of the said premises, or occupy the same for any business deemed extra hazardous on account of fire, without the written consent of the landlord, under the pen- alty of forfeiture and damages. And I do hereby mortgage and pledge all the personal property, of what kind soever, which I shall at any time have on said premises, and whether exempt by law from distress for rent or sale under execution, or not, to the faithful performance of these covenants, hereby authorizing the said , or his assigns, to take possession of and sell the same, in case of any failure on my part to perform the said cov- enants, or any or either of them. Given, etc. [as in Tenant's Aqeeement]. Landlord's Agreement. This is to certify, that I , have let and rented unto , the premises known as No. . . , in street, in the .... of , for the term of ... . year from the . . day of .... next, at the yearly rent of . . . hundred doUars, payable quarterly. The premises are not to be used or occupied for any business deemed extra hazardous on account of fire, nor shall the same, or any part thereof, be let or vmderlet, except with the con- sent of the landlord, in writing, under the penalty of forfeiture and dam- ages. Given, etc. [as in Tenant's Aqbebment]. Agreement for Part of a House. Memorandum of an agreement entered into, the .... day of . . . . , 18 . . , by and between , of , and , of, etc., whereby the said agrees to let, and the said agrees to take, the rooms or apartments," following, that is to say : an entire first floor, and one room in the attic story or garret, and a back kitchen, and cellar opposite, with the use of the yard for drying linen, or beating carpets or clothes, being part of a house and premises in which the said now resides, situ- ate and being in No in street, in the city of , to have and to hold the said rooms and apartment^, and the use of the said yard, as aforesaid, for and during the term of , to commence from the day of , instant, at and for the yearly rent of dollars, lawful money of the United States, payable monthly, by even and equal portions, the first payment to'be made on the day of next ensuing the date thereof ; and it is further agreed that, at the expiration of the said term of the said may hold, occupy and enjoy, the said rooms or apartments, and have the use of the said yard, as aforesaid, from month to month, for so long a time as the said and may and shall agree, at the rent above specified ; and that each party be at liberty to 458 LAW ENCYCLOPEDIA. quit possession on giving each other a month's notice, in ■writing. And it it is also further agreed, that when the said shall quit the prem- ises, he shaU leaye them in as good condition and repair as they shall be on his taking possession thereof, reasonable wear excepted. Witness, etc. [as in Agbeei^ieiii fob Jl JjEiBH'], Lease of a Souse for Tears. This indenture, made on the day of , one thousand eight hun- dred and . . . . , between , of the city of , merchant, of the first part, and , of said city, bookseller, of the second part, wit- nesseth, that the said party of the first part hath let, and by these presents doth grant, demise and let, unto the said party of the second part, his ex- ecutors, administrators and assigns, all that brick house, messuage or ten- ement, with all and singular its appurtenances, situate in the ward of the city of , and known as No in street, in said city, to have and to hold the said premises, with the appurtenances, unto the said , his executors, administrators and assigns, for the term of years from the day of , one thousand eight hundred and , at the yearly rent of hundred dollars, to be paid in equal quarter- yearly payments, as long as the said premises are in good tenantable con- dition. And the said party of the second part doth hereby covenant to pay to the said party of the first part, the yearly rent, as herein specified, save and except, at all times during the said term, such proportional part of the said yearly rent as shall grow due during such time as the house shaU, without the hindrance of the said party of the second part, be and re- main untenantable, by reason of accidental fire. And that the said .... , his executors, administrators and assigns, shall and will, during the said term, at his own proper costs and charges, well and sufBciently keep in repair the said demised premises, with their appurtenances, when and as often as the same shall require, damages by fire only excepted. And that, at the expiration of the said term, the said party of the second part will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damages by fire only excepted. And also, that he, the said party of the second part, his ex- ecutors, administrators and assigns, shall and will, during the said term, pay and discharge all taxes, assessments and other charges, which shall be taxed, assessed or charged, upon the said premises or any part thereof. And the said party of the first part doth covenant that the said party of the second part, upon paying the said yearly rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy, the said demised premises, for the term aforesaid, without any interruption or molestation of the said party of the first part, his heirs, or any other person whatever, claiming or to claim, by, from or under, him or them, or any of them. And also that, in case the said premises shall, at any time during the said term, be destroyed or injured by an accidental fire '.he said party of the first part, his executors, administrators or assignt, shall and will forthwith proceed to rebuild or repair the said premises, in as good condi- LANDLORD AND TENANT, FORMS OF. 459 tion as the same were before such fire ; and that, until such repairs are made and completed, the said rent shall cease. Given, etc. [as in Tenant's Agbeement"), and acknowledged. Agreement for Oranling a Farming Lease. This agreement, made this day of , in the year , between , of . . . . , of the one part, and , of , of the other part, wit- nesseth, that the said shall, on or before the .... day of ... . next, make and execute unto the said , his executors, administrators and assigns, a valid lease of all that messuage, piece or parcel, of land, situate, etc., with the appurtenances thereunto belonging, for the term of years, from the day of , at the yearly rent of .... dollars, payable hall yearly, clear of all deductions for taxes, or on any other account whatever ; the first payment of said rent to be made on the .... day of .... next ; and at and under the further yearly rent of .... dollars per every acre, and so in proportion for a less quantity, of meadow or pasture ground, which shall be plowed or converted into tillage, contrary to a covenant to be contained in said lease, as hereinafter directed ; the first payment of said last-mentioned rent to be made on the first half-yearly day after such conversion into tillage, as aforesaid. And in the said lease there shall be contained covenants on the part of the said his executors, administrators and assigns, to pay the aforesaid rents, and to pay all taxes and assessments ; for doing all manner of repairs to the buildings, hedges, ditches, rail and other fences ; (the said providing upon the premises, or within two miles thereof, rough timber, bricks, tiles and lime, for the doing thereof, to be conveyed by the said , his executors, administrators or assigns) ; for permission for the said , his heir^ or assigns, at all reasonable times, to view the state of the premises ; that the said his executors or adminis- trators, shall not carry off from the farm any hay, straw or other fodder, and that the said , his executors, administrators or assigns, shall spread on some parts of the said lands, in a husbandlike manner, all the manure and compost which shall arise from the said farm, and shall, in all respects, cultivate the same in a husbandHke manner, and according to the usuaj course of husbandry practiced in the neighborhood, and shall leave all the manure and compost of the last year, for the use of the landlord or succeeding tenants. That the said , his executors, administrators or assigns, shall not cut or flash any of the quick hedge under three years' growth, and shall out and flash those at seasonable times in the year, and at the time of doing there- of shall cleanse the ditches adjoining thereto, and guard and preserve the hedges, which shall be so cut and flashed as aforesaid, from destruction or Injury by cattle, and shall also, at all times, guard and preserve all young hedges and young trees from the like destruction and injury. That the uaid , his executors, administrators or assigns, shall, in the summer immediately preceding the determination of the said term, to bo granted as aforesaid, prepare for seed in a husbandlike manner, such part of the land as shall be in a course of fallow, and fit to be sown 'with a crop tho ensuing season, and lay down with clover seed and rye-grass twenty acres of the arable land which shall be then in tillage, sowing upon each acre thereof ten 460 LA-W ENCYCLOPEDIA. pounds of the best clover seed and one busliel of the best rye-grass seftd. And in the said lease there shall be* contained a proviso for re-entry by the said , his heirs or assigns, in case of the non-payment of rant for the space of twenty days, or non-performance of the covenants. And there shall be contained covenants on the part of the said , his heirs and assigns, for quiet enjoyment. That the said , his heirs and assigns, shall permit the said , his executors, administrators or assigns, to have the use of the great barn, the stable for four horses adjoining, and the stack-yard and farm-yard, until one month after the expiration or determina- tion of the said term, for the convenience of threshing out the last year's crops of corn and grain", and feeding his or their cattle with the straw and fodder, so that the same may be made into manure, to be left on the said premises, as aforesaid ; and also some convenient room in the farm-house for his or their servants to lodge and diet in, until the time aforesaid, with- out any recompense being made for the same respectively. In witness, etc. [as in Aqeeement fob a Lease]. Notice to QuU, hy the Landlord. To • Take notice, that you are hereby required to quit and deliver up to me the possession of the premises now held and occupied by you, being the prem- ises known as [or, " situated "] [description] at the expiration of the month [or, "week," or, "year," as may bo] of your monthly tenancy of said prem- ises, commencing on the day of 18 . . , and ending on the day of 18.. , This is intended as a month's notice to quit, for the purpose of terminating your tenancy aforesaid. [Date.] Notice of Quitting Premises by Tenant. To , landlord : Please take notice, that I shall quit possession, and deliver up the prem- ises now held and occupied by me, being the premises [description] at the end of the next month of my monthly tenancy of said premises, to wit : on the .... day of ,18 . , as I intend to remove therefrom, and to terminate the said tenancy. Tours, etc., [Date.] Vemand for Rent. To , No , street. Demand is hereby made on you f or . . . hundred dollars, the sum due me, fiom you, for the rent of my house, No street, for the month ending , 18. ., which you hold as my tenant. Said rent being for the month of , 18 . , , or that you surrender to me the possession of said premises. [The latter clause applicable to California.] [Date, etc.] FORCIBLE ENTRY AND rORCIBLE DETAINER. 461 Demand for Possession. To No , street You ore hereby notified to deliver up to me, forthwith, the possession of the premises now occupied by you, under lease from me. No , .... street, described as follows : [hero follows description], and demand for the possession of said premises is hereby mads [Date, etc.] [Signed] Ifotice of Cliange of Terms of Lease. To Sir : Take notice that I have changed, and I do hereby change, the terms of the lease of the lands and tenements and the interest therein, which you now, from month to month, hold and occupy under lease from me, being the premises now occupied by you, to wit : the premises [description]. The change of the terms of said lease to take effect at the expiration of your present month, to wit : on the day of , a.d. 18. ., and such change being as follows, to wit : You will, after the expiration of your present month, hold said premises under lease from me, from month to month, as heretofore, but the rent of said premises will be the sum of $ . . . . per month, due and payable monthly in advance, on the day of each and every calendar month, unless the day of any calendar month shall come on Sunday, in which case said rent shall be due and payable on the day of such calendar month. Dated at this .... day of a.d. 18. . FORCIBLE ENTRY AND FORCIBLE DETAINER. Every person is guilty of a forcible entry who either — 1. By breaking open doors, windows or other parts of a house, or by any kind of violence or circumstance of terror, enters upon or into any real property; or, 2. Who, after entering peaceably upon real property, turns out by force, threats or menacing conduct, the party in possession. , Every person is guilty of a forcible detainer who either — 1. By force, or by menaces and threats of violence, un- lawfully holds and keeps the possession of any real prop- erty, whether the same was acquired peaceably or other- wise; or, 2. Who, in the night time, or during .the absence of the occupant of any lands, unlawfully enters upon reai proper- ty, and who, after demand made for the surrender thereof. 462 LAW ENCYCLOPEDIA. for the period of five days refuses to surrender tlie 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. [California.] No entry shall be made into any lands, tenements or other possessions, but in cases where entry is given by law, and in such case not by force but only in a peaceable man- ner, p^evada, Oregon, Idaho and Arizona.] When any such forcible entry shall be made, or where the entry shall be made in a peaceable manner, and the possession shall be held by force against the person en- titled to the possession; this constitutes a forcible detainer. [Nevada, Oregon, Idaho, Arizona.] Jurisdiction of the Action. — In California, county courts have exclusive jurisdiction; in Nevada district courts; in Oregon justices' courts; in Arizona district and probate courts. Prooeedings. — ^In California, the proceedings are the same as in cases of unlawful detainer after rent due and un- paid; and on the trial the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry or was entitled to the pos- session 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 before the commencement of the proceedings; , and that his interest therein is not then ended or deter- mined, and such showing is a bar to the proceedings. [Same in Nevada.] Judgment. — In California and Nevada in addition to the judgment'for the restitution of the premises the amount of FORCIBLE ENTEY AND POECIBLE DETAINEE. 463 damages recovered shall be trebled and the judgment may be enforced immediately. In Arizona no writ of restitution will be issued until the lapse of five days after entry of judgment. Appeal. — ^In California and Nevada appeals are taken as in other civil cases. In California an appeal does not stay the judgment unless the county judge so directs. In Ore- gon and Arizona the undertaking on the appeal shall be con- ditioned for the payment to the plaintiff of twice the rental value of the property of which restitution shall be adjudged from the rendition of such judgment until final judgment, if such judgment shall be aflSrmed on appeal. Arrest. — If the complaint presented establishes, to the satisfaction of the judge, 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, and the proceedings are the same as in other cases of arrest in civil cases. [Applicable only to California and Nevada.] LARCENY. Larceny. — The wrongful and fraudulent taking and car- rying away by one person of the personal goods of another from any place, with a felonious intent to convert them to his, the taker's, use. See Ckimes and Punishments. LAW MERCHANT. La'W Merchant. — The general body of commercial usages in matters relative to commerce. They constitute a part of the general law of the land, and heing part of the law, their existence cannot be proved by witnesses, but the judges are bound to take notice of them; and this application is not confined to merchants, but extends to all persons concerned in any mercantile transactions. 464 * LAW ENCYCLOPEDIA. LAWFUL. La-wfu!.^That -which is not contraiy to law. The term "legal "is occasionally used with reference to matters of form alone ; thus, an oral agreement to convey land, though void by law, is not properly to be said to be unlawful, because there is no violation of in making or in performing such an agreement ; but it is said to be not legal or not in lawful form, because the law will not enforce it for want of that written evidence required in such cases. LEADING QUESTIONS. Ijeading Questions. — The questions which pats into the witness' mouth the answer to be returned, or plainly sug- gests the answer which the questioner wishes to get from him. Thes3 Questions cannot, in general, be put to a witness in his examination in chief. But in such examination ques- tions may be put to lead the mind of the witness to the subject of inquiry ; and they are allowed when it appears that the witness wishes to conceal the truth, or to favor the opposite party, or where from the nature of the case the mind of the witness cannot be directed to the subject of inquiry without a particular specification of such subject. LEASE Lease. — A species of contract for the possession of lands, tenements or godds, for life, or a term of years or less. See Landlord and Tenant. LEASE OF GOODS. Wnat may be Leased. — Goods, wares and merchandise, of all kinds may be leased the same as real estate ; and such leases aire quite common, especially of furniture, pianos and the like. Possession is given under the lease, and the lessee deals with the article as though it were his own. If LEASE OF GOODS, FOKMS OF. 465 lie sells it to an innocent purchaser tlie owner may recover it of liim, as the purchaser took no better title than the vendor had at the time of the sale. This is not the case where the lessee trades in the kind of property leased. For example : A lets a piano to B for one month, and delivers possession. B sells and delivers the piano to 0. A may recover it wherever he can trace it, and must look to B to refund the price ; or he may punish B for his fraud. But if B deals in pianos, the case is different, especially if ho sells to in the usual course of trade. In such case, C can hold possession against the true owner. If the true owner of leased property stands by and allows the lessee to offer the leased property for sale without proclaiming his owner- ship, he is estopped from asserting it against the purchaser. FORMS. Lease of Furniture or Goods. This indenture, made tbis day of 18 . . , between , of , and of ■witnesseth : That in consideration of the rents and agreements- to be paid and per- formed on the part of the said the said does hereby lease to the said , the household furniture [or, " goods "], described as follows : 2 Looldng glasses , marked A B on the back. 1 Bureau 1 Grecian table 12 Mahogany chairs 12 Silver tea spoons 1 Piano 2 Kidderminster carpets, A B on the back. A B under the leaf. A B under the seat. A B ou the handle. A B on the back. A B in the corner. To have and to hold the same to the said lessee, for the term of years), from the date hereof, the said lessee paying therefor the yearly rent of .... dollars during the said term. And the said lessee covenants with the said lessor, that he will pay the rent aforesaid, in monthly payments of dollars each, on the .... day of each month, during said term, and for such further time as the lessee may hold the same ; and that he will not assign nor underlet the said , nor any part thereof, without the written consent of said lessor ; and that he will at his own expense replace any and all of said which shall be lost, or carelessly or accidentally injured during the said term ; and at the expira- tion thereof, or the sooner termination of this lease, he will restore the said .... to the said lessor, in the like good order in which they now are, wear and diminution resulting from reasonable use and unavoidable casualties excepted. 30 4G6 LAW ENCYCLOPEDIA. And it is agreed that, until condition broken, said , shall peacea- bly retain possession of said chattels. In witness whereof, the said parties have hereunto, etc. ■ [L.S.] In presence of [li.s. ] Anjoititr F.orm, This indenture, made this day of , a.d. 18 . . , between , of the of , and state of , party of the first part, and , of the same place, party of the second part, witnesseth : That the said party of the first part, hereby lease, demise and let, unto the said party of the second part, the personal property mentioned and de- scribed in the annexed schedule. To haye, hold, use and enjoy, the same, unto the said party of the second part only (and not to heirs, executors, administrators or assigns, or other legal representatives, in any way or manner whatever), for and during the term of months from and after the day of , a.d. 18 . . , at the monthly rent of dollars, payable monthly in advance, at The said party of the second part shall have the right and privilege of pur- chasing the said property of the said party of the first part at any time during the said term, by paying therefor the sum of .... dollars ; and until such payment shall have been fully made, exclusive of the rents aforesaid, no sale shall be deemed to have been made, and all partial payments towards said purchase shall be forfeited, and become absolutely the property of the party of the first part, unless the full payment of the purchase money be made within the term aforesaid. And it is further agreed that this indenture shall cease, determine and be- come void, and all the rights and privileges therein secured to the said party of the second part shall be forfeited, and the said party of the first part, without reclamation or recoupment in favor of the said party of the second part, shall be the owner of, and be entitled to the possession of all the said property, on the happening of any one or more of the following events or contingencies, to wit : 1st. If the rent or any portion thereof shall not be paid at the time-and in the manner mentioned. 2d. If the said property or any part thereof shall be used for any other purpose, or in any other maimer than the ordinary ones for similar property, or if the same or any part thereof shall be misused or injured beyond the natural wear and tear, or if there shall be for any cause imminent danger of its loss or serious damage. 3d. If the said party of the second part shall for any cause part with, or threaten or attempt to part with, or shall for any cause be deprived of, or be in danger of being deprived of, the actual personal possession, custody and control, of said property or any part thereof. While the said property remains in the possession of the said party of the LEASE 01" GOODS, FORMS OF — LEGACY. 467 Becond part it shall be at .... risk, against fire and all other accidents and casualties whatsoever. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. [I'-S.] Li presence of [l.s.] LEGACY. Legacy. — A gift by last will. An Absolute Legacy is one given without condition, to Test immediately. An Additional Legacy is one given to a legatee to whom a legacy has already been given. An Alterative Legacy is one by which the testator gives one of two or more things, without designating which. A Conditional Legacy is a bequest whose existence de- pends upon the happening or not happening of some un- certain event, by which it is to take place or be defeated. A Demonstrative Legacy is a bequest of a certain sum of money, with reference to a particular fund for payment. A General Legacy is one so given as not to amfount to a bequest of a particular thing or money of the testator, distinguished from aU others of the same kind. An Indefinite Legacy is a bequest of which are not enumerated or ascertained, as to numbers or quantities ; as, a bequest by a testator of aU his goods or all his stocks. A Lapsed Legacy is one which, in consequence of the death of the legatee before the testator or before the pe- riod of vesting, has never vested. A Legacy for Life is one in which . the legatee is to enjoy the use of the legacy for life. A Model Legacy is a bequest accompanied with direc- tions as to the mode in which it should be applied for the legatee's benefit. 468 XAW ENCYCLOPEDIA. A Pecuniary Legacy is one of money. A Residuary Legacy is a bequest of all the testator's personal estate not otherwise effectually disposed of by his will. A Specific Legacy is a bequest of a specified part of the testator's personal estate, distinguished from all others of the same kind. See Wills. LEGAL TENDER. Legal Tender. — That currency which has been made suitable by law for the purposes of a tender in the payment of debts. The following descriptions of currency are legal tender in the United States : All the Gold Coins of the United States, according to their nominal value, for all sums whatever. The Silver Dollar of the United States is a legal tender for all sums whatever. * The Silver Coins, below the denomination of the dollar, coined prior to 1854, are a legal tender for the payment of any sum whatever. The Silver Coins bqlow the Dollar, of the date of 1854, and of subsequent years, are a legal tender in sums not ex- ceeding five dollars. The Three-csnt Silver Coins, of the dates of 1851, 1852 and 1853, are a tender in sums not exceeding thirty cents. Those of subsequent dates are a legal tender in sums not exceeding five dollars. The Cent is not a legal tender. Treasury Notes are a legal tender for all debts, public and private, except duties on imports and interest on the public debt. The Postage Currency is receivable in payment of all dues to the United States less than five dollars. They are not a legal tender in payment of private debts. LETTER OP CREDIT — LETTER OF LICENSE. 469 LETTER OF CREDIT. Letter of Credit. — A letter of credit is a writing given by one person to another, either with or without considera- tion [sometimes introducing the person receiving it], invit- ing the person to whom it is directed to give the person receiving it credit for money advances or goods, on the responsi'bility of the writer. Or it may direct the person to whom it is directed to advance money or goods to the person receiving it on account of the writer. See Guar- anty. FOEM. letter of Credit. [Date.] Messrs & Co. — Gentlemen : Please deliver to , of this place, goods, silks and mercliandise, to any amount not exceeding dollars, and I mil hold myself account- able to you for the payment of the same, in case should fail to make payment therefor. You will please to notify me of the amount for which you may give him credit ; and if default should be made in the payment, let me know it imme- diately. I am, gentlemen, your most ob't servant, , Messrs & Co., I No f, [Or, it may read :] Please deliver to & Co., any amount of money not exceeding the sum of , and charge the same to my account ; [or, "Please deliver to & Co., goods to any amount not exceeding dollars, and charge the same to my account "]. LETTER OP LICENSE. Letter of License. — An agreement by creditors not to nue a failing debtor within a time specified, is sometimes crJlcd a "Letter of License." It gives the debtor time to meet his engagements, prevents the statute of limitation from run- ning against them, and at the same time does not release the debt. Its only effect is to extend the ti'r^o of payment. It only binds such as sign the agreement. Those who are not parties to it may sue to collect their dettd in the usual mode. 470 liAW ENOYCLOPEDU. rOKM. t Agreermni not to Sue a Debtor. Kbow. all men by these presents, that whereas , of the of , in the county of , and state of , is justly indebted to us, .... and , in divers sums of money, which the said is unable to pay : Now, therefore, we do hereby grant unto the said full liberty and license to attend to, follow and negotiate, any business or affairs whatsoever, without any suit, trouble or hindrance, from us or any of ns, for the space of from the date hereof. And we and each of us, for ourselves, our and each of our heirs, executors, administrators and assigns, for and in consideration of the agreement and covenant of the said hereinafter contained, do covenant and agree with the said , that we will not, nor will either or any of us, at any time during the said space of sue, prosecute, arrest, molest ro trouble, the said , in respect or on account of any debts now by him due to us, or any or either of us. And the said , in consideration of the foregoing covenant and agreement, for himself, his heirs, executors or administrators, covenants and agrees with the creditors aforesaid, that he will faithfully apply all moneys, property and effects, that he may earn or procure during the said term of , to the payment of his debts owing to the creditors afore- said, in proportion to the amount due and owing to each. In witness whereof, we have hereunto set our hands and seals,, this day of .... , one thousand eight hundred and .... ■ .. [LS.] [I..S.] [i-s.] Witness : « [i..s.] LEVY. Levy. — A seizure ; the raising of the money for which an execution has been issued. In order to make a valid levy on personal property the sheriff must have it within his power and control, or at least within his view ; and, if having it so, he makes a levy upon it, it will be good if followed up afterwards within a reasonable time by his taking possession in such a manner as to apprise everybody of the fact of its having been taken into execution. The usual mode of making levy upon real estate is to describe the land which has been seized under the executipnby metes and bounds, as in a deed of convey- ance. See Execution. LIBEL AND SLANDEH. 471 LIBEL AND SLANDER. label and Slander. — There is no branch of law more diffi- cult to reduce to exact principles, or to compress within a small compass, than the law of libel and slander. The follow^ing are Libel : To publish a ludicrous story of an individual in a newspaper, if it tend to render him the subject of ridicule. Charge of Un-worthiness. — To write of a person solicit- ing relief from a charitable society, that he is unworthy, or that he squanders the money received. Against Dcotors or Attorneys. — To charge a doctor or attorney of sharp or disreputable practice ; or, in short, to publish of any person any thing calculated to bring such person into contempt or ridicule, or to hold him up to pub- lic scorn. Against the Memory of the Dead. — Libels against the memory of the dead, which have a tendency to create a breach of the peace, by inciting the friends and relatives of the deceased to avenge the insult to the family, render their authors liable to indictment. Reading of Libels and Proof. — The malicious reading of a libel to one or more persons is a libel, and each reading is a separate offense. The reading must be malicious ; evi- dence of the malice may be either express or implied. Ex- press proof is not necessary, for where a man publishes [reading to others is a publication] a writing which on the face of it is libelous, the law presumes he does so from that malicious intention which constitutes the offense, and it is unnecessary to prove any circumstances from which malice may be inferred. [These rules do not apply to answers in courts of justice, in reply to questions asked.] Under Statutes.— By the laws of California, Nevada, Idaho and Oregon, an indictment lies for a libel as well as a civil attion. The following are from the provisions of the California code and Nevada and Idaho civil practice acts. 472 LAW ENCYCLOPEDIA. In an action for libel or slander, it shall not be neces- sary 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 tJie cause of action arose ; but it shall be sufficient to state generally, that the same was published or spoken concerning ihe plaintiff, and if guch allegation be controverted, the plaintiff shall establish on the trial that it was so published or spoken. In the Actions mentioned above, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages ; and whether he prove the justi- fication or not, he may give in evidence the mitigating cir- cumstances. LIEN". Lien. — A hold or claim which one person has upon the property of another as a security for some debt or charge. Different Classes entitled to Liien3. — Innkeepers may de- tain a horse for his keeping if he belong to a guest. They may detain the goods of a traveler, but not of a boarder. Wareliousemen and tailors have liens on goods left with them to keep or make up. Gommon carriers and bailees for hire have liens for charges. An agister of cattle has no lien ; nor a livery-stable keeper. Clerks of courts have a lien on papers for their fees. Bankers have a lien on all securities left with them by their employers. Factors and brokers have a lien on goods and papers. The vendor of goods for the price, so long as he retains possession. Pawnees, from the very na- ture of their contract, but only when the pawner had au- thority to make such pledge. See Common Oaekiebs — ^Agis- ter and Brokers. Requisites as to Creation. — In all these cases, to give rise to the lien, there must have been a delivery of the property; it must have come into the possession of the party claiming the lien, or his agent. Waiver of Lien. — Possession is a necessary element of LIEN, mechanics'. 473 liens on personal property; and if the creditor once know- ingly parts with the possession after the lien attaches, the lien is gone. A lien cannot be transferred, but property subject to a lien may be delivered to a thii'd person, as to the creditor's agent or employ^, so as to preserve the lien. LIEN", MECHANICS'. CALIFORNIA. Who may have Lien. — Every person performing labor tipon, or furnishing materials to be used in the construction, alteration, or repair of any mining claim, building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, wagon road, aqueduct to create hydraulic power, or any other structure, or who performs labor in any mining claim, has a lien upon the same for the work or labor done or materi- als furnished by each, respectively, whether done or fur- nished at the instance of the owner of the building or other improvement, or his agent;. and every contractor, sub-con- tractor, architect, builder, or other person having charge of any mining, or of the construction, alteration, or repair, either in whole or in part, of any building or other improv- ment, as aforesaid, shall be held to be the agent of the owner. Lien upon City Lots. — Any person who, at the request of the owner of any lot in any incorporated city or town, grades, fills in or otherwise improves the same, or the street in front of or adjoining the same, has a lien upon such lot for his work done and materials furnished. What Interest Subject to the Lien. — The land upon which any building, improvement, or structure is con- structed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on ren- dering judgment, is also subject to the lien, if, at the com- mencement of the work, or of the furnishing of the materi- als for the same, the land belonged to the person who 474 LAW ENCYCLOPEDIA. caused said building, improvement or structure to be con- structed, altered, or repaired, but if such person owned less than a fee simple estate in such land, then only his in- terest therein is subject to such lien. Iiiens Preferred. — The liens provided for by this act are preferred to any lien, mortgage or other encumbrance which may have attached subsequent to the time when the build- ing, improvement or structure was commenced, work done, or materials were commenced to be fiirnished; also, to any lien, mortgage or other encumberance of which the lien hold- er 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. Claim to be Recorded. — Every original contractor, with- in sixty days after the completion of his contract, and every person, save the original contractor, claiming the benefit of this chapter, must, within thirty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the per- formance of any labor in a mining claim, file for record with the county recorder of the county in which such prop- erty, or some part thereof, is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the material, with a statement of the terms, time given, and conditions of his contract, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of himself or of some other person. Claim against t'wo or more Buildings. — In every case in which one claim is filed against two or more buildings, min- ing claims, or other improvements owned by the same per- son, the person filing such claim must, at the same time, designate the amount due to him on each of such build- ings, mining claims, or other improvements, otherwise the LIEN, mechanics'. 475 lien of such claim is postponed to other liens. The lien of such claimant does- not extend b&yond the amount desig- nated, as against other creditors having liens by judgment, mortgage or otherwise, upon either of such buildings or other improvements, or upon the land upon which the same are situated. Record of Lien. — ^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 in- struments. Limitation of time in vT-hich to Sue. — No lien provided 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 lien continues in force for a longer time than two years from the time the work is completed, Iby any agreement to give credit. Publication of Sununons. — If service of summons be made by publication, the time of publication where the de- fendant resides out of or is absent from the state, or for any other cause cannot be served personally, need be but once a week for four successive weeks. Improvement Constructed at Instance of Ov/ner, Un- less. — Every building or other improvement mentioned herein, constructed upon any lands with the knowledge of the owner, or the person having or claiming any interest therein, shall be held to have been constructed at the in- stance of such owner or person having or claiming any in- terest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with tbe provisions of this act, unless such owner or person having or claiming an interest therein shall, within three days after he shall 476 LAW ENCYCLOPEDIA. have obtained knowledge of the construction, alteration, or repair, or the intended construction, alteration, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect, in some con- spicuous place upon said land, or upon the building or other improvement situated thereon. Limit of Recovery by Contractor.— The contractor shall be entitled to recovery upon a lien filed by him, only such amount as may be due to him according to the terms of his contract, after deducting 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 action, the owner may withhold from the contractor tha amount of money for which lien is filed; and in case of judgment against the owner or his property, upon the lien, the said owner shall be entitled to deduct from any amount due or to become due by him 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. Rank of Liens to be Determined. — In every case in which different liens are asserted against any property, the court in its judgment must declare the rank of each lien, or class of liens, which shall be in the following order, viz: First, all persons other than the original contractors and sub- contractors. Second, the sub-contractors. Third, the orig- inal contractors. And the proceeds of the sale of the property must be applied to each lieu, or class of liens, iu the oi-der of its rank, and whenever, on the sale of the prop- erty subject to the lien, there is a deficiency of jjroceeds, judgment may be docketed for the deficiency in like man- LIENS, MZCHANICS'. 477 ner, and with like effect as in actions for the foreclosure of mortgages. Actions may be Consolidated. — A.ny number of persons claiming liens may join in the same action, and when sepa- rate actions are commenced, the court may consolidate them. The court may also allow, as part of the costs, the moneys paid for filing and recording the lien, and reason- able attorney's fee in the district and supreme courts. Materials Exempt from Execution. — Whenever materi- als 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 attachment, execu- tion, or other legal process, to enforce any debt due by the purchaser of such materials, except a debt due for the pur- chase-money thereof, so long as in good faith the same are about to be applied to the construction, alteration, or re- pair of such building, mining claim, or other improvement. Lien not to Impair Personal Action. — Nothing herein contained shall be constructed to impair or affect the right of any person to whom any debt may be due for work done, or materials furnished to mantain a personal action to recov- er such debt against the person liable therefor. NEV.4.DA. Who Entitled to Lien. — Artisans, mechanics, laborers, miners and others, performing work or labor, or furnishing materials, to the amount of twenty-five dollars or more, for the construction or repairing of any building or other superstructure, or railroad, tramway, toll-road, canal, water ditch, flume, aqueduct, or reservoir, or in or upon any mine, lode, or deposit, yielding metals or minerals of any kind, or upon any shaft, tunnel, adit, or other excavation designed or used for the purpose of draining or working any such mine, lode or deposit; or upon any building lot or lots in any city, town or village, or for the purpose of improving such lot or lots by filling in or grading the same; or upon any tract or tracts of land by cutting and cording the wood 478 LAW ENCYCLOPEDIA. or timber growing or being thereon pursuant to a contract therefor with the person or persons owning such tract or tracts of land, or in possession of the same under a bona fide claim of title thereto; and all foundry-men and boiler- makers, and all persons performing labor and furnishing machinery, or boilers, or castings, or other niaterials for the construction or repairing, or carrying on of any mill, manufactory or hoisting works. Lien to be Recorded, -vyithin what Time. — Liens for all claims, except for cutting and cording wood and timber, must be filed with the county recorder of the county in which the property to be chargfed with such lien is situate, within sixty days after the completion of the work, or after the last work or labor was performed thereon, if claimed by an original contractor; but if claimed by a sub-contract- or, journeyman or any other person than a contractor, with- in thirty days. Copy of Lien to be Served. — Within ten days after filing for record a copy of the lien must be served on the owner or owners or his or their agent, of the building, mine, lot, road, etc., by personal delivery, or by posting the same in a conspicuous place upon the building or lot; but in the case of a lien upon a railroad, tramway, toll-road, canal, water ditch, flume, aqueduct, reservoir, mine, etc., mill, manufactory and hoisting works, if personal service cannot be had, service may be made by depositing a copy of the statement constituting the lien, postage paid in the post- office, directed to such owner or owners or such agent at his or their last known place of residence. The lien shall extend to and include all franchises, charter privileges, and rights of way that may in any wise pertain to any such rail- roadj etc. Lien of Woodchoppers. — Lien for cutting and cording wood and timber is maintained and foreclosed by retaining possession of the property and commencing an action for the recovery of the amount due within thirty days after such wood or timber* shall have been taken in possession by the LIENS, mechanics'. 479 claimant; and the fact that such lien is claimed, shall be set out in the complaint, together with a description of, and the number of cords of wood or timber retained in posses- sion by the claimant — judgment shall be satisfied out of the property so retained, and if there should be a deficiency, then out of other property of the defendant. Lien of Sub-contraetors, Etc.— Sub-contractors, journey- men, laborers, etc., have a lien to the extent of the amount due from the owner to the original contractor at the time of the service of the notice herein provided, or the amount there- after to become due, regardless of any claims the contractor may have against the owner of the building, or other prop- erty, and if any money be due, or is to become due, under the contract, from the owner to the contractor, upon being served with a copy of the statement, filed for record by said sub-contractor, journeyman, laborer, etc., the owner may withhold out of any moneys due or to become due under the contract, a suflacient amount to satisfy the lien claimed by such sub-contractor, etc., until the validity thereof shall have been established by proper legal pro- ceedings, if the same be contested; and if so established, the amount thereof shall be a valid set-off to that extent in favor of such owner and against the contractor. And after such copy of the statement shall have been properly served upon such owner, then, in case of failure to comply with the above provisions, such sub-contractor, etc., may sue and recover ^om such owner the amount of any dam- ages he may have sustained by reason of such failure. And no payment of money made fraudulently by such owner to such contractor, for the purpose of avoiding any anticipated lien of a sub-contractor, journeyman, etc., shall be valid as against such sub-contractor, etc., but shall as against them be held and deemed as not having been made. No sub- contractor, etc., whd fraudulently files or claims a lien for more than is due him or them shall enforce the same or any part thereof as against other sub-contractors. Attachment Lien Postponed to Lien of Sub-contractor. — ^No attachmant served upon any money due a contractor 4:80 LAW ENCYCLOPEDIA. from the owner or owners of any building or superstruct- ure or other property upon which a lien has been claimed by a sub-contractor, journeyman or laborer, shall be valid until such lien shall have been satisfied or adversely deter- mined or barred by limitation. Land Sutject to Lien. — The land occupied by any build- ing or superstructure, railroad, tramway, toll-road, panal, water ditch, flume, aqueduct or reservoir, mine, lode or de- posit, building lot or lots, and so much land contiguous thereto as may be necessary for the convenient use and oc- cupation of the same shall be subject to the liens hereinbe- fore provided for, if at the time the work or labor was commenced or the first materials were furnished, such land was awned by, or was in the possession of, under a iona fide claim of title, the person or persons for whom, or at whose instance such work or labor was performed or mate- rials were furnished; but if such person or persons hold less than a fee simple estate in such land, then only his or their interest therein shall be subject to such lieu. Preference of Lden. — All liens herein provided for, shall be preferred to every other lien or incumbrance which shall attach upon any property made subject thereto, subsequent to the time when the work or labor was commenced, or the first of the materials were furnished, and also to all mort- gages and other incumbrances unrecorded at the time such work or labor was commenced, or the first of the materials were furnished; but nothing herein contaiped shall be con- strued as impairing any valid incumbrance upon any such land duly made and recorded before such work or labor was commenced, or the first of such materials were fur- nished. Limitation of Action. — Action must be commenced with- in six months from the time of filing the lien for record. No agreement to give credit can prolong the time. Hovr Enforced. — Liens may be enforced by an action in any court of competent jurisdiction, on setting out in the complaint the particulars of the demand, with a description LIENS, mechanics'. 481 of the premises sought to be charged with the lien. A no- tice must also be published at least once a week for three consecutive weeks in some newspaper published in the county, if there be one, and if not, then in such mode aa the court may direct, notifying all persons holding or claim- ing liens, on said premises to be and appear in said court on a day specified therein, to exhibit then and there the proof of their said liens. On the day appointed the court shall enter judgment according to the- rights of the parties, and summarily hear and determine said claims, and if nec- essary refer the same to ascertain the amount justly due thereon. All liens not so exhibited and proved shall be deemed to be waived. On ascertaining the whole amount of said liens the court shall cause said premises to be sold in satisfaction thereof and costs of suit. If the proceeds of such sale shall not be sufficient to satisfy the whole amount of such liens, then such proceed shall be appor- tioned according to the rights of the several parties. If there be an overplus, the remainder shall be paid over to the owner of the property. Each party whose claim is not satisfied shall have personal judgment for the residue against the party legally liable, if such party has been per- sonally summoned or has appeared in the action. Right of Action not Affected. — The action by a sub-con- tractor, journeyman, etc., to foreclose the lien shall not bar an action against the contractor on his personal liability. Satisfaction to be Filed of Record.— The claimant of a lien, on the payment of the amount thereof with the costs of filing and recording, and acknowledgment of satisfac- tion shall within ten days after being thereunto requested enter an acknowledgment of satisfaction of the same on the record, and on failure so to do shall forfeit and pay the sum of twenty dollars per day until the same shall be en- tered, to be recorded in the same manner as other debts. Mines Worked through a common Shaft or Tunnel. "When two or more lodes or deposits owned or claimed by the same person or persons, shall be worked through a com- 482 LAW ENCTOLOPEDIA. mon shaft, tunnel, incline or adit, then all the lodes or de- posits so worked, shall, for the purposes of this act, be deemed one mine. Jurisdiction of the Action. — Justices of the peace have jurisdiction when the amount claimed does not exceed three hundred dollars. Assignment of Lien. — Two or more creditors of the same class may assign their claims, duly verified, to any other creditor or person of the same class, and the assignee of such claims may claim and hold his lien. Lien upon Property Generally. — ^In order to constitute a lien it is not absolutely necessary that the work was done or the materials furnished in the making or erection of a build- ing; but a lien may be claimed upon the building for the price of machinery put into the building which was altered in its form and structure and adapted to other than the orig- inal use, as in the case of the alteration of a building and the introduction of machinery for a sugar refinery. A person is not entitled to a lien on a reservoir for the value of his services rendered in cooking for the men em- ployed in the construction of such reservoir, although the cooking was done upon the ground as the work was pro- gressing. It should be made to appear that materials were furnished expressly for the building and not merely that they were used in the building. IDAHO. Who Entitled to Lien.~[Under act approved December 17th, A. D. 1864.] — All artisans, builders, mechanics, lumber merchants and all other persons, performing labor or fur- nishing material to the amount of twenty-five dollars, for the construction or repairing of any building or other super- structure, shall have a lien on such building or superstruc- ture for the work and labor done or material furnished by each, respectively. , Miners' Liens.— [Under act approved Jan. 10th, 1869.] — When any person or persons shall do or perform any work or labor in or upon any quartz claim or ledge in working the same or in the improvement or development thereof, LIEN, mechanics', TOKMS OF. 483 or in the preparation of tlie ores thereof for reduction, or in hauling or reducing the ores thereof, or shall furnish any materials therefor, or shall perforna labor as a mechanic therefor, such person or persons shall have a lien upon all the interests in such quartz claim or ledge, of the person or persons employing him or them, or purchasing such mate- rials, together with the improvements thereon and appur- tenances, for the value of such work or labor, or materials furnished : provided, the person or persons claiming such liens shall, within forty days after the completion of such work or labor, or materials when furnished, file their lien in other respects as provided by law. Repairs and Making of Personal Property. — The law of Idaho is the same as the fifteenth section of the California act, except in Idaho the notice must be published for three weelcs in some newspaper published in the county where the work is done. See Sec. 15, Mechanics' Lien Law, Cali- fornia. In other Respects. — For the law on this subject, in other respects, see Mechanics' Liens, Nevada. FORMS. JjuUder's Contract. Articles of agreement, made this day ot in the year one thousand eight hundred and , between , of the of , party of the first part, and , of the same place, of the second part, witness- eth as follows, viz : 1st. The said party of the second part, for and in consideration of the pay- ments hereinafter agreed and covenanted to be made by the said party of the first part to the said party of the second part, doth hereby covenant and agree with the said party of the first part, that he shall and will erect and finish the building following, namely : That new building to be erected on , in the of described in the plan, drawing and specifications, hereunto annexed, and that said building shall be so erected and finished according to the said plan, drawings and specifications, hereto annexed, made by , architect, which plan, drawings and specifications, hereto an- nexed, are signed by the parties heroto, and are referred to by and form a part of this agreerbent. And the said party of the second part hereby cove- nants with the party of the first part, that he will perform and execute the said work in a good, workmanlike and substantial, manner, and will find and provide such proper and sufficient materials of all kinds whatsoever as shall be proper and sufficient, and as required by said specifications for completing 484 LAW ENCYCLOPEDU. and finishing the foundation, walls, floors, ceilings, roofings and other works, of the said building mentioned in the said annexed specifications, and that said work and said materials shall, in every respect, be strictly acoording to said plans, drawings and specifications, and of the kind of workmanship and kind of materials therein mentioned, and none other — it being understood that said specifications and drawings are intended to co-operate, so that any works exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if they were mentioned in the specifications and set forth in the drawings, according to the true intent and meaning of said drawings and specifications. And the said party of the second part hereby covenants and agrees vrith the said party of the first part, that he will well and sufficiently erect and finish said building according to the covenants and agreements herein contained, on or before the day of , in the year one thousand eight hundred and 2d. The said party of the second part is, at his own proper cost and charges, to provide all manner of materials and labor, scaffolding, imple- ments, molds, models and cartage, of every description, for the due execu- tion of this contract, and to bear all risk or loss by accidents, delays, en- croachments or otherwise, not caused by or through any act of the party of the first part. 3d. Should the party of the first part, at any time during the progress of said work, require any alterations, extra work, deviations or omissions, from the work so contracted to be done, he shall be at liberty to do so, and the same shall in no way affect or make void this contract ; but the value thereof will be added to or deducted from the amount to be paid by him by the terms of this contract, as the case may be, according to a fair and reasonable val- uation. 4th. Should the party of the second part, at any time during the progress of the said work, refuse or neglect to supply u, sufficiency of material or workmen so as to render it impracticable to finish said work within the time said party of the second part has by this contract covenanted to complete the same, the said party of the first part shall have the power to provide the necessary materials or workmen or both, after one day's notice in writing being given to the party of the first part to provide the same ; and the ex- pense of such supply, by the party of the first part, shall be deducted from the amount to be paid for said work, by said party of the first part. 5th, Should any dispute arise concerning the true construction or mean- ing of the plans, drawings or specifications, the same is hereby submitted to and shall be decided by said architect, and his decision thereon shall be final : but should any' dispute arise respecting the true value of any extra work or materials, or work or materials omitted, the same, shall be valued oy two competent persons, one to be nominated by the party of the first pwt, and the other by the party of the second part ; and in case of disagreeraent be- tween said persons so chosen on said subject matter so su^jmitted, ti.ey shall have power to appoint an umpire, whose decision shall be binding on both parties hereto, and no recourse shall be had to law, but such award shall be final and conclusive on the matters so submitted. 6th. The said party of the first part shall not in .any manner be answer- LIEN, mechanics', FOEMS OF. 485 able or accountable for any loss or damage that shall or may happen to the said work or any part or parts thereof, respectively, or any of the materials or other things used and employed in finishing and completing the same, during the time of said erecting and completing, except that the party of the first part shall be liable for and take all risk by fire. 7th. No extra work is to be paid for, unless the price has been fixed and agreed upon in writing by the parties hereto, and the work specified and the agreement made for the same at the time the extra work is done, and no reductions or omissions are to be allowed without the price is fixed by agree- ment in writing at the time said omissions or reductions are made. 8th. There shall be a forfeiture of dollars per day for each and every day over the stated time for the completion herein mentioned, to be de- ducted out of the last payment. But, if the weather is so wet or inclement as to hinder the progress of the work, a reasonable additional time is to be allowed by the party of the first part for the completion of the same. In all cases of extra materials and work done on said job during this contract, then the time expressed above shall not govern, but a reasonable additional time necess&ry for completing said extras shall be allowed. The nature, extent and price, of all extras, as may be agreed upon, are to be entered in a writ- ten memorandum, to be attached to the contract and signed by the parties hereto, and the same course is to be followed in reference to all omissions or reductions. ' 9th. In consideration of the faithful performance, by the said party of the second part, of the covenants and agreements herein contained, on his part to be fulfilled and performed, in the erection and finishing of said building, said party of the first part hereby covenants and agrees with the said party of the second part, to pay him therefor the sum of .... thousand dollars, in gold coin of the government of the United States, and in no other cur- rency, to be paid in the manner following, viz : [here specify the various stages of the work at which the different payments shall be made, if the payments are to be made as the work progresses, or, if otherwise, then specify the times of payment]. 10th. It is hereby agreed upon, between the parties hereto, that, before any payment is made under this contract, the said party of the second part shall satisfy the said architect that aU the materials furnished by said party of the second part, for the construction of said building, have been paid for, and that all work of mechanics, laborers and others, hired or employed by the said party of the second part, in the construction of said building, have been fully paid, so that no lien can be filed against said buUding for such materials, mechanical work or labor, and that no payment shall be made without a certificate be first obtained and signed by said architect, that the said payment is due according to the terms of the contract. The payment and discharge, by the said party of the second part, of all liens for such ma- terial, work and labor, or all such claims as may be made liens on said building, are hereby declared a condition precedent to the making of any payments under this contract, by the party of the first part to the party of the second part. 486 LAW ENCYCLOPEDIA. lu witness whereof, said patties have hereto set their hands and seals, the day and year first above Written ■ [L-S.] [L.S.] Sealed and delivered in the presence of Another Form. This agreement, made this day of ono thotisand eight hundred and by and between , of the of , of the first part, and , of the same place, of the second part, witnesseth, that the said party of the second part covenants and agrees to and with the said party of the first part, to make, erect and finish, in a good, substantial and workmanhke, manner, on the land of the said party of the first part, situate in the county of [describe the location of the lot in general terms], ac- cording to the plan and specifications hereto annexed, and of the quality of materials and workmanship set forth in said specifications. [If the mate- rials are to be furnished by the party of the fijst part, say : "of such ma- terials as the said party of the first part shall find or provide for the same."] And the said party of the second part covenants and agrees with the said party of the first part, that he will have the said building finished and completed, according to said plans and specifications, by the day of .... next. And the said party of the first part covenants and agrees to pav unto the said party of the second part, for the same, the sum of dollars, in gold coin of the government of the United States, as follows, viz: The sum of dollars in gold coin in days from this date, and the remain- ing sum of ..... in like gold coin, in .... days from the day of the said building being completely finished according to said plans and specifica- tions. [If necessary, add : "and also that said party of the first part wiU furnish and procure the necessary materials for the said work, in such rea- sonable quantities and at such reasonable time or times, as the «aid party of the second part shall or may require. "] It shaU be a condition precedent to any of the aforesaid payments, that at the time of such payment there shall be no liens on said buildit^g arising out of any claim for work and labor done for, or materials furnished by. any person whatever, to said party of the second part, in the construction of said building, or any claims existing arising from such work, labor or mate- rials, and out of which a lien may be obtained by any person or persons on said building and premises for such work, labor or materials. In witness whereof, said parties have hereto set their hands and seals, the day and year first above written. [i-s.] [L.S.] Sealed and delivered in the presence of JBmd for ike Performance of Building Cordract. Know all men by these presents, that we, , , and . . ., all of the of are held and firmly bound unto of LIEN, mechanics', FORMS OF. 487 tbe same place, in tlie sum of thousand dollars [or, such other sum as may cover all possible damages], lawful money of the United States, to be paid to the said his executors, administrators or assigns ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally firmly by these presents. Sealed with our seals, and dated this day of , one thousand eight hundred and The condition of the above obhgation is such, that whereas the said .... did at the date hereof enter into a contract in writing with the said . . . . , by which the said agreed to erect a certain dwelling-house for the said , and fully fulfill and perform aU the covenants, agreements and stipulations, therein contained on the part of said , to be so fulfilled and performed, a copy of which agreement is hereto annexed. Now, therefore, if the above bounden his executors, adminis- trators or assigns, shall in all things stand to, abide by and well and truly keep and perform, the covenants, conditions and agreements, in the within written instrument [if the bond is indorsed on the agreement itself, or, " in the instrument of which the annexed is a copy "], contained on his part, to be kept and performed at the time and in the manner and form therein spec- ified, then the above obligation shall be void ; else to remain in full force and virtue, [I.-3-] [I-.S-] Sealed and delivered in the presence of [l.s.] Statement of Builder made to Architect, Beferee or Party, as to Liens. I , the party of the second part, in the within agreement [or, " in the agreement annexed," or, "in the agreement of which the within is a copy"] named, having, as I claim, performed so much of said agreement as to eiititle me to the first [or, " second," or, "third," as the case may be] payment in the within agreement, covenanted by the party of the first part therein to be paid to me, do declare that I do not owe, nor am I liable to any person or persons, for any work or labor done or performed for me in the said work so far as it has progressed, nor for any materials furnished to me by any person or persons whatever, in carrying on the said work, so far as it has progressed, and that I have incurred no debt whatever in the perform- ance of said contract, which can at any time, by the laws of the state of , be made a lien on the building or premises in said agreement de- scribed. This statement is made to enable me to obtain the said payment, which I claim to be now due under said agreement. Witness my hand this day of , 18 . . Notif,e, under Section Pour, hy the Ovmer of the Zand that he wiU not be Liable for Improvement, To all whom it may concern ; Take notice, that whereas I, am the owner of the following de- scribed lot of land in the county of , viz : [here describe the land, and 488 LAW ENCYCLOPEDIA. if the person giving notice merely claims as interest in the land, instead of the words " am the owner of , " say, ' ' claim an interest in " ] ; and that I have within the last three days obtained knowledge that the following construction [or, "alteration," or " repair, " as the case may be] has been commenced to be made, [or, " has been made," as the case may be, or, "that it is intended or in contemplation to make the following construction, alteration or repair"], viz: [here describe it]. I hereby declare I will not be responsible for such construction [ ' ' alteration, "or, " repair, ' ' as the case may be] ; that the same is done without my consent, authority, license or permission, and that I will oppose any attempt to make the same a lieu upon the land and premises above described. Dated day of 18.. Claim -of Zien-bi/^oniractor. State-of , county of Notice is hereby given to all whom it may concern, that I, , of the county of , have performed work and labor, and furnished materials for the construction of the building erected and now being upon the land and premises hereinafter more particularly described as a contractor. ■* That it is my desire to avail myself of the benefits of the act of the leg- islatiu;e of the state of entitle.d "An act for securing liens of mechanics and others," approved , 18. . ; and that it is my intention to claim a lien upon the premises aforesaid and hereinafter described, and to claim and hold such hen not only on said building or superstructure so erected, but also upon the land upon which the same is so erected, and with a convenient space around the same, or so much as may be required for the convenient use and occupation thereof, or upon such interest as , the person with whom I contracted, had in said premises, on the , . . , day of , 18 . . , when said work commenced, and when said materials were begun by me to be furnished for the construction of said building. That the following is a true statement of my demand, for which I claim such hen, namely : On the day of ,18 . , I entered into a written contract with said , to erect a dwelling-house on said premises, and furnish the materials therefor, according to certain plans and specifications annexed to said written agreement [or, state generally what the work was that was to be done]. That said work was commenced, and said materials begun to be furnished on the day of , 18 . . That said work has been completed according to said contract, and that sixty days have not elapsed since the completion of said work or building so contracted to be by me erected, and the completion of my said contract. That the price agreed to ■ be paid to me, by said , under said contract, for said work, was the sum of ... . thousand doUais, ($ ) . That there is besides due to me, for extra work and extra materials, done and furnished for said superstructure, at the instance and request of said , the sum of thousand LIEN, mechanics', FORMS OP. 489 dollars, ($ ) . The total amount for said work and materials being .... thousand dollars, ($ ) , for which I have since the entering into said contract, received, at sundry limes, from the said , to apply on the same, the sum of thousand hundred dollars, ($ ). Lea-ring a balance now due to me on said work, from said , of .... thousand hundred dollars ($ ) ; and that the said balance is justly due to me on the same, after deducting all just credits and offsets. That is the name of the owner of said premises before-mentioned and hereinafter particularly described, and that he was the person who em- ployed me, with whom I entered into said contract to do said work and fur- nish said materials, as aforesaid. That the following is a description of the property to be charged with such Hen, viz. : That piece or parcel of land situate, lying and being, in the .... of and state of . . . . , bounded and described as follows, viz : Beginning at a point in the [insert description oj premises the same as in deeds], with the said building, and all other appur- tenances thereto belonging. , day of ...., 18.. County of , ss. , being duly sworn, deposes and says, that he is the claimant in the above claim and notice of intention to hold a hen named ; that he has read the said claim and notice by him subscribed, and knows the contents thereof, and that the same is, in all respects just and true, and that it con- tains a just and true statement of the demand due to him after deducting all just credits and offsets. Sworn to before me this .... day of , 18. . [I..S.] , Notary public. Claim of Lien hy MaUnaPman, Notice is hereby given to all whom it may concern, that I , of the county of have furnished materials for the construction of the building erected and now being upon the land and premises hereinafter more particu- larly described. That it is my desire to avaU myself of the benefits of the act of the legis- lature of the state of ...., entitled "An act for securing liens of me- chanics and others," approved 18. . ; and that it is my intention to claim a Hen upon the premises aforesaid and hereinafter described, and to claim and hold such lien, not only on said building or superstructure so erected, but also upon the land upon which the same is erected, with a con- venient space about the same, or so much as may be required for the conven- ient use and occupation thereof, or as , the owner [or, "reputed owner " ] of said land and premises, had on the day of , 18.., when said materials were commenced by me to be furnished for said buildin'? or superstructure. That is the person by whom I was employed to furnish the said materials for said construction, and to whom, at his special instance and re- 490 LAW ENCYCLOPEDIA. quest, I did furnish the said materials, the said being enga contractor, under said in erecting said building, and said .... is the owner of said land, building and premises. That the following is a true statement of my demand, for which I claim such lien, namely : Materials, to wit: lumber to the amount and of the value of thousand dollars, which said lumber was furnished by me to the said , to be used, and was in fact used, in the construction of the said building. That the said has paid to me, upon account of said lum- ber so furnished, the sum of hundred dollars, and that there is now due to me from said therefor, the sum of hundred dollars, after deducting all just credits and offsets. That the said lumber was commenced by me to be furnished for said construction, on the .... day of 18 . . , and was continued so to be furnished up to and including the day of . . . . , 18 . . , and that thirty days have not elapsed since the completion of said building. That the following is a description of the property to be charged with said lien, viz: [here describe property fully, and add the affidavit of verificationj. Claim of Men by a Journeyman Carpenter. To all whom it may concern : Take notice, that 1 1 , of the county of , have performed labor in the construction [or, " repair, '/ or, " alteration, " as the case may be] of the building and superstructure, erected and now being upon the land and premises hereinafter more particularly described, as a journeyman carpenter and joiner. That it is my desire to avail myself of the benefits of the act of the state of . . . ., entitled "An act for securing liens of mechanics and others," ap- proved .... of .... 18 . . , and it is my intention to claim a lien for said labor upon the premises aforesaid and hereinafter described ; and that it is my intention to claim and hold such lien, not only upon the said building and superstructure, but also upon the land upon which the same are erected, together with a convenient space around the same, or so much as may be required for the convenient use and occupation thereof. That the following is a true statement of my demand on which I found said claim for a lien, namely : Thirty days' work on said building or superstructure, as a journeyman car- penter and joiner, commencing on the day of , 18 . . , and ending on the day of , 18 . . , and performed between said two dates, at the rate of dollars per day, payable in of the United States ; the amount of said days' Work at said rate being hundred and dol- lars, on which I have been paid the sum of dollars, leaving due to me for said work a balance of dollars, after deducting all just credits and offsets. That the name of the owner [or, " reputed owner "] of said building or super- structure, and of the premises hereinafter described, is That the name of the person by whom I was employed to do said carpenter and joiner work on said building is , who was the contractor [or, "the sub- contractor under the principal contractor"] employed by said .in the erection [or, "repair,"or, " alteration, " as the case may be] of said build- ing and superstructure ; that , , , days have not elapsed since the oomple- LIEN, mechanics', FOEMS OF. 491 tion of said building or superstructure, and said sum of dollars remains due and unpaid. That the following is a description of the property which I seek to charge with said lien, viz : [here insert description and then follow with affidavit of verification as before]. Claim of Lien by Laborer on Two CorUigwous Buildings, under Section Seuen. To all whom it may concern : Take notice, that I, of the county of , have performed labor in the construction of the two contiguous and adjoining buildings, erected and now being upon the land and premises hereinafter more partic- ularly described, as a hodman, in carrying bricks and mortar to said build- ing, and attending as such on the masons and bricklayers while engaged in the erection of said building [or, whatever else the work may be]. That it is my desire to avail myself of the benefits of the act, etc., etc. [describe the intention to claim lien as in previous forms]. That the following is a true statement of my demand on which I found my said claim for a lien, namely : I performed labor of the kind above described on said two contiguous and adjoining houses and buildings for the period of days, at the rate of dollars per day, payable in United States gold coin, making for said work, on said two buildings, the sum of dollars in all ; that . days of said labor, making the sum of dollars, was performed on the south house or building, on said premises, and days of said labor, making the sum of .... dollars, on the north house or building, on said premises, adjoining and contiguous to said south house. That said labor was performed be- tween the day of 18. ., and the day of , 18. .. That no part of said sum of dollars has been to me paid, and the said sum of doUars, for the work and labor aforesaid, is justly due to me, after de- ducting aU just credits and oflfsets. That the name of the owner of said con- tiguous and adjoining houses and the premises hereinafter described, is ... . That the name of the person by whom I was employed to do said labor on said buildings is , who was the contractor employed by said in the erection of said contiguous and adjoining buildings or houses ; that days have not elapsed since the completion of said con- tiguous or adjoining buildings or houses, or either of them, and no part of the said sum of dollars has been to me paid, but the whole thereof re- mains justly due and unpaid as aforesaid. That the following is a correct description of the premises which I seek to charge with said Uen : [here in- sert description, and then follow with the affidavit of verification, as in pre- vious forms. This form can be varied so as to be adapted to any other Mud of work, or for materials furnished]. Claim of Lien by Siib-oontrador. To all whom it may concern ; Take notice, that I of the county of , have furnished certain materials and performed certain mechanical work and labor, which materials and work and labor were used in the construction, painting and finishing, of a certain building or superstructure, inthe county of , here- 492 LAW ENCYCLOPEDIA. inaf ter more particularly described ; and tliat the said materials and work consisted of painting materials and work and labor in painting said build- ing or superstructure, as more particularly hereinafter mentioned. That it is my desire to avail myself of the benefits of the act, etc., etc. [describe the intention to claim lien, as in previous forms]. That the following is a true statement of my demand on which I found said claim for a lieu : On the day of 18 . . , I, as a sub-contractor, entered into a contract, in writing, with one , who was the con- tractor employed by ', the owner of said building and premises, to erect said building on said premises, by which contract so entered into be- tween said and myself, I contracted with said to do and perform all the painting requisite and necessary to be done on said build- ing, according to the plans and specifications specified in the contract in writing, between said and said , for the erection of said building, and furnish all the materials necessary for the same [or, whatever the contract was, setting it forth particularly, and the time the payments became due], for which the said , by the terms of his said contract with me, was to pay to me the sum of ... . hundred dollars, in United States .... That I have fuUy completed my said contract, and said has paid me thereon the sum of .... hundred dollars, and that there remains due to me, by the terms of said contract, for said work and materials, done and furnished, under said contract, the just and full sum of hundred dollars, after deducting all just credits and offsets. That is the owner of said building and the premises hereinafter described, and said the contractor under said , is the per- son who employed me as sub-contractor, to do and perform said painting, and furnish said materials therefor, and with whom I entered into the contract aforesaid, for such painting and materials. That .... days have not elapsed since the completion of said building or superstructure, and said sum of hundred dollars remains due to me and unpaid. That the following is a de- scription of the property which I seek to charge with said lien, viz : [here insert description and then follow with affidavit of verification as before]. fHaim of lAm Vy a Miner. County, ss. To whom it may concern : Take notice, that I, , of , in .... county, have performed labor as a miner in a certain mine, commonly called the .... mine, situate at , in said county, and hereinafter more particularly described. That for my said labor, it is my desire to avail myself of the benefit, etc. [reciting the act as in the foregoing notices], and that it is my intention to claim a lien upon said mine and its appurtenances, as hereinafter described, and sufficient space around the same, or so much thereof as may be required for the convenient working, use and occupation, of said mine. That the following is a true statement of my demand for such labor, under which I claim such lien, viz : Thirty days' labor in said mine, as a miner in [here describe the work gen- erally, showing it is labor performed in a mine]. That the value of said LIEN, mechanics', FOKMS OP. 493 labor [or, "the amount agreed to be paid for said labor "] is dollars per day, making tbe whole amount due for such labor ... hundred and dol- lars. That said labor commenced to be performed by me on the day of . . . . , 18 . , , and ended on the day of ■ 18 . . , and was done and per- formed within the said two dates. That the name of the owner of said mine is the " mining company," a mining corporation created under the laws of this state, and the person by whom I was employed to do the said labor was , the superintendent of said mine, duly appointed such by said corporation, and having authority from said corporation to employ me in performing the labor aforesaid. That no part of my said demand has been paid, and there remains due to me therefor the said sum of hundred and .... dollars, after deducting all just credits and offsets. That days have not expired since the per- formance by me of said labor in said mine. That the following is a descrip- tion of the said mine and property on which I claim a hen as aforesaid, viz : [here describe the mine, showing the mining district in which it is located, the number of feet of ground over which the mine extends and which it includes, aU which wiU generally be found in the deed or claim recorded in the office ,of the district recorder, and then close with the usual verification. This form can be changed so as to be adapted to the claim of a contractor for excavating a mine, or for repairing a mine, or for erecting an aqueduct lead- ing to a mine, or excavating a ditch or canal leading to a mine, excavating a tunnel or other work connected vrith a mine. It is unnecessary to multiply forms on the subject of mines or mills. The subject itself will suggest the proper form taken in connection with the forms already given]. Claim of Zien for Grading or Improving a Town or City Lot Tinder Section Nine. County of , ss. To aU whom it may concern : TaKe notice, that I, of the county of , have performed labor and furnished materials in filling in and grad ing a certain city lot in the incorporated city of .... aforesaid, and hereinaf- ter more particularly described. That it is my desire to avail myself of the benefits of the act, etc., etc. [describing the act as in foregoing forms], and that to secure me payment for my said labor and materials, it is my intention to claim a lien upon the whole of said lot, more fully and particularly hereinafter described. That the following is a true statement of my demand for such labor and materials under which I claim said lien, namely : On the .... day of . . . . , 18 . . , I entered into a contract in writing with , to fill in and grade said lot, and that I was by said contract, to [here describe generally what was to do by the terms of the contract, and what the particular improve- ment he was to execute, showing it was either grading, filling in or other- wise improving, the lot or the street in front of it or adjoining it]. That by said contract I was to be paid by for said work, labor and mate- rials, when the same was completed, the sum of thousand doUars in United States gold coin [or, "that he was to be paid so much a foot," and state what the total amount of the work is so calculated]. 494 LAW ENCYCLOPEDIA. That I commenced the said work on the day of , , 18. . , and com- pleted the same on the day of , and that days have not ex- pired since the completion of the said work by me. That there is due to me for said work, labor and materials, the just and full sum of thousand doUars, and that said sum of thousand dollars is so due to me alter de- ducting all just credits and offsets. That said is the owner of said city lot, and he is the person by whom I was so employed, and for whom and to whom I did said labor and furnished said materials as aforesaid. That the following is a description of the lot of land on which I made said improTe- ment, and did such work and labor, and for which I furnished said materials, viz: [here insert description of premises, and add afSdavit of verification, as in previous forms]. Advertisement by Meclianic to 8eU Personal Property Under Section Fifteen. ATTCTIOil SALE, Notice is hereby given that I, the undersigned, will expose for sale, at pub- lic auction, to the highest bidder, in front of the in . . . street, in the of , on the day of , 18 . . , at o'clock noon, of that day, a certain wagon [here describe it generally], which said wagon was, by , the owner thereof, left with me as a wagon-maker, to be repaired on or about the .... day of 18 . . ; that I made the necessary repairs to said wagon at the instance and request of said ; that said repairs were justly and reasonably worth the sum of dollars, and were completed on the day of . . . .,18. ., when said sum so became due to me from said , for said repairs ; that the said , though often requested, has not paid said sum or any part thereof, and said wagon has ever since the completion of said repairs, and for more than two months since the said work was done, been retained in my possession by virtue of my lien thereon for said repairs, and the proceeds of said sale are to be applied to the dis- charge of said lien and of my costs of keeping and selling said property. LIGHTS. Lights. — The uninterrupted enjoyment of windows, called in law "lights," for the length of time sufficient to create a title to land by adverse possession, which ia California is five years, raises a presumption in favor of the right. Such use or enjoyment does not bind the owner of ad- joining land, so as to preclude him from building against or obstructing these lights, unless he had knowledge of their existence ; and the occupation of his land by a tenant is not sufficient ground of itself for implying such knowledge. There is one Case where the law protects the enjoyment of lights, though not ancient. Thus, where one sells a LiaHTS — ^LIMITATION OF ACTIONS. 495 hi use having doors or windows opening into a vacant lot adjoining and belonging to the vender, without reserving a right to build on such lot, or to stop the doors and win- dows, neither he nor his grantee of such lot can lawfully stop them. But merely intercepting the prospect without obstructing the light, or opening a window, whereby the privacy of a neighbor is disturbed, are not nuisances. A total Privation of light, however, is not necessary to support an action for a nuisance ; for if the plaintiff can prove that by reason of the obstruction he can not enjoy the light in so free and ^mple a manner as he did before, it is sufficient to maintain this action. HoAV Acquired. — As the right to light is acquired by en- joyment, so it may be lost by a discontinuance of the enjoy- ment, unless the party who ceases to enjoy at the same time does some act to show an intention of resuming the enjoy- ment within a reasonable time ; and the non-user of the lights for less than five years, under such circumstances, wUl deprive him of his right. Thus, if he build a blank wall to his house, where the lights formerly existed, this is such an abandonment as will extinguish his title. When Action Lies. — An action does not lie against a per- son for erecting a fence on his own land, whereby he ob- structs the lights of his neighbor, let the notice be what it may, if the lights be not ancient lights, or his neighbor has not acquired a fight, by grant or occupation and acquies- cence. Nor does an action lie for opening a window over- looking the privacy of another ; and, on the contrary, although the doing so be an encroachment, the continuance thereof for five years wiU ripen into a right. LIMITATION OF ACTIONS. Iiimitation of Actions. — In California and Idaho, the people will not sue anjt- person for, or in respect to, any real property, or the issue or profits thereof, by reason of ihe right or title of the people to the same, unless such 7 \ght or title shall have accrued within ten years before any 496 LAW ENCYCLOPEDIA, action or otlier proceeding for the same shall be commenced, or vmless the people, or those from whom they claim, shall have received the rents and profits of such real property, or some part thereof, within the space 'of ten years. Within Five Years. — No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ances- tor, predecessor or grantor, was seized or possessed of the premises in question, within five years before the commence- ment of such action : provided, however, that an action may be maintaiaed by a party claiming • such real estate, or the possession thereof, under title derived from the Spanish oi Mexican governments, or the authorities thereof, if such action be commenced within five years from the time of the final confirmation of such title by the government of the United States, or its legally-constituted authorities. No Cause of Action, or defense to an action, founded upon the title to real property, or to rents or to services out of the same, shall be effectual, unless it appear that the per- son prosecuting the action, or making the defense, or under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor or grantor, of such person, was seized or possessed of the premises in question, within five years before the commencement of the act, in respect to which such action is prosecuted, or defense made £or un- less it appear that the title to such premises was derived from the Spanish or Mexican governments, or that the same was confirmed by the government of the United States or its authorities, within five years before the commencement of such action]. [The part in brackets applies to Cali- fornia alone.] Peaceable Entry. — Any peaceable entry upon real estate shall be deemed sufficient and valid as a claim, unless an action be commenced by the plaintiff in ejectment, within one year after the making such entry ; or within five years from the time when the right to bring such action accrued, [or within five years after the final confirmation by the LIMITATION OF ACTIONS. 497 United States of any title derived from Spain or Mexico]. [The part in brackets applies to California alone. J Adverse Possession. — For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or de- cree, land sliall be deemed to have been possessed and occupied in the following cases : 1st. Where it has been usually cultivated or improved. 2d. Where it has been protected by a substantial in- closure. 3d. Where (although not inclosed) it has been used for the supply of fuel or of fencing timber, for the purposes of husbandry, or for the use of pasturage, or for the ordi- nary use of the occupant. ■4th. Where a known lot or single farm has been partly improved, the portion of such farm or lot that may have been left not cleared or not inclosed, according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated. Whero it shall Appear that there has been an actual continued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a writ- ten instrument, or a judgment or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely. For the Purpose of constitiiting an adverse possession, by a person claiming title not founded upon a written in- strument, judgment or decree, lan^ shall be deemed to have been possessed and occupied in the following cases only: 1st. Where it has been protected by a substantial in- closure. 2d. Where it has been usually cultivated or improved. Possession of Landlord. — Whenever the relation of land- lord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the pos- 32 498 LAW EKCTCLOPEDU. session of the landlord until the expiration of five years from the termination of the tenancy, or, where there has been no written lease, antil the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have clairaed to hold adversely to his landlord. But such piresumptions shall not be made after the periods herein limited. Disability of Party. — If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or services out of the same, be, at the time such title shall first descend or accrue, either : 1st. Within the age of majority. 2d. Insane. 3d. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life. 4th. A married woman, ' if her husband be a necessary party. The time during which such disability shall con- tinue shall not be deemed any portion of the time in this act limited for the commencement of such action, or the making of such entry or defense, but such action may be commenced, or entry or defense made, within the period of five years after such disability shall cease, or after the death of the person entitled who shall die under such disability; but such action shall not be commenced or entry or defense made, after that period. When Action CEin only be Commenced.— Actions, other than those for the recovery of real property, can only be commenced as follows : Within Five Years. — An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, an action for mesne profits of real property. Within Four Years. — An action upon any contract, ob- ligation or liability, founded upon an instrument of writing executed in this state. WMITATION OF ACTIONS. 499 Within Three Years. — An action upon a liability cre- ated by statute, other than a penalty or forfeiture. An action for trespass upon real property. An action for taking, detaining or injuring any goods or chattels, in- cluding actions for the specific recovery of personal prop- erty. An action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the Tacts constituting the fraud or mistake. Within Two Years. — An action upon a contract obliga- tion or liability, not founded upon an instrument of writing, or founded upon an instrument of writing executed out of the state. An action against a sheriflf, coroner, or consta- ble, upon the liability incurred by the doing of an act in his official capacity, and by virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execution. But this shall not apply to an action for an escape. Also to recover damages for death caused by wrong or neglect. Within One Year. — An action upon a statute for a pen- alty or forfeiture, where the action is given to an individ- ual, or to an individual and the state, except where the statute imposing it prescribes a different limitation. An action upon a statute for a forfeiture or penalty to the peo- ple of this state. An action for libel, slander, assault, bat- tery, false imprisonment, or seduction. An action against a sheriff, or other officer, for the escape of a prisoner, ar- rested or imprisoned on civil process. An action against a municipal corporation for damages for injuries to property caused by a mob or riot. Within Four Years. — ^An action for relief, not herein- before provided for, must be commenced within four years after the cause of action shall have accrued. What deemed Commencement of Action. — An action shall be deemed to be commenced, within the meaning of 500 LAW ENCYCLOPEDIA. this act, when the complaint has been filed in the proper court. [Same in Idaho, except the summons must be placed in the hands of the proper person for service.] Party out of State. — If, when the cause of action shall accrue 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 shall have accrued, he depart the state, the time of his ab- sence shall not be part of the time limited for the com- mencement of the action. When Statute not to Run. — If a person entitled to bring an action, other than for the recovery of real prop- perty, except for a penalty or forfeiture, or against a sher- iff or other officer for an escape, be at the time the caus& of action accrued, either : 1st. Within the age' of majority. 2d. Insane. 3d. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than his natural life. 4th. A married woman. The time of such disability shall not be a part of the time limited for the commencement of the action. Death of Party before Statute has Run. — If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his rep- resentatives, 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 ac- tion survives, an action may be commenced against his exec- utors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary or of administration. Nevr Promise. — No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby LIMITATION OF ACTIONS. 501 to take the case out of the operation of this statute, unless the sanie be contained in some Vriting signed by the party to be charged thereby. Contracts Made out of State. — An action upon any con- tract, obligation or. liability, for the payment of money, found Qd upon an instrument of writing executed out of this state, er, to be Indorsed in like Manner. It appearing to me by the within depositions ["and statement," if any], that the offense therein mentioned [or, any other offense, according to tho fact, stating generally the nature thereof] has been committed, and that there is sufficient cause to believe tho within-named guilty there- of, I order that he be held to answer the same. [If the offense be not bail- able, add : "and that he be committed to the sheriff of the county of ;" or, if bailable, add : "and that he be admitted to bail in the sum of , and be committed to the sheriff of the county of until he gives such bail ;" or, if he have given bail, add : "and I have admitted him to bail to answer by the recognizance hereto annexed."] ••■» Justice of the peace of the county 518 LAW ENCYCLOPEDIA. Commitment. Justice's court of the county of State of 1 county of j The people of the state of to the sheriff of the county of : An order having been this day made by me, that be held to an- swer upon a charge of grand larceny committed in said county, on or about the day of 18 . . , you are commanded to receive him into your custody, and detain him until he be legally discharged. Dated at the county of , this day of , a.d. 18. Justice of the peace of the county of Complaint for Assault and Battery. court. State of , ) county of f Personally appeared before me, this day of , 18 . . , , •who deposes and says that, ca the day of . . . . , 18 . . , in said county, the crime of assault and battery was committed, to wit : by then and there willfully and unlawfully assaulting and beating, bruising and wounding .... , with force and arms. All of which is contrary to the form of the stat. ute in such cases made and provided, and against the peace and dignity of the people of the state of And said deponent accuses of having committed said crime, and prays that a warrant may be issued for the arrest of said and that may be brought beti/re a magistrate and dealt with according to law. Sworn and subscribed before me, this day of A. D. 18. . Complaint for Unlawfully Fighting. court. Stateof.... , )gg county of J Personally appeared before me, this day of 18 , who deposes and says that, on the day of ,18 street, in said county, the crime of misdemeanor was committed, to wit : by then and there willfully and unlawfully fighting together and assaulting and beatmg each other, in said above-named public street, thereby violating good order, good morals and disturbing the public peace. All of which is contrary to law and against the peace and dignity of the people of the state of And the said deponent accuses and of having committed said crime, and alleges that the said accused were then and there arrested, in the actual commission of said offense, and prays that they may be brought before a magistrate and dealt with according to law. Sworn and subscribed before me, this day of . . . . , a.d. 18 . . . MAGISTBATE, F0BM3 OP. 619 Complaint for Violating Sunday Law, court. State ol 1 county of f Personally appeared before me, this day of , 18 . . , , ■who deposes and says that, on the day of 18. . , in said county, the crime of misdemeanor was committed, to wit : by , who, on the same day, the said being the first day of the week, commonly called Sun- day, willfully and unlawfully kept open a certain place of business, to wit : , for the purpose of transacting business therein, and where, in fact, the said All of which is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of And said deponent accuses of hav- ing committed said crime, and prays that a warrant may be issued for the arrest of said and that may be brought before a magis- trate and dealt with according to law. Sworn and subscribed before me, this day of .... jl.d. 18 . . Conplaint Generally. court. State of 1 county of J ' Personally appeared before me, this day of , 18 who deposes and says that, on the day of 18. ., in said county, the crime of was committed, to wit : by All of which is contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the people of the state of And said deponent accuses of having committed said crime, and prays that a warrant may be issued for the arrest of said and that may be brought before a magistrate and dealt with according to law. Sworn and subscribed before me, this day of a.d. 18. . Complaini Carrying Concealed J^eapon. court. State of ) county of f Personally appeared before me, this day of a.d. 18 , who deposes and says that on the day of , a.d. 18 . . , in said county of . . . . , the crime of misdemeanor was committed, to wit, by , [real name unknown to this complainant], who then and there, not being a peace officer, provost marshal, enrolling officer or officer acting under the laws of the United States, in the department of the provost marshal of this state, or state or federal assessor, or collector of taxes or licenses, or traveler, did then and there willfully and unlawfully wear and carry concealed on his person a certain dangerous and deadly weapon, to wit : a certain 520 LAW ENCYCLOPEDIA. All of which is contrary to the form of the statute in such caaes made and provided, and against the peace and dignity of the people of the state of And said deponent accuses said of having committed said oiime, and alleges and deposes that he, the said accused, was then and there arrested in the actual commission of said crime, and prays that he may be brought before a magistrate, and dealt with according to law. Sworn and subscribed before me, this day of a.d. 18 . . Warrant. court. Stateof ) county of f The people of the state of , to any sheriff, constable, marshal or po- liceman, in this state, or the county of : A complaint, upon oath, having been this day laid before me, , by , that the crime of has been committed, and accusing , [real name un- known] thereof, you are therefore commanded forthwith to arrest the above- named , [if pointed out], and bring before me, at the court, or in case of my absence or inability to act, before the near- est or most accessible magistrate in the county. ■Witness my hand and the seal of the court, this .... day of . . . . , A.11. 18 . . [I-8-] Bench Warrant. court. State of 1 county of ..... ) The people of the state of . . . ., to any sheriff, constable, marshal or police- man, in this state : having been on the .... day of , 18 . . , You are therefore commanded forthwith to arrest the above-named and bring before me. Given under my hand, this .... day of . . . ., a.d. 18. . [i-s-] Search Warrant. Stateof 1 county of ) The people of the state of , to any sheriff, constable, marshal or police- man, in the county of Proof, by affidavit, having been this day made before me , by , that the following described property has been feloniously stolen, taken and carried away, and that said property is concealed on the promises described below : You are therefore commanded, in the day time, to make immediate search on the premises for the following property : And if you find the same, or any part thereof, to bring it forthvfith before me, at the court. Given under my hand, this .... day of .... a.d. 18. . [l.s.] of the county of MAGISTRATE, FOEMS OP. 621 Betum on Search Warrant. . Served by diligent search of the within described premises, and by recov- ery and seizure of the following property described within, viz: Recognizance of Witnesses. State of , I county of J ^^' PersonaKy appeared in the court, in and for the county of , in open court, and , and acknowledge themselves and ' each of them justly indebted to the people of the state of . . . . , in the sum of dollars. Sealed with their seals, and dated this the day of a.d. 18. . The condition of the above obligation is such, that whereas the above bound persons have been examined as witnesses for the people in the case of , charged with and ordered to appear and testify be- fore the honorable the court of the county of and state of .... . Now if the above bound persons shall well and truly be and appear in and before the honorable, the court, for the county of and state of . . . . , at the next term thereof, on the first day of the same, then and there to testify in the case and abide the order of the court, then this recognizance is to be null and void, otherwise to remain in full force and effect. Signed and sealed the day and date above written. [L-S.] [1-3.] Approved by me, this the . . .. day of 18. . Judge. Appeal Sond. State of 1 county of j Whereas, by the judgment and decision of the court, of said county, made and entered on the day of ... , 18 . . , in the cause of the people of the state of vs , on a charge of wherein said defendant was adjudged guilty by said court, and fined dollars, and, in default of payment adjudged by said court to bo imprisoned in Iho county jail of said county for the period of days, from which judgment and decision of said court defendant has appealed, in due form of law, to the couit of said county of , and bail in said appeal is fixed by judge of said county, in the sum of dollars : Now, therefore, we, and , residents of the county of , hereby undertake that the above-named , shall well and truly prosecute his appeal, in said apellate court, and that ho will pay tho amount of said fine, or such part of it as the appeUato court may direct, if the judgment be affirmed or modified, or said appeal bo dismissed, and that ho will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon said appeal being dismissed ; or, if he 522 LAW ENCYCLOPEDIA. fail to perform either of these conditions, that we will pay to the people of the state of the sum of dollars. [i-s.] [I.-S.] Approved byme, this day of . . . , 18. . State of I county of j ' , being sworn, says he is a householder, resident of the state of and that he is worth the sum of dollars, over and above his just debts and liabilities exclusive of property exempt from execution. Subscribed and sworn before me, this day of , 18 . . [L-s.] State of 1 county of j , being sworn, says he is a householder, resident of the state of , and that he is worth the sum of dollars, over and above his just debts and liabilities exclusive of property exempt from execution. Subscribed and sworn before me, this day of , 18 . . , [I.-S-] MAINTENANCE. Maintenance. — ^The support which one person, who is bound by law to do so, gives to another for his living. For example : A father is bound to find maintenance for his chil- dren ; and a child is required by law to maintain his father or mother, when they cannot support themselves, and he has ability to maintain them. In Criminal La-w. maintenance is officious interference in a suit in which the offender has no interest, to assist one of the parties to it against the other, with money or advice to prosecute or defend the action without any authority of law. MALPRACTICE. Malpractice. — Bad or unskillful practice in a physician or other professional person, whereby the health of the patient is injured. Willful Malpractice takes place when the physician pur- posely administers medicines or performs an operation which he knows and expects will result in danger or death to the individual under his care, as in the case of criminal abor- tion. MALPRACTICE — MANDAMUS. . 523 Negligent Malpractice comprehends those cases where there is no criminal or dishonest object, but gross negli- gence of that attention which the situation of the patient requires, as if a physician should administer medicines while in a state of intoxication, from which injury would arise to his patient. Ignorant Malpractice is the administration of medicines calculated to do injury, which do harm, and which a well- educated physician would know were not proper in the case. Remedy. — Malpractice is a misdemeanor, and punisha- ble by fine and imprisonment, but the injured party may have a civil action and recover damages. MALICIOUS PROSECUTION". Malicious Prosecution. — A wanton prosecution made by a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular process and proceeding, which the facts did not warrant, as appears by the result. An action lies against a plaintiff in a civil action, who maliciously commences and prosecutes an action ; but an action does not lie against his attorney who advised him to sue. For example : If a plaintiff sues and attaches before the debt is due, the prosecution of the action would be ma- licious. MANDAMUS. Mandamus. — Ti^a is a high prerogative writ usually issu- ing out of the highest court of general jurisdiction in a state, directed to any person, corporation or inferior court of judicature, within its jurisdiction, requiring them to do some particular thing therein specified, and which apper- tains to their office. In California, Nevada and Idaho. — It may be issued by any court, except a justice's, recorder's or mayor's, court, to any inferior tribunal, corporation, board or person, to com- pel the performance of an act which the law specially en- 524t LAW ENCYCLOPEDIA. joins, as a duty resulting from an office, trust or station ; or to compel the admission of a party to the use and en- joyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior"tri- bunal, corporation, board or person. Whe-^ Issued. — The writ shall be issued in all cases where there is not a plain, speedy and adequate, remedy in the ordinary course of law. It shall be issued upon affi- davit, on the application of the party beneficially inter- ested. Substance of ths Writ,-^The writ shall be either alter- native or peremptory ; the alternative writ shall state gener- ally the allegation against the party to whom it is directed, and command such party, immediately after the receipt of the writ, or at some other specified time, to do the act re- quired to be performed, or to show cause before the court, at a specified time and place, why he has not done so. The peremptory writ shall be in a similar form, except that the words requiring the party to show cause why he has not done as commanded shall be omitted^ and a return day shall be inserted. Application and Notice. — When the application to the court is made without notice to the adverse party, and the writ be allowed, the alternative shall be first issued ; but if the application be upon due notice, and the writ be allowed, the peremptory may be issued in the first Instance. The notice of the application, when given, shall be a^ least ten days. The writ shall not be granted by default. The case shall be heard by the court, whether the adverse party ap- pear or not. Answer, elo. — On the return of the alternative, or the day on which the application of the writ is noticed, or such further day as the court may allow, the. party on whom the writ or notice shall have been served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action. Jury Trial. — If an answer is made, which raises a ques- MAKDAMUS, FOEMS OF. 625 tion as to a matter of fact essential to the cTetermination of the motion, and affecting the substantial righta of the par- ties, and upon the supposed truth of the allegation of which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had, and the verdict certified to the court. The question to be tried shall be distinctly stated in the order for trial, and the county shall be designated in which the same shaM be had. The order may also direct the jury to assess any damxges which the applicant may have sustained, in case they find for him. Penalty for Disobsdienos. — When a peremptory man- date has been issued and directed to any inferior tribunal, corporation, board or person, if it appear to the court that any member of such tribunal, corporation or board, or such person, upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persist- ence in a refusal of obedience, the court may order the party to be imprisoned for a period not exceeding three months, and may make any orders necessary and proper for the complete enforcement of the writ. If a fine be im- posed upon a judge or officer who draws a salary from the state or county, a certified copy of the order shall be for- warded to the controller or county treasurer, as the case may be, and the amount thereof may be retained from the salary of such judge or officer. Such judge or officer, for his willful disobedience, shall also be deemed guilty of a misdemeaijor in office. FORMS. AHernative Mandamus. In the court of the ootmty-of plamtlSr, against defendant. The people of the state of to greeting : Whereas, it manifestly appears to us by the affidavit of on the 626 LAW ENCYCLOPEDIA. part of the said , the plaintiff, and the party beneficially interested herein, that and that there is not a plain, speedy and adequate, rem- edy in the ordinary coiirse of law. Therefore, we do command you, that immediately after the receipt of this ■writ, you do or that you show cause before this court, at the eourt- room thereof, in the , in the county of , on the day of A.D. 18 , . , at the opening of the court on that day, why you have not done so. Witness, the honorable , judge of our court of the ,, at the ...... in the county of „ , and the seal -of said court, this .... day of A.s. 18.. Clerk, By Deputy clerk. Peremptory Mindamus. plaintiff, againut defendant. J The people of the state of to , | Whereas, it manifestly appears to us by the affidavit of , on the part of the said , the plaintiff, and the party beneficially interested herein, that , and that there is not a plain, speedy and adequate, rem- edy in the ordinary course of law. Therefore, we do command you, that immediately after the receipt of this writ, you do Witness, the honorable , judge of our court, of the , at the in the county of , and the seal -of said court, this .... day of A.D. 18. . Clerk, By Deputy clerk. MANIFEST. Manifest. — A written instrument containing a true ac- count of the cargo of a ship or vessel. The want of a manifest, where one is required, and also making a false manifest, are grave offenses. MARITAL. Marital. — That which relates to marriage; as, marital rights, etc. See "Wife and Markiage. MARK. Mark. — A sign trace^ on paper which stands in place of MARK— MAEEUGE. 527 a signature usually made by persons wlio cannot write. It is usually a cross, made in a little space left betwfeen the christian name and surname. When witnessed by a per- son who writes his name as a witness, it has the same effect as writing. MARRIAGE. CALIFORNIA. What Constitutes Marriage. — Marriage is a personal re- lation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a sol- emnization, or by a mutual assumption of martial rights, duties, or obligations. Minors capable of Contracting Marriage. — Any unmar- ried male of the age of eighteen years or upwards, and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of consenting to and consummating marriage. Marriage, ho-w Manifested and Proved. — Consent to and subsequent consummation of marriage may be mani- fested in any form, and may be proved under the same gen- eral rules of evidence as facts in other cases. Certain Marriages Voidable. — If either party to a mar- riage be incapable from physical causes of entering into the marriage state, or if the consent of either be obtained by fraud or force, the marriage is voidable. Incompetency of Parties to. — Marriages between par- ents and children, ancestors and decendants of every de- gree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate. Of Whites and Negroes. — All marriages of white per- sons with negroes or muUattoes are illegal and void. Certain Marriages Void. — A. subsequent marriage con- tracted by any person during the life of a former husband or wife of such person, with any person other than such 528 LAW ENCYCLOPEDIA. former liusband or wife, is illegal and void from the begin- ning, unless: 1. The former marriage lias been annulled or dissolved; 2. Unless such former liusband or wife was absent, and not knowa to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed and was believed by such person, to be dead at the time sach subsequent mar- riage was contracted; in either of which cases the sub- sequent marriage is valid until its nullity is adjudged by a competent tribunal. Release from. Marriags. — Neither party to a contract to marry is bound by a promise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct on the part of the other, unless both parties participate therein. Foreign Marriages. — All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state. Solemnization of. — Marriage must be solemnized, authen- ticated and recorded as provided by law, but non-compli- ance with the law does not invalidate any lawful marriage. Marriage Lieen'e. — All persons about to be joined in marriage must first obtain a license therefor from the clerk of the county court of the county in which the marriage is to be celebrated, showing: 1. The identity pf the parties; 2. The real and full names and places of residence; 3. Their ages; i. If the male be under the age of twentj'-one, or the female under the age of eighteen years, the consent of the father, mother, or guardian, or of one having the charge of such person, if any such be given; or that such non-aged person has been previously, but is not at the time, married. For the purpose of ascertaining these facts, the clerk is au- thorized to examine parties and witnesses on oath, and to receive affidavits, and he must state such facts in the li- cense. If the male be under the age of Iwenty-one years, UABBIAGE. 529 or the female be under the age of eighteen, and such per- son has not been previously married, no license shall be issued by the clerk, unless the consent in writing of the parents of the person under age, or of one of such parents, or of his or her guardian, or of one haying charge of such person, be presented to him; and such consent shall be filed by the clerk. By ■whom Solemnized. — Marriage may be solemnized by either a justice of the supreme court, district or county judge, justice of the peace, mayor, priest, or minister of the gospel of any denomination. No form of Solemnization. — No- particular form for the ceremony of marriage is required, but the parties must de- clare, in the presence of the person solemnizing the mar- riage, that they take each other as husband and wife. Requisites of Solemnization, — The person solemnizing a marriage must first require the presentation of the mar- riage license; and if he has any reason to doubt the cor- rectness of its statement of facts, he must first satisfy him- self of its correctness, and for that purpose he may admin- ister oaths and examine the parties and witnesses in like manner as the county clerk does before issuing the license. Certificate of. — The person solemnizing a marriage must make, sign, and endorse upon, or attach to, the license, a certificate, showing: 1. The fact, time, and place of solemnization; and 2. The names and places of residence of one or more witnesses to the ceremony. To be Recorded, etc. — He must, at the request of, and for either party, make a certified copy of the license and certificate, and file the originals with the county recorder within thirty days after the marriage. Declaration of Marriage. — Persons married without the solemnization provided for must jointly make a declaration of marriage, substantially showing: 1. The names, ages, and residences of the parties; 34 630 LAW KNCYCLOPpjU. 2. The fact of marriage; 3. The time of marriage; 4. That the marriage has not been solemnized. Deolaration to contain, -what. — If no record of the sol- emnization of a marriage heretofore contracted be known to exist, the parties may join in a written declaration of such marriage, substantially showing: 1. The names, ages, and residences of the parties; 2. The fact of marriage; 8. That no record of such marriage is known to exist. Such declaration must be subscribed by the parties and at- tested by at least three witnesses. Declaration to be Recorded. — Declarations of marriage must be acknowledged and recorded in like manner as grants of real property. Action to test Validity of. — If either party to any mar- riage denies the same, or refuses to join in a declaration thereof, "the other may proceed, by action in the district court, to have the validity of the marriage determined and declared. See Husband and Wife. IDAHO AND NEVADA. Age of Consent, etc. — In Idaho and Nevada, the law re- lating to marriage is substantially the same as in Califor- nia. In Idaho, the governor may perform the marriage ceremony, and a license is not required. In Nevada, males eighteen years of age, and females of the age of sixteen years may marry by consent of parent or guardian; but proof of such consent is required. The Idaho statute ex- pressly prohibits marriage between whites and blacks, and whites and Indians and Chinese. OKEGON. Civil Contract. — In marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential. Who may Marry. — Every male person who shall have attained the full age of eighteen years, and every female who MAEEIAGE. 531 shall have attained the full age of fifteen yearis, shall be capa- ble in law of contracting marriage, if otherwise competent : provided, however, that nothing in this provision shall be construed so as to make the issue of any mairriage illegiti- mate, if the person shall not be of lawful age. No Marriage shall be Contracted while either of the par- ties shall have a husband or Avife living; nor between par- ties who are nearer of kin than first cousins, computing by the rules of the civil law, whether the half or the whole blood. Who may Solemrize. — ^Marriages may be solemnized by any justice of the peace in the county in which he is elect- ed, and they may be solemnized throughout the state by any judge of a court of record, and by ministers of the gospel, or such other person as may be authorized by any church. When under Age. — If any person intending to marry shall be under the age of twenty-one, if a male, or under the age of eighteen years, if a female, and shall not have had a former wife or husband, the consent in person or in writing of the parent or guardian having the custody of such minor, if he or she have either a parent or guardian living shall be given to the person solemnizing the marriage be- fore such marriage shall take place. No Perm Required. — ^In the solemnization of marriage, no particular form shall be required, except that the parties shall declare in the presence of the judge, minister or mag- istrate and the attending witnesses, that they take each other as husband and wife; and in every case there shall be at least two witnesses present, besides the person perform- ing the ceremony. Certificate. — ^Whenever a marriage shall have been sol- emnized, the person solemnizing the same shall give to each of the parties, if required, a certificate thereof, specifying therein the names and residences of the parties, and of at least two witnesses present, and the time and place of such marriage, and where the consent of the parent or guardian is necessary, stating that the ssftne was duly given. 532 LAW ENCYCLOPEDIA. Recording. — The statute also provides for the filing and recording of certificates of marriage, in a manner substan- tially similar to that prescribed by the California statute. Penalty. — It is further provided, that if any person shall undertake to join others in marriage, knowing that he is not lawfully authorized so to do, or knowing to any legal im- pediment to the proposed marriage, he shall, on conviction, be fined in any sum not exceeding three hundred dollars. Marriage not to bs Invalid, vrhen. — ^No marriage solemn- ized before any person professing to be a judge, justice or minister, shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of jurisdiction or authority in such supposed judge, justice or minister provided, the marriage be consummated with a full belief on the part of the persons so married or either of them, that they have been lawfully joined in mar- riage. lUegitimate Children. — Illegitimate children become le- gitimized by the subsequent marriage of their parents with each other. Friend or Qualcer. — All marriages solemnized among the people called "friends" or " quakers," in the form hereto- fore practised and in use in their meetings, shall be good and valid. DOWEE. The Common Law Right of Dovrer is retained, and by the statutes of Oregon, it is provided, that : Wido'w entitled to Dower. — The widow of every de- ceased person shall be entitled to dower or the "se, during her natural life, of one-third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof. The Widow shall Da entitled to Dower out of lands of the husband, mortgaged before marriage, as against every person, except the mortgagee and those claiming under him. MAKEUGE. 533 Right may be Barred. — A married woman may bar hei right of dower, in any estate conveyed by her husband or by his guardian, if he be a minor, by joining in the deed of conveyance and acknowledging the same according to law. A Woman may also be Barred of her dower in all the lands of her husband, by a jointure settled on her, with her assent before the marriage : provided, such jointure consists of a freehold estate in lands, for the life of the wife at least, to take effect in possession or profit, immediately on the death of her husband. Woman out of State. — A woman being an alien, shall not on that account, be barred of her dower; and any woman residing out of the state shall be entitled to dower of the lands of her deceased husband, lying in this state, of which her husband died seized, and. the same may be assigned to her or recovered by her, in like manner as if she and her deceased husband had been residents within the state at the time of his death, Do-wer in Certain Cases. — It is further provided by the statute relating to marriage and divorce, that when the mar- riage shall be dissolved by the husband being sentenced to imprisonment, and when a divorce shall be ordered for the cause of adultery, committed by the husband, the wife shall be entitled to her dower in his lands in the same manner as if he were dead; but she shall not be entitled to dower in any other case of divorce. Whenever an Order of Divorce from the bonds of matrimony is granted by a court of competent authority, such order shall fully and ccynpletely dissolve the mar- riage contract as to both parties. And in all suits for a divorce, brought by a female, if a divorce be granted, the court may for just and reasonable cause, change the name of such' female, who shall thereafter be !tnown and called by such name as the court shall, in its order or decree, appoint. Certificate to be Filed. — It is further provided, that any person who shall join any parties in marriage, shall file a state of Nevada, county of 534 LAW ENCYCLOPEDIA. certificate thereof in the office of the clerk of the proibate court of the county in which such persons were joined in marriage, which certificate shall be recorded by the clerk and a certified copy thereof shall be evidence of such mar- riage. Will by an Unmarried Woman. — ^A will by an unmarried woman shall be deemed revoked by her subsequent mar- riage. Marriage of Executrix. — The marriage of an executrix extinguishes her powers and the letters will thereupon be revoked. FOBMS. Marriage Certificate. POBM rOK NEVADA. ..! This is to certify that the undersigned, a justice of the peace of said county [" minister of the gospel" or "judge," as the case may be], did on the day of , A.D. 18 . . , join in lawful wedlock, and with their mutual consent, in the presence of and , wit- nesses. , Justice of the Peace. FOBM FOB OBEGON. State of Oregon, 1 county of ) This is to certify that the, undersigned minister ["priest" or "judicial of&cer, "as the case may be ], by authority of a license, bearing date the ... of . . . , 18 . . , and issued by the county clerk of the county of ... , did on the . . . day of 18 . . , at the house of , in the county and state aforesaid, join in lawful wedlock, of the county of and state of , and , of the county of and state of with their mutual assent, in the presence of and , witnesses. Witness my hand ["judge," "justice of the peace," "min- ister " or " priest," as the -case may be]. Certificate of Marriage. This is to certify, that the rite of holy matrimony was celebrated between of county, California, and , of the same place, on the .... day of 18. ., at , by me according to the laws of the state of ...1,18... Mimster of church, judge or justice, as the case may be. Witnesses: MAEEIAGE, FOKMS OF. 535 Form of Marriage Service. , will you Have this ■woman to be your .... wife, to live together in the estate of matrimony; will you love her, comfort her, honor and keep her, in sickness and in health, and forsaking all others keep thee only unto her, BO long as you both do live? [Answer] will you have this man to be yotir .... husband, to live together in the estate of matrimony; will you obey him, love him, honor ani keep him, in sickness and in health, and forsaking all others, keep thee only nnto him, so long as you both do live ? [Answer] Then, by virtue of the authority in me vested by the laws of the state of I now pronounce you man and wife. Marriage Settlement. This indenture, made this' day of , in the year of our Lord, one thousand eight hundred and , between , of the county of baker, party of the first part; , of the same place, spin- ster, party of the second part, and and , both of the same place, merchants, parties of the third part: Whereas, a marriage is intended to be solemnized between the said and the said , and in consideration of such intended marriage the said parties have agreed to bring into settlement, for their benefit and for that of the issue of the said intended marriage, the property following, that is to say: The said hath agreed so to bring into settlement [here specify what property the husband brings in]. And the said hath agreed so to bring into settlement [here specify what property the wife brings in]. And whereas, by two several indentures of assignment respectively, being even date herewith [or as the case may be[ the said parties hereto of the first and second parts, have conveyed, assigned, transferred and set over, all and singular the said property to the parties hereto of the third part, as trustees, for the trusts and purposes hereinafter mentioned: Now, therefore, this inden- ture witnesseth, and the parties hereto of the third part, at the request and by and with the direction and consent of the said parties hereto of the first and second parts, do hereby respectively covenant, declare and agree, to and with the last-named parties, their executors, administrators and assigns, that they, the said parties hereto of the third part and the survivors of them, and the executors, administrators and assigns, of such survivor shall and will stand possessed of and interested in the said property so respectively assigned to them as aforesaid: To the uses upon the trusts, and to and for the ends, intents and purposes, hereinafter declared : that is to say, upon trust when and as they the said trustees shall, from time to time receive, or become en- titled to receive, the said property, either to continue the same in its then present state, or, from time to time, call in and convert the same into money, and invest the proceeds thereof in any government, state or real, security in 536 LAW ENCYCLOPEDIA. the United States of America, and, from time to time, to vary the investment thereof, as aforesaid, at their or his direction; but every such investment or variation to be so made as expressed, to be from time to time made with the consent and by the direction of the said , if then living, and upon trust that they the said trustees do and shall stand possessed of the said se- curities, to be so from time to time standing iu their or his name or names as aforesaid; and of the interest, dividends, income and annual proceeds, thereof, upon trust; to pay such interest, dividends, income and annual proceeds, from time to time, to the said , during her hf e, for her sole and separate use, and if she were sole and unmarried, apart from the said , her intended husband, and not to be, in any manner, subject to his debts, control or engagements, but without power to her, the said to anticipate, charge or incumber, the same. And from and after the decease of her, the said , if the said shall survive her, then, upon trust, to pay the same interest, dividends, income and annual proceeds, to him, the said during his life. And from and after the decease of the survivor of the eaid two several parties, then to stand possessed of the principal of the game stocks, funds and securities, in trust for the child or children, if any of the said intended marriage, or for any issue of any such child or children who, at the time of the appointment hereinafter mentioned, shall have died leaving issue, then living, to be divided between or amongst them; if more than one, in such parts; shares or proportions, and to be vested and payable, at such time or times, and in such manner, as the said and shall, by any deed or deeds executed by them, or as the survivor of them shall, by any deed or deeds executed by him or her, or by his or her last wiU and testament, or by any codicil thereto, from time to time, respectively direct, limit or appoint: provided, nevertheless, that such powers shall not be exer- cised in favor of the issue of any such deceased child or children to an extent exceeding the share that their deceased parent or parents would have taken under these presents in default of any exercise of their powers of appointment by the said and , or the survivor of them; and in default of the exercise of the aforesaid powers of appoiutment, or either or any of them, or so far as such exercise, if incomplete, shall not extend, then it is hereby further declared and agreed that they, the said trustees, shall stand possessed of the aforesaid trust funds upon trust for aU and every the chil- dren of the said intended marriage, to be equally divided between or amongst them, if more than one; and if one, the whole to go to such one child, the por- tions of such children to be vested in and payable to them, and transmissible to their issue, if any, on their respectively attaining the age of twenty-one years, or being married, whichever shall first happen, with full power for the said trustees to apply the income of their expectant shares or any part there- of, for the maintenance or education, or for the advancement in the world of any such chUd or children respectively during their respective minorities- And in case there shall be no child or children of the said intended marriage who shall live to attain a vested interest of the principal of the said trust funds as aforesaid, then subject to the aforesaid life interest; and after the determination thereof respectively, the said trustees shall stand possessed of the said trust funds, as follows, to wit: As to the trust funds so brought into settlement and assigned to the said trustees by the said , in trust for MAEEIAGE, FOBMS OP. 537 the executors, admimstrators or assigns, of him, the said , in like manner as if he had then died unmarried. And as to the trust funds so brought into settlement and assigned to the said trustees by the said upon trust for the executors, administrators and assigns, of her, the said , in hke manner as if she, the said , had then died unmarried as aforesaid, with full power to her, the said , to dispose of her interest therein, by will or other testamentary writing, notwithstanding her coverture; and to and for no other use, trust, end, interest or purpose, whatsoever. And this indenture further witnesseth : That in consideration of the prem- ises and of the said intended marriage, the said and do hereby covenant to and with the trustees of these presents, that in case any other moneys, property or effects, exceeding the sum of dollars at any one time shaU at any time hereafter accrue to or devolve upon the said .... by any gift, devise, bequest or inheritance, at any time during the said marriage, that then, and in every such case, and so often as the same shall happen, she, the said , shall and wOl from time to time assign, and he, the said , shall and wiU concur with the said in as- signing the same unto the said trustees for the time being of these presents, to be held by them upon the trusts herein before declared concerning the prop- erty so brought into settlement by her, the said , as aforesaid, or Buoh and so many of them as shall be there subsisting, and capable of taking effect in Hke manner as if the same were originally brought into settlement as aforesaid. Provided, always, and it is hereby declared and agreed, that in case at any time the trustees hereby appointed or either of them, or any future trustee or trustees of these presents shall die, be desirous of being discharged from, or refuse, decline or become incapable, to act, in the trusts hereof, then, and in every such case, it shall and may be lawful to and for the said and , or to and for the survivors of them, or after the decease of such survivor, then to or for the surviving or continuing trustee for the time be- ing, or the executors or administrators of the last surviving trustee, by writ- ing, under their, his or her, hands or hand, to appoint a new trustee or trustees of these presents from time to time, so often as the same shall hap- pen, who shall thereupon act in the trusts thereof from time to time, either solely or jointly, with the surviving or continuing trustee or trustees for the time being, in the same manner and with the same powers as if hereby origi- nally appointed, the said trust funds to be therefrom assigned and transfer- red so as to become vested in the then trustee of these presents, accordingly as often as the same shall happen: provided, also, and it is hereby further declared, that the said trustees, and other the trustee or trustees, for the time being of these presents, shall each of them be accountable only for his own acts and deeds and for such part of the said trust estate as shall actually come to his hands, and that he and they respectively shaU not be answerable by reason of the failure of any banker or other agent, or for the insufficiency. or failure of any security upon which the said trust estate, or any part thereof, shall be invested : provided, such securities shall be of the nature and kind hereinbefore mentioned, or for any other loss that may arise in the trusts aforesaid, save only so far as the same shaU arise from his or their own will- ful negligence of default respectively. 538 LAW ENCYCLOPEDIA. In ■witness ■whereof, the parties to these presents have here^anto set theii Lands and seals the day and year first above ■written. [L.S.3 [L.S-] ti-s.] Sealed and delivered in the presence of Assignment under preceding Form. This indenture, made this day of , in the year of our Lord one thousand eight hundred and , between , of the county of , state of , party of the first part, and and , both of the same place, parties of the sepond part : Whereas, a marriage has been agreed upon and is about to be solemnized between the said and , of the of aforesaid, and upon the treaty for the said marriage, it was agreed that all the property hereinafter men- tioned should be assigned to the parties hereto of the second part, upon the trusts hereinafter declared concerning the same. No^w this indenture •witnesseth, that in pursuance of said agreement and in consideration of the premises, he, the said , doth hereby assign, transfer and set over, unto the said parties of the second part, their executors, administrators an^ assigns, aU that [here give a fuU description of the property], and all the right, title, trust, property, claim and demand, ■whatsoever of him, the said , of , in and to, the premises hereby assigned, or expressed and in- tended so to be, and every part thereof, together ■with full po-wer and author- ity to ask, demand, sue for, recover and receive, and give effectual discharges for the premises and every part thereof. To have, hold, receive and take, the premises hereby assigned or intended so to be to them, the said parties her«- to of the second part, their executors, administrators or assigns. Upon trust to stand possessed of the said premises upon the trusts, and to and for the ends, intents and purposes, and •with, under and subject to, the powers, pro- visions, declarations and agreements, of and concerning the said premises de- clared by and contained in a certain other indenture bearing even date here- with, and made between the said of the first part, the said of the second part, and the said and of the third part being the settlement made upon the marriage of the said and , and he, the said , doth hereby irrevocably appoint the said parties hereto of the second part or the survivor of them, or the executors, administrators and assigns, of such survivor, his lawful attorney and attor- neys to receive, collect and get in, the said premises so assigned, and each and every part thereof, and for him and in his behalf to give, sign and exe- cute, full and sufScient receipts, releases, acquittances or other discharges for the same, and every part thereof, and ■which it is hereby declared and agreed shall fuUy and effectually release and discharge the person or persons paying the same from aU liability to see to the application of the moneys therein expressed to be received. And lastly, the said , party hereto of the first part, doth hereby covenant, promise and agree, ■with and to the said par- MAEEUGE, FOEMS OF — MEASUEE OF DAMAGES. 539 ties of the second part, their executors, administrators and assigns, that he the said party hereto of the first part, shall and will, -whenever theretiuto re- quested, mftke, execute nnd do, all and every such assignments, assurances, acts, deeds, matters and things, for the further and better assigning, assuring and vesting, the said premises hereby assigned as aforesaid unto and in them the said parties hereto of the second part, and enabling them to receive and collect the same, to be held by them upon the trusts aforesaid as by the said parties of the second part shall from time to time be reasonably desired, ad- vised or required. In witness whereof, the said party of the first part to these presents hath hereunto set his hand and seal the day and year first above written, , [l-s.] Sealed, and delivered in the presence of rN. B.— It must be expresBly remembered, that In all Bucb agreements where It Is poB- Bibla that real estate or the title to real estateis or ma; be involved, the agreements should be acknowledged before a notary.] MEASURE OF DAMAGES. Measure of Damages. — A rule or method by which the damage sustained is to be estimated or measured. The Defendant is to malie compensation for all the natural and proximate consequences of his wrong, but not for sec- ondary or remote consequences. There are Cases in which this principle of compensation is departed from : as, when exemplary damages are awarded, OT double or treble damages are allowed by statute. In general, the law seeks to give compensation. The measure of this compensation has been, in the case of protest for non-payment of bills of exchange, definitely fixed by statute in many of the states. The rate of Damages, to be paid to the holder of a bill of exchange which has been dishonored as fixed by statute, is as follows : Alabama. — On inland bills, ten per cent., and on foreign bills, fifteen per cent., on the sum drawn for. These dam- ages are in lieu of all charges, except costs of protest in- curred previous to and at the time of giving notice of non- payment; but the holder may recover legal interest on the amount of the bill and damages, from the time at which payment was demanded and costs of protest. The same 540 LAW ENCYCLOPEDIA. damages are allowed on protest for non-acceptance ; but interest is recoverable on the amount of the bill only. Arkansas. — If the bill has been drawn on any person at any place within the state, at the rate of two per cent, on the principal sum specified in the bill. If it be drawn on any person and payable in Alabama, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, Indiana, Illinois, or IMissouri or at any point on the Ohio river, at the rate of four per cent. on the principal sum. If the bill has been drawn on any person, and payable at any other place within the United States, at the rate of five per cent, on the principal sum. If drawn on any person, and payable at any port or place beyond the United States, at the rate of ten per cent, on the sum specified in the bill. ^ California.— See Bills and Notes. Conneoticut. — ^When drawn on another place in the United States. When drawn upon persons in the city of Neiu York, two per cent. When in other parts of the state of New York, on the New England States [other than this], Neiu Jersey, Pennsylvania, Delaware, Maryland, Virginia or the District of Columbia, three per cent. When on persons in North or South Carolina or Ohio, five per cent. On other states, ter- ritories or districts, in the United States, eight per cent, on the principal sum in each case, with interest on the amount of such sum, with the damage after notice and demand. When drawn on persons residing in Connecticut, no damages are allowed. Dela-ware. — The damages on bills drawn on any person beyond seas, and returned unpaid with legal protest, are, as to all concerned, twenty per cent, on the contents of the bill. Florida. — Damages on foreign protested bills are at the rate of five per cent. Georgia. — No damages are allowed on protested bills drawn in the state on a person in the state, except that on bank biUs, ten per cent, damages are allowed for refusal to pay in specie. On bills drawn or negotiated within the MEASUEE OF DAMAGES. 541 State on persons out of the state, but within the United States, five per cent., and interest is allowed. On bills drawn on a person out of the United States, ten per cent damages and postage, protest and necessary expenses ; also the premium, if any, on the bill; but if a discount, the discount must be deducted. Idaho.— See Bills and Notes Illinois. — On foreign bills protested for non-acceptance or non-payment, legal interest on the bill from the time it ought to be paid, with ten per cent, damages in addition and charges of protest. On bills payable within the United States or their territories, but out of the state, the same rule appKes, except that the damages are only five per cent. Indiana. — No damages are allowed on a bill drawn within the state on a person within the state. On a bill drawn for value on a person in another state, territory or district, five per cent, damages are recoverable ; and if on a person out of the United States, ten per cent. No interest or charges prior to protest are allowed ; but interest from date of pro- test may be recovered. No damages are recoverable of drawer or indorser beyond cost of protest, if the principal sum is paid on notice of protest and demand. Io"wa. — On bills drawn on a person out of the United States, or in California, Oregon, Utah or Neiu Mexico, ten per cent, damages, with interest from date of protest, are allowed. If drawn on a person in Iowa, Missouri, Illinois, Wisconsin or Minnesota, three per cent, with interest. If drawn on a person in Arkansas, Louisiana, Mississippi, Ten- nessee, Kentucky, Indiana, Ohio, Virginia, the District of Columbia, Pennsylvania, Maryland, New Jersey, New York, Massachusetts, Rhode Island or Connecticut, five per cent, and interest. Kentucky. — On bills drawn on a person at any place within the United States, no damages are allowed. Bills drawn on a person out of the United States, and protested for non-acceptance or non-payment, bear interest at the rate of ten per cent, per year from the date of protest for no 642 LAW ENCYCLOPEDIA. longer than eighteen months, unless payment be sooner de- manded from the party to be charged. Such interest is then recoverable up to the time of judgment ; and the judg- ment bears legal interest. No other damages are allowed. Louisiana. — On protest for non-acceptance, or for non- payment of bills drawn on foreign countries, ten per cent, is allowed ; on biUs drawn in other states of the United States, five per cent. These damages are in lieu of interest and all other charges incurred previous to time of giving notice of non-payment ; but the principal and damages bear interest thereafter. Maine. — Damages are allowed as follows, in addition to interest : On bills for one hundred dollars or more, drawn, accepted or indorsed, in the state, at a place seventy-five miles distant from the place where drawn, one per cent. ; on bills for any sum drawn, accepted or indorsed, in the state, if payable in New York, or in any state north of it, except Maine,, three per cent.; if payable in any Atlantic state south of New York and north of Florida, six per cent. ; if payable in any other state, nine per cent. Maryland. — ^No damages are allowed when the bill is drawn in the state on another person in Maryland. When it is drawn on any person in any other of the United States, eight per cent, damages on the amount of the bill are allowed, and an amount to purchase another bill at the cur- rent exchange, and the interest and losses of protest. If the bill be drawn on a foreign country, fifteen per cent., damages are allowed, and the expense of purchasing a new bill, as above, besides interest and costs of protest. Massachusetts. — When a bill drawn or indorsed within the state, and payable without the limits of the United States [excepting places in Africa, beyond the Cape of Good Hope, and places in Asia, and the islands thereof], is pro- tested for non-acceptance or non-payment, the party liable on such bill shall pay the same at the current rate of ex- change at the time of the demand, and fiye per cent, dam- ages, with interest, from date of protest, in full of aU damages, charges and expenses. MEASURE OF DAMAGES. 543 When the Bill is payable at a place in Africa, beyond the Gape, of Good Hope, or at any place in Asia or the islands thereof, the party liable shall pay the same at the par value, with twenty per cent, in full of all damages, interest and charges. When the Bill is drawn payable without the state, but within the United States, damages are as follows : If pay- able in Maine, JSfeiv Hampshire, Vermont, Rhode Island, Gon- necticut or JSfew York, two per cent. ; if in New Jersey, Penn- sylvania, Maryland or Delaware, three per cent.; if in Vir- ginia, North Gordlina, South Carolina, Georgia or the Dis- trict of Golumhia, four per cent. ; if in any other of the states or territories of the United States, five per cent. When the Bill is payable within the state, if it is for less than one hundred dollars, and is payable at a place not less than seventy-five miles distant from the place where it is drawn or indorsed, two per cent, damages are payable. Michigan. — When a bill is drawn in the state on a person in the state, no damages are allowed. When Dra-wn or indorsed within the state, and payable out o{ it, within the United States, if payable within the states of Wisconsin, Illinois, Indiana, Pennsylvania, Ohio or New York, three per cent, interest on the contents of the bill, and charges, are allowed ; if payable within the states of Missouri, Kentucky, Maine, New Hampshire, Vermont, Mas- sachusitts, Rhode Island, Connecticut, Neio Jersey, Delaware, Maryland, Virginia or the District of Columbia, five per cent.; if payable elsewhere in the United States, out of Michigan, ten per cent* Minnesota. — When a bill payable out of the United States is protested for non-acceptance or non-payment, the party liable shall pay the bill at the current rate of exchange and ten per cent, damages, with interest from date of pro- test, in fuU of all damages, charges and expenses. When the Bill is drawn on a person out of Minnesota, but within the United States, the party shall pay the bill, with 544 LAW ENOTOLOPBDIA. interest, and five per cent, damages, together with costs and charges of protest. Mississippi. — Bills drawn on a person out of the state, but within the United States, draw five per cent, damages, and interest on the principal ; bills payable out of the United States, ten per cent., besides interest. In all cases the holder is entitled to all costs and charges. No dam- ages are allowed on domestic bills. Missouri. — On bills drawn on a person within the state, the damages are four per cent.; when on a person in another state or territory of the United States, ten per cent. ; when on a person out of the United States, twenty per cent. Nevada. — See Bills and Notes. Nesv York. — Upon bills drawn or negotiated within the state upon any person at any place within the six states east of New York or in New Jersey, Pennsylvania, Ohio, Dela- ware, Maryland, Virginia or the District of Columbia, the dam- ages are three per cent. If drawn upon a person at a place within North or South Carolina, Georgia, Kentucky or Ten- nessee, five per cent. If upon any person in any other state or territory of the United States, or at any other place on or adjacent to this continent, and north of the equator, or in any British or foreign possessions in the West Indies or elsewhere in the western Atlantic Ocean or in Europe, ten per cent. These damages are in lieu of interest, charges of protest and all other charges, incurred previous to, and at the time of, giving notice of non-acceptance or non- payment. But the holder is entitled to interest upon the aggregate amount of the principal sum and damages from time of notice of the protest. If the contents of the biU are expressed in the money of the United States, the amount due and the damages for non-payment are to be ascertained and determined without reference to the rate of exchange existing between New York and the place on which the bill is drawn. If in the currency of any foreign country, then the amount due, exclusive of the damages. meaSuke of damages. 645 is to be ascertained by the rate of exchange, or the value of such foreign currency, at the time of the demand of payment. These Damages are only recoverable by a holder "who has purchased the bill or some interest therein for a valua- ble consideration. North Carolina. — On bills drawn on a person in any other state or territory of the United States, three per cent, damages are allowed ; if drawn on any other place in North America, except the northwesi coast or on any of the West India or Bahama Islands, ten per cent.; if on the Island of Madeira, the Canary Islands, the Azores, the Cape Verde Islands, or in any other place or state in Europe or in South America, fifteen per cent. ; if on any other part of the world, twenty per cent. In all cases interest is recov- erable from maturity of the bill. Ohio. — No damages are allowed on bills drawn on any person within the state. Oregon. — See BrLLS and Notes. Pennsylvania. — The following damages are allowed on protest of a bill of exchange for non-payment. They are in lieu of interest and all other charges, except charges of protest, to the time when notice of protest is given and de- mand of payment made, but are in addition to the charges of protest and interest on the amount of principal, dam- ages and charges from the time of such notice and de- mand. If the bill is drawn on a person in any place in the United States or the territories, except , California [Upper or Lower], New Mexico and Oregon, five per cent. ; if upon any place on the west coast of South America, fifteen per cent. ; if upon any place in China, India, or other parts of Asia or Africa, or islands in the Pacific Ocean, twenty per ■ cent. ; if upon any other part of the world [including Cal- ifornia, Neiv Mexico and Oregon, above excepted], ten per cent. Tho Amount of the bill and damages are ascertained by the rate of exchange or value of the currency mentioned in ■ 35 546 LAW ENCTCLOPEDU. the bill at the time of notice of protest and demand of pay- ment. Rhode Island. — On foreign bills drawn or indorsed within the state, and returned from any place without the United States, protested for non-acceptance or non-payment, the damages are ten per cent, and charges of protest, and the bill carries interest at six per cent, from the date of pro- test. The same rule applies to inland bills, except that the damages are five per cent. only. South Carolina. — This state does not appear to have any statute on the subject. The courts hold that whatever .sum is paid as discount is recover&ble, if it does not exceed the current rate of exchange ; and on protest of billd, foreign or domestic, ten per cent, damages is allowed. Tennessee. — On hilln payable out of the state and pro- tested for non-payment, damages in addition to interest and charges of protest are recoverable as follows : If the bill was drawn on a person in any of the states Texcept Tennes- see] or territories of the United States, three per cent. ; if on any other state or place in North America, bordering upon the Ghd/ of Mexico, or in any of the West Lviia Islands, fifteen per cent.; if on any other part of the world, twenty per cent. Texas. — The holder of any protested draft or bill of ex- change drawn within the state, and payable beyond the limits of it, may recover ton per cent, as damages, with interest and costs of suit. This does not embrace drafts drawn by persons other than merchants upon their agents or factors. Virginia. — When a bill of exchange drawn or indorsed within this state is protested for non-acceptance or non- payment, there shall be paid by the party liable for the principal of such bill, in addition to what else he is liable for, damages upon the principal at the rate of three per cent., if the bill be payable out of Virginia, and within the United States ; at the rate of ten per cent, if the biU be payable without the United States. MEASUKE OF DA3IAGES — MEBGEK. 547 Wisconsin — On bills drawn payable without the United States, damages are allowed at the rate of five per cent., with interest on the contents of the bill from the date of protest. These damages and interest are in full of all dam- ages, charges and expenses. On bills drawn payable out of the state, and in any state or territory of the United States adjoining the state, damages at the rate of five per cent, are allowed, with interest on the bill according to its tenor, and costs and charges of protest. On bills drawn payable out of the state, but within some state or territory of the United States not adjoining the state, the damages are ten per cent. ; with interest and charges as last men- tioned. MENACE. Menace. — A threat; a declaration of an intention to cause evil to happen to another. When Menaces to do an injury to another have been made, the party making them may, in general, be held to bail to keep the peace ; and, when followed by any incon- venience or loss, the injured party has a civil action against the wrong-doer. See Magistrate. MERGER. Merger. — ^The absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased. When a Man commits a great crime, which includes a lesser, the latter is merged in the former. Murder, when committed by blows, necessarily includes an assault and battery ; a battery, an assault ; a burglary, when accompanied with a felonious taking of personal prop- erty, a larceny. In all these and similar cases, the lesser crime is merged in the greater. Where one offense is of the same character with the other, there is no merger ; as, in the case of a conspiracy to commit a misdemeanor and the subsequent commission of the misdemeanor in pursu- 548 LAW ENCYCLOPEDIA. ance of the conspiracy, the two crimes being of equal de- gree, there can be no merger. Eights are said to be merged when the same person who is bound to pay is also entitled to receive. MERITS. Merits. — A defense upon the merits is one that rests upon the justice -of the case, and not upon technical grounds only. The statute of limitation, as a defense to a cause of action, is technical, and not a defense on the merits. A denial of the cause of action, or the plea of accord and satisfaction and the like, is a defense on the merits. MIDDLEMAN. Middleman. — One who has been employed as an agent by a principal, and who has employed a sub-agent under him, by the authority of the principal, either express or implied. He is not, in general, liable for the wrongful acts of the sub-agent, the principal being alone responsi- ble. If goods be delivered from a ship by the seller to the wharfinger, to be by him forwarded to the purchaser, who has been appointed by the latter to receive them, or, if goods be sent to a packer for or by order of the vendee, the wharfinger and packer are middlemen. MINIKG. Mining. — ^The United States is the owner of all mineral lands, and consequently of all minerals therein, except where the land containing them has passed by grant or sale to private persons. The occupants of mines on the public domain hold against every person except the United States, and at the will of the United States. This is the extent of all titles to mineral lands, except where they are covered by a grant or sale by the United States or the Eepublic of Mexico. See MifONa Laws of the United States. MINING LAWS. 649 MININQ LAWS OF THE UNITED STATES. [Mining Statute approved July 26, 1866.] Jin act granting the right of way to ditch and canal owmrs over tlie public lands, and for other purposes. Sections 1, 2, 3, 4. [Repealed.] Sec. 5. That, as a further condition of sale, in the ab- sence of necessary legislation by Congress, the local legis- lature of any state or territory may provide rules for working mines, involving easements, drainage, or other necessary means to their complete development ; and those condi- tions shall be fully expressed in the patent. Sec. 6. [Repealed.] Sec. 7. That the President of the United States be, and is hereby, authorized to establish additional land dis- tricts, and to appoint the necessary ofiScers under existing laws, whenever he may deem the same necessary for the public convenience in executing the provisions of this act. Sec. 8. That the right of way for the construction of highways over public land, not reserved for public uses, is hereby granted. Sec. 9. That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same ; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowl- edged and confirmed : Provided, however, that whenever, after the passage of this, act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Sec. 10. That whenever, prior to the passage of this act, upon the lands heretofore designated as mineral lands, which have been excluded Ii-om survey and sale, there have 550 LAW ENCYCLOPEDIA. been homesteads made by citizens of the United States, or persons who have declared their intention to become citi- zens, which homesteads have been made, improved and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or copper discovered, and which are properly agricultural lands, the said settlers or owners of such homesteads shall have a right of pre-emption thereto, and shall be entitled to pur- chase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or said parties may avail themselves of the provisions of the act of Congress, approved May twenty, eighteen hundred and sixty-two, entitled "An act to secure homesteads to actual settlers on the public domain," and acts amendatory thereof. Sec. 11. That upon the survey of the lands aforesaid, the Secretary of the Interior may designate and set apart such portions of the said lands as are clearly agricultural lands, which lands shall thereafter be subject to pre-emp- tion and sale as other lands of the United States, and sub- ject toall the laws and regulations applicable to the same. [Mining Statute approved July 9, 1870.] An act to amend " An act granting the right of way to ditch and canal omners over the public lands, and for other purposes." That the act granting the right of way to ditch and canal owners over the public lands, and for other purposes, ap- proved July twenty-six, eighteen hundred and sixty-six, be, and the same is hereby amended, by adding thereto the following additional sections, numbered twelve, thirteen, fourteen, fifteen, sixteen, and seventeen, respectively, which shall hereafter constitute and form a part of the aforesaid act. Sec. 12. That claims usually called "placers," includ- ing all forms of deposit; excepting veins of quartz, or other rock in place, shall bo subject to entry and patent under this act, under like circumstances and conditions, and upon similar proceedings as are provided for vein or lode claims; MINING LAWS. 551 Provided, that -where tho lands have been previously siir- veyed by the United States, the entry, in its exterior limits, shall conform to the legal subdivisions of the public lands, no further survey or plat in such case being required, and the lands may be paid for at the rate of two dollars and fifty cents per acre; Provided, further, that legal subdivisions of forty acres may be subdivided into ten-acre tracts; and that two or more persons, or associations of persons, hav- ing contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof ; And, provided further, that no location of a placer claim, hereafter made, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys: and nothing in this section contained shall defeat or impair any honajide pre-emption or homestead claim upon agricultural lands, or authorize the sale of the improvements of any honajide settler to any purchaser. Sec. 13. That where said person or association, they and their grantors, shall have held and worked their said claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or ter- ritory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this act, in the absence of any adverse claim ; Provided, how- ever, that nothing in this act shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the is- suance of a patent. Sec. 14. That all ex-parte affidavits required to be made under this act, or the act of which it is amendatory, may be verified before any officer authorized to administer oaths within the land district where the claims may be sit- uated. Sec. 15. That registers and receivers shall receive the same fees for services under this act as provided by law for like services under other acts of congress; and that effect 552 LAW ENCYCLOPEDIA. shall be given to the foregoing act according to such regu- lations as may be prescribed by the commissioner of the Genei-al Land Office. Section 16. That so much of the act of March third, eighteen hundred and fifty-three, entitled "an act to pro- vide for the survey of the public lands of California, the granting of pre-emption rights, and for other purposes," as provides that none other than township lines shall be surveyed where the lands are mineral, is hereby repealed. And the public surveys are hereby extended over all such lands; provided, that all subdividing of the surveyed lands into lots of less than one hundred and sixty acres may be done by county and local surveyors at the expense of the claimants; and, provided further, that nothing herein con- tained shall require the survey of waste or useless land. Sec. 17. That none of the rights conferred by sections five, eight, and nine of the act of which this is amendatory shall be abrogated by this act; and the same are hereby ex- tended to all public lands afi'ected by this act; and all pa- tents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the ninth section of the act of which this act is amenda- tory. But nothing in this act shall be construed to repeal, impair, or in any way affect the provisions of the "act granting to A. Sutro the right of way and other privileges to aid in the construction of a draining and exploring tun- nel to the Comstock lode, in the state of Nevada," approved July twenty -fifth, eighteen hundred and sixty-six. An Act to promote the development of the mining resources of the United States. [Mining Statute approved May 10, 1872.] That all valuable mineral deposits in land belonging to the United States, both surveyed and unsurveyed, are here- by declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States, and those wh& MINING LAWS. 553 have declared their intention to become such, under regu- lations prescribed by law, and according to the local cus- toms or rules of miners, in the several mining districts, so far as the same are applicable and not inconsistent with the laws cf the United States. Sec. 2. That mining claims upon veins or lodes of quartz or other rock in place, bearing gold, silver, cinna- bar, lead, tin, copper, or other valuable deposits Iieretofore located, shall be governed, as to length along the vein or lode, by the customs, regulations, and laws in force at the date of their location. A mining claim located after the passage of this act, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vain at the surface, nor shall any claim be limited, by any mining regulation, to less than twenty- five feet on each side of the middle of the vein at the sur- face, except where adverse rights existing at the passage of this act shall render such limitation necessarj'. The end lines of each claim shall be parallel to each other. Sec. 3. That the locators of all mining locations hereto- fore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists at the pas- sage of this act, so long as they comply with the laws of the United States and the state, territorial, and local regulations, not in conflict with said laws of the United States, governing their possessory title, shall have the ex- clusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges, throughout their entire depth, the top or apex of v/hich lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpedicular in their course down- ward as to extend outside the vertical side-lines of said 654 LAW ENCTCLOPEDU. surface locations : provided, that their right of possession to such outside parts of such veins or ledges shall be confined to siTch portions thereof as lie between vertical planes drawn downward las aforesaid, through, the end-lines of their loca- tions, so continued in their own direction that such planes will intersect such exterior parts of said veins or ledges. And, provided further, that nothing in this section shall au- thorize the locator or possessor of a vein or lode which ex- tends, in its downward course, beyond the vertical lines of his claim, to enter upon the surface of a claim owned or possessed by another. Sec. 4. That where a tunnel is vnp. for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel, on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discov- ered from the surface; and locations on the lines of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable dili- gence, shall be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of said tunnel. Sec. 5. That the miners of each mining district may make rules and regulations, not in conflict Avith the laws of the United States, or with the laws ©f the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following re- quirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims, located by reference to some natural object or permanent monument, as will identify the claim. On each claim located after the MININa LA.W3. 565 passage of this act, and until a patent shall have been is- sued therefor, not less than one hundred dollars worth of labor shall be performed, or improvements made during each year. On all claims located prior to the passage of this act, ten dollars worth of labor shall be performed or improvements made each year for each one hundred feet in length along the vein, until a patent shall have been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim ; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be opened' to reloca- tion in the same manner as if no location of the same had ever been made : provided, that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after such failure and before such lo- cation. Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required by this act, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing, or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication, such delinquent should fail or refuse to contribute his proportion to comply with this act, his inter- est in the claim shall become the property of his co-owners who have made the required expenditures. [See act of June 6, 1874, and note, supra.] Sec. 6. That a patent for any land claimed and located for valuable deposits may be obtained in tlie following manner: any person, association, or corporation, author- ized to locate a claim under this act, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this act, may file in the proper land oflBce an application for a patent, under oath, showing such compliance, together with a plat and field-notes of the claim or claims in common, made by or under the direction of the United States surveyor-general, showing accurately the boundaries of the claim or claims, which shall be dis- 556 LAW ENCYCLOPEDIA. ' tinctly marked by monuments on the grounds, and shall post a copy of such plat, together with a notice of such ap- plication for a patent, in a conspicuous place on the land embraced in such plat, previous to the filing of the applica- tion for a patent, and shall file an affidavit of at least two persons, that such notice has been duly posted as aforesaid, and shall file a copy of said notice iu such land office, and shall thereupon be entitled to a patent for said land in the manner following: The register of the land office, upon the filing of such application, plat, and field-notes, notices, and affidavits, shall publish a notice that such application has beeu made, for the period of sixty days, in a newspaper to be by him designated as published nearest to said claim; and he shall also post such notice iu his office for the same period. The claimant, at the time of filing his application, or at any time thereafter, within the sixty days of publica- tion, shall file with the register a certificate of the United States surveyor-general that five hundred dollars worth of labor has been expended, or improvements made upon the claim by himself or grantors; that the plat is correct, with such further description by such reference to natural ob- jects or permanent monuments as shall identify the claim, and furnish an accurate description to be incorporated in the patent. At the expiration of the sixty days of publica- tion, the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during said period of publication. If no adverse claim shall have been filed with the register and the re- ceiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the ap- plicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists, and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with this act. Sec. 7. That where an adverse claim shall be filed dur- ing the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nat- ure, boundaries, and extent of such adverse claim : and all MINING LAWS. 557. proceeflings, except the publication of notice, and making and filing of the affiiluvit thereof, shall be stajed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligance to find judgment; and a failure to do .so shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving fur- ther notice, file a certified copy of the judgment-roll with the register of the land office, together with the certificate of the surveyor-general that the requisite amount of labor has been expended, or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the com- missioner of the general land office, and a patent shall issue thereon for the claim, or such portion thereof as the ap- plicant shall appear, from the decision of the court, to rightly possess. If it shall appear, from the decision of the court, that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the cer- tificate and description by the surveyor-general, whereupon the register shall certify the proceedings and judgment-roll to the commissioner of the general land office, as in the preceding case, and patents shall issue to the several par- ties according to their respective rights. Proofs of citizen- ship under this act, or the acts of July twenty-sixth, eiglateen hundred and sixty-six, and July ninth, eighteen hundred and seventy, in the case of an individual, may con- sist of his o\wi affidavit thereof; and, in case of an associa- tion of persons unincorporated, of the affidavit of their au- thorized agent, made on his own knowledge, or upon infor- mation and belief, and in case, of a corporation organized 558 LAW- ENCYCLOPEDIA. under the laws of the United States, or of any state or terri- tory of the United States, by the filing of a certified copy of their charter or certificate of incorporation; and nothing herein contained shall be construed to prevent the aliena- tion of the title conveyed by a patent for a mining claim to any person whatever. Sec. 8. That the description of vein or lode claims, upon surveyed lands, shall designate the location of the claim with reference to the lines of the public surveys, but need not conform therewith; but where a patent shall be issued as aforesaid for claims upon unsurveyed lands, the surveyor- general, in extending the surveys, shall adjust the same to the boundaries of such patented claim, according to the plat or description thereof, but so as in no case to interfere with or change the location of any such patented claim. Sec. 9. That sections one, two, three, four and six of an act entitled " an act granting the right of way to ditch and . canal owners over the public lands, and for other purposes," approved July twenty-sixth, eighteen hundred and sixty- six, are hereby repealed, but such repeal shall not affect existing rights. Applications for patents for mining claims now pending may be prosected to a final decision in the general land office; but in such cases, where adverse rights are not affected thereby, patents may issue in pursuance of the provisions of this act; and all patents for mining claims heretofore issued under the act of July twenty-sixth, eigh- teen hundred and sixty-six, shall convey all the rights and privileges conferred by this act, where no adverse rights exist at the time of the passage of this act. Sec. 10. That the act entitled " an act to amend an act granting the right of way to ditch and canal owners over the public lands, and for other purposes," approved July ninth, eighteen hundred and seventy, shall be and remain in full force, except as to the proceedings to obtain a patent, which shall be similar to the proceedings prescribed by sec- tions six and seven of this act for obtaining patents to vein or lode claims; but where said placer claims shall be upon surveyed lands, and conform to legal subdivision, no fur- MINING LAWS. C59 tlier survey or plat shall be required, and all placer mining claims hereafter located shall conform as near as practica- ble with the United States system of public land surveys and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant; but where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands; provided, that proceedings now pending may be prosecuted to their final determination under existing laws; but the provisions of this act, when not in conflict with existing laws, shall apply to such cases; and, provided also, that where, by the segregation of miner- al land In any legal subdivision, a quantity of agricultural land less than forty acres remains, said fractional portion of agricultural land may be entered by any party qualified by law, for homestead or pre-emption purposes. Sec. 11. That where the same person, association, or corporation, is in possession of a placer claim, and also-a vein or lode included within the boundaries thereof, appli- cation shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case (subject to the provisions of this act and the act enti- tled "an act to amend an act granting the»right of way to ditch and canal owners over the public lands, and for other purposes," approved July ninth, eighteen hundred and seventy), a patent shall issue for the placer claim, including such vein or lodey upon the payment of fivei dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. " The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is described in the second section of this act, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim, which does not include an application for the vein or lode jlaim, shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession 560 LAW ENCYCLOPEDIA. of tbe vein or lode claim; but -where the existence of a vein or a lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral arid other de- posits within the boundaries thereof. Sec. 12. That the surveyor-general of the United States may appoint, in each land district containing mineral lands, as many competent surveyors as shall apply for appoint- ment to survey mining claims. The expenses of the survey of vein or lode claims, and the survey and .subdivision of placer claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The commissioner of the general land office shall also have power to establish the maximum charges for surveys and publication of notices under this act; and, in case of excessive charges for publi- ■ cation, he may d«signate any newspaper published in a land district where mines are situated, for the publication of mining notices in such district, and fix the rates to be charged by such paper; and, to the end that the commis- sioner may be fully informed on the subject, each applicant shall file with the register a sworn statement, of all charges and the fees paid by said applicant for publication and survey, together with all fees and money paid the register and the receiver of the land office, which statement shall be transmitted, with the other papers in the case, to the commissioner oi the general land office. The fees of the register and the receiver shall be five dollars each for filing and acting upon each application for patent or adverse claim filed, and they shall be allowed the amount fixed by law for reducing testimony to writing — when done in the land office, such fees and allowances to be paid by the re- spective parties — and no other fees shall be charged by them in such cases. Nothing in this act shall be construed to enlarge or affect the rights of either party in regard to any property in controversy at the time of the passage of MINING LAWS. 561 tins act, or of the act entitled "an act granting the right of way to ditch and canal owners over the public lands, and for other purposes," approved July twenty-sixth, eighteen hundred and sixty-six; nor shall this act affect any right acquired under said act; and nothing in this act shall be construed to repeal, impair, or in any way affect the, pro- visions of the act entitled ' ' an act granting to A. Sutro the right of way and other- privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the State of Nevada," approved July twenty-fifth, eighteen hundred and sixty-six. Sec. 13. That all affidavits required to be made under this act, or the act of which it is amendatory, may be veri- fied before any officer authorized to administer oaths within the land district where the claims may be situated, and all testimony and proofs may be taken before any such officer, and, when duly certified by the officer taking the same, shall have the same forco and effect as if taken before the register and receiver of the land office. In cases of contest as to the mineral or agricultural character of land, the testimony and proofs may be taken as herein provided, on personal notice of at least ten days, to the opposing party; or if said party cannot be found, then by publication of at least once a week for thirty days in a newspaper, to be designated by the register of the land office as published nearest to the location of such land; and the register shall require proof that such notice has been given. Sec. 14. That where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection ; Provided, however, that the subsequent location shall have the right of way through said space of intersection for the purpose of the convenient working of the said mine : And provided, also, that where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. Sec. 15. That where non-mineral land, not contiguous 36 562 LAW ENCYCLOPEDIA. to the vein or lode, is used or occupied by tlie proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface-ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same pre- liminary requirements as to survey and notice as are appli- cable under this act to veins or lodes ; Provided, that no location hereafter made of such non-adjacent land shall ex- ceed five acres, and payment for the same must be made at the same rate as fixed by this act for the superfices of the lode. The owner of a quartz mill or reduction works, not owning a mine in connection therewith, may also receive a patent for his mill-site as provided in this section. Sec. 16. That all acts and parts of acts inconsistent herewith are hereby repealed ; Provided, that nothing con- tained in this act shall be construed to impair, in any wa/, rights or interests in mining property acquired un(Jer exist- ing laws. The foUovT^ing is an act of Congress, approved June 6, 1874: An act to amend the act entitled " An act to promote the development of the min- ing resources of the United States," passed May tenth, eighteen hundred and seventy-two. That the provisions of the fifth section of the act entitled "an act to promote the development of the mining re- sources of the United States," passed May tenth, eighteen hundred and seventy-two, which requires expenditures of labor and improvements on claims located prior to the passage of said act, are hereby so amended that the time for the first annual expenditure on claims located prior to the passage of said act shall be extended to the first day of January, eighteen hundred and seventy-five.* "The requirements in regard to expenditures upon claims located since May 10, 1872, are in no way changed by the above amendatory act. FOEMS. Notice of Location. Notice is hereby given that the undersigned, having complied -with the re- quirements of the mining act of congress, approved May 10, 1872, and the MINING LAWS, FOBMS OP. 563 local ctiisfocis, laws, and regulations, has located fifteen hundred linear fee on the lode (twenty acres of placer mining ground) situated in mining district county, . . . , and described as follows: f Describe the claim accurately, by courses and distances, if possible; by legal subdivisions, if a placer claim is located on surveyed land.) Located 187.. Eecorded 187. . (Name of locator.) [Note.— Record of location noticeB, In a1>eence of a district recorder, shonld be made \7itli the rroper recorder of deeds for the county wherein the claim is eituated. The affidavits vt at least two disinterested pevsone that all the requirements of the congres- cional and local laws have heen complied with should also be recorded, substantially as follows: Territory ot . . . , I County of ..... P^ and , each for himself, and not one for the other, being first duly sworn, deposes and says, that he is of lawful age, and a citizen of the United States; that he has read the notice of location of fifteen hundred feet on the lode, by Eichard Eoe; that the description of said lode, viz: (Give description) as therein given is true and correct; that the said Eich- ard Boe has, in every respect, fully complied with the requirements of the mining act of congress, approved May 10, 1872, and the local customs and laws regulating mining locations. Subscribed and sworn to before me, this .... day of A. D. 187.., and I hereby certify that I consider the said and credi- ble and reliable persons. [sealJ Notary public (or other officer using a seal.) Bequest for Survey. 187.. Esq., 1J. S. Surveyor-general. Sik: In accordance with the provisions of the mining act of May 10, 1872, I have the honor to apply for an official survey of the mining claim known as the mine, situated in mining district, county, in Township of Eange , meridian, of , and request and request an estimate of the amount to be deposited for the work to be done in your office. Thereafter I have to request that you will issue the necessary instructions to . . ., Esq., U. S. Deputy Surveyor, vrith whom I have made satisfactory arrangements for field work in surveying the premises. Very respectfully, , Claimant. p. O. address , County [NoTB.— Survey is not required when placer claims embrace legal subdlvlsloM.] 664 LAW ENCTCLOPEDIA. Application for Patent. " ! County of Application for patent for the mining claim. To the Eegister and Beoeiver of the U. S. Land Office at , being duly sworn according to law, deposes and says, that in virtue of a compliance with the mining rules, Regulations, and customs, by himself, the said (and his co-claimants, ), applicants for patents herein, ha., become the owner, of, and are in the actual, quiet, and undisturbed possession of, and entitled to the possession of linear feet of the vein, lode, or deposit, bearing , to- gether with surface ground feet in width, for the convenient work- ing thereof, as allowed by local rules and customs of miners ; said mineral claim, vein, lode, or deposit and surface ground being situate in the mining district, county of and of , and being more particu- larly set forth and described in the official field notes of survey thereof, hereto attached, dated the day of , a. d. 187 , , and in the official plat of said survey, now posted conspicuously upon said mining claim or premises, a copy of which is filed herewith. Deponent further states that the facts relative to the right of possession of himself (and his said co-claim- ants hereinbefore named) to said mining claim, vein, lode, or deposit and surface ground, so surveyed and platted, are substantially as follows, to wit: [Description of claim.] Which will more fully appear by reference to the copy of the original rec- ord of location, and the abstract of title hereto attached and made a part of this affidavit; the value of the labor done and improvements made upon said .... claim by himself and his grantors, being equal to the sum of five hundred dollars in gold .coin of the United States. In consideration of which facts, and iu conformity with the provisions of the act of congress approved May 10, 1872, entitled " an act to promote the development of the miKing resources of the United States, " application is hereby made for and in behalf of said , and , for a patent from the government of the United States, for the said mining claim, vein, lode, deposit and the surface ground, so officially surveyed and platted. Subscribed and sworn to before me, this day of . . ., a. d. 187. ; and I hereby certify that I consider the above deponent a credible and reliable person, and that the foregoing affidavit, to which was attached the field notes of survey of the mining claim, %vas read and examined by him before his signature was affixed thereto and the oath made by him. [SEAI,.] [The above form Is slightly changed in applying for placer mines,] Proof of Posting Notice and Diagram of the Claim. •••■°^-;-- iss County of } and each for himself and not one for the other, being first duly sworn according to law, deposes and says, that he is a citizen of MINING LAWS, FOEMS OF. 565 the United States, over the age of twenty-one years, and was present on the ... day of , A. D. 187., when a plat representing the and certi- fied to as correct by the United States surveyor-general . . . , together with a notice of the intention of and to apply for a patent for the mining claim and premises so platted, was posted in a conspicuous place upon said mining claim; to wit, upon where the same could be easily seen and examined, the notice so conspicuously posted upon said claim being in words and figures as follows, to wit: ' ' Legal notice of the application of and for a United States patent. " Notice is hereby given, that in pursuance of the act of congress, ap- proved May 10, 1872, 'to promote the development of the mining resources of the United States,' and claiming linear feet of the vein, lode, or mineral deposit, bearing with surface ground feet in width, lying and being situate within the mining dis- trict, county of and .... of . . . . , has made application to the United States for a patent for the said mining claim, which is more fully described as to metes and bounds, by the ofBcial plat, herewith posted, and by the field notes of survey thereof, now filed in the office of the register of the district, of lands subject to sale at . . . , which field notes of survey de- scribe the boundaries and extent of said claim on the surface, with mag- netic variation at .... ea.st, as follows, to wit: "Beginning, etc. (Full description by courses and distances), the said mining claim being of record iu the office of the Recorder of at . . . , in the county and state aforesaid,the presumed general course or direction of the said vein, fode, or mineral deposit being shown upon the plat posted herewith, as near as can be determined from present developments, this claim being for .... linear feet thereof, together with the siirfaco ground shown upon the official plat posted herewith; the said vein, lode, and mining premises hereby sought to be patented, being bounded on the by the mining claim, the said claim being designated as lot No in the official plat posted herewith. " Any and all persons claiming adversely the mining ground, vein, lode, premises, or any portion thereof so described, surveyed, platted, and ap- applied for, are hereby notified that unless their adverse claims are duly filed according to law, and the ragulations thereunder, withiu sixty days from the date hereof with the Eegister of the U. S. Laud Office, at in the of they will be barred, in virtue of the provisiojis of said statute." (Name of applicant.) Dated on the ground, this day of a. d. 187 . . (Names of witnesses.) Subscribed and sworn to before me, this day of , A . d. 187 . , and I hereby certify that I consider the above deponents credible and reliable witnesses, and that the foregoing affidavit and notice was read by each of them before their signatures were affixed thereto, and the oath made by them. [Note. — All proofs required In mining applications may be sworn to before the Register or Eeceiver of the Land Office, or a Notary Public or other oificer authorized to admiu- ster oaths, whose offlcial character must be verified vinder oath.] 566 LAW ENCYCLOPEDIA. J- ss. Proof that Plat and ITotice remained posted on Claim during time of publication. .... of ... County of . , being first duly sworn according to law, deposes and says that he is claimant and (co-owner with ) in the mining claim, mining district county , the ofiSeial plat of which premises, together with a notice of intention to apply for a patent therefor, was posted thereon on the .... day of a. D. 387., as fully set forth and described in the affidavit of ... and . . . ., dated the day of A. D. 187., which affidavit was duly filed in the office of the Begister at , in this case ; and that the plat and notice so mentioned and described re- mained continuously and conspicuously posted upon said mining claim from the day of a. p. 187 . , until and including the day of A .D. 187., including the sixty days period during which notice of said application for patent was published in the newspaper. Subscribed and sworn to before me, this day of A. d. 187 . ; and I hereby certify that the foregoing affidavit was read to the said previous to his name being subscribed thereto; and that deponent is a re- spectable person to whose affidavit full faith and credit should be given . [SEAIi.] , Notary Public. Begister's Certificate of Posting Notice for Sixty Says. V. S. Land Office, at , ,187.. I hereby certify that the official plat of the lode was filed in this office on the day of A. d . 187 . , and that "the attached notice of tho intention of to apply for a patent for the mining claim or premises embraced by said plat, and described in the field notes of survey thereof, filed in said application, was posted conspicuously in this office on the day of , A. D. 187 . , and remained so posted until the day of . . . . , A. D. 187-, being the full period of sixty consecutive days, as required by law ; and that said plat remained in this office during that time, subject to examination, and that no adverse claim thereto has been filed. [The notice posted in the office Bhould be attached to this certificate.] Begister. Agreement of Publisher. The undersigned, publisher and proprietor or the . . . , a daily and weetly newspaper, published at , county of . . . . , and of do hereby ' agree to publish a notice, dated U. S. Land Office, re- quired by act of Congress approved May 10, 1872, of the intention of to apply for a patent for his claim on the lode, situated in the . . . . mining district, county of , of , and to hold the said alone re- sponsible for the amount due for publishing the same. And it is hereby expressly stipulated and agreed'that no claim shall be made against the gov- ernment of the United States, or its officers or agents, for such publication. Witness my hand and seal this day of A. d. 187 . . Witness MINING LAWS, P0BM8 OF. 567 Proof of PublioaUon. .... of .... } County of j ®^' "j being first duly sworn deposes and says Keprinted copy of notice I that he is the of the a newspaper pub- of application. j" lished at in county in the of , J that the notice of the application for a patent for the mining claims, of which a copy is hereto attached, was first pub- lished in said newspaper, in its issue dated the of lb7 . , and was published in each (daily or weekly) issue of said newspaper for (fifty nine consecutive days or eight consecutive weeks,) thereafter the full period of sixty days, the last publication thereof being in the issue dated the of .... 187. . Subscribed and sworn before me, this ...... day of a. d. 187. . [SEAI/.] Notary Public. Jffidavit of Five Hundred Dollars Improvements. ....of .... ) Comity of.... P^" and of lawful age, being first duly sworn according to law, deposes and say that they are acquainted with the mining claims in mining district, county and aforesaid for which has made application for patent under the provisions of the act of congress approved May 10, 1872, and that the labor done and improvements made thereon by the applicant and his grantors exceed five hundred dollars in value. Subscribed and sworn to before me, this .... day of .... Jl.d. 187-. ...... •....>, Statenieni and Charge of Fees. of 1 County of ) being first duly sworn according to law, deposes nnd says that he is the applicant for patent for the lode in .... mining: district, county of of , under the prqvisions of the Act of Congress ap- proved May 10, 1872, and that in the prosecution of said application, he has paid out the following amount, viz; To the credit of the surveyor-general's office, $ for surveying, $ . . . , f or filing in the local land office, $ for publication of notice, $ and for the land embraced in his claim, $ Sabseribed and sworn to before me, this .... day of . . . . , A. d. 187-. [seal.] Notary Public. 568 LAW ENCYCLOPEDIA. Proof of Ownership and Possession in Case of Loss or Ahsence of Mining Records. County of'.".'.".', j ^^- and , each for himself, and not one for the other, be ing first duly sworn according to law, deposes and says, that he is a citizen of the United States, over the age of twenty one years, and a resident of county, . . . , and has resided in mining district, wherein the mine is situate, since day of , 18 — . That since said date he has been acquainted wi(h the mine, and with the possessors and workers there- of. That said mine was located and has been possessed and worked in ac- cordance with the customs and usages of miners in said district, and in conformity with the rules and regulations regulating the location, holding and working of mining claims, in force and observed in the state of . . . That there are no written records known to deponent existing in said min- ing district. That affiant is credibly informed and belicTes that the mine was located in the year 18 — , and that if any record was made of said lo- cation, and of the names of locators, the same has not been in existence for a long number of years past, and that by reason thereof the names of locators cannot now be ascertained, and no abstract of title from locators to the pres- ent owner can be made. That the possession of applicant and his predeces- sors in interest of said .... mine has been actual, notorious and continuous, to the positive knowledge of the deponent, since his residence in said min- ing district, and that such possession has been perfected and maintained, in conformity with mining usages and customs, and has been acquiesced in and respected by the miners of the said district. That applicant's right to the said is not in litigation within the knowledge of affiant, and that no action or actions have been commenced, affecting the right to said mine since his acquaintance therewith (and that the time for the commencement thereof, as required to be instituted under the provisions of the statute of limitations of the of ... has long since elapsed.) That applicant and his predecessors in interest have expended in the improvement, devel- opment and working of said mine, a sum of money exceeding .... dollars, as follows, to wit; .... Subscribed and sworn to before me, this day of , A. n. 187., and I certify that the aforenamed and .... are credible and respectable per- sons, to whose affidavits full faith and credit should be given. [seal.] Affidavit of Citizenship. County of " J' being first duly sworn according to law, deposes, aad says, that ho is the applicant for patent for .... mining claim, situate in mining district, county of , that he is a na. . . . citizen of the United MINING LAWS, FOBMS OF. 569 States, born in the county of state of in the year 18. ., and is now a resident at ... . Subscribed and sworn to before me, this .... day of a. d. 187 . . [seal.] [Note.— See paragraph 93 of circular dated June 10, 1872. Natnrallzed citizens are re- quired to furnish certified copies of their naturalization papers.] °^of-:...[^ Certificate that no Suit is Pending. County ( I, , clerk of the court in and for county, . . , . , do here- by certify that there is now no suit or action of any character pending in said court, involving the right of possession to any portion of the .... min- ing claim, and that there has been no litigation before said court affecting the title to said claim, or any part thereof, for years last past, other than what has been finally decided in favor of In witness whereof, I have hereunto set my hand and affixed the seal of said coTirt, at my office in , this .... day of a. d. 187 . . [SBAi.] Clerk of the court, Power of Attorney/. Know all men by these presents, that we and do hereby constitute and appoint as our attorney in fact, for us and in our names to make application to the United States for the entry and purchase of certain government lands, in .... mining district county, of ... , known as the mining claim and premises; and to have the same surveyed, and to take any and all steps that may be necessary to procure from the government of the United States a patent to the said lands and premises, granting the same to us. And to do all other acts appertain- ing to the said survey and entry aforesaid, as we ourselves could do by our own act, and in our own proper person. In witness whereof, we have hereunto set our hands and affixed our seals the .... day of a. d. 187.. .of.... Jgg County of ) Personally appeared, etc. (usual acknowledgment.) Protest and Adverse Claim. United States land office, of In the matter of the application of for a United States patent for the lode or mining claim and the land and premises appertaining to said mine, situated in the ... . mining district in . . . ., connty .... of .... 570 LAW ENCYCLOPEDIA. To the register and receiver of the United States land office at , and to the aboYe named applicant for patent for the lode. You are hereby notified that , of the city of county of , and of , and a citizen of the United States of America, is the law- ful owner, and entitled to the possession of hundred feet of the said lode or mine described in said application, as shown by the diagram posted on said claim, and the copy thereof filed in the land office with said application, and as such owner this contestant, the said , does pro- test against the issuing of a patent thereon to said applicant, and does dis- pute and contest the right of said applicant therefor. And this contestant does present the nature of his adverse claim, and does fully set forth the same in the affidavit hereto attached, marked exhibit "A," and the further exhibits thereunto attached, and made part of said affidavit. The said therefore respectfully asks the said Register and Re- ceiver that all further proceedings in the matter be stayed, until a final settle- ment and adjudication of the rights of this contestant can be had in a court of competent jurisdiction. (Place and date.) [Exhibit "A."] County of ' ! . . . P^- being first duly sworn, deposes and says, that he is a citizen of the United States, bom in the State of , and now residing in that he is the contestant and protestant named in, and who subscribed the notice and protest hereto annexed. Affiant further says that he is the owner by purchase and in possession of the (adverse) lode or vein of quartz and other rock in place, bearing and other metals. That said lode is situated in the mining district county, of (.The history of the lode may be given, if deemed advisable, as follows:) This affiant further-says, that on the day of its location the premises here- inafter described were mineral lands of the public domain, and entirely va- cant and unoccupied, and were not owned, held, or claimed by any person or party as mining ground, or otherwise, and that while the same were so vacant and unoccupied and unclaimed, to wit: On the day of 18.., (name locators), each and all of them being citizens of the United States, entered upon and explored the premises, discovered and located the said lode; and occupied the same as mining claims. That tne said premises so located and appropriated consist of thousand feet in a erly direction, together with all the dips, spurs, angles, depths, widths, offshoots, and variations, as will fully appear by reference to the notice of location, a duly certified copy whereof is hereunto annexed, marked Ex- hibit "B," and hereby made a part of this affidavit. That said locators, after the discovery of said . . lode, drove a stake on said lode on the dis- covery claim, erected a monument of stone around said stake, and p(aced thereon a written notice of location, describing the claim so located and appropriated, giving the names of the locators and quantity taken by each, and after doing all the acts and performing aU the labor required b^ t*-i MINING LAWS, FOEMS OF. 571 laws and regulations of said mining district and territory of .the locators of said lode caused said notice to be filed and recorded in the proper books of record in the recorder's oflace in said district on the day of .... 18... Affiant further says, that the said locators remained continuously in possession of said lode, working upon the same, and within months from the dfrte of said location, had done and performed work and labor on said location in mining thereon and developing the same, of more than days work, and expended on said location more than hundred dollars and by said labor and money expended upon the said mining location and claim, had developed the same, and extracted therefrom more than tons of ore. And affiant further says, that said locators, in all respects, complied with every custom, rule, regulation, and requirement of the mining laws, and every rule and custom established and in force in said mining district, and thereby became and were owners (except as against the paramount title of the United States) and the rightful possessors of said mining claims and premises. And this affiant further says, that the locators proved and established to the satisfaction of the recorder of said mining district, that they had fully complied with all the rules, customs, regulations, and requirements of the laws of said district, and thereupon the said recorder issued to the locators of said lode, certificates confirming their titles and rights to said premises. That the said lode was located and worked by the said locators as tenants in common, and they so continued in the rightful and undisputed possession thereof, from the time of said locations until on or about the ... day of , 18 . . , at which time the said locators and owners of said lode formed and organized under the laws of the state (or territory) of . . . ., and incor- porated under the name of " , " and on the day of 18 . . , each of the locators of said lode conveyed said lode, and each of the rights, titles, and interests in and to said lode, to said " mining company." On the said .... day of 18. ., the said company entered into and upon said .... lode, and was seized and possessed thereof, and every part and parcel of the same, and occupied and mined thereon until the day of ... , 18. ., at which time the said mioing company sold and conveyed the same to this affiant, which said several transfers and conveyances will fully appear by reference to the abstract of title and paper hereto attached, marked exhibit "D," and made a part of this affidavit. (In case of individual transfers.) And this affiant further says that the said Kiehard Koe who located claim No. 1, northwesterly of the said lode, and the said John Doe who located claim No. 2 northwesterly thereon, were seized and possessed of said claims, and occupied and mined thereon until the day of , 18.., at which time the said Kiehard Koe and John Doe sold and conveyed the same to John Smith, and thereupon the said John Smith was seized and possessed of said mining claims and loca- tions, and occupied and mined thereon until the day of 18. . , at which time the said John Smith sold and conveyed the same to this affiant, as will fully appear by reference to the abstract of title and paper hereto at 572 LAW ENCYCLOPEDIA. taohed, marked exhibit " D," and -which this afBant hereby makes a part of this his a£Bdavit. Affiant further says, that he is now and has been in the ooeupation and possession of the said lode, since the said day of , 18 . . , and that said lode and mining claims were located, and the title thereto estab- lished several .... before said applied for lode was located. (In case the history of the lode is not tiJaoed, the following may be inserted) ; And the record title to said (adverse) lode is in this affiant, as will fully appear by reference to the abstract of title and paper hereto attached, marked ex- hibit " D," and which this affiant hereby makes a part of this his affidavit. Affiant further says, that said lode, as shown by the notice and dia- gram posted on said claim, and the copy thereof filed in the XT. S. Land Office at said . . . . , with said application for a patent crosses and overlaps said lode, and embraces about hundred feet in length, by hundred feet in width of the said lode, the property of this affiant as fully appears by reference to the diagram or map duly certified by U. S. deputy surveyor, hereto attached, marked exhibit "C," and which diagram presents a correct description of the relative locations of the said (adverse) lode, and of the (pretended) (applied for) lode. Affiant further says, that he is informed and believes that said applicant for patent well knew that the affiant was the owner in possession and enti- tled to the possession of so much of said mining ground embraced within the survey and diagram of said applications, as is hereinbefore stated, and that this affiant is entitled to all the and other metals in said (adverse) lode, and all that may be contained within a space of feet on each side of said (adverse) lode. And affiant further says, that this protest is made in entire good faith, and with the sole objiict of protecting the legal rights and property of this affiant in the s^id (adverse) lode and.mining premises. Subscribed and sworn to before me, this .... day of A. d. 187 . [Surveyor's Certificate.] On the diagram marked exhibit "0," the surveyor must certify in effect as follows : I hereby certify, that the above diagram correctly represents the conflict claimed to exist between the and lodes, as actually surveyed by me. And I further certify, that the value of the labor and improvements on the (adverse) lode, exceeds five hundred dollars. [Place and date.] TJ. S. Deputy Surveyor. l^on-mineral Affidavit. County of ) „ ....of.... r"- , hereby duly sworn according to law, deposes and says that he is the identical , who is an applicant for government title to the ; that he is well acquainted with the character of said described land, and '^th each and every legal subdivision thereof, having frequently passed over *sie MINING LAWS, FObJuS OF. 573 same; that his knowledge of said land ig such as to enable him to testify Tin- derstandiugly with regard thereto; that there is not, to his knowledge, with- in the limits thereof, any vein or lode of quartz or other rook in place, bearing gold, silver, cinnabar, lead, tin, or copper, or any deposit of coal; that there is not within the limits of said land, to his knowledge, any placer, cement, gravel, or other valuable mineral deposit; that no portion of said land is claimed for mining purposes under the local customs or rules of miners, or otherwise; that no portion of said land is worked for mineral during any part of the year by any person or persons; thai; said land is essentially non-mineral land, and that his application therefor is not made for the purpose of fraudulently obtaining title to mineral land, but with the object of securing said land for agricultural purposes. Subscribed and sworn to before me, this day of , A. D. 187 . ; and I hereby certify that the foregoing affidavit was read to the said pre- vious to his name being subscribed thereto ; and that deponent is a respect, able person to whose affidavit full faith and credit should be given. Proof that no known Veins Exist in a Placer Mining Claim. County ( State of ) ityof ... f and of the said county and state, being •first duly sworn, each for himself, deposes and says, that he is well acquainted with the .... placer mining claim, embracing (legal subdivisions,) situated in the mining district, in the county of . . , and state of owned and worked by , applicant for United States patent; that for many years he has resided near, and often been upon the said mining premises, and that no known vein or veins of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin or copper, exist on said mining claim, or on any part thereof, so far as he knows, and he verily believes that none exist thereon. And further, that he has no interest whatever in said placer mine of LTo be sworn before an officer using a seal.] MINING LAWS OF CALIFOKNIA. Mining Partnership. — A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the mineral there- from actually engage in working the same. Express Agreement not Necessary. — An express agree- ment to become partners or to share the profits and losses of mining is not necessary to the formation or existence of 574 LAW ENCYCLOPEDIA. a mining partnership. The relation arises from the owner- ship of shares or interests in the mine and working the same for the purpose of extracting the minerals therefrom. Profits and Losses. — A member of a mining partnership shares in the profits and losses thereof in the proportion which the interest or share he owns in the mine bears to the whole partnership capital or whole number of shares. liien of Partners. — Each member of a mining partnership has a lien on the partnership property for the debts due the creditors thereof, and for money advanced by him for its use. This lien exists notwithstanding there is an agree- ment among the partners that it must not. Mine— Partnership Property. — The mining ground owned and worked by partners in mining, whether purchased with partnership funds or not, is partnership property. Partnership not Dissolved by Sale of Interest. — One of the partners in a mining partnership may convey his inter- est in the mine and business without dissolving the partner- ship. The purchaser, from the date of his purchase, be- comes a member of the partnership. Purchaser takes, Subject to Liens, unless, etc. — A pur- chaser of an interest in the mining ground of a mining partnership takes it subject to the liens existing in favor of the partners for debts due all creditors thereof, or advances made for the benefit of the partnership, unless he purchased in good faith, for a valuable consideration, without notice of such lien. Purchaser has Notice of Lien. — A purchaser of the in- terest of a partner in a mine when the partnership is engaged in working it, takes with notice of all liens result- ing from the relation of the partners to each other and to the creditors of the partnership. Contracts of. — No member of a mining partnership or other agent or manager thereof can, by a contract in writing, MINING LAWS. 575 bind' the partnership, except by express authority derived from the members thereof. Majority Govern. — The decision of the members own- ing a majority of the shares or interests in a mining part- nership binds it in the conduct of its business. MINING INTERESTS OF DECEASED PEESONS.— CALITOENIA. Mines may be Sold, How.— When it appears from the inventory of the estate of any decedent that his estate con- sists in whole or in part of mines or interests in mines, such mines or interests may be sold under the order of the probate court having jurisdiction of the estate, as hereinafter provided. Petition for Sale. — The executor, administrator, or any heir at law, or creditor of the estate, any partner or member of any mining company in which interests or shares are held or owned by the estate, may file in the probate court a petition in writing, setting forth the general facts of the estate being then in due course of administration, and par- ticularly describing the mine, interests, or shares which it is desired to sell, and particularly the condition and sitaa- tion of the mines or mining interests, or of the mining company in which such interests or shares are held, and the grounds upon which the sale is asked to be made. Order to Show Cause. — Upon the presentation of such petition the probate judge must make an order directing all persons interested to appear before him 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 to sell such mines, mining interests, shares, or stocks, as are set forth in the petition and belonging to the estate. A copy of the order to show cause must be personally served on all persons interested in the estate, at least ten days before the time appointed for hearing the petition, or published at least four successive weeks in such newspaper as the court shall specify. If all persons interested in the estate signify in writing their assent to such sale, the notice may be dis- pensed with. 676 LAW ENCYCLOPEDIA. Order of Sale.— If, upon hearing the petition, it ap'pears to the satisfaction of the probate judge that it is to the in- terest of the estate that such mining property or interests of the estate should be sold, or if it appears to his satis- faction that an immediate sale is necessary in order to secure the just rights or interests of the mining partners or tenants in common, in which such shares or property are held, such probate judge must make an order authorizing the executor or administrator to sell such mining interests, mines or shares, as herein provided. Confirmation of Sale. — After the order of sale is made, all further proceedings for the sale of such mining property, and for the notice, report and confirmation thereof, must be in conformity with the provisions of the probate law. MINING LAWS' EULE OP EVIDENCE.— CALIFOKNIA Customs and Usage of Miners. — In actions respecting mining claims, proofs shall 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 constitution and laws of this state, shall govern the decision of, the action. Water for Min'ng.— At common law, and in all states east of the rocky mountains the common law as to water rights prevails, there is no such thing as appropriator of water; but in California and Nevada and in_ the territories of the Pacific coast necessity has changed the rule, and the first appropriator of the water of a stream, so long as he uses it for a useful purpose, is considered the owner of what he appropriates. He may take all the water and divert it from its channel and actually deprive those below him of the water which should flow to them. This rule grows out of the decisions of the courts founded on the customs of miners as stated in the preceding paragraph. "Without such rule of law great mining enterprises would come to. a stop; or, leather, never would have began, as under the common law water cannot be taken from a stream and made unfit for domestic or other purposes. MINING LA\TS. 677 MINING LAWS OP OREGON. Lcoiticn of Claim on Quartz Lead. — Any person or com- pany establishing a claim on any quartz lead containing gold, silver, copper, tin or lead, or a claim on any vein of cinnabar, for the purpose of mining the same, shall be allowed to hold the land or vein with all its dips, spurs and angles, for the distance of three hundred feet in length and seventy-five feet in width on each side of such lead or vein. Claim, How Established. — To establish a solid claim, the discoverer or person wishing to establish a claim, shall post a notice on the lead or vein, with the name or names attached, which shall protect the claim or claims for thirty days ; and before the expiration of said thirty days the claim shall bo recorded, and describing, as near as may be, the claim or claims and their location ; but continuous work- ing of such claim shall obviate the necessity of such record. If any claim shall not be worked for twelve consecutive months, it shall be forfeited, and considered liable to loca- tion by any person, unless ihe owner be absent on account of sickness or in the service of their country in time of war. Fluralty of Claims, -when Allo'wed. — One claim may be held by location upon each vein, and as many by pur- chase as the local laws bf the miners in the district where such claims are located may allow ; and the discoverer of any new lead or vein, not previously located upon, shall be allowed one additional claim for the discovery thereof. Working Claims. — ^Within one year after locating a claim work on each claim is to be done to the value of fifty dol- lars, and for each successive year the same amount of work must be done, or the claim forfeited. If a corporation owns many claims on ihe same lode, the said work may be done on any claims so owned. Duty of County Cleijc.— It is the duty of the couniy clerk, after notice of a miners' meeting organizing a new district in his county, with a description of the boundaiies, to record the same in a book in his office called "Book of 3T 578 LAW ENCYCLOPEDIA. record of mining claims." He may appoint a deputy to re- side in such district, and record all claims and water rights. Rights of Miners. — Miners are empowered to make local laws in relation to the possession of water rights, the pos- session and working of placer claims, and the survey and sale of town lots in mining camps, subject to the laws of the United States. Ditches and Flumes. — Ditches and flumes used for min- ing purposes, and permanently affixed to the soil, are real estate for all intents and purposes whatever. Sale cf Mining Claim. — All interests in placer or surface diggings may b.e sold and conveyed by bill of sale and de- livery of possession, as in cases of the sale of personal property. Such bill of sale must be recorded within thirty days after its date in the office of the county clerk. Mortgages. — A placer mining claim is to be mortgaged the same as chattel mortgages. Who may Hold Claims. — The constitution of Oregon, article fifteen, section eight, is as follows : "No Chinaman not a resident of this state at the adoption of this constitu- tion, shall ever hold any real estate or mining claim, or work any mining claim therein." ^ * MIKINa LAWS OF NEVADA. SUITS AGAINST JOINT TENANT, TENANT IN COMMON OB COFABCENEB. An Act for the Encouragement of Mining. [Approved March 7th, 1865.1 Section 1. When three or more persons owning or claim- ing as joint tenants, tenants in common or coparceners, a majority of the number of feet, shares or interests, in any minjng claim in this state shall have formed or shall here- after form themselves into a corporation or organized asso- ciation for the purpose of working and developing such mining claim, and shall proceed to actually work and de- velop the same, such corporation or association may, with- out demand except by commencement of action, institute MINING LAWS. 679 in any court of competent jurisdiction suit in its corporate or associate name, as upon an implied contract for the pay- ment of money against any, person [not a stockholder in or member of such corporation or association] owning or claiming to own in said mining claim as tenant in common, joint tenant or coparcener, for his or her proportion of the money actually expended or indebtedness assumed by such corporation or association in the actual and necessary work- ing and development of said mining claim. Sec. 2. The proportion of money expended or indebt- edness assumed by such corporation or association, and for the payment of which such joint tenant, tenant in common or coparcener, is made liable under the provisions of this act, shall be deemed such an amount of money or indebt- ' edness as bears the same proportion to the whole amount of money expended or indebtedness assumed as the inter- est of the mining claim, owned or claimed by such joint tenant, tenant in common or coparcener, bears to the whole of the mining claim. Sec. 3. Any number of such joint tenants, tenants in common or coparceners, may be joined as parties defend- ant in any suit instituted under the provisions of this act ; but each defendant shall be entitled to plead separately ; and when the cause shall be tried by a jury, as many of the separate issues of fact as may be agreed upon by the parties may be tried by the same jury. Judgment shall be ren- dered for or against each defendant separately, and the costs of the suit may be apportioned among the several parties defendant, against whom judgment may be rendered, in such manner as to the court may appear just and equitable : provided, that in all cases the defendant, prior to the insti- tution of suit under the provisions of this act, shall be entitled to three weeks' notice of the intention of such cor- poration or association to institute such suit, which notice may be either personally or by the publication in some newspaper published in the county within which such min- ing claim is located; and if none be published in said county, then in the nearest adjoining county. 580 lATir ENCYCLOPEDIA. Sec. 4. The suramons shall specify : 1st. The amount of money actually expended or indebtedness assumed, by such corporation or association, in the actual and necessary work- ing and development of said mining claims; and 2d. The amount due from each joint tenant, tenant in common or coparcener, as his or her proportion of such money or in- debtedness. Sec. 5. All suits under the provisions of this act shall bo brought in the county within which the mining claim may be located ; and when the defendant is a non-resident of the county within which suit is brought, but a resident of the state, service of summons may be had personally as in other cases or by publication in the same manner as pro- vided by law for service of summons by publication where the defendant is a non-resident of the state and a resident of the state of California ; and all of the provisions of law regulating proceedings in other civil cases shall, as far as the same are applicable, apply to suits instituted under the provisions of this act. Sec. 6. The amount of money expended or indebtedness assumed by such corporation or association as the pro- portion due from such tenant in common, joint tenant or coparcener, for the actual and necessary working and de- velopment of said mining claim shall be a lien in favor of such corporation or association upon the interest of such tenant in common, joint tenant or coparcener, in such mining claim from the time such money was expended or indebtedness assumed by such corporation or asso- ciation, which lien shall bind such interest from the time of such payment or assumption as against any subse- quent purchaser, mortgagee or other person, acquiring a lien upon, or title to or interest in, the same. Suit may be instituted against the person owning or claiming such interest at the time of the commencement of the action for the recovery of the whole amount due upon each interest ; and all judgments rendered in any action insti- tuted under the provisions of this act, and any execution issued thereon, shall bind and run against such interest, MTNING LAWS. 581 and no other property of the defendant shall be subject to execution on said judgment. Sec. 7. All sales of any interest in a mining claim under an execution issued on a judgment obtained in any suit instituted under the provisions of this act shall be absolute, and the purchaser shall be entitled to the immediate posses- sion of the interest purchased by him at such sale. SUITS POB DAMAGES CAUSED BT WOKKING OF MINES. For the Protection of Mi>ies and Mining Claims. [Approved Dec. 17th, 1862.) Section 1. Any person or persons, c master of the bark of who sailed from . . . . , in and with said bark , on the day of , a.d. 18 . . , with a cargo of assorted arti- cles, bound for the port of and arrived at the port of on the day of , 18 . . , having experienced heavy weather on the passage, and fearing damage, notes his protest to be extended, if need be. Given under my hand and seal, in the county of , the day and year first above-written. Notary public. Marine Protest. TJnited States of America, 1 State of and county of f ' To all people to whom these presents shall come or may concern, I , a public notary, in and for the coxmty aforesaid, by letters patent under the great seal of the said state, duly commissioned and sworn, dwell- ing in the county of , send greeting : Know ye, that on the .... day of . . . . , in the year of our Lord one thou- sand eight hundred and , before me appeared master of the ship called the , and noted in due form of law with me, the said .... notary, his protest, for the uses and purposes hereinafter mentioned ; and now, at this day, to wit : the day of the date hereof, before me, the said notary, at the county aforesaid, again comes the said , and requires me to extend his protest, and together vrfth the said , also come and , seamen, belonging to the aforesaid ship, all of whom being by me duly sworn on the holy evangelists of the almighty God, volun tarily , freely and solemnly, do declare, and depose as follows, that is to say, that he, the said , set sail and departed in and with the said ship as master thereof, from . . . ; , , having on board the said ship a cargo of and , and bound for the port of that the said ship was then stout, staunch and strong ; had her cargo well and sufficiently stowed and secured ; was well masted, manned, tackled, victualed, appar- eled and appointed ; and was in every respect fit for sea and the voyage she was about to undertake ; that ten days after said ship had set sail, to wit : on the day of 18 . . , in latitude, etc. [here set forth particu- 640 LAW ENCYCLOPEDIA. larly all the circumstances of the loss of tlie ship] ; and the said fur- ther says, that as all the damage and injury which already has or may hereafter appear to have happened or accrued to the said ship or her said cargo, has been occasioned solely by the circumstances herein-before stated, and cannot nor ought not to be attributed to any insufficiency of the said ship, or de- fault of him, this deponent, his officers or crew, he now requires me, the said notary, to make his protest and this public act thereof, that the same may serve and bo of full force and value, as of right shall appertain. And thereupon the said , doth protest, and I, the said notary, at his special instance and request, do, by these presents, publicly and solemnly protest against winds, weather and seas, and against all and every accident, matter and thing, had and met with as aforesaid, whereby or by means whereof the said ship or her cargo, already has or hereafter shall appear to have suffered or sustained damage or injury, for aU losses, costs, charges, expenses, damages and injury, which the said , or the owner or owners of the said ship, or the owners, freighters or shippers of her said cargo, or any other person or persons interested or concerned in either, already have or may hereafter pay. Sustain, incur or be put unto, by or on account of the premises, or for which the insurer or insurers of the said ship or her cargo is or are respectively liable to pay or make contribution or average according to custom, or their respective contracts or obligations ; and that no part of such losses and expenses already incurred or hereafter to be incurred, do fall on him the said , his officers or crew. Thus done and protested, in the city of , this day of , in the year of our Lord one thousand eight hundred and In testimony whereof, as well the said appearers, as I, the notary, have subscribed these presents, and I have also caused my seal of office to be hereunto affixed, the day and year last above written. [L.S.] Notary public. Declaratory Statement for cases where the Land has not been offered at FvMic Sale. I, of , being the head of a family [or, " widow or single man over the age of twenty-one years," as the case may be, " a citizen of the United States," or, "having filed my declaration to become a citizen, as required by the naturalization laws," as the case may be], have, on the . . . day of A.D. 18 . . , settled and improved the quarter of section ntimber , in township, number , of range number . . . . , in the dis- trict of lands subject to sale at the land office at . . . . , and containing .... acres, which land has not yet been offered at public sale and thus rendered subject to private entry ; and I do hereby declare my intention to claim the said tract of land as a pre-emption right, under the provisions of the act of March 3d, 1853. Given under my hand, this .... day of , a.d. 18 . . Signed in the presence of NOTABY PUBLIC, FOKMS OF. 641 Declaratory Statement for Cases where the Zand shall have been offered at PuMo Sale. I, of being the head of a family [or, "vidow," or, "sin- gle man over the age of twenty-one years," as the case may be], a citizen of the United States [or, " having filed my declaration to become a citizen, as required by the naturalization laws," as the case may be], have, since the day of , A.D, 18. ., settled and improved the quarter of sec- tion number , in township number of range number , in the distvict of lands subject to sale at the land office at and con- taining acres, which land has been rendered subject to private entry since the passage of the act of March 3d, 1853, but prior to my settle- ment thereon ; and I do hereby declare my intention to claim the said tract of land as a preemption right, under the provisions of said act. Given rmder my hand this .... day of a.d. 18 Signed in the presence of Affidavit to he filed m Cases, under Act of March 3d, 1853, inhere the Settler sliall have died before Proving up and Entering his Claim. I , executor of the estate of [or, " administrator of the estate of ," or, "one of the heirs of , aged years," as the case may be], do solemnly swear [or, " affirm," as the case may be], that, to the best of my knowledge and belief, that the said who was a settler on the .... quarter of section number , of township number , of range number subject to sale at was not, at the time of his death, the owner of three hundred and twenty acres of land in any state or territory of the United States; that he did not settle upon and im- prove the above tract of land on speculation, but in good faith, to appro- priate it to his own exclusive use and benefit, and that he has not, directly oi indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might have acquired from the government of the United States should iniore, in whole or in part, to the benefit of any person except himself. [Signed] Executor, [or, "administrator," or, "one of the heirs of ," as the case maybe]. I , register [or " receiver"] of the land oflSce at , do hereby certify that the above affidavit was taken and subscribed before me this .... day of . . . ., a.d. 18, . , Kegister, [or, " Receiver"]. Affidavit required of Pre-emption Claimant. I^ , claiming the right of preemption under the provisions of the act of Congress approved March 3d, 1853, to the quarter of section number , of township number , of range nuanber . . . ., subject to gale at do solemnly swear [or, " affirm," as the case may be] that I am 64:2 LAW ENCYCLOPEDIA. not the owner of three hundred and twenty acres of land in any state or territory of the United States, nor have I settled upon, and improved said land to seU. the same on speculation, but in good faith to appropriate it to my own exclusive use and benefit, and that I have not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which I may acquire from the gov- ernment of the United States should inure, in whole or in part, to the ben- efit of any person except myself. [Signed] I register [or, " , receiver"] of the land office at , do hereby certify that the above afSdavit was taken and subscribed before me this .... day of , a.d. 18. . [Signed] , Kegister, [ or, " , Eeceiver"]. Certificate of Eegister. United States of America land district, ) state of I To all to whom these presents shall come, greeting : Know ye, that of county, state aforesaid, a citizen of the United States a . . . . married man, and of the age of twenty-one years, has, on the .... day of . . . . , in the year of our Lord one thousand eight hundred and . . . . , filed with the register of the land district of the state of , at the land of&ce in his declaratory statement, wherein he claims to have settled and improved the following described government lands, to wit : [here describe the land] township number , range number , con- taining .... acres, which land has not yet been offered at public sale, and thus rendered subject to private entry. In testimony whereof, I , register of said land office, have hereto set my hand, at the register's office, in the city of , on this day of ...., A,D. 18.. Begister. Affidavit to i» Subscribed by Parties locating Zand under School-land War- rants. Land office, I, of county being duly sworn, do depose and say, that I did, on or about the day of , 18 . . , personally examine the following described lands, viz : [here describe the land], section number , township number , range number , and at that time there was no settlement or cultivation on the said lands whatever or any valid title thereto, and I verily believe there is none at this time. Subscribed and sworn to before me, this day of , 18 . . I Begister. NOTARY PUBLIC, FORMS OF — ^NOTE OF PROTEST. 643 Form of Location to be Indorsed on Warrant. tJnited States land office, state of I , of county, having taken and subscribed tbe necessary affidavit, to tlie effect that there is no settlement on or valid claim to the laud sought, do hereby apply to locate this warrant, number , upon the quarter of section number township number range number This selection is made in part satisfaction of the grant of five hun- dred thousand acres of land mado to the state of California by the eighth section of the act of congress of September 4th, 1841, entitled ' ' An act to appropriate the proceeds of the sales of the public lands and to grant pre- emption rights." Given nnder my hand and seal, this .... day of .... a.d. 18. . Patent for School Lands. State of , 1 Executive department. ) Know aU men by these presents, whereas, is the holder of school-land warrant number issued under and by virtue of the act of the state of passed on the day of May, one thousand eight hundred and , entitled "An act to provide for the disposal of the five hundred thousand acres of land granted this State by act of congress ; and, whereas, the said hath located the said warrant [or, " war- rants," as the case may be] upon the following described lands, and accepts the Same in full satisfaction for said warrant, to wit : [here insert the de- scription of land as contained in register's certificate]. Now, therefore, I, , governor of the state of , by virtue of the authority in me vested, have given, granted, bargained and sold, and do by these pres- ents give, grant, bargain and sell, unto the said all the above- described lands, to have and to hold unto him, the said , his heirs and assigns, forever, to and for his and their sole use, benefit and behoof, and for none other. Witness my hand and the great seal of state, at this day of A.D. 18.. [l-s.] ™* Governor. Attest: , Secretary of state. NOTE OF PROTEST. Note of Protest. — A note, minute of or protest, made by the notary at the time of protest on the bill or note, to be completed or fiUed out at leisure. See Notary Public — Protest. 644 LAW ENCYCLOPEDU. NOTICE OF DISHONOR. Notice of Dishonor. — A notice given to a drawer or in- dorser of a bill or an indorser of a negotiable note, by a subsequent party, that it has been dishonored, either by non-acceptance in the case of a bill or by non-payment in the. case of an accepted bill or note. See Notary Public — Peotest. Notice of Protest. — A notice given to a drawer or in- dorser of a bill or to an indorser of a note, by a prior party, that the bill has been protested, for refusal of payment or acceptance. See Notice oe Dishonob. NUISANCE. Ntiisance. — ^A nuisance is anything that unlawfully works hurt, inconvenience or damage. Private Nuisance. — ^A private nuisance is anything done to the hurt or annoyance of lands, tenements or heredita- ments of another. Public Nuisance. — A public nuisance is such an incon- venience or troublesome offense, as annoys the whole com- munity in general and not merely some particular person. If a Thing is Calculated to interfere with the comforta- ble enjoyment of a man's house, it is a nuisance ; as, when an offensive trade renders the enjoyment of life or property uncomfortable, it is a nuisance. Shifting Nuisances. — A thing may be a nuisance in one place and not in another. A tallow-chandler, setting up his business among other tallow-chandlers, is not guilty of creating a nuisance, unless his chandlery increases the nox- ious smells in a great degree. Nuisances of Themselves.— The following are consid- ered nuisances of themselves ; Particular trades, by which the air is rendered offensive. Indecency, as bathing unclothed in a river, in sight of the neighboring houses. NUISAKCE. 645 Keeping a disorderly house or gammg-house or danger- ous animal, known to be such and suffering him to be at large. Exposing a person having a contagious disease, as the small pox, in public, and the like. The bringing a glandered horse into a public place. The leaving unburied the corpse of a person, for whom the defendant was bound to provide christian burial, as a wife or child. Ancient Nuisances. — Maintaining and carrying on a nui- sance for a long time, in a place remote from buildings and public roads, does not entitle the owner to continue in the same place, after houses have been built and roads laid out in the neighborhood. The proprietor or maintainor of such nuisance must give way to the health or enjoyment of the general public, even at his great loss and even absolute destruction of his business. Abatement of Nuisances. — There are two ways to re- dress a nuisance ; one by action, by which the party injured recovers damages and has judgment that the nuisance shall be removed ; the other, where the party injured abates the nuisance himself. The abatement of a nuisance by the party injured does not, however preclude him from bring- ing an action to recover the damages sustained by him anterior to such abatement. Party Annoyed Abating, — ^If a man on his own soil erect a thing which is a nuisance to another, as by stopping a rivulet and so diminishing the water used by him for his cattle, the party injured may enter on the soil of the other and abate the nuisance and justify the trespass. So if one erects a gate across a way which ought not to be there or otherwise unlawfully obstructs the way, any one who has a right to pass over the way may remove the obstruction. So • if any one erects a building, shed or wall, so as to obstruct ancient lights, though on his own land, it is a private nui- sance, and the owner of the ancient lights may peaceably enter on his land and puU it down So if a man has a hog- 646 LAW ENCYCLOPEDIA. stye or other thing on his land, that corrupts the air in and about his neighbor's house and makes it unwholesome, his neighbor may lawfully remove the nuisance. So if one builds a house so n-ear his neighbor's that it throws water upon it, his neighbor may abate so much as overhangs or projects beyond the line ; but he who abates must be care- ful he abates no more than overhangs, as no more is a nui- sance. Caie to be Observed in Abating. — Great care should be taken in abating a nuisance, not' to remove or pull down anything more than is absolutely necessary for the abate- ment of the nuisance, ^s otherwise the party wlU render himself liable to an action of trespass. If indeed the nui- sance is of so simple a character that there cannot possibly be any mistake as to the extent of the nuisance, as a gate wrongfully erected across the way or the obstructing of a stream, etc.; or if the injury occasioned by the nuisance be immediate and irreparable, of such a nature that no pecuni- ary compensation which the party injured might recover by an action at law could satisfy the wrong done him, then the most effectual remedy is for him to abate the nuisance him- self. But where this is not the case the party had better resort to an action of law, whereby he will recover damages for the injury done him and have the nuisance abated by the officers of the court, and thus avoid the danger of being sued for trespass. Statutory Provisions.-!-The following are the code and statutory provisions of California, Nevada and Idaho. Nuisance Defined. — Anything which is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the com- fortablp enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by thet judgment it may be enjoined or abated as well as damages recovered. Public Nuisances.— If any person shall obsti-uct or injure NUISANCE— OBLIGATION. 647 or cause or procure to be obstructed or injured, any public road or highway, or common street or alley of any city, town or village, or public bridge or causeway, or public river or stream declared navigable by law, or shall continue such obstruction so as to render the same inconvenient or dan- gerous to pass, or shall erect or establish any offensive trade, manufacture or business, or continue the same after it has been erected or established, or shall in anywise pol- lute or obstruct any watercourse, lake, pond, marsh or common sewer, or continue such obstruction or pollution so as to render the same offensive or unwholesome to the country, city, town, village or neighborhood, thereabouts — every person so offending shall, upon conviction, be fijied not exceeding one thousand dollars ; and every such nui- sance may, by order of the court before whom the convic- tion may take place or of the district court, be removed and abated by the sheriff of the county. OREGON. Private Nuisance and Abatement thereof. — Any person whose property is affected by a private nuisance, or whose personal enjoyment thereof is thereby affected, may main- tain an action for damages therefor. If the plaintiff recov- ers, the sheriff may be ordered to abate the nuisance. In Particular Cases. — Whenever any person shall cut down, girdle or otherwise injure or carry off, any tree, tim- ber or shrub, on the land of another person, or on the street or highway in front of any person's house, village, town or city lot or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front thereof, without lawful authority, in any action for such trespass, if judgment be given for plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be. If such timber was taken from uninclosed woodland to repair any bridge or public highway, judgment shall only be for single damages. OBLIGATION. Obligation. — A bond containing a penalty with a condi- 648 LAW ENCYCLOPEDIA, tion annexed, for the payment of money, performance of agreements or the like. A deed whereby a man binds him- self under a penalty to do a thing. ORIGINAL ENTRY. Original Entry. — The first entry made by a merchant, tradesman or other person, in his account-books, charging another with merchandise, materials, work, or labor or cash, on a contract made between them. Such Entry, to be admissible as evidence, must be made in a proper book. As a general rule, the book in which , the first entry is made is received in evidence. Previous to being Admitted it must be proved that the entry was made at the time of the sale of the goods charged, and the whole book must appear to have been kept in a busi- ness-like manner, PARDONS. OALIPOBNIA. Application for Pardon. — The law provides that all par- dons applied for to the governor of California, by or on behalf of any person or persons convicted in any of the courts of this state of any crime punishable by imprison- ment in the penitentiary and sentenced to such imprison- ment, shall be made and conducted as follows ; Notice to be Given. — Notice shall be given to the judge of the court in which the indictment was found or the con- viction had, and also to the district attorney who prosecu- ted the indictment under which the prisoner was convicted, of the intention to make application to the governor for pardon, by the party intending to make the application, at least thirty days before the application can be considered by the governor, and a copy of the notice, acknowledged by the judge, shall be forwarded to the governor by the county clerk. The notice shall set forth the name or names of the person or persons in whose behalf the application is intended to be made, the crime of which he, she or they. PAEDONS. 649 have been convicted, the time such conviction was had and the term of sentence. Publication of Notice.— The clerk of the county in which the conviction was had shall cause a copy of the notice to be published in some newspaper published in the county, for at least twenty days before the application shall be con- sidered by the governor ; or if no newspaper be published in the county, then a copy of the notice shall be posted by the clerk upon the door of the court-house, twenty days prior to the consideration of the application by the gover- nor ; and the clerk shall immediately upon inserting or posting the notice as herein provided, notify the governor thereof, which notification to the governor shall be consid- ered evidence, prima facie, that the law in this particular has been complied with In Cases where Death is Imminent. — In any case in which there is imminent danger of the death of any person so committed or imprisoned, and which fact shall appear by the certificate of the physician of the penitentiary and the warden thereof, the foregoing provisions of this act shall not be considered to apply. Governor may Pardon, when. — In any case, the gover- nor may pardon a convict within from one to ten days prior to the expiration of his or her term of imprisonment. In such cases no application for pardon is necessary. Expenses of Publication. — The expenses of pubhca- tion provided for by this act,- shall be paid by the party making the application for pardon ; and it is expressly pro- vided that the judge or clerk shall charge no fee on account of any service required under this act ; and a refusal or neglect to comply with the provisions of this act is a mis- demeanor, and upon conviction thereof the offender shall be removed from office. NEVADA. Who may remit Fines and grant Pardons. — Article five, section fourteen, of the Nevada constitution, provides that the governor, justices of the supreme court and attorney- 650 LAW ENCYCLOPEDU. general or a major part of them, of whom the governor shall be one, may remit fines and forfeitures, commute punish- ments and grant pardons, after convictions, in all cases except treason and impeachments. Notice of Application. — Any person intending to apply to have a fine or forfeiture remitted or a punishment com- muted or a pardon granted, or some one in his behalf shall make out duplicate copies of notices, in writing, of such ap- plication, specifying therein the court in which the judg- ment was rendered, the amount of the fine or forfeiture, or kind or character of punishment, and the name of the per- son in whose favor the application is intended to be made, and the time when the application will be presented, one of which shall be served on the district attorney of the proper county, and one on the district judge of the court wherein the conviction was had, except in cases of fines and forfeit- ures, when the copy of notice, instead of being served on the district judge, shall be served on the chairman of the board of county commissioners of the proper county. The notice shall be served, as herein provided, at least thirty days prior to the presentation of the application, unless a district judge, for good cause, prescribe a shorter time. If the pardon include restoration to citizenship, it shall be so stated in the instrument or certificate of pardon ; and when granted upon conditions, limitations or restrictions, the same shall be fully set forth in the instrument, as aforesaid. Such instrument or certificate shall also contain an order to the officer having the person in custody to discharge him or her from such custody, upon a day to be named in said instrument, upon the conditions, limitations or restrictions, therein named. No Discharge from Bail Bond alloAved. — ^The fines and forfeitures herein mentioned, shall not be so construed as to include the remittance or discharge from liability on any bail bond. IDAHO. The Organic Act of Idaho vests the pardoning power in the governor. No form of application for pardon is neces- PARDONS, POEMS OF. 651 sary, nor is any notice to be given of intention to apply for pardon. OEEGON. Po-wer ot Governor to Grant Reprieves and Pardons. — The governor has power to grant reprieves, commutations and pardons, after conviction, for all crimes, and to remit, after judgment therefor, all penalties and forfeitures, upon such conditions and with such restrictions and limitations as he may think proper, subject to the following limita- tions : Report Required before Pardon can be Granted. — When application is made to the governor for a pardon, before granting the same he must require the judge of the court '" in which the conviction was had or the district attorney by whom the action was prosecuted, to furnish him without delay, with a statement of the facts proved on the trial and of any other facts having reference to the propriety of granting or refusing the pardon ; and this also applies to an application for the remission of a fine or forfeiture. Notice of Intention to Apply for Pardon.— At least twenty days before the application for a pardon or remis- sion is made to the governor, written notice of the intention to apply therefor, signed by the person applying, and stat- ing briefly the grounds of the application, must be served upon the district attorney of the county where the convic- tion was had, and proof by affidavit of the service must be presented to the governor. ' fOKMS. ' Notice of Intention to Apply for Pardon. To the honorable [judge of the court in which the conviction was had or in which the indictment was found: as, "judge of the district court of the judicial district, county of . . . ;" or, "judge of the county court of county and , esq., district attorney in and for the county of "] state [or, " territory "] of : You and each of you are hereby notified that it is the intention of the undersigned to apply to the governor of the state of for the pardon of who was convicted at the term of the court of the county of a.d. 18 . . , of the crime of , and sentenced on the day of 18 . . , to [here state the punishment sentenced to be in- flicted]. [Signed] Dated , 18... 652 LAW ENOYOLOPEDU. Acknmjoledgment of Service to be Indorsed on the Foregoing, We and each of us hereby acknowledge due and legal service of the -within notice, this day of . . . , 18. . [Signed] , District [or " county "] judge. » X>istrict attorney. Affidavit of Service of the Foregoing Notice in ease the Judge or District Attor- ney do not Acknowledge Service of the Notice.* State of I county of J , being duly sworn, says that, on the day of 18 . . , at ^ , he personally served the foregoing notice for, "within notice"] on . . i, , ["judge" or "district attorney"] by delivering to each of them, personally, a copy of said notice ; and deponent further states th^t he is a free white male citizen of the United States and over twenty-one years of age. [Signed] Subscribed and sworn to before me, this — . day of a.d. 18 . . » Notary public, [or, other officer empowered to administer oaths. ] PARTITION-. Partition — Division of Land between Part Ovmers. — When several co-tenants hold and are in possession of real property 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. PARTNERSHIP. Partnership, What Constitutes. — A partnership results from a contract by which two or more persons agree to * In Oregon, in all cases, affidavit is necessary. PAKTNEB8HIP. 653 combine their property or labor, for the purpose of a com- mon undertaking and the acquisition of a common profit. The Power it Gives to one partner over the fortunes of all others, renders it important that all should know when that relation really exists, as the attempt is often made to realize the benefits of a partnership without being subjected to its liabilities. Formation of Partnerships. — AU partnerships other than special may be formed indifferently, as follows : 1st. By articles of partnership formally executed and mutually exchanged. 2d. By a verbal agreement. 3d. By the acts of the parties. Writing not Necessary. — ^Whether partnership agree- ments are written or miwritten it can make no difference to any others than the partners, as one partner can bind the others to the full extent of the partnership business. Agreement of Partnership. — In all cases it is thought best to draw up an agreement, showing the extent and objects of the partnership, which will be evidence between the partners on settlement of the partnership affairs, and notice in law to all persons having actual notice of the partnership agreements and limitations. Povrers and Duties. — One partner has power to bind the partnership by his agreement or contract in relation to anything or business within the scope of the partnership, as fully as he might do were he not a partner and acting in matters of his own private business. If the custom of the partnership is to purchase or sell on credit, he may involve the firm to any amount. He may dispose of all the stock in trade unknown to his partners ; and, in short, he may do any act regarding the business that he could do had he no partner and was acting for himself. It is his duty to take every care of the partnership funds, and give his best care and attention to the partnership business. Exemptions. — One partner cannot sue his partner on account of the partnership until the partnership is dis- 654 LAW ENCYCLOPEDIA, solved. For example: A and B are partners. A over- draws his account, or fails to account to the partnership for moneys belonging to it; B cannot sue and recover from A anything until the partnership is dissolved, even if B is positive there is not enough left in the partnership to balance the account of A. If one partner appropriates all the funds of the partnership, he is, in law, guilty of no crime, and the injured party must look to the civil courts for redress. General Liability. — The liability of each member of the firm for its just debts created, after he became a partner, extends not only to his interest in the property of the part- nership, but also to his individual property. And such liability may be created not only by the joint act of the firm but by that of either member. Dissolution of. — A partnership may be dissolved at the will of any member, unles differently provided by the articles of agreement. He could not, however, exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he may cause. Extent of Liability. — Before or after a dissolution the private property of each member of the partnership may be taken on execution for the partnership debts so long as the property lasts or debts remain unpaid. Death of Partner. — Death works a dissolution of all partnerships, and the surviving partners have a right to close up the business, and they must account to the de- ceased partner's representatives. PABTNEESHIP GENKRAL.— OALIFOBNIA. Power of Majority of Partners.— Unless otherwise ex- pressly stipulated, the decision of the majority of the mem- bers of a general partnership binds it in the conduct of its business. Authority of Each. — Every general partner is agent for the partnership in the transaction of its business, and has PAKTNEBSHIP. 655 authority to do whatever is necessary to carry on such busi- ness in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing. Limitation of Power. — A partner, as such, has not au- thority to do any of the following acts, unless his copart- ners have wholly abandoned the business to him, or are incapable of acting: 1. To make an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust for the benefit of a creditor or of all creditors; 2. To dispose of the good will of the business; 3. To dispose of the whole of the partnership property at once, unless it consists entirely of merchandise; 4. To do any act which would make it impossible to carry on the ordinary business of the partnership; 5. To confess a judgment; 6. To submit a partnership claim to arbitration; 7. To do any other act not within the scope of the pre- ceding paragraph. Acts in Bad Faith. — A partner is not bound by any act of a copartner, in bad faith toward him, though within the scope of the partner's powers, except in favor of persons who have in good faith parted with value in reliance upon such act. Profits of Individual Partner. — All profits made by a general partner, in the course of any business usually car- ried on by the partnership, belong to the firm. In \frha.t Business Partner may not Engage. — A general partner, who agrees to give his personal attention to the business of the partnership, may not engage in any busi- ness which gives him an interest adverse to that of the partnership, or which prevents him from giving to such business all the attention which would be advantageous to it. In Tvhat he may Engage. — A partner may engage in any separate business, except as provided by the last two para- graphs. 656 LAW ENCYOLOPEDIA.. Must Account to Firm for Profits. — ^A general partner transacting business contrary to the provisions of this ar- ticle may be required by any copartner to account to the partnership for the profits of such business. Liability to Third Persons. — Every general partner is liable to third persons for all the obligations of the part- nership, jointly with his copartners. Representing One's Self as Partner. — Any one permit- ting himself to be represented as a partner, general or special, is liable, as such, to third persons to whom such representation is communicated, and who, on the faith thereof, give credit to the partnership. Duration of PEirtnership. — ^If no term is prescribed by agreement for its duration, a general partnership continues until dissolved by a partner or by operation of law. Dissolution of. — A general partnership is dissolved as to all the partners : 1. By lapse of the time prescribed by agreement for its duration; 2. By the expressed will of any partner, if there is no such agreement; 3. By the death of a partner; 4. By the transfer to a person, not a partner, of the in- terest of any partner in the partnership property; 5. By war, or the prohibition of commercial intercourse between the country in which one partner resides and that in which another resides; or, 6. By a judgment of dissolution. Partial Dissolution. — A general partnership may be dis- solved, as to himself only, by the expressed will of any partner, notwithstanding his agreement for its continuance, subject however to liability to his copartners for any dam- age caused to them thereby, unless the circumstances are such as entitle him to a judgment of . dissolution. PAETNEESniP. 657 Partner Entitled to Dissolution. — A general partner is entitled to a judgment of dissolution: 1. AVhen lie, or another partner, becomes legally incapa- ble of coutractina; 2. When another partner fails to perform his duties under the agreement of partnership, or is guilty of serious mis- conduct; or, 3. When the business of the partnership can be carried on only at a permanent loss. Notice of Termination. — The liability of a general part- ner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of persons who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dissolution; and in favor of other persons until such dissolution has been advertised in a newspaper published in every county where the partnership, at the time of its dis- solution, had a place of business, if a newspaper is there published, to the extent in either case to which such per- son's part with value in good faith, and in the belief that such partner is still a member of the firm. Notice by Change of Name. — A change of the partner- ship name, which plainly indicates the withdrawal of a part- ner, is sufficient notice of the fact of such withdrawal to all persons to whom it is communicated; but a change in the name, which does not contain such an indication, is not notice of the withdrawal of any partner. Partnersl:ip, under Fictitious Name. — Except as other- wise provided in the next paragraph, every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons in- terested as partners in such business, must file with the clerk of the county in which its principal place of business is situated, a certificate stating the names in full of all the members of such partnership and their places of residence, and publish the same once a week for four successive weeks, 42 658 LAW ENCYCLOPEDIA. in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county. Foreign Partnerships. — A commercial or banking part- nership, established and transacting business in a place without the United States, may, without filing the certifi- cate, or making the publication prescribed in the last par- agraph, use in this state the partnership name used by it there, although it be fictitious, or do not show the names of the persons interested as partners in such business. Certifioate of Partnership to be Filed. — The certificate filed with the clerk, as provided in the paragraph next pre- ceding, must be signed by the partners, and acknowledged before some officer authorized to take the acknowledgment of conveyances of real property. "Where the partnership is hereafter formed, the certificate must be filed, and the publication designated in that section must be made with- in one month after the formation of the partnership, or within one month from the time designated in the agree- ment of its members for the commencement of the part- nership; where the partnership has been heretofore formed, the certificate must be filed, and the publication made with- in six months after the passage of this act. Persons doing business as partners contrary to the provisions of this arti- cle, shall not maintain any action upon or on account of any contracts made or transactions had in their partnership name, in any court of this state, until they have first filed the certificate and made the publication herein required. Certificate on Change of. — On every change in the mem- bers of a partnership transacting busii^ess in this state under a fictitious name, or a designation which does not show the names of the persons interested as partners in its business, except in the cases mentioned in the next pre- ceding paragraph a new certificate must be filed with the county clerk, and a new publication made, as required by this article on the formation of such partnership. PAKTNEKSHIP. 659 Register Kept. — Every county clerk must keep a register of the names of firms and persons mentioned in the certifi- cates filed with him, pursuant to this article, entering in alphabetical order the name of every such partnership, and of each partner therein. SPECIAL PAETNEESHIP. Formation of Special Peirtnership. — A special partner- ship may be formed by two or more persons, in the man- ner and with the effect prescribed in this article, for the transaction of any business except banking or insurance. Of -what to Consist. — A. special partnership may consist of one or more persons called general partners, and one or more persons called special partners. Certified Statement. — Persons desirous of forming a special partnership must severally sign a certificate, stating: 1. The name under which the partnership is to be con- ducted; 2. The general nature of the business intended to be transacted; 3. The names of all the partners, and their residences, specifying which are general and which are special part- ners; 4. The amount of capital which each special partner has contributed to the common stock; 5. The periods at which such partnership will begin and end. Certificates under the last paragraph must be acknowl- edged by all the partners, before some officer authorized to take acknowledgment of deeds, one to be filed in the clerk's office, and the other recorded in the office of the recorder of the county in which the principal place of business of the partnership is situated, in a book to be kept for that purpose, open to public inspection; and if the partnership has places of business situated in different counties, a copy of the certificate, certified by the recorder in whose office 660 LAW ENCYCLOPEDIA. it is recorded, must be filed in ilie clerk's office, and re- corded in like manner in the office of the recorder in every such county. If any false statement is made in any such certificate, all the persons interested in the partnership are liable, as general partners, for all the engagements thereof. Afiidavit as to Sums Contributed. — An affidavit of each of the partners, stating that the sums specified in the cer- tificate of the partnership as having been contributed by each of the special partners, have been actually and in good faith paid, in the lawful money of the United States, must be filed in the same office with the original certifi- cate. No Partnership until Compliance. — No special partner- ship is formed until the provisions of the last five para- graphs are complied with. Certificate to be Published. — The certificate mentioned in this paragraph, or a statement of its substance, must be published in a newspaper printed in the county where the original certificate is filed, and if no newspaper is there printed, then in a newspaper in the state nearest thereto. Such publication must be made once a week for four suc- cessive weeks, beginning within one week from the time of filing the certificate. In case such publication is not so made, the partnership must be deemed general. Afladavit of Publication Filed. — An affidavit of the mak- ing of the publication mentioned in the preceding para- graph made by the printer, publisher, or chief clerk of the newspaper in which such publication is made, may be filed with the county recorder with whom the original certificate was filed, and is presumptive evidence of the facts therein stated. Rene^val of Special Partnership. — Every renewal or con- tinuance of a special partnership must be certified, re- corded, verified, and published in the same manner as upon its original formation. PARTNERSHIP, FORMS OF. 661 Who to do Business. — ^Tlie general partners only have authority to transact the business of a special partnership. Investigation of. — A special partner may at all times in- vestigat3 the partnership affairs, and advlfee his partners or their agents as to their management. May Loan Money. — A special partner may lend money to the partnership, or advance money for it, and take from it security therefor, and as to such loans or advances has the same rights as any other creditor, but in case of the in- solvency of the partnership, all other claims which he may have against it must be postponed until all other creditors are satisfied. May Sue Alone.;— In all matters relating to a special partnership its general partners may sue and be sued alone. FORMS. Commercial Partnership Agreement, Memorandum of agreement made and entered into at the city of. . . . , tliia day of , A.D. eighteen hundred and , between , and all of the city of ■witnesseth, that the said parties have this day and do hereby associate themselves together as copart- ners in trade, in said city of , under the firm name and style of . . . , and , and do make and adopt the following covenants, provisions and articles, of agreement, with each other, respecting their said copartner- ship and the business to be conducted by them, viz : 1st. The said copartnership shall continue for years from the date hereof. 2d. The said copartners shall contribute to the capital stock of said co- partnership as follows : The said and , at least dollars each, and the said ' , at least dollars in cash. [Or, each one contributes an equal sum. If one contributes more than another and interest is to bo allowed, state the rate, etc.] 3d. The partners shall share the profits of their said business equally. [State how they are to share.] 4th. The said copartnership engaged in the general grocery, provision and liquor, business, and the character of the business shaU not be changed without the consent of all the partners thereto in writing. 5th. No partner shall sign or use the firm name for any purpose not con- nected with their legitimate business, and shaU not sign or indorse any promissory note, bond, obligation or agreement, nor become surety, for the benefit or accommodation of any person whatever, without the consent, in writing, of his copartners. [Or, "he shall not sign or indorse," etc., in matters not in relation to the firm's business.] Gth. Each partner shall devote his exclusive attention to the business of the firm, and shall engage in no other business or transaction whatever, but 662 LAW ENCYCLOPEDIA. this shall not be held to prevent either partner from employing • his private means in any investment or transaction he may please : provided, however, he do not employ or invest them in any business or transaction that may compete with the business and interests of the copartnership. 7th. Each partner slft,ll consult his copartners in reference to all trana- aotions connected with the business, as often as practicable, and if practica- ble to advise and consult with his copartners ; neither party shall make any purchase exceeding dollars, without the consent of such partners, nor any sale and delivery on credit exceeding dollars, without the like consent. 8th. The said and shall be allowed to draw from the profits of the concern an amount not to exceed dollars a month, and the said not to exceed dollars a month, for their personal expenses. 9th. The profits of the concern shall be suffered to remain in the busi- ness, and no part of the same shall be withdrawn except the allowance and personal expenses as aforesaid, except by consent of all parties. 10th. Full, true and perfect, books of accounts shall be kept, to which either partner shall have access at all times ; balances shall be struck and balance sheets shall be made out as often as once in every months, at which time each partner shall be entitled to be credited with his share of the earned profits of the business not withdrawn, as an increase of his capital. 11th. Upon a dissolution of the copartnership, any excess of capital which one partner may have invested in the concern, shall be first paid, and after that the property of the concern shall be equally divided between the partners. In witness whereof, the said parties to these presents have signed hereto and to two others of like tenor and date, the day, and year first mentioned. [Signed] General Copartnership. Articles of agreement, made this day of , one thousand eight hundred and , between of the one part, and , of the other part, witnesseth, as follows : The said parties above-named have agreed to become copartners in business, and by these presents do agree to become copartners in business together, under and by the name or firm of and in the business of and , and in buying, selling and vending, all sorts of goods, wares and merchandise, to the said business belonging, and to occupy the store No street, in the city of their copartnership to commence on the day of 18.., and to continue for the term of years from thence next ensuing, fully to be complete and ended ; and to that end and purpose the said and , have delivered in, as capital stock, the sum of dollars, share and share alike, "to be used and employed in common between them, for the support and management of the said business, to their mutual benefit and advantage. PAETNEESHIP, FOEMS OP. 663 And it is agreed, by and between tlie parties to these presents, that at all times during the continuance of their copartnership, they and each of them, will give their attendance, and to the utmost of their skill and power exert themselves, for their joint interest, profit, benefit and advantage, and truly employ, buy and sell, merchandise, with their joint stock, and the increase thereof, in the business aforesaid.; and, also, that they shall' and will, at all times, during their copartnership, bear, pay and discharge, equally between them, all rents and other expenses that may be required for the support and management of the said business, and that all gains, profits and increase, that shall come, grow or arise, from or by means of their said business, shall be divided between them, the said copartners, share and share alike ; and all loss that shall happen to their said joint business, by all commodities, bad debts or otherwise, shall be borne and paid equally between them. And it is agreed, by and between the said parties, that there shall be kept, at all times during the continuance of their copartner- ship, perfect, just and true, book of accounts, wherein each of the said co- partners shall enter and set down, as well all money by them or cither of them received, paid, laid out and expended, in and about the said business, as also' all the goods, wares, commodities and merchandise, by them or either of them bought or sold, by reason or on account of the said busi- ness, and all other matters and things whatsoever, to the said business and management thereof, in anywise belonging ; which said books shall be used in common between the said copartners, so that either of them may have access thereto. And tlso, the said copartners, once in each year, during the continuance of the said copartnership as aforesaid (to wit : on the day of in each year) , or of tener if necessary, shall make, yield and render, each to the other, a true, just and perfect, inventory and account of aU the profits and increase by them or either of them made, and of all loss by them or either of them sustained ; and also, of all the payments, re- ceipts and disbursements, and of all other things by them made, received, disbursed, acted or suffered, in their said copartnership and business, and the same account being so made, they shall and will clear, adjust, pay and deliver, each to the other, at the time their just share of the profits so made as aforesaid ; and the said parties hereby mutually covenant and agree to and with each other, that during the continuance of the said copartner- ship, neither of them shall or will indorse any note or otherwise become surety for any person or persons whomsoever, without the consent of the other of the said copartners. And at the end or other sooner determina- tion of their copartnership, the said copartners, each to the other, shall and will make a true, just and final, account of all things relating to their said business, and in all things truly adjust the same ; and all and every stock and stocks, as well as the gains and increase thereof, which shall. appear to be remaining, either in money, goods, wares, fixtures, debts or otherwise, shall be divided between them, share and share alike. In witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year above written. [Signed] [L.S.] [L.S.] Signed and sealed, in presence of / C64 LAW ENCYCLOPEDIA. Farmirig Partnership Contract. Memorandtim of an agreement made and entered into at the of , the day of , a.d. eighteen hundred and . . . ., between .of county, and and , of said of , witnesseth, that the said parties named above have become and now are the owners of the following described property, situated in the county of [insert description], and of the stock, personal property and improvements, thereon, each of an undivided one-third of the same, as tenants in common and not as joint tenants, and they have agreed upon the following terms and articles of association, for the possession and improvement of said property : The said parties agree to continue together in the business of raising cattle, horses and other stock, and general farming, upon the land aforesaid, for the period of years from the date hereof, and they shall be equally entitled to the increase and profits arising from the same. All business transacted by any of said parties respecting their common affairs, shall be done with the knowledge and consent of Ihe other associ- ates ; all sales shall be made for cash, and no purchases whatever shall be made, except for cash, without they all agree thereto. No promissory note or other obligation shall be signed or indorsed by any of the associates, in reference to matters affecting their common interest, except by the unani- mous consent of all. IHach of the associates shall be required to give his personal attention and services to the business and affairs of the association or to be represented by other labor in his place, or to make some equivalent therefor. The proceeds of all crops, stock or produce, sold shall belong to the associates. Neither of the associates shall draw from the funds of the association more than dollars per month, for his personal use, and all marketable produce taken from the common stock or general farm, for the private use or consumption of either of the associates, shall be charged to and accounted for by the person who shall have taken the same. In witness whereof, etc. Agreement to make a Partnership at a future Day, This agreement, made the day of one thousand eight hundred and by and between , of the first part, and , of the second part, both of the county of , state of , witnesses ; The said parties mutually covenant, promise and agree, to and with each other, that at any time from and after the expiration of months from the date of this agreement, they, the said parties, shall and will, tipon days' notice in writing from either to the other, enter into and execiito writ- ten articles of copartnership [under seal] to carry on the business of at the city of , in the state of and in the United States - of America generally ; said articles of copartnership to go into effect as soon after the execution thereof as may be ; the term of the said copartnership to be not less than nor more than years from the date of said articles, fully to be complete and ended. That the firm name of said copartnership shall be & Co., the PAETNEESHIP, FOEMS OF. 665 profits to bs divided equally,' and any losses, if such there be, to be borne by said parties equally ; that at all times during the contiiiuanoo of their said copartnership, the said parties and each of them, shall and will give their attendance and do their and each of their best endeavors and to the utmost of their skill and power, exert themselves for their joint interest, profit, benefit and advantage, in the business aforesaid ; that the said .... shall have the charge, direction and control, of the business department of said copartnership. And the parties also further mutually covenant, promise and agree, to and with each other, that this agreement shall be and remain in force, for .... years from the date thereof ; and for the true and faithful performance of all the covenants and agreements above-mentioned, the parties to these presents, have this day executed and delivered, each to the other, bonds in the sum of dollars, as fixed and liquidated damages to be paid by the failing' party, which said bonds are hereto annexed and form part of this agreement. ' [l.s.] [I.-S.3 Agreement to Menew Parinership to he Indorsed on Original Article. "Whereas, the partnership formed by and mentioned in the within article of agreement has this day expired [or, "will expire on the day of next"] by the limitations contained herein, it is therefore hereby agreed that the same shall be continued, on the same terms and with all the pro- visions and restrictions in said agreement mentioned, for the further term of years from this date [or, "from the day of ... . next"]. Witness our hands and sealSi^this .... day of . . . . , IS . . In presence-of Agreement of Dissolittion to be Indorsed on the Original Article. By mutual consent of the undersigned, the parties to the within agree- ment, the partnership thereby formed is wholly dissolved, except so far as it may be necessary to continue the same for the final liquidation and settle- ment of the business thereof ; and said agreement is to continue in force until such final liquidation and settlement be made, and no longer. Witness, etc. Agreement to make Changes in a Copartnership. This agreement, made this day of a.d. 18. ., between , of the one part, and , of the other part, witnesseth '. Whereas, on , the said and entered into and made, by agreemeint in writing, a copartnership under the style and firm of & Co., for the purpose of carrying on a general fancy dry-goods business in , which partnership was, by the terms of such agreement, to expire on : LAW ENCYCLOPEDIA. And, ■whereas, it ia thought best by said & Co. that the said agreement of copartnership should be modified as to the period fixed for the expiration thereof and in other respects as hereinafter set forth ; and, whereas, the said is desirous of making with the said an agreement for the selling out, at a future period, to said he, said , of all his right, title, interest and share, in the said copart- nership and in the stock, assets and property, of every kind thereto belong- ing, as hereinafter set forth : Kow, therefore, the said and mutually agree with and to each other as follows : 1st. On the sum of doUars shall be placed to the credit of said upon the books of & Co., which sum shall be paid out of the concern to him at any time within years from that date, in amounts of not less than dollais at a time, together with interest at per cent, per month until paid. 2d. There shall also be paid to said , from and after said the sum of .... dollars per month, payable monthly, so long as the said sum of doUars, with interest as aforesaid, shall remain unpaid. 3d. Upon the payment to said of the sum of mon^y as in arti- cles one and two mentioned, the same shall be in lieu and in full to him of all his right, title and interest, in and to the said copartnership of & Co. and the stock, good-will, firm-name, assets and property, of every kind whatever, thereunto belonging, and the same shall fully vest in and belong to the said and all interest, right and title, of the said shall then and thereby wholly cease and determine, and the said co- partnership of the said and the said shall then and thereby expire and be dissolved. 4th. That in the meantime, and until the contingency as provided and set forth in article three shall have taken place, the said shall continue to give his whole time and attention to the said copartnership of & Co. and to the business and afiairs thereof, under and subject to the control and management of the said so long as he shaU be present and able to act. At all times during said period the said '. shall' have full and free access to the book accounts and papers of said copartnership. 5th. The payment to the said of the sum of money in articles one and two mentioned, shall be in lieu and in fuU' to him of all his share or interest of and in the profits of the said copartnership. In witness whereof, the parties hereto,have signed and sealed this agree- ment the day above-named, [Signed] Agreement of Limited Copartnership, in Accordance with the Act of tlie legisla- ture of California of April 4th, 1850, and the Amendments. Articles of agreement made and concluded this . . . day of , a.d. one PAETNEESHIP, FORMS OF. 667 thousand eight hundred and between ot' the city of , of the first part of said city, of the second part, and .of the city of . . . . , of the third part. The said parties to these presents do hereby tigree to associate themselves together in a limited partnership for the purpose of carrying on, in the city of the art and trade of manufacturing, purchasing and selling, , under the name and style of & the said and being general partners and the said a special partner; that said copartnership shall commence at and on the date of these presents and ter- minate on the day of a.d. one thousand eight hundred and . . . . ; that the said .., as a general partner, has contributed in cash [or otherwise, as the case may be] the sum of dollars ; that the said also as a general partner, has contributed the sum of .... dollars, and the said as a special partner has contributed also the sum of dollars, to the capital sto'ck of the said firm. It is further agreed by and between the parties to this agreement that the interest in the capital stock aforesaid, of each of the partners, shall be the one-third of the yearly profits of the business of said firm. And it is further mutually understood and agreed by and between the parties hereto, that if any one of the respective parties desire the portion of the annual profits to which he may be entitled to remain with said firm for the mutual use and benefit of all the parties to this agreement, then and in that case the portion of the profits so remaining shall draw interest at the rate of per cent, per annum, which said interest shall be paid to the party entitled thereto on the day of thereafter in each and every year during the term of this agreement. And it is further agreed, by and between the parties to this agreement, that and shall and will, from time to time, and at all times during the said term [if they shall so long live], devote their personal services, skill and ability, to the business of said firm, and for the mutual benefit of all the parties to this agreement, and as a compensation for said services the said and shall each be allowed a salary of dollars per month, to be drawn from the profits of said business on the .... day of every month during the term of this agreement. And it is further agreed, by and between the parties to this contract, that the said general partners shall, during the term of copartnership, keep true and just books of accounts, in which shall be entered all moneys received and expended in and about the business of said firm, to which books each of the respective parties hereto shall have free access. And also, on the day of , in each and every year during the term of said copartnership, a general account shall be stated of all profits made and losses sustained by said firm ; and further, upon making the said account at the expiration of the term hereof, a copy of said account shall be furnished to each of the parties to this agreement, his executors, admin- istrators or assigns ; and at the same time all the capital stock, together with the profits thereof, shall be divided between the said parties, their executors, administrators and assigns, in the proportions first above men- tioned, to vrit : one-third to each and every one of the parties hereto. 668 LAW ENCTOLOPEDIA. And it is further agreed, by and between the parties to tliis agreement, that, during the term hereof, no one of the parties hereto shall pledge his individual liability for or on behalf of any person or matter beyond the business of this copartnership. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. [Signed] [l.s.] [i-s.] [L.S.] Signed, sealed and delivered, in presence of Certificate of Limited Partnership, in accordance with the said Act. This is to certify, to aU to whom these presents shall come, that we, whose names are hereunto severally subscribed, have entered into a limited part- nership, within the state of under and by virtue of an act of the legis- lature of said state [and the supplements thereto], passed the day of A.D. 18. ., entitled "An act to authorize the formation of limited part- nerships, and the amendments and acts supplemental thereto," upon the terms and liabilities hereinafter set forth, to wit : 1st. The said partnership is to be conducted under the name and style of 2d. The names of the general partners in the said firm are and both residents of the city of . . . . , state of and the special partner is of the city of , state aforesaid. 3d. The said special partner, has contributed to the capital stock of said firm the sum of dollars. 4th. The general nature of the business to be transacted by the said firm is the manufacturing, purchasing and selling .... 5th. The said partnership is to commence immediately at and after the signing of this certificate, and is to terminate on the .... day of .... , a.d. one thousand eight hundred and Made and severally signed by the said partners, at the-city of , the day of , A.D. one thousand eight hundred and [Signed] [Acknowledged by all the partners in due form, the same as in deeds and mortgages.] Affidavit of Pvblieation on foregoing Certificate. County of ss : being duly sworn, says, that he is a [or, "publisher"], of the , a daily newspaper, printed and published in the county of and that the annexed certificate has been published in said jjaper daily, for three successive weeks, commencing on the day of 18 . . , and ending this day of 18. . [Signed] Sworn before me, , 18 . . Notary public. PAKTY WALLS — PATENTS. C69 PARTY WALLS. Party Walls. — Where a party -wall exists between two buildings belonging to different persons, if one of them take it down with his building, he must re-erect it in rea- sonable time and with the least inconvenience. The other owner shall contribute to the expense, if the wall requires repairs ; but he cannot be charged with the expense of a wall more costly than the former one. If tAvo Persons have a party wall, one-half .of the thick- ness of which stands on the land of each, they are not therefore tenants in common of the wall or of the land on which it stands, although the wall was erected at the joint expense of the two proprietors. The common use of a wall separating adjoining lands belonging to different owners, is prima facie evidence, however, that they are tenants in common. Removing and Repairing. — ^If the owner of a house in a compact town finds it necessary to pull it down and remove the foundations of his building, and he gives due notice of his intention to the owner of the adjoining house, he is not answerable for the injury which the owner of that house may sustain by the operation, provided he remove his own with reasonable and ordinary care. Where there had been no party wall, but the wall of the house destroyed stood wholly on the lot of the house pulled down or destroyed, yet if the beams of the adjoining house rested upon the wall pulled down and had done so for a period sufficient to establish an easement by prescription, the owner of the adjoining house would be entitled to have the beams of his house inserted for a resting-place in the new wall, should one be erected. 670 LAW ENCYCLOPEDIA. PATENTS. The act of Congress of July 8, 1870, is the only law now in force relating to patents for inventions and designs, and to trade marks and copyrights. What follows is selected from the latest rules and regulations of the patent office : "Who may Obtain a Patent. — Any person, whether citizen or alien, being the original and first inventor or discoverer of any new and useful art, machine, manufacture, or compo- sition of matter, or any new and useful improvement thereof, may obtain a patent for his invention or discovery, subject to the conditions as to public use and abandonment herein- after named. Death of Inventor. — In case of the death of the inventor, the patent may be applied for by, and will issue to, his legal representatives; and in case of an assignment of the whole, or of any undivided interest in the invention, the patent may issue to the assignee of the whole interest, or jointly to the inventor and the assignee of the undivided interest, the as- signment being first entered of record, and the application being duly made and the specification duly sworn to by the inventor. Joint Inventors. — Joint inventors are entitled to a joint patent; neither can claim one separately; but independent inventors of separate improvements in the same machine cannot obtain a joint patent for their separate inventions; nor does the fact that one man furnishes the capital and the other makes the invention entitle them to take out a joint patent. When Not Granted. — Although an applicant may have actually made an invention, a patent therefor will not be granted him if the whole or any part of what he claims as new has been, before his invention, patented or described in any printed publication in this or any foreign country, or been invented or discovered in this country, nor if he has once abandoned his invention to the public, nor if it has been in public use or on sale for more than two years pre- vious to his application. PATENTS. 671 When Granted — If the inventor, at tlie time of making his application, believes himself to be the first inventor or discoverer, a patent shall not be refused an account of the invention or discovery, or any part thereof, having been before known or used in any foreign country; it not appear- ing that the same or any substantial part thereof had before been patented or described in any printed publication. What is Invention. — Merely conceiving the idea of an improvement or machine is not an " invention" or " discov- ery." The invention must have been reduced to a practical form, either by the construction of the machine itself, or of a model thereof, or by making a drawing of it, or by such disclosure of its exact character as that a mechanic can and does, from the description given, constructthe improvement or a model thereof, before it will prevent a subsequent in- ventor from obtaining a patent. Application. — All applications for patents shall be com- pleted and prepared for examination within two years after the filing of the petition, and in default thereof, or upon failure of the applicant to prosecute the same within two years after any action therein, of which notice shall have been given to the applicant, they shall be regarded as aban- doned by the parties thereto, unless it be shown to the satis- faction of the commissioner that such delay was unavoid- able. Who Must Apply.— The application must be made by the actual inventor, if alive, even if the patent is to issue or reissue to an assignee; but where the inventor is dead, the application and oath may be made out by the executor or administrator. How Made — The application must be made in writing, in the English language, and addressed to the commissioner of patents. The petition and specification must be sepa- rately signed by the inventor. All claims and specifications must be written in a fair, legible hand, without interlinea- tions or erasures, except such as are clearly stated in a mar- ginal or foot note written on the same sheet of paper; other- 672 LAW ENCYCLOPEDIA.. ■wise the office may require them to be printed. All the papers constituting the application must be attached to- gether Spec^Seation. — The specification is a ■written description of the invention or discovery, and of the manner and process of making, constructing, compounding and using the samo, insuch full clear, concise, and exact terms, avoiding ujineces- sary prolixity, as to enable any person skilled in the art or sci- ence to ■(vhich it appertains, or ■with ■which it is most nearly connected, to make, construct, compound and use the same. The applicant must set forth in his specification the pre- cise invention for ■which "he claims a patent; and in all appli- cations for mere improvements, the specification must dis- tinguish between -vvhafc is admitted to be old and -what is described and claimed to be the improvement, so that the office and the public may understand exactly for Trhat the patent is granted. Two or more distinct and separate inventions may not be claimed in one application; but ■where several inventions are necessarily connected each ■with the other, they may be so claimed. If more than one invention is claimed in a single appli- cation, and they are found to be of such a nature that a single patent may not be issued to cover the -whole, the office requires the inventor to divide the application into separate applications or to confine the description and claim to -which- ever invention he may elect. The Epecifieation should describe the dra^wings, (-where there are drawings,) and refer by letters and figures to the different parts; and having fully described the art, machine, manufacture, composition, or improvement, it should partic- ularly specify and point out the part, improvement, or combi- nation -which is claimed as the invention or discovery. The Epeeifioation must be signed by the inventor, or by his executor or administrator, and must be attested by t-wo ■witnesses. Full names must be given, and all names, ■whether of applicant or ■witnesses, must be legibly ■written. PATENTS. 673 Oath. — The oatli or affirmation may be made before any person within the United States authorized by law to admin- ister oaths or, when the applicant resides in a foreign coun- try, before any minister, charg^ d'affaires, consul, or com- mercial agent, holdii\g commission under the government of the United States, or before any notary public of the foreign country in which the applicant may be, the oath being at- tested in all cases, in this and other countries, by the proper official seal of such notary. \ Drawings. — The applicant for a patent is required by law to furnish a drawing of his invention, where the nature of the case admits of it. Such dra-wing must be on thick, smooth drawing paper, sufficiently stiff to support itself in the portfolios of the office. It must be neatly and artistically executed, with such detached sectional views as to clearly show what the invention is in construction and operation. Each part must be distinguished by the same number or letter whenever it appears in the several drawings. The name of the invention should be written at the top, the shortest side being con- sidered as such. This drawing must be signed by the appli- cant or his attorney, and attested by two witnesses, and must be sent with the specification. Tracings upon cloth pasted on thick paper will not be admitted. Thick draw- ings should never be folded for transmission, but should be rolled. The duplicate drawing to be attached to the patent will be furnished by the office without charge, and will be aphoto- lithographic copy of the thick dra-\ving. The following rules must be observed in the preparation of the drawings, in order that they may be photo-litho- graphed : The paper must be thin bristol board or thick drawing paper, with a smooth or calendered surface. The outlines must be executed in deep black lines, to give distinctness to the print. Pale, ashy tints must be dispensed with. In shading, lines of black ink should be used, and such 43 674 LAW ENCYCLOPEDIA. lines should be distinct and sharp, and not crowded. Brusb shadings or shadows will not be permitted. Ail coIdis, except black, must be avoided in the drawing, lettering and signatures; violet and purple inks must not be used. KTo agent's, attorney's, or other stamp must be placed, in whole or in part, within the margin. The sheet must not be larger than ten inches by fifteen, that being the size of the patent. If more illustrations are needed, several sheets must be used. Copies. — Copies of drawings of patents issued after Janu- ary 1, 1869, will be furnished to any oije at the uniform rate of twenty-five cents per sheet of standard size. Copies of drawings of patents issued prior to January 1, 1869, which can be photo-lithographed, will be furnished at twenty-five cents per sheet, when ten or more copies are ordered. Single tracings of such drawings, or less than ten, will be furnished at the cost of making them. One hundred copies or more will be furnished at ten dollars per hundred. Applicants are advised to employ competent artists to make the drawings, which will be returned if not executed in strict conformity with these rules, or if injured by folding. Model. — An applicant, upon filing his specification and drawings, may submit to the commissioner the question whether he shall deposit a model or specimen of his inven- tion; otherwise a model will be required in every case, ex- cept for designs, where the nature of the invention admits of such illustration. Such model must clearly exhibit every feature of the machine which forms the subject of a claim of invention. The model must be neatly and substantially made, of durable material. It should be made as small as possible, but not in any case more than one foot in length, width or height. If made of pine or other soft wood, it should be painted, stained, or varnished. Glue must not be used, but the parts should be so connected as to resist the action of heat or moisture. PATENTS. 675 A ■working model is always desirable, in order to enable the office fully and readily to understand the precise opera- tion of the machine. The name of the inventor and of the asignee, (if assigned,) and also the title of the invention, must be affixed upon it in a permanent manner. When the invention is a composition of matter, a specimen of each c^ the ingredients and of the composition must accompany the application, and the name of the inventor and of the assignee (if there be one) must be permanently affixed thereto. Reissues. — A reissue is granted to the original patentee, his legal representatives, or the assignees of the entire inter- est, when by reason of a defective or insufficient specification the original patent is inoperative or invalid, provided the error has arisen from inadvertence, accident, or mistake, and without any. fraudulent or deceptive intention; but although .the patent has been assigned, the application must be made, and the specification sworn to by the inventor. The petition for a reissue must show that all parties own- ing any undivided interest in the patent concur in the surrender. A statement, under oath, of the title of the party proposing to surrender must be filed with the appli- cation. The general rule is, that whatever is really embraced in the original invention, and so described or shown that it might have been embraced in the original patent, may be the subject of a reissue; but no new matter shall be introduced into the specification, nor in case of a machine patent shall the model or drawings be amended except each by the other : but when there is neither model nor drawing; amendments may be made upon proof satisfactory to the commissioner that such new matter or amendment was a part of the orig- inal invention, and was omitted from the specification by inadvertence, accident, or mistake, as aforesaid. Reissued patents expire at the end of the term for which the original patent was granted. A patentee, in reissuing, may at his option have a sepa- rate patent, for each distinct and separate part of the inven- tion comprehended in his original patent, by paying the 676 LAW ENCYCLOPEDIA. required fee in each case, and complying ■with the other requirements of the law, as in original applications. Each division of the reissue constitutes the subject of a separate specification descriptive of the part or parts of the invention claimed in such division; and the drawing may represent only such part or parts. All the divisions of a reissue will issue simultaneously. If there be controversy as to one, the other will be withheld from issue until the controversy is ended. In all cases of applications for reissues, the original claim, if reproduced in the amended specification, is subject to re- examination, and may be revised and restricted in the same manner as in original applications; biit if any reissue be refused, the original patent will, upon request, be returned to the applicant. Disclaimers. — Whenever, by inadvertence, accident, or mistake, the claim of invention in any patent is too broad, embracing more than that of which the patentee was the original or first inventor, some material or substantial part of the thing patented being truly and justly his own, the patentee, his heirs or assigns, whether of a whole or of a sectional interest, may make disclaimer of such parts of the thing patented as the disclaimant shall not choose to claim or to hold by virtue of the patent or assignment, stating therein the extent of his interest in such patent; which disclaimer shall be in writing, attested by one or more witnessess, and recorded in the patent office. Extensions. — Power is vested in the commissioner to extend any patent granted prior to March 2, 1861, for seven years from the expiration of the original term ; but no patent granted since March 2, 1861, can be extended. Designs. — A patent for a design may be granted to any person, whether citizen or alien, who, by his own industry, genius, efforts, and expense, has invented or produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief: any new and original design for the printing of woolen, silk, cotton, or other fabrics, any new and original impression, ornament, pattern, print, or PATENTS. ' 677 picture, to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture ; or any new, useful, and original shape or configuration of any article of manu- facture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, upon payment of the duty required by law, and other due proceedings had the same as in cases of inventions or discoveries. Patents for desigas are granted for the term of three and one half years, or for the term of seven years, or for the term of fourteen years, as the said applicant may elect in his application. If granted prior to March 2, 1861, and unex- pired, they may be extended for seven years, in the sane manner as patents for inventions. The pstifcion, oath, specification, and other proceedings in the case of applications for letters-patent for a design are the same as for other patents. When a -work of design can be sufficiently represented by a drawing, a model will not be required. Pioiographs are received for the illustration of works of design only. One must be pasted upon thick drawing paper, but in every case where this mode of illustration is em- ployed by an applicant he will be required to deposit in the office the glass or other "negative" from which the photo- graph is printed, so that exact official copies may be made therefrom when desirable. Trade-Marks — Any person or firm domiciled in the United States, and any corporation created by the authority of the United States, or of any State or Territory thereof, and any person, firm, or corporation resident of or lo- cated in any foreign country which, by treaty or conven- tion, aflbrds similar privileges to citizens of the United States, and who are entitled to the exclusive use of any lawful trade-mark, or who intend to adopt and use any trade- mark for exclusive use within the United States, may obtain protection for such lawful trade-mark by complying with the following requirements, to wit : First. By causing to be recorded in the patent office G78 LAW ENCYCLOPEDIA. the names of tlie parties, and their residences and place of business, who desire the protection of the trade-mark. Second. The class of merchandise and the particular description of goods comprised in such class, by which the trade-mark has been or is intended to be appropriated. Third. A description of the trade-mark itself, with fac- similes thereof and the mode in which it has been or is in- tended to be applied and used. Fourth. The length of time, if any, during which the trade-mark has been used. Fifth. The payment of a fee of twenty-five dollars, in the same manner and for the same purpose as the fee required for patents. Sixth. The compliance with such regulations as may be prescribed by the commissioner of patents. Seventh. The filing of a declaration, under the oath of the person, or of some member of the firm or officer of the corporation, to the effect that the party claiming protection for the trade-mark has a right to the use of the same, and that no other person, firm, or corporation has a right to such use, either in the identical form or having such near resem- blance thereto as might be calculated to deceive, and that the description and fac-similes presented for record are true copies of the trade-mark sought to be protected. Sucli trade-mark shall remain in force for thirty years, and may be renewed for thirty years more, except in cases where such trade-mark is claimed for and applied to articles not manufactured in this country, and in which it receives protection under the laws of any foreign country for a shorter period; in which case it shall cease to have force in this country at the same time that it becomes of no effect elsewhere. No proposed trade-mark will be received or recorded which is not and cannot become a lawful trade-mark, or which is merely the name of a person, firm, or corporation only, unaccompanied by a mark sufficient to distinguish it from the same name when used by other persons, or which is identical with a trade-mark appropriate to the same class of merchandise and belonging to a different owner, and al- PATENTS. 679 ready registered or received for registration, or wliicli so nearly resembles such last-mentioned trade-mark as to be likely to deceive the public; but any lawful trade-mark already lawfully in use may be recorded. Five duplicate copies of the proposed trade-mark; in ad- dition to the one accompanying the statement and oath of applicant, must be deposited with each application. Certi- fied copies will be furnished at the usual rates. The right to the use of any trade-mark is assignable by any instrument of writing, and such assignment must be recorded in the patent office within sixty days after its exe- cution. The fees wiU be the same as are prescribed for recording assignments of patents. Foreign Patsnts. — The taking out of a patent in a foreign country does not prejudice a patent previously obtained here, nor does it prevent obtaining a patent here subse- quently, unless the invention shall have been introduced into public use in the United States for more than two years prior to the application; and provided, that the patent shall expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term; but in no case shall it be in force more than seventeen years. When application is made for a patent for an invention which has been already patented abroad, the inventor will be required to make oath that, according to the best of his knowledge and belief, the same has not been in public use in the United States for more than two years prior to the application in this country . An applicant whose invention has been patented abroad should state the fact that a foreign patent has actually been obtained, giving its date, and if there be more than one, of the one having the shortest term. Caveats. — Any citizen of the United States, or alien who has resided for one year last past in the United States, and has made oath of his intention to become a citizen thereof, can file a caveat in the secret archives of the patent oflSce on the payment of a fee of ten dollars therefor. And if, at 680 LAW ENCYCLOPEDIA. any time -witliin one year thereafter, another person applies for a patent for the same invention, the caveator will be entitled to notice to file his application, and to go into inter- ference with the applicant for the purpose of proving priority of invention and obtaining the patent if he succeed. He must file his application within three months from the day on which the notice to him is deposited in the post-office at "Washington, adding the regular time for the transmission of the same to him; and the day when the time for filing expires shall be mentioned in the notice or indorsed thereon. The caveator will not be entitled to notice of any appli- cation pendingat the time of filing hiscaveat, nor of any appli- cation filed after the expiration of one year from the date of filing the caveat; but he may renew his caveat at the end of one year by paying a second caveat fee of ten dollars, which will continue it in force for one year longer, and so on from year to year as long as the caveator may desire. No caveat can be filed in the secret archives of the office unless accompanied by an oath of the caveator that he is a citizen of the United States, or, if he is an alien, that he has resided for one year last past within the United States, and has made oath of his intention to become a citizen thereof; nor unless the applicant also states, under oath, that he believes himself the original inventor of the art, machine, or improvement set forth in his caveat. A caveat need not contain as particular a description of the invention as is requisite in a specification; but still the description should be sufficiently precise to enable the office to judge whether there is a probable interference when a subsequent application 'is filed. Caveat papers cannot be withdrawn from the office nor undergo alteration after they have once been filed; but the caveator, or any person properly authorized by him, can at any time obtain copies of the caveat papers at the usual rates. When practicable, the caveat must be accompanied by drawings or sketches. PATENTS. 681 Assignments. — A patent may be assigned, either as to the whole interest or any undivided part thereof, by any instrument of writing. No particular form of words is neces- sary to constitute a valid assignment, nor need the instru- ment be sealed, witnessed, or acknowledged. A patent will, upon request, issue directly to the assign- ee or assignees of the entire interest in any invention, or to the inventor and assignee jointly, when an undivided part only of the entire interest has been conveyed. Jn every casa where a patent issues or reissues to an assignee the assignment must be recorded at the patent office at least five days before the issue of the patent, and the specification must be sworn to by the inventor. When the patent is to issue in the name of the assignee the entire correspondence should be in his name. The patentee may grant and convey an exclusive right under his patent to the whole or any specified portion of the United States, by an instrument in writing. Every acsi^ment or grant of an exclusive territorial right must be recorded in the patent office within three months from the execution thereof; otherwise it will be void as against any subsequent purchaser or mortgagee for a valu- able consideration without notice ; but, if recorded after that time, it will protect the assignee or grantee against any such subsequent purchaser, whose assignment or grant is not then on record. Teh patentse may convey separate rights under his pat- ent to make or to use or to sell his invention, or he may convey territorial or shop rights which are not exclusive. Such conveyances are mere licenses, and need not be recorded. The reee'p!; of assignments is not generally acknowledged by the office. They will be recorded in their turn within a few days after their reception, and then transmitted to the persons entitled to them. A five-cent revenue stamp is required for each sheet or piece of paper on which an assign- ment, grant, or license may be written. Offic3 Fess, and Hoav Fayabls. — Nearly all the fees payable to tie patent office are positively required by law 682 LAW ENCYCLOPEDIA. to ha paid in advance, that is, upon making application for any action by the office for which a fee is payable. For the sake of uniformity and convenience, the remaining fees "will be required to be paid in the same manner. Tile following is the tariff of fees established by law: On filing every application for a design, for three years and six months $10 00 On filing every application for a design, for seven years 15 00 On filing every application for a design, for fourteer years • 30 00 On filing every caveat 10 00 On filing every application for a patent 15 00 On issuing each original patent 20 00 On filing a disclaimer 10 00 On filing every application for a reissue 30 00 On filing every application for a division of a reissue 30 00 On filing every application for an extension 50 00 On the grant of every extension 50 00 On filing the first appeal from a primary examiner to examiners-in-chief 10 00 On filing an appeal to the commissioner from ex- aminer-in-chief 20 00 On depositing a trade mark for registration 25 00 For every copy of a patent or other instrument, for every one hundred words 10 For every certified copy of drawing, the cost of having it made For copies of papers not certified, the cost of having them made For recording every assignment of three hundred words or under 1 00 For recording every assignment, if over three hun- dred and not over one thousand words 2 00 For recording every assignment, if over one thou- sand words -3 00 The final fes on issuing a patent must be paid within six months after the time at which the patent was allowed, and PATENTS. 683 notice thereof sent to the applicant or his agent. And if the final fee for such patent be not paid within that time, the patent will be forfeited, and the invention therein described become public property; as against the applicant therefor, unless he shall make a new application therefor; unless he shall make a new application therefor within two years from date of the original allowance. The money for the payment of fees may be paid to the commissioner, or to the treasurer, or any of the assistant treasurers of the United States, or to any of the designated depositaries, national banks, or receivers of public money, designated by the secretary of the treasury for that pur- pose, who shall give the depositor a receipt of certificate of deposit therefor, which shall be transmitted to this office. When this cannot be done without much inconvenience, the money may be remitted by mail, and in every case the letter should state the exact amount inclosed. Letters con- taining money may be registered. Post-office money-orders now afford a safe and convenient mode of transmitting fees. All such orders should be made payable to the commis- sioner of patents. All money sent by mail, either to or from the patent office, will be at the risk of the owner. In no case should money be sent inclosed with models. All payments to or by the office must be paid in specie, treasury notes, national bank notes, certificates of deposit, or post-office money- orders. Repajmient of Money. — Money paid by actual mistake will be refunded ; but a mere change of purpose after the payment of money will not entitle a party to demand such return. Rules of Correspondence. — All correspondence must be in the name of the "commissioner.of patents," and all letters and,other communications intended for the office must be addressed to him. If ad Jressed to the acting or assistant commissioner, chief clerk, examiners, or any of the other officers, they will not be noticed, unless it should be seen that the mistake was owing to inadvertence. A separate 684 LAW ENCyca.OPEDIA. letter should in every case he written in relation to each distinct subject of inquiry or application, the subject of tlie inTention and the date of filing being always carefully noted. When an agent has filed his power of attorney, duly executed, the correspondence will, in ordinary cases, be held with him only. A double correspondence with him and his principal, if generally allowed, would largely in- crease the labor of the office. For the same reason, the assignee of an entire interest in an invention is entitled to hold correspondence with the office, to the exclusion of the inventor. If the principal becomes dissatisfied, he must revoke his power of attorney and notify the office, which will then communicate with him.' All commaiiications to and from the commissioner upon official business are carried in the mail free of postage. After a se3ond rejection 'none of the papers can be in- spected, save in the presence of a sworn officer; nor will any of the papers be returned to the applicant or agent. Whenever it shall be found that two or more parties whose interests are in conflict are represented by the same attorney, the examiner in charge will notify each of said principal parties of this fact, and also the attorney. Aside from the caveats, which are required by law to be kept secret, all pending applications are, as far as prac- ticable, preserved in like secrecy. No information will, therefore, be given those inquiring whether any particular case is before the office; or whether any particular person has applied for a patent. But information is given in relation to any case after a patent has issued, or after a patent has been refused, and the further prosecution of the application is abandoned or barred by lapse of time. The raoilel3, in such cases, are so placed as to be subject to general inspection. The specifications and drawings in any particular case can be seen by any one having partidular occasion to examine them; and copies thereof, as well as of patents granted, will be furnished at the cost of making them. Copies will be made on parchment, at the request of the applicant, on his paying the additional cost. PATENTS. 685 Even after a case is rejected, tlie application is regarded as pending, unless the applicant allows the matter to rest for two years without taking any further steps therein, in which case it will be regarded as abandoned, and will no longer be protected by any rule of secrecy. The specifica- tions, drawings, and model will then be subject to inspection in the same manner as those of patented or withdrawn ap- plications. Inrormation in relation to pending cases is given so far as it becomes necessary in conducting the business of the office; but no further. Thus, when an interference is de- clared between two pending applications, each of the contestants is entitled to a knowledge of so much of his antagonist's case as to enable him to conduct his own understandingly. The office cannot respond to inquiries as to the novelty of an alleged invention in advance of an application for a patent; nor upon inquiries founded upon brief and imper- fect descriptions, propounded with a view of ascertaining whether such alleged improvements have been patented; and, if so, to whom; nor can it act as an expounder of the patent law; not as counselor for individuals; except as to questions arising within the office. A copy of the rules, with this section marked, sent to the individual making an inquiry of the character referred to, is intended as a respect- ful answer by the office. All business with the office should be transacted in writ- ing. Unless by the consent of all parties, the action of the office will be predicated exclusively on the written record. No attention wiU be paid to any alleged verbal promise or understanding in relation to which there is, any disagreement or doubt. Attorneys and Agents. — Any person of intelligence and good moral character may appear as the attorney in fact or agent of an applicant, upon filing a proper power of attorney. " As the value of patents depends largely upon the careful preparation of the specification and claims, the assistance of competent counsel will, in most cases, be of advantage to the applicant; but the value of their services will be pro- LAW ENCTCLOPEDIA. portioned to their skill and honesty. So many persons have entered this profession of late years without experience, that too much care cannot be exercised in the selection of a competent man. The office cannot assume responsibility for the acts of attorneys, nor can it assist applicants in making a selection. It will, however, be a safe rule to dis- trust those who boast of the possession of special and pecu- liar facilities in the office for procuring patents in a shorter time or with more extended claims than others. Povrers of Attorney must contain a clause of substitu- tion; to authorize the attorney to substitute for, or associate with himself, a second agent; but such powers will not au- thorize the second agent to appoint a third. A power of attorney must be filed in every case, both by original and associate attorneys, before such attorney will be allowed to inspect papers or take action of any kind ; but a revenue stamp need be affixed to original ^ powers only. FOKMS PKESCEIBED BY THE PATENT OFFICE. Petition hy a Sole Inventor. To the commissioner of patents; Your petitioner prays that letters-patent may be granted 1» him for the inTention set forth in the annexed specification. Peiiiion by Joint Inventors, To the commissioner of patents : Your petitioners pray that letters-patent may be granted to them, as joint inventors, for the invention set forth in the annexed specification. Petition by an Invemtor, for an Assignee. To the commissioner of patents: Your petitioner prays that letters-patent may be granted to , aa his assignee, for the invention set forth in the annexed specification. Petition by an Administrator. To the commissioner of patents : Your petitioner, administrator of the estate of , de- ceased, (as by reference to the duly certified copy of letters of administra- tion, hereto annexed, wiU more fully appear, ) prays that letters-patent may PATENTS, FOEMS OF. 687 be granted to Mm for the iuvention o£ the said , set forth in the annexed speci£cation. , administrator, etc. Petition hy on Executor, To the commissioner of patents : Tour petitioner, executor of the last will and testament o| , deceased, (as by reference to the duly certified copy of letters testamentary, hereto annexed, will more fully appear,) prays that letters- patent may be granted to him for the invention of the said set forth in the annexed specification. executor, etc. PeiUion for a lie-issue (by the InventorJ . To the commissioner of patents: Your petitioner prays that he may be allowed to surrender the letters- patent for an improvement in coal scuttles, granted to him 18 . . , whereof he is now sole owner, [or, "whereof , on whose behalf and with whose consent this application is made, is now sole owner, by assignment, ] and that letters-patent may be re-issued to him for the same invention, upon the annexed amended specification. Petition for Letters-Patent for a Design. To the commissioner of patents : Tour petitioner prays that letters-patent may be granted to him for the new and original design set forth in the annexed specification. Power of Attorney. To the commissioner of patents : The undersigned having, on or about the day of 18.., made application foi letters-patent for an improvement in a horse-power. hereby appoints , of the city of , his attorney, with full power of substitution and revocation, to prosecute said application, to make alterations and amendments therein, to receive the patent, and to transact all business in the patent office connected therewith. Signed at , county of , and state of , this .... day of A.D. 18... Specifications for a Machine. I, of , in the county of , and state of have invented certain improvements in planing machines, of which th« fol- lowing, is a specification : The first part of my invention relates to the combination of rotary cutters and feeding-rollers, in such a manner that the said feeding-rollers shall be capable of feeding the lumber to the cutters, and also of effectually resisting 688 LAW ENCYCLOPEDIA. the tendency of the cutters to draw the lumber upward toward them ; the object of this j^art of my invention being to reduce the lumber operated upon to a uniformity of thickness, and to give it a planed and even surface upon one side thereof. The second part of my invention relates to the combination, with feeding- roUers and rotary cutters, for planing one of the principal surfaces of the lumber, of rotary machine cutters so as to form a tongue or groove, or both, upon the edge or edges of the lumber, at the same time that one of its prin- cipal surfaces is planed. Figure 1 is a side elevation of a machine embodying my invention. Figure 2 is a plan of the same. Figure 3 is an elevation showing that end of the machine which is at the right hand of Figure 1. . ' Figure 4 is a vertical transverse section, showing those parts of the ma^ chine which are at the right hand of the line xx drawn across Figures 1 .and 2. A is the frame of the machine, which frame should be substantially con- structed, to resist the vibrations of the operating parts. B is the driving puUey, which is hung on the main shaft C of the machine, from which latter, motion is communicated to the operating parts. D is the shaft of the rotary cutters by which the lumber is planed. This shaft is made flat upon two of its sides, between its bearings, for the reception of the cutters E E, which are firmly secured to it by bolts a a, the holes through these cutters for the reception of these bolts being elongated in the direction of the width of the cutters, to allow the necessary adjustment of the cutters. The shaft D is hung in adjustable bearings, by which it may be elevated and depressed to regulate the thickness of the planed lumber. F is a pulley on the shaft D, which receives motion by belt G, from the band wheel H, on the driving shaft. 1 1 and J J are the feeding rollers, each pair of which is connected by finger pinions 6 6, and the upper roller of each pair is hung in spring bearings, which allow it to yield slightly upward to pressure, to adapt it to any differences or inequalities in the thickness of the lumber. The lower roller of each pair is provided with a worm wheel c, which meshes into a worm or endless screw d on the shaft Jc, which is propelled by a bevel wheel I on the main shaft, working into the bevel wheel / on the shaft fc. L and M are cutters hung on vertical shafts N and O, one set of these cutters being adapted to form a groove, and the other to form a tongue up n the edge of the board to be operated upon. These cutters are attached to the shafts in the manner already described with relation to the cutters E E. The shafts N and O are provided with' pulleys g g, and rotation is communicated to . them by belts h h from pulleys t i, on the main shaft ; rotation being given in the direction of the arrow to the driving pulley. The lumber to be planed is introduced from the end of the machine, which is shown at the right hand in figures 1 and 2, and being grasped by the rollers 1 1, is by them drawn for- ward to the cutters E E, which being rapidly revolved toward the advancing lumber, piano it to the proper thickness ; and as the lumber continues to advance, it is grasped by the rollers J J, which aid in the feeding motion, and discharge the board after it has. passed the cutters. The upper rollers I and J, being hung in spring bearings, always exert a pressure on the top PATENTS, F0BM3 01". 689 of the board, and prevents its being raised by the action of the cutters E E. When the lumber is designed for floors or ceilings, or other purpose for which it is required to be matched, a tongue is formed upon one edge of it, and a groove in the other, by the cutters L and M, which both revolve to- ward the advancing board ; and these operations are performed at the same time that the upper surface of the board is planed, the whole being done at u. single operation. "When the lumber is required to be matched, it should be first reduced to a uniform width, and guided into its introduc- tion into the machine by a gauge P attached to the bed Q of the machine. When the lumber is not to be matched, this gauge and the cutters li and M should be taken off and dispensed with. I claim as my invention — 1. The combination of the cutters E E and the feeding rollers 1 1 and J J, substantially as and for the purpose hereinbefore set forth. 2. The combination with the cutters E E and feeding rollers 1 1 and J J, of the cutters L and M, substantially as and for the purposes hereinbefore , set forth. Witnesses : Specification for a Process, We, of county of and state of , and .... of , county of and state of , have invented a cer- tain process for separating smut, and aU impurities, from wheat, of which ♦he following is a specification : Take of lime newly slacked, and while yet warm, one and a half pounds to each one hundred pounds of wheat. Mix the lime well with the wheat, let it stand one hour, then pass it through a smut-mill in the usual way, and it will be found that all the Mme, smut, dirt, and other impurities, attached to the wheat, of every kind, and which no smut-mill, without my liming pro- cess, will fully separate, will be entirely removed, and the flour will be as white and as sweet as though made from the best of wheat. We do not claim the smut-miU, or any improvement thereon, or any new chemical quality of lime. We claim as our invention the process of applying lime, when newly slacked and warm, to wheat, before passing the latter through a smut-mill, GO as to cleanse the wheat from all impurities, substantially as described Witnesses : Specification for a Composition, of Matter. , deceased, late of , in the district of , and state of during his lifetime invented a certain compound called " wool oil," to be used instead of lard, rape-seed, or other oils, in the manufacture of wool. The nature of the invention of the said consists in mixing olive, lard, or rape-seed oil with a solution of oil of sopt) dissolved in hot water. To prepare the wool oil, take a quantity of oil soap of any kind, provided the quality be good, and dissolve the same in hot water, say about thirty 44 690 LAW ENCYCLOPEDU. potmda of oil soap to thirty gallons of water, or a sufficient quantity of soap to saturate the water. Then take equal parts by measure, of olive, lard, rape-seed, or any other kind of oil which can be used on wool in the process of its manufacture, and mix it with the preparation aforesaid, to wit, the soap solution, whici, after such mixture, is ready to be used on the wool with as beneficial an effect as if pure oil only had been used. This wool oil will not decompose by age, because the oil of soap neutralizes the stearine in the oil ; hence there is nothing to decompose. And for the same reason spontaneous combustion cannot be produced. I claim as the invention of the said the manufacture or pre- paration of a compound, which is denominated wool oil, of the ingredients, in the proportions, and for the purposes set forth. Witnesses ; Administrator. Specification for a Design. I, ,, of in the county of , and state of have , invented and produced a new and original design for carpets, of which the following is a specification : The nature of my design is fully represented in the accompanying photo- graphic illustration, to which reference is made. I claim as my invention the design for a carpet, as shown. Witnesses : State of county of. Oath hy a Sole Inventor. !■ ss. the above named petitioner, being duly sworn, [or affirmed,] deposes and says that he verily believes himself to be the original and first inventor of the improvement in seed drills described in the foregoing speci- fication ; that he does not know and does not believe that the same was ever before known or used ; and that he is a citizen of the United States. Sworn to and subscribed before me this day of , 18 . . Justice of the Peace. [If the applicant be an alien, the sentence " and that he is a citizen of the United States" will be omitted, and in lieu thereof will be substituted "and that he is a citizen of the republic of Mexico," or, " and that he is a subject of the King of Italy," or, " of the Queen of Great Britain," or, as the case may be. If the applicants claim to be joint inventors, the oath will read " that they verily believe themselves to be the original, first, and joint in- ventors," etc.] Oath by an Applicant for a Be-issue finventorj. State of \ ^ city and county of j " , the above-named petitioner, being duly sworn, (oraflBrmed,) deposes and says that he verily believes that, by reason of an insufficient PATENTS, FORMS OF. 691 and defectiYe specification, his aforesaid letters-patent are inoperative and invalid ; that the said error has arisen from inadvertence, accident, or mis- take, and without any fraudulent or deceptive intention, to the best of his knowledge or belief, that he is the sole owner of said letters-patent ; [or, " that is the sole owner of said letters-patent, and that this appli- cation is made on the behalf and with the consent of the said ;"] and that he verily believes himself to be the first and original inventor of the improvement set forth in this amended specification. Sworn to and subscribed before me this day of 18. . . [i-s.] Notary Fublic. Caveat. The petition of , of in the county of , and state of , respectfully represents, that he has made certain improvements in velocipedes, and that he is now engaged in making experiments for the pur- pose of perfecting the same, preparatory to applying for letters-patent therefor. He, therefore, prays that the subjoined description of his inven- tion may be filed as a caveat in the confidential archives of the patent office. Specification. The following is a description of my newly-invented velocipede, which is as fuU, clear, and exact as I am able at this time to give, reference being had to the drawing hereto annexed. This invention relates to that class of velocipedes in which there are two wheels connected by a beam, forming a saddle for the rider, the feet being applied to cranks that revolve the front wheel. The object of my invention is to render it unnecessary to turn the front wheel as much as heretofore, and at the same time to facilitate the turning of sharp curves. This I accomplish by fitting the front and the hind wheels on vertical pivots, and connecting them by means of a diagonal bar, as shown in the drawing, so that the turning of the front wheel also turns the back wheel with a position at an angle with the beams, thereby enabUng it easily to turn a curve. In the drawing, A is the front wheel, B the hind wheel, and C the standards extending from the axle of the front wheel to the vertical pivot a in the beam 6, and D is the cross-bar upon the end of a, by which the steering is done. The hind wheel B is also fitted with jaws c and a vertical pivot d. "Witnesses : [The form of oath will be substantially that provided for original applica- tions, except that, as a caveat can only be filed by a citizen, or an ahen who has resided for one year last passed in the United States, and made oath of his intention to become a citizen, the oath shoiald be modified accordingly.] Assignment of the entire interest in an invention before the issue of letters-patent. In consideration of one dollar to me paid by , of , , I do hereby sell and assign to said all my right, title, and interest in and to a certain invention in plows, as fully set forth and described in the 692 LA-W ENCYCLOPEDIA, specification which I have prepared [if the applicfltioli has been already made, say " and filed"] preparatory to obtaining letters-patent of the United States therefor. And I do" hereby authorize and request the conunis- Bioner of patents to issue the said letters-patent to the said .as my assignee, for the sole use and behoof of the said and his legal representatives. Witness my hand this aay of 18. ., Of tlie entire interest in letters-patent. In consideration of five hundred dollars to me paid by , of , I do hereby sell and assign to the said aU my right, title, and in- terest in and to the letters-patent of the United States No for an im- provement in locomotive head-lights, granted to me , 18 . . , the same to be held and enjoyed by the said to the full end of the term for which said letters are granted, as fuUy and entirely as the same would have been held and enjoyed by me if this assignment and sale had not been made. Witness my hand this day of 18. . Of an undivided interest in the letters-patent and extension thereof. In consideration of one thousand dollars to me paid by , of I do hereby sell and assign to the said one undivided part of all my right, title, and interest in and to the letters-patent of the United States No for an improvement in cooking-stoves, granted to me . . . . , 18 . . , the same to be held and enjoyed by the said ........ to the full end of the term for which said letters-patent are granted, and for the term of any extension thereof, as fully and entirely as the same would have been held and enjoyed by me if this assignment and sale had not been made. Witness my hand this .... day of ..... 18. . Exclusive territorial grant hy an assignee. In consideration of one thousand dollars to me paid by ol I do hereby grant and convey to the said the exclusive right to make, use, and vend within the State of , and the counties of and in the State of and in no other place or places, the improvement in corn planters for which letters-patent of the United States, dated ... , 18. ., were granted to , and by said .... assigned to me 18 . . , by an assignment duly recorded in liber p of the records of the patent office, the same to be held and enjoyed by the said as fully and entirely as the same would have been held and enjoyed by me if this grant had not been made. Witness my hand this day of 18 . . License — shop right. In consideration of dollars to bo paid by the firm of .of , I do hereby license and empower the said to manufacture, PATENTS, rOEMS OF. 693 aff'a single foundry and maehine shop in said , and in no other place or places, the improvement in cotton-seed planters, for which letters-patent of the United States, No were granted to me , 18.., and to sell the machines so manufactured throughout the United States, to the full end of the term for which said letters-patent are granted. Witness my hand this .... day of . . . ., 18. . License — not exclusive — with royalty. This agreement, made this day of ..... 18.., between , party of the first part, and the , party of the second part, wit- nesseth that whereas letters-patent of the United States for an improvement in horse rakes were granted to the party of the first part, dated 18 . . ; and whereas the party of the second part is desirous of manufacturing horse rakes containing said patented improvement; now, therefore, the parties have agreed as follows : I. The party of the first part hereby licenses and , empowers the party of the second part to manufacture, subject to the condi- tions hereinafter named, at their factory in and in no other place or places, to the end of the term for which said letters-patent were granted, horse rakes containing the patented improvements, and to sell the same within the United States. II. The party of the second part agrees to make full and true returns to the party of the first part, under oath, upon the days of and in each year, of all horse rakes containing the patented improvements manufactured by them. III. The party of the second part agrees to pay to the party of the first part five dollars, as a license fee upon every horse rake manufactured by said party of the second part, containing the patented improvements; provided that, if the said fee be paid upon the days provided herein for semi-annual returns, or within ten days thereafter, a discount of fifty per cent, shall be made from said fee for prompt payment. rV. Upon failure of the party of the second part to make returns, or to make payment of license fees, as herein provided, for thirty days after the days herein named, the party of the first part may terminate this license by serv- ing a written notice upon the party of the second part; but the party of the second part shall not thereby be discharged from any liability to the party of the first part for any license fees due at the time of the service of said notice. In witness whereof the parties above named have hereunto set their hands this day and year first above written. By President. Transfer of a trade mark. We, and , of , partners under the firm name of in consideration of . . . dollars, to us paid by , of the same place, do hereby sell, assign, and transfer to the said and his assigns the exclusive right to use in the manufacture and sale of stoves a cer- tain trade-mark for stoves deposited by us in the United States patent office, 694 LAW ENOICLOPKDIA. * and recorded therein , 18. . ; the same to be held, enjoyed, and used by the .'aid as fully and entirely as the same would have been held and enjoyed by us if this grant had not been made. Witness our hands this .... day of , 18. . •ft»^,«*««»«' PAYMENT, Payment, Evidence of. — A receipt is on its face evi- dence of payment. That is its highest character, as it may be shown that the particular sum stated in the receipt was not paid, and also that no payment has been made. See Eeceipts. A Receipt 'for last year's or month's rent, is prima facie evidence of the payment of all the rents previously due. If the last installment of a bond is paid in due form it is evidence that the others have been paid. Who may Make Payment. — Payment may be made at any time after the debt is due by the principal debtor, his agent or attorney. An attorney at law may discharge a debt against his client. One of any number of joint debtors may pay a debt. To Whom Payment may be Made. — Payment may be made to the creditor or to his agent. If made to the agent in the ordinary course of business, without notice requir- ing payment to be made to the principal, it is binding. Payment to an attorney is as effectual as payment to the principal himself. If a judgment is paid to an attorney within one year from its date he may satisfy it. Payment to the wife of the creditor is good if she is expressly or by implication his agent. When to be Made. — Payment must be made at the exact time agreed upon. "Where a time is set for payment, of course nothing can be demanded until the time of pay- ment, and if there be a condition precedent to the lia- bility, not untn the condition has been performed. "When PAYMENT — PLEDGE. 695 goods are sold at "six or nine months' credit" or the like, to debtor, he wiU be allowed the option. Where no Time of payment is specified, the money is to be paid immediately, and no demand need be made before suit. Where to be Made. — ^Payment must be made at the place agreed upon, unless both parties consent to a change. If no place of payment is mentioned the payer must seek out the payee. , Effect of Payment. — Payment, of course, discharges the debt. Part payment discharges the debt pro rata. Where a debtor owes two or more debts to the same creditor, he may direct any particular payment to be applied towards the extinguishment of either debt he may select. If he give no directions the creditor may apply the payment as he chooses. If the debtor give no directions and the creditor makes no selection, but gives the debtor no spe- cial credit on either demand, the law will direct the pay- ment to be applied on the oldest debt. In most Countries part payment of a debt will stop the running of the statute of limitation ; but the rule is other- wise in California. Part Payment.— See Eeceipts. PERSONAL PROPERTY. Personal Property. — The essential idea of personal prop- erty is that of property in a thing movable or separable from real property. It is safe to say, as a general rule, that personal property is that which is not attached perma- nently to the ground. PLEDGE. Pledgee and Pledgeor.^A pledgee of personal property is a person who has loaned money or given credit for goods purchased, on the security of certain personal property de- posited with him by the borrower or debtor, who is termed the pledgeor. 696 LAW ENCYCLOPEDIA,. Duty and Obligation of Pledgee. — A pledgee is bound to take ordinary care of the thing pledged, and if it be lost or injured or destroyed for want of such ca»e, he is answera- ble for its value. By ordinary care, is meant the same care a prudent man of business would take of his own property of similar nature. He must not make use of it, except at his own risk. In other words, he is liable for any injury caused by using it. If the thing pledged — as a cow — needs use for its safety, then the pledgee may milk it for this pur- pose, and is liable only for an injury caused by his negli- gence. In such case, should the cow be injured because it was not milked, he is liable. He must account to the pledgeor for the income, increase or profits, over and above the cost of keeping. Possession of Pledge. — One difference between a mortga- gee and pledgee, is this : A mortgagee need not take pos- session, for-the mortgagor may retain it [as will be seen by consulting the statutory provisions under the head Moet- GAGEs], by recording and acknowledging the mortgage, but only in such cases as are mentioned in the statute. Pledgee may not sell Pledge before the Debt is due. — A most important difference between a mortgage and pledge is this : A mortgagee may sell or transfer his mortgage, and his assignee may sell and transfer it again, and when the debt is satisfied the mortgagor may reclaim it from whom- soever has it then. On the other hand, if the pledgee sells the thing pledged before, the debt is due, it is held by the courts that he is answerable to the pledgeor for its value, although the debt be not paid. If A lends money to B, and takes stock in pledge, A cannot sell this stock and keep the proceeds and replace the stock and return it when the debt is paid. He can do nothing but heep the iden- tical stock; iand if he disposes of it, the pledgeor may recover its full value, and the pledgee will have no security for his debt. In such a case, which arose in New York in 1867, a pledgee, being sued, offered the testimony of stock-bro- kers and others to prove a "uniform and established usage in the city of New York, to sell or use pledged stock un- PLEDGE. 697 til the debt was paid ;" but the court ruled the usage if, such there was was illegal, and refused to receive the evi- dence. This decision is undoubtedly on the ground that the identical property deposited as security is pledged, and when the pledgee disposes of it, he has violated his con- tract and placed it out of his power to return what he re- ceived ; and the price of it or its value not having been pledged to him, he must restore this to the true owner. These transactions are to be considered as voluntary sur- rendering of the security, and he who has surrendered it cannot complain. Foreclosure of Iden. — After the debt is due and payable the pledgee may have a decree in equity for a sale of the pledge, or he may sell it himself, provided he first gives a reasonable notice to the pledgeor, and then sells it in a proper manner, by a public sale at auction, and uses all rea- sonable precautions to get its full value, and does not buy it himself, directly or indirectly, and conducts himself in all respects, honestly ; and he must account for the proceeds after his debt is paid. Sale of Pledge. — The parties may agree when the pledge is given or afterwards, how the pledge shall be sold if not redeemed ; and such agreements, if fair, would undoubtedly be binding on everybody. When Pledgee Accountable. — It is always to be express- ly understood that the pledgee of negotiable paper may sell or discount it before the debt is due ; and he must account for it or its proceeds, if the debt is paid and the paper re- deemed, or for the balance if he applies it to payment of the debt. Loan of Stock. — A loan of stock authorizes the borrower to sell or pledge it or use it in any way, but he must replace the same number of shares of "the same stock when it is called for. The difference between a pledge and a loan is clear. A loan without the right to use stock would be of no use whatever to the borrower. A pledgee may thus use stock pledged to him by a special agreement which permits its use and not otherwise. 698 LAW ENCyCLOPEDIA. Difference between a Pledge and Mortgage.— The great technical difference between a mortgage of personal prop- erty and a pledge of the same, is this: In a mortgage the title Tests at once in a mortgagee, subject to be divested upon compliance with the conditions of the mortgage ; whereas, in a pledge, the title remains in the pledgeor, until a sale. See Chattel Mobtgage. POSSESSION. Possession. — The detention or enjoyment of a thing which a man holds or exercises by himself or by another, who keeps or exercises it in his name. Actual Possession exists where the thing is in the imme- diate occupancy of the party. Constructive Possession, is that which exists in contem- plation of law, without actual personal occupation. See Limitations. . POWER OF ATTORNEY. Po-wer of Attorney. — A power or letter of attorney, as it is frequently called, is an authorization by one person to another, to perform some act for and in the name of the giver of the power or authority. Peter direct or requests Paul to collect all rents due Peter at any place. This is called a special power of attorney to collect rents, and may or may not be in wj-iting. Matthew directs or requests Mark to buy or sell real estate, and perform any act in or about the business and property of all kinds belonging to or in which said Matthew is or may be thereafter interested. This is a general power of attorney; and under it Mark may do any act or thing in the name of Matthew, and in -Mat- thew's business, that Matthew might, could or would do, were he present. Affecting Real Estate. — "When it authorises any act affecting real estate or any act which if done by the prin- cipal would require a seal, the power should be under seal. Exceeding Authority. — If the attorney exceeds his an- POWEK OP ATTOKNEY. 699 thority the principal is not bound by Ms act; but the authority delegated to him is supposed to include aU the necessary means of carrying it into effect. Must Act in the Name of the Principal.— When the attorney performs an act for his principal it must be done in the name of the principal, and all instruments must be so expressed, and must be signed in the name of the prin- cipal by the attorney. To Co-ivey Real Estate. — A power of attorney to con- vey real estate or to execute any conveyance affecting real estate, must be acknowledged or proved, certified and re- corded, the same as a deed. To revoke such a power of attorney the deed of revocation must be deposited for rec- ord in the same office in which the power of attorney is recorded. Revooation of. — A power may be revoked at the sole pleasure of the principal, except where the attorney or some third party has an interest in the subject matter. By Married Woman. — A married woman may make and execute powers of attorney for the sale, conveyance or incumbrance, of her real or personal estate : provided, her husband joins in the execution of the instrument ; and any conveyance executed under and by virtue of such power of attorney shall be executed, acknowledged and certified, in the same manner as if the persons making such powers of attorney were unmarried. A married woman shall have the right to revoke such power of attorney, and it shall not be necssary, for the validity of such revocation, that her husband shall join in the execution thereof. Substitution of Authority. — ^The power of attorney may contain authority to the attorney to appoint a substitute ; and such substitute if appointed must act in the name of the principal. Effect of Death of Principal. — The death of the princi- pal revokes a power of attorney ; and a person dealing with an attorney in fact, when the principal is in a foreign coun- try or when his whereabouts is imcertain, should act with 700 LAW ENCYCLOPEDIA. great caution, as ruin may follow some important transac- tion if it should happen that the principal should be dead at the time of the transaction, and even if the greatest good faith is observed, and when all parties -were ignorant at the time of the death of the principal. Where consid- erable interests are involved it is best not to act until it is certain the principal is alive. OREGON. In Oregon the statute provides for recording powers of attorney and revocations in the same terms as the Califor- nia statute. FOEMS. Power of Attorney — Short Form. I, .hereby appoint and constitute my attorney in fact, in my name, place and stead, to [here state what the attorney is authorized to do], with full power to said as my attorney to do everything I could in the premises if personally present. Witness my hand and seal, this .... day of 18 . . [i-s-] Another Form, I hereby authorize , as my attorney in fact, to sell and transfer for me and in my name, my interest in the in county, located on the with the lease of the land, to whom and on such terms as ha deems best, and by such instrument or means as may be agreed on between him and any other parties. [Date.] Power to Collect. Know all men by these presents, that I, of the county of , state of , have made, constituted and appointed, and by these pres- ents do make, constitute and appoint, of my true and lawful attorney, for me andin my name, place and stead to demand, ask for, receive and recover, all and singular, such sums of money, goods, wares, merchandise, debts, dues, choses in action and effects whatsoever, as are now due, payable, belonging or coming, unto me from any person or persons or body or bodies corporate whatsoever, giving and granting aathor- ity to sue therefor, in part or in whole, and pursue unto iinal judgment and execution any process or suit as he may deem expedient for the recovery of the same, with power to sign one or more sufScient undertakings if by law required. And my person to represent in any court or courts of law, and there to plead for or retain counsel for that purpose, to submit to arbitration or to POWEB OF ATTOBNEY, FORMS OP. 701 compound the same, and to execute good and sufficient receipts and acquit- tances therefor, and the same to continue in force unless otherwise revokeJ. Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratif jang and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In witness whereof, I have hereunto set my hand and seal, the day of one thousand eight hundred and .... [i-s.] Signed, sealed and delivered, in presence of Power to Collect Debts alone. Know all men, etc., to demand, ask, sue for, collect and receive, all sums of money, debts, rents, dues, accounts and other demands, of every iind, nature and description, whatever, which are due, owing or payable, to me from any person or persons whomsoever, and to give good and sufficient receipts, acquittances and discharges, therefor, giving and granting, etc. Power of Attorney to Sell and Manage Heal Estate. Know all men by these presents, that I of the county of state of , have made, constituted and appointed, and by these presents do make, constitate and appoint, of the same place, my true and lawful attorney, for me and in my name, place and stead, to enter into and take possession of all real estate that I now own or may hereafter acquire in the state of , and to lease the same, from time to time, upon such terms and conditions and for such rent as he may deem expedient, and to collect and receive the rents thereof ; and also to sell and convey my said real estate or any part thereof, for such price and upon such terms and credits as he may deem expedient, and also to borrow money for my use upon such terms and interest as he may deem advisable and as security for the repayment of the same, to mortgage and pledge my said real estate or any part thereof. And for the purposes aforesaid, I hereby authorize and empower my said attorney to make, execute and-deliver, all requisite leases, deeds, promissory notes, bonds, agreements, mortgages or other instru- ments, under seal or otherwise, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing what- soever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and con- firming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In witness whereof, I have hereunto set my hand and seal, the daj of , in the year of our Lord one thousand eight hundred and .... [i-s.] 702 ' LAW ENCYCLOPEDIA. Commercial Power, with Authority to Sell, etc.. Real Estate. Know all men by these presents, that I, of , have made, constituted and appointed, and by these presents do make, constitute and appoint, , of , my true and lawful attorney^ for me and in my name and on my behalf, to ask, demand, recover and receive, all and any sum or sums of money, debts, dues, merchandise or effects, due, payable, coming or belonging, or which may at any time be due, payable or belong- ing, to me from any person or persons whatsoever ; to sell all or any part of such goods, merchandise and effects, which may come to his possession or knowledge, on such credit and for such prices as he may deem meet ; to purchase any goods, merchandise, specie or other commodities, on my ac- count, for such prices and to such amount as he may deem meet, and the same to seU again for my benefit and on my account for any prices whatso- ever, to ship or transport the same or any part thereof on my behalf and account to any post or posts, place or places whatsoever, in any vessel or vessels, and with and to any person or persons whatsoever, and there barter, exchange and dispose of, the same ; to insure and cause insurance to be made of such goods, merchandise, specie or other commodities or of any part thereof, at such premiums and for such risks as he may deem meet ; to accept any biU or bills of exchange or orders, make and execute any note or notes of hand, bond or bonds or other instruments or contracts, in my name and on my account, to and for any amount which he may deem meet or expedient ; to sell, barter, exchange or dispose of, any real estate of which I am now seized or possessed in fee simple or for any less estate, to any per- son or persons, for any price or in any manner whatsoever, and for these pur- poses to execute and acknowledge any deed or deeds, lease or leases or other assurance or assurances, with general covenants of warranty against all persons or any other covenants whatsoever, as he may deem expedient ; to purchase any real estate on my account, in fee simple or otherwise, at any price or exchange whatsoever, and for these purposes to receive, confirm, make and execute, any contracts, deeds, conveyances or other instruments, whatsoever ; to settle and adjust all partnership accounts and demands, and " all other accounts or demands now subsisting or which may hereafter sub- sist between me and any person or persons whatsoever, and submit the same to and decide them by arbitration ; to compound for any debts, dues or demands, owing or which may hereafter be owing to me, and to take less than the whole or otherwise to agree for the same, in such manner and on such terms as he, in his discretion, may deem proper ; and for all or any of these purposes, to make and execute any releases, compromises, composi- tions, agreements or contracts, by deed or otherwise, in his opinion neces- sary and expedient in the premises ; to pay and discharge all debts and demands due and payable or which may hereafter become due and payable by me unto any person or persons whatsoever ; to enter into any lands or other real estate to which I am or may be entitled, and to recover the pos- session thereof, and damages for any injury done thereto, and to distrain for rent due thereon, and also to commence and prosecute unto final judg- ment and execution any suit or suits, action or actions, real, personal or mixed, which he shall deem proper for the recovery, possession or enjoy- POWEE OF ATTORNEY, FOEMS OP. 703 ment, of any matter or tMng which is or which may hereafter be Awe, paya- ble, owing, belonging, accruing or appertaining, to me for or by reason of the premises or any part thereof, and in any such suits or actions for me to appear and plead, before any courts or tribunals having jurisdiction thereof, and all stipulations, undertakings, recognizances and other requisites, in any suits or actions and any question arising on the same, by arbitration or other compromise, and of all receipts and recoveries in the premises, due acquittances and discharges to execute and deliver, and generally to do and perform all matters and things, transact aU business, make, execute and acknowledge, all contracts, orders, deeds, writings, assurances and instru- ments, which may be requisite or proper to effectuate all or any of the prem- ises or any other matter or thing appertaining or belonging to me, with the same powers and to all intents and purposes with the same validity as I could, if personally present [giving and granting unto my said attorney full power to substitute one or more attorney or attorneys under him, my said attorney in or concerning the premises or any part thereof, and the same at his pleasure to revoke] ; and hereby satisfying and confirming whatsoever my said attorney [or, his substitute or substitutes] shall and may do, by virtue hereof, in the premises. In witness whereof, I have hereunto set my hand and seal, this day ol , in the year of our Lord one thousand eight hundred and [L.S.] Signed, sealed and dehvered, in presence of Authority to Beceive Legacy, etc. Know all men by these presents, that I, , of , have made constituted and appointed, and by these presents do make, constitute and appoint , of , my true and lawful attorney for me and in my name, place and stead, and for my use to ask, demand, sue for, collect, recover and receive, all money and aU other property of every nature and kind whatsoever, both real and personal [with power to enter into and take possession of all lands, tenements, hereditaments and real estate, whatever], which may have descended to me as heir of or to which I may be entitled as next of kin of , late of , state of , deceased, my late . . . , and to give all necessary receipts, acquittances, releases and discharges, in the law, with or without seal, for the same, and to appear for me in all courts and places and before all ofScers, tribunals and magistrates, to pros- ecute, defend, settle and compromise, all suits, actions and proceedings, oj everynature and kind in relation thereto, giying and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever necessary aad requisite to be done in and on the premises as fully to aU intents and purposes as I could or might do. [Date.] Stock Powers of Attorney. Know all men by these presents, that I , of the county of and state of for value received, have and do hereby grant, bargain. 704 LAW ENCYCLOPEDIA. Bell, assign, transfer and set over, unto , of , county, .... shares in the capital stock of the of , belonging to me and standing in my name on the books of the said ; and I do hereby constitute and appoint my true and lawful attorney irrevocable, to assign and in due form of law transfer the said stock imto the said . . . . . . and to do all other lawful acts requisite for effecting the premises, hereby ratifying and confirming all that my said attorney shall do by virtue hereof.. In witness whereof, I have hereunto set my hand and seal, the day of . Qiie thousand eight hundred and .... [i-s.] Sealed and delivered in presence of Bevocation of Power of Attorney. Know all men by these presents, that I, , of , in and by my letter, warrant or power of attorney, bearing date on the . . . day of ... , A.D. 18 . . , did make, constitute and appoint, , of the same place, my true and lawful attorney for the purposes and with the powers therein set forth, as will more fully and at large appear by reference thereto, or to the record thereof, made on the day of a.d. 18 . . , in liber of powers of attorney, page in the county recorder's oflSce of county. Now know ye, that I, the said , for divers good causes and con- siderations me hereunto moving, have revoked, countermanded, annidled and made void, and by these presents do revoke, countermand, annul and make void, the said letter, warrant or power of attorney, and all power and authority thereby given or intended to be given to the said 'In witness whereof, I have hereto set my hand and seal, at the of this day of , a.d., the year of our Lord one thousand eight hundred and .... [L-S.] Substitution of Attorney. Know all men by these presents, that I , of the county of in the state of , by virtue of the authority to me given by the power of attorney [here describe the power of attorney fully, and, if recorded, state when and where], do substitute , of the county of and state of attorney in my stead, to do, perform and execute, every act or thing which I might or could do by virtue of the within powei of attorney, hereby ratifying and confirming all that the said substitute may do in the premises by virtue hereof and of the within power of attorney. In witness whereof, etc. General Custom House Power. Know all men by these presents, that I , of the of in the of and state of have made, constituted and ap- pointed, and by these presents do make, constitute and appoint , of the same place, my true and lawful attorney, for me in my name to re- ceive and enter at the custom house of the district of any goods. POWER OF ATTOKNEY, FORMS OF— PRE-EMPTION EIGHT. 705 wares or merchancUse, imported by me or •vrliich may hereafter arrive con- signed to me, to sign my name to, seal and deliver for me and as my act and deed, any bond or bonds which may be required by the collector of the said district for securing the duties on any such goods, wares or merchan- dise.; also, to sign my name to, seal and deliver for me and as my act and deed, any bond or bonds requisite for obtaining the debenture on any goods, wares or merchandise, when exported, and generally to transact all business at the said custom house in which I am or may hereafter bo interested or concerned as fully as I could if personally present. And I hereby declare that all bonds signed and executed by my said attorney shall be as obliga- tory on mo as those signed by myself, and this power shall remain in full force until revoked by written notice given to said collector. In witness whereof, etc. Proxy or Power io Vote at Election, of Directors. Know all men by these presents, that I of the county of and state of do hereby constitute and appoint of the same place, my true and lawful attorney and agent for me and in my name, place and stead, to vote as my proxy at any election of directors of the , according to the number of votes I should be entitled .to vote if then per- sonally present. In witness whereof, etc. PRE-EMPTION RIGHT. Pre-emption Right. — The right given to settlers upon the public lands of the United States to purchase them at a limited price in preference to others. Declaration to be Filed. — Settlers upon surveyed lands must file their declaratory statements in the office of the district where the land is situated, within three months after said lands have been surveyed and the plats returned to the district land office ; and those who have settled upon offered lands within thirty days after they have settled. Proof and Payment. — In the first two cases proof and payment must be made at any time before said lands shall be sold, pursuant to the proclamation of the president of the United States. In the last case, within one year after such settlement. Deccziption of Land. — The declaratory statements must correctly describe by legal subdivisions, the tracts claim- 45 706 LAW ENCYCLOPEDU, ed, -which must not exceed [except where there are frac- tions included in the claim] one hundred and sixty acres of land. If mistakes shall have been made in the original filing they may be corrected at any time before the cause shall have been submitted. This is done by filing an amended statement. What must bs Proved. — It must appear from the proofs that the claimants settled with an honest intention to pre- empt, and as evidence of that fact they must prove that they have resided upon the land claimed at least six months. Contssied Cases. — In contested cases, the first settler [all other things being equal] is entitled to the land. It is of the greatest importance to success that the subdivisions claimed should be cultivated or occupied. Granted Land. — The pre-emption laws do not apply to land claimed by grant. But if locations are made oh such land and the grants afterwards held to be void, the same may be claimed by pre-emption as other lands. Railroad Reservations. — No pre-emption rights can be acquired upon the odd sections within a railroad reserva- tion. This does not apply to entries made before the rail- road grant was made. Entry upon occupied Land. — A pre-emptor may enter upon any public land open to such settlement, whether the same shall at the time be occupied and improved by others or not. Until a final adjudication by the proper department, the land is open for settlement by as many persons as may please to occupy it. If any of those who may have thus en- tered upon and occupied said land shall he forcibly ejected from the same and prevented from re-entering upon and occupying and improving the same, by threats or force or hoth, they shall not thereby forfeit their right to pre-empt the same at any future time; provided, that as soon thereaf- ter as they can re-enter upon said land, without serious danger of personal peril, they shall proceed to cultivate and improve the same. PBE-EMPTION EIGHT. 707 State Title. — The state acquires the right to the six- teenth and thirty-sixth sections of all the public lands im- mediately after survey has been made. Title to these lands comes through the state, and locations must be made under state laws. UNITED STATES. Instructions. — The following instructions are taken from "Instructions issued from the general land office of the United States." See "Zabriskie's Land Laws of the United States," page 49. Who may Claim. — The individual claiming the bene- fits of the United States pre-emption laws, must be : 1st. A citizen of the United States or have filed his dec- laration of intention to become a citizen. 2d. Either the head of the family or a widow, or a ^single man over the age of twenty-one years. 3d. An inhabitant of the tract sought to be entered, upon which, in person, he has made a settlement and erected a dwelling-house since the first of June, 1840, and prioi to the time when the land is applied for ; which land must, at the date of the settlement, have had the Indian title ex- tinguished and been surveyed by the United States. A PerEon Bringing Himself within each of the above requirements, by proof satisfactory to the register and re- ceiver of the land district in which the lands may lie, taken pursuant to the rules hereinafter prescribed, will, after having taken the affidavit required by the act, be entitled to enter, by legal subdivisions, any number of acres not exceeding one hundred and sixty or a quarter section, to include his residence, and he may avail himself of the same at any time prior to the day of the commence- ment of the public sale, including said tract, where the land has not yet been proclaimed. Where the Land -was Subject to Private Entry. — Where the land was subject to private entry at the date of the law, and a settlement shall thereafter be made upon such land, or where the land shall hereafter become subject to private 708 LAW ENCYCLOPKDIA. entry, and after that period a settlement shall be made, which the settler is desirous of securing under this act, such notice of intentions must be given within thirty days after the date of such settlement. Such notice in all cases inust be a written one, describing the land settled upon, and de- claring the intention of such person to claim the same under the proTisions of this act. When Proof, etc., to be Made. — In all such cases the proof, affidavit and payment, must be made within twelve months after the date of such settlement. The Tracts Liable to entry under this act are some one of the following designations : 1st. A regular quarter section, notwithstanding its quan- tity, may be a few acres more or less than one hundred and sixty, or a quarter section, which, though fractional in quantity by the passage of a navigable stream through the same, is still bounded by regular sectional and quarter- sectional lines. 2d. A fractional section, containing not over one hundred and sixty acres, or any tract being a detached or anoma- lous survey made pursuant to law, and not exceeding said quantity. 3d. Two adjoining half-quarter sections [in all cases to be separated by a north and south line, except on the north side of townships, where the surveys are so made as to throw the excess or deficiency on the north and west side of the township] of the regular quarters mentioned in the first designation; or, two adjoining eighty-acre subdivis- ions of the irregular quarters found on the north and west side of townships, where more than two such subdivisions exist or the excess may render them necessary, provided in the latter case the aggregate quantity does not exceed one hundred and sixty acres. <« 4th. Two half-quarter or eighty-acre subdivisions of a fractional or broken section, adjoining each other, the aggre- gate quantity not exceeding one hundred and sixty acres. 5th. A regular half-quarter and an adjoining fractional section, or an adjoining half-quarter subdivision of a frac- PRE-EMPTION EIGHT. 709 tional section, the aggregate quantity not exceeding one huncTred and sixty acres. 6tli. If the pre-emptor should not wish to enter the quan- tity of one hundred and sixty acres, he may enter a single half-quarter section [made by a north and south line] or an eighty-acre subdivision of a fractional section. 7th. One or more adjoining forty-acre lots may be en- tered, the aggregate not exceeding one hundred and sixty acres. 8th. A regular half-quarter, a half-quarter subdivision or a fractional section may each be taken, with one or more forty-acre subdivisions lying adjoining, the aggregate not exceeding one hundred and sixty acres. First Settler only Proteotsd. — Only one person on a quarter section is protected by this law and that is the one who made the first settlement, provided he shall have con- formed to the other provisions of the law. Only one Claim allo-wed. — A person who has once avail- ed himself of the provisions of this act cannot, at any future period or at any other land office, acquire another right under it. Who not Entitled. — No person who is the proprietor of three hundred and twenty acres of land in any state or ter- ritory of the United States, is entitled to the benefits of this act. Same. — No person who shall quit or abandon his resi- dence on his own land to reside on the public land in the same state or territory, is entitled to the benefits of this act. Indian Title must be Extinguished. — No pre-emption right exists by reason of a settlement on and inhabitancy of a tract, unless at the date of such settlement the Indian title thereto had been extinguished and the land surveyed by the United States. Evidence of Legality of Survey. — The approval of the plat is the evidence of the legality of the survey; but in accordance with the sj)irit and intent of the law and for the purpose of bringing the settler within its provisions, the 710 LAW ENCYCLOPEDIA. land is to be construed as surveyed when the requisite lines are run on the field and the corners established by the deputy surveyor. Assignments not Allo'wed. — No assignments or transfers of pre-emption rights can be recognized. The patents must issue to the claimants, in whose names alone all entries must be made. SDHDBY DESOKIPTIONS OP LANDS WHICH ABE EXEMPTED FEOM THE OPEEATIONS OP THIS ACT. 1st. Lands included in any reservation by any treaty, law or proclamation, of the president of the United States, and lands reserved for salines and for other purposes. 2d. Lands reserved for the support of schools. 3d. Lands acquired by either of the two last treaties with the Miami tribe of Indians in the state of Indiana or which may be acquired of the Wyandot tribe of Indians in the state of Ohio or otlier Indian reservation, to which the title has been or may be extinguished by the United States at any time during the operation of this act. 4th. Sections of land reserved to the United States, al- ternate to other sections granted to any of the states for the construction of any canal, railroad or other public improve- ment. 5th. Sections or fractions of sections included within the limits of any incorporated town. 6th. Every portion of the public lands which has been selected as a site for a city or town. 7th. Every parcel or lot of land actually settled and occu- pied for the purposes of trade and not agriculture. 8th. All lands on which are situated any known salines or mines. Duplicate AflSdavits^to be Filed. — Persons claiming the benefit of this act are required to file duplicate ailadavits, such as the law requires, and to furnish proof by one or niore disinterested witnesses, of the facts necessary to es- tablish the three requisites pointed out in the commence- ment of these instructions. PEE-EMPTION EIGHT. 711 Wit:ieS7i to be S-wom. — The witnesses are to be first duly sworn or affirmed to speak the truth and the whole truth, touching the subject of inquiry, by some officer competent to administer oaths and affirmations. Adverse Claimi.— In case adverse claims shall be made to the same tract, each claimant must be notified of the time and place of taking testimony and allow^ed the privi- lege of cross-examining the opposite witnesses and of pro- ducing counter proof, which should also be subject to cross-examination. Depositions Received, When. — When, by reason of dis- tance, sickness or infirmity, the witnesses cannot come be- fore the register of the land office, the latter is authorized to receive their depositions, which must be, in all other respects, conformable to the within regulations. Notice of Adverse Claim. — The notice to adverse claim- ants should be in writing, and should be served in time to allow at least a day for every twenty milss the party may have to travel in going to the place of taking evidence. The proof, in all cases, should consist of a simple detail of facts merely and not of statements, in broad or general terms. " Head of Family," Proof of. — The witnesses must state if the pre-emptor be the ' ' head of a family, " the facts which constitute him such, whether a husband having a wife and children or a widower or an unmarried persan under twen ty-one years of age, having a family, either of relatives or others, depending upon him or hired persons or slaves. Resider.ce, Inliabitancy and other Pacts. — All the facts respecting the settlement in person, inhabitancy or per- sonal residence, tlie time of commencement, the manner and extent of continuance, as well as those showing the appar- ent objects, should be stated. Statement and Appeal. — It must be stated that the claimant made the settlement on the land in person ; that he has erected a dwelling on the land ; that the clairiiant lived in it and made it his home, etc. Should the land offi- 712 'law encyclopedu. cer decide against a claimant, he may appeal to the com- missioner of the land office at Washington. Face of Settlement, Affidavit of, not KTecsEsary. — The affidavit of the claimant in reference to the fact of settlement, etc., is not required. The onli/ affidavit required of the claimant is that prescribed by the thirteenth section of the act. Duplicates of Afladavit, etc. — No entry must be permit- ted until this affidavit is taken. Duplicates thereof must be signed by the claimant and the fact of the oath bping taken, must be certified by the register or receiver admin- istering it ; one copy to be filed in the register's office and the other to be transmitted to the land office at Washing- ton. FOEMS. statements of a Settler on Land Subject to Private Entry at the Date of Settle- ment, required by the Fifteenth Section of the Act of Sept. ith, 1841. [For cases where, at the date of the law. the land claimed was subject to private entry.} I of being [ ' ' the head of a family, " or, ' ' widow, ' ' or " single man over the age of twenty-one years," as the case may be], and a citizen of the United States [or, "having filed my declaration to become a citizen, as required by the naturalization laws" as the case maybe], have, since the day of , 18 . . , to wit, on the .... day of , a.d. 18 . . , settled and improved the .... quarter of section number .... in township number of range number in the district of lands subject to sale at the land office at , and containing .... acres, which land was subject to private entry at the passage of the act of September 4th, 1841; and I do hereby declare my intention to claim the said tr^ct of land as a pre-emption right under the provisions of said act of September 4th, 1841. Given under my hand, this day of , a.d. 18 . . [Signed] [l.s] In presence of [F«r cases where the land claimed shall have been rendered subject to private entry since the passage of the law.] I , of , being ["the head of a family," or, "vridow," or " single man over the age of twenty-one years,'' as the case may be], a citi- zen of the United States [or, having filed my declaration to become a citizen as required by the naturalization laws," as the case maybe], did, on the "day of , A.D. 18, settle and improve the quarter of section number in township number of range number in the district of lands subject to sale at the land office at , and containing PBE-EMPTION EIGHT, FORMS OP. 713 acres, -which land has been rendered subject to private entry since the passage of the act of September ith, 1841, but prior to my settlement there- on; and I do hereby declare my intention to claim the said tract of land as a pre-emption right under the provisions of said act of September 4th, 1841. Given under my hand this .... day of , a.d. 18 . . . [Signed] [l.s.] In presence of [Affidavit required of pre-emption claimaut.] I claiming the right of pre-emption under the provisions of an act of congress entitled "An act to appropriate the proceeds of the sale ci the public lands and to grant pre-emption rights," approved September 4th, 1841 to the quarter of section number .... of township number ol range number . . ., subject to sale at , do solemnly swear [or, " affirm," as the case may be], that I have never had the benefit of any right of pre- emption under this act; that I am not the owner of three hundred and twenty acres of land in any state or territory of the tluited States, nor have I settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to my own exclusive use or benefit, and that I have not directly or indirectly made any agreement or contract in any way or manner with any person or persons whatsoever by which the title which I may acquire from the government of the United States should inure in whole or in part to the benefit of any person except myself. [Signed] I .register [or, " receiver"] of the land office at do hereby certify that the above affidavit was taken and subscribed before me this .... day of a.d. 18 . . . [Signed] , Eegister. [or, " receiver"]. Affidavit to be FUed in cases where the SetUer shall Jiave Died before Proving up and Entering his Claim. I, executor of the estate of [or, " tdministrator of the estate of ," or, " one of the heirs of , aged years," as the case may be], do solemnly swear [or, "affirm," as the case may be], that the said , to the best of my knowledge and belief, entered upon the quarter of section number , of township number , of range number . . . . , subject to sale at in his own right and exclu- sively for his own use and benefit ; and that he has not, directly or indi- rectly, made any contract or agreement, in any way or manner, with any person or persons whatever, by which the title to the land which he might have acquired from the government of the United States, by virtue of said settlement, under the law of June 22d, 1838, or, "June 1st, 1840," as the case may be], should inure to the use or benefit of any one except himself, or to convey or to transfer the said land or the title which he might have 714 LAW ENOYCLOPEDU. acquired to the same, to any other person or persons whatever, at any sub- sequent time. • •••** -» Executor of the estate of , [or, " administrator of the estate of " or, " one of the heirs of ," as the case may be]. Sworn and subscribed before me, this day of a.d. 18. . Begister, [or, " receiver, " or, "justice of the peace"]. Affidamt to be FUed in cases where the Settler shall have Died before Proving up and Entering his Claim. I, executor of the estate of [or, "administrator of the estate of ."or, " one of the heirs of ,aged years," as the ease may be], do solemnly swear [or, "affirm," as the case may be], that, to the best of my knowledge and belief, the said , who was a settler on the quarter of section number , of township nimiber of range number , subject to the sale at , has never had the benefit of any right of pre-emption under the act entitled "An act to ap- propriate the proceeds of the sales of the public lands and to grant pre- emption rights," approved September 4th, 1844; that he was not, at the time of his death, the owner of three hundred and twenty acres of laud in any state or territory of the United States ; that he did not settle upon and improve the above tract of land on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he has not, directly or indirectly, made any agreement or contract in any way or man- ner, with any person or persons whatsoever, by which the title which he might have acquired from the government of the United States should inure in whole or in part, to the benefit of any person except himself. [Signed] , Executor, [or, "administrator," or, "one of the heirs of ," as the case maybe]. I, , register [or, " receiver] of the land office at , do hereby certify that the above affidavit was taken and subscribed before me, this day of , a.d. 18.. [Signed] Eegister, [or, "receiver]. Declaratory Statement in Cases where the Zand is not Subject to Private Entry I, , of . . . , being the head of a family " [or, ' 'widow, " or, " sing! man over the age of twenty-one years," as the case may be, a citizen of the United States, or, "having filed my declaration to become a citizen, as re- quired by the naturalization laws," as the case may be], did, on the . . . day of . . . A.D. 18 . . , settle and improve the . . . quarter of section number . . . , in township number , of range number , in the district of lands sub- PKE-EMPTION EIGHT, FOBMS OP — PEIMA FACIE. 715 ject to sale at the land office at and containing acres, which land has not yet been offered at public sale, and thus rendered subject to private entry ; and I do hereby declare my intention to claim the said tract- of land as a pre-emption right, under the provisions of said act of September 4th, 1841. Given under my hand, this .... day of , a.d. 18 . . [Signed] In presence of PRESUMPTION. Presumption. — An inference of the existence of a dispu- ted fact, drawn by a judicial tribunal, by a process of prob- able reasoning, from one or more matters of fact, either admitted in the cause or otherwise satisfactorily established. Concrj.sive Presumptions, are inferences which the law makes so peremptorily that it will not allow them to be overturned by any contrary proof, however strong. Among conclusive presumptions may be reckoned, that an infant under the age of seven years is incapable of committing a felony ; that a boy under fourteen is incapable of commit- ting a rape ; that the issue of a wife with whom her husband cohabits is legitimate, though her infidelity be proved ; that all persons subject to a law are acquainted with its provis- ions, and the like. Disputable Presumptions are inferences of law, which hold good until they are invalidated by. proof of a stronger presumption. Among disputable presumptions may be reckoned, the presumption that a man is innocent of the commission of a crime until proven guilty; that the pos- sessor of property is the owner; that possession of fruits of a crime is guilty possession ; that things usually done in the course of trade have been done, and the like. PRIMA FACIE. Prima Facie. — At first view or appearance ; as, the hold- er of a bill or note indorsed in blank, is, prima facie, the owner. Prima facie evidence of fact is sufficient to estab- lish the fact, unless rebutted. For example : When build- 716 LAW ENCTCLOPEDU. ings are fired by sparks emitted from a locomotive engine passing along the road, it is jorima facie evidence of negli- gence on the part of those who have the charge of it. PROTEST. Protest. — A notarial act, made for want of payment of a promissory note or for want of acceptance or payment of a bill of exchange by a notary public, in which it is declared ■♦ that all parties to such instruments will be held responsible to the holder for all damages, etcr Eemand and Presentment of Commeroial Paper. — The presentment and demand of commercial paper having days of grace, must be made within reasonable hours on the last day of grace. Eor the purpose of fixing the liability of in- dorsers, the note or bill is payable on demand at any time within those hours. What are Reasonable Hours, will depend upon the ques- tion whether or not the bill or note is payable at a bank or place where, by the established usages of trade, business transactions are limited to certain stated hours. If there are such stated Houro where the note or bill is payable, the presentment and demand must be made within those hours. But if there are no stated hours and no place of payment is designated in the note or bill, the present- ment and demand may be made either at the place of busi- ness or residence of the maker or acceptor. If at his Place of Business, it must be within the usual business hours of the city or town ; if at his residence, then within those hours when the maker or acceptor may be pre- sumed to be in a condition to attend to business. Notice of Non-payment.— Notice may be given to the indorser or other parties entitled to notice, immediately after presentment to the maker or acceptor and refusal by him to pay, although it is not necessary that, notice should be given until the following day. After due Presentment and demand, the liability of the PEOTEST. 717 parties becomes fixed. If, however the maker of the note chooses after this to seek out tho holder and pay his note, he can do so and thus save himself from the liability to suit on tho following day. For the purpose oi" Fixing the liability of an indorser, the note is payable on demand at any time during reasona- ble hours on the last day of grace ; but for the purpose of sustaining an action, the holder must wait until the follow- ing day, as the maker has the whole day to make payment. Zftect of Notarial Certificate. — ^A notarial certificate of presentment and demand and of protest for non-payment of a promissory note, taken from the record of the notary, is admissible, and is prima facie evidence of the facts con- tained therein in liks manner as the original protest. Form of Certificate. — It is not necessary that the certifi- cate should state the form of notice given ; any notice is sufficient if it inform the party to whom it was given, either in express terms or by necessary implication, that the note has been duly presented at its maturity and dishonored. Notice by Mail. — ^In all cases where notice of non-accept- ance or non-payment of a bill or note or other negotiable instrument, may be given by mail, it will be sufficient if such notice be directed to the city or town where the per- son sought to^ be charged resided at the time of making, drawing or indorsing, the same, unless at the time of such making, drawing or indorsing, he shall specify thereon the post-office to which he may require the notice to be ad- dressed. A Notice of Protest should be sent to the post-office at which the person to whom it is directed is accustomed to get his letters, where his address is not indorsed on the bill or note. Form of Protest. — No precise form of words is necessary to constitute a sufficient notice of protest. The identity of the note and the fact of the demand and non-payment, must be brought home to the party sought to be charged, and. the notice may be either oral or written. 718 LAW ENCYCLOPEDIA. The Certificate of the Notary need not state by -whom the service of notice and deposit in the post-office was made. When Demand must be Made. — ^In order to hold an in- dorser liable, a demand of payment on bills or notes must be made on the third day of grace. If the third day falls on Sunday or on any great holiday, demand must be made on Saturday or the day preceding the holiday. The demand must be made at the place of business of the maker or ac- ceptor -within business hours or at the place of payment, where it is specified. If the party has absconded, no de- mand is necessary ; and where he has no place of business, it may be made at his dwelling-house. It is competent for any person who has arrived at years of discretion, though not a notary, to make the demand, if authorized by the holder. An indorsed note, payable on demand, must be presented within a reasonable time. Where to Present Note and make Demand in Case of Non-residents of the Stat% — ^Where a note, not roavable at any particular place, is - made and indorsed, and both the maker and indorser reside in a foreign country, it must be duly presented ,to the maker, if the place of his residence be known, and notice given to the indorser in order to charge the latter. Waiver of Protest. — Notice may be dispensed with by express waiver or by any act which will amount to a waiver. Notice to Indorsers. — The protest of a promissory note must be attended with all the incidents of a foreign bill of exchange. It is the duty of the notary to give notice of protest to the indorsers. If a Note be Indorsed after it is due, the indorser is entitled to demand and notice before he is liable to his indorser. No time is expressly limited, as in case of notes or bills not due, for demand and notice to the indorser, but the law requires a demand to be made in a reasonable time and notice of default seasonably given. limitation of Notary's Authority, etc. — A notary or PROTEST — PUBLIC -OFFICEES. 719 other officer authorized to take and certify acknowledg- ments, and the proof of the execution of deeds and other instruments, cannot alter or correct his certificate, even to insert the statement of a fact inadvertently admitted, after some decisive act is done showing that he has exercised his authority over the subject. After taking the acknowledg- ment and making and delivering the return, his functions cease, and he is discharged from all further authority. Bee Bdlls aud Notes — Notaey Public. PUBLICATION. Publication. — The act by which a thing is made public. A Ijibel may be published either by speaking or singing, as when it is maliciously repeated or sung in the presence of others; or by delivery, as when a libel or a copy of it is delivered to another. A libel may also be published by pictures or signs, as by painting another in an ignominious manner. See Libel. PUBLIC OFFICERS. Public Officers. — ^All state and county officers, except notaries public and a few officers of special creation by the legislature, are chosen by a popular election. The Statutes of California, Nevada and Idaho, contain the following provisions : Oath of Office. — Every officer chosen or appointed to any office of trust or profit under the authority of this state, before entering upon his office must take and subscribe the oath [or, "affirmation "] of office, which may be taken and subscribed before any judge of the supreme, district court or clerk thereof, county judge or clerk, notary public or justice of the peace ; and, except in cases of members of the legislature, the governor or lieutenant-governor must be indorsed upon the commission or certificate, within ten days after the reception of his commission or certificate, or within ten days after the commencement of hia term 720 LA^y ENCYCLOPEDIA. of office, if he has received his commission or certificate. Deputies must take the same oath as the principal. State L "brary. — Every officer of this state, civil and mil- itary, commissioned by the governor, is required, on receipt of his commission, to pay the sum of five dollars to the secretary of state, for the benefit of the library fund. Numter cf Sureties. — Unless otherwise provided, there shall be at least two sureties upon the official bond of every officer. Approval of Bond. — The approval of every official bond shall be indorsed thereon and signed by the court or officer approving the same. No OfScer, with whom any official bond is required to be filed, shall file and take charge of such bond until approved as prescribed by law. Penalty for Performing Duties \iyithout Bond. — If any person, elected or appointed to any office, shall perform any of the duties thereof without having executed and filed in the proper office any bond required of him by law, he shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined in a sum not exceeding one thousand dollars and his office be declared vacant. Construction of Bond, etc. — Every official bond, exe- cuted by any officer pursuant to law, shall be deemed and taken to be in force and obligatory upon the principal and sureties therein, for any and all breaches of the condition or conditions thereof committed during the time such officer shall continue to discharge any of the duties of or hold such office, and for the faithful discharge of all the duties which may be required of such officer by any law enacted subsequently to the execution of such bond, and such con- dition shall be expressed therein, to and for the use and benefit of all persons who may be injured or aggrieved by the wrongful act of such officer in his official capacity, and any person so injured or aggrieved may bring suit on such bond in his own name without assignment thereof. PUBLIC OrFICEES, FOKMS OP. 721 Bond may be Sued on, notwithstanding Defects.— Whenever any such official bond shall not contain the sub- stantial matter or condition or conditions required bj law, or there shall be any defects in the approval or filing there- of, such bond shall not be void so as to discharge such officer and his sureties, but they shall be equitably boimd to the state or party interested, and suit may be brought, the defect being suggested and the parties held responsible. Discharge of Sureties. — New or additional bonds may be required whenever sureties may become insolvent or remove from the state, or from other cause such further bond becomes necessary, also when the sureties wish to be discharged, and a failure to file such new or additional bond when legally required, vacates the office. The Discharge of any Surety releases him only as to liability to be incurred after the discharge. OSaoers not to Deal in certain Securities. — All public officers are prohibited for dealing directly or indirectly in scrip, warrants and all other evidences of indebtedness (ex- cept the same be funded) against the state or any county, city or town, unless it be such warrants, scrip, etc., as they inay have received for their services. This prohibition, however, applies to state officers only as to state indebted- ness, and to county and city officers only as to the indebt- edness of the counties or cities they represent. The offense in made a misdemeanor, punishable by fine and imprison- ment, forfeiture of office and disqualification for any other office. Provision is also made for the punishment of offi- cers for extortion or for refusing or neglecting to perform any lawful official act. The statute also forbids officers from being directly or indirectly interested in any public purchase or any public contracts made by the corporation or body of which he is a member or in any purchase made in the department under which he is appointed to serve. roEMS. QffiKial Oath. I do solemnly swear [or, " afErm"] that I will support the constitution of 722 LAW ENCYCLOPEDU. the United States and the constitution of the state of and that I will faithfully discharge the duties of [give the title of the ofBice] according to the best of my ability. [Signed] Sworn and subscribed before me, this day of a.d. 18 . . County judge of the county of , Cfeneral Form of an Official Bond. Know all men by these presents, that we , as principal, and and of, etc., as sureties, are held and firmly bound unto the state of [or, the officer or officers to whom the bond is to be given] in the penal sum of dollars, for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors and ad- ministrators, jointly and severally, firmly by these presents. Sealed with our seals and dated the .... day of . , a.d. 18 . . Whereas, the above-bounden has been appointed [or, " elect- ed"] to the office of [give the title of the office], now, therefore, the condi- tion of the above obligation is such that if the said shall well and truly and faithfully perform and execute the duties of [title of the office, or, " his trust "] according to law and according to the requirements of any law to be hereafter enacted, then the above obligation to be void; else to remain in full force. llSigned] [i.s.] [i-s.] [i-s-] ' Signed and sealed in presence of Commission. The people of the state of to all to ^hom these presents shall' come, greeting : Know ye, that, whereas, on the day of , in the year of our Lord eighteen hundred and was duly elected of the county of for the full term, as appears from the returns of the election on file in the office of the secretary of state : Now, therefore, I governor of the state of , do by these presents commission the said as of said ■ county aforesaid, to enter upon the duties of the office on the of , a.d. 18 . . , to have and to hold said office with all the powers, privileges and emoluments' to the same of right appertaining, unto him, the said for the term prescribed by law. In testimony whereof, I have caused the great seal of the state of to be hereunto affixed. Given under my hand at the .... day of ..... in the year of our Lord eighteen hundred and [li.s.] Attest: , Secretary of state. PUBLIC OmCEES, FORMS OP. 723 Certificate of Election. United States of America, I State of county of f Of&oe of the county clerk of the county of I county clerk of the said county, do hereby certify that, at an election held in said county of on , the .... day of , Anno Domini one thousand eight hundred and , was elected [here state what of6ce]. Witness my hand and the seal of the county court of the county of this day of A. D. 18.. County clerk. Stateof , 1 county of J I do solemnly swear that I will support the constitution of the United States of America and the constitution of the state of , and that I will faithfully discharge the duties of . . to the best of my ability. So help me God. Subscribed and sworn to before me, this day of . . . ., 18. . Affidavit of Justification^pon ihe foregoing Sonds. Stateof 1 county of j , and , being duly sworn, each for himself, doth depose and say, that he is a resident and freeholder or householder in the said county of and that he is worth the amount for which he be- comes liable as surety on the foregoing bond, over and above his debts and liabilities, in unincumbered property situated within this state, which may be levied upon, and is not exempt from execution and forced sale. [Signed] • Subscribed and sworn to before me, this .... day of , 18 . . [Signed] County clerk. Petition for Release from Official Bona. State of I county of ) To the [address the petition to the officer or board who approved the bond] : The undersigned respectfully represents that he is one of the sureties on the official bond of filed , 18 . . , in the office of said county ; which bond was duly approved by you before filing. The undersigned furtker represents that he is informed and he believes that the said is incompetent by reason of intemperance [or, "he is a defaulter. " or, " he is about to decamp, ' ■ or, " he is using the public money 72i LAW ENCYCLOPEDIA. in his private business," or, "he is insane," or, "gambles," etc.] to per- form the duties^ of said office. 'Wherefore petitioner israys that the said may be ordered to show cause in a proper manner why this petitioner should not bo released and discharged from the official bond of the said Dated , 18 . . [Signed] Subscribed and sworn to before mo. this day of , 18. . County clerk, [or, "notary public "]. Affidavit of Service of the Same. State of I county of J being duly sworn, says, that he is a white, male citizen of the United States ; and that he served a copy of the within statement or affi- davit of , on the said , [here state the office he holds] ai the city of .... , county of on the .... day of . . . . , 18 [Signed] Subscribed and sworn to [as above], QUASH. Quash. — ^When proceedings are clearly irregtilar and void, the courts will quash, them ; that is, set them aside. In Criminal Cases, where an indictment is so defective that no judgment can be given upon it, should the defend- ant be convicted the court will quash it: QUITCLAIM. Quitclaim. — ^A deed of release by which the grantor con- veys to the grantee all his right, title and interest, in and to real property described in the deed. See Deed — Con- veyancing. RATIFICATION. Ratification. — An agreement to adopt an act performed by another for the person ratifying. Express Ratifications are those made in express and direct terms of assent. Implied Ratifications are such as the law presumes from the acts of the principal, as if ... pay for goods for . . . . , KATrPICATION — EECEIPT, F0KM3 OF. 725 and the latter, knowing the fact, receives them and apply them to his own use. By Ratifying a Contract, a man adopts the agency alto- gether, as well what is detrimental as that which is for his benefit. The principal [which is in the fore- going example] has the right to elect whether he will adopt the unauthorized act of [the agent] or not. But having once ratified the act, upon a full knowledge of all the material circumstances, the ratification cannot be re- voked or recalled, and becomes bound, as if he had originally authorized the act of RECEIPT. Receipt. — A receipt in full of all demands, is generally considered, by unprofessional men, as conclusive evidence that the debt is fully paid and discharged. This is untrue. Such a receipt is simply evidence of the fact of payment, and it may be proved to be a mistake or shown to be false. Effect of part Payment. — The following act of the legis- lature of California, makes payments of less sums of money in satisfaction of greater sums, legal and binding. Before this law was passed such payments were not binding : ' ' By agreement between creditor and debtor, a less sum than the whole amount may be paid and received, in full pay- ment and discharge of any indebtedness, if such agreement be clearly manifested by a receipt of instrument in writing, signed by such creditor. See Eelease. FORMS. $ ^ 18.. Eeceived of , of the and county of the sum of dollars, in full and complete satisfaction of a debt due me from of the same place. Said sum of rdoney now paid me by the said , being less than the true sum due me from him, as aforesaid. This instrument is intended as a receipt of a less sum than the whole amount due, and in full discharge of the whole amount, under and by -virtue of an act of the legisla- ture of the state of entitled "An act for the relief of debtors," ap- proved , 18 . . [Signed] 726 LAW ENCYCLOPEDIA. Jleceipl in full of all Demands. $ 18.. Received of dollars, iu lull of all demands against him. lieceipt on Account. ; , , 18.. Beceived of dollars, to apply on acooiint. JUcelpt for Money paid for Another. 18. BeceiTed of dollars, in full of all demands against . Iteceipt for a Special Purpose. Beceiyed, 18 . . , from dollars, to pay the account of against him. Receipt when Money is Paid by a Third Person. ,18.. Beceived of through ., „^. dollars, in full of all de- mands against up to this date. Beceipt of Interest to be Indorsed on a Bond. Beceived, 18 . . , of , dollars, being the semi-annual interest this day due on the within bond. lieceipt in full for a Special Account. , , 18.. Beceived from , .... dollars, iu full of all demands for to 18.. RECORDING. Recording. — In the states of the Pacific, every convey- ance or other instrument in writing, conveying or affecting real estate or any instrument in writing, by which any real estate or interest in real estate is created, aliened, mort- gaged or assigned, except wills, leases for a term not ex- ceeding one year and executory contracts for the sale or purchase of lands, properly proved or acknowledged and certified, may be recorded in the county where the land affected by the instrument lies and [with the exception of RECORDING — ^EEDEMl'TION. 727 powers of attorneyj may be used in evidence without fur- ther proof ; or if recorded and lost, the record or a certified copy of the record may be used in evidence, subject to being rebutted by proof of incompetency of the witness by whom the execution of the instrument purports to have been proved. Conveyances or Deeds aiFecting Lands are of force be- tween the parties without recording ; but in order to give notice to third parties, the deed should be recorded in the office of the recorder of the county in which the land lies ; and except where there are special and important reasons for not placing the deed at once upon record, it is recom- mended that every deed should be recorded as soon as pos- sible after it has been properly acknowledged or proved. As a prerequisite to such Recording, the instrument must be acknowledged or proved before the proper officer, and such acknowledgment or proof must be certified by the officer in the proper form, or the purposes of such recording will not be efi'ected. If such Deed or other Instnunent be not lawfully ac- knowledged and recorded, it will still be valid between the parties to the same and their representatives — but will not hold good as against the title of a subsequent purchaser in good faith and for a valuable consideration, whose deed shall have been duly acknowledged and recorded. See Ac- _ KNOWUEDGMENT. REDEMPTION. Redemption. — ^In California, Nevada and Idaho, upon a sale of real property, the purchaser shall be substituted to and acquire all the right, title, interest and claim, of the judgment debtor thereto ; and when the estate is less than a leasehold of two years' unexpired term the sale shall be absolute. In all other cases the property shall be sub- ject to redemption. Property Soli subject to redemption or any part sold separately may be redeemed in the manner hereinafter pro- 728 LAW ENCyCLOPEDU. vided, by the following persons or tlieir successors in inter- est : 1st. The judgment debtor or his successor in interest in the whole or any part of the property. 2d. A creditor having a lien by judgment or mortgage on the property sold or on some share or part thereof subse- quent to that on which the property was sold. When to be Redeemed. — The judgment debtor or re- demptioner may redeem the property from the purchaser within six months after the sale on paying the purchaser the amount of his purchase with twelve per cent, thereon in addition, together with the amount of any assessment or taxes which the purchaser may have paid thereon after the purchase and interest on such" amount; and if the pur- chaser be also a creditor, having a prior lien to that of the redemption^r other than the judgment under which such purchase was made, the amount of such lien with interest. [In Nevada and Idaho, the redemptioner must pay eighteen per cent, thereon in addition. ] If Property be so Redeemed by a redemptioner, either the judgment debtor or another redemptioner may, within sixty days after the last redemption, again redeem it from the last redemptioner on paying the sum paid on such last redemption with four per cent, thereon in addition, and the amount of any assessment or taxes which the said last re- demptioner may have paid thereon after the redemption by him, with interest on such amount, and in addition, the* amount of any liens held by said last redemptioner prior to his own, with interest : provided, that the judgment under which the property was sold need not be so paid as a lien. The property may be again and as often as the debtor or a redemptioner is so disposed redeemed from any previous redemptioner within sixty days after the last redemption, with four per cent, thereon in addition, and the amount of any assessments or taxes which the last previous redemp- tioner paid after the redemption by him, with interest thereon, and the amount of any liens other than the judg- ment under which the property was sold held by the said REDEMPTION — EEHEAEING. 729 last reclemptioner previous to his own, with interest. No- tice of redemption shall be given to the sheriff. If no redemption be made within six months after the sale the purchaser or his assignee shall be entitled to a convey- ance, or, if so redeemed, whenever sixty days have elapsed and no other redemption has been made and notice there- of given, the time for redemption shall have expired and the last redemptioner or his assignee shall be entitled to a sheriff's deed. If the debtor redeem at any time before the time for redemption expires the effect of the sale shall be terminated and he be restored to his estate. Proof to be Made. — A redemptioner shall produce to the officer or person from whom he seeks to redeem and serve with his notice to the sheriff : 1st. A copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the court or of the county where the judgment is docketed, or, if he redeem upon a mortgage or other lien, a note of the record thereof certified by the recorder. 2d. A copy of any assignment necessary to establish his claim, verified by the affidavit of himself or of a subscrib- ing witness thereto. 3d. An affidavit by himself or his agent showing the amount then actually due on the lien. Rents and Profits. — The purchaser, from the time of the sale until a redemption, and a redemptioner, from the time of his redemption until another redemption, shall be entitled to receive from the tenant in possession the rents of the property sold or the value of the use and occupation thereof : provided, that, in case the property shall be redeemed, the amount of such rents and profits which may have been received by such purchaser shall be applied towards the payment of the amount of purchase money, unless the redemptioner releases such application of rents and profits so received. REHEARING. Reheaxirg. — A second consideration which a court givea to a cause on a second argument. 730 LAW ENCYCLOPEDIA. A Rehearing takes place when the court has doubts on the subject to be decided, but wiil not be granted by a court after a cause has been remitted to the court below to carry into effect the decree of the superior court. RELEASE. Release, ho"w Executed. — A release should always be executed under seal. When so executed a release from all demands extinguishes all possible causes of action and leaves the parties to it in the same position as though they never had business relations with each other. Effect of Release. — A release of one of many equally wrong-doers generally releases all. This, of course, does not apply to such of the parties as covenant under seal to remain liable. A release of one of several joint obligors releases all. Agreement not to Sue. — An -agreement not to sue two joint debtors releases both, but an agreement not to sue one will not serve as a release to either. FOEMS. Belease of all Demands. Know all men by these presents, that I, of , for and in consideration of the stun of dollars, to me in hand paid by , of said city, have remised, released and forever discharged, the said .... from all claims of every Hnd, nature and character, soever against him from the beginning of the vrorld to this day. As witness my hand and seal, this .... day of .... , one thousand eight hundred and [L.3.] Spemal Belease, Know all men by these presents, that I, of , for and in consideration of the sum of to me in hand paid by , of said city, have remised, released and forever discharged, and by these presents do, for myself, my heirs, executors, administrators and assigns, remise, re- lease and forever discharge, the said his heirs, executors and administrators, of and from all manner of action and actions, cause and causes of actions, suits, debts, dues, sums of money, claims and demands, whatsoever, in law or in equity, which I ever had or now have or which I or my heirs, executors, administrators or assigns, hereafter can, shall or may, have by reason of any matter, cause or thing, whatever, from the beginning RELEASE, FORMS OF. 731 of the world to this day, arising out of any dealings or transactions between myself and the said at my store in the city of As witness, etc. [as in Release op ail Demands], Bekase made in Pursuance of an Award. Knovr all men by these presents, that I , of, etc., in the county < of, etc., have remised, released and forever quitclaimed, and by these pres- ents do remise, release and forever quitclaim, unto of, etc., in the said county, his heirs, executors and administrators, from all actions, cause and causes of action, judgments, suits, controversies, trespasses, debts, duties, damages, accounts, reckonings and demands, whatsoever, for or by reason of any matter, cause or thing, whatsoever, from the beginning of the world to the day of last, save and except my right to redeem a certain farm now in mortgage to the said at the time, under the terms and in the manner prescribed in and by a certain award made the day of , in the year 18. ., by , of, etc., on a reference to him oi all disputes between me and the said As witness, etc. [as in Release of all Demands]. Miitiuil General Release by Indenture. This indenture, made this .... day of ..... between of, etc., of the one part, and of, etc., of the other, witnesseth, that on the day hereof the said and have each paid to the other the sum of dollars, and each of them has canceled and delivered up to the other certain covenants, bonds, notes of hand and written contracts, upon which each of the parties claimed and pretended to have divers claims and demands on the other ; the said claims and contracts so canceled and deliv- ered up being supposed and intended to be all the claims and evidence of claim by each of the parties hereto on the other. And, in consideration thereof, each of them, the said and does hereby for tdmself and his legal representatives release and absolutely and forever dis- charge the other of and from all claims and demands, actions and causes oi action of every name and nature, so that neither of them shall have any claim on the other directly or indirectly on any contract or supposed liabil- ity or thing undertaken, done or omitted to be done, from the beginning oi the world to this day. As witness, etc. [as in Release op all .t)EiiANns]. Selease to a Guardian. Know all men by these presents, etc., that etc and heir of , deceased, now over twenty-one years old, hath remised, re- leased and forever quitclaimed, and by these presents doth remise, etc., unto of his guardian, aU and all manner of action, actions, suits, reckonings, accounts, debts, dues and demands, whatsoever, which he, the said , ever had, now hath or which he, his executors or adminis- trators, at any time hereafter can or may have, claim or demand, against 732 LAW ENCYCLOPEDIA. tlie said his executors or administrators, tor, tbucliing and con- cerning the management and disposition of any of the lands, tenements and hereditaments, of the said , situate, etc., or any part thereof, or for or by reason of any moneys, rents or profits, by him received out of the same, or any payments made thereout, during the minority of tiie said . . . . , or by reason of any matter, cause or thing, whatsoever, relating thereto, from the beginning of the world to the day of the date hereof. As witness, etc. [as in Belease of at.t, Demands]. Release of a Proviso or CondUion. Know all men by these presents, etc., that I , of for divers good considerations me hereunto moving, have remised, released and quitclaimed, and, by these presents, for me, my executors and administra- tors and assigns, do, etc., unto , of his heirs, executors, administrators and assigns, as well one proviso or condition and all and every the sum and sums of money specified in the same proviso or condi- tion, contained or comprised in one pair of indentures, of, etc., bearing date, etc., made between me, the said of the one part, and the said . , of the other part, and also all and aU manner of actions and suits, cause and causes of action and suits, for or concerning the said proviso or condition. As witness, etc. [as in Kelease of ax.i. Demands]. Release of a Legacy. Know all men by these presents, that, whereas , of , in the county of and state of , by his last will and testament, in writing, bearing date the day of .... , a.d. 18 . . , did, among other lega- cies therein contained, give and bequeath unto me, , of ' , in the said county, the sum or legacy of dollars, and of his said will and testament did make and constitute the sole executor [or, " and joint executors "]; Now, therefore, I the said , hereby acknowledge the receipt from the said , executor [or, " .... and , joint executors "], as aforesaid, of the said sum or legacy of dollars so given and bequeathed to me as aforesaid, and do acquit, release and discharge, the said [or, " and "] of and from all legacies, dues and demands, whatsoever, under or by virtue of the said last wUl and testament or against or out of the estate of the said As witness, etc. [as in K^lease of adii Demands], Release of a Trust. To all, etc., , etc., sendeth greeting : Whereas, by indenture bearing date made between, etc. [here recite the deed], in which said indenture the said , doth hereby declare that his name was only used in trust, for the benefit and behoof of : Now know ye, that I, the said , in discharge of the trust EELEASE, F0KM3 OF 733 reposed in me, at the request of the said have remised, released and surrendered, assigned and set over, and by these presents, for me, my executors and administrators, do freely and absolutely remise, etc., unto the s^icl , his executors, etc., all the estate, right, title, interest, use, benefit, privilege and demand, whatsoever, which I, the said , have or may have or claim of or to the said premises or of and in any sum of money or other matter or thing whatsoever, in the said indenture con- tained, mentioned and expressed ; so that neither I, the said , my executors or administrators or any of us, at any time hereafter, shall or will ask, claim, challenge or demand, any interest, etc. or other thing, in any manner whatsoever, by reason or means of the said indenture or any cove- nant therein contained, but thereof and therefrom, and from all actions, suits and demands, which I, my executors, administrators or assigns, may have concerning the same, shall be utterly excluded and forever debarred by these presents. As witness, etc. [as in Kglease of at.t. Demands]. Release from a Legatee upon his Coming of Age. Know all men by these presents, that whereas of , made his last will and testament in writing, bearing date . , and among other legacies therein contained, did give and bequeath unto me, , of , his son, the annual sum of , to be paid to me quarterly, until I should attain the age of one-and-twenty years ; and of his will con- stituted and , joint executors, as in and by the said will may appear ; and whereas the said and did jointly accept of the said executorship and trust, and I, the said have attained my said age of twenty-one years ; and whereas the said and have made up an account with me, the said , of all moneys received and paid by the said and and all transactions in pursuance of the said executorship and trust, and have not only paid me, the said , the balance of such accounts, but also delivered unto me all the wilting and papers belonging to the estate of the said deceased . . . . : Now know ye, that I, the said being fully satisfied in the premises, have remised, released and forever quitclaimed, and by these pres- ents do remise, release and forever quitclaim, unto the said and and each of them, their and each of their executors and adminis- trators, all reckonings and accounts, sum and sums of money, by them had jnd received in pursuance of the said trust, or by means of their being ex- 3cutors to the said as aforesaid ; and also of and from aU other reckonings, accounts and demands, whatsoever, from the beginning of the norld to the day of the date of these presents. As witness, etc. [as in Belease op haj Demands]. Belease of Land by a Judgment Creditor. In the court. against V Judprnent rendered the day of , 18. ., in the .... court, against 734 LAW ENCYCLOPEDIA. Baid and in favor of said , for the sum of dollars damages and dollars, costs of suit. In consideration of ... . dollars, to me in hand paid, the receipt whereof is acknowledged, I do hereby remise, release and discharge, the following described land and premises, to wit : [description of the premises] from all claim to or interest in the same or any part thereof, which I may have, iinder and by virtue of the above-mentioned judgment, and from all lien or incumbrance that has attached to the same by reason of the recovery of the said judgment, as free and clear, in all respects, as though said judg- ment had not been rendered. As witness, etc. [as in Bei.ease or au. Deuakss], REPAIRS. Repairs.p-That work which is done to an estate to keep it in good order. When there is no Sxpress agreement between the par- ties, the tenant is always required to do the necessary re- pairs. He is bound to put in windows or doors that have been broken by him, so as to prevent any decay of the premises ; but he is not required to replace old by new. An Express agreement, on the part of the tenant to keep a house in repair and leave it in as good plight as it was when the lease was made, does not bind him to repair the ordinary and natural decay. When a House has been destroyed, by fire, neither the tenant nor the landlord is bound to rebuild, unless obliged by some agreement so to do. See Landloed and Tenant. REPLEVIN. Replevin. — A form of action which lies to regain the possession of personal chattels which have been taken from the plaintiff unlawfully. In the Practice of the Pacific coast, the plaintiff files a complaint and affidavit, describing the property which he claims. If he desires the possession of the property before judgment, he files a bond and thereupon the sheriff will take the property into his possession, unless the defendant give another bond to retain the property EEPLEYIN — RESIDENCE AND DOSnCIL. 735 REQUEST. Kequest. — A notice of a desire on the part of the person making it that the other party shall do something in rela- tion to a contract. • In Some cases, the necessity of a request is implied from the nature of the transaction ; as, where a horse is sold to A, to be paid for on delivery, A must show a request or im- possibility on the part of the vendor to comply, if request- ed previous to bringing an action. If the Contraot, in terms, provides for a request, it must be made. It should be in writing and state distinctly what it is required to be done. RESIDENCE AND DOMICIL. Residence. — Besidence indicates permanency of occupa- tion, as distinguished from lodging or boarding or tempo- rary occupation. Domioil. — That place where a man has his true, fixed and permanent, liome and principal establishment, and to which, whenever he is absent, he has the intention of re- turning. Two things are necessary to establish a domicil — the fact of residence and the intention of remaining. These two must exist or musf have existed in combination ; and herein lies the distinction between residence and domicil. IjOSS of Residence. — A person who is domiciled in and has become a resident of a place, does not lose his resi- dence by going to and stopping at another place, not to reside there permanently but only for a limited time. Domicil of Wife. — The domicil of the husband is also the domicil of the wife. Intention. — Eesidence depends upon intention as well as fact, and mere inhabitancy for a short period, against the intention of acquiring a domicil, would not make a resident within the meaning of the law so as to constitute an elector. 736 ■LA.Vr ENCYCLOPEDIA. RESPONDENTIA. Respondentia. — A loan of money on maritime interest, on goods laden on board of a ship, upon the condition that if the goods be wholly lost, in the course of the voyage, by any of the perils enumerated in the contract, the lender shall lose his money; if not, that the borrower shall pay him the sum borrowed, with the interest agreed upon. If any Part of the goods arrive safely at the end of the voyage, the lender is entitled to have the proceeds applied to the payment of his debt. See Bonds. RIGHT OP WAY. Right of Way, Public. — ^Every person has a right to travel when, where and as often as, he pleases, on any pub- lic street, highway, alley or lane. This is the law of all countries. In addition, rights of way may be acquired over the lands of another, by grant or prescription. "When a grant is made and no dimensions of a way are expressed, sufficient will pass for the accomplishment of the object. If it be a foot-path only, it shall be reasonably wide for all persons to pass on foot, with such things as are usually car- ried by foot-passengers. If !t be a way for teams and car- riages, it shall be of sufficient height and breadth to admit of carriages of the largest size in common use, and high enough for loads of hay and other similar vehicles usually moved by teams. The grantee must keep it in repair. If it becomes impassable, the grantee has no right to deviate from his way and pass over the adjoining land. If he does, he becomes responsible as a trespasser . By Prescription. — The adverse enjoyment of a right of way, for a period sufficiently long to acquire title to land by possession [which is five years in California], establish- es an absolute right of way, and is a bar to any action brought by the owner of the land against the person using the way. To support such a right, the claim must be shown to have been uninterrupted. If A has adverse possession BIGHT OF WAT. 737 and use for four years only, and then conveys his right or estate to B, who has adverse possession, for one year, the four years' possession of A cannot be added in order to make up the five years. Neither acts of courtesy nor conve- nience can give one a right of way over another's land. By Necessity. — If a man having two parcels of land, to one of which he has no access except over the other, con- vey such inaccessible parcel, the grantee has a right of way to it over the other parcel, as incident to the grant. So, if the owner convey the accessible parcel, retaining the in- accessible one, a right of way to the latter over the former is reserved to the grantor. A person claiming a right by necessity, is entitled, however, only to a convenient way over the other's land and will have no right to pass over it v/henever he pleases. He must select a suitable route for his way ; but in doing it, he must regard the interest and convenience of the owner of the land; and when he has done it, he will be confined to the same way and may not change its course according to his wishes or caprice. Thus, if one has a right of way by necessity over the land of an- other, he is bound to use it so as to occasion the least pos- sible inconvenience to the owner of the land. All that a person entitled to such an easement can reasonably claim, is a convenient way ; and if this is allowed him by the owner of the land, he has no cause to complain. A right of way by necessity, cannot be claimed by one who has a way over his own ground, however inconvenient that may be. When R-ght Ceases. — A way of necessity is limited by the necessity which created it ; and when such necessity ceases, the right of way also ceases ; therefore, if at any subsequent period, the party formerly entitled to such way can approach the place to which it led, by passing over his own land by as direct a course as he would have done by using the old way, such way ceases to exist as of necessity. Hish'way. — By the common law, the fee in the soil re- mains in the original owner where a public road is made upon it, but the use of the road is in the public. The own- er parts with these only ; for if the road should be vacated 47 738 LAW ENCYCLOPEDIA. by the public, lie resumes the exclusive possession of the ground ; while it is used as a highway he is entitled to the timber and grass which may grow upon the surface and to all the minerals which may be found below it. He may bring an action of trespass against any one who ob- structs the road. There is a temporary right of way over the adjoining land if the highway be out of repair or be otherwise impassable, as by a flood. Ho-w Lost. — It is a general rule of law and which finds no exception here, that whatever may be gained by posses- sion or enjoyment may be lost by abandonment ornon-use. RUNNING WATER. Running Water. — Every man through whose land water passes, may use it for watering his cattle or irrigating, and he may do this either by dipping water from the brook and pouring it upon his land, or by making small sluices for the same purpose ; but he must use it in this latter way so as to do the least possible injury to his neighbor, who has the same right. And where the owner of land through which a natural stream flows diverts the water for the pur- pose of irrigation, without returning the surplus into the Qatural channel, whereby the owner of land below, entitled to use the water in the same manner, is deprived of his privilege, an action, lies. Streams of water are intended for the use and comfort of man, and every proprietor is entitled to a reasonable use of the water, and may apply it to domestic, agricultural and manufacturing, purposes, but not so as to destroy or materially diminish or affect the application of the water by the proprietors below on the stream. Several O-wners. — ^Where several owners of mill-seata on a running stream have a common and equal right to the use of the water, though no action lies against the owner of a mill above for any damage which the owner of a mill below may incidentally suffer from the reasonable use oi the water by the former for his own benefit ; yet the owner of the miU above has not an unlimited right to use the RUNNING WATEE. 73D ■water as he pleases, or to stop the natural flow of the stream, so as to destroy or render useless the mills below. And if he shuts down his gate, and detains the water for an unreasonable time, or lets it out in such unusual quantities as to prevent the owner of the mill below from using it, or deprive him of a reasonable and fair participation in the benefit of the stream, he is answerable for the damage thus sustained. The O-wner of an ancient mill may change the character and use of his mill at pleasure, without impairing his right to the water, if he does not thereby injure his neighbor's mill, and returns the water again to its ancient channel. By Prescription. — The exclusive enjoyment of the use ol water in a particular way for five years is sufficient to raise a presumption of title to such use ; and it is not necessary that the water should have been used precisely in the same manner or to propel the same machinery. So, after five years of uninterrupted enjoyment of a spring of water, an absolute right to it is gained by the occupier of the close in which it issues above ground ; and the owner of an ad- joining close cannot lawfully cut a drain whereby the sup- ply of water by the spring is diminished. A mill-privilege cannot be considered as extinguished or abandoned by dis- use until such disuse, entire and complete, has continued five years. Priority. — Mere priority of occupancy of the flowing water of a river creates no right; and an adverse enjoy- ment of water in a stream, for any period less than five years, is not sufficient to establish a right by prescription. Where a right exists to use a certain quantity of water, a change in the mode or objects of the use without increasing the quantity, is no violation of the right. Miner's Rights. — The foregoing are the principles of the common law, but in mining cases the supreme court oi California has recognized the custom of miners to a con- siderable extent, and have held that the first appropriator of water had the right to use it in any way, and might cut 740 LAW ENCYCLOPEDIA. off the stream entirely from those below himT By appro- priating the head of the stream he became the owner of it and could use it as he pleased. Rights of First Looator or Appropriator. — He who has first located his mining claim on the bank of a stream has the right to use the bed of the stream for the purpose of fluming or working his claim, and any subsequent erection, dam or embankment, which will turn the water back upon such claim, or hinder it from being worked with flumes or other necessary means or appliances, is an encroachment upon the rigjits of said first occupant, who is entitled to recover all damages consequent on such obstructions. The First Appropriator of water for mining purposes is entitled to have the water flow without material interrup- tion in its natural channel. And he is entitled to the water so undiminished in quantity as to leave suf&cient to fill his ditch as it existed at the time of the subsequent appropria- tion of the stream above him. As to any deterioration in the quality of the water, by reason of being used for min- ing purposes before it reaches the ditch of the prior loca- tor, it would not seem to be such a damage as any recovery can be had for. Parties are not Limited as to Quantity. — Parties are not limited to the amount and quantity of water which they may have turned into their ditch in th'e first instance, unless, by its general size, plan, etc., it was incapable at the time of carrying more water than was at first appro- priated. They may, at any reasonable time afterward, use more water, if necessary, in order to fill the ditch to its original capacity. But if they continue to use only the original quantity long enough to indicate that they intend- ed to appropriate no more, they would be limited to that quantity. SALE OF BUSINESS. Sale of Business, Contract of — Such sales are probably more frequent in California and the other states of the Pa- cific coast, than in any other tract of country of equal pop- SALE OP BUSINESS, FORMS OP. 741 Tilation. Frequently the seller stipulates that he will not engage or be interested in the same or similar business at the same place, town, county or state, again within a lim- ited time or never. Formerly it was different ; but now it IS settled that a contract never to engage in a certain busi- ness or calling is void, and will be disregarded by the courts. This is m\ the principle that the state has an inter-, est in the well-being of every citizen, taken singly and in the aggregate. It would be detrimental to the interest of the whole, if any one citizen could, by his contract, forever debar himself from engaging in the business or profession he has learned, otherwise he might be a pauper and a state charge. Contract not to Engage in the same Business. — ^For a valuable consideration, a seller may contract not to engage in the business he sells, within certain well-defined limits ; and if those limits are reasonable [and it is for the courts to say whether they are], the contract will be sustained. It is safe to say, that a contract not to engage in the same business in a certain street or city for a certain time, is binding in law. Proof df Damages. — When such contracts are violated it is always difficult to prove damages, and it is best to stip- ulate in the contract and under seal, that if the seller vio- lates the contract in any way that he will pay to the pur- chaser a certain sum of money as liquidated damages and liot as a penalty. Iryimctions in Aid of Sale. — In contracts of this kind, the courts would interfere by injunction and restrain the seller from violating his contract and engaging in the same business after he had contracted not to do so. FOBM. Covenant to 6e inserted in BiU of Sale where the Bxisiness is also Sold. And tlie said party of the first part further agrees, for the further consid- eration of dollars, the receipt of which is hereby acknowledged, not to engage in or carry on,' either directly or indirectly or be interested, in the following described business [here fully describe what is intended], within 7'12 LAW ENOYCLOPEDLi. the following defined limits, to -wit : for the period of from date. And if the party of the first part hereafter violates aliy of the covenants oi this agreement herein stipulated to be kept by him, he hereby agrees to pay to the party of the second part the sum of dollars, as liquidated damayes and not as a penalty. In -witness, etc. [l.s.] SALE OF GOODS. Sale of Goods, ho-w Made. — If any person agrees with another for goods, and the price is fixed, he must pay for them before he carries them away ; for it is no sale with- out payment, unless it be expressly agreed to give credit. If the seller says the price of the goods is one hundred dol- lars and the purchaser says he will pay it, the sale is made and neither has a right to decline to pay or deliver. But if neither the whole nor any part of the mdney be paid nor the goods nor any part of them delivered nor an offer made nor the agreement put in writing, it is no sale and the owner may dispose of the goods as he pleases. No Sale is Complete, so as to vest in the buyer an imme- diate right of property, so long as anything remains to be done between the seller and the buyer in relation to the goods, such as counting, weighing or measuring. But when either are done, so that the articles are separate and dis- tinct, the bargain is struck and the property of the goods is vested in the vendee and remains at his risk. So, if a Horse die in the interval of sale and delivery, the vendor is entitled to his money, though no actual change of property has taken place. How Transferred. — It is important to know at what time and by what means the property of the thing sold is trans- ferred from the seller to the purchaser and becomes vested in the latter. The question becomes of consequence in deciding at whose risk the goods were at the time of their loss — when the lien of the vendor for the purchase money ceases — and what is a sufficient delivery to take the case out of the statute of frauds [i. e. of preventing the neces- riity of having the sale in writing"). SALE OF GOODS. 743 The most Simple mode of transfer is by the actual deliv- ery of the goods sold, by the vendor to the vendee ; but it is often a matter of some difficulty to ascertain what par- ticular facts amount to a delivery. If part of the Goods have been prepared and are then lost, the buyer must bear the loss. Thus, where a certain number of casks partly filled with turpentine were sold and by the terms of sale the casks were to be filled up, and in pursuance thereof part of them were filled when the whole were lost, it was held that as to the casks that were full the purchaser must bear the loss, and as to the others no prop- erty had passed and they were at the risk of the seller. Credit Sale. — ^If goods are sold upon credit and nothing is agreed upon, as to the time of delivering the goods, the vendee is immediately entitled to the possession ; this right of the purchaser may however be defeated by his becoming insolvent. Stoppage in Transitu. — The question of the delivery of the goods to the purchaser or when they are deemed to be in his possession, becomes very important in cases of insol- vency; for though goods are sold upon credit and have actually been sent to the purchaser, yet if the latter be- comes insolvent the seller may stop the goods and hold them as security for the purchase money at any time be- fore they are delivered to the buyer or come into his pos- session. This is called stoppage in transitu. Delivery. — The delivery of a cent or glove is sufficient earnest within the statute. See Conteacts. Sale by Sample. — A sample, if it diminishes the bulk of the commodity to be finally delivered, is a sufficient deliv- ery ; but if it be considered only as a specimen, forming no portion of the commodity, the delivery and acceptance will not be sufficient ; the delivery of a hill of parcels or of the , receipt, ticket, sale-note, certificate or stamp, will be suffi- cient constructive delivery. And also as respects bulky articles, the delivery of the key of the warehouse in which goods are deposited, the marking the purchaser's name on 744 LAW ENCYCLOPEDIA. the goods, the payment of warehouse rent, the assignment of a ship or bill of lading of goods at sea, the sale of lum- ber lying on a wharf or of logs lying within a boom, etc. Delivery of goods to an agent of the purchaser, such as a carrier, if with the knowledge and assent of the purchaser, is sufficient. See Sample. Goods to be Manufactured. — When an article is not in existence but is to be manufactured or made, no property passes to the purchaser until it is finished and ready to be delivered to him, though made by his special order or even if the price should already have been advanced. Until the thing is accepted by the purchaser he acquires no property in or right to claim it, and the maker may, if he choose, dispose of it to another person. But if made under the su- perintendence of a person appointed by the purchaser or if he find the materials, he would have a claim for the amount paid for the materials furnished or the cost incurred for superintendence. After Sale. — When a sale has been made,- it is the duty of the purchaser to take the goods, and when the seller has done all he has to do, the goods will remain in his posses- sion at the risk of the buyer. It is the Duty of the sellei? to deliver the property. If he does not, the purchaser may replevy them and thus gain possession. In doing so, he must prove that he has per- formed all the conditions on his part and especially that he has paid or tendered the price, unless the sale be on credit. In the latter case, the vendor has no lien and cannot refuse to deliver. Exchange of Goods. — With respect to exchanges of goods there is no difference between sales and exchanges, but a delivery on one or both sides is essential to establish the contract. See especially Conteacts, under the head "Stat- utory Provisions," as to contracts for and sale of goods; also, Waeeauty and Stoppage in Transitu. SAMPLE. Sample. — ^A small quantity of any commodity or mer- SAMPLE— SKAKCH WABBANTS. 745 cliandise, exhibited as a specimen of a larger quantity call- ed the bulk. "When a sale is made by sample, and it after- wards turns out that the bulk does not correspond with it, the purchaser is not in general bound to take the property on a compensation being made to him for the difference. SEARCH WARRANTS. Search Warrant. — A search -warrant is an order. in writ- ing in the name of the people, signed by a magistrate, directed to a peace officer commanding him to search for personal property and bring it before the magistrate. When to Issue. — It may be issued whenever property has been stolen or embezzled, in which case it may be taken on a warrant from any house • or other place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled or of any other person in whose possession it may be. Probable Cause. — No search warrant shall be issued but upon probable cause, supported by the affidavit naming or describing the person, and particularly describing the prop- erty and place to be searched Complsiinant to be Examined. — The magistrate must, before issuing the warrant, examine on oath the complain- ant and any witnesses he may produce, and take their depositions in writing and cause them to be subscribed by the parties making them. Facts sho-wing Probable Cause. — The depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist. Issuance of Warrant. — If the magistrate be satisfied of the existence of the grounds of the application or that there is probable grounds to believe their existence, he shall issue a search warrant, signed by him, with his name of office, to a peace officer i'n his county, commanding him forthwith to search the person or place named for the property specified and bring it before the magistrate. See Magisxeate. 746 LAW ENOYOLOPEDIA. SELF-DEFENSE. Self-defense. — A man may defend himself and even com- mit a homicide for the prevention of any forcible and atrocious crime which, if completed, would amount to a felony. A Man may Defend Himself when no felony has been threatened or attempted : 1st. When the assailant attempts to beat another and there is no mutual combat ; as, when one meets another and attempts to commit or does commit an assault and battery on him, the person attacked may defend himself ; and in case of an offer or attempt to strike another when sufficiently near so there is danger, the person assailed may strike first, and is not required to wait until he is struck. 2d. When there is a mutual combat upon a sudden quar- rel. In these cases both parties are the aggressors, and if in the fight one is killed it will be manslaughter at least, unless the survivor can prove two things, viz : that before the mortal blow was given he had refused any further com- bat and had retreated as far as he could with safety, and that he killed his adversary from necessity to avoid' his own destructioui. A Man may defend himself against animals,- and he may during the attack kill them, but not afterwards. See Cbimes and Punishments and Assauit and Battebt. SEPARATION. Separation, by Agreement. — ^A cessation of cohabitation of husband and wife by mutual agreement is called, in law, "separation," and a written contract to separate is called a "deed of separation." By Trustee for Wife. — Contracts of this kind are gen- erally made by the husband for himself and b'y the wife with trustees. This contract does not interfere with the BEPABATION — SHEBIFP. 747 marriage, and the parties may at any time after agree to live together as husband and wife. Reconciliation. — Reconciliation after the separation su- persedes special articles of separation in courts of law and equity. Whenever such articles have been signed and the separation had, it can be avojded at any time by the par- ties afterwards living together as husband and wife. See Husband and "Wife . SET-OFF. Set-off — A demand which the defendant makes against the plaintiff in the suit for the purpose of liquidating the whole or part of his claim ; as, in an action to recover a stated sum, the defendant may show that the plaintiff is indebted to him any sum less or greater than the plaintiff's demand. Assignment not to Prejudice. — ^In California, Nevada and Idaho, the following is the rule of set-off in certain, cases : "In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment, but this shall not apply to a negotiable promissory note or bill of exchange transferred in good faith and upon good consideration before due." SHERIFF. Sheriff, Election of. — ^In every county a sheriff is elected at the general election every two years. In some counties he is ex officio tax collector, and in others he is not, and their bonds range all the way from ten thousand dollars to one hundred thousand dollars. A sheriff may require a bond of his deputies to secure himself against their unlaw- ful acts. Duties of Sheriff. — ^The sheriff is a conservator of the peace in his county. It is his duty within his county : 1st. To arrest and take before the nearest magistrate for 748 LAW ENCYCLOPEDU. examination all persons who commit or attempt a public offense, in his presence, or who have committed a public offense. 2cl. To prevent and suppress all affrays, breaches of the peace, riots and insurrections, which may come to his knowledge. 3d. To execute the process, writs, warrants and order of the courts of justice or of judicial officers, when delivered to him for that purpose. 4th. To attend in person or by deputy all courts, except justices', probate and recorders' courts, at their respective terms, held within his county, and to obey their lawful orders and directions. 5th. To serve at the request of a party to an action or proceeding notices and papers therein. 6th. In the execution of these duties, to command the aid of as many male inhabitants of his county as he may think proper or necessary. Keeper of Jail. — He is the keeper of the county jail and is responsible for the management thereof and the safe- keeping of the prisoners. ' To Attend Court.— The sheriff or his deputy is required to attend the sessions of court, to act as the crier thereof, to call the parties and witnesses and all other persons bound to appear at the court, and make proclamation of the opening and adjournment of the court and of any other matter under its direction, also to serve the processes and execute the orders of the court as lawfully directed. Justification. — ^A sheriff or other ministerial officer shall be justified in the execution of all process and orders reg- ular on their face and issued by competent authority, what- ever may be the defect in the proceedings upon which they were issued. Directions to Sheriff. — No direction or authority by a party or his attorney to a sheriff or to an under or deputy sheriff, in respect to the execution of process or return thereof or to any act or omission relating thereto, shall be SHEBIFP, FOEMS OF. 74.9 available to discharge or excuse the sheriff from a lia- bility for neglect or misconduct, unless it be contained in a writing signed by the party to be. charged or affected thereby or his attorney. Vacancy in Office. — When the office of the sheriff is vacant, or when the sheriff is a party to the action or pro- ceeding, the coroner shall act in his place ; when the sheriff and coroner are both parties or the action is against either of these parties for disobedience of orders, the powers or orders in the action may be executed by a person desig- nated by a judge, denominated an elisor. Former SherifE — Notwithstanding the election and quali- fication of a new sheriff, the former sheriff is required to return all process and orders before and after judgment, which he has fully executed, and to complete the execution of all final process which he has begun to execute, and the collection of all taxes put into the hands of the sheriff for collection previous to the expiration of his term of office. Re-election. — If a sheriff is re-elected to office he must file a new bond ; and this is the rule in regard to all officers who are required by law to file an official bond. FOKMS. Form of Sheriff 's jRetum as to Garnishments. On the day of , 18 . . , I served on and delivered to a copy of the within execution with a notice in writing hereto annexed, signed by me, whereof the following is a true copy : To : Yon are iereby notified that by virtue of a writ of execution issued out of the court of the judicial district in and for the county of in favor of vs , to me directed and delivered, of which the foregoing is a true copy, I have levied upon, seized and attached, in execution, all debts by you owing to the said and the rights, credits and other personal property, in your possession or under your con- trol, belonging to the said defendant in execution [Signed] Sheriff of county. On the day of ..... 18. ., I made the same service in all respects on , etc., etc. And so I did levy on, seize and attach, in execution, all debts owing to the defendant, by , , etc., etc., and all the rights, credits and personal property, in your possession or under your con- 750 ' , LAW ENCYCLOPEDIA. trol, belonging to the said defendant the defendant in the -within execution. [Signed] [Date] * Sheriff of county. rij^'s Baii Bond. State of 1 g county of j Whereas, in a certain action in the court of the .... judicial dis- trict in and for the county of in which is plaintiflf and .... is defendant, an order was duly made and deliTcred to the sheriff of the county of requiring him forthwith to arrest the said defendant and hold him to bail in the sum of dollars, and the said sheriff having arrested the said defendant and taken him into custody by virtue of the said order; Now, therefore, we , residing at , in the county of , by occupation a , and , residing at in the said county, by occupation a are jointly and severally bound in the sum of dollars, the amount in the said order of arrest mentioned, that the said defendant shall at all times render himself amenable to the process of the said court during the pendency of the said action and to such as may be issued to enforce the judgment therein, or that we will pay to the said plaint iff the amount of any judgment which may be recovered in the said action. [Signed] Witness, Bated the .... day of , 18.. Bond of Indemnity to Sheriff. Know aU men by these presents, that we, , as principal, and and f . . , as sureties, are held and firmly bound unto sheriff of the county of ,in the sum of dollars, lawful money of the United States of America, to be paid to the said sheriff or his certain attorney, executors, administrators or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors and ad- ministrators, jointly and severally, firmly by these presents. Sealed with our seals and dated the day of ,, a.d. 18. . Whereas, under and by virtue of a writ of attachment issued out of the district court, in the action of , plaintiff, against , defend- ant, directed and delivered to said sheriff of the county of , the said sheriff was commanded to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thereof as may be suf&cient to satisfy the plaintiff's demand; and the said sheriff did thereupon attach the following goods and chattels [here insert statement]. And, whereas, upon the taking of the said goods and chattels by virtue of the said writ, the said claimed the said goods and chattels as his SHERIFF, FORMS OF. 751 own property, and theroiipon a jury was summoned by tJie said sheriff to try such claim, which said jury have by their finding decided in favor of said claim ; and, whereas, the said plaintiff, notwithstanding such finding, re- quires of said sheriff that he shall retain said property under such attach- ment and in his custody : Now, therefore, the condition of this obligation is such that if the said , and , their heirs, executors and administra- tors, shall well and truly indemnify and save harmless him, the said sheriff, his heirs, executors and administrators, of and from all damages, expenses, costs and charges, and against all loss and liabiUty which he, the said sher- iff, his heirs, executors and administrators, shall sustain or in any wise be put to for or "by reason of the retention by him, the said sheriff, in his cus- tody under said attachment of the property claimed as aforesaid, then the above obligation to be void, otherwise to remain in full force and virtue. [Signed] [l.s.] [L.S.] : [I-S-] Sealed and delivered in the presence of Cviificaie of Sale of Real Estate on Execution. In the district court of the judicial district in and for the county of of the state of against > I, sheriff of the county ot , do hereby certify that by vir- tue of an execution in the above cause tested the day of a.d. 18 . . , by which I was commanded to make the amount of .... dollars to satisfy the judgment in this action with coats and interest thereon out of the per- sonal property of the above defendant, and, if sufficient personal property coidd not be found, then out of the real property belonging to the said de- fendant, on the day of ..... 18. ., or at any time thereafter, as by the said writ, reference being thereto had, more fully appears, I have levied on and this day sold at public auction, according to the statute in such case made and provided, to , who was the highest bidder, for the suru of dollars, which was the whole price paid by him for the same, the real estate described as follows, to wit [description]: That the price of each distinct lot and parcel was as follows : parcel num- ber doUars, parcel number .... .... dollars; and that the said real estate is subject to redemption, pursuant to the statute in such case made and provided. Given under my hand, this .... day of . . . ., a.d. 18. . [Signed] ~ , Sheriff. Certificate of Sale under an Order of Sale. l^ , sheriff of the county of , in the state of , do hereby ce tify that under and by virtue of an order of state issued out of the 752 LAW ENCYCLOPEDIA. district court of the judicial district in and for the county of of the said state, in the action of against , duly attested the .... day of , A.B. 18. ., and to me, as such sheriff, duly directed and deliTered, whereby I was commanded to sell the property hereinafter de- scribed, according to law, and to apply the proceeds of such sale towards the satisfaction of the judgment in said action, amounting to the sum of dollars with interest and costs of suit, I duly levied on, and on the .... day of , A.D. 18 . . , at .... o'clock, at the court-house doors iu the county of I duly sold at public auction, according to law and after due legal notice, to , who made the highest bid therefor at such sale, for the sum of dollars, which was the whole price paid, the real estate in said order of sale described as follows, to wit [descrip- tion]. And I do hereby further certify that the said property was sold in one parcel, that the said sum of dollars was the highest bid made and the whole price paid therefor, and that the same is subject to redemption, pursuant to the statute in such case made and provided. Given under my hand this day of a.d. 18 . . i Sheriff, etc. Sheriff's Deed on Sale under Execution, This indenture, made this ... day of a.d. 18 . . , between , sheriff of the county of , of the first part, and , of the county of , and state of , of the second part : Whereas, by virtue of a writ of execution issued out of and under the seal of the . . . court of the .... judicial district, of the state of , in and for the said county, tested the .... day of a.d. 18 . . , upon a judgment recovered in said court oil the day of , a.d. 18 . . , in favor of and against , to the said sheriff directed and delivered, commanding him that of the per- sonal property of the said judgment debtor in his bailiwick, he should cause to be made certain moneys in the said writ specified, and if sufQcient per- sonal property of the said judgment debtor could not be found, that then he should cause the amount of said judgment to be made out of the lands, tenements and real property, belonging to him, on the .... day of . . . ., a.d. 18 . . , or at any time afterward : and whereas, because sufficient personal property of the said judgment debtor could not be found, whereof he, the said sheriff, could cause to be made the moneys specified in said writ, he the said sheriff did, in obedience to said command, levy on, take and seize, all the estate, right, title and interest, which the said judgment debtor so had of, in and to, the lands, tenements, real estate and premises, hereinafter par- ticularly set forth and described, with the appurtenances, and did, on the day of , A.D. 18 . . , sell the said premises at public vendue, in front of the , in said comity, between the hours of in the morning and .... in the afternoon of that day, namely, at twelve o'clock at noon, after having first given notice of the time and place of such sale, by adver- tising the same according to law ; at which sale the said premises were struck off and sold to , for the sum of dollars, he, the said . . . , being the highest bidder, and that being the highest sum bidden, and t}>e SHERIFF, FORMS OF. 753 ■wliole pries paid for the same ; and whereas, the said sheriff, after receiving from said purchaser the said sum of money so bidden as aforesaid, gave to him such certilicate as is by law directed to be given, and filed in the office of the recorder of the county of a duplicate of such certificate ; and wherens, .... months after such sale have expired, without any redemp- tion of the said premises having been made : Now this indenture witnesseth, that , the sherjff aforesaid, and party hereto of the first part, by virtue of the said writ, and in pursuance of the statute in such case made and provided, for and in consideration of the sum of money above-mentioned, to him in hand paid as aforesaid by the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, conveyed and confirmed, and by these pres- ents doth grant, bargain, sell, convey and confirm, unto the said his heirs and assigns, all the estate, right, title and interest, of the said which he had on the said day of a.d. 18. ., or at any time afterward or now has of, in and to, all the following described premises, viz : [description], together with all and singular the hereditaments and ap- purtenances thereunto belonging or in anywise appertaining, to have and to hold the above-mentioned and described premises with the appurtenances, unto the said , his heirs and assigns forever, as fuUy and abso- lutely as he, the sheriff aforesaid, can, may or ought to, by virtue of the said writ and of the statute in such case made and provided grant, bargain, sell, release, assign, convey and confirm, the same. In witness whereof, the said sheriff, the party of the first part, to these presents hath hereunto set his hand and seal, thft day and year first above written. , [L.S.] Sheriff, etc. Sealed and delivered, in the presence of State of I gg coimty of 1 On this day of , a.d. one thousand eight hundred and be- fore me, a notary public in and for said county, personally ap- peared , sheriff of the county of .... , to me personally known to be the individual described in and who executed the foregoing instrument, and acknowledged to mo that he, as sheriff aforesaid, executed the same freely and voluntarily and for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and affixed my official seal, the day and year first above written. Notary public. Sheriff 's Deed of Property on Mortgage. This indenture, made this . . . . day of , a.d. 18. ., between , sheriff of the county of of the first part, and of the county of of the second part, witnesseth : Whereas, in and by a certain judgment or decree, made and entered by the ' 48 \ 754 ' LAW ENCYCLOPEDIA. distriot court of the judicial district of the state of , in and for the county of , on the day of a.d. 18. ., in a certain action then pending in said court, wherein was plaintiff, and and , , , etc., were defendants, it was among other things ordered, adjudged and decreed, that all and singular the mortgaged premises described in the complaint in said action, and specifically described in said judgment or decree, be sold at public auction by the sheriff of the county of , in the manner required by law and according to the course and practice of said court, that such sale be made in front of the in the county of , between the hours of o'clock in the forenoon and o'clock in the afternoon on such day as the said sheriff shall appoint, that any of the parties to said action might become the purchaser at such sale, and that said sheriff execute the usual certificates and deeds to the purchaser or purchasers, as required by law. And whereas, the said sheriff did, at the hour of o'clock at noon, on the day of a.d. 18 . . , after due public notice had been given, as required by the laws of this state and the course and practice of said court, duly sell at public auction in the city of , agreeably to the said judgment or decree and the provisions of law, the premises in the said de- cree or judgment mentioned, at which sale the premises in said judg- ment and decree, and hereinafter described, were fairly struck off to the party hereto of the second part, for the sum of dollars, he being the highest bidder, and that being the highest sum bidden for the same ; and whereas, the said party of the second part thereupon paid to thb said sheriff the said sum of money so bidden by him ; and whereas, the said sheriff thereupon made and issued the usual certificate in duplicate of the said sale in due form, of law, and delivered one thereof to the said pur- chaser, and caused the other to be filed in the county recorder's office of county ; and whereas, more than six months have elapsed since the date of said sale, and no redemption has been made of the premises so sold as aforesaid, by or on behalf of the said judgment debtor^ the said , or by or on behalf of any other person : Now this indenture witnesseth, that the said party of the first part, the said sheriff, in order to carry into effect the sale so made by him as afore- said, in pursuance of said judgment or decree, and in conformity to the statute in such case made and provided, and also, in consideration of the premises and of the said sum of dollars so bidden and paid to him by the said purchaser, the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold and conveyed, and by these presents doth grant, bargain, sell and convey, unto the said party of the second part and to his heirs and assigns forever, all that certain lot of land in said county of [here insert description], together with all and singular the tenements, hereditaments and appurtenances, thereunto be- longing or in anywise appertaining, and the reversion and reversions, re- mainder and remainders, rents, issues and profits, thereof, and also all the estate, right, title and interest, property, possession, claim and demand, whatsoever, as well in law as in equity, of the said party of the first part, and of the said defendant, of, in and to, the above-described premises, and every part and parcel thereof. SHERIFF, FORMS OF. 755 To have and to hold, all and singular, the premises above-mentioned and described, and hereby conveyed or intended so to be, together with the ap- purtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof, forever. In witness whereof, the said party of the first part to these presents, hath hereunto set his hand and seal, the day and year first above written. [L.S.] Gealed and delivered, in the presence of Sheriff's Seed, for Land sold on Execution to satisfy Balance due after Mort- gage Sale. This indenture, made this day of , a.d. one thousand eight hun- dred and between sheriff of the county of and state of . . . . , acting in his official capacity as such, party of the first part, and of the county of and state aforesaid, party of the second part, wit- nesseth : Whereas, by a certain writ of execution issued out of the district court of the judicial district, in and for county in said state, directed and delivered to the said party of the first part, sheriff as aforesaid, tested the day of x.D. one thousand eight hundred and he, the said sheriff, was commanded to satisfy the deficiency or balance due on a certain judgment rendered and docketed in the above-named court, in the action of said vs which said deficiency was the sum of dol- lars, together with interest, costs and accruing costs, out of the personal property of the said or, if sufficient could not be found, then out of the real property belonging to him, on the day when the said judgment was docketed in the aforesaid county of or at any time thereafter ; and whereas, the said , sheriff as aforesaid and party of the first part hereto, after receiving said writ and before the return day thereof, did, by virtue of the same, levy and seize and take the lands hereinafter described for want of sufficient personal property to satisfy the said deficiency or bal- ance due on said judgment, and did, in pursuance of and in all respects con- formably with the above-recited execution and of the statute in such case made and provided, on the day of , a.d. one thousand eight hun- dred and in front of the court-house door in in said county of sell at public auction, all and singular the premises hereinafter de- scribed, in separate and distinct tracts or parcels, as the same are hereinafter described, having first given due pubUc notice of the time and place of sale, in the manner prescribed by law, at which sale all and singular the premises hereinafter described and mentioned as aforesaid were struck off to the s.iid , party of the second part hereto, for the aggregate amount of dollars, namely : the tract of land firstly hereinafter described, for the sum of dollars ($ ) ; the tract of land secondly hereinafter described, for the sum of dollars ($....) and the tract of land thirdly hereinafter described, for the sum of dollars ($ ), the said the party of the second part hereto being the highest and best bidder for each of said tracts of land, and those several sums being the highest sums bidden and the 756 LAW ENOYCLOPEDU. ■whole price paid therefor, making in the aggregate the said sum of dol- lars. And whereas, after receiving from the said purchaser the said sum of money by him so bidden as aforesaid, the said sheriff as aforesaid, gave to him, the said , purchaser as aforesaid, u, certificate of sale in the form required by law ; and a duplicate thereof was duly filed in the office of the county recorder of the said county of , the said premises sold being subject to redemption, and the time for the redemption thereof prescribed by law having now expired and the same not being redeemed : Now, therefore, this indenture witnesseth, that the said , sheriff of the said county of ... . and party of the first part to these presents, in order to carry into effect the said sale, made in pursuance of the execution afore- said and by virtue of the statute in such case made and provided, in consid- eration of the premises and of the sum of dollars so bidden and paid at the time of the sale, by the said party of the second part to the said sheriff as aforesaid, the receipt whereof he doth hereby acknowledge, hath granted, bargained, sold, aliened, released, conveyed and confirmed, and by these presents doth grant, bargain, sell, alien, release, convey and confirm, unto the said party of the second part, his heirs and assigns, for- ever, the real estate described as follows, to wit : [here insert description], and also aU tho estate, right, title, interest, trust, property, claim and de- mand, which the said had in the said several tracts or parcels of land or any part thereof, on tho day of a.d. 18 . . , being the day when the said judgment was docketed in the aforesaid county of ... . or upon the day when the aforesaid levy was made, under and by virtue of the herein-be- fore-mentioned execution or had at any time since or now hath ; to have and to. hold the said above-granted and described tracts of land and premises and every part and parcel thereof, with the rights, privileges, hereditaments and appurtenances, thereto belonging or in, anywise appertaining, unto the said party of the second part, his heirs and assigns forever, as fully and absolutely as the said party of the first part, in his official capacity of sheriff as aforesaid and under the authority aforesaid, may, can or ought, to grant, sell or convey,/ the same. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first herein-before written, [Signed] [i.s.] Sheriff, etc. Sealed and delivered in presence of SIGNATURE. Signature.— By signatlire, is understood the act of put- ting down a man's name at the end of an instrument, to attest its validity. It is not Necessary that a party should ■write his name SIGNATUBE — SOLE TRADER. 757 Iiimself to constitute a signature; his mark is now held suf- ficient, though he was able to write. The Signature is usually made at the bottom of the in- strument; but in wills, it has been held that when a testa- tor commenced his will with these words: "I, A B, make this my will," it was a sufficient signing. SOLE TRADER. CALIFORNIA. Who may become Sole Traders. — A married woman may become a sole trader by the judgment of the county court of the county in which she has resided for six mouths next preceding the application. Notice, ho"w given. — A person intending to make appli- cation to become a sole trader must publish notice of such intention in a newspaper published in the county, or if none, then in a newspaper published in an adjoining county, for four successive weeks. The notice must specify the term, and the day upon which application will be made, the nature and place of the business proposed to be conducted by her, and the name of her husband. Contents of Petition. — Ten days prior to the day named in the notice, the applicant must file a verified petition, set- ting forth : 1. That the application is made in good faith, to enable the applicant to support herself, or herself and others de- pendent upon her, giving their names and relation; 2. The fact of insufficient support from her husband, and the causes thereof, if known; 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. Husband's Property Used, Extent of. — The applicant 7o8 LAW ENCYCLOPEDIA. may invest in the business proposed to be conducted, a sum derived from the community property or of the separate property of the husband, not exceeding five hundred dollars. Who may Oppose. — Any creditor of the husband may oppose the application, by filing in the court (prior to the day named in the notice) a written opposition verified, con- taining 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. 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 tlie proofs of the applicant and find the facts in accordance therewith. What Judgment Entered. — If the facts found sustain the petition, the court must render judgment authorizing the applicant to carry on in her own name and on her own ac- count, the business specified in the notice and petition. Affidavit to be made. — The sole trader must make and file with the clerk of the court an affidavit, in the following form: I, do in the presence of Almighty God, solemnly swear that this application was made in good faith for the purpose of enabling me to support myself, (and any dependent, such as husband, parent, sister, child or the like, naming them, if any) and not with any view to defraud, delay or hinder any creiUtor or creditors of my husband; aud that of the moneys so to be used by me iu business, not more than iive hundred dollars has come either directly or indirectly from my husband. So help me God. A certified copy of the decree, with this oath endorsed SOLE TRADER — STOPPAGE IN TRANSITU. 759 thereon must be recorded in the office of the recorder of the county where the busiuess is to be carried on, in a book to be kept for such purpose. Record of Judgment, etc.— 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 prop- erty, revenues, moneys and credits so by her invested, and the profits thereof, belong exclusively 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 pro- vided for debtors and creditors, and may sue and be sued alone, without being joined with her husband. Support of Children. — A married woman who is adjudged a sole trader is responsible and liable for the maintenance of her minor children. Liabilities of Husband. — The husband of a sole trader is not liable for any debts contracted by her in the course of her sole trader's business, unless contracted upon hia written consent. STOPPAGE m TRANSITU. Stoppage in Transitu. — The phrase "stoppage in tran- situ " means this : A vendor of goods who has forwarded the same to the purchaser of them, and after they are sent on their way learns that the purchases is insolvent, may stop the delivery of them and hold them as security for the purchase money of the identical goods. This may be done at any time before they are delivered to the purchaser by the carrier of them. If they are either actually or con- structively delivered, the right to stop them has ceased. What Constitutes a Delivery.— If goods are placed on the dock or wharf or in the warehouse or store or in a 760 LAW ENCYCLOPEDIA. neighbor's wareliouse, witli a delivery of tlie key to tlio purchaser, or if they be delivered to a general agent of the purchaser, the delivery is as complete as if they were delivered into the hands of the purchaser. In what Cases they may ba Eeclaimed and in -what Ma::ner. — Goods can be stopped in traiisitu only in cases of insolvency, and only by actually retaking the goods into possession. Goods are usually retaken by giving* notice to the canier or other person in whose possession they be not to deliver them but to hold them for the vendor. How Stoppage may be Avoided. — When goods are so stopped the vendee may retake the goods by payment of the price. If, after the goods are forwarded but before delivery and before they are stopped, the purchaser for a valuable consideration, in good faith, resells the goods " to arrive " by indorsement and delivery of the bill of lad- ing, the purchaser, if he is innocent of fraud, holds the goods clear of all claims of the vendor. What the Vendor should Do, — When the vendor has re- taken possession of the goods he should sell them after reasonable notice to the vendee, and out of the proceeds pay his debt and account to the vendee for the residue if any remains. FOKM. Notice of Stoppage in Transitu to he given hy the Seller of Goods to the Carrier, Middleman, Wharfman or other Person, in whose Possession they may be before Delivery, To , at You will please take notice, that the following described goods [descrip- tion of goods as per bill], now in your possession, wMoh were sMpped by the undersigned on the day of 18 . . , through you to [or, "the firm of & Co."] at the city of , are unpaid for and their price is now due us, and you are hereby notified not to deliver the same to the said as he has become insolvent ; but you are hereby di- rected to return said goods to us [or, " to store them at in our name"] without delay. Hereof fail not. [Signed] [Date] StrPEBTISORS, 7G1 SUPERVISORS. CALEFOENIA AND NEVADA.* Supervisors, Board of.— The statute provides that there shall be in each of the counties of the state a board of supervisors. In some of the counties tho*number of super- visors is three and in others five or more. There are so many special and purely local laws on this subject that it is impracticable to state even their leading provisions in this work. The law, as herein set down, is general and in addition to local laws. Power and Jurisdiction. — The said boards shall have power and jurisdiction in their respective counties : 1st. To make orders respecting the property of the county in conformity with any law of this state and to take care of and preserve such property. 2d. To examine, settle and allow, all accounts legally chargeable against the county and to levy for the purposes prescribed by law such taxes as may be authorized by law. 3d. To examine and audit the accounts of all officers hav- ing the care, management, collection or disbursement, of any money belonging to the county or appropriated by law or otherwise for its use and benefit. 4th. To lay out, control and manage, public roads, turn- pikes, ferries and bridges, within the county in all cases where the law does not prohibit such jurisdiction, and to make such orders as may be necessary and requisite to carry its control and management into effect. 5th. To take care of and provide for the indigent sick of the county. 6th. To divide the county into townships and to change the division of the same, and to create new townships, as the convenience of the county may require. 7th. To establish and change election precincts and to appoint inspectors and judges of elections * In Nevada and Idaho, " county commissionera " are the same as Cali- fornia BupervlP.ors. 762 LAW ENCYCLOPEDIA. 8tli. To control and manage the property, real and per- sonal, belonging to the county and to receive by donation any property for the use and benefit of the county. 9th. To lease or purchase any real or personal property necessary for the use of the county : provided, no purchase of real property shall be made unless the value of the same be precisely estimated by three disinterested persons, to be appointed by the county judge. 10th. To sell at public auction, at the court-house of the county, after at least thirty days' previous notice, and cause to be conveyed, any property belonging to the county, appropriating the proceeds of such sale to the use of the same. 11th. To cause to be erected and furnished a court-house, jail and such other public buildings, as may be necessar5% and to keep the same in repair. 12th. To control the prosecution and defense of all suits to which the county is a party. 13th. To do and perform all such other acts and things as may be strictly necessary to the full discharge of the powers and jurisdiction conferred on the board. Board of Canvassers. — The board acts as canvassers, and declares the result of elections held in their county, and causes certificates of election to issue to all officers elected, except county clerk. May require Nevr Bonds of Officers. — They may require new bonds of any county or township officer with additional sureties whenever they deem the same necessary, and may require of all officers intrusted with public funds a quar- terly report, and may examine their books, and shall prose- cute them for delinquencies. Taxes and CquEilization. — They shall levy all taxes au- thorized by law, and at the proper time equalize them as required by law. Vacancy in Office of Supervisor. — Whenever a vacancy occurs in the board of supervisors of any county, from fail- ure to elect or otherwise, the county clerk of the county SUPERTIS0E3. 763 shall call a special election to be held after ten days' public notice to fill such vacancy. [Same in Nevada, except the governor appoints a commissioner to hold until the next general election.] Vaeancies in County and Township Oflaces. — Whenever a vacancy shall occur in, or the qualified electors of the county shall fail to elect to, any county or township office, other than county judge or supervisor, the board of super- visors shall, at any meeting of the board, appoint some suitable person an elector of the county or township to fill the vacancy until the election and qualification of a suc- cessor. No appointment shall be made except upon peti- tion, signed by not less than thirty qualified electors of the county if for a county office, or by not less than fifteen of the qualified electors of the township if for a township office. [Same in Nevada, except no petition is required.] Supervisors not to be Interested in Contracts. — No supervisor shall be interested in any property purchased for the use of the county, or the purchase or sale of any property belonging to the county, nor in the erection of public buildings, or the opening of roads or the building of bridges. A violation of these provisions is a misde- meanor. Suits against County. — No person shall sue a county in any case or for any demand, unless he shall first present his claim or demand to the board of supervisors for allowanee. If the demand is rejected the county may be sued, and if in such action the plaintiff fail to recover more than the board offered to allow he shall not recover costs. Claims for Services. — ^All claims for services and items of account of a similar nature presented by any one person to the board shall be included in one account. Any citizen, tax-payer may appear before the board and oppose any claim. IDAHO. IMumber, etc. — The board of commissioners consists of three members, who hold office for three years. They must 764 LAW ENCYCLOPEDU. hold tlieir sessions as required by law, but no session sha}! be continued for a longer period than six days. They receive sis dollars a day for each day's services. Povj-er.:!. — They have power and it is their duty : 1st. To provide for the erection and repairing of court- houses, jails and other necessary public buildings, for the use of the county. 2d. To lay out, discontinue or to alter, county roads and highways within their respective counties and to do all other acts relating thereto. 3d. To license and fix the rates of ferriage and tolls authorized by law. 4Ah. To fix the amount of taxes to be assessed according to the provisions of law and to cause the same to be col- lected. 5th. To allow all amounts chargeable against such county not otherwise provided for, and to audit the accounts of all officers having the care, management, collection and dis- bursement, of any money belonging to the county or appro- priated to its benefit. 6th. To have the care of the county property and the management of its funds and business, except in cases otherwise provided for, and shall have no other powers except such as are or may be given by law. Sale ox Real Estate. — Eeal estate belonging to the coun- , ty shall be sold by an agent duly appointed by the order directing the sale. Du\:ie3. — They shall provide offices and books for the various officers, examine the accounts and vouchers of the treasurer and auditor, count the county funds and make statement of receipts and expenditures and post the same . at the court-house door and two other places and publish the same. They shall appoint election precincts and new ones on petition of twenty voters resident more than ten miles from any place of election. Review. — Any person may appeal from any decision of the commissioners to the next term of the district court of SUPERVISORS — SURETIES. 765 the same county. Siicli appeal shall be taken within twenty days after such decision, and the party appealing sJaall notify the commissioners that, tho appeal is taken at least ten days before tho next term of the court appealed to, which notice shall be in writing and shall be delivered per- sonally to the commissioners or left with the clerk of tho board ; and tho party appealing shall give bond to the county with one or more sureties conditioned to pay all the costs which shall be adjudged against him on such appeal in the said district court. OREGON. Eleeticn and Duties. — In Oregon, two commissioners of the county court are elected in each county at a general election, whose term of office is two years. These commi'^- sioners and the county judge constitute a board of county commissioners to attend to the iinancial affairs of the county. They have the same general powers as in Cali- fornia. SUPPORT. Support. — ^The right of support is an easement which one man either by contract or prescription enjoys to rest tlie joints or timbers of his house upon the wall of an adjoin- ing building owned by another person. A right to tho support of one's land so as to prevent its falling into an excavation made by the owner of adjacent lands. In Anotlier Sense, the right to support is the right of a wife or child to maintenance out of the husband's an.l father's property. SURETIES. Sureties on OHicial Bonds. — The sureties on the bond of a state officer must be residents and freeholders or house- holders within this state, and on the bond of a county officer they must be residents and freeholders or house- holders within such county or within an adjoining countv. Arrest and Eail, Civil Practice. — In all cases where bail 766 LAW ENCYCLOPEDIA. is given on arrest for debt eacli of the. sureties shall be a resident and householder or freeholder within the county. In Actions of Replevin. — [The same as in arrest for debt.J On Attachment. — No qualification as regards residence is required, nor need the sureties be freeholders or house- holders. On Release of Attachment. — [The same as on arrest for debt.J On Bonds for Costs. — [The same as on arrest for debt.] In Criminal Cases. — Bach surety must be a resident and a householder or freeholder within the state ; but the court or magistrate may refuse to accept any person as bail who is not a resident of the county where bail is offered. See HousEHOLDEB — ^Fkeeholdeb and Resident. SURETYSHIP. Suretyship. — An undertaking to answer for the debt, de- fault or miscarriage, of another, by which the surety be- comes bound as the principal or original debtor is bound. It differs from a guaranty, in this, that suretyship is a pri- mary obligation to see that the debt is paid, while guaranty is a collateral understanding, essentially in the alternative, to pay the debt if the debtor does not pay it., In California, Nevada and Idaho, a contract to answer for the debt, default or miscarriage, of another is void, un- less the contract be in writing, signed by the party to be changed, and expressing the consideration. See Contbacts. TARE. Tare. — An allowance in the purchase and sale of mer- chandise for the weight of the box, bag or cask or other thing, in which the goods are packed. It is also an allow- ance made for any defect, waste or diminution, in the weight, quality or quantity, of goods. TENANTS IN COMMON — TENDER. 767 TENANTS IN COMMON. Tenants in Common. — Tenants in common are such as hold lands by several and distinct titles, and not by a joint title, but occupy in common — the only unity recognized between them being that of possession. They are ac- countable to each other for the profits of the estate, and if one of them turns another out of possession an action of ejection will lie against him. They may also sue each other in disputes regarding the tenancy. If they were partners they could not. TENDER. Tender. — ^An offer to deliver something made in pursu- ance of some contract or obligation, under such circum- stances as to require no further act from the party making it to complete the transfer. Tender of Money must be made by some person au- thorized by the debtor to the creditor or to some person authorized, and who must have capacity to receive it and in lawful coin or legal tender of the country. The exact amount due must be tendered, though more than the amount due may be tendered, as the greater always in- cludes the less. Wiien a Tender is Made, it is best to state the amount. It must be at the time and place agreed upon. If no place is agreed upon, tender may be made wherever the creditor may be found. The money must be produced and offered, unless the creditor declines beforehand to receive it. Tender of Specific Articles must be made to the person authorized to receive them, at a proper time. The place or delivery is to be determined by the contract or, in the absence of an agreement, by the situation of the parties and circumstances of the case. In all cases of tender, the articles must be set apart and distinguished so as to admit of identification by the creditor. It must be made during 768 LAW ENCYCLOPEDIA. daylight, and the articles must be at the place till the last -hour of the day unless tender is waiYed. See Legal Tender. TIDE-WATER. 'Tide-water.— The term "tide-water" is not limited to water which is salt, but embraces also so much of the water of fresh rivers as is propelled backwards by the in- gress and pressure of the tide. The Bed of tide-waters belongs to the state in which they lie and the waters themselves are public, so that all persons may vise the same for the purposes of navigation and fishery, unless restrained by law. TITLE. Title. — The means whereby the owner of lands has the possession of his' property. A Bad Title is one which conveys no property to the purchaser of an estate. A Doubtfal Title is one which the court does not con- sider to be so clear that it will enforce its acceptance by a purchaser nor so defective as to declare it a bad title, but only subject to so much doubt that a purchaser ought not to be compelled to accept it. A Gooi Title is that which entitles a man by right to a property or estate and to the lawful possession of the same. In General, possession constitutes the criterion of title of personal property, because no other means exist by which a knowledge of the fact to whom it belongs can be attained. TRESPASS. Trespass. — Trespass is defined to be any wrongful act of one man whereby another is injuriously treated or dam- nified. Any unlawful act committed with violence, actual or implied, to the person, property or rights, of another, TRESPASS. 769 or anjr unauthorized entry upon the realty of another to the damage thereof. Whai amount to Trespasses. — In determining the na- ture of the act, neither the amount of violence nor the intent with which it is offered, nor the extent of the dam- age accomplished or the purpose for which the act was committed, are of any importance. If a person enters upon the land of another, without leave, to drive off stock that escaped from him and who breaks even a blade of grass in so doing, commits a trespass. Of the Eamage done. — To constitute a trespass some damage must be done. But, strictly, as we have seen, every unauthorized act is a trespass and entitles the complainant to some damage if the least injury results, yet the law re- gards not trifles, and a court or jury would seldom find for a plaintiff if the trespass proved was a peaceful entry, made in good faith and with no intention to hold possession or interfere in any -way with the peaceful enjoyment of plaint- iff, and especially if the action appeared to be vexatious. Entry \7i.th. Force. — If the entry is with force, or peace- fully under a claim of right, the plaintiff prevailing is enti- tled to his actual damages proved. Such forcible entry is said to be done "with force and arms," or, as the law- writers say: "vi et armis." Injuiies to the Person. — Assault and battery, wound- ing, false imprisonment or any direct injury, to the person of another unlawfully done, is a trespass and actionable. Justi-loation of. — Damages cannot be recovered where the defendant shows a justification sufficient to excuse the act committed though he acted without authority from the owner or person affected. Accident will in some cases ex- cuse a trespass. Should an accident to a stage-coach upset the passengers into a garden it would be inequitable to make them pay damages for the trespass on the garden and at the same time suffer the personal injuries usually ac companying such accidents. See Assault and Battery. CutLing or Carrying away Trees. — The statutes of Cali- 49 770 LAW ENCYCLOPEDU. fornia, Nevada and Idaho, contain the following : Any per- son who shall cut down or carry off any wood or underwood, tree or timber, on the land of another person or on the street or highway in front of any person's house, village or city lot or cultivated grounds, on the commons or public grounds of any city or town or on the street or highway in front thereof, without lawful authority, shall be liable to the owners of such land or to such city or towns, for treble the amount of damages which may be assessed therefor, in a civil action in any court having jurisdiction. Measure of Damages. — Nothing contained in the fore- going shall authorize the recovery of more than the jus< value of the timber taken from uncultivated woodland, for the repair of a public highway or bridge, upon the land or adjoining it. USAGE. Usage. — Long and uniform practice. Usage of trade does not require to be immemorial to become established. If it be known, certain, uniform, reasonable and not con- trary to law, it is sufficient. But evidence that a thing has been done in few instances, does not establish a usage. VEXATIOUS SUIT. Vexatious Suit. — A suit that has been ihstituted mali- ciously and without probable cause whereby a da.mage has ensued to the defendan The Suit need not be altogether without foundation. If the part which is groundless has subjected the party to an inconvenience to which he would not have been exposed had the valid cause of complaint alone have been insisted on, it is injurious. It is necessary that the prosecution should have been carried on without probable cause. The Damage which a party sustains from a vexatious suit is to his person, reputation or estate ; and it is for a jury to determine what his damage has been ; and in de- termining this question, if the suit is clearly vexatious, they will award damages as a punishment as well as for compensation. VOTE— WAEEANTY. 771 VOTE. Vote. — ^The supposed voice of the people expressed at the ballot-box. Every citizen of the United States and of the state where he resides is entitled to vote at all elections. The right to vote carries with it the right to be voted for and to hold office. See Citizen. WAGERi Wager. — A bet ; a contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one or more of them on the happening or not happening of an uncertain event. A Wager is Legal, and may be enforced if it be not con- trary to public policy or immoral. Wagers on the event of an election or after it is clos.ed are, in most states, unlaw- ful. A wager may be withdrawn at any time before the result has been declared. In most states the losing party may recover the money even after it has been paid over to the winner, on the ground that the wager was against public policy; but in California, the courts hold that after the re- sult of the election has been determined the loser cannot recover back his bet. Either party may withdraw the wa- ger at any time before the event on which it depends occurs and may notify the stakeholder not to pay the stakes over. He must not take the chance of winning and then, if he loses, seek to recover the stakes from the winner. This would be a fraud which the courts wiU not allow. Courts do not encourage sneaks. WARRANTY. Warranty. — There are two kinds of warranty essential to be understood in connection with sales of personal prop- erty. These are the express and the implied warranty. Of the implied, that the most universally conceded is the war- ranty of title. A person in actual possession of personal property sells it to another and delivers over the possession 772 LAW ENCYCLOPEDIA^ to the vendee. He is held to deliver with it an implied warranty that his title to the article is perfect, and that hence, if another claims and dispossesses the vendee of the article or its value, as having the superior title, such ven- dee has his remedy against his vendor for its value upon this implied warranty. Sales at the Risk of Purchaser. — The maxim of the common law as to quality is caveat emptor; that is, the purchaser must beware, and must himself assume all the risk. He may throw the risk upon the vendor by requiring an express warranty, and without warranty the law gives the purchaser a remedy in case of fraud or deceit. But in the absence of both these the rule is, that the buyer who examines the article himself must abide by all losses aris- ing from latent defects unknown to both parties. Implied Warranty. — In cases where an article is to be delivered at a future day or to be manufactured and deliv- ered, there is an implied warranty that the article shall be at least of a medium quality of goodness. In such case, if it comes short of being merchantable, the vendee is at lib- erty to return it. This is a very reasonable rule, as the delivery in such case offers to the vendee the first opportu- nity of examining the article. Biit the right to return it ought to be exercised as soon as the defect is discovered, as the retaining it for any length of time would raise a pre- sumption of acquiescence in its quality. The practice of any deception by the vendor gives the vendee a choice -of two remedies: he may either affirm the contract and re- cover damages for the fraud perpetrated upon him or he may rescind the contract, return the thing purchased and recover back what he may have paid for it. Express Warranty. — An express warranty may consist of any positive affirmation made by the vendor at the time of the sale in relation to the goods sold and which is in- tended to have that effect. It is then essentially a contract, and we must look to its terms, to its own limitations and restrictions, to determine what are the rights of the parties. ■WARRANTY. 773 It is to liave applied to it a strict rule of construction — the vendor laying himself under obligations to make good his warranty to the letter -whether the quality he has warranted be material or not, and wherever there is an express war- ranty as to any single point the law wiU imply none beyond its express terms. Gensxal Warranty. — The object of a general warranty is to protect against defects that may not be apparent to the vendee. He seeks by it to save the necessity of any very strict scrutiny and to throw upon the vendor the risk of all defects which are not open to the common observer. .S2.I3 by Sample.— ;-In the case of a sale by sample there may be a warranty that the bulk corresponds to the sam- ple. The most that can here be claimed is that the whole quantity of goods sold answers to the sample, and if there proves to be any latent defect in that as well as in the bulk the vendor will not be responsible, as an opportunity is presented him of fully examining the sample. But it is not every sale where a sample is exhibited that will create a warranty. A mere sale by sample does not have that effect. The rule is, that where the goods in theii bulk are fully exposed to the purchaser's examination, he is boimd to make it and cannot claim damages without show- ing an express warranty. The mere exhibition of the sam- ple at the time of the sale can never raise an implied war- ranty as to the nature or quality of the bulk of the commod- ity, but other evidence is required to show that both parties mutually understood that they were dealing with the sam- ple, upon an agreement by the vendor that the bulk of the commodity corresponded with it. Sale Oi Horses. — The property in horses is not easily altered, by sale, without the express consent of the owner, for a purchaser gains no property in a horse that has been stolen. Warranty of Soundness. — A warranty of soundness in a horse may be defined, in its enlarged sense, a guarantee from constitutional defects; but, in its practical sense, is 774 LAW ENCYCLOPEDIA. construed to exclude every defect by which the atimal ia rendered less fit for present use and enjoyment. Temporary Iqjuries. — A defect arising from a tempo- rary injury capable of being speedily cured and not inter- fering with such enjoyment, the horse is not on that ac- count to be held unsound ; still less it the purchaser be informed of it, and admits the exception into the terms of the contract. WILLS. CALIFOKNIA, NEVADA AND IDAHO. Wills, General Definition of.— When a person possessed of property of any kind makes any disposition of it, by way of gift, to take effect at his death, such gift ia denominated in law a "will." All wills must be in writing, except in the following cases : Nuncupative Wills. — ^No nuncupative will shall be good when the estate bequeathed exceeds the value of five hun- dred dollars, nor unless the same be proved by two wit- nesses who were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid some one present to bear witness that such was his will or to that effect, nor unless such nuncu- pative will was made at the time of the last sickness [same in Nevada to here, except the sum of one thousand dollars may be so willed], and at the dwelling-house of the deceased or where he or she had been residing for the space of ten days or more, except ' where such, person was taken sick from home and died before his or her return. Nothing contained herein shall prevent any soldier being in actual service, nor mariner being on shipboard, from disposing of his wages and other personal estate by a nuncupative wilL Proof of. — ^No proof shall be received of any nuncupative will, unless it be offered within six months after speaking the testamentary words, nor vmless the words or the sub- stance thereof were reduced to writing, within thirty days ■WILLS. 775 after they were spoken. [In Nevada, proof of the words must be made witliin three months.] Probate of.— No probate of any nuncupative will shall be granted for fourteen days after the death of the testator, nor shall any nuncupative will be at any time proved, unless the testamentary words or the substance thereof be first committed to writing and process be issued to call in the widow or other person or persons interested, to contest the probate of such will, if they think proper. [Same in Neva- da, except the district judge must commit to writing, and process need not issue when the parties are out of state.] Form of Will. — No particular form is necessary to make a will. Anything that shows the intention is sufficient, viz : "I give to all the property of which I may die possessed, " if properly witnessed, would be sufficient. Rules to be Observed. — The principal rules to be ob- served in making a will, are, that the testator, as he is called, should express clearly and unmistakably how he wishes his property disposed of, and that he should execute it freely and without restraint, undue influence or fraudu- lent misrepresentations, when in sound mind, by signing it and declaring it to be his last will and testament, in the presence of at least two disinterested and competent per- sons, not mentioned or referred to in the will and who, at his request and in his presence and in the presence of each other, shall thereupon subscribe their names as witnesses. Executors, eto. — The testator should also mention in the will the person or persons he may wish to be his executor or executors. He should also, when he omits to provide for his children or the issue of a deceased child, or for children who may be born after making the will, or for any marriage he may enter into after making the will, show that such omission was intentional. And where he desires that his executor or executors should not be required to give security, he should so state in the will. Signing, etc. — ^If the testator cannot write or from sick- ness or other cause is unable to sign, his name may be ' 776 LAW ENCYCLOPEDU. signed to tlie will by some person in his presence and by liis express direction. Ccdieil. — If at any time after he has executed his will he desires to make any alterations in any part of it, or if he desires to make an addition to the will, which is called a "codicil," he must sign the same and have it witnessed in the same manner and with the same formality as is required in executing the original will. Revccation, etc.— No will, in writing, shall be revoked, unless by burning, tearing, canceling or obliterating, the same, with the intention of revoking it by the testator or by some person in his presence or by his direction, or by some other wiU or codicil in writing, executed as prescrib- ed by law, or by some other writing, signed, attested and subscribed, in the manner provided by law for the execu- tion of a will; but nothing contained in this paragraph shall prevent the revocation implied by law from subse- quent changes in the condition or circumstances of the tes- tator. Any Person over the age of eighteen years, of sound mind, may make, alter or revoke, a will. Married Woman. — Formerly, a married woman could not make a will without the consent of her husband ; but as the law now reads; a married woman may dispose of her property by will the same as all other persons and without her husband's acknowledgment. In Nevada, a married woman cannot make a will without the consent of her hus- band. A Single Woman. — ^A will executed by a single man or woman is deemed revoked upon marriage, and is not sub- sequently revived by the death of husband or wife. Real and Personal Estate. — No difiference is made under the California, Nevada and Idaho, statutes between wills of real estate and wills of personal estate. Probating of. — A will should be presented to the pro- bate court having jurisdiction, within thirty days after the death of the testator; and after it has been probated it should be recorded in the ofEce of the county recorder. WILLS, FORMS OF. 777 Death of Devisee.— When any esiate sliall be devised to any cliild or other relation of the testator, and the devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate so given by the will, in the same manner as the devisee would have done, if he would have survived the testator. Olosraphic Will.— The California civil code has provided for another kind of will named " olographic." No form is required but it must be entirdy in the hand writing of the testator. The provisions of the code are as follows: "An ologi-aphic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed." FORMS. Olographic WiU. San Francisco, June 2cl, 1875. I hereby give all the property of which I die possessed to my dear friend Pocahontas Smith Eolfe, of No. 221 Cap street, San Francisco. I appoint Alfred liix, executor of this my last will. Signed Powhatan. wm. In the name of God, amen. I, of the city of and county of state of . . ., in the United States of America, merchant, being of sound mind and memory, do make, publish and declare, this my last will and testament, that is to saj': Ist. I make, constitute and appoint, , of , and of , and [except as in the article hereinafter provided], the survivors and survivor of them, the executors of this my last will and testament, to act without giving any bond, undertaking or security, of any kind; with the right in either of the said , in case of his iuabilily to act by reason of absence from said city of or otherwise, to act by an approved agent or attorney in fact, appointed by him in writing under his hand [such agent or attorney, while si acting to have all the powers of him by whom hfe shall have been so appointed.] Until the arrival in said city of of , or of one of them, and of the agent or attorney in f;cct, of the other, the said shall have fall powers to act in the preservation and management of my estate. In case of the inability to act of the said , by reason of absence, sickness, death or otherwise, I make, constitute and appoint, as executor in his stead, of the said city of .... 2d. I desire and direct that my copartners in business, who are the said , and who with myself are now a copartnership, transacting business in and ... .under the firm-name of , shall iuiniediately after my death', or as soon thereafter as may be practicable, take the necessary 778 LAW ENCYCLOPEDIA. measures to ascertain the just amount and value of my share and interest in the said partnership, its stock, assets and property, of every kind, real and personal, including the case on hand, if any, and they shall prepare in ■writing a full account and statement thereof ; at which amount and value, or as near thereto as possible, they may dispose of the same either at public or private sale, and for cash or on credit, as they may think fit ; or they may themselves become the purchasers, in which case they shall be entitled to credit, in the payment, of three years,' commencing from and after the day of my death ; and until the expiration of said period of three years, they shall not be liable to account for or pay over the same or any part thereof, whether upon the order, judgment or decree, of any court or judge or other- wise, to my heirs, legatees or personal representatives or any of them. This article shall apply fully to my surviving partner, if at my death there shall be but one me surviving. 3d. I declare that all property, real and personal, including all houses, lands and household interests, standing in my name, in this state or else- where, does of right and in fact belong to the said partnership of , and is partnership property, and no part or portion thereof belongs to me as my separate property. 4th. I give and bequeath to during her natural life, the interest on the sum of dollars, which sum may remain in the hands of the said and of the survivor of them so long during the life of as they yearly or quarter-yearly or he shall pay, for the use thereof, at least the same interest as shall be paid upon moneys by the of , or any other equally solvent banking institution. But they or he failing to do so, my executors shall invest said sum of . . . dollars securely at interest, payable to , yearly or quarter-yearly, at her will. I give to , wife of , of the city of , in the sum of dollars. I give to , daughter of said dollars, payable to her said father and mother, and for which their receipt shall be a sufficient acquittance, in the hope and expectation on my part that they wOl invest the same at interest for her until she has attained her lawful majority. I give to dollars each. I give to , of , daughter of of , dollars. I give to as the cashier or trustee [or, whosoever said cashier or trustee may be], of the association known as the and organized in our family in the year , and in trust for the said association, and the uses and purposes thereof, dollars. All the rest, residue and remainder, I give to and the survivors and survivor of them. After the death of , give to them or to such of them as may survive her, the said principal sum of dollars, herein- before charged with the payment of the interest thereof, as an annuity to her during her life. In case of the.death of the above legatees or devisees or any of them, dur- ing my life, then the sum or sums of money above bequeathed to them or him or her, respectively, I give and bequeath to and to the surviv- ors and survivor of them, to be disposed of as they shall see fit. In case of •WILLS, FOEMS OF. 779 the death of dming my life, I give and bequeath in the same man- ner the said sum of ... . dollars above charged with an annufty to her. 5th. In the event of my estate not being sufacient to pay aU the above and specified sums of money in full, then each and aU of the same shall be pro- portionately reduced. 6th. I hereby revoke all former wills by me made. [Signed and witnessed as in foregoing forms.] ♦ wm. In the name of God, amen. This is the last will and testament of merchant, now residing in the of Being afSicted by sickness, in full possession of my mind and memory, and knowing the uncertainty of this life and desirous to dispose of my worldly affairs, I ordain this my last wiU, as follows : 1st. I give and bequeath aU my real and personal property, be the same in money, gold, silver, wares and merchandise, and especially my interest in the store of or anywhere else, to my beloved wife for her sole use and benefit forever. 2d. 'Whereas, I have made and accumulated all or nearly all my present property, by and with the assistance of my present vrife, before-mentioned, I herewith distinctly declare that I do not give or bequeath anything to the children of my former marriage, but bequeath all my property, both real and personal, to my wife , to the exclusion of every one else otherwise enti- tled to the same. 3d. I appoint my beloved wife the sole executrix of this my last will and testament. 4th. I hereby revoke aU wills heretofore made, and especially one made years ago, in ... . ' In witness whereof, I have hereunto set my hand and affixed my seal, this day of . . . . , A.D. 18 . . , at the of , [Signed] The above-written instrument was subscribed by the said , in our presence and acknowledged by him to each of us, and he at the same time published and declared the above instrument, so subscribed, to be his last will and testament, and we, at the testator's request, in his presence and in each other's presence, have signed our names as witnesses thereto, together with our places of residence. [Signed] street. , .... street. CodicU to a Will. Whereas, I, , of etc., have made my last will and testament in writing, bearing date, etc. [and have thereby etc., etc.] Now, I do by this my writing, which I hereby declare to be a codicil to my said will, to be taken as a part thereof [will and direct, etc., etc.], give and bequeath to my niece , one gold watch, one large diamond ring and one silver cof- 780 LAW ENCYCLOPEDIA. fee-pot. And whereas, in and by my last ■will and testament, I have given and bequeathed to my daughter-in-law, , the sum of dollars, I do hereby order and declare that my will is that only the sum of . . dollars be paid unto her, in full of the said legacy I have as aforesaid given and bequeathed unto her, and that the remaining part of the said legacy be given and paid to my nephew And lastly, it is my desire that this my present codicil be annexed to and made a part of my last ■will and testament, to all intents and purposes. In witness whereof, I have hereunto set my hand and seal, this day of A.D. 18.. > [l.s.] The above instrument of one sheet was, at the date thereof, declared to us by the testator to be a codicil to be annexed to his last will and testament ; and he acknowledged, to each of us, that he had subscribed the same and we, at his request and in the presence of each other, sign our names hereto as attesting ■witnesses, , residing at . . . . , in . . . . county. , residing at . „ ., in . . . . county. Will. In the name of God, amen. I residing in the city of state of , being of sound mind and memory, and considering the uncertainty of life, do therefore mate, ordain, publish and declare, this to be my last will and testament. That is to say : Ist. After all my lawful debts, whether to government or to individuals, ore paid and discharged, I give, bequeath and devise, to my mother, Mrs. , now living at state of the sum of .... dollars during her lifetime — what remains of the same at her death to go to her grand- children by my sister, Mrs who now lives at , state of 2d. I give, bequeath and de'vise, all my personal effects and property in equal portions to my said mother and my said sister , and I request that such of mj' personal effects as in the opinion of my executors may be worthy of preservation and easy of shipment may be sent to them via • 3d. I give, bequeath and devise, all my real estate which remains after satisfying the foregoing provisions, as follows : Two-thirds of the same to the children of the said , my sister — the male child to have one-third of the two-thirds so bequeathed — and the remaining one-third of my said real estate I give, bequeath and devise, to my nephew, , now living at in the state of at school. 4th. I mate and appoint my friends , and all now in the city of aforesaid, executors of this my last -will and testament, hereby revoking all former wills by me made. [The following clauses may be inserted in either of the foregoing wills:] Clause concerning Disputes about any Gift or Bequest in a WVX. And, lastly, my express will and meaning is, and I do hereby order and appoint, that if any difference, dispute, question or controversy, shall be ■WILLS, FORMS OF — WITNESSES. 781 moved, arise or happen, concerning any gift, beqnest, matter or thing, iu this my -ndU given and bequeathed, expressed or contained, that then no suit or suits, in law or equity or otherwise, shall be brought, commenced or prosecuted, for and concerning the same, but the same shall be referred wholly to the award, order and determination, of my friends and , both of, etc., and what they shall order, direct or determine, therein shall be binding and conclusive to all and every person and persons therein concerned. Proviso tlial Sums advanced hy Testator in, his Lifetime to Children shall be taken as Part of Portion. Provided always, and I do hereby declare, that iu case I shall in my life- time advance and pay to any of my children, either sons or daughters, any sum or sums of money for his or their benefit or advancement iu the world, or otherwise, and shall signify the same in writing under my hand, then if any such sum or sums shall be equal to the share or shares of such child or children, respectively, of and in the premises, etc., by me hereby de- vised or bequeathed for their respective benefits, such sum or sums so paid or advanced shall iu that case be accounted in full satisfaction of the share or shares of such child or children, respec tively, in the said estate and premises; but if such advanced sum or sums shall be less than the share or shares of such child or children, respectively, of and in said premises, etc., then such advanced sum or sums shall be accounted as part only of the share or shares of such child or children therein, and in that case such child or chOdren shall not receive or be entitled to any share or interest of or in such parts of the said premises, etc., which shall have been paid or advanced to him, her or them, for the purposes aforesaid, until the other or others of such child or children shall have received as much of the said premises, etc., as shall make his, her or their, share or shares thereof equal to what shall have been so paid or advanced to or for the benefit, advantage or prefer- ment, of such child or children, respectively, to the end and intent that the said premises may be equally divided among all such children, share and share ahte. Appointment of Guardianship. And I hereby commit the guardianship of all my children until they shall, respectively, attain the age of years unto my said wife during her life, if she shall so long continue my widow, and from and after her decease or second marriage unto my trusty and much-esteemed friend , his executors and assigns; and do hereby declare that the expenses of the main- tenance and education of my said children until they shaU attain the age aforesaid or become entitled to the sum or sums of money hereby provided for their benefits, respectively, shall be paid and borne by my said wife by and out of the moneys and estate given and bequeathed to her in and by this my will. WITNESSES. CALIFORNIA. Witness Defined. — A witness is a person whose declara- 782 LAW ENCYCLOPEDIA. tion under oath is received as evidence for any person, whether such declaration be made on oral examination or by deposition or affidavit. Who may be. — All persons, without exception, otherwise than is specified in the next two paragraphs, who, having organs of sense, can perceive, and, perceiving can make known their preceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious be- lief; although, in every case, the credibility of the witnesses may be drawn in question. Who Cannot be. — The following persons cannot be : 1. Those who are of unsound mind at the time of their production for examination; 2. Children under ten years of age, who appear incapa- ble of receiving just impressions of the facts respecting which they are examined, or of relating them truly; 3. Parties to an action or proceeding, or in whose behalf ail action or proceeding is prosecuted, against an executor or an administrator, upon a claim or demand against the estate of the deceased. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it in- violate; therefore, a person cannot be examined as a wit- ness 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 afterwards, be, without the consent of the other, exam- ined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the 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 •WITNESSES. 783 to liim, or hia advice given thereon in the course of pio- fesaional employment; 3. A clergyman or priest cannot, without the consent of 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 belongs. 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 pa- tient; 5. A public officer cannot be examined as to communica- tions made to him in official confidence, when the public interests would suffer by the disclosure. When Privileged Person must Testify. — If a person offer himself as a witness, that is to be deemed a consent to the examination, also, of a wife, husband, attorney, clergyman, physician, or surgeon on the same subject, within the mean- ing of the first four subdivisions of the last paragraph. Judge or Juror may be Witness. — The judge himself, or any juror, may be called as a witness by either party; bui 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 judgfe or jury. Interpreter. — When a witness 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 summoned by any court or judge to appear before such court or judge, to act as interpreter in any ac- tion or proceeding. The summons must be served and re- turned in like manner as a subpoena. Any person so sum- moned who fails to attend at the time and place named in the summons, is guilty of a contempt. Subpoena for Witness. — The process by which the at- tendance of a witness is required is a subpoena. It is a writ or order directed to a person and requiring his attend- ance at a particular time and place to testify as a witness. 784: LAW ENCYCLOPEDIA. It may also require him to bring with him any boots, doc- nments, or other things iinder his control which he is bound by law to produce in evidence. Hovr Ies. ed. — 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 be- fore which the attendance is required, or iu which the issue is pending; 2. To require attendance out of the court, before a judge, justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of this state, it is issued by the judge, justice, or any other officer before whom the attendance is required. Service of Subpoena.— The service of a subpoena 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 the 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 ser- vice 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. Concealed Witness. — If a witness is concealed in a build- ing or vessel, so as to prevent the service of a subpoena upon him, any court or judge, or any officer issuing the sub- poena, 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 ifc accordingly, and for that purpose may break into the building or vessel where the witness is concealed. Not to Attend out of County. — A witness 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. Person in Court. — A person present in court, or before a judicial officer, may be required to testify in the same man- WITNESSES. 785 ner as if lie were in attendance upon a subpoena issued by such court or oflicer. Disobedience to Subpcena.— Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court or officer issuing the subpoena or requiring the witness to be sworn ; and if the witness be a party, his complaint or answer may be stricken out. Damages for Disobedience. —A witness disobeying a subpoena also forfeits to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. Arrest of Witness. — 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 him before the court or officer where his attendance was required. Contents of Warrant. — Every warrant of commitment, issued by a court or officer pursuant to this article, must specify therein, particularly, the cause of the commitment, and if it be for refusing to answer a question, such ques- tion must be stated in the warrant. And every warrant to arrest or commit a witness, pursuant to this article, must 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 district court. If Witness be a Prisoner. — 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 examined, 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; 786 LAW ENCYCLOPEDIA. 2. By a justice of the supreme court, judge of the dis- trict court, or county judge of the county where the action or proceeding is pending, if pending before a justice's court or befoi-e a judge or other person out of court. On V/hose 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. How Examined. — If the witness be imprisoned in the county where the action or proceeding is pending, his pro- duction may be required. In all other cases his examina- tion, when allowed, must be taken upon deposition. Witnesses Bound to Attend when Subpoenaed. — A wit- ness, served with a subposna, must attend at the time ap- pointed, with any papers under his control required by the subpoena, and answer all pertinent and legal questions; and, unless sooner discharged, must remain until the testimony is closed. Witnesses Bound to Answer Questions. — A witness must answer questions legal and pertinent to the 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 verj' 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 convic- tion for felony. Right of Witnesses to Protection. — It is the right of a witness to be protected from irrelevant, improper, or in- sulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests of justice require it; to be examined only as to matters legal and pertinent to the issue. s Witnesses Protected from Arrest, When. — Every per- son who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, ■WITNESSES. 787 referee, or other person, in a cause where the disobedience of the witness may be punished as a contempt, is exoner- ated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning therefrom. The arrest of a witness, contrary to the preceding para- graph, is void, and when willfully made, is a contempt of the court; and the person making it is responsible to the witness an-ested 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 witness with a subpoena, for the damages sustained by him in consequence of the arrest. 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, specifying the same, the place of attendance, and the action or pro- ceeding in which the subpoena was issued; and, 2. That he has not thus been served by his own procure- ment, with the intention of avoiding an arrest. 3. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and exoner- ates him from liability for discharging the witness when ar- rested. The court or officer issuing the subpoena, and the court or officer before whom the attendance is required, may dis- charge the witness from an arrest made in violation of these provisions. If the court have adjourned before the arrest, or before application for the discharge, a judge of the court or a county judge may grant the discharge. IISTDEX. ' Page. A. Abandonment 1 Abatement 1 Abduction 2 Abet 2 Abettor 2 Abeyance 3 Abjuration 3 Abortion 3 Abridgment 3 Abrogation 3 Abscond 3 Absence 4 Absentee 4 Abstract o£ title 4 Abuse 4 Abuttals 4 Acceptance 4 draftg of, 6 Accessary 5 Accession 6 Accessory 6 Accommodation paper 6 Accomplice 6 Accord 7 Account 7 book 7 stated 7 bank 7 definition of 7 opening of 7 conclusive, when 8 to be proved, what 8 who may state 8 acknowledgment of 8 Form — account for goods 8 Accretion ; • ■ • 9 Accusation " Acknowledgments 9 provisions of Cal. code 9 proof of 9 in California 9 in the United States 10 outside the United States 10 by deputy 10 Page. Acknowledgments — Continued. requisites for 10 married women, by 10 conveyance by same 11 duty of officer 11 signature of officer 12 certificate of justice 12 proof of execution 12 subscribing witness 12 witness must prove, what 13 execution how established 13 evidence must show, what ... 13 certificate of proof 14 by married women 14 proof of execution 14 subpena for witness 15 Acknowledgments, Oregon 15 who may take 15 in the state 15 out of state, in United States 15 commissioner may take 15 in a foreign country 16 laws of foreign country 16 subscribing witness 16 Acknowledgments, Washington . 17 who may take 17 out of the territory 17 Acknowledgments, Nevada 17 who miiy take 17 within the state 17 in the United States 18 outside the United States 18 Acknowledgments, Idaho 18 who may take 18 viilhin the territory 18 in the United States 18 outside the United States. ... 18 Forms— certificate of 18 on proof of identity 19 by husband and wife 19 proven to officer 20 proof of execution, dead or absent witness 20 by corporation 20 by attorney known to officer , 21 790 LAW ENCYCLOPEDIA. Page. Acknowledgments— ConiinuetZ. Forms — oerlificate of proof by sub- scribing witness 21 by woman, husband out of state 22 by attorney proven to officer. 22 by executor or administrator . 22 by a sheiiff 23 satisfiiction of mortgage 23 » of judgment, justices of the peace 23 of judgment in a court of record 24 application for subpena 24 subpena 24 affi lavit to obtain warrant. . . 25 warr:int against witness 25 commitment for refusal, etc. . 25 oath to subscribing witness. . 2fi to a witness on proof of identity 26 to a deponent 26 Acquittal 26 Acquittance 26 Act of b.inlcruptcy 27 Act of God , 27 Action 27 .\otnary 27 Ad damnum '. 28 Ad interim 28 Ad valorem 28 Adjustment. 28 Administration 28 Admiralty 29 Admission 29 Adult 29 Adulterer 29 Advances 29 Adverse possession 30 Advertisement 30 Advocate 30 Affidavit 30 Affirmance 30 Affray 31 Aforethought 31 Agency, authority, how conferred . 31 confirmation by principal ... 31 who may act 31 responsibility of principal .. 31 holding out person as agent. . 31 general and special agents. . . 3 J banking agents 31 custom of .merchants 31 credit, sale on, by agent 31 special agents 31 authority, how given 31 power of attorney 31 wife may act as agent 31 confirmation by adoption 31 Page. Agency — Continued. acts \inder seal 31 responsibility of agent 31 confirmation of acts 33 Agister 33 Agreement 33 Bee CoNTKACTS. Alibi 33 Alien 34 Alienation 34 Alimony, what is '. 34 pending suit 35 permanent. 35 where no grounds of divorce exist 35 Affidavit of insufficient means wealth or means of husband. 35 Allegiance 35 Alliiince 35 Alluvium 35 Altering marks or brands. See CniMEs AND Punishments. Altering renords. See Cbimes and Punishments. Ambiguity .■ 36 Amnesty 36 Annuity . . . t 36 Animals, stealing. See Cbimes AND Punishments. Answer 36 Appeal 36 Appearance 37 Appellant 37 Appraiser 37 Apprentices, embezzlement by. See Cbimes and Punish- ments. Appurtenances 37 Arbitration 37 submission to 37 award, when good 38 arbitrators, number of 38 statutory provisions 38 who may submit to 38 writing, submission to be in. 38 order oi court may be enter- ed as 38 powers of '. 38 majority to decide 39 award to be in writing 39 vacation of award 39 modification of 39 appeal will lie, when 40 costs and damages 40 Forms — general submission 41 short form 41 special submission 41 bond of 41 condition of bond 41 INDEX. 791 Arbitration — Continued. Formn^ notice to arbitrators of tlieir appoiutmeut 43 notifB (jf hearing 43 arbitrator's oalli 4J in wriiiug 43 Bubpeua on , 43 oath of witness 44 revoc.itiou by all parties 41 by one party , . 41 award 44 releiise to bo executed 44 Arrest 15 of debtor 45 in what cases a debtor may be arrested 45 order of 40 affidavit to obtain order of . . . 46 security to be given 4(i order and form of 47 sheriff, duty of 47 how m ide 47 discharge on bail or deposit. . 47 bail, how given 47 BurreudtT of defendant 48 proce dings against bail 48 qualiScatiun of bail 48 depo it of money with sheriff 49 vacation of order of 49 reduction of bail 49 Arrest of debtor, Oregon 50 in what cases a debtor may be arrested 50 woman shall not be arrested. 50 Forms — affidavit for order of arrest, debtor about to depart from state 50 fraudulent debtor, arrest of. . 51 affidavitfor order 51 undertaUiug on 52 order of 52 Arrest of judgment 53 Arson 53 Articles of partnership 53 Assault 53 what constitutes 54 intention and acts 54 repelling 51 Assault ami b.ittery 55 at common law 55 repelling 55 Assayer -C Assessment 5G Assignmi nt.i, when valid 5G good f lith 5G evasion of debts 50 by debtor 50 in trust GO Page. Assignments — Continued. void, when 57 what constitutes 57 assignor , 57 assignee 57 effect of 57 absolute title 57 to del.iy creditors 57 to defraud creditors 57 leases for oue year 57 writing, when tube iu 57 land, trust in 57 void, when 58 goods and chattels 58 immediate delivery 58 change of possession 58 good faith of 58 stocks, assignment of 58 Forms— simple form of 58 bond, assignment of 58 note and mortgage, assignment of 59 partnership property, assign- ment of 59 partnership property and debts one partner to another .... 60 bond assigned by indorsement 01 judgment, assignment of 62 mortgage and note, assign- ment of 62 bond and mortgage as security lease, assignment of 64 debt or wages, assignment of 65 account, assignment of ... ,. 65 policy of insurance, assign- ment of 65 policy of insurance as security assignment of 65 insolvent debtor to creditor, . 66 seaman's wages 66 debtor to trustees 67 transfer of stock 68 Assurance 69 Attachment, California, when may issue 69 affidavit for 69 what to state 69 undertaking on 70 stock and debts 70 how attached 70 instrnctions by attorney . ... 70 garnishment 71 citation to garnishee to answer 71 examination of 71 order to pay over to sheriff. . . 71 discharge of 71 bond on release of 71 undertaking on release of 72 condition of bonds 72 792 LAW ENCYCLOPEDIA. Page. Attachment, California' — Contirmed. justification of sureties 72 motion to dissolve 72 grounds of 72 when made 72 Attachment, Ore^gon and Wash- ington 72 when to issue 72 affidavitfor 72 what to state 73 arrest of debtor 73 non-resident 73 undertaking to be given 73 Forms — affidavit for attachment, gen- erally 73 affidavit against non-resident. 74 undertaking on attachment . . 74 writ of attachment 75 notice of attachment generally of stock 76 release of attachment, under- taking on 76 Attestations 77 Attempts to commit crime. See Cbimes and Punishments. Attorney at law, who may be ad- mitted to practice 78 examination in open court. . . 78 justices' courts, who may prac- tice in 78 authority of attorney 78 changing attorney 78 notice of change to be given . 78 removal of attorney 78 judgment, when he may satisfy 79 Attorney at law, Oregon, compen- Bition of attorney 79 costs in certain cases, liable for 79 Attorney-general, election of 79 residence 79 bond 79 duties 79 opinions of, to be given . . 80 district attorneys, supervision of 80 report to the governor 80 Auditor 80 Average 80 general 80 particular 81 petty 81 Award 81 Bail 81 Bail bond 81 Bailee 81 Sea Oeimbs asi) Pdnish- MENia. Page. Bank account 82 advantage of keeping 82 time saved 82 opening account 82 discounting 83 drafts for acceptance 83 Bankrupt 83 Bar to action 83 Bargain and sale 84 Barratry 81 California penal code 84 in maritime law and insurance 84 Bastard 84 statutory provisions 85 heir, when 85 wedlock, born in 85 adopting into family 85 estate of 85 Batteiy 86 Bench 86 Bequeath 87 Bias 87 Bigamy 87 Bill of costs 87 Bill of exceptions 87 Bills and notes. iSee Measube of Damages, bill of exchange, what is 87 drawer 88 drawee 88 acceptance 88 I indorsement 88 promissory note 88 different parties 88 liability of parties to 89 who may indorse 89 form of 89 payment of money, etc 89 month, meaning of 89 value received 89 transfer of 89 how endorsed 90 guaranty 90 partner's indorsement by 90 foreign bills 90 checks 90 ■ drafts 90 due bills 90 negotiable instruments 90 suit to be brought, when 90 demand, payable on 91 protest ; 92 presentment for payment 92 statutory provisions 92 negotiable instruments 92 acceptance, when binding 92 damages on protest 93 days of grace 94 Forms — bills of exchange 95 INDEX. 793 Page. Bills and Notes — Continued. Forms — bank check 95 promissory note, negotiable . . 95 not negotiable 96 on demand 96 payable ut bank 96 ou mortgnge 96 secured by collateral 96 payable by installments. 97 memorandum for money lent. 97 due bill 97 diiifc 97 form of indorsement 97 notice of protest 97 Bill of indictment 98 Bill of lading 98 Bill of parcels 99 Bill of particulars 99 Bill of sale 99 assignment and sale 99 personal property 99 delivery 99 possession 99 Forvis— bill of sale, generally 99 of goods 100 binding out 100 blank indorsement 100 Bodily injury. See Ceimes and Punishments. Books, lewd, Bee Ceimes and Punishments. Bona fides 100 Bonds 101 See Ceimes and Punish- ments. heirs, when bound by 101 executors, etc., bound, -when. 101 single 101 conditions in 101 date of 101 sealing 101 aUcvation of 101 illegal interest 102 illegal 102 bottomry 102 respondentia 102 Forms — ■ condition and common 102 sever d pnyments 103 interest condition 103 to a corporation 103 to executors 103 indemnity to sheriff 104 warrant of attorney to con- fess judgment on 104 conveyance to &xecute 105 to bank officers 105 to idemnify surety 106 Page. Bon ds — Continued. Forms — on payment of lost note 106 Eerformanoe of contract 106 ottomry 107 association, secret, to 108 bill of lading, to produce .... 109 indemnity '. 110 legatee's J 11 interest to be due, for Ill for a deed '. ....112 Bonds of matrimony ... 83 Book account, when, may be given in evidence 112 original entries 112 witness, books kept by 112 clerk, books kept by 112 correct books, proof of 113 prima facie case 113 refresh memory 113 when not admissible 113 death of party keeping 113 day-book 113 E. &0. E., meaning of 113 bar, when not 113 Bottomry 113 Boundary 114 Breach 114 Breach of the peace 114 Breach of trust 114 Breaking into house 114 See Ceimes and Punish- ments. Bribery 114 See Ceimes and Punish- ments. Brokers 115 bill and note 115 exchange 115 insurance 115 merchandise 115 real estate 115 ship 115 stock 116 pawn 116 Burglary 116 By-bidding 116 O Cancellation 117 Canvass 117 Capacity 117 Capital crime 117 Capital punishment 117 Capital stock 117 Carrier 118 Carriers of passengers, for hire . . care required 118 fare in advance, may demandllS accidents by negligence of ... 119 794 LAW ENCYCLOPEDIA. Pago. Carriers of pjisspngers —Continued. great w.-itchfiiluesa requiied 119 negligence of passengers IID leapiu;^ f.om cars Ill) not bound to CiiiTy certain jjersourt 119 delivery of passengers, liable for not 119 company liable, among seve- ral 110 dani|igeR, rnrasute of 119 proppoctive damages 119 rules, may estaljlish 120 tickets "'for this day only," wheu, may be nstd 120 See Common Caeeiees. Carte-blanche 120 Cise 120 Case-book 1'20 Cashier 120 Cause 121 Cause of action 12 1 Caveat 121 Caveat emptor 121 Census 121 Certified check. . . ; 122 Certiorari, writ of, how issued 122 apjilicatiun, how made 122 ■writ, how directed 122 contents of writ 123 stay of proceeding 123 service of l'<;3 review, extent of 123 hearing 123 judgment 123 inferior tribunal, service of judgment on 123 judgment roll 123 appeals 123 Form — certiorari, writ of 124 Cestui que trust 124 Cestui que use -. 125 Chambers 125 Champertor , 125 Champerty 125 Charter party 125 Chastity 126 Chattel 12G Chattel mortgage 126 ■Check 126 Chose in action 126 Circuit courts 126 Citation 127 Citizen 127 Civil action 127 Civil death 128 Civil officer 128 Civil remedy 128 Claim 128 Page. Clearance 128 Cleariug house 1'29 Codicil 129 Cohal.it l-:9 Collector of customs, dutiesof 129 Collusion 130 Commercial law 1 30 Commission 1 uU Commitment 130 Common carriers, who are 131 duty to carry all goods 131 passenger carriers 131 acts of agents, responsible for 131 liabili;y, when it commences. 131 goods moving over several lines 131 storage of goods by 131 owner bound to receive goodslSl owner may sell goods dam- aged 131 owner may recover loss of carrier l31 Common law 132 will of the legislature 132 prominent characteristics 132 lex non scripta 133 decisions of courts 133 legal principal 133 adopted in California, Nevada and Idaho 133 practice of courts 133 Common nuisance 133 Commutation 134 C'omx)etenoy 134 Complaint 134 Compromise 134 Concealment 134 Condition 135 Condonation 135 Confederacy 136 Confession 136 judicial 136 extra judicial 136 evidence when 136 Confession of judgment may be entered without action. ., .137 affidavit in writing 137 specified sum 137 facts to be stated showing lia- bility 137 contingent liability 137 statement to be filed 137 promissory note secured by . .137 Forms — confession to secure note 138 of judgment for money due 138 entry of judgment on. . . .139 Confirmation 139 INDEX, 795 Pago. Coufisoate j/tO Coufnsionof goods ]10 Cousidoration HO Consignoj ]41 Contempt 141 Contr.iets, Rcnerally l H con ider.itiuu 141 assent 14J subject matter 112 agiecmeiits by specialty 14i! ■written iustrumeut 14J seal IIJ parol proof 14J doubt, cases of 142 Intention of parties 142 extrinsic circumstances 14 J mistiiUe 142 laugnagi used Wi incupac.ty to contract 143 inf.in -y 143 married woman 143 S -0 IICJSBAND AND WiFE. necessaries 143 new promise 143 age of majority 143 fraud 143 statutory provisions 143 lease 141 sale of lands 145 void, when 143 mcmor.iudam or note 145 \rritinK 145 subscribed 145 agent subscribing 145 special jiromiso 145 debt of another 145 default of another 145 marriage promise 145 goods, sale of 145 part of goods I'eceived 145 purchase money 145 auction, sale at 145 sale-book 145 memorandum 145 price anil nature 145 terms «f sale 145 note of, what deemed 145 vendor of goods, sale by 145 change of possession 145 assigne-l or sold 145 subsfqnent purchasers 145 lands 145 tenements 145 hereditaments 145 estato and interest 145 officers not to deal in certain. 1-45 who may not deal in 145 who shall not make 145 office forfeited 145 punishment 146 J Page. Contracts — Coniimted. fraudulent, punished 146 debtor removing his goods. . . 146 fraudulent conveyance 146 punishment 146 speciiio contracts 146 gokl-ooin judgments Forms — general form of 147 house and lot, purchase of. . .14.S real estate, sale of 148 building house, contractfor. .149 party wall, respecting 1-19 boats, making agreement for. 151 wheat, sale of 151 baild house, to 1 jl mortgage security, change of. 152 sale of land 123 auctioneer, sale of land ... 153 pureh.aso of lands at auction. 151- pf rsonal property 154 salo and delivery of 154 stock, sale of 154 church, raising money for 154 cul tivate lands, to 155 canceling agreement 155 stock to sell Controvirsy, submitted without action 45 Conveyances, fraudulent. See Chimes and Pdnishjients. Conveyancing, definition of deed. 156 fee-simple deed , 157 warranty 157 quitclaim 157 trust deed 157 sealing 157 witnessing 157 recording 157 who may make 157 consideration 157 description of land 157 exchange of land 158 partition of 158 writing, must be in 158 trusts and wills .153 words of inheritance 158 grant, bargain and sale 139 possession 1.59 fee simple 159 contracts to sell 159 deeds of gift 1.59 when deed void 159 wife, deed to 159 Conveyancing, Oregon, convey- ance, how made 160 husband and wife 160 quitclaim IGO words of inheritance. 160 796 LAW ENCYCLOPEDIA. Pi(ge. Conveyancing — Contirvued. covenants not implied 160 mortgage no covenant 160 Forms — ^ under code 161 deed of bargain and Bale 161 attorney in fact, deed by 161 quitclaim 162 gift to married woman 162 trust deed for wife's benefit .162 corporation deed 163 exchange of lands 163 deed mth covenants 164 quitclaim, husband and wife.lSi covenants against grantors ... 165 full covenants 166 •warranty with release of draw- er for Oregon 167 quitclaim, special warranty. .168 contingent and conditional deed 168 executor's deed by authority ofwill 169 right of way and drain, deed for 170 watercourse, deed of 171 release, deed of 171 confirmation, deed of 172 giftdeed 173 partition deed 174 surrender of term of years 175 surrender of lease 175 release of mortgage 176 dower, release of, Oregon 177 personal estate, gift of 178 gift by father to son 178 gift of goods 179 Convicts, escape of. See Ceimes AND PCTMSHMENTS. Convicts, rescue of. See Ceimes AND Punishments. Copyright, who may have 180 what is ; 180 foundation of 180 ■what may be copyrighted 180 copy to be deposited 180 renewal of 181 assignment of 181 penalty for violating 182 action for violation 182 limitation of action 183 Coroner, election of 183 bond 183 San Francisco, in 183 to act as sheriff 183 duties of 184 inquiry as to cause of death . 184 jury, to summon 184 defaulting juror 184 duty of jury 184 Vase. Coioner— Continued. fine for not attending as juror.185 witness 185 subpena for witness 185 verdict of jury 185 testimony reduced to writing. 185 preservation of testimony 185 arrest of accused 185 warrant of 186 money to pay over 186 treasurer, duty of 186 supervisors, duty of 186 vacancy in office of 187 justice, acting as 187 burial of body 187 fees 187 Coroner, election of, Oregon 187 duties 187 fees 187 Forms — subpena for juror 188 forvritness 188 .for surgeon 188 oath for juiy 188 for witness 189 inquisition or verdict 189 certificate of death 189 warrant for arrest of suspect- ed person 190 Corporations, California 190 for what formed 190 before the codes 190 powers of 191 how exercised 191 how discharged 191 determination of am'tdue 191 proof to fix liability 191 life, liabilities for 192 liabilities of 192 continuance under code 192 articles of 193 trustees 193 evidence of incorporation 194 stockholders under code 194 liability under code 194 nullification of constitution . . 195 constitutional provision 195 Nevada, corporations in 195 Oregon, corporations in 195 Idaho, corporations in 195 Washington, corporations in . 195 Arizona, corporations in 195 assessments on 196 stock of 197 stock of 198 stock of 199 stock of 200 stock of 201 stock of 202 manner of sale oL .. ,-. 202 INDEX. 797 P«ge. Certificate of trustees of mioing company 202 petition for disincorporation. .203 notice of publication 203 order of disincorporation 204 Corrupt grant of autliority. See Chimes and Punishments. Costs, when allowed, " of course "204 discretionary, when 205 other cases 205 apportionment of 205 tender made 205 corporation party 205 affidavit to cost bilL ^05 Form — cost bill 206 Counseling. See Chimes akd PtraiSHMBNTS. Counterfeiting coin. See Cedies AND Punishments. County, intent to injure. See CitiMEs AND Punishments. County clerk, election of 20G office, where to keep 206 San Francisco, in 206 office hours 206 duties of 207 deputies, may appoint 207 bond of deputies 207 process, how issued 207 not to practice law 207 acknowledgments, may take. .207 other duties 208 County clerk, Oregon, election of. 209 eligibility of candidate 209 termof office 209 bond of 209 form of bond 209 filing of bond 209 duties generally 209 not to act as attorney 210 Forms— form of oath 210 of affirmation 210 of a'^sent 210 oath o£ foreman of grand jury2]0 of jurors 210 of juiors on excuse 210 of triers 2U finding of triers .211 oath as to competency of ju- ror 211 of empaneled jury 211 of interpreter 211 on voir dire 211 of witness _. . 211 of parly or interested wit- ness 212 oath to admit evidence of con- tents of paper 212 Page. County clerk — Continvied. Forms — to prove handwriting. ..212 of officer on retiring with a jury 212 verdict of former conviction. .212 special verdict 212 verdict in actions for damages212 in actions for i^ersonal property ' 213 in cases of lunacy 213 of real jiroperty 213 polling the jury 213 entry of default 213 docketing judgment 214 transmittingindictment 214 bench warrants 214 subpena 215 return of servi ee of subpena. 215 affidavit as to non-resident witness 216 order on the subpena for ab- sent witness 216 defaulting witness, order against 216 bail before indictment 217 after indictment 217 on a re-commitment 218 pleas 218 change of place of trial, order for 218 forfeit of bail 219 of money deposit 219 entry of judgment on convic- tion 220 commitment 220 issue of insanity 221 entry of verdict of former ac- quittal 222 subpena, civil case 222 elisor, appointment of 222 mortgage sale, confirmation of 223 execution for deficiency mort- gage sale 223 writ of venditioni exponas.. 223 assistance, writ of order for. .224 execution, writ of 225 removal of cause to United States court 226 transcript on appeal, certifi- cate of 226 offi( ial character, certificate of 227 Courts of justice, what are 227 record, courts of 227 public sittings 227 divorce cases 227 general powers of courts 228 judge shall not act, when 228 798 LAW ENCYCLOPEDIA.. Page. Coui'tg of iiTsHce — Continved. connsrl, ,ri(1p;e nOt to act as. .22S leave of jti'senee -2 J judicial 'lava . . ^■^;^ non-inriici'il rliivs ^-J con-tatobe hclrl, where ■■ .^-J Bnnrpme court jm-isclictiou ol.'^^O new trifil •-*, diatnVfc conrta, .inriscliction of.3:>(i coiT'tv conrla, jnristliotion of.".^l grnriil inry 231 indiotTien's 2"1 ■probi^e ro'irta, inrisrlietion o'.""! jnaticp"?' coii'ti. i'lriarliction nf.g32 Courts of Jn"t:o(i, Idilio, judicial power wlier'^ vcated "1" Bnpr"me con'-t, iuns''iftion.rf."3'* diat ift ciui-ta, iuri'iflic'innof 2T1 prnlrit" eourta, j'irsd''ctionof.''"3 justice-;' cou-ta, jnri«di'tion of?33 'dian'T'li!ic''tiou of judges. . . .^32 judicial d-iya ^3-5 gener"! iinw"ra of courts. .. .23 "i Courts of justice. Nevada, judicial power, wh'^re veaf ed 23" sUTirTne cnnrt, juri 'diction nf.93-^ dis'Hft courfs, jir'sdi'-t'on of."3f! justices' co'Tts, jurisdiction of "31 disnu ilili'-ation of judges 237 judicial davs !'37 general powers of courts S'iT Covenant 938 Covertm-e 2?8 Creditor 238 Creditnra, frauds against. See Chimes and Punishm'^nts. Crime, eascnec of. See Ceimes AV'D ^^^^aH'^TENTa. Criminal iipr;l'c!enc?. See Cbimes AND rUNISKMENTa. Crimes and p'-'nishraents 23S division of public offenses . S30 felonv 2n9 mis'lemcanor 339 legal conviction 239 mode of p-oceeding 239 orimin d action 239 prosecution 2"9 drfendant 249 righ's nf defendant 240 second prosecution 240 ■Witney's against one's self, etc. 240 requisites Of leg^l conviotion."49 prevention of public offenses.211 lawful resistance 241 the party about to be injured . 2 tl by other persons 241 essence of crime 241 intent 241 P»ge. Crimes and Punishments — Con- tinued. sound mind 241 infants 241 idiots 241 counseling infants, etc 241 married women 2i2 drunkenness no excuse 242 niisfoitnue and accident 242 dmesi by threats or menaces. 242 accessories in crime 243 accessories 243 accessories after the fact 243 witnesses 243 affirmation 243 Crimes against the government and people 243 Crimes against government 343 treason - 244 offenses against the persons of individuals 244 murder 244 express malice 244 implied malice 244 manslaughter 244 voluntary manslaughter 245 irresistible passion 24.5 involuntary manslaughter 245 punishment 245 death 245 justifiable homicide 245 self-defense 246 killing by officer 246 unavoidable necessity 246 homicide by misadventure 246 analogous cases 246 burden of proof 247 concealing death of bastard.. 247 dueling 247 fighting duel 247 l^osting for, not fighting 247 punishment 247 fighting out of state 248 officers neglecting to prevent duel 248 abortion 248 mayhem 219 rape 249 assault and battery 249 assault tD commit felony 249 f also imprisonment 249 Crimes and Punishments, abduc- tion ...249 kidnapping to 219 abduction of women 256 abduction of children 250 bui'glary 250 offenses against property 251 robbery 251 grand larceny 251 INDEX. 799 Page, Criires ftnd Punishmants— Gon- tiniied. petit larceny 251 receivinc; stolen goods ! . 251 altering brands 251 embezzlement by officera 252 officers failing to pay over nionev 252 destroying deeds 252 removinp; monuments 252 emlje.-.zlemeat by clerk 253 baileo's convevsion 253 loil^prs removing fuvnitnre. .253 for:;ery and counterfeiting . . .253 coniiterfeiting coin 251 possessing counterfeiting coin251 possessing fnrged notes 251 ma\in^ or possessing dies. . .251 forging seal of state 2"4 forging r.iilroad tickets 251 Crimes against public justice 255 perjury and subornation of.2J5 bribery of office's 255 brib. i-y of officers 257 bribery of telen:raph operator.2' 7 stealing or defacing records. .257 miscellanpous offenses 257 inliumauity to prisoners 257 rcfu ;ing to deliver records 257 personating another 25S personating to receive money.258 resisting officers '. . 25S rescuing convicts 259 rescuing persons charged with crime 250 suffering escape of prisoner. .259 aiding escape of prisoner . . 259 rescue of other persons 259 suffering escape of prisoner . . 2G0 officer? refusing t.i arrest. . . .200 compiunrling offenses 26f) conspiracy 201 personating officers 2"! embracery 2GI extortion 201 justice purchasing judgment. 203 colTUPt. fTi-a-jtf f anthnritv. . . .202 threatening letters, sending. .232 openi'ig lettprs of others 202 Crimes agam-t ]iublio peace 203 di-furb'ng peace in night . . .203 ref Tisiug to disperse 203 array 203 unlawful assembly 203 r^n(s and riots 203 disturbing religious assembly 261 selling liquors at camp meet- ing 204 libel 261 oifenscs against morality, etc . 2G4. Page. Crimes against public peace — Con- tlmted. tigamy 204 bigamy 265 adultery 265 public nuisance 205 selling unwholesome provis- ions 205 destroying official posters 265 possession of bur.^lar s tools 265 possession ot ofi'tiiisive weap- ons 206 refusing to aid officers 206 cheats, swindles or frauds .266 swindling 207 marrieil person selling land falsely 207 selling land twice 267 false weights and measures. . .268 frauds against creditor.^ 268 m.ilicious miscbii-f 208 poisoning eattlj 268 malicious inj ury to animals . . 269 malicious injury to goods 269 malicious inj iry to horses !'i69 mabcious iujary tj lumber, etc269 malicious injury to bridges, etc " 270 malicious injury to jails 270 malicious iuj.n-y to firing wood 270 general pi-ovi jons 271 punishment for felonies 271 punishment for mis(lemeanors271 effect of sentenof 271 persons, females and intent. .271 coiinterfeiting libels, etc 271 selling couutvrf it goods 272 poisoning springs 272 officnses agiinst habitations. .272 arson, first degree 272 arson, second d.'gree 272 burning insured pronerty... 273 fraudulently destroying ves- sels 273 making false manifest 274 bribery of witness 274 horso bi-eaUing i n day-time . . 274 counterfeiting gold 274 possessing c-iuiitcrfeit gold.. 275 iajurious pubii -ation 275 improper use of deadly weap- ons 275 stealing dog" 276 dance-houso girls 276 minors playing games of thance 276 exhibiting deformities for hire277 stealing ammals 277 game, kilUug of 277 800 LAW ENCYCLOPEDIA. Page. Crimes against public peace— Con- tinued. phosphorus, use of 278 summary of crimes 278 Crimes, Oregon, in 280 adultery 281 abortion 281 burning house in night 281 dueling 282 accessories 282 punishment 283 misdemeanor 283 custom 283 283 Damages 284 Dancing-house girls. See Cbimes AND Punishments. Days of grace 284 Death, year and day, within. See Cbimes and Punishments. Defacto 285 Debt ■. 286 Deceit 286 Declaration of intention .286 Dedication 286 Deed 287 Deeds, destroying of. See Cbimes AND Punishments. Deeds, to counterfeit. See Cbimes AND PuNISHMEJilS. Deer, killing of. See Cbimes and Punishments. Defamation . , 287 Default 287 Defeasance 288 Defense 288 Defendant 288 Degrees of murder. See Cbimes AND Punishments. Delivery 289 Demand 289 See Peotest. Demurrage 290 Demurrer 290 Deponent 290 Deposit 290 Deposition 291 Descent, bastard 293 Descent and distribution 293 Desertion 295 Destroying official notices. See Cbimes and Punishments. Detainer 296 Deviation 296 Devisee 296 Devisor 296 Discount 296 Dishoner 297 Page. Disperse, refusing to. See Cbimes and Punishments. Disturbing peace. See Cbimes AND Punishments. Divorce 297 Divorce, California 297 from bonds of matrimony 297 grounds of 297 adultery 297 extreme cruelty 297 habitual intemperance 299 willful desertion 299 neglect to provide 299 children born after 299 alimony 30O default 300 proof required 300 verification of complaint . . 300 Divorce, Nevada 303 certain marriages void 303 want of understanding 303 nullity of marriage 304 marriage supposed to be void 304 grounds of 304 non-residents 305 notice of suit to be given 305 children, support of 305 custody of 305 disposition of property 305 discretion of court 306 testimony of witnesses 306 where taken 306 alimony granted 307 money for support decreed. .307 namo of female changed 307 jury trial 307 Divorce, Oregon, void marriages.300 want of age 300 force or fraud used 300 insane persons , ... 301 complaint t j annul 301 grounds of 301 residence of plaintiff 301 impotency 301 adultery 301 desertion 301 felony, conviction of 301 habitual drunkenness 301 harsh or cruel treatment .... 302 voluntary neglect 3012 district attorney, duty of 302 service of summons 302 Divorce, Washington 302 jurisdiction 302 grounds of 302 duty of district attorney 302 decree of nullity 302 residence 302 name may be changed. .'. . . . .303 INDEX. 801 Page. Divorce, Washington— Oon(in«ed. default, proceeding on 303 disjiosition of property 303 Dogs, stesilin,:,' of. See Chimes and PtTNISHMENTS, Domieil 308 Dower ....308 Drunkenness no excuse. See Oniiirs AND Punishments. Dueling, killing by. See Ceimes AND Punishments. Duress; 308 Duress by threats. See Ceimes AND Punishments. Dwelling-house, entering. See Ceimes and Punishments. Earnest 309 Eiisement 303 Effects 310 Ejectment 310 Election 311 Elector 311 Elk, killing of. See Ceimes and Punishments . Elopement 312 Embargo 312 Embezzlement 312 Emblements 312 Embraceor 313 Embracery. See Ceimes and Pun- ishments. Eminent domain 313 Engross 313 Enter 314 Entry 314 Equality 314 Equity. 315 Equity of redemption 310 Escape 317 See Crimes and Punish- ments. Escheat .-. 317 Escrow 317 Essence of crime. See Ceimes AND Punishments. Estates of deceased persons 318 wills 318 jurisdiction 318 administration, when grnnted.318 executory letters, when grant- ed 318 administration, order of 318 married women 319 application for letters 319 ' cont'-st for administration. , .319 proof of death 319 issue of letters .319 bonds of administrators .... 319 51 Page. Estates of deceased persons — Coii- Unued. inventory of estate 320 appraisement 320 family support of 320 claims against estates 320 prcsentalion of claim 320 affidavit to claim 320 allowance of claim 321 rejection of claim 321 neglect to allow, effect of 32 1 action upon claim 321 sales of property 321 application to sell property. .321 general duties of administra- tors, etc 321 funeral expenses 322 payment of debts, order of. . 322 demands of other kinds 322 payments to be made, when. .322 insolvent estates 322 Forms — inventory, with the affidavits.323 creditor's claim with afHdavit.324 Estoppel .325 by deed 325 by record 3-8 Evasion 326 Eviction 326 Ex officio 323 Ex post facto law 328 Exchange 327 conveyancing in 327 Execute 327 Execution 328 statutes regarding 328 writ of 329 death of party to 329 justifiable. See Ceimes and Punishments. Executor 330 Exemplary damages 330 when allowed 330 Exempt from execution, California.330 See Homesteads. chairs, tables, desks and books331 household furniture 331 farming utensils 331 oxen, horses, mules 331 seed, grain or vegetables 331 mechanics' tools 331 surgeon 331 physician 331 surveyor 331 dentist 331 attorneys 331 ministers 331 miners 331 cartman 331 huckster 331 802 LAW ENCYCLOPEDIA. Page. Exempt from execution — Continued. peddler 331 teamster 331 laborer 331 fire engines 332 arms 332 court-liouses 332 earnings of judgment debtor.. 332 sewing machine 332 life insurance. 332 searcher of records 332 pews in churches 332 cemeteries, lots in 332 Exempt from execution, Oregon, ■when to claim exemption 335 books 335 pictures 335 musical instruments 335 wealing apparel 335 tools to cfirry on trade or pro- fession 335 food for team 335 team, what is 335 householder's property, what exempt 335 state, property of 336 county, property of 336 judgment for price of property336 Exempt from execution, Idaho, chairs, tables, etc 336 household furniture 336 farming utensils 336 tools of mechanic 336 surgeon 336 physician 336 surveyor 336 dentist 336 attorney 336 actors 336 miners 336 teamster, etc 337 fire engines 337 arms, etc . .'. 337 court-houses, etc 337 cemeteries 337 Experts 337 Extortion 338 See Chimes and PcNisn- MENTS. Extradition 338 Extremes 339 Fact 340 Factor 340 False imprisonment 341 False return 3U Farrier 342 Father 342 Fee-simple ^..^^^ 342 Page. Felon 343 Females, crimes by. See Cimmes AND PtraiSHMENTS. Fictitious bills. See Cbimbs and Punishments. Fighting. See Obimes and Pun- ishments. Final judgment .343 Finder 343 Firing woods. See Crimes and Punishments. Firm 344 Fish commissioners. See Appen- dix. Fixtures 344 Folio 344 Forcible entry. See Landloed and Tenant. Foreclosure 345 Forgery 345 See Chimes and Punish- ments. Franchise 345 Fraud 345 Frauds, statutes of 345 Frauds against creditors. See Chimes and Punishments. Fraudulent concealment of goods. See Crimes and Punish- ments. Freehold 346 Freeholder , 346 G- Game, killing of. See Crimes AND Punishments. Garnishment 346 Gift ;.346 Gold, counterfeiting. See Crimes AND Punishments. Good will 346 what is 346 professional partnership in .. 347' name or trade mark ... 1 347 injunction to restrain use of trademark 347 rule in California 347 punishment for -riolation of trade mark 347 Forms— sale of good will 348 notice of trade mark 348 Grand larceny. See Chimes and Punishments. Grass, firing of. See Crimes and Punishments. killing of. See Crimes and Punishments. Growing crops 348 Guaranty 348 INDEX. 803 Page. Guaranty — Continued. guarantor, who is 348 surety 348 ■who liable to pay 319 creditor to sue 349 debt, guarantor may pay. . . .349 ■when not binding 349 acceptance of 349 Forms — indorsed on note 349 separate paper 350 letter of 350 acceptance of 350 authorizing sale 350 additional security 351 Guardian , 351 H Habeas corpus 352 writ of, who may prosecute. .352 application for writ 352 petition for 352 affidavit to petition 352 writ; who may grant 35'2 discharge of persons under. ..352 excess of jurisdiction 352 unlawful restraint 352 defective process 352 detention by unauthorized persons 353 process of detention illegal . . 353 commitment without probable cause 353 Forms — petition for writ 353 orders granting writ 354 writ 354 Habitual drunkard 354 Hearsay evidence 355 Homicide. See Ceimes and Ptjn- ISHMKNTS. Homestead, U. S. Laws 355 who may acquire 355 price per acre 355 affidavit to be filed 336 age of applicant for 356 infant children 356 register of entry 357 exempt from execution 357 abandonment of 357 amount of land allowed 357 crimes under act 358 price may be paid at once 358 Homestead Laws of California 359 extent of homestead 359 value of 359 who may select 359 joint tenants 359 abandonment of 359 excess,ln value 359 Page. Homestead laws of California — Contimied. who may select and amount of 360 head of family defined 360 mode of election 360 declaration, what to contain. .360 survivorship 361 in Nevada and Idaho 361 abandonment and alienation of 361 excess in value 362 on death of claimant and un- married persons claiming 362 Forms — declaration of homestead 362 abandonment of homestead. . 362 Household 363 Householder 363 Husband and wife 363 how regarded by the law 363 statutory regulations 363 rights of husbands 363 interests separate 363 make contracts 364 separations and legal relations 364 consideration for separation.. 364 may be joint tenants 364 separate property of vrife 364 separate property of husband. 364 common property 364 inventory made 364 evidence of wife's property. .365 wife's debts 365 earnings of wife 365 earnings when liying separate 365 liability for debts of wife 365 wife's property not liable 365 power of the husband 365 courtesy and dower not al- lowed 365 husband liable for wife's sup- port 366 when not liable 366 wife to support husband 366 marriaga settlements in writ- ing and recorded 366 minor's marriage contract. . . .366 death of husband or wife 366 Forms — article of separations between husband and wife 367 conveyance of husband's prop- erty to trustee for benefit of wife 368 appointment of new trustee in place of one deceased 369 deed of trust for benefit of wife 370 inventory of separate property of wife 370 804 LA-W ENCYCLOPinJLiiL. Page. Husband and wife — Continued. Forms — declaration by a married ■wooiau as sole trader 371 married woman to become sole trader 371 Idiots. See Cebsies and Punish- ments. Imprisonment, false. See Ceimbs AND Punishments. Incumbrance 371 Incest. See Ceimes and Punish- ments. Indemnity 3T2 Indenture 372 Indictment 372 Indians, as witnesses. See Ceimes AND Punishments. Indorsement 372 Infants, crimes by. See Cecmes AMD Punishments. Injunction 372 Injurious publications. See Chimes AND Punishments. Injury to property. See Ceimes AND Punishments. Innkeepers ; 374 definition of 374 boarding-house keepers 374 lodger and guest 374 traveler 374 duties of 374 damages, when liable for 375 bound to receive, who 375 price cf entertainment, con- tract affecting 375 responsibility of 376 losses, liable for 376 delivery of goods, must be shown 376 burden of proof in actions for loss 376 landlords may prove in de- fense, what 376 Instruments in writinp;, stealing of. See Ceimes and Pun- ishments. Insane asylum, California 377 location of 377 Forms — application to commit lunatic 377 oeriiflcate to commit lunatic. 377 petition for appointment of guardian,. .378 order to notify and produce insane person 378 bond of guardian 379 order appointing guardian . . . 379 Page. Installment 380 Insurance 380 three kind.5 of 380 insurer, who is 380 underwriter, who is 380 policy of, what is 381 marine 381 limit of risks 381 statements in policy 381 foreign voyages 381 rules governing 381 interest of insured 381 mortgagee may insure 381 reinsurance 381 contract to he expressed in the policy 382 writing, should be in 382 perils of the sea 382 war risks 382 fire risks 382 sea damage 382 act of God 382 special 382 particular voyage. . . 382 deviation from the usual course ship, during 383 involuntary deviation 383 proceedings in case of loss. . .383 character of loss 383 extent of loss 383 insured property, destruction of 383 abandonment of 383 total loss 383 partial loss 383 payment of premium 384 return of premium 384 advance payment 384 when premium will be re- turned 384 fire. 384 insurable interests 384 contents of policy 384 facts should be stated 384 answers to questions 384 application for 384 warrantees by insured 385 time of risk to be stated 385 conditions in policy 385 building erected, additional. .385 prohibitions in policy 385 further 385 restrictions on further 386 several policies considered one 386 hazardous risks 386 temporary deposit of 386 warrantees and construction of 386 liquors, storage of 387 INDEX. 805 Insurance — Contmued. representations by insured. . .387 assignment of policy , 387 payment of premium 3S8 loss, proceedings in case of . .38:i abandonment, total 388 notice of loss to be given . . . 388 life 389 death of insured . . . .' 389 head of a family 3S9 unmarried person 389 insurable interests 389 creditor may insure 3S9 child may insure father's life.3b9 wife mny insure husband's life 389 basis of contract 389 health of insured 389 truthful answers required. . . .389 r^'niarkiible case in California. 389 widjw declines to receive in- surance on the life of her deceased husband 389 rara avis assignability of life 390 death, prooif of 390 forfeiture.of policy 391 accidents 391 Forms — notice of loss .391 sworn statement 391 affidavit to 391 assignments 392 insured property, burning of See Ceimes and Punish- MKNTS. Intent in crime. See Cbimes AND PhnISHMENIS. Interest 392 legal rate of 392 express contracts as to 393 settlement of accounts 393 agreement of parties 393 entrance of judgment .. 393 allowed on 393 Interest, Oregon, rate allowed . . 393 forftiture to school fund 3^3 on judgment 303 Interest, Neva.la and Idaho 333 contract of parties 393 on j adgment 303 Intestate , 394 J Jettison ' 391 Jobber 394 Jails, injury to. See Ckimes and Punishments. Joinder of action 394 of parties 395 Judge advocate 396 Page. Judgment 397 purchase of, by officer. See Crimes and PtrNisHMENia Judgment roll 398 Judicial records 398 United Htates and Calif ornia . 398 other state 398 foreign country 399 copy 01 record 399 statutes and written law 399 seal of court 399 certified copy of 400 custody of officers, books in . . 400 Forms — exemplification of record, cer- tificate of .. . 400 certificate of judge to signa- ture of clerk 401 cojiy of paper, certificate of, .401 certificate of clerk to signa- ture of judge 402 Jurisdiction 402 Jurors, California 402 qualifications of 402 incompetent, who are 403 exempt, who are 403 Jurors, Nevada 404 exempt, who are 404 qualifications of 404 Jurors, Idaho 404 who exempt from serving 404 Forms — ■ certificate of drawing a jury. .404 petition for grand jury 405 juror's summons 405 Justices' courts 40& jurisdiction 406 attorneys, who may act as . .406 venue of actions 406 confession of judgment 407 Bee Confession op Judg- ment. appearance of parties, volun- tary 407 actions, commencement of. . .408 summons, service of 408 service by publication .... 408 arrest, order of 409 when issued 409 affidavit for 410 undertaking on 410 duty of officer making. . .410 trial - 410 attachment as security 411 affidavit for 411 undertaking on 411 writ of 411 replevy of personal property. 41'2 affidavit in 412 order to take property 412 806 LAW ENCYCLOPEDIA. Page. Justices' courts — Continued. uudertaking in replevin 412 sureties, defeadant may ob- ject to 413 return of property to defend- ant 413 justification of defendant's sureties 414 concealed property, duty of officer 414 pleadings 414 form of 415 complaint, contents of 415 answer, contents of 415 insufficient knowledge 415 written instrument, how pleaded 415 notes, bills, etc 416 demurrer to pleadings 416 variance betwen pleading and proof 416 title or possessions to real property 416 judgment in certain cases. . . .417 trial by jury 417 adjournment of case 417 dismissal of case 417 default, judgment by 418 entry of judgments 418 coin judgments 418 remittance of part of sum due 419 arrest, judgment on 420 costs 420 new trials 420 application for new trial 420 appeals to county court 420 statement on appeal 420 settlement of 420 statement need not be made when 421 notice of appeal and state- ment 421 undertaking on appeal 422 how to perfect an appeal 422 stay of proceedings 423 Forms — summons 423 order of arrest 423 indorsement deputizing spe- cial constable complaint on written instru- ment 424 affidavit for order of arrest. . .424 undertaking on order of ar- rest 425 by defendant on arrest 425 venire for jury 426 writ of attachment 426 notice of attachment 426 Fsge. Justices' courts — Continued. Forms — execution 427 undertaking on release of at- tachment 427 order on garnishee to answer 428 constable's jury summons. . . .4'28 attachment for defaulters 428 notice of transfer of cause 429 satisfaction of judgment 42'J notice of appeal 429 undertaking on appeal 430 complaint for taking personal property 430 complaint on claim and deliv- ery of personal property ... 431 affidavit on claim and delivery 432 order to take property 432 undertaking on claim and de- livery 432 justification, affidavit of . . . .433 undertaking on attachment. . .433 affidavit for attachment 434 bond of indemnity '. .434 forcible entry complaint ..... 435 summons, forcible entry 436 restitution, writ of .- 436 Justifiable homicide. See Ciumes . AND PCUISHMENTS. xj: Kidnapping 437 Knowledge 437 guilty, what is 437 examples of. 437i Labels, counterfeiting private. See Chimes and Punishments. Labor 438 preferred creditors 438 deceased person's estate 438 notice to be given of claim 438 disputed claim, proceedings. .438 act in regard to, California . . . 438 hours of labor 439 legal day's work 439 Labor, Nevada, Idaho and Oregon 439 Forms— contracts for labor .440 contract under eight-hour law 440 notice of preferred claim 410 affidavitto 440 Laches 441 when excused 441 Land, selling twice. See Chimes AND Punishments. Landlord and tenant 441 landlord, who is 441 tenant 441 IKDEX. 807 Page. Landlord and tensintr— Continued. rent 441 lease 44I term ' ' I44J verbal lenso [441 written lease 442 agreement to lease 442 life estates ,', .'442 ordinary tenancy 443 estates at will 442 estates at sufferance 442 distinguishing features of ten- ancy for yeiirs 442 termination of tenancy 443 statutoi-y provisions 443 notice to quit 443 service of notice 443 re-entry by livndlord 443 notice to surrender by tenant. 443 landlord's notice to sub-ten- ant 443 penalty for holding over 443 special damages 443 assignment of lease 443 covenant not to assign 443 assignment by assiguee to es- cape rent 443 snb-tenant's liability for rent. 443 use and occupation, action for 443 void leases 413 town lots 443 conveyance, when lease is .. . 443 recording C2 real property, recovery of. . . decree of U. K. court 503 sealed instrument 503 contract or liabil.ty 503 trespass to real i:roperty 503 criminal conversation 503 penally or forfeiture 503 sheriff or coroner, actions against ■ 503 escape, actions for 503 libel and slander 503 assault and battery 503 false imprisonment 503 penalty to the slate 503 mutual account 503 last item pLoved 503 Limitation of actions, Nevada.. 503 recovery of I.mds 504 judgment or decree of U. S. courts 504 810 LAW ENCYCLOPEDIA. Page. Limitation of actions, Nevada — Continued. contract or obligation in writ- ing 504 instiument in writing 504 statute liability , 504 penalty or forfeiture 504 injury to goods 504 personal property, recovery of 504 fraud, relief on ground of . . . . contract not in writing 504 Lis pendens 504 Loan 505 for use 505 for consumption 505 Lodger 505 removing furniture. See Chimes and Pbnishments. Lunatic, counseling to commit crime. See Chimes and PuN- ISHMENTS. m: Magistrates 506 who are 506 warrant, who may issue 506 complaint under oath 506 defeudiint to be taken before magistrate 506 offense committed in prasence of magistrate 506 arrest, how made 507 bail on arrest 507 proceedings on arrest 507 time allowed defendant 508 examination of case 508 adjournment of case 508 bail on adjournment 508 commitment for examination. deposition to be read 508 examination in defendant's presence 509 statement by defendant 509. waiver of right to make state - ment 509 statement made, proceedings when 510 answers of defendant to be read to him 510 statement to be reduced to writing 510 exclusion of witnesses 510 spectators may be excluded. .511 discharge of defendant 511 commitment of defendant 511 bail, admission to 511 proceedings on commitment. 512 recognizance ot witness 512 infants 512 Page. Magistrates — Continued. married women 512 commitment of witness examination of witness when unable to give bail 513 prosecutor or accomplice 513 deposition, return of 513 security to keep the peace 514 Sundays and non-judicial days 514 magistrate may act on 514 Forms — complaint to obtain surety of the peace 514 grand larceny 516 assault and battery 518 unlawfully fighting 518 violating Sunday law. . . .519 general form 519 carrying concealed weap- ons 519 warrant, peace 515 general 520 bench 520 search and return 520 commitment, peace complaint on 515 order of discharge on giving peace bond 515 bond, peace 516 justification to bond certificate to be indorsed on warrant 517 affidavit in place of certificate.517 indorsement on a warrant — 517 order of discharge 517 holding to answer 517 commitment, statutory form. 518 recognizance 521 bond on appeal, and 521 Maintenance 522 criminal law, in 522 Malpractice 522 willful 522 negligent 523 ignorance 523 remedyfor 523 Malicious prosecution 523 Malice, express. See Ceimes and i?DNISHMENTS. Mandamus 523 mandate, writ of 523 when issued 524 substance of writ 524 application for writ 524 notice of application ; . .524 answer '. 524 jury trial 524 damages, assessment of 525 avoidance and answer 52S INDEX. 811 Page. Mandamus — Confirmed. new trial 525 motion for 525 questions of law 525 costs, damages, etc 525 execution may issue 525 service of writ 525 disobedience of writ 525 penalty for disobedience 525 misdemeanor .525 Forms — alternative 525 peremptory 526 Manifest 526 Manslaughter. See Cbimes aiid Punishments. Marital 526 Mark ,.526 Marriage, California 527 what constitutes 527 minors capable of 527 how proved 527 certain, voidable 527 incompetency of parties 527 whites and negroes 527 certain, void 527 release from 528 foreign 228 solemnization of 528 license for 528 by whom solemnized 5C9 no form required 529 requisites of 529 certificate of 529 to be recorded 529 declaration of 529 to contain, what 530 to be recorded 530 action to test validity 530 Marriage, Idaho and Nevada 530 age of consort 530 Marriiige, Ongon 530 civil contract 530 who may marry 530 who may solemnize 531 when uuder age 53 1 no form required 531 certificate of 531 recording of 53-. penalty for 53J not invalid 532 illegitimate children 532 Friend or Quaker 53.! dower 5j2 common law, right of dower. 532 widow entitled to dower 53J right may be barred 533 woman out of state 533 dower in certain oases 533 certificate to be filed 533 Page. Marriage, Oregon — Continued. will, by unmarried woman . _. .534 marriage of executrix 534 Forms — certificate of marriage 534 marriage service 535 marriage settlement 535 to 538 Marks and brands. See Chimes AND Punishments. Marrying husband or wife of an- other. See Cbimes and Punishments. Mayhem. See Ceimes and Pun- ishments. Measure of damages 539 See Bills and Notes. what is 539 protest of bills and notes 539 rule in Alabama 539 Arkansas 540 California t 540 Connecticut 540 Delaware 540 Florida 540 Georgia 540 Idaho 541 Illinois 511 Indiana 541 Iowa 541 Missouri 544 Kentucky 541 Louisiana 542 Maine 542 Maryland 542 Massachusetts 542 Michigan 543 Minnesota 543 Mississippi 544 Nevada 514 New York 514 North Carolina 545 Ohio 515 Oregon 545 Pennsylvania 545 Khode IslanJ 546 South Carolina 516 Tennessee 516 Texas 516 Virginia 516 Wisconsin 547 Measures, false. See Cbimes and Punishments. Menace 547 Merger 547 of crimes 547 Merits 548 Middle-man 518 Mining and mi aing laws 518 general principles 518 Mining laws of U. S 549 to 562 812 LAW ENCTCLOPEDU. Page. Mining laws of U. S. — Continued. Forms — notice of loi'ation 562 request for survey 563 application tor patent 564 proof of posting notice 5G4 proof that notice remain posted during time of pub- lication 566 register's certificate of post- ing notice for sixty days. 566 agreement of publisher 5G6 proof of publication 567 affidavit of five hundred dol- lars imiirovements 567 statement and charge of fees . 567 proof of ownership 568 affidavit of citizenship 568 certiticate that no suit is pend- ing 569 power of attorney 569 protest and adverse claim .... 569 non-mineral affidavit 572 proof that no known veins fx- ist iu a placer mining claim 573 Mining laws of California 573 mining partnirship 573 express agreement not neces- sary 578 profits and losses 574 lieu of partners 574 mine, partnership property. .574 partnership not dissolved 574 subject to liens, etc 574 purchaser has notice of lien. 574 contracts of 574 majority govern 575 Mining interests of deceased per- sons, California 575 mines may bo sold, how 575 petition for sale 575 order to show cost 575 of sale 576 confirmation of 576 Mining, evidence 57G usage of miners 576 water for raining 576 Mining laws, Oregon 577 location of claim 577 how established 577 plurality of claims 577 working cl lims 577 duty of county clerk 577 rights of raiuers 578 ditches ami flumes 578 sale of mining claim 578 mortgages of 578 "no chinamea need apply" . .578 Mining l,iws of Nevada 578, 588 Mining laws of Idaho 288, 593 Page. Mining laws of Idaho — Continued. Forms — notice of mining claim ...... 593 renewal of notice 593 bond to perform mining con- tract 594 See Bonds and Agbeemknts. mortgage of mining claim. See MoBTGAGKS. notice of intention to levy as- sessment, act of 1864 594 notice of assessment due 594 mining laws 595 rules and regulations 596 notice of location, Oregon 598 Minors 598 age of majority 598 males 598 females ... ^ 598 disability of minor 598 void contracts 598 voidable contracts 598 necessaries, contract for 599 Misadventure, killing by. See Ceimes and Punishments. Mischief, malicioas. See Chimes AND Punishments. Misdemeanor. See Ceimes and Punishments. Mistake S99 Monuments, , removing. See Cbimes and Punishments. Mortgage, what is 600 who may execute 600 form of 600 incident to debt 600 transfer of note, effect of extension of time 600 estate of deceased person 600 homestead, mortgage on 600 possession by mortgagee 601 right of possession . . . . , 601 recording of mortgage 601 Mortgages, chattel, California and Idaho 601 Mortgage of personal property, California 602 what may be 602 farm of 601 void, when 602 of ships 603 recorded, where 603 property in transit 603 of common carrier 603 recorded in different places . . 603 personal mortgage recorded. ^603 copies recorded 603 property exempt from 604 mortgagee may take 604 foreclose, how 604 INDEX. 813 Page. Mortgage of personal property, Calif ornin — Conllnued. mtiy be attached 604 levy ou 604 disposition of proceeds 604 not iipplionble, when 605 Mortgage of personal property ... 605 foreclosure of 60G surplus money 606 diff.-rnit debts due 6U7 not a convej'ance 607 Mortgages, Oregon 607 deposit with clerk 607 invalid, when 607 of re:il property 608 recoi ding of 608 release of 608 dower of widow 608 after sale 608 Ffrms— chattel mortgage . ._ 608 on mining claim _. . .610 with bond "...611 on note 612 ■with conditions 612 satisfaction of 614 indemnity, by way of 015 releabe of part 616 taxes, agreement to pay 617 extension of time 618 assignment of lease, for 618 Mutiny 621 Nataralization • 622 who may be naturalized 623 declaration of intention 623 to what courts to apply 623 at what time admitted 623 minors, when admitted. . 623 widow and children admitted, when ; 624 Forms — decbration of intention .. . .624 oath of alien 624 certificate of citizenship 625 affidavit of, under eighteen at time of arrival 625 entry of order admitting 625 Necessaries ' ' ' ' cop for infants 6^^ for a wife : ■ ■ v :-^i^ neglect of husband to furnish.626 ■Necessity, unavoidable. See Cjsimes and Punishments. egligence ,' ' " i',' ' ' po? use of property, rule of law.62G not to injure or destroy neigh- bor's 6Z6 precautions °^° Pago. Negligence — Continued. carelessness '.627 negligence 627 duty of tenant 627 degiee of care 627 public street, houses froniing ou repair of house 627 notice of intention to pull down 627 ancient house 627 negligently keeping hay-rick. . 028 Negotiable 628 New for old 628 New trial 628 when granted 628 New promise 628 Next of kin 629 Nolle prosequi 630 Nominal damages 030 Nonsuit ! .' 630 when granted 630 Notary Public 630 See also Peotest. appointment of 630 term of office 631 bond of 031 oath of office 631 seal of 631 authority of 631 acceptance of bills of ex- chance, drawer of 631 acknowledgments, may take . . C31 record to keep 631 deliver record to successor. . .632 exempt from execution, seal is.. 632 misconduct, penalty for 632 certificate, effect of 632 protest, as evidence 632 certificate of protest 633 act of congress regarding 633 powers under 633 effecti of certificate of protest. 633 Notary Public, Oregon 633 appointment of 633 oath and bond 634 powers of 634 duty of 634 records of acts 634 vacancy in office 634 county clerk's duty 634 Notary Public. Washington 635 ' appointment of 635 authority of 635 vacancy in office 635 penalty for not depositing _ records 635 seal of 635 814 LAW ENCYCLOPEDU. Page. Notary public, Washington — Ccyn^ ' txnued. Forms — bond of notary 635 justification ol bond 636 indorsement on bond 636 certificate, general form 637 protest for non-acceptance. . .637 certificate of approval of bond protest of bill or note 637 notice of protest for non-pay- ment 638 notice of protest for non-ac- ceptance 639 certificate of protest 639 marine protest 639 pre-emption of land 640 affidavit to be filed 641 certificate of register. ... 642 scliool-land warrants 642 location form to be indorsed on -narrant 643 patent for school-lauds 643 Note of protest 643 See Protest. Notice of dishonor See Pbotest. 644 Nuisance 644 See Ceimes and PtraisH- MENTS. what is a 644 public nuisances 644 private nuisance 644 offensive trade 644 tallow chandlers 644 noxious smells 644 particular trades 644 indecency 644 disorderly house 645 contagious disease 645 unburied corpse 645 long-continued nuisances, no defense 645 abatement of nuisances 645 law will abate 645 party annoyed may abate 645 damages recovered 645 water stopping 646 gate erected across way 646 ancient lights, obstructing 646 hay-stile on one's own land . . 646 care must be observed in abat- ing 646 statutory provisions 646 Nuisances, Oregon 647 statutory provisions 647 O Obligation 647 Obscene publications. See Ceimes AND Punishments. Page. Offices. See PtrBLio Officeks. Officers, killing by. See Ceimes AND Punishments. failing to pay over money. See Ceimes and Punish- ments. refusing to deliver records. See Ceimes and Punish- ments. resisting. See Ceimes anit Punishments. suffering escape. See Ceimes AND Punishments. refusing to arrest. See Ceimes AND Punishments. personation of. See Ceimes AND Punishments. neglecting to prevent duels. See Ceimes and Punish- ments. Opening letters of another. See Ceimes and Punishments. Original entry 648 how proved. 648 I» Pardons, who may grant 648 applicaiion for 648 notice to be given of intention to apply for 648 service of notice 648 publication of notice 649 duty of county clerk 649 where death is imminent 649 without notice, when 649 expenses of publication 649 fees, none to be charged M9 penalty for charging fees 649 Pardons, Nevada 649 fines, who may remit 649 who may grant 649 notice to be given of intention to apply for 650 service of notice 650 bail-bond, discharge from, not allowed 650 Pardons, Idaho 650 Pardons, Oregon 651 who may grant 651 report of judge or district at- torney required 651 notice of intention to apply for sefvice of notice G51 Form^ — notice of intention to apply for 651 acknowledgment of service of notice .652 affidavit of service of notice . 652 Partition 652 INDEX. 815 P»ge. Partnershij) 653 formation of partnerships 653 writing iiot necessary 653 agreement of partnoisUp 653 powers and duties 653 exemption 653 general liability 654 dissolution of 654 extent of liability 654 death of partner 654 Partnership, general — Califoruia. .654 power of majority 654 authority of each 654 limitation of power 655 acts iu bad faith 655 profits of individual 655 in what business partner may in what ho may engage 655 must account to firm for prof- its 656 liability to third persons 656 representing one's self as partner 656 duration of partnership 656 dissolution of 656 partial dissolution 656 partner entitled to 657 notice of termination 657 notice by change of name 657 partnership under fictitious ' name 657 foreign partnership 658 certitieate of partnership to be filed 658 certificate on change of 658 register kept 659 P«-^tnership, special 659 formation of 659 of what to consist 659 certified statement 659 affidavit as to sums contrib- uted 660 no partnership until compli- ance 660 certificate to be published 660 affidavit of publication filed .. 660 renewal of special partner- ship 660 who to do business 661 investigation of 661 may loan money 661 may sue alone 661 Forms — commercial partnership agree- ment 661 general partnership agree- ment 662 farming partnership contract. 664 Pugo. Partnership — Continued. Forms — agreement to make a partner- ship at future day 664 agreement to renew partner- ship 665 agreement of dissolution 665 agreement to make changes in a partnership 665 agreement of limited copart- nership 666 certificate of limited partner- ship 668 atfidavit of publication of cer- tificate 668 Party walls 669 between buildings 669 contribution to expense of 669 re-erecting 669 evidence of tenancy in com- mon 669 removing wall 669 repairing wall 669 damages, who answerable for . 669 resting place for new wall 669 Passing fictitious bills. See Ckimes and Punishments. Patents 670 to 686 Forms — petitions 686 petition for patent 686 assignment of patent right . . 687 right for state's 687 before obtaining patent . . 687 addition of new improve- ments 687 caveat 687 design, petition lor patent on.687 disclaimer 687 machine, specification of .... 687 power of attorney 687 specifications 687 specifications 688 specifications 689 specifications 690 oath to 690 new improvements 690 oath to specification 690 ^0 application for reissue 690 reissue, petition for 690 specification of claim 690 ■withdrawal 690 caveat 691 assignment of interest 691 assignment of interest 692 license 692 license 693 transfer of trademark 693 Payment 694 who may make 694 816 LAW ENCYCLOPEDU. Payment — CoMinued. to wliom maJe 694 when to bo made 694 efteclof 695 Persoiiiil property 695 Perjury, bee Ceimes akd Punish- ments. Personating niiother. See Chimes AND Punishments. Persons defined. See Ceimes AND Punishments. Pledge 695 pledgee and jiledgor 695 duty of pK'dgee 696 ordinary care, pledge to ob- serve 696 use of pledge 696 negligence, injury to pledge by 696 possession of pledge 696 sale of pledge, when permit- ted 696 stock, pledge of 697 foreclosure of lien C97 proceeds to be accounted for. 697 aooounlability of pledgee . . . .697 loan of stock 697 pledge aud mortgage, differ- ence between 698 Poisoning, murder by. See Chimes and Punishments. Poisoning weLs or springs. See Ceimes And Punishments. Possession 698 Posting for not fighting duel. See Ceijies and Punishments. Power of attorney 698 letters of attorney 698 special jiower 698 general power 698 real estate, affecting 698 excess of authority 698_ name of principal, must act in 699 .revocation of power 699 married womun may make. . .699 substitution of authority 699 death of principal, effect of . .699 Power of attorney, Oregon ,700 Forms — power of attorney, short form.700 to collect 700 to sell or mortgage real estate.701 commercial power to sell real estate, etc ■ 702 authority to receive legacy . . 703 stock, power of attorney 703 revocation of power 704 substitution of authority 704 custom-house power 704 Psge. Power of attorney, Oregon — Con- tinued. , Forms — proxy to vote for directors. . . 705 Pre-emption 705 who may claim 705 laud subject to private entry. 705 proof to be made, when 705 first settler protected 706 not entitled, who 707 title, Indian 707 one claim allowed 709 assignments not allowed 710 duplicate afSdavits 710 witnesses to be sworn 710 adverse claims 710 depositions received, when. . .710 notice of adverse claim 710 ' ' head of family, " proof of. . . 7 U residence 711 inhabitancy 711 statement on appeal 711 fact of settlement 712 duplicate affidavits 712 Forms — where land claimed was sub- ject to private entry 712 affidavit of claimant 712 affidavit after death of settler.713 statement where land is not subject to entry 714 Presumption 715 conclusive 715 disputable 715 Pretenses, false. See Ceimes and Punishments. Prima facie 715 Protest 716 demand and presentment 716 reasonable hours 716 hours of business 716 place of business 716 notice of non-payment 716 presentment 716 notarial certificate 717 mail, notice by 717 form of certificate 717 post-office, sent to 717 protest, form of 717 demand, when made 718 non-residents 718 waiver of protest 718 indorsers, notice to 718 authority of notary 718 Provisions, selling unwholesome. See Ceimes and Punish- ments. Publication 719 Public officers 719 election of officers 719 INDEX. 817 Page. Public officers — Continued. legislature, election by 719 oath of office 719 who may administer oath 719 state librcfy 720 bouds, form of 720 sureties on bonds 720 approval of bonds 720 penalty for performing duty of office without bond 720 construction of boud 720 defects of bond not assailable. 721 discharge of sureties 721 officers not to deal in certain securities 721 extortion in office 721 Forms — oath of office 721 official bond 722 commission 722 certificate of election 723 affidavit of sureties to bond 723 petition for release from bond 723 affidavit of service of petition.724 Q Quash 724 Quitclaim .*. . .724 -R Kape. See Ceimes and Punish- ments. Eatification 724 express 724 implied, 724 Keceipt 725 effect of 725 part payment, effect of 725 Forms — receipt of less in full payment of greater sum 72G in full of all demands 72G on account 720 for money paid for another.. .720 for special purpose 720 when money is paid by a third person 726 of interest to be indorsed on a bond 726 Eeceiving stolen goods. See CniMES AND PUNISHMENT.S. Kecording 720 what instruments must be re- corded 727 effect of 727 prerequisite to 727 ■when valid if not recorded. . .727 Bedemption 727 when to be redeemed 728 who may redeem 728 Paga. Redemption — Continued. time to redeem. 728 amount to pay on 729 proof to be made 729 rents and profits 729 Kehearing 729 when granted 730 Release 730 execution of 730 under seal 730 from all demands 730 release of .one;- effect of , 730 joint obligors, release of one, effect of 730 agreement not to sue 730 Farms — release of all demands 730 special 730 following award 731 general, by indenture 731 to guardian 731 of a condition 732 of a legacy 732 of a trust 732 from a legatee 733 of land by judgment creditor. 733 Repairs 734 Replevin 734 practice in 734 Request 735 Residence , 735 lodging or boarding 735 domicil 735 home, fixed and permanent . .735 intention of person .governs. .735 loss of residence 735 domicil o f wife 735 domicil of husband 735 inhabitancy 735 Rescuing prisoner. See Ceimes AND PaNISHMENTS. Resisting officers. See Cbimes AND P[JNISnMEN*S. Respondentia 730 Rightof way 730 pablioright 730 grant or prescription 736 foot path 736 repairs of roadway 736 adverse possession 730 necessity, right by 737 easement 737 hif;'away 737 temporary right 737 loss of right 738 abandonment of -738 Riots. See Ceimes and Punish- ments. Robbery. See Crimes and Pun- ISHMENIS. 818 LAW ENCYCLOPEDIA.. Eouts. Page. See Ceimes and Ptjotsh- MENTS. Kunning water , 738 watering cattle 738 natural stream 738 materially ditninisMng of . . . 738 several owners of 738 mill-seats 738 reasonable use of water 738 anoientjnill 739 exclusive use 733 prescription 739 abandonment of mill pciTilege.739 priority of occupancy 739 change in mode of use 739 miner's rights 739 common-law rules 739 custom of miners 739 head of stream, appropriation of 739 first locator 740 damages for obstructing use of. 740 mining purposes 740 ditches 740 intention to appropriate 740 Sale of business 740 contract not to engage in the same' 740 consideration of contract 741 limits of agreement 741 proof of damages 741 stipulated damages 741 injunctions in aid of 741 Form — contract not to engage in the same business 741 Sale of goods 742 what is a sale 742 credit, effect of 742 delivery of goods 742 of horse 742 transfei of property 742 lien of vendor 742 loss, who must bear 743 credit sale. . . ', 743 by sample 743 bill of parcels 743 of goods to be manufactured. 744 acceptance by jpnrchaser 744 risk of purchaser 744 duty of seller , 744 exchange of goods 744 Sample ; 744 Seal of state, forgery of. See Ceimes and Punishments. Search warrant 745 definition of 745 Page. Search warrant — Continued. when to issue 745 probable cause ^■''^f complainant on oath 748 facts to be stated showing; cause '^^^ r issuance of warrants 7*5 '■ Form — \ ' See MaoisIbate. . \ Self-defeuse 746 , Selling land twice. See Ceimes AND Punishments. Separation 746 mutual agreement 746 deed of 746 reconciliation ". 747 Set-off 747 assignment not to prejudice. .747 Sheriff 747 election of 747 duty of -747 keeper of jail 748 under-sheriff 748 office, where to keep 748 to attend court 748 justification of acts 748 directions to 748 vacancy in office 749 former 749 re-election of 749 Sheriff, Oregon. See Conun Clekk. Forms- return on garnishments 749 bail bond 750 indemnity bond 750 certificate of sale of real es- tate .'. 751 deed on sale under ■.execution . 752 of mortgaged pfoj|#rty. . .752 forbalancedue. . ;". 755 Signature 756 Sole trader 757 who may become. .. 757 notice of application for. . . .757 petition, contents of 757 husband's property 757 opposition to becoming. . 758 hearing of opposition , 758 judgment, how entered : .758 affidavit to be made 758 record of judgment 759 support of children 759 liabilities of husband 759 Sound mind. See Ceimes and Punishments. Stolen goods, buying. See Ckimes AND Punishments. Stoppage in transitu 759 goods, when may be stopped. 759