(JnruFU ICam ^rl^nol Slibrarij Cornell University Library KFC 68.B43 3 1924 024 636 056 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024636056 BANCROFT'S CALIFORNIA LAWYER AND • BOOK OF FORMS; CONTAINING INSTRUCTIONS FOR ORDINARY TRANSACTIONS IN MATTERS OF % DBBDS, MORTGAGES, ACKNOWLEDGMENTS, LEASES, ASSIGNMENTS, INSOLVENTo, ATTACHMENTS, BILLS' OE EXCHANGE, PROMISSORY NOTES, BILLS OF SALE, EXECUTORS AND ADMIMSTRATOR& HUSbInD AND "WIFE, MARRIAGE AND DIVORCE, HOMESTEADS, GUARDIANS, APPRENTICES, BONDS, CHATTEL MORTGAGES, ARBITRATION, NATURIlIZATION, PRE-EMPTION, AUC- TIONEERS, CLERKS, NOTARIES, SHERIFFS, CORONERS, SCHOOLS, TAXES, LICENSES, PUBLIC OFFICERS, CONTRACTS, CORPORA- TIONS, JURORS, FOREIGNERS, INSANE PERSONS, ESTRATS, WILLS, POWERS OF ATTORNEY, PARTNERSHIP, LANDLORD AND TENANT, MECHANICS' LIENS, JUSTICES' COURTS, MAGISTRATES, MINES, MINING AND WATER RIGHTS, ETC., ETC., ETC. WITH NUMEROUS PRECEDENTS AND FORMS; DESIGNED FOR THE USE OF BUSINESS AND PROFESSIONAL MEN, COUNTY AND TOWN OFFICERS, MINERS, MECHANICS AND FARMERS, AND ADAPTED, TJNDEE THE EETIBBD LAWS AND THE LATEST JUDICIAL DBOISIONB, TO CALIFORNIA, OREGOlSr AND WASHINGTON TERRITORY. SAN FEANCISCO: H. H. BANCROFT & COMPANY, 1860. A#i- Entered according to Act of Congress, in the year of our Lord eighteen hundred and fifty-nine, by H. H. BANCROFT & COMPANY, In the Clerk's Office of the District Court of the Northern District of the Stale of California. INTRODUCTION. In view of the necessity of a book of forms for use in Cali- fornia, adapted to the peculiar features of our laws, and at the request of the publishers, the following work has been prepared, intended to serve for all the purposes usual in law and in works of this character. The plan adopted embraces a wide range of subjects, each division- containing not only a series of forms but also appro- priate selections from the statutes, and the adjudications of the Supreme Court — in some instances separately arranged, in others connected and woven together — it being their design not only to furnish the necessary matters of law requisite in the preparation of forms, but also to present an outline of our legal system, so far as useful to citizens generally in their various business pur- suits. While, however, the object has been more particularly to prepare a compilation in popular form for the aid of laymen, it has also been arranged with reference to its use by convey- ancers and the legal profession. * The difficulty of combining satisfactorily these two objects, furnishes all the apology I might feel called upon to offer for the apparent want of uniformity in 12 ■ LNTBODUCTION. the selection and arrangement of some portions of the matter introduced. To extend the usefulness of the -work, and adapt it generally to the Pacific coast, the laws of Oregon and Washington Terri- tories are noted under the respective heads, so far as practicable, showing their resemblances and differences, as compared with our system. The subject of mining rights, in view of its peculiar impor- tance in this state, has been presented in a full and complete treatise ; for which I am indebted to J. F. Bowman, Esq. The excellent index to the constitution of this state was taken by permission of Dr. Wood from his compilation of the statutes, and the statutory references noted at the foot of each page as they occur, are made to the articled enumeration in Wood's Digest, as the most simple and uniform method. D. P. BELKNAP. Sait Francisco, 27th October, 1859. CONTENTS. CHAPTER I. PAGE The Constitution of California and Decisions of the Supreme Court upon Consti- tutional Construction , If CHAPTER 11. Acknowledgment and Proof of Instruments to be recorded, and of Satisfaction and Discharge of Judgments and other Liens 61 CHAPTER IIL Apprentices, Clerks and Servants f CHAPTER IV. Arbitration 88 CHAPTER T. Assignment 101 CHAPTER VI. Attachmept and Arrest 114 CHAPTER VII. Auctioneers r ^^4 CHAPTER VIII. Bill of Sale 129 CHAPTER IX. Bonds 131 CHAPTER X. BaiB of Exchange and Promissory Notes 140 14 CONTENTS. CHAPTER XI. ^^^^ Chattel Mortgage 1^^ CHAPTER Xn. Clerk le' CHAPTER Xin. Contracts and Agreements ^"^ CHAPTER XIT. Coroner. 230 CHAPTER XV. Corporations 237 CHAPTER XVI. Deeds 298 CHAPTER XVIL Estrays, lawful Fences, and Animals trespassing upon Property 314 CHAPTER XVIII. Executors and Administrators i 332 CHAPTER XIX. Foreigners 311 CHAPTER XX. Homestead 384 CHAPTER XXI. Husband and Wife 395 CHAPTER XXIL Insane, Indigent, Sick, Poor and Vagrants 428 CHAPTER XXni. Insolvency 436 CHAPTER XXIV. Jurors 452 CONTENTS. 15 CHAPTER XXV. 7A3E Justices' Courts 465 CHAPTEE XXVI. Landlord and Tenant 511 CHAPTER XXVII. lien of Mechanics and others 531 CHAPTER XXVni. Magistrate 643 CHAPTER XXIX. Mines, Mining, and Water Rights 558 CHAPTER XXX Mortgage 596 CHAPTER XXXI. Notary 615 CHAPTER XXXn. Partnership 641 CHAPTER XXXIII. Power of Attorney 662 CHAPTER XXXIV. Public Officers. 669 CHAPTER XXXV. Schools 619 CHAPTER XXXVI. Sheriff. 695 CHAPTER XXXVn. Taxes 708 CHAPTER XXXVIH "Wills 738 THE CALIFORNIA LAWYER AND FORM BOOK. CHAPTEE I. THE CONSTITimON OF CALIFOENIA, WITH DECISIONS OF THE SUPREME vOOUET UPON CONSTITUTIONAL OONSTEUCTION. CONSTITUTION OF CALIFORNIA. Adopted by the Convestion', Ootobee lO, 1849 ; Ratified by the People, NovBMBEB 13, 1849; Peoolaimed, Deobmbeb 20, 1849. "We, the people of California, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution. ARTICLE I. DBCLARATION OF RIGHTS. Section 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoy- ing and defending life and liberty; acquiring, possessing, and protecting property; and pursuing and obtaining safety and hapoiness. Sec. 2. All political power is inherent in the people. Gov- ernment is instituted for the protection, security, and benefit of the people ; and they have the right to alter or reform the %ame whenever the public good may require it. Sec. 3. The right of trial by jury shall be secured to all, and 18 Bancroft's califoenia lawyer. remaiJi inviolate forever ; but a jury trial may be waived by the parties, in all civil cases, in the manner to be prescribed by law.' Sec. 4. The free exercise and enjoyment of religious profes- sion and worship, without discrimination or preference, shall for- ever be allowed in this state ; and no person shall be rendered incompetent to be a witness on account of his opinions on mat- ters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentious- ness, or justify practices inconsistent with the peace or safety of this state. Seo. 5. The privilege of the writ oi habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension. Sec. 6. Excessive bail shall not be re^quired, nor excessive fines imposed, nor shall cruel or unusual punishments be in- flicted, nor shall witnesses be unreasonably detained. Sec. 7. All persons shall be bailable by sufficient sureties ; unless for capital offences, when the- proof is evident or the pre- sumption great. Sec. 8. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this state may keep, with the consent of Congress, in time of peace, and in cases of petit lar- ceny imder the regulation of the legislature), unless on present- ment or indictment of a grand jury ; and in any trial in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offence ;" nor shall he be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation.' Sec. 9. Every citizen may freely speak, write, and publish » The legislature cannot delegate the power of watving jury trial to the courts. Exline b. Smith, 5 Oal. 112. 2 Where defendant was convicted of manslaughter under an indictment for murder, and verdict set aside, he may be again tried under the same indictment. People «. Qilmoro, 4 Cal. 876 ; People T. March, Oct. 1, lb66. 3 The compensation must bo made before the citizen can be divestod; of his rights. San Frau- oisco V. Boott, 4 Cal. 114 ; McCann «. Sierra county, Jan. T., 1S57. CONSTITUTION OF CALIFOENIA. 19 liis sentiments on all subjects, being responsible for the abuse of that right ; and no law shall be passed to restrain or abridge tlie liberty of speech or of the press. In all criminal prosecutions on indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to deternjine the law and the fact. Sec. 10. The people shall have the right freely to assemble together to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances. Sec. 11. All laws of a general nature shall have a uniform operation.' Sec. 12. The military shall be subordinate to the civil power. No standing army shall be kept up by this state in time of peace ; and in time of war no appropriation for a standing army shall be for a longer time than two years. Sec. 13. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner ; nor in time of war, except in the manner to be prescribed by law. Sec. 14. Eepresentation shall be apportioned according to population. Sec. 15. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud ; and no person shall be imprisoned for a militia fine in time of peace. Sec. 16. No bill of attainder, ex post facto law, or law im- pairing the obligation of contracts, shall ever be passed. Sec 17. Foreigners who are, or who may hereafter become, lonafide residents of this state, shall enjoy the same rights, in respect to the possession, enjoyment, and inheritance of prop- erty, as native-born citizens.' Sec. 18. Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this state. Sec. 19. The right of the people to be secure in their per- 1 Should as near as possiMe, affect persons and property alike. People ■s. Colenoan, 4 Cal. 46. a The foreign minors law is not repugnant to this section. People u Naglee, 1 Oal. 232. A non- resident alien cannot maintain ejectment. Sieinssen v. Bofer, July T. 1856. 20 Bancroft's California lawyer. sons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated ; and no warrant shall issue but on probable cause, supported by oath or affirmation, partic- ularly describing the place to be searched and the persons and things to be seized. Sec. 20'. Treason against the state shall consist only in levy- ing war against it, adhering to its enemies, or giving them aid and comfort. No person shall be convicted of treason, unless on the evidence of two witnesses to the same overt act, or con- fession in open court. Sec. 21. This enumeration of rights shall not be construed to impair or deny others retained by the people. ARTICLE II. RIGHT OF SUFFRAGE. Section 1. Every white male citizen of the United States, and every white male citizen of Mexico, who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro, on the 30th day of May, 184:8, of the age of twenty-one years, who shall have been a resident of the state six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law ; provided, that nothing herein con- tained shall be construed to prevent the legislature by a two-thirds concurrent vote, from admitting to the right of suffrage Indians, or the descendants of Indians, in such special cases as such a pro- portion of the legislative body may deem just and proper. Sec. 2. Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest on the days of election, during their attendance at such election, going to and returning therefrom. Sec. 3. ISTo elector shall be obliged to perform militia duty on the day of election, except in time of war or public danger. Sec. 4z. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor CONSTITUTION OF CALIFOENIA. 21 while engaged in the navigation of the waters of this state or of the United States, or of the high seas ; nor while a student of any seminary of learning ; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison. Sec. 6. No idiot or insane person, or person convicted of any infamous crime, shall be entitled to the privileges of an elector. Sec. 6. All elections by the people shall be by ballot. AETIOLE III. DISTEIBUTION OF POWERS. Section 1. The powers of the government of the state of California shall be divided into three separate departments : the legislative, the executive, and judicial ; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise , any functions appertaining to either of the others, except in the cases hereinafter expressly directed or permitted. ARTICLE IV. LEGISLATIVE DEPAETMBNT. SECTioif 1. The legislative power of this state shall be vested in a senate and assembly, which shall be designated the legislature of the state of California, and the enacting clause of every law shall be as follows : " The people of the state of California, repre- sented in senate and assembly, do enact as follows :" Sec. 2. The sessions of the legislature shall be annual, and shall commence on the first Monday of January next ensuing the election of its members, unless the governor of the state shall, in the interim, convene the legislature by proclamation. Sec. 3. The members of the assembly shall be chosen annu- ally by the qualified electors of their respective districts, on the Tuesday next after the first Monday in November, unless other- wise ordered by the legislature, and their term of office shall bo one year. Sec. 4. Senators and members of assembly shall be duly 22 Bancroft's califoenia lawyee. qualified electors in the respective counties and districts whicli they represent. Sec. 6. Senators shall be chosen for the term of two years, at the same time and places as members of assembly, and no person shall be a member of the senate or assembly who has not been a citizen and inhabitant of the state for one year, and of the county or district for which he shall be chosen six months next before his election. Sec. 6. The number of senators shall not be less than one- third, nor more than one-half of that of the members of assembly ; and at the first session of the legislature after this constitution takes effect the senators shall be divided by lot, as equally as may be, into two classes : the seats of the senators of the first class shall be vacated at the expiration of the fiirst year, so that one-half shall be chosen annually. Sec. 7. When the number of senators is increased, they shall be apportioned by lot, so as to keep the two classes as nearly equal in number as possible. Sec. 8. Each house shall choose its own ofiicers, and judge of the qualifications, elections, and returns of its own members. Sec. 9. A majority of each house shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may compel the attendance of absent members, in such manner, and under such penalties as each house may provide. Sec. 10. Each house shall determine the rules of its own pro- ceedings, and may, with the concurrence of two-thirds of all the members elected, expel a member. Sec. 11. Each house shall keep a journal of its own proceed- ings, and publish the same ; and the yeas and nays of the mem- bers of either house on any question shall, at the desire of any three members present, be entered on the journal. Sec. 12. Members of the legislature shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest, and shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session. Skc. 13. When vacancies occur in either house, the governor, or the person exercising the functions of the governor, shall issue writs of election to fill such vacancies. CONSTITUTION OF CALIFORNIA. 23 Sec. 14. The doors of each house shall be open, except on such occasions as, in the opinion of the house, may j-equire secrecy. Sec. 15. Neither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting. Seo. 16. Any bill-may originate in either house of the legis- , lature, and all bills passed by one house may be amended in the other. Sec. it. Every bill which may have passed the legislature shall, before it becomes a law, be presented to the governor. If he approve it he shall sign it, but if not, he shall return it, with his objections, to the house in which it originated, which shall enter the same upon the journal, and proceed to reconsider it. If, after such reconsideration, it again pass both houses, by yeas and nays, by a majority of two-thirds of the merabei's of each house present, it shall become a law, notwithstanding the gov- ernor's objections. If any bill shall not be returned within ten days after it shall have been presented to him (Sundays ex- cepted), the same shall be a law, in like manner as if he had signed it, unless the legislature, by adjournment, prevent such return.' Sec. 18. The assembly shall have the sole power of impeach- ment, and all impeachments shall be tried by the senate. When sitting for that purpose, the senators shall be upon oath or affir- mation ; and no person shall be convicted without the concur- rence of two-thirds of the members present. Sec. 19. The governor, lieUtenaat-governor, secretary of state, controller, treasurer, attorney-general, surveyor-general, justices of the supreme court and judges of the district courts, shall be liable to impeachment for any misdemeanor in office ; but jiidgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit under the state; but the party convicted or acquitted shall, nevertheless, be liable to indictment, trial, and punish- ment, according to law. All other civil officers shall be tried. * The term " Sundays excepted" applies only to the last day of the ten which the executive has for consideration of a bill. People ex rel. Hepburn v. Whitman, Oct. T. ISBO. 24 Bancroft's California lawyer. for misdemeanors in office, in such, a manner as the legislature may provide. Sec. 20. No senator or member of assembly shall, during the term for which he shall have been elected, be appointed to any civil office of profit, under this state, which shall have been created, or the emoluments of which shall have been increased during such term, except such offices as may be filled by elec- tions by the people. Sec. 21. No person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this state ; provided, that officers in the militia, to which there is attached no annual salary, or local officers and postmasters, whose compensation does not exceed five hundred dollars per annum, shall not be deemed lucrative. Sec. 22. No person who shall be convicted of the embezzle- ment or defalcation of the public funds of this state shall ever be eligible to any office of honor, trust or profit, under this state ; and the legislature shall, as soon as practicable, pass a law pro- viding for the punishment of such embezzlement or defalcation as a felony. Sec. 23. No money shall be drawn from the treasury but in consequence of appropriations made by law. An accurate state- ment of the receipts and expenditures of the public moneys shall be attached to, and published with, the laws at every regular session of the legislature. Sec. 34. The members of the legislature shaU receive for their services a compensation to be fixed by law, and paid out of the public treasury ; but no increase of the compensation shall take effect during the term for which the membere of either house shall have been elected. Sec. 25. Every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title ; and no law shall be revised or amended by reference to its title ; but in such case the act revised, or section amended, shall be re-enacted and published at length.' Seo. 26. No divorce shall be granted by the legislature. ' A law is constitutional, in view of this section, where the subjects embraced in the statute, nntl not expressed in the title, have congruity or proper connection. Dewitt ^?.- San -Francisco, 2 Cnl. 9S9. This section is merely iircctory. Washington v. Page, 4 Cal. 8S8. . CONSTITUTION OF CALIFOBNIA. 25 Sec. 27. No lottery shall be authorized by this state, nor shall the sale of lottery tickets be allowed. Sec. 28. The enumeration of the inhabitants of this state shall be taken, under the direction of the legislature, in the year one thousand eight hundred and fifty-two, and one thousand eight hundred and fifty-five, and at the end of every ten years there- after ; and these enumerations, together with the census that may be taken, under the direction of the congress of the United States, in the year one thousand eight hundred and fifty, and every sub- sequent ten years, shall serve as the basis of representation in both houses of the legislature. Sec. 29. The number of senators and members of assembly shall, at the . first session of the legislature hold en after the enumerations herein provided for are made, be fixed by the legis- lature, and apportioned among the several counties and districts to be established by law, according to the number of white in- habitants. The number of members of assembly shall not be less than twenty-four, nor more than thirty-six, until tlie number of inhabitants within this state shall amount to one hundred thou- sand ; and, after that period, at such ratio that the whole number of members of assembly shall never be less than thirty, nor more than eighty. Sec. 30. "When a congressional, senatorial or assembly dis- trict, shall be composed of two or more counties, it shall not be separated by any county belonging to another district ; and no county shall be divided in forming a congressional, senatorial or assembly district. Sec. 31. Corporations may be formed under general laws, but shall not be created by special act, except for municipal pur- poses.' All general laws and special acts passed pursuant to this section may be altered from time to time, or repealed. Sec. 32. Dues from corporations shall be secured by such in- dividual liability of the corporators, and other means, as may be prescribed by l^''^^- Sec. 33. The term corporations, as used in this article, shall be construed to include all associations and joint-stock compa- i Tho term "municipal'* is limited to governmental, and cannot be extended, to commercial purposes. Lowe «. MarysTillc, 5 Cal. 214. 26 Bancroft's oalifoenia lawyer. nies having any of the powers or privileges of corporations not possessed by individuals or partnerships. And all corporations shall have the right to sue, and shall be subject to be sued, in all courts, in like cases as natural persons. Sec. 34. The legislature shall have no power to pass any act granting any charter for banking purposes ; but associations may be formed, under general laws, for the deposit of gold and silver ; but no such association shall make, issue or put in circulation, any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money. Sec. 35. The legislature of this state shall prohibit by law any person or persons, association, company or corporation, from exercising the privileges of banMng, or creating paper to circu- late as money. Sec. 36. Each stockholder of a corporation or joint-stock association shall be individually and personally liable for his proportion of all its debts and liabilities. Sec. 37. It shall be the duty of the legislature to provide for tlie organization of cities and incorporated villages, and to re- strict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such muni- cipal corporations. Sec. 38. In all elections by the legislatui'e the members thereof shall vote vwa voce, and the votes shall be entered on the journal. ARTICLE V. EXECUTIVE DEPARTMENT. Section 1. The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled the governor of the state of California. Sec. 2. The governor shall be elected by the qualified electors, at the time and places of voting for members of assem- bly, and shall hold his office two years from the time of his installation, and until his successor shall be qualified. Sec. 3. No person shall be eligible to the office of governor (except at the first election) who has not been a citizen of the CONSTITUTION OF CALIPOENIA. 27 United States and a resident of this state two years next pre- ceding the election, and attained the age of twenty-five years, at the time of said election. Sec. 4. The returns of every election for governor shall be sealed up and transmitted to the seat of government, directed to the speaker of the assembly, who shall, during the first week of the session, open and publish them in presence of both houses of the legislature. The person having the highest number of votes shall be governor ; but, in case any two or more have an equal and the highest number of votes, the legislature shall, by joint vote of both houses, choose one of said persons so having an equal and the highest number of votes for governor. Sec. 6. The governor shall be commander-in-chief of the militia, the army and navy of this state. Sec. 6. He shall transact all executive business with the officers of government, civil and military, and may require infor- mation in writing from the officers of the executive department, upon any subject relating to the duties of their respective offices. Sec. 7. He shall see that the laws are faithfully executed. Sec. 8. "When any office shall, from any cause, become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the legislature, or at the next election by the people. Sec. 9. He may, on extraordinary occasions, convene tlie legislature by proclamation, and shall state to both houses, when assembled, the purpose for which they shall have been convened. Sec. 10. He shall communicate by message to the legislature, at every session, the condition of the state, and recommend such matters as he shall deem expedient. Sec. 11. In case of a disagreement between the two houses with respect to the time of adjournment, the governor shall have power to adjourn the legislature to such time as he may think proper ; frovided, it be not beyond the time fixed for the meet- ing of the next legislature. Sec. 12. No person shall, while holding any office under the United States or this state, exercise the office of governor, except as hereinafter expressly provided. 28 Bancroft's California lawyer. Sec. 13. The governor shall have the power to grant reprieves and pardons after conviction, for all offences except treason and cases of impeachment, upon such conditions and with such re- strictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, he shall have the power to suspend the execution of the sentence until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. He shall communicate to the legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the pardon or reprieve. Sec. 14. There shall be a seal of this state, which shall be kept by the governor, and used by him officially, and shall be called " the great seal of the state of California." Sec. 15. All grants and commissions shall be in the name and by the authority of the people of the state of California, sealed with the great seal of the state, signed by the governor, and countersigned by the secretary of state. Sec. 16. A lieutenant-governor shall be elected at the same time and places, and in the same manner as the governor ; and his term of office, and his qualiiications of eligibility, shall also be the same. He shall be president of the senate, but shall only have a casting vote therein. If, during a vacancy of the office of governor, the lieutenant-governor shall be impeached, dis- placed, resign, die, or become incapable of performing the duties of his office, or be absent from the state, the president of tlic senate shall act as governor, until the vacancy be filled, or the disability shall cease. Sec. 17. In case of the impeachment of the governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant-governor for the residue of the term, or until the dis- ability shall cease. But when the governor shall, with the consent of the legislature, be out of the state in time of war, at CONSTITUTIOIT OF CALIFORNIA. 29 the head of any military force thereof, he shall continue com- mander-in-chief of all the military force of the state. Sec. 18. A secretary of state, a controller, a treasurer, an attorney-general, and surveyor-general, shall be chosen in the manner provided in this constitution ; and the term of office, and " eligibility of each, shall be the same as are prescribed for the governor and lieutenant-governor. Seo. 19. The secretary of state shall be appointed by the governor, by and with the advice and consent of the senate. He shall keep a fair record of the official acts of the legislative and executive departments of the govei-nment, and shall, when required, lay the same, and all matters relative thereto, before either branch of the legislature ; and shall perform such other duties as shall be assigned him by law. Seo. 20. The controller, treasurer, attorney-general, and sur- veyor-general, shall be chosen by joint vote of the two houses of the legislature, at their first session under this constitution, and thereafter shall be elected at the same time and places, and in the same manner as the governor and lieutenant-governor. Seo. 21. The governor, lieutenant-governor, secretary of state, controller, treasurer, attorney-general, and surveyor-general, shall each, at stated times during their continuance in office, receive for their services a compensation, which shall not be increased or diminished during the term for which they shall have been elected ; but neither of these officers shall receive for his own use any fees for the performance of his official duties. ARTICLE VI. JUDICIAL DEPAETMBNT. Section. 1. The judicial power of this state shall be vested in a supi-eme court, in district courts, in county courts, and in justices of the peace. The legislature may also establish such municipal and other inferior courts as may be deemed necessary. Seo. 2. The supreme court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum. Sec. 3. The justices of the suprerne court shall be elected at the general election by the qualified electors of the state, and 30 shall hold their office for the term of six years from the first day of January next after their election ; provided that the legisla- ture shall, at its first meeting, elect a chief justice and two asso- ciate justices of the supreme court, by joint vote of both houses, and so classify them that one shall go out of office every two years. After the first election, the senior justice in commission shall be the chief justice. Seo. 4. The supreme court shall have appellate jurisdiction in all cases when the matter in dispute exceeds two hundred dollars, when the legality of any tax, toll, or impost or municipal fine is in question, and in all criminal cases amounting to felony on questions of law alone.' And the said court, and each of the justices thereof, as well as all district and county judges, shall have power to issue writs of habeas corpus at the instance of any person held in actual custody. They shall also have power to issue all other writs and process necessary to the exercise of their appellate jurisdiction, and shall be conservators of the peace throughout the state. Sec. 5. The state shall be divided by the first legislature into a convenient number of districts, subject to such alteration from time to time as the public good may require, for each of which a district judge shall be appointed by the joint vote of the legisla- ture, at its first meeting, who shall hold his office for two years from the first day of January next after his election; after which, said judges shall be elected by the qualified electors of their respective districts, at the general election, and shall hold their office for the term of six years. Sec. 6. The district courts shall have original jurisdiction, in law and equity, in all civil cases where the amount in dispute exceeds two hundred dollars, exclusive of interest. In all crim- inal cases not otherwise provided for, and in all issues of fact joined in the probate courts, their jurisdiction shall be unlim- ited." Seo. 7. The legislature shall provide for the election, hj the people, of a clerk of the supreme court, and county clerks, dis- trict attorneys, sherifi"s, coroners, and other necessary officers; ' The Juvlsdiotion is limited to felony. People «. Applegate, 6 Cnl. 295. 2 The word "unlimited" qualifies the amount in value and not the term "original." Eeed v. McCornick, 4 Cal. 842. "Issues of fact," etc., refer to issues to be tried. Id. CONSTITUTION OF CALIFOBNIA. 31 and shall fix by law their duties and compensation. County clerks shall be, ex officio, clerks of the district courts in and for their respective counties. Sec. 8. There shall be elected in each of the organized coun- ties of this state, one county judge, who shall hold his oflSee for four years. He shall hold the county court, and perform the duties of surrogate or probate judge. The county judge, with two justices of the peace, to be designated according to law, shall hold courts of sessions with such criminal jurisdiction as the legis- lature shall prescribe, and he shall perform such other duties as shall be required by law.' Sec. 9. The county courts shall have such jurisdiction, in cases arising in justices' courts, and in special cases, as the legis- lature may prescribe, but shall have no original civil jurisdiction, except in sach special cases." Sec. 10. The times and places ,of holding the terms of the supreme court, and the general and special terms of the district courts within the several districts, shall be provided for by law. Sec. 11. !N"o judicial officer, except a justice of the peace, shall receive, to his own use, any fees or pei'qnisites of office. Sec. 12. The legislature shall provide for the speedy publica- tion of all statute laws, and of such judicial decisions as it may deem expedient ; and all laws and judicial decisions shall be free for publication by any person. Sec 13. Tribunals for conciliation may be established, with such powers and duties as may be prescribed by law ; but such tribunals shall have no power to render judgment to be obliga- tory on the parties, except they voluntarily submit their matters in difference, and agree to abide the judgment, or assent thereto in the presence of such tribunal, in such cases as shall be pre- scribed by law. Sec. 14. The legislature shall determine the number of jus- tices of the peace, to be elected in each county, city, town and incoi"porated village of the state, and fix by law their powers, duties and responsibilities. It shall also determine in what cases appeals maybe made from justices' courts to the county court. i The county judge and two associates are necessary to constitute tlie court. People v. Ah Cliung, 5 Cal. 103. ^ Paisons V. Tuolumne county, 5 Cal. 43 ; Brook u Bruce, id. 279. 32 banceopt's californ-ia lawyer. Sec. 16. The justices of the supreme court, and judges of the district courts, shall severally, at stated times during tlieir con- tinuation in office, receive for their services a compensation to be paid out of the treasury, which shall not be increased or diminished during the term for which they shall have been elected. The county judges shall also severally, at stated times, receive for their services a compensation to be paid out of the county treasury of their respective counties, which shall not be increased or diminished during the term for which they shall have been elected. Sec. 16. The justices of the supreme court and district "judges shall be ineligible to any other office during the term for which they shall have been elected. Seo. 17. Judges shall not charge juries with respect to mat- ters of fact, but may state the testimony and declare the law. Sec. 18. The style of all process shall be " The people of the state of California ;" and all prosecutions shall be conducted in the name and by the authority of the same. ARTICLE VII. Section 1. The legislature shall provide by law for organizing and disciplining the militia, in such manner as they shall deem expedient, not incompatible with the constitution and laws of the United States. Sec. 2. Officers of the militia shall be elected or appointed, in such manner as the legislature shall from time to time direct, and shall be commissioned by the governor. Sec. 3. The governor shall have power to call forth the mili- tia, to execute the laws of the state, to suppress insurrections and repel invasions. ARTICLE VIII. STATE DEBTS. The legislature shall not in any manner create any debt or debts, liability or liabilities, which shall singly, or in the aggre- CONSTITUTION OF CALIFORNIA. 33 gate, with any previous debts or liabilities, exceed the sum of three hundred thousand dollars, except in case of war, to repel invasion or suppress insurrection, unless the same shall be authorized by some law for some single object or work, to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the interest of such debt or liability, as it falls due, and also to pay and discharge the principal of such debt or liability within twenty years from the time of the contracting thereof, and sh&,ll be irrepealable until the principal and interest thereon shall be paid and dis- charged ; but no such law shall take effect until, at a general election, it shall have been submitted to the people, and have received a majority of all the votes cast for and against it at such election ; and all money raised by authority of such law, shall be applied only to the specific object therein stated, or to the payment of the debt thereby created ; and such law shall be published in at least one newspaper in each judicial district, if one be published therein, throughout the state, for three months next preceding the election at which it is submitted to the people.' ARTICLE IX. EDUCATION. Section 1. The legislature shall provide for the election, by the people, of a superintendent of public instruction, who shall hold his ofiice for three years, and whose duties shall be pre- scribed by law, and who shall receive such compensation as the legislature may direct. Sec. 2. The legislature shall encourage, by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement. The proceeds of all lands that may be granted by the United States to this state for the support of schools, which may be sold or disposed of, and the five hundred thousand acres of land granted to the new states, under an act of congress distributing the proceeds of the public lands among the several 1 The entire state flsbt over three hundred, thousand dollars, declared unconstitutional. People V. Johnson, Oct. T. ISoS. Nouguos «. Douglass. Jan. T. 186T. 3 34 Bancroft's California lawyer. states of the Union, approved A. D. one thousand eight hundred and forty-one ; and all estates of deceased persons who may have died without leaving a will, or heir, and also such per cent, as may be granted by congress on the sale of lands in this state, shall be and remain a perpetual fnnd, the interest of which, to- gether with all the rents of the unsold lands, and such other means as the legislature may provide, shallJbe inviolably appro- priated to the support of common schools throughout the state. Sec. 3. The legislature shall provide for a system of common schools, by which a school shall be kept up and supported in each district at least three months in every year, and any school district neglecting to keep up and support such a school may be deprived of its proportion of the interest of the public fund dur- ing such neglect. Sec. 4. The legislature shall take measures for the protection, improvement, or other disposition of such lands as have been, or may hereafter be reserved or granted by the United States, or any person or persons, to this state for the use of a university ; and the funds accruing from the rents or sale of such lands, or from any other source for the purpose aforesaid, shall be and remain a permanent fund, the interest of which shall be applied to the support of said university, with such branches as the public convenience may demand, for the promotion of literature, the arts and sciences, as may be authorized by the terms of such grant. And it shall be the duty of the legislature, as soon as may be, to provide effectual means for the improvement and permanent security of the funds of said university. ARTICLE X. MODE OF AMENDING AND REVISING THE CONSTITUTION. Section 1. Any amendment or amendments to this constitu- tion, may be proposed in the senate or assembly ; and if tlie same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amend- ments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen, and shall be published for three months next preceding CONSTITUTION OF CALIFOENIA. 35 the time of making such choice. And if, in the legislature next chosen as aforesaid, siich proposed amendment Or amendments shall be agreed to bj a majority of all the members elected to each house, then it shall be the duty of the legislature to siibmit such proposed amendment or amendments to the people, in such man- ner and at such time as the legislature shall prescribe ; and if the people shall approve and ratify such amendment or amend- ments, by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amend- ments shall become part of the constitution. Sec. 2. And if, at any time, two-thirds of the senate and assembly shall think it necessary to revise or change this entire constitution, they shall recommend to the electors, at the next election for members of the legislature, to vote for or against a convention, and if it shall appear that a majority of the electors, voting at such election, have voted in favor of calling a conven- tion, the legislature shall, at its next session, provide, by law, for calling a convention, to be holden within six months after the passage of such law ; and such convention shall consist of a num- ber of members, not less than that of both branches of the legis- lature. The constitution that may have been agreed upon and adopted by such convention, shall be submitted to the people, at a special election, to be provided for by law, for their ratification or rejection ; each voter shall express his opinion by depositing in the ballot-box a ticket, whereon shall be written or printed, the words " for the new constitution," or " against the new con- stitution." The returns of such election shall, in such manner as the convention shall direct, be certified to the executive of the state, who shall call to his assistance the controller, treasurer and secretary of state, and compare the votes so certified to him. If, by such examination, it be ascertained that a majority of the whole number of votes cast at such election, be in favor of such new constitution, the executive of this state shall, by his procla- mation, declare such new constitution to be the constitution of the state of California.— [Am. Nov. 4, 1856.] 36 BAJSCBOFT'S CALIFORNIA LAWYER. AETIOLE XI. MISCELLANEOUS PROVISIONS. Section- 1. The first session of the legislature shall be held at the Pueblo de San Jos6 ; which place shall be the permanent seat of goTernment, until removed by law ; provided, however, that two-thirds of all the members elected to each house of the legislature shall concur in the passage of such law. ' Seo. 2. Any citizen of this state who shall, after the adoption of this constitution, fight a duel with deadly weapons,- or send or accept a challenge to fight a duel with deadly weapons, either within this state or out of it ; or who shall act as second, or Imowingly aid or assist in any manner those thus offending, shall not be allowed to hold any office of profit or to enjoy the right of suffrage under this constitution. Sec. 3. Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter on tbe duties of their re- spective offices, take and subscribe the following oath or affir- mation : " I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the con- stitution of the state of California, and that I will faithfully dis- charge the duties of the office of , according to the best of my ability." And no other oath, declaration, or test, shall be required as a qualification for any office or public trust. Sec. 4. The legislature shall establish a system of county and town governments, which shall be as neai'ly uniform as practi- cable throughout the state. Sec. 5. The legislature shall have power to provide for the election of a board of supervisors in each county; and these supervisors shall jointly and individually perform such duties as may be prescribed by law. Sec. 6. All officers whose election or appointment is not pro- > TMs section places the location of the capital in the discretion of the legislature, and It Is not subject to the control of the Judiciary. People v. Bigler, 5 Cnl. 28. CONSTITUTION OF CALIFOBNIA. 87 vided for by this constitution, and all officers whose offices may be hereafter created by law, shall be elected by the people, or appointed as the legislature may direct. Sec. Y. When the duration of any office is not provided for by this constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment ; nor shall the duration of any office, not fixed by this constitution, ever exceed four years.' Sec. 8. The fiscal year shall commence on the first day of July. Sec. 9. Each county, town, city and incorporated village, shall make provision for the support of its own officers, subject to such restrictioas and regulations as the legislature may prescribe. Sec. 10. The credit of the state shall not, in any manner, be given or loaned to or in aid of any individual, association, or corporation ; nor shall the state directly or indirectly become a stockholder in any association or corporation. Sec. 11. Suits may be brought against the state in such man- ner, and in such courts, as shall be directed by law. Sec. 12. l^o contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect. Sec. 13. Taxation shall be equal and uniform throughout the state.'' All property in this state shall be taxed in proportion to its value, to be ascertained as directed by law ; but assessors and collectors of town, county and state taxes, shall be elected by the qualified electors of the district, county, or town, in which the property taxed for state, county, or town purposes is situated.' Sec. 14. All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property ; and laws shall be passed more clearly defining the righ-ts of this wife, in relation as well to her separate property, as to that held in common with her husband. Laws shall also be ' People ex rel. Finloy «. Jewett, July T., 1856. People v. Eeid, id. 2 This section was aflopted as a pledge of security to the natire inhahitants. People «. Coleman, 4 Oal. 46. It applies only to direct taxatipn on property. People v. Naglee, 1 Cal. 232. ' That the same property is taxed in anbther state is no gi-ound why it should not be taxed in Cal fonJa, when it is within the limits of the latter state. Mintnrn v. Hays, 2 Oal. 090. 88 banoeopt's oalifoknia lawyer. passed providing for the registration of the wife's separate property. Sec. 15. The legislature shall protect by law, fron^ forced sale, a certain portion of the homestead and other property of all heads of families.' Seo. 16. No perpetuities shall be allowed except for eleemosy- nary purposes. Sec. 17. Every person shall be disqualified from holding any office of profit in this state, who shall have been convicted of having given or offered a bribe, to procure his election or appointment. Sec. 18. Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who shall here- after be convicted of bribery, perjury, forgery, or other high crimes. The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting under adequate penal- ties, all undue infiuence thereon from power, bribery, tumult, or other improper practice. Sec. 19. Absence from this state on business of the state, or of the United States, shall not affect the question of residence of any person. Sec. 20. A plurality of the votes given at any election shall constitute a choice, where not otherwise directed in this consti- tution. Sec. 21. All laws, decrees, regulations and provisions, which from their nature require publication, shall be published in English and Spanish. ARTICLE XII. BOUNDARY. The boundary of the state of California shall be as follows : — Commencing at the point of intersection of forty-second degree of north latitude with the one hundred twentieth degree of long- itude west from Greenwich, and running south on the line of said one hundred twentieth degree of west longitude until it intersects the thirty-ninth degree of north latitiide ; thence running in a > Cook V. McOhristian, 4 Oal. 28. CONSTITUTION OF CALIFOENIA. 89 straiglit line in a south-easterly direction to the river Colorado, at a point where it intersects the thirty-fifth degree of north lati- tude ; thence down the middle of the channel of said river, to the boundary line between the United States and Mexico, as established by the treaty of May thirtieth, one thousand eight hundred and forty-eight; thence running west and along said boundary line to the Pacific Ocean, and extending therein three English miles ; thence running in a north-westerly direction and following the direction of the Pacific Coast to the forty-second degree of north latitude, thence on the line of said forty-second degree of north latitude to the place of beginning. Also all the islands, harbors and bays, along and adjacent to the coast. SCHEDULE. Section 1. All rights, prosecutions, claims and contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this constitution, and not inconsis- tent therewith, until altered or repealed by the legislature, shall continue as if the same had not been adopted. Sec. 2. The legislature shall provide for the removal of all causes which may be pending when this constitution goes into effect, to courts created by the same. Sec. 3. In order that no inconvenience may result to the public service, from the taking effect of this constitution, no office shall be superseded thereby, nor the laws relative to the duties of the several officers be changed, until the entering into office of the new officers to be appointed under this constitution. Sec. i. The provisions of this constitution concerning the term of residence necessary to enable persons to hold cert9,in offices therein mentioned, shall not be held to apply to officers chosen by the people at the first election, or by the legislature at its first session. Sec. 5. Every citizen of California, declared a legal voter by this constitution, and every citizen of the TJnited States, a resi- dent of this state on the day of election, shall be entitled to vote at the first general election under this constitution, and on the question of the adoption thereof. 40 banceoft's califoenia lawyer. Sec. 6. This constitution shall be submitted to the people, for their ratification or rejection, at the general election to be held on Tuesday, the thirteenth day of November next. The execu- tive of the existing government of California is hereby requested to issue a proclamation to the people, directing the prefects of the several districts, or in case of vacancy, the sub-prefects, or senior judge of first instance, to cause such election to be held on the day aforesaid, in their respective districts. The election shall be conducted in the manner which was prescribed for the election of delegates to this convention, except that the prefects^ sub-prefects, or senior judge of first instance, ordering such elec- tion in each district, shall have power to designate any additional number of places for opening the polls, and that, in every place of holding the election, a regular poll-list shall be kept by the judges and inspectors of election. It shall also be the duty of these judges and inspectors of election, on the day aforesaid, to ■ receive the votes of the electors qualified to vote at such elec- tion. Each voter shall express his opinion, by depositing in the ballot-box a ticket, whereon shall be written, or printed, " for the constitution," or " against the constitution," or some such words as will distinctly convey the intention of the voter. These judges and inspectors shall also receive the votes for the several officers to be voted for at the said election as herein provided. At the close of the election, the judges and inspectors shall care- fully count each ballot, and forthwith make duplicate returns thereof to the prefect, sub-prefect, or senior judge of first in- stance, as the case may be, of their respective districts ; and said prefect, sub-prefect, or senior judge of first instance shall transmit one of the same, by the most safe and rapid conveyance, to the secretary of state. Upon the receipt of said returns, or on the tenth day of December next, if the returns be not sooner re- ceived, it shall be the duty of a board of canvassers, to consist of the secreta,ry of state, one of the judges of the superior court, the prefect, judge of first instance, and an alcalde of the district of Monterey, or any three of the aforementioned ofiicers, in the presence of all who shall choose to attend, to compare the votes given at said election, and io immediately publish an abstract of the same in one or more of the newspapers of California. And CONSTITUTION OF CALIFOpNIA. 41 the executive will also, immediately after ascertaining that the constitution has been ratified by the people, make proclamation of the fact ; and thenceforth this constitution shall be ordained and established as the constitution of California. Sec. 7. If this constitution shall be ratified by the people of California, the executive of the existing government is hereby requested, immediately after the same shall be ascertained, in the manner herein directed, to cause a fair copy thereof to be forwarded to the president of the United States, in order that he may lay it before the congress of the United States. Sec, 8. At the general election aforesaid, viz. the thirteenth day of November next, there shall be elected a governor, lieuten- ant-governor, members of the legislature, and also two members of congress. . Sec. 9. If this constitution shall be ratified by the people of California, the legislature shall assemble at the seat of govern- ment on the fifteenth day of December next, and in order to complete the organization of that body, the senate shall elect a president ^ro tempore, until the lieutenant-governor shall be in- stalled into oflice. Sec. 10. On the organization of the legislature, it shall be the duty of the secretary of state, to lay before each house, a copy of the abstract made by the board of canvassers, and, if called for, the original returns of election, in order that each house may judge of the correctness of the report of said board of can- vassers. ' Sec. 11. The legislature, at its first session, shall elect such officers as may be ordered by this constitution, to be elected by that body, and within four days after its organization, proceed to elect two senators to the congress of the United States. But no law passed by this legislature shall take effect until signed by the governor after his installation into ofiice. Sec. 12. The senators and representatives to the congress of the United States, elected by the legislature and people of Cali- fornia, as herein directed, shall be furnished with certified copies of this constitution, when ratified, which they shall lay before the congress of the United States, requestiug, in the name of the 42 bajstoboft's califoeota lawyer. people of California, the admission of the state of California into the American Union. Sec. 13. All officers of this state, other than members of the legislature, shall be installed into office on the fifteenth day of December next, or as soon thereafter as practicable. Sec. 14. Until the legislature shall divide the state into coun- ties and senatorial and assembly districts, as directed by this constitution, the following shall be the apportionment of the two houses of the legislature, viz. : the districts of San Diego and Los Angeles, shall jointly elect two senators; the districts of Santa Barbara and San Luis Obispo, shall jointly elect one sen- ator ; the district of Monterey, one senator ; the district of San Jose, one senator ; the district of San Francisco, two senators ; the district of Sonoma, one senator; the district of Sacramento, four senators ; and the district of San Joaquin, four senators. And the district of San Diego shall elect one member of the as- sembly ; the district of Los Angeles, two members of assembly ; the district of Santa Barbara, two members of assembly ; the district of San Lnis Obispo, one member of assembly ; the dis- trict of Monterey, two members of assembly ; the district of San Jose, three members of assembly ; the district of San Francisco, five members of assembly ; the district of Sonoma, two members of assembly ; the district of Sacramento, nine members of as- sembly; and the district of San Joaquin, nine members of assembly. Sec. 15. Until the legislature shall otherwise direct, in ac- cordance with the provisions of this constitution, the salary of the governor shall be ten thousand dollars per annum ; and the salary of the lieutenant-governor shall be double the pay of a state senator ; and the pay of members of the legislature shall be sixteen dollars per diem while in attendance, and sixteen dollars for every twenty miles' travel by the usual route from their resi- dences to the place of holding the session of the legislature, and in returning therefrom. And the legislature shall fix the salaries of all officers other than those elected by the people at the first election. Sec. 16. The limitation of the powers of the legislature, con- tained in article eighth of this constitution, shall not extend to the first legislature elected under the same, which is hereby CONSTITUTIONAL CONSTRUCTION. 43 authorized to negotiate for such amount as may be necessary to pay the expenses of the state government. E. SEMPLE, ^^ President, and delegate from Benicia. Wm. G. Maecy, Secretary. J. ARAM, C. T. BOTTS, E. BROWN, J. A. CARRILLO, J. M. COVABUBIAS, E. O. CROSBY, P. DE LA GUEREA, L. DENT, M. DOMINGUEZ, K. H. DIMMICK, A. J. ELLIS, S. C. FOSTER, E. GILBERT, W. M. GWIN, H. W. HALLE CK, JULIAN HANKS, L. W. HASTINGS, HENRY HILL, J. HOBSON, J. McH. HOLLINSWORTH, J. M. JONKS, J. D. HOPPE, T. O. LARKIN, FRANCIS J. LIPPITT, B. S. LIPPINCOTT, H. M. MOCARVER, JOHN MoDOUGAL, B. P. MOORE, MYRON NORTON, P. CRD, MIGUEL, DE PEDRORENA, A. M. PICO, K. M. PRICE, HUGO REID, JACINTO RODRIGUEZ, PODRO SAN8EVAINE, W. E. SHANNON, W. S. SHERWOOD, J. R. SNYDER, A. STEARNS, W. M. STEUART, J. A. SUTTER, HENRY A. TEFFT, S. L. VERMEULB, M. G. VALLEJO, J. P. WALKER, O. M. WOZENCUAFT. CONSTITUTIONAL OONSTEUOTION. 1. The destruction of a building to stop the spread of a con- flagration, cannot be deemed a taking of private property for public use, within the meaning of that clause of the constitution which prohibits such taking without just compensation. Dunbar V. The Alcalde of San Francisco, 1 Cal. 365; Surocco v. Geary, 3 Cal. 69. 2. The states possess the power to arrest and restrain fugitive slaves and to remove them from their borders, but not so as to obstruct the owner in reclaiming his slave under the constitution of the United States. In re Perkii?s, 2 Cal. 424. 3. A deed void by reason of fraud, cannot be made valid by an act of the legislature so as to affect the rights of third persons. Smith -y. Morse, 2 Cal. 524. 4. An act of the legislature authorizing the governor to appoint a judge of the supreme court during the absence of one of the judges from the state, is unconstitutional. People v. Wells, 2 bal. 610. 5. The legislature can neither confer appellate jurisdiction on the district courts or original jurisdiction on the supreme court. Oaulfield ij. Hudson, 3 Cal. 389. 44 Bancroft's califoenia lawyer. 6. The cotemporaneotis expositions of the first legislature, acquiesced in by every subsequent legislature, tacitly assented to by the courts, and where rights have grown up under it and it has become a rule of property, must govern in a question of constitutional law. Washington v. Page, 4 Cal. 889. 7. The constitution of this state is not to be considered as a grant of power, but rather as a restriction upon the powers of the legislature, and it is competent for the legislature to exercise all powers not forbidden by the constitution of the state, or delegated to the general government, or prohibited by the constitution of the United States. People v. Coleman, 4 Oal. 46 ; People v. Bigler, 5 Cal. 23 ; Williams v. Thompson, Jan. T. 1856. 8. The legislature in the exercise of any power granted or limited by the constitution, must use it for the public welfare, independent of any foreign or extraneous considerations. In re State Capital, Jan. T. 1854. 9. Courts have no authority to inquire into the^ motives of the legislature in the passage of any law; neither have they the right to declare from the face of a law that they were actuated by improper motives. People v. Bigler, 5 Cal. 23. 10. The district court has no appellate jurisdiction from the probate courts. Peed v. McCormick, 4 Cal. 342. 11. The act of Congress authorizing a transfer of causes from a state court to the United States court, because one of the pa,r- ties is an alien, is not warranted by the constitution of the United States. Johnson v. Grordon, 4 Cal. 368. l-i. No eaiise can be transferred from a state court to any court of the United States. Id. 13. In conferring upon county courts the power to prevent and abate nuisances, the legislature exceeded their constitutional authority. Parsons v. Tiiolumne Water Company, 5 Cal. 43. 14. The legislature cannot exercise judicial functions, and cannot, therefore, except one case or one party from the operation of a general rule of law. Guy v. Hermance, 5 Cal. 73. 15. The states are not deprived by the constitution of the United States of the power to confer upon their own courts all admiralty and maritime jurisdiction, and therefore, the statute of California conferring such jui-isdiction is constitutional and valid. Taylor v. The Columbia, 5 Cal. 268. 16. Congress has no power to confer jurisdiction upon the courts of a state. Ex parte Knowles, 5 Cal. 300. JSTeither can a state court voluntarily exercise power or take jurisdiction of a case under an act of Congress. Id. 17. The constitution of the United States does not prohibit the states from naturalizing aliens. Id. 18. The legislature cannot confer on one court the functions CONSTITUTIONAL CONSTRUCTION. 45 and powers which the constitution has conferred on another. Zander v. Coe, 5 Cal. 230. 19. The performance of certain legislatiye functions being confided to, or imposed upon, the legislature by the constitution, must bo exercised, by that branch of the government and cannot be delegated by them. People v. Nevada, April T. 1866. 20. The legislature can impose, no duties upon the judiciary but such as are of a judicial character. Id. 21. The incorporation of colleges and towns cannot be imposed upon the courts. Id. 22. The provision in the constitution "No person shall be twice put in jeopardy for the same offence," was not intended to apply to cases in which a judgment of conviction was reversed in the appellate court and a new trial ordered. People v. March, Oct. T. 1856. 23. The constitution is inoperative of itself and looks to legis- lation. Gary v. Tice and Wife, Oct. T. 1856. 24. The eighth article of the constitution is an express restric- tion upon the powers of the legislature, and the limitation applies to the necessary and ordinary expenses of government. Nougues V. Douglass et al. Jan. T. 1857. 25. The power of taxation is given to the legislature without limit for all purposes allowed by the constitution. Id. 26. The judiciary possesses the power to construe the constitu- tion in all cases, not expressly or by necessary implication re- served to other departments. Id. 27. All debts contracted in violation of the eighth article of the constitution are void, and the legislature has no power to levy a tax or appropriate money for the payment thereof. Id. 28. The statute of a state cannot require a greater amount of proof for the authentication of the acts, records, etc., of the several states, than that prescribed by the act of Congress, bnt may require less. Parke v. Williams, Jan. T. 1857. 29. The grant of "legislative power" does not include the right to attack private property. Billings v. Hall, Jan. T. 1857. 30. The act of 1 856, for the protection of settlers, declared un- constitutional. Id. 31. A board of supervisors appropriating private property without making provision for paying the value thereof, may be restrained by injunction. McOann v. Sierra county, Jan. T. 1857. i ' 32. A tax imposed by law on Chinese passengers arriving in this state is unconstitutional. People v. Downes, Jan. T. 1857. 33. Power to appoint for a full term of office is vested in the legislature, and the governor has no right to exercise it. People ex rel. v. Langdon, 8 Cal. R. 1. 34. Under the constitution, the legislature can make such dis- 46 bajstceoft's California lawyer. position of county revenues as it may deem proper. People ex rel. V. Williams, 8 Cal. E. 97. 35. The power of Congress to regulate commerce is exclusive, when exercised. The act of Congress of July 29, 1860, authori- zing mortgages of vessels to be recorded, and makitfg the record thereof notice to third parties, being in conflict with our statute of frauds, the latter must yield. Mitchel v. Steelman, 8 Oal. K. 363. 36. The appellate power of the supreme court is given by the fourth section of the sixth article of the constitution, and there- fore the legislature can pass no act impairing it, but it may prescribe the mode in which appeals may be taken. Haiglit et al. V. Gay et al., 8 Cal. E. 297. 37. The legislature cannot delegate its general legislative powers, but it can authorize others to do those things which it cannot, understandingly or advantageously, do itself. Uphani V. Supervisors of Sutter county, 8 Cal. E. 378. 38. The legislature can delegate the power to the voters of a county to select a county seat therein.. Id. 39. The constitution does not require that the district courts shall be held at a county seat. Id. 40. Section seventeen of article fourth of the constitution pro- vides, that the governor shall have ten days for the consideration of bills which have passed both houses of the legislature : the ten days must be computed by excluding the day on which the bill is presented to him. Price v. Whitman et al., 8 Cal. E. 412. 41. The legislature has no power to impose or superadd con- ditions to a contract after it is completed, as this would be to impair its obligations, and this is prohibited by the constitution. Eobinson et al. v. Magee. 9 Cal. E. 81. 42. The legislature has the power to confer criminal jurisdic- tion on justices' courts. The People v. Fowler, 9 Cal. E. 85. 43. The provision of the Practice Act, authorizing judgment, personal and final, against an absent defendant, with privilege to the defendant to come in and deny in six months, is not in violation of the constitution of the United States or this state. Ware et al. v. Eobinson et al., 9 Cal. E. 107. 44. The provisions of section fifteen of article six of the con- stitution, respecting the salaries of district judges, do not exempt those ofiicers from the necessity of an appropriation for that purpose by the legislature. Myers v. English, 9 Cal. E. 341. 45. The constitution vests in the legislature the power of con- trolling and disposing of the revenue of the state. Id. 46. Tlie provision of the constitution which prohibits the pas- sage of any law impairing the obligation of contracts, relates solely to contracts between individuals, and not to contracts be- tween individuals and the state. Id. COKSTITUTIONAL CONSTEUOTION. 47 47. An act of the legislature prohibiting, under a penalty, the pursuing of any ordinary business on tlie Christian Sabbath or Sunday, is in conflict with the first and fourth sections of article first of the constitution, and is therefore void. Ex parte Ifew- man, 9 Cal. R. 502. 48. Such an act would be, in effect, a discrimination in favor of one religious profession over all others, and as such would be in violation of the constitution. Id. ,49. The act of April 10, 1858, to provide for the better observ- ance of the Sabbath, declared unconstitutional. Id. 50. The right of property in slaves is recognized by the con- stitution of the United States ; and the right of transit through each state with every species of property known to that consti- tution, is secured by that instrument as the paramount law to each citizen, and does not depend upon the uncertain and changeable ground of mere comity. In the matter of Archy, 9 Cal. R, 147. 51. This privilege extends only to a party who comes into the state for pleasure or health, and if he engages in business, or em- ploys his slave in any business except as a personal attendant upon himself or family, the privilege is lost, and his slave is en- titled to his freedom under the eighteenth section of article first of the state constitution. Id. 52. The federal ofiice of surveyor-general is a "lucrative of- fice," and the office of comptroller of state an " office of profit," under the twenty-first section of the fourth article of the con- stitution of this state. People ex rel. v. Whitman, 10 Cal. R.. 38. 53. To constitute the " holding" of an ofiice, within the mean- ing of the constitution, there must be the concurrence of two bills — that of the appointing power, and that of the person appointed. Id. 64. The failure on the part of the comptroller elect to qualify creates no vacancy in the office ; and in this case the incumbent holds over until his successor is elected and qualified. Id. 55. The executive can appoint only when there is no in- cumbent. Id. 56. The first clause of the fourth section of article six of the constitution, which section provides, that "the supreme court shall have appellate jurisdiction in all cases when tlie matter in dispute exceeds two hundred dollars ; when the legality of any tax, toll, or impost, or municipal fine is in question ; and in all criminal cases amounting to felony, on questions of law alone," is construed to mean that the supreme court shall possess appel- late jurisdiction in all cases; provided, that when the subject of litigation is capable of pecuniary computation, the matter in dispute must exceed in value or amount two hundred dollars, unless a question of the legality of a tax, tol}-, imj)ost, or muni- 48 Bancroft's California lawyer. cipal fine is drawn in question. Conant v. Conant, 10 Cal. 249. 67. The supreme court possesses appellate jurisdiction from a decree rendered in a suit for divorce from the bonds of matri- mony. Id. 58. The act of the legislature, giving the power to the late superior court of the city of San 'Francisco, to send its process beyond its territorial limits, was constitutional. Hickman v. O'iSTeal, 10 Cal. E. 292. 59. There is no constitutional provision prohibiting the legis- lature giving to an inferior court the right to have its orders or judgments enforced beyond its territorial limits. Id. 60. A judgment rendered in one state, and upon which suit is instituted in another, is a contract in the sense of the constitu- tion. Scarborough v. Dugan, 10 Cal. R. 305. 61. The legislature has no right so to regulate the remedy, as that it shall destroy the contract by denying all means of enforce- ment. Id. 62. The twenty-fifth section of article six of the constitution, which requires that every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title, is merely directory ; it does not defeat laws passed in violation of it. Pierpont v. Crouch, 10 Cal. 315. 63. The court of sessions under the constitution, can only exer- cise powers of a judicial character. Hardenburg et. al. v. Kidd et. al, 10 Cal. E. 402. 64. The assessment of taxes is not a judicial act; it partakes of no element of a judicial character. It is a legislative act; it requires the exercise of legislative power, which, for certain governmental purposes in the county, may be devolved upon a board of supervisors, but cannot be delegated to any branch of the judicial department. Id. 66. The provisions of the revenue act of 1853 and 1854, au- thorizing the court of sessions to assess a tax for county pur- poses are unconstitutional, and the assessment inade thereunder, and a subsequent levy upon and sale of property in the enforce- ment of such assessment, are void. Id. 66. Section fifth of article six of the constitution ^Yoviding for the election of district judges, declares that they "shall hold their office for the term of six years." The legislature can direct the time, and prescribe the mode of election, but cannot change the tenure of the ofiice. That part of the act of the legislature providing, in case of a, vacancy in the office of district judge, for an election "to fill an unexpired term," is unconstitutional. The people ex. rel. v. Burbank, January T., 1859. 67. The election was valid, and the judge elect was entitled to hold the office for the full term of six years, notwithstanding CONSTITUTIONAL CONSTEUCTION. 49 the proclamation of the governor was for an iinexpired term, and the commission to the same effect. The function of the procla- mation was not to declare the law but the fact of a vacancy. Id. See also, the People v. Templeton, and the People v, Nor- ton, same term. 68. Sections fifty-six and fifty-seven of the Consolidation Act, applicable to the city of San Francisco, passed April 19, 1858, Srovidin^ for the repairing of the streets, is constitutional, [art V. Gaven, January T., 1859. 69. An act providing for the repairing the streets is in the nature of a tax, and, if uniform and equal in its operation, as applying to all the streets of a municipality, is not in conflict with the thirteenth section of article eleven of the constitution. Id. 70. By the common law, which has been adopted in this state, an alien cannot acquire property by descent or other mere oper- ation of law ; the seventeenth section of article first of the con- stitution only removes the disability of aliens who are honafide residents in the absence of any statute changing this rule. Far- rell and Wife v. Enrigbt, January T., 1859. 71. The legislature has no right to authorize one of its oSicers to enter upon and dispossess one of its citizens in actual pos- session of real estate with color of title. McCauley v. Weller, January T., 1859. 72. The act of February 26, 1858, authorizing the governor to enter and take possession of the state prison while in the legal custody of one entitled thereto, without providing any compen- sation therefor, was in violation of the eighth section of article first of the constitution. Id. 73. The constitutional limitation on the power of the legis- lature will be strictly construed, and the limitation will extend no farther than the words used will carry out. Because the legislature is forbidden to contract a debt beyond a certain amount, andpledge the general fund for its payment, it does not follow that they may not authorize one or more counties to incur such debt, which would create a lien on the local not the gen- eral fund. Pattison v. Board of Supervisors of Yuba county, April T.V 1859. 74. That part of the statute of March 23d, 1850, giving juris- diction to the county judge to try a contested election for an office " in and for such county," is constitutional. Saunders v. Haynes, April T., 1859. 75. An inspector of customs of the United States, is not a lucrative office in the sense of the twenty-first section of article four, so as to render ineligible to a state office. Id. 76. The powers and duties of the judges of the supreme coui-t are prescribed by the constitution, and the legislature can neither 4 50 BANOEOFT'S CALIFORNIA LAWYER. add to or subtract from them. That part of the sixty-ninth sec- tion of the act of May 15th, 1854, is inoperative as applying to the judges of the supreme court. Houston v. "Williams, January T., 1859. 77. The fourth section of article six of the constitution, pro- viding, among other things, that the supreme court shall have jurisdiction, Avhere the "amount in dispute exceeds two hundred dollars," is intended to apply to cases where the amount exceeds two hundred dollars exclusive of costs. Hildreth v. Gwindon, et al., January T., 1859. 78. The thirteenth section of article eleven of the constitution does not restrict the legislature either in the amount of tax which may be imposed, or the purposes to which it may be ap- plied. The people ex rel. v. E. "W". Burr et al., composing the Board of Fund Commissioners, April T., 1859. 79. The thirty-seventh section of article four of the constitu- tion, is not a restriction upon the actual control of the legislature over the whole subject of municipal taxation at all times. Id. 80. The act of April 20th, 1858, providing of the funding and payment of outstanding claims against the city and county of 8an Francisco, is constitutional. Id. 81. The seventeenth section of article first of the constitution, providing that foreigners who are hona fide residents, may in- herit, etc., does not restrict the power of the legislature to confer additional privileges. The People ex rd. v. R. 0. Kogers, admin- istrator, et al. April T., 1859. 82. The act of April 19th, 1856, concerning escheated estates is constitutional. Id. AGKKOWl^EDGMBNTS, ETC. 51 CHAPTEE II. ACKNOWLEDGMENT AIJD PEOOF OF INSTEUMENTS TO BE EECOEDED, AND OF SATISFACTION AND DISCHAEGE OF JITDGMENTS AND OTHEE LIENS. Et the laws of the states of California and Oregon, and of the territory of Washington, deeds, mortgages, and other instru- ments, must be recorded in the county in which any lands affected by such instrument lie, in order to give notice to all other parties of the transfer made, or other act performed by such instrument. In California and Oregon, these instruments are recorded in the office of the county recorder, and in Washington in the office of the auditor. In California, the office of county recorder is in some counties united with that of county clerk. The proper time for recording instruments, in California, is immediately after they are executed and delivered ; in Oregon within thirty days ; and in Washington within six months. 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 effected. If such deed or other instrument be not lawfully acknowledged 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. In California it is decided that open notorious possession of real estate by one having an unrecorded deed for it, at the time of the acquisition of title or deed by the subsequent vendee from the common vendor, is notice to the subsequent vendee ; and such subsequent vendee or purchaser is not a purchaser in good 52 Bancroft's califoenia lawyer. faith, within the meaning of the statute, and cannot hold the land against the unrecorded title of the first purchaser.' The pirper ofiBcers to take and certify such acknowledgment or proof for Calif ornid are 1. In the state— some judge or clerk of a court having a seal, some notary public, or justice of the peace of the proper county, the county recorder of the county, and recorders and mayors of cities. Judges of the Supreme Court, of the district courts, and of the county courts, may act in any part of the state ; justices of the peace and recorders within their respective counties ; and mayors and recorders within their respective cities." It is generally considered that justices of the peace, recorders, county and city, and mayors, can only take acknowledgments affecting lands lying within their respective counties or cities ; and a question has been suggested by some practitioners, whether notaries do not come within the same restriction. The general opinion, however, in view of the whole tenor of the adjudications of the Supreme Court upon the matter of acknowledgments, is, that notarif^s may take the acknowledgment and proof of the execution of deeds and other instruments, affecting lands situated in any county of the state — and such is the usual practice wiili notaries. The acknowledgments of married women to instruments affecting their separate property, can only be taken before a justice of the Supreme Court, a judge of the District Court, a county judge or notary public* This does not apply to instru- ments affecting the homestead ; they may be acknowledged by a married woman before a justice of the peace as well as the ofiScers above named.' When she conveys by her sole deed, in consequence of the non-residence of her husband, the district judge of the county in which the land lies, must take the acknowledgment." 2. Out of the state, hut within the United States — some judge or clerk of any court of the United States, or of any state or 1 Hunter v. Watson, Jan. Term, 1859. * id. 2609. » Wood's Big arts. 841, TIT, 2844, and 299T. » Goodo v. Smitli and "Wife, Jan. T«rm, 1859. ' id. « Wood's Dig. art. 2630. ACKNOWLEDGMENTS, ETC. 53 territory having a seal, or anj'- commissioner appointed by the government of this state for that purpose.' But acknowledgments of married women as to their separate property, out of the state, can only be taken before such a judge of a court of record or commissioner." 3. Out of the United States — some judge or clerk of any court, of any state, kingdom, or empire having a seal, or any notary public therein, or any minister, commissioner, or consul of the United States appointed to reside therein.' The proper officers to take acknowledgments for Oregon are as follows : 1. In the state — any judge of the district court, probate judge, justice of the peace, or notary public ; and the deed must "be witnessed by two subscribing witnesses.* 2. Out of the 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 acknowledgments, or a commissioner appointed by the governor of Oregon for such purpose ; and such deed may be executed according to the laws of the state, territory, or district. In such cases, the statute of Oregon provides as follows : Section 12. In the cases provided for in the last section, unless the acknowledgment be taken before a commissioner appointed by the governor of this state for that purpose, 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 acknowledgmen twas taken, under the seal of this office, that the person whose name is subscribed to the cer- tificate of acknowledgment was, at the date thereof, such officer as he is therein represented to be, and that he believes the sig- nature 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." 3. In amy foreign country — the officers mentioned in the fol- lowing provision of the Oregon statute, are the proper officers to take acknowledgments : Section 13. If such deed be executed in a foreign country, it 1 Wood's Dig. art. 841. " id. 841. » id. 2609. * Statutes of Oregon, p. 520. 54 BANOEOFT'S CALIFORNIA LAWYER. 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 extraor- dinary, minister resident, charge d'affaires, commissioner or con- sul of the United States appointed to reside therein, which ac- knowledgment 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. The proper officers to take acknowledgments for the territory of Washington are, a judge of the Supreme Court, a judge of the Probate Court, a justice of the peace, a notary public, or a com- missioner of deeds.' Every certificate should show that the person, making the acknowledgment or proof, is personally hnown to the officer, or is. proved by a competent witness to be such person, 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 fully and voluntarily for the uses and purposes therein mentioned." In Oregon it should also state the residence of the witness. See post. In Washing- ton no provision is made for proof of instrument by witness. When the acknowledgment is made by a married women it should show also that she was made acquainted with the contents of the conveyance, and acknowledge, on examination apart from and without the hearing of her husband, that she executed the same fully and voluntarily, without fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same." For Oregon, if made in the state, it should show that the ac- knowledgment was taken separately and apart from her husband, and that she acknowledged that she executed such deed freely, and without fear or compulsion of any one. K made out of the state, the acknowledgment or proof may be the same as if she were sole.' For Washington — ^it should state that the officer has examined her separate and apart from her husband, and made known to > Laws of Wash. 402, 448. a ifl. 359 . 9 q^\_ ^5. > Wood's Dig. art. 841, 344r^50. « Laws O. p. 520. ACKNOWLEDGMENTS, ETC. 55 her the contents of the deed, and that she acknowledged that she did voluntarily, of her own fiee-will, and without the fear of or coercion from her husband, execute the deed.' In every case the husband joins with the wife in the execution of the instrument — excepting in California, the cases of a female sole-trader, and where the wife is allowed to make conveyance alone, in consequence of the non-residence of her husband ; and probably in the case of an inventory of her separate property,' although even in such case, the safer and usual course is for the husband to unite in the execution of the instrument.— See Hub- BAiro AND Wife— FoEMS. "When the execution of instruments is proved by the testimony of a subscribing witness, the certificate should show that the wit- ness is personally known to the ofiScer 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 instrument, and of the facts that the person whose name is subscribed to such instrument as a party thereto, is the party who executed the same, and that such witness subscribed his name to such instru- ment as a witness thereof." When, in the absence or death of the subscribing witnesses, the proof is made by evidence of handwriting, the certificate must show : 1. That the officer is satisfied that all the subscribing wit- nesses to the instrument are dead or cannot be had to prove its execution. 2. That A B, a competent and credible witness, stated on oath or affirmation, that he personally knew the indi- vidual whose name is subscribed to the instrument as a party, well knew his signature (stating his means of knowledge), and believes the name of the person subscribed thereto as a party, was subscribed by such person. 3. That C D, a competent and credible witnesss, gave the like proof as to the (or one of the) subcribing witnesses, setting it out at length.* In Oregon, proof may be made by a subscribing witness before 1 Laws Wash. 402. ^ Wood's Dig. art. 347-350. 3 Wood's Dig. art. 2609, 2630, and 260T; In < id. 851, 352. goldsby V. Eicardo, Jan. Term, 1S5I). 56 Bancroft's California lawyer. any officer authorized to take acknowledgments of deeds, who is personally acquainted with such witness, or has satisfactory evi- dence that he is the same person who was a subscribing witness ; and the witness must state his own place of residence, and that he knew the person described and who executed such convey- ance. "When any grantor is dead, out of the state, or refuses 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 handwriting of the grantor and of any subscribing witness.' Every certificate which substantially conforms to the require- ments of the law will be valid, although the identical language of the statute may not be used.'' All interlineations or erasures, if not noted before execution, should* be mentioned in the certificate. A notary or other officer authorized to make and certify ac- knowledgments, and the proof of the execution of deeds,, and other instruments, cannot alter or correct his certificate to reform the same, even to insert the statement of a fact inadvertently omitted, after some decisive act is done, showing that he has exercised his authority over the subject. After taking the ac- knowledgment, and making and delivering the' return, his func- tions cease, and he is discharged from all further authority.' The satisfaction of a mortgage, or of a judgment, must be proved or acknowledged, and certified in the same manner as a conveyance, unless such satisfaction be entered upon the margin of the original record of the mortgage, when it is acknowledged in the presence of the recorder or his deputy, who signs the same as a witness.* Upon application under oath that a witness residing in the county refuses to appear and testify to the execution of an instru- ment, and that the same cannot be proved without his evidence, the notary, or other officer, may issue a subpoena to the witness, who, in case of refusing to appear or to answer, will be liable to 1 Laws of Oregon, p, 621. s Hours -o. Zaclijriah and wife. Oct Term, " Wood's Dig. art. 860; Goode v. Smith, Jan. 1858. Term, 1869. ■• Wood's Dig. art. 874, 3T5, 942; Prao. Act, ACKNOWLEDGMENTS, ETC. 67 fine, damages, and imprisonment until he shall submit to answer.' In Oregon, the statute is substantially the same except that the witness is not liable in damages. A commissioner of deeds is not authorized to issue the subpoena." F0EM8. Certificate of Aohnowledgrnent hy Parl/y Jcnown to the Officer. State of California, City and County of San Francisco. \ On this first day of February, A. D. one thousand eight hun- dred and fifty-nine, before me, 8. Hermann, a notary public in and for said city and county, duly commissioned and sworn, per- rsonally appeared the within named H. Bancroft, whose name is subscribed to the annexed instrument, as a party thereto, person- ally known to me to be the individual described in and who exe- cuted the said annexed instrument, who acknowledged to me tliat lie executed the same freely and voluntaiily, 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 in this, certificate first above written. S. ITeemaitn. [l. s.] Notary I*ublic. Certificate where the Identity of Party is proven to the Officer. State of California, City and County of San Francisco, f On this fifth day of December, A. D. one thousand eight hun- dred and fifty eight, before me,M. C. Blake, 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 W. Crane, satis- factorily proven to me by the oath of E.. Perkins, a competent and credible witness, by me duly sworn for that purpose, to be the individual described in and who executed the annexed in- strument, and the said W. Crane 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 court to be affixed, the day and year in this certificate first above written. M. C. Blake, [l. s.] Judge, I Wood's Dig. art. 353, 354 ' Laws O. 521. 58 BANCEOFT'S CALIFORNIA lawyer. By Attorney known to the Officer. State of California, ) . City and County of San Francisco, j On this iifth day of October, A. D. one thousand eight hun- dred and fifty-seven, before me, W. Duer, clerk of the county court of said city and county, personally appeared C. T. Emmet, personally known to me to be the same person who executed by- power of attorney the foregoing deed, as the attorney in fact of James Thompson, said James Thompson being named in the an- nexed instrument as a party thereto, and therein described as tlie party executing the same ; and the said C. T. Emmet acknowl- edged to me that he executed the same freely and voluntarily, as, and for the act and deed of the said James Thompson, and for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and affixed the seal of said county court, the day and year in this certificate first above written. W. Duer, [l. s.] Clerk. Certificate of Proof hy siibscribing Witness known or prooen to the Officer. State of California, ) . City and County of San Francisco, j On this 12tli day of October, A. D., one thousand eight hun- dred and fifty-seven, before me, W. H. Culver, a Justice of the Peace in and for said city and county, duly commissioned and sworn, personally appeared A. B., personally known to me [or, satisfactorily proved to me by the oa,th of E. F., 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 aiul says, that he resides in the city and county of San Irancisco, that he was present and saw C. D., personally knoM'n 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 mention- ed, and that he, the deponent, thereupon signed his name as a subscribing witness thereto, at the request of the said C. D. In witness whereof, I have hereunto set my hand the day and year in this certificate first above written. William H. Culvee, Justice of the Peace. 59 By Husband and Wife known to the Officer. State of California, ) City and County of San Francisco. \ On this tenth day of July, A. D. one thousand eight hun- dred and fifty-eight, before me, Frederick J. Thibanlt, a notary public in and for said city and county, duly commissioned and sworn, personally appeared John Smith and Sarah 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 executed 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 pur- poses therein mentioned. And I do hereby further certify, that the said Sarah Smith, wife of the said John Smith, 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 thereafter acknowl- edged 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 men- tioned, - 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 ofl&cial seal, the day and year in this certificate first above written. Feedeeick J. Thibatjlt, [l. s.] Notary Public. By Husbcmd amd Wife proven to the Officer. State of California, ) . County of f On this first day of May, before me, &c., &c., \as in the preceding forms], personally appeared John Smith and Sarah his wife, whose names are subscribed to the foregoing deed as parties thereto, satisfactorily proven to me to be the persons de- scribed in and who executed the within conveyance, by the oath of James Browfi, a competent and credible witness for that pur- pose, by me duly sworn; and thereupon they, the said John Smith and Sarah 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 Sarah Smith, wife of the said John Smith, being first made acquainted with the contents of said instru- ment, on an examination separate and apart from and without the hearing of her said husband, acknowledged to me, that she 60 Bancroft's California lawyer. executed the same freely and Toluntarily, without fear or com- pulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same. Witness my hand and seal, &c. Proof of the Execution of am, Instni'ument, wh&re the Subscribing Witnesses are Dead or Absent. State of California, ) g^ . City and County of San Francisco, j On the ninth day of May , A. D., 1858, before me, Samuel Hermann, a notary public, in and for said county, duly commis- sioned and sworn, personally appeared F. H. Woods and J. H. Stebbins, competent and credible witnesses to me personally known ; and the said F. H. Woods, being by me duly sworn, deposed and stated on oath, that he personally knew T. M. Leavenworth, whose name is subscribed to the annexed instru- ment as a party thereto ; that he well knew said Leavenworth's signature, from having frequently seen him sign his name, and believed the name of said Leavenworth so subscribed to said instrument as a party thereto, was subscribed by said Leaven- worth. And the said J. H. Stebbins, being by me duly sworn, stated, that he knew E. A. Lockwood and John T. Doyle, [or, well knew E. A. Lockwood, one of the persons] whose names are subscribed as witnesses to said instrument ; that he well knew their signatures from having frequently seen them sign their names ; and that he believed the names of the said R. A. Lock- wood and John T. Doyle, subscribed thereto as witnesses, were subscribed by said persons. And I hereby certify, that I am satisfied that none of the subscribing witnesses to said instrument can be had to prove the execution thereof; the said R. A Lock- wood being dead, and the said John T. Doyle being absent from the state of California. Witness my hand and seal, &c. \as in th^e foregoing forms.] Execution of Deed by a Corporation.' State of California, ( City and County of San Francisco, I ^ ' On this, &c., {date~\ before me personally came A. B., the pres- ident of the Table Mountain Mining Company, to me personally known to be the individual whose name is subscribed to the foregoing instrument as the president of the Table Mountain Mining Company, and he acknowledged to me that he executed the same as the president of said company for and on the behalf and in the name of said company, as its free and voluntary act and deed for the uses and pui-poses therein mentioned : and in AOKNOWLEDGMENTS, ETC. 61 pursuance of the order and resolution of said company directing such deed to be executed; by signing the same as president thereof and aflixing thereto its corporate seal. In witness whereof, &c., &c. Another Form. State of California, County of Tuolumne. On this, &c., \daiii\ before me came M. N., to me personally known to be the president of the Bald Hill Quartz Mining Com- pany, and the same person who as its president has executed the same,* who being by me duly sworn said, that in pursuance of the direction of the managers of said company, he had executed the same by affixing thereto the corporate seal of said company, and by signing the same as such president. In witiiess whereof, &c., &c. Another Form. \_Proceed as in preceding form to*, and then add] by signing the said instrument and affixing thereto the corporate seal of said company ; and he thereupon acknowledged to me that as and for the act and deed of said company, and by direction thereof, he executed the same freely and voluntarily for the uses and pur- poses therein mentioned. In witness whereof, &c., &c. Acknowledgment by a Married Womam, whose Husband is not Hesidi/ng in the State. State of California, ) . County of . j ■ On this day of 1869 before me M. N., district judge of the judicial district, in and for said county of personally appeared Mrs. Mary Landers, 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 appeared John Doe and R. Roe, two credible and dis- interested 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 Mary Landers, and with Hugh Landers her husband, and has known them, and each of them, for more than one year past. That more than one year ago, to wit : eighteen months ago, the said Hugh Landers deserted his wife, the said Mary Landers, and went to Sonora, Mexico, to reside; announcing his determination 62 Bancroft's califoenia lawyer. and inteutioii to that effect, and lias never since returned. That according to the full belief of deponent, the said Hugh does not reside in this state, and for one year and more next preceding this date, he has not been lonafide residing in this state. AU of which is to me satisfactory proof thereof. And thereupon the said Mary Landers 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 coiirt to be affixed the day and year first above written. M. N. [l. s.], District Judge. . Aohnowledgment ly Servant on a Service Contract. Santa Cruz County, ss: On this first day of, &c., before me personally came Sarah Ford, personally known to me to be the individual described in, and who executed the within contract ; and she acknowledged to me on a private examination by me made that she executed the same freely and voluntarily, for the uses and purposes therein mentioned. ' "Witness my hand, &c.,and the seal of the, &c. G. M. [l. s.J County Judge of Santa Cruz County. ^,H^= By Attorney proven to the Officer. State of California, Connty of EI Dorado, On this fifth day of May, &c., before me personally came A. B., proven satisfactorily to me to be the same person described in, and who executed the within conveyance, as the attorney in fact of C. D., by the oath of G. H., a competent and credible witness for that pui-pose, by me duly sworn; and thereupon, the said A. B. acknowledged before me that he executed the same, as and for the act and deed of the said C. D., freely and volun- tarily, for the uses and purposes therein mentioned. E. H., Justice, &c. Sy an Executor or Administrator or Trustee. State of California, ) Yuba County, f ^^ = On this fifth day of May, &c., before me personally came A. B., personally known to me to be the executor of the last will and testament [or, administrator of the estate] [or, trustee of the estate] of C. D., mentioned and described in the within con- veyance, and the said A. B. acknowledged before me that he ACKNOWLEDGMENTS, ETC. 63 executed the same, as such executor, [or administrator,] [or trust- ee,] as aforesaid, freely and voluntarily for the uses and purposes therein mentioned. In witness, &c. E. F., Justice, &c. J3y a Sheriff'. State of California, ) . City and county of San Francisco, j On this iifth day of May, &c., before me personally came Charles Doane, Esquire, sheriff [or late sheriff, as may ie,] of the said city and county of San Francisco, 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 he executed the same freely and voluntarily for the uses and purposes therein men- tioned. In witness whereof, I have hereunto set my hand and official seal [&c., date.] E. P. Pecktjm, Notary Public. f' l^s: t.7, ) .By a Party to confirm. Deed executed during Infancy. State of California, Los Angeles County, On this fifth day of May, &c., before me personally came A. B., to me personally known to be the individual described in, and who executed the within conveyance, and thereupon duly acknowledged that the said conveyance was formerly executed by him when he was an infant under twenty-one years ; that he has since arrived at full age, and is desirous of confirming his former execution thereof ; and that he now acknowledges that he executed the' same, as and for his act and deed freely and voluntarily for the uses and purposes therein mentioned. E. F., Justice, &c. Certificate of Proof hy Svhscribing Witness hhown to the Officer for Oregon. State of Oregon, ) Multnomah County, j On this fifth day of May, &c., before me personally came 0. D., subscribing witness to the within conveyance, to me per- sonally known to be the person whose name is subscribed to said instrument as one of the witnesses thereto, who, being by me duly sworn, did depose and say, that he resided in the city of Portland, in said county ; that he knew A. B., the individual described in, and who executed the said conveyance ; that he was present and saw the said A. B. sign, seal, and deliver the same, as and for his act and deed ; and that the said A. B. acknowledged 64 BAJJTOEOFT'S CALIFORNIA LAWYER. the execution thereof: whereupon the said C. D. became the sub- scribing witness thereto. E. F., Justice, &c. By Svhsaribing 'Witness ^proven to the Officev. State of Oregon, Multnomah County, \ On this fifth day of May, &c., before me personally came M. jST. and C. D., and the said M. N., to me personally known, having been by me duly sworn, did depose and say, that he resided in the city of Portland in said county;' that he was acquainted with the said C. D., the subscribing witness to the within convey- ance, and that he knew him to be the same person, which Is to me satisfactory evidence thereof ; and the said C. D., being by me duly sworn, &c., \to the end.} E. F., Justice, &c. JBy Subscribing Witness to Deed executed hy a/n Attorney. State of California, \ . Santa Clara County, ( On this fifth day of May, &c., before me personally came C. D., to me personally known to be the person whose name is sub- scribed to the within conveyance as a witness thereto, who, being by me duly sworn, did depose and say, that he resided in the town of Gilroy, in said county ; that he knew A. B. to be the per- son described in, and who executed the within convej'ance, as the attorney in fact of M. N. therein named ; that he was pre- sent and saw the said A. B. execute the same as such attorney, and that he, the said C. D., thereupon became the subscribing witness thereto. Witness, &c., Wm. W. Wigghts, [l. s.] Notary Fublic. Acknowledgment hy Husbcmd and Wife in Oregon. State of Oregon, | County j Be it remembered, that on this fifth day of May, &c., befoi-e ine, a justice of the peace in and for the county aforesaid, ap- peared A. B., and Jane his wife, to me personally known to be the individuals described in and who executed the within deed, and severally acknowledged that they had severally executed the same, for the uses and purposes therein mentioned : And the said Jane, on a private examination, separate and apart from her husband, acknowledged that she executed the within instrunjent freely, and without fear or compulsion from any one. And I further certify, that the persons who made snch acknowledg- ACKNOWLEDGMENTS, ETC. 65 ment are known to me to be the individuals described in, and who executed the within instrument. E. F., Justice, &c. The scrnie in Washington Territory. Territory of Washington, ) . Whatcom County, j Be it remembered, that on the fifth day of May, &c., before me, the subscriber, one of the justices of the peace in and for said county, personally appeared A. B. and Jane his wife, to me person- ally known to be the individuals described in and who executed the within deed, and severally acknowledged that they had executed the same. And the said Jane, after I had made known and ex- plained to her the contents of the said deed, on an examination, separate and apart from her said husband, acknowledged the same to be her act and deed, and that she executed the same voluntarily of her own will and without the fear or coercion of her said husband. E. B. K., Justice, &c. Satisfaction of Mortgage and Acknowledgment, 'by vndimidual known to the Officer. I, A. B., 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 C. D., of the first part, to me, the said A. B., of the second part, and recorded in the office of the recorder of the county of , in book 24 of mortgages, at pages 50 and 51, on the fifth day of May, A. D., 1860, {if the mortgage has ieen assigned, insert the name of the assignee instead of A. £., at the commencement of the certificate / omU the words " me the said" in Italic, and insert here ; and which said mortgage was duly assigned to me by the said A. B., the mortgagee above named, by assignment dated the day of , in the year , and recorded in the office of the clerk of the county of aforesaid, in book 10 of mortgages, at page 19, on the tenth day of July, A. D., 1860], is fully paid, satisfied, and discharged. Dated the first day of July, 1860. A B. In presence of E. B. K. County, ss: On this day of , in the year one thousand eight hundred and sixty, before me personally came A. B., to me per- sonally known to be , the individual described in, and who executed the above certificate, and acknowledged that he ex- 66 BANOBOFT'S CALIFORITIA LAWYER. ecuted the same freely and voluntarily for the uses and purposes therein mentioned. «> • i In witness whereof, I have hereto set my hand and ofecial seal, the dav and year in this certificate first above written. L. M. [l. s.], ITotary Public. Satisf action hy cm Executor, Administrator or Trustee. I, A. B., executor of the last will and testament of C. D., de- ceased, \pr, administrator of the estate of C. D., deceased ; or, trustee of the estate of 0. D., &e.,] do hereby^ certify that a mortgage made and executed by E. F., to the said 0. D., in his lifetime, {or, to me as such trustee as aforesaid,] bearing date, &c. [Follow the preceding farms, as the case may require.'] A. B. In presence of E. B. K. Satisfaction of Judgment in a Justices Oowrt, where a Tran- scrvpt is filed in the County Clerics Office. State of California, ) . County of Sutter, \ County Clerk's Office. A. B. ) Judgment rendered in favor of the plaintiff against against \ defendant, before E. F., Esq., a Justice of the Peace C. D. ) in and for said county, for dollars and cents, damages and costs. Transcript filed in this office and judgment docketed the day of , in the year 1859, in the county court of this county. Satisfaction of the above mentioned judgment is hereby ac- knowledged. ' A. B. County of Sutter, ss : I hereby certify that on this day of , 1859, before me personally came the above named A. B., [&c., the usual form of acknowledgment. See § 208 Practice Act.'] Satisfaction of Judgment , in a Cou/rt of Recm'd.'^ State of California, District Court of the ) 10th Judicial District — County of . j A. B. ) Of the day of January, one thousand eight against > hundred and fifty-nine. 0. D. ) Satisfaction for $ Satisfaction is acknowledged between A. B., plaintiff, and C. ' Satisfaction of Judgment in oo\Trts of record one year after filing the record. Wood's Dig. may be acknowledged by the attorney within art. 140, 942. ACKNOWLEDGMENTS, ETC. _ 67 D., defendant, for dollars. Judgment docketed the tenth day of January, one thousand eight hundred and fifty-nine, in the office of the clerk of said court. \For c&rUjlcate see preceding form^ Application for a Subpoena to compel a subscribing Witness to attend before an officer, to prove the Execution of a Convey- ance. To G. H., Esq., notary public {or other officer authorized to take achnowledgments~\ of county: I, A. B., do hereby make application to you to issue a sub- poena, requiring E. F., 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 I. J., to me, the said A. B., [or, if the application is made by the heir, or personal representative of the grantee, name such grantee^ and to which the said E. F. is a subscribing witness ; the said E. F., having refused, upon my request, to appear and testify touching the execution of the said conveyance ; and the same not having been proved or acknowledged, cannot be stf proved or acknowledged without the evidence of the said E. F. Dated the first day of July, 1859. A. B. County, ss : ( A. B. the applicant above named, being daly sworn, says that the facts stated and set forth in the above application are true. A. B. Sworn to before me, this first day of July, 1859, G. H., Notary Public. Form of the Subpoena. State of California, ) Ccninty, j To E. F., of the town of in said county: In the name of the people of the state of California, you are hereby commanded to appear before me, at my ofiice \or, dwel- ling-house], in the town of , in said county, on the day of July, instant, at ten o'clock in the forenoon, then and there to testify, touching the execution of a conveyance of real estate, from K. B. to A. B., to which you are a subscribing wit- ness, as appears by the application of the said A. B. to me made under oath. Hereof fail not at your peril. Given under my hand, this first day of March, 1860. P. Q. K. Notary Public. - 68 . BANCEOFT'S CALIFORNIA LAWYER. Affidwtit to obtain Warrant, to le endorsed on the original Subpmna. State of California, ) . County, j C. T., of , being duly sworn, says, that on the fifth day of May, instant, at the town of , in said county, he served the within subpoena on E. F., therein named, personally, by then and there showing him the same, and delivering^ to him a true copy thereof, and by paying [or, tendering] to him the sum of for his fees fof travelling to the place specified in the said subpoena, and for his attendance in pursuance thereof, and his reasonable expenses. C. T. Sworn to before me, this day of , &c. P. Q. E., Notary Public. Wa/rrwnt agai/nst Witness. State of California, ) . County, j To the sheriff of said county, greeting : In the name of the people of the state of California, you are hereby commanded forthwith to apprehend E. F., in your county, and bring him before me, O. P., 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 K. B. to C. T., to which the said E. F. is a subscribing -witness, as is said ; the said E. F. having been duly subpoenaed to appear before P. Q. E., a notary public, to testify touching the execution of the said conveyance, and having, with- out reasonable cause, neglected \or, refused] to attend in pur- suance thereof. O. P., Jiily, 1 859. County Judge of county. Commitment for Refusal to Testify. The people of the state of California to A. P., sheriff of the said county, greeting : E. F. having this day been brought before me, on a warrant by me issued to compel his attendance to testity {where the wit- ness appea/rs in pursuance of the subpoena, say : having this day appeared before me, in pursuance of a subpoena by me issued, requiring him to appear and testify] touching the execution of a conveyance of real estate, from K. B. to C. T., to which the said E. F. is a subscribing witness, as is said ; and the said E. F., al- though required by me, having refused to answer upon oath \if the commitment is made on account of the refusal of the witness ACKNOWLEDGMENTS, ETC. 69 to answer a jpartiaular question, deemed pertinent iy the officer, insert here : the following question, &c., specifying it partimi- la/rly'] touching the execution of the said conveyance. You are therefore commanded forthwith to convey the said E. F. to the jail of the said county, and there commit him to close custody in such jail, without bail, until he shall submit to answer on oath as aforesaid \or, the question aforesaid], or be discharged accord- ing to law. O. P., July, 1859. County Judge of county. Oath to he adminidsred to a /Subscribing 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, &c., as above, omitting the words : So help you God : or. You do solemnly, sincerely, and truly affirm and declare, that, &c., as above, omitting the words as aforesaid?^ Oath to a Witness proving the Identity of the Parties, or of the Subscribing Witness, to a Conmeya/nce. You do solemnly swear, that you will true answers make to such questions as shall be put to you, touching the identity of the parties \or, the subscribing witness] to this conveyance. So help you God. \If necessa/ry, va/ry as in the foregoing form.'] Oath to a Deponent. You do solemnly swear, that the contents of this affidavit, by you subscribed, are true. So help you God. [ Va/ry as above when necessary^ 70 BAiTOBOFT'S OALIFOENIA LAWYER. CHAPTEK III. APPEBNTIOES, CLERKS, AND SEEVAKTS. STATUTORY PEOVISIONS. EvEET male infant, and every unmarried female under the age of eighteen years, with the consent of the persons or officers hereinafter mentioned, may, of his or her own free-will, bind himself, or herself, in writing, to serve as clerk, apprentice, or servant, in any profession, trade, or employment ; if a male, until the age of twenty-one years, and if a female, until the age of eighteen years, or for any shorter time ; such binding will be as valid and effectual as if the infant were of full age at th^ time of making the engagement.' Such consent must be given : 1. By the father of the infant. If he be dead, or be not in a legal capacity to give his consent, or if he shall have abandoned and neglected to provide for his family, and such fact be certi- fied by a justice of the peace of the township or county, or sworn to by a credible witness, and such certificate or affidavit be en- dorsed on the indenture, then, • 2. By the mother. If the mother be dead, or be not in a legal capacity to give such consent or refusal, then, 3. By the guardian of such infant duly appointed. If such infant have no parent living, or none in a legal capacity to give consent, and there be no guardian, then, 4. By the supervisors of the county, or any two justices of the peace, or the judge of the Probate Court of the county. Such consent must be signified in writing by the person en- titled to give the same, by a certificate at the end of or endorsed upon the indentures, and not otherwise. > statutes 1858, p. 184. APPRENTICES, ETC. 71 The executors of any last will of a parent, who shall be directed in such will to bring up his or her child to some trade or calling, may bind such child to service, as a clerk or appren- tice, in like manner as the father might have done if living. The supervisors of the county may bind out any child under the ages above specified, who is or shall become chargeable to such county, to be clerks, apprentices, or servants. The child of a parent or parents chargeable to a town or city may be bound out by the presiding officer of the first council or legislative board, or any public officer or officers appointed to provide for the poor. In San Francisco, the board of managers of the Industrial School may bind out the children of the institution. The age of every infant bound as aforesaid, must be inserted in the indenture, and will be taken to be the true age, with- out further proof thereof; and public officers who act in such cases, are required to inform themselves fully of the infant's age. Every sum of money paid, or agreed for, with or in rela- tion to the binding out of any clerk, apprentice, or servant, must also be inserted in the indenture. The person to whom the child may be bound must enter into an agreement to be inserted in the indentures, that he will cause such child to be instructed to read and write, and to be also in- structed in the general rules of arithmetic. The counterpart of any indentures executed by any county, city, or town officers, must be deposited in the office of the clerk of their county, city, or town. Any white person, capable of becoming a citizen of this state, coming from any other country, state, or territory, may bind himself, or herself, to service, if an infant, until majority, or for any shorter term. Such contract of service, if made for the pur- pose of raising the passage-money, may be for tbe -term of one year, although such term may extend beyond the time when he will be of full age ; but shall in no case be foi- a longer term. ISTo contract made as aforesaid will bind the servant, unless it be acknowledged by him or her b.efore some public magistrate, or other officer authorized to administer others ; nor unless a cer- tificate of such acknowledgment, and that the same was made freely, on a private examination, be endorsed thereupon. 72 BAJn'CEOFt'S CALIFORNIA LAWYER. Indians having one-half or more Indian blood cannot be ap- prenticed. No indenture, or contract for the service of any apprentice is valid, as against the person whose services may be claimed, unless made in the manner above prescribed. The master is entitled to all the earnings of the apprentice. A guardian is liable although the apprentice has gone off and left his master. Our laws recognize no general authority in a father to dispose of his children, except for some specific and temporary purpose, such as apprenticeship during the father's life, or guardianship after his death. Such indentures of apprenticesliip may be annulled and de- clared void by any district court, or a judge thereof, or by a county court, or a judge of such court, in the county where the master, or person to whom such apprentice is bound, shall reside, upon satisfactory proof of either of the following named causes : First — Fraud in the contract of indenture. Second — When such contract is not made or executed in accordance with the provisions of this act. Third — For wilful non-fulfilment, by such master, of the provisions of such indenture. Fourth — Cruelty or maltreatment of such apprentice, by the master, without just cause or provocation. And in such case an account may be taken and adjusted by such court or judge for any services rendered by the apprentice for the master under the articles of such indenture ; and, in case such indenture shall be annulled, judgment may be given for Buch sum as may be found equitably due the apprentice, on account of any services so performed by him for such master. For the purpose of annulling such contract of apprenticeship, and recovering for services as aforesaid, application shall be made, either in term-time or vacation, by such apprentice, or on his behalf, but always in his name ; which application shall be made by petition, verified by oath, stating the grounds on which such application is made, the amount claimed, if any, for such services, and praying for the relief demanded. Such petition shall be filed with the clerk of the court, who shall immediately issue a citation thereon, duly certified, stating the grounds of 73 sucli application as set forth ia the petition, and the relief sought thereby. The citation shall also designate the time and place for the hearing of the application, and shall be directed to such master, and shall require him to appear and answer such peti- tion, at the time and place so designated, or in default thereof proof thereon will be heard in his absence, and such judgment as the right of the case will be rendered upon such petition; such citation shall be served at least five days before the day appointed therein for the hearing as aforesaid, by such person or ofiicer (in the same manner and with the like eflect) as is authorized to serve summons in civil cases in courts of record. And on the day appointed for the hearing of the petition, such master may file his answer in writing, verified like the petition, setting forth any just cause why the prayer of the petitioner should not be granted ; and upon such pleadings, the court, or judge in term-time or vacation, shall hear the proofs of the par- ties, who shall be styled plaintiff and defendant as in civil cases, in the same manner, and shall determine the case in all respects as chancery cases are tried and decided under the civil practice act, and may annul such indentures, and grant any remedy or relief provided in this act, either with or without costs. But no adjournment or continuance of the case shall be granted, for any cause, for a longer period than ten days for any one time, and the decision of such court or judge shall be final.' Any person held to service under the provisions of this act, and unlawfully departing and absenting himself or herself there- from, upon the application of the master or mistress of such person, under oath, in wi'iting, to the county judge of the county, that such person has absented himself or herself without permission, the judge may issue a writ reciting the substance of the afi&davit, and commanding that such person be brought be- fore him ; the writ may be served by any officer authorized to make arrests, and if, upon the person being brought before him, and upon an examination of the matter, he is satisfied that such person is legally held to service, and has absented himself or her- self without just cause, he shall order the person held to service to return to the care and custody of the person lawfully entitled > Lawa 1838, pii. 185, 186. 74 banceoft's califoenia lawtbe. to such service or labor. If sucli person persist in refusing to return, or returning, immediately absent himself or herself with- out leave, such judge may order such person held to service to be confined in the county jail, station house, or house of refuge, for such time as he may deem proper, not to exceed one month ; or, at the instance of the master or mistress, may annul the in- dentures.' Any person who shall aid, or assist, or encourage any person to run away, or harbor or conceal any person held to labor, knowing the same to be absent without leave of the master or mistress, shall be deemed guilty of a misdemeanor, and on con- viction thereof, shall be fined in any sum not exceeding one hundred dollars." "Whenever any insane person shall have any claim for lands derived from Spanish or Mexican authorities, and such claim shall have been rejected by the commissioners to ascertain and settle private land claims in the state of California, the guardian of such insane person, appointed or to be appointed, by the Pro- bate Court or judge, shall have power to employ, counsel on behalf of such insane person, and on such terms as he may deem to be the best interest of his ward, to prosecute such claim on appeal before the District Court, or the Supreme Court of the United States, and for that purpose he may sell and convey such portion of the land so claimed as may be necessary therefor, and to meet any necessary expenses that may be incurred in the prose- cution of such claim. The deed of conveyance by the guardian shall be approved by the district judge of the district in which the land is situated, by his approval in writing endorsed thereon, and shall be eflFectual to pass the estate of the said insane person in and to the land so conveyed ; provided, that any contract so made with counsel for the prosecution of any such appeal, shall be first approved by the judge of the District Court of the district in which the land lies, upon petition duly presented for that purpose by the guardian ; (md provided, further, no sale of land, for the purpose aforesaid, shall take place, without a similar approval by the District Court aforesaid, upon a like petition of the guardian.' Laws 1858, pp. 185, 136. 2 id. s id. APPHENTICES, ETC, 75 Any person having or hereafter obtaining a minor Indian, male or female, from the parents or relations of such Indian minor, and wishing to keep it, such person shall go before a jus- tice of the peace in his township, with the parents or friends of the child, and if the justice of the peace becomes satisfied that no compulsory means have been used to obtain the child from its parents or friends, shall enter on record, in a book kept for that purpose, the sex and probable age of the child, and shall give to such person a certificate, authorizing him or her to have the care, custody, control and earnings of such minor, until he or ' she obtain the age of majority. Every male Indian shall be deemed to have attained majority at eighteen, and the female at fifteen years.' Any person having a minor Indian in his care, as described in the foregoing section of this act, and shall negltect to clothe and suitably feed such minor Indian, or shall inhumanly treat him or her, on conviction thereof shall be subject to a fine not less than ten dollars, at the discretion of a court or jury; and the justice of the peace, in his discretion, may place the minor Indian in the care of some other person, giving him the same rights and liabili- ties that the former master of said minor was entitled and subject to." Any person wisliing to hire an Indian, shall go before a justice of the peace with the Indian, and make such contract as the justice may approve, and the justice shall file such contract in writing in his ofiice, and all contracts so made shall be binding between the parties ; but no contract between a white man and Indian, for labor, shall otherwise be obligatory on the part of an Indian.' Complaints maybe made before a justice of the peace, by white men or Indians, and in all cases arising under this act, Indians shall be competent witnesses, their credibility being left with the jury.— [Am. April 28, 1855; R. S. St. 1850, 409;- C. L. 823."] If any person forcibly conveys any Indian from his home, or compels him to work, or perform any service against his will, in 1 Wood's Dig. art. 2648-2646. = id. 2 id. * id. 76 bahtoeoft's oalifobnia lawyer. this state, except as provided in this act, he or they shall, on conviction, be fined in any sum not less than fifty dollars, at the disci'etion of the court or jury." When an Indian is convicted of an offence before a justice of the peace punishable by fine, any white person may, by consent of the justice, give bond for said Indian, conditioned for the pay- ment of said fine and costs, and in such case the Indian shall be compelled to work .for the person so bailing, until he has dis- charged or cancelled the fine assessed against him ; provided, the person bailing shall treat the Indian humanely, and clothe and feed him properly ; the allowance given for such labor shall be fixed by the court, when the bond is taken." It is provided by section 20th of the act relating to Indians, that an Indian convicted of vagrancy may be hired out to service to the best bidder, after public notice, for any term not exceed- ing four months." OREGON. In Oregon children under fourteen, are bound, only till that age, by the father ; or in case of his death or incompetency, or if illegitimate, by the mother (while unmarried), or legal guar- dian ; or if there be none such to act, then by themselves with the approbation of the probate judge, to be endorsed on both parts of the indenture. If above fourteen, they are bound in the same manner, males until twenty-one, and females until eighteen, or marriage within that age, but only upon their consent. The indentures to be in duplicate, signed and sealed ; and in all cases where approved by the probate judge, or made with county commissioners, one part must be deposited with the probate judge.* The county commissioners may bind out the children of parents, or children actually chargeable to the county ; whether under or over fourteen, till the ages mentioned in the foregoing section ; and provision shall be made in the contract, for teaching such children to read, write and cipher ; and for such other instruc- 1 Wood's Dig. art. 2648-2646. ' id. 2657. » id. 2654. < Statutes 0. 897-400. APPRENTICES, ETC. 77 tion, benefit and allowance, either within or at the end of the term, as the county commissioners may think reasonable. All considerations of money, or other things paid or allowed by the master, in the contract, must be paid or secured to the sole use of the minor.' It is the duty of the parents, or other party approving the indenture, to inquire into the treatment of the apprentice, and prosecute the master or mistress in the Probate Court, for cruelty, neglect or breach of covenant; and iipon the hearing the court may annul the indenture. Action may also be brought in the District Court, by or on behalf of the apprentice or servant, for damages, on a breach of the contract; and on such action the minor may also be discharged from the service, and may thereupon be bound anew." If the minor unlawfully depart from the service of the master, upon complaint on oath he may be brought before a justice, by warrant, and returned to the master, or committed to the county jail.' If he be guilty of gross misbehavior, or of wilfiil neglect, or refusal to do his duty, on application to the Probate Court, the master may be discharged from the contract ; the apprentice or his guardian or parent being liable for the costs. The death of the master or mistress concludes the contract, and the minor may be bound out anew.* WASHINGTON. The statutes of Washington do not make provision for appren- tices, further than that in the poor-laws, it is provided that if a minor is likely to become chargeable to the county, it is the duty of the county commissioners to bind such minor as an appren- tice, to some respectable householder of the county by written indenture.' 1 statutes O. 897-400. * Id. ! id. ' Laws Wash. = id. 78 BANCEOFT'S CALIFORNIA LAWYEE. F0EM8. Apprentices Indervtmre. This indenture witnesseth : That James Knox, of the city of Marysville, in the county of Tuba, and state of California, now aged fifteen years, by and with the consent of John Kjiox, his father [or, mother, his father being dead, or, being legally inca- pacitated, or, having abandoned m neglected to provide for his family] endorsed upon this indenture, hath voluntarily, and of his own free-will and accord, put and bound himself apprentice to Henry Jones, of the city of San Francisco, to learn the art, trade and mystery of a baker ; and as an apprentice to serve from this date, for, and during, and until the fail end and term of four years next ensuing, {or, until the said James Knox shall liave attained the age of twenty-one years, which will be on the day of , in the year 18 ,] during all which time the said apprentice shall serve his master faithfully, honestly, and indus- triously ; his secrets keep, and lawful commands everywhere readily obey; at all times protect and preserve the goods and property of his said master, and not suffer or allow any to be injured or wasted. He shall not buy, sell, or traffic, with his own goods, or the goods of others, nor be absent from his said mas- ter's service, day or night, without leave ; but in, all things be- have himself as a faithful apprentice ought to do, during the said term. And the said master shall clothe and provide for the said apprentice in sickness and in health, and supply him with suitable food and clothing; and shall use and employ the utmost of his endeavors to teach, or cause him, the said apprentice, to be taught or instructed, in the art, trade, or mystery of a baker ; and also cause the said apprentice, within such term, to be in- structed to read and write, and to be taught in the general rules of arithmetic, or in lieu thereof, that he will send the said James Knox to school, three months of each year of the period of this indenture. ]_If necessa/ry, insert here : And the said Henry Jones acknowledges that he has received, with the said James Knox from John Knox his father, [or, mother,] the sum of dollars, as a compensatioa for his instruction, as above men- tioned; or: And the said Henry Jones further agrees to pay to the said James Knox the following sums of money, viz. : for the first year of his service dollars per month; for the second year of his service dollars per month ; and for every sub- sequent year, until the expiration of his term of service, dollars per month ; which said payments are to be made on the first day of each month in each year.] And for the true performance of all and singular the covenants ' APPRENTICES, ETC. 79 and agreements 'aforesaid, the said iparties bind themselves, each unto the other, firmly by these presents. In witness whereof, the parties aforesaid have hereunto set their hands and seals, the fifth day of May, in the year one thou- sand eight hundred and sixty. Signed sealed and delivered in James Knox. [l. s.J presence of William Dokan. Hbney Jonhs. [l. b.] Consent of Father or Mother. I, John Knox, father of the within named James Knox, a minor, do hereby consent to, and approve of, the binding of mj son the said James Knox, as in the above \or, within] indentni-e mentioned. Dated the 5th day of May, in the year 1860. John Knox. Justice^ s Oertifioate, where Mother gives Consent. I, B. C, a justice of the peace of the city and county of San Francisco, do cfertify, that the father of the infant named in the within indenture, is dead, [or, is not in legal capacity to give his consent thereto ; or, has abandoned and neglected to provide for his family.] Dated the day. of , 1860. B. C, Justice of the Peace. Consent of Gua/rdian. I, 0. G. Bryant, the guardian, duly appointed, of Jjeo. Bruce, in the within indenture named, do certify, that the father and mother of the said Geo. Bruce are dead, \_or, that the father of the said Geo. Bruce is dead, and that the mother of the said Geo. Bruce is not in legal capacity to give her consent to the said indenture of apprenticeship ;] and that I do hereby consent, as his guardian, that he, the said Geo. Bruce, may bind himself in and by the said indenture. Dated the first day of May, 1859. C. G. Betant, guardian of the said Geo. Bruce, a minor. Certificate of Consent of the Supervisors of the County, two Jus- tices of the Peace of the County, or Judge of the Probate Court of the County in which the Infant resides. "We, the undersigned, the supervisors of the county of by A. B. their president, duly authorized by us to sign for us \ G.H. ) The people of the state of California send greeting : To G>. H. A. B. having filed in this court his petition, praying that his indenture of apprenticeship with you may be annulled, and that he recover the sum of twenty-five dollars due from you, and for general relief, on the ground^ of your refusal to pay him the amount agreed upon in said indenture, and of cruelty and mal- treatment, the hearing of the same has been fixed for Monday the day of next, at ten o'clock in the forenoon, of that day, at the court room of this court, at the court-house in the city of Los Angeles, at which time and place you are cited to appear and answer the said petition, or in default there- of, proof therein will be heard in your absence ; and such judg- ment as the right of the case demands will be rendered on said petition. Given under my hand, and the seal of the county court of the county of Los Angeles, this day of in the year of our Lord one thousand eight himdred and fifty-nine. Chaeles K. Johnson, [l. s.] Clerk. Certificate of Apprenticeship of an Indian Minor. State of California, ) City and County of San Francisco, j Before B. Carman, Justice of the Peace in and for the third township of said county. In the matter of the care, custody and con- ) trol, of " Mariposa," an Indian minor : ) Charles Cole, a resident of this city and county, having, this first day of June, 1859, appeared before me with the parents \or, 86 BANGROPT'S CALIFORNIA LAWYER. friends,] of a female minor Indian, named "Mariposa," which child he has obtained from the parents [ot", relatives] of said minor, and having made application for authority to keep the said minor, and after a full examination of the matter, it appear- ing satisfactorily to me that no compulsory means have been used to obtain the child from its parents or friends, and it appear- ing that the age of said child, so far as can be ascertained, is under fifteen years [if a male, under eighteen years], to wit, if the age of ten years, and there appearing to me no valid objec- tion to binding out said child to the said applicant, I do hereby certify that the said Charles Cole is authorized to have the care, custody, control and earnings of said minor " Mariposa," until she attain the age of fifteen years [if a male, eighteen years]. Witness my hand the first day of June, 1859. B. Cabman, Justice, &c. Order of a Justice transferring an Indian Minor to a new Master. State of California, ) . City and County of San Francisco, f Before B. Carman, Justice of the Peace in and for the third township of said county. In the matter of " Mariposa," an Indian minor. Charles Cole, having been convicted on trial this day duly had before me, of neglecting to clothe and suitably feed [or, of inhu- manly treating] " Mariposa," a female minor Indian, in his care, and it appearing to me, that he is not a proper person to have the care and control of said minor, I do hereby order and direct, that the said " Mariposa " be removed from the care, custody and control of said Charles Cole, and that she be placed in the care of Henry Thorn, a competent and suitable person, who is hereby authorized to have the care, custody, control and earnings of said " Mariposa" until she arrive at the age of majority. Witness my hand this first day of August, 1859. B. Carman, Justice, &c. Contract of Service hy an Indian. This contract made between Paul Sampson, and Panoche, an Indian, showeth : — That said Panoche agrees to serve the said Sampson, for the period of five years, as a body-servant, to do and perform any and all services of every description that may be reasonably re- quired of him by said Sampson, and in consideration thereof, the said Sampson agrees fo feed and clothe the said Panoche, and furnish him with comfortable lodgings, during the said period to APPRENTICES, ETC. 87 pay him weekly the snm of one dollar, and at the end of his term of service, to wit, the first day of May, 1864, to pay to him the sum of three hundred dollars, and a new suit of clothes. Witness our hands this first day of May, 1859. Paul Sampson. In presence of Panoche, X his mark, Laweence Eyan, Justice of the Peace. City and County of San Francisco, ss : I, Lawrence Ryan, justice of the peace of said county in and for the first township, certify that I approve of the foregoing contract of service, and I do hereby file the said contract in my office, as required by statute, this first day of May, 1859. Laweence Etact, Justice, &c. 88 CHAPTEK IV. AitBITEATION. Persons capable of contracting may, by agreement in writing, submit to arbitration any controversy which might be the subject of a civil action between them,' except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property.' It may be stipulated in the submission, that it be entered as an order of the District Court, for which purpose 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 the 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 revoked 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. Arbitrators shall have power to appoint a time and place for hearihg, to adjourn from time to time, to administer oaths to witnesses, to hear the allegations and evidence of the parties, and to make an award thereon.' All the arbitrators shall meet and act together diiring the investigation; but when met, a majority may determine any question. Before acting they shall be sworn before an ofiicer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation 1 Wood's Dig. art. 880-385. AEBITEATIOSr. 89 to the matters in controversy, and to make a just award accord- ing to their understanding.' The award shall be in writing, signed by the arbitrators, or a majority of them, and delivered to the parties. When the sub- mission is made an order of the court, the award shall be filed with the clerk, and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an afi&davit, 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;' 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 : 1. That it was procured by corruption or fraud. 2. That the arbitrators were guilty ,of misconduct, or committed gross error in refusing on cause shown to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced.' 3. That the arbitrators exceeded their powers in making their award ; or that they refused, or im- properly omitted to consider a, part of the matters submitted to them ; or that the award is indefinite, or cannot be performed." The court may, on motion, modify or correct the award, where it appears : 1. That there was a miscalculation in figures, upon which it was made, or that there is a mistake in the description of some person or property therein. 2. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matter submitted. 3. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded." 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." > Wood's Dig. ai-t 380-885. » id. 386-389 90 bajstceoft's oalifoenia lawyee. If a submission to arbitration be revoked, and an action be brought therefor, the amount shall only be the costs and damages sustained in preparing for and attending the arbitration.' JUDICIAL DECISIONS The submission of a cause in court to arbitration operates as a discontinaance of the suit ; a consent to submit a matter to arbi- tration does not imply a consent that the party in whose favor the award is made, may enter judgment upon it in court as a matter of course. The ordinary way of enforcing an award is by action ; and where no statute exists authorizing the court to enter judgment on an award upon motion, the court has no right to proceed in that way.'' Unless the statute is strictly complied with, a submission of a cause to arbitration amounts only to its withdrawal from the jurisdiction of the court, which loses all control over it, and has no authority to enter judgment upon the finding of the arbi- trators, except by consent of parties.' Oar statute is but a reafiirmance of the common law, and ' gives to parties no higher rights than they might have asserted in a court of equity, in case of mistake, fraud, or accident. The arbitrators are not bound to decide on principles of strict law, but may decide on principles of equity and good conscience.* K arbitrators intend to decide according to law, and mistake the law, the court will set aside their award.' In all cases where the arbitrators give the reasons of their find- ing, they are supposed to have intended to decide according to law, and to refer the point for the opinion of the court. In such cases, if they mistake the law, the award must be set aside, for it is not the opinion they intended to give, the same having been made through mistake.' Where parties refer all their differences to arbitration, it is the duty of the arbitrators to pass upon the whole subject in contro- versy, and if it appear upon the face of the award that they have not disposed of the whole matter, but have left a part open ; 1 Wood's Dig. art. 886-889. < id. 205 ; 2 id. 74. "lOal. 45. i>2id. 74; id. 122. 3 4 id. 1. ABBITEATION, 91 or, if the terms of the award be such as to render a further in- quiry necessary to ascertain a sum of money to be paid, or some act to be done, it is void, and will be set aside. "When arbi- trators have published their award by delivering it to the parties as the award, any revision, correction, or alteration made by them, without the consent of the parties, will vitiate it.' A stipulatioh in the submission that neither party should appeal, and a power of attorney to confess judgment pursuant to the award, will not bar an appeal from a judgment on the award, especially under our system, where law and equity are blended together." Contemplative, speculative and contingent profit, cannot be allowed as damages.' An award to be efiectual must be certain and conclusive, and all intendments must be in favor of giving it certainty. The court must lean to such construction as will support it, and the uncertainty, if any, must appear upon its face." Courts of equity will set aside awards for fraud, mistake, or accident, and it makes no difference whether the mistake be one of fact, or law.' The award rendered upon a fair arbitration of the matters in dispute, and long concurred in, is conclusive of the rights of the parties.' Where parties enter into a submission to arbitration, wherein it is stipulated that the award be entered, as the judgment of the county court, it is void, in toto, that court having no jurisdiction over the subject matter of the award.' One partner cannot bind his copartner by submission of part- nership matters to arbitration, but such submission would be good as against himself.* A submission to arbitration cannot be entered as an order of the county court, from want of jurisdiction." When an arbitrator exceeds his authority, the effect of his act is void, whether done conscientiously or by mistake.'" I 7 Oal. 813. ' S id. 179. a 2 ii. 74. 7 9 id. 142. 2 1 id. 122. ° 5 id. 845. 4 2 id, 601. ' 9 id- 1*2. = id. 74, 122. '° S Abtott, 28. 92 bajstcroft's California lawyer. An award whicli leaves nothing to be done, to dispose of the whole matter in controversy, except mere ministerial acts, is suf- ficiently final and certain.' By the constitution of California, tribunals of conciliation are authorized to be established, but no action has yet been had in the legislature on the subject ; should such tribunals be estab- lished, they will be found to differ very slightly in character from our present courts of arbitration, and the forms used in the one can readily be adapted to the other. OREGON. The foregoing provisions apply substantially to Oregon, except so far as modified by the following sections of the statutes of that state on the subject. No statutory provision upon the sub- ject of arbitration appears in the laws of Washington Territory. All controversies which might be the subject of a personal ac- tion at law, or of a suit in equity, may be submitted to the de- cision of one or more arbitrators.' 1^0 such submission shall be made respecting the claim of any person to any estate in fee or for life to any real estate, but any claim to an interest for a term of years, or for one year or less, in real estate, and controversies respecting the partition of lands between joint tenants, or tenants in common, or concerning the boundaries of lands, or concerning the admeasurement of dower, may be submitted to arbitration; but nothing in this chapter contained shall preclude the submission and arbitrament of con- troversies according to the common law." The parties may appear in person, or by their lawful agents or attorneys, before any justice of the peace or clerk of the District Court, and there sign and acknowledge an agreement in sub- stance as follows : Know all men that A. B., of , and C. D., of , have agreed to submit the demand, a statement whereof is hereto annexed [and all other demands be- tween them, as the case may 5e], to the determination of , and ; the award of whom, or 1 23 Barb. 187. s Stututos 0. ITO. ABBITEATION. 93 the greater number of whom, being made and reported within days from this date, to the District Court for the county of , shall be final ; and if either of the parties shall neglect to appear before the arbitrators, after due notice given them of the time and place appointed for hearing, the other parties may proceed in his absence. Dated this day of , A. D., 185 A. B. CD. And the justice or clerk shall subjoin to the said agreement his certificate, in substance as follows : State of Oregon, ) County of , f ^^• Personally appeared before me, the above named A. B. and C. D., [or, personally appeared, the above named A. B., and the said C. D., by , his attorney, as the case may 5«], and acknowledged the above instrument, by them signed, to be their free act. Dated this day of 185 . J. P., Justice of the Peace. If any specific demand be submitted to the exclusion of others, the demand submitted shall be set forth in the statement an- nexed to the agreement of submission, otherwise it shall not be necessary to annex any statement of a demand, and the words in the agreement relating to such statement may be omitted, and the submission may then be of all demands between the parties, or of all demands which either of them has against the other, or the submission may be varied in this respect, in any other man- ner, according to the agreement of the parties,' The award shall be delivered by one of the arbitrators to the clerk of the District Court, designated in the agreement of sub- mission, or shall be enclosed and sealed by them and transmitted to the clerk, and shall remain sealed, until opened by such clerk." The award may be returned at any term or session of the court, that shall be held within the time limited in the submis- sion ; and the parties shall attend at ewery such term or session, without any express notice for that purpose, in like manner as ' statutes 0. 177. 94 BANCEOFT'S CALIFORNIA LAWYER. it an action for tlie same cause were pending between them in the same court ; but the court may require actual notice to be given to either party, when it shall appear to them necessary or proper, before they proceed to act upon the award.' Upon such award being confirmed or modified, the court shall render judgment in favor of the party to whom any sum of money or damages shall have been awarded, that he recover the same ; and if the award shall have ordered any act to be done by either party, judgment shall be entered that such act be done according to such order. The costs of proceedings shall be taxed as in suits, and if no provision for the fees and expenses of the arbitrators shall have been made in the , award, the court shall make a suitable allowance.' A record of such judgment shall be made, commencing with a memorandum reciting the submission, then stating the hearing before the arbitrators, their award, the proceedings of the court thereupon, in modifying or confirming such award, and the judg- ment of the court for the recovery of the debt or damages awarded, or other act to be done, and that the parties perform the acts ordered by the award, and for the recovery of the costs allowed." Such record shall be filed and docketed as records of judg- ments in other cases; shall have the same force and effect in all respects; be subject to all the provisions of law in relation to judgments in actions, and may in like manner be moved and reversed by writ of error or appeal, and execution shall issue thereupon." If there be no provision in the submission concerning the costs of the proceedings, the arbitrators may make such award respecting the costs as they shall judge reasonable, including therein a compensation for their own services ; but the court may reduce the sum charged for the compensation of the arbitrators, if it shall appear to them unreasonable." "Where, by such judgment, any party shall be required to per- form any act other than the payment of money, the court rend- ering such judgment shall enforce the same by rule; and the party refusing or nfeglecting to perform and execute such act, or ' StattitoB 0. 1T8. 2 Id. 1T9 ARBITRATION. 95 any part thereof, shall be subject to all the penalties of contem- ning an order of such court.' FOEMS. General 8vhmission — short Form. "We, the undersigned, mutually agree to submit and do hereby submit all our matters in difference, of every name or natnre, to the award and decision of P. Q., E. S., and T. XJ., for them to hear and determine the same, and make their award in writing, on or beforfe the fifth day of May next. Witness our hands, this fourth day of March, 1860. In presence of ) £ B K 0. M. D. f M.M.B. General Submission. Whereas differences have for a long time existed, and are now existing^ and pending, between A. B., of, &c., and C. D., of, &c., in relation to divers subjects of controvei'sy and dispute : Now, therefore, we, the undersigned A. B. and C. D., aforesaid, do hereby mutually covenant and agree, to and with each other, that P. Q., E. S., and T. TJ., of, &c., or any two of them, shall arbitrate, 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 faithfully observe keep and abide by the decision and award said arbitrators shall make in writing, on or before the day of A. D. 1860. Witness our hands and seals this tenth day of August, 1859. A. B. [l. s.] C. D. [L. s.] Special Submission. Whereas a controversy is now existing and pending, between A. B., of, &c., and G. I)., of, &c., in relation to certain mining claims and quartz mills, made by and between the said parties, at the town of , aforesaid, on the day of last past : ]^ow, therefore, we, the undersigned A. B. and 0. D. aforesaid, do hereby submit the said controversy to the arbitra- ment of P. Q., E. S., and T. U., of, &c.,; or any two of them ; and we do mutually covenant and agree, to and with each other, . 1 statutes 0. 179. 96 Bancroft's caliporstia laavter. 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 P. Q., R. S., and T. TJ., 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. Witness our hands, [as in the foregoing ?\^ Bond of Arbitration. Know all men by these presents, that I, A. B., of, &c., am held and firmly bound to 0. D., of, &c., in the suifi of $500, lawful money of the^ United States, to be paid to the said C. D., or to his executors, administrators, or assigns, for which payment to be well and faithfully made, I bind myself, my heirs, execu- tors, and administrators, firmly, by these presents. Sealed with my seal ; dated the day of A. D. 1869. The condition of this obligation is such, that if the above bounden A. B., his heirs, executors, and administrators, shall, and do, in all things, well and truly abide by, perform, fulfil and keep the award, order, arbitrament, and final determination of M. IT., 0. P., and Q. E.., of, &c., arbitrators as well on the part and behalf of the above bounden A. B., as of the above-named C. D., to arbitrate, award, order, judge, and determine, of; and concerning all and all manner of action and actions, cause, and causes of actions, suits,bills, bonds, specialities, judgments, execu- tions, quarrels, controversies, trespasses, damages, and demands whatsoever, at any time heretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or de- pending by and between the said parties, so as the said award be made in writing, under the hands of the said M. IN"., 0. P., and Q. E.., 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 remain in full force. A. B. [l. s.] Sealed and delivered in presence of ) C. D. [l. s.l Y. Z. \ Oond/ltion of Bond on a Special Submission. The condition of the above obligation is such: That if the above bounden A. B. shall well and truly submit to the decision of M. ]Sf., O. P., and Q. R., named, selected, and chosen arbitra- tors, as well by and on the part and behalf of the said A. B., as of the said C. C, between whom a controversy exists, to hear all the proofs and allegations of the parties, of and concerning a cer- ARBITRATION. 97 tain mining claim made by and between them, at the town of , aforesaid, on the day of, &c., and all matters relating thereto ; so as the award be made, &c., [as m the fore- going.] Notice to Arbitrators of thei/r Appointtnent. To P. Q., E. S., and T. U., Esquires : You are hereby notified, that you have been nominated and chosen arbitrators, as well on the part and behalf of the under^ signed A. B., of, &c., as of C. D., of, &c., also undersigned, to arbitrate, award, &c. [specifying the time within which, as stated in the suimission or bond, the award must he made] ; and you are requested to meet the said parties at the office of Y.'Z., in the town of Dry Creek, aforesaid, on the day of, &c., at ten o'clock in the forenoon 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, &c. Yours, &c., A. B. CD. Ifotice of Hearing. In the matter of an arbitration, of and con- cerning certain matters in difference be- tween A. B. of the one part, and C. D. of the other part. Sir : You will please take notice that the arbitrators have ap- pointed a hearing in the matter above specified, to be had before them, at the house of E. P., in the town of, &c., on the day of, &c. Dated the day of, &c. Yours, &c., A. B. Or, Y. Z., Attorney for A. B. To 0. D. Or, P. Q., K. S., and T. U., Arbitrators. Arbitrrator' s Oath. [To he adrmnistered hy any officer authorized to administer oaths.] You do severally swear, faithfully and fairly to hear and ex- amine the matters in controversy between A. B., of the one part, and 0. D., of the other part, and to make a just award accord- ing to the best of your understanding. Another Form, in writi/ng. We the undersigned, arbitrators, appointed by and between A. B. and C. D., do swear that we, respectively, will faithfully 7 98 Bancroft's califoenia lawyee. and fairly hear and examine the allegations and evidence of the said parties in relation to the matters in controversy between them, and will make a just award therein, according to the best of our understandins;. P- Q- ^s- E. S. T. U. Sworn to, this day of 18 , before me, E. K., Justice of the Peace. Subpoena on Arbitration. County, j The People of the State of California, to , and , greeting : We command you, and each of you, personally to appear and attend at the house of E. P., in the town of , in said county, on the day of instant, at ten o clock in the forenoon of that day, before P. Q., P. S., and T. U., arbi- trators chosen to determine a controversy [or, certain matters in controversy], between A. B. and C. D., whereof the submission is on file in this court, then and there to testify in relation there- to, before said arbitrators, on the part of the said A. B. Hereof fail not at your peril. Witness, Hon. Saml. B. McKee, Judge of the District Court of the 3d Judicial District in and for the county of Santa Clara, and the seal of said court, this day of 1859. J. B. HJEwsoif [l. s.], Clerk. Oath of Witness before Arbitrators. 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 A. B. and C. D., shall be the truth, the whole truth, and nothing but the truth, so help you God. S&oooation by both Parties. To P. Q., E. S., and T. U., Esquires : Take notice, that we do hereby revoke your powers as arbi- trators under the submission made to you by us in writing, and entered as an order of the fourth District Court [or as the case may be], on the day of , 18 . A. B CD. ARBITEATION. 99 Notice of Revocation iy one Pa/rty {the Submission not having ieen entered as an Order of Court.) To C. J). : mmmmm You are hereby notified, that I have this day revoked the powers of P. Q., K. S., and T. U., arbitrators chosen to settle the matters in controversy between us ; and that the following is a copy of such revocation : {^Insert the revocation, made hy one of thepa/rties only.'] Dated the day of , 1859. Yours, &c., A. B. Award. In the matter of the arbitration of certain 1 matters in difference between A. B., on V the one part, and 0. D., on the other. ) Know all men, that P. Q., R. S., T. U., to whom were sub- mitted, as arbitrators, the matters in controversy existing between ,A. B., of, &c., and C. D., of, &c., as by their submission in writ- ing, and bearing date the day , A. D. 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 C. D. shall make, execute, and deliver to the said A. B., on or before the day of instant, a good and sufiBcient assignment of a certain bond and mortgage executed, &c., to the said C. D., &c. ; and the said A. B. shall pay, or causfe to be paid, to the said C. D., the sum of dollars, immediately upon the execution and delivery of the said assignment ; [or, the said 0. D. shall pay, or cause to be paid, to the said A. B., the sum of dollars, within ten 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 C. D., to the said A. B. ; or, the said C. D. shall henceforth forever cease to prosecute a certain suit commenced by him, against the said A. B., in the District Court of, &c., now pending and undetermined in the said court ; and the said A. B. shall pay, or cause to be paid, to the said C. D., on or before the day of, &c., the sum of dollars, in full satisfaction of the costs, charges, and expenses incurred by the said C. D., in and about the prosecution of his suit, as afore- said.] And we do further award, adjudge, and decree,, that the' said A. B. and 0. D. shall, and do, within ten days .next ensuing, the date hereof, seal and execute unto each other, mutual and; general releases of all actions, cause and causes of action, suits,, controversies, claims, and demands whatsover, for, or by reason of any matter, cause, or thing, from the beginning of the world. down to the date of the said submission. 100 BANCEOFT'S CALIFORNIA LAWYEB. In witness whereof, we have hereunto subscribed these pres- ents, this day of , one thousand eight hundred and In the presence of 0. M. D. P- Q- K. S. T. U. Release to ie executed ly PaHy to an Arbitration, when reqwired m the Award. Know all men by these presents, That I, A. B., of the of , for and in consideration of the sum of one dollar to me in hand paid by C. D. of , and in pursuance of an award made by P. Q., E. S., and T. U., arbitrators between us, the said A. B. and 0. D., and bearing date the day of , one thousand eight hundred and , do hereby release, and forever discharge the said C. D., his heirs, executors, and admin- istrators, of and from all actions, cause and causes of action, suits, controversies, claims, and demands whatsoever, for, or by reason of any matter, cause, or thing, from the beginning of the world down to the day of , one thousand eight hun- dred and . [Insert the date of the submission.'] In witness whereof, I have hereunto set my hand and seal, this day of , 1859. A. B. [l. s.] In presence of C. M. D ASSIGNMENT. 101 CHAPTEE V. ASSIGNMENT. Assignment is the transfer, or passing over, of one's right, in- terest and ownership, in znj particular estate, property or thing, to another ; which may be done in some instances by a simple delivery of the property, or by a verbal declaration to that effect, accompanied by the intention between the parties, that the one parts with the thing or property, and that the other receives it and becomes the owner thereof. In general, however, this act is performed by delivering a writing showing the intention of the parties, which writing is itself called an assignment. An assignment may be a gift, a sale, or a temporary or condi- tional transfer of ownership or title ; and may be made of lands, inheritances, goods, liens, claims, suits, rights — in short, any thing that is property. If it be necessary to bring suit upon a claim or other matter which has been assigned or sold, such suit must be brought in the name of the assignee, as the plaintiff. The statutes of this state, and of Oregon and Washington, are uniform, in requiring every action to be prosecuted in the name of the real party in interest, with some exceptions, such as in certain cases of trusts." Every assignment, in writing or otherwise, of any estate or interest in lands, or in 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, forfeit- ures, debts or demands, is void." Every assignment, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making ' Wood's Dig. art. 789; Statutes 0. 82; Stat- ' Weod's Dig. art 408; Statutes 0. 529. ntes W. 131. 102 Bancroft's California lawyer. the same, is void against the creditors, existing or subsequent, of such person." The words " assigned to A. B." written on the back of an account, and signed by the assignor, are held to be a sufficient assignment. An order drawn by a creditor upon his debtor, for the whole amount of his debt, whether accepted or not, is an assignment of such debt.'' Where 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 assigned, the assignment must be in writing, signed and sealed by the party assigning, or by his agent, lawfully authorized in writing.' Every grant or assignment, of any existing trust, in land, goods, or things in action, unless in writing, subscribed by the party, or his lawfully authorized agent, is void.* Every sale made by a vendor of goods and chattels in his pos- session 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 charge of possession of things sold or assigned, shall be conclusive evidence of fraud, as against the creditors of the vendor or assignor, or subsequent purchasers in good faith; except in cases of contracts of bottomry, respondentia, or assignments, or hypothecations 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.' An assignment of a bond, note, or other instrument for the payment of money, secured by a mortgage, is held in this state to have the effect of a transfer of the mortgage also, the latter being only an incident to the debt." The assignment of a thing carries with it all that belongs to it by right of accession — as interest, or rent. Transfers of stock in a corporation, to be valid as against third parties, must be entered in the books of the company, so as to ' Wood's Dig. art. 899; Statutes 0. 527. » "Wood's Dig. art. 408, 404, 406; Statutes 0. = Wheatley «. Strobe, Jan. Term, 1859. 52T, 528. ' Wood's Dig. art. 894; Statutes O. 526. « 6 Cal. 184. * Wood's Dig. art. 409 ; Statutes 0. 529. ASSIGNMENT. 103 show the names of the parties; by whom and to whom trans- ferred, the number and designation of the shares, and the date of the transfer.' General assignments by insolvent debtors, for the benefit of their creditors, being confined to the special statutory proceeding provided in the act of the legislature of California, of 1852, are treated of in this volume under the head of " Insoltenot." Although under this statute, a general assignment of the prop- erty of an insolvent debtor in trust for the benefit of creditors, cannot be made by a voluntary assignment at common law, but is limited to the statutory assignment prescribed in that act, yet a debtor may transfer his property directly to his creditor, either absolutely in payment of his debts, or as security by way of mortgage." OREGON. The statutory provisions quoted or mentioned above, except in relation to insolvent debtors, have been enacted almost identi- cally in Oregon. There being no special legislation prescribing a statutory as- signment by insolvent debtors, the common law voluntary assign- ment may be here briefly considered. An insolvent debtor may give a preference to one creditor, to the exclusion of all others, provided it be done in good faith; and this even after suit commenced against him by another creditor. If the assignor reserve to himself the power to revoke the con- veyance ; or to change the trusts, by giving a preference to other creditors at a future time ; or if he direct the surplus, after pay- ing the preferred creditors, to be returned to him ; the convey- ance will be void. The doctrine is well established, that the debtor must make an unconditional surrender of his effects, for the benefit of those to whom they rightfully belong. An assignment, made by an insolvent debtor, of all his prop- erty, in trust, to pay certain specified creditors, and then, without making provision for the remaining creditors, in trust, to recon- vey or reassign the residue to the debtor, is void on its face as to 1 Wood's Dig. art. 488. ' 10 Cal 369, 491. 104: BANOKOPT'S CALIFORNIA LAWYER. the creditors not provided for ; and proof that there would be no surplus will not make it good. General assignments by an insolvent debtor, giving preferences to certain creditors, are upheld reluctantly by our courts, and they must be executed in perfect good faith, and an entire and absolute surrender of the debtor's property must be made for the payment of his debts. An assignment by an insolvent debtor, in trust, to pay prefer- red creditors, should not authorize the trustees named therein to sell property on credit. All assignment for the benefit of creditors, authorizing the assignee, in his discretion, to change the order of preference of the creditors, is fraudulent and void. Where an assignment is made for the benefit of creditors, it must be accompanied by immediate delivery, either actual or implied. Voluntary conveyances in trust for creditors are regarded with jealousy, but the question of fraudulent intent is always one of fact, and not one of law. WASHINGTON. The only general statutory provision upon the subject of as- signments in Washington Territory, except as already stated, that actions must be prosecuted in the name of the assignee, is as follows : All deeds of gift, all conveyances, and all transfers or assign- ments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the existing or subsequent creditors of such person.' No bill of sale for the transfer of personal property, shall be valid as against existing creditors, or innocent purchasers, where the property is left in the possession of the vendor, unless the said bill of sale be recorded in the auditor's ofiice of the county in which the property is situated, within ten days after such sale shall be made.' > statutes W. T. p. 408. « Id. 404. ASSIGNMENT. 105 The law governing voluntary assignments by insolvent debtors, is substantially as quoted above, in treating of the law of assign- ments in Oregon. FOEMS. Simple Form qf Assigmnent {to ie Midorsed upon cm Instrvmient.) In consideration of the sum of dollars to me in hand paid, by Geo. L. Kenny, of, &c., the receipt whereof is hereby acknowledged, I do hereby transfer, assign, and set over to the said Geo. L. Kenny, his heirs and assigns forever, all ray right, title, or interest in and to the within instrument. Witness my hand and seal, this fifth day of May, 1861. Albeet L. Banoeoft. [l, s.J In presence of C. M. Deebt. Assignment of Bond. Know all men by these presents : That I, A. B., of, &c., of the first part, for and in consideration of the sum of one thousand dollars, lawful money of the United States of America, to me in hand paid by 0. D., of, &c., of the second part, the receipt whereof is hereby acknowledged, have bargained, sold, and as- signed, 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 con- dition thereof, bearing date the fifth day of May, one thousand eight hundred and sixty, executed by E. F. to the said A. B., and all sum and sums of money, due, or to grow due thereon : And I hereby covenant with the said party of the second part, that there is now due on the said bond or obligation, according to the condition thereof, for principal and interest, the sum of dollars. In witness, &c. Assignhient qf Note and Mortgage. Mortgage dated the day of, &c., executed by E. F., and M. nis wife, to A. B., on certain premises described therein, being part of 60 Yara, lot No. 203, in the city and county of San Trancisco ; recorded in the office of the recorder of said county, in book E"o. of Mortgages, pages , &c. Note bearing date the day aforesaid, executed by E. F. to A. B., aforesaid, in the sum of dollars, secured by the above mortgage, on the day of , 18 , with interest at two per cent, per month. 106 BANCEOFT'S CALIFORNIA LAWYER. In consideration of dollars, to me paid, by C. D., of, &c., I do hereby assign, transfer and set over, unto the said C. D., the mortgage above described, and the note accompany- ing the same, as aforesaid, for his use and benefit; hereby au- thorizing 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 from the 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, &c. The Same, Endorsed on Mortgage. In consideration of dollars, to me in hand paid, by J. W. Park, of, &c., I do hereby sell, assign, transfer, and set over, unto the said J. W. Park, the within indenture of mort- gage, together with the note accompanying the same, f6r his use and benefit. Witness my hand and seal, &c. Assignment of Mortgage and Note. — Another Form. Know all men by these presents : That I, Michael C. Nye, ol the first part, in consideration of the sum of one thousand dol- lars, lawful money of the United States of America, to me in hand paid by John Bidwell, 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 Indenture of Mortgage bearing date the tenth day of May, A. D. one thousand eight hundred and fifty- two, made and execiited by George Thompson, to the said party of the first part, to secure the payment of the sum of eight hun- dred 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 ofiice of the recorder of the city and county of San Fran- cisco, in Liber of Mortgages, page on the eleventh day of May, A. D. 1852, to have and to hold the same unto the said party of the second part, his executors, administrators and assigns, for their use and benefit; subject only to the proviso in the said Indenture of Mortgage mentioned. And 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 ASSIGNMENT. 107 owiug upon the said note and mortgage, the sum of eight. hun- dred dollars, with interest from the first day of March, A. D. one thousand eight hundred and fifty-seven. In witness whereof I have hereunto set my hand and seal, the tenth day of February, A. D. one thousand eight hundred and fifty-nine. Michael 0. Nye. [l. s.j Signed, sealed and delivered in the presence of Assignment of Bond and Mortgage as Collateral Secv/rily. This indenture, &c., [as in the forms preceding, then add:'] But this indenture \or, this assignment] is, nevertheless, made upon this express condition, that if the said A. B., his heirs, ex- ecutors or administrators, shall well and truly pay, or cause to be paid, unto the said C. D., his heirs, executors, administrators or assigns, the sum of dollars, on or before the day of , 18 , with interest from the date hereof, this indenture \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 C. D., his heirs, executors, administrators or assigns, shall collect 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 be- half expended, pay the surplus, if any there be, to the said A. B., his heirs, executors, administrators or assigQs. In witness whereof, the said parties have hereto set their re- spective hands and seals, the day and year first above written, \or, the day of , 18 .1 A. B. [l. s." ^ ' CD. [L.S.: Signed, sealed, and delivered, in presence of G. H. Assignment of Lease. Know all men by these presents : That I, A. B., of, &c., for and in consideration of the sum of dollars, lawful money of the United States, to me paid, by C. D., of, &c., have sold, and by these presents, do grant, convey, assign, transfer and set over, unto the said, C. D., a certain indenture of lease, bearing date the day of , in the year one thou- sand eight hundred and sixty [when recorded, add the name of the comity, the volume and page'], made by L. M., of, &c., to me, the said A. B., of a certain dwelling-house and lot, situate in, &c., with all and singular the premises therein mentioned and described, and the buildings thereon, together with the appur- 108 Bancroft's califoenia lawyer. tenanees ; to have and to hold the same unto the said C. D., his heirs, executors, administrators and assigns, from the day next, for and during all the rest, residue and re- mainder, of the term of years mentioned in the said indenture of lease ; subject, nevertheless, to the rents, covenants, conditions and provisions, therein also mentioned : And I do hereby covenant and agree, to and with the said C. D., 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 encumbrances whatsoever. In witness, &c. [as above]. Assignment of Judgment — short Form. For and in consideration of one dollar, to me in hand paid, and for professional services rendered me by Francis Gross, Esq., I do hereby assign, transfer and make over unto him, all my right, title and interest in a certain judgment by me obtained against Joseph Lockwood, in the county court of the city and county of San Francisco, and docketed, this twenty-fifth day of May, A. D. 1859, for the sum of two hundred' dollars damages, and ten dol- lars costs. In witness whereof I have hereunto set my hand, the day and year last mentioned. H. Reaedon. The Same, in another Form. County Court, Monterey County : A. _B. ) Judgment docketed 1st July, 1859, for $195 against > damages and $8.25 costs. £. F. ) For value received, I do hereby assign, transfer, and set over, the above mentioned judgment, to C. D., for his use, and at his risk, costs and charges, in all respects. Dated the day of , 18 . A. B. Assignment of Judgment. This indenture, made the fifth day of April, in the year of our Lord one thousand eight hundred and , between Henry H. Byrne of the first part and James F. Bowman of the second part, witnesseth, whereas, the said party of the first part, on the first day of March, one thousand eight hundred and fifty-six, re- covered judgment in the District Court of the fourth judicial district of the state of California, against Philip Huchings, for the sum of five thousand dollars. Now this indenture witnesseth, that the said party of the first ASSIGNMENT. 109 part, in consideration of the sum of three thousand dollars, to him duly paid, has sold, and by these presents does assign, trans- fer, and set over, unto the said party of the second part, and his assigns, the said judgment, and all sum and sums of money thiit may be had or obtained by means thereof, or on any pro- ceedings 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 four thousand dollars, and that he will not collect or receive the same,''or any part thereof, nor release or discharge the said judgment, but will own and allow all lawful 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 above written. Henet H. Btene. [l. s.J Assignment of Judgmentr—full Form. In consideration of the sum of thirty-four hundred and ninety io°o dollars lawful money of the United States of America, to me in hand paid, at or before the ensealing and delivery of these presents, by William C. Belcher, of the city of Marysville, the receipt whereof is hereby acknowledged, I, Erwin Davis of the city of San Francisco, do hereby sell, assign, transfer and set over to the said William C. Belcher 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 Alvin Adams, Daniel H. Haskell and Isaiah C. Woods, composing the firm of Adams & Co., for the sum of thirty-four hundred and thirty-five dollars, besides costs, fifty-five TO dollars, making in all thirty-four hundred and ninety ,o°o dollars, on the sixteenth day of June, A. D. 1856, and all sum and sums of money that may be had or obtained by means thereof, together with the said judgment. Hereby constituting and appointing the said William C. Belcher 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 discharge 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 22d day of August, A. D. 1 855. Eewdst Davis, [l. s.] Sealed and delivered inpresence of ) W. Lewis. j 110 BANCEOPT'S CALIFORNIA LAWYER. Assignment of a Debt, or Wages. Know all men by these presents : That I, A. B., of, &c., for and in consideration of the sum of dollars, to me paid by 0. D., of, &c., the receipt whereof is hereby acknowledged, have sold, and by these presents do sell, assign, transfer, and set over unto the said C. D., a certain debt due me from E. F., amounting to the sum of dollars, for goods sold and delivered \or, work, labor, and services], with full power to sue for, collect, and dis- charge, or sell and assign the same : And 1 hereby covenant, that the said sum of dollars is justly due as aforesaid. In,witness, &c. Assignment of Policy of Inswrance. Know all men by these presents : That I, A. B., of, &c., in the annexed policy named, for and in consideration of the sum of one dollar, to me in hand paid by C. D., of, &c., the receipt whereof is hereby acknowledged, have sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over unto the said C. D., the annexed policy of insurance, and all sum and sums 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 C. D. and assigns forever. In witness, &c. The above assignment is approved. M. E.., President \or. Secretary] of the Insurance Company. Assignment of Policy as Security. Know all men, &c., \as in the foregoing to the end, and then add ;] upon the condition, however, that if a certain promissory note for the sum of dollars, bearing date the day of , given by the said A. B. to the said 0. D., is well and truly paid, according to the terms thereof, then this assignment is to be void. In witness whereof, &c. [adding the approval in the foregoing if neoessaryl. Assignment of a Seaman^ s Wages. Know all men : Tliat I, A. B., for and in consideration of the sum of , in which I am justly indebted to C. D., of &c., have hereby assigned, sold, and set over, and by these pres- ents I do hereby assign, sell, and set over, unto the said C. D., all such small sums of money as are now due and owing to me, . the said A. B., for wages or services on board the ship or vessel ASSIGNMENT. Ill called the , from the master or owner of said vessel, on board of which vessel I served as a mariner on her voyage from to , which has recently terminated, with full power to prosecute the said vessel, her tackle, 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, a/nd that he will gwe further assurance.'} In witness whereof, &c. Assignment of a Patent. Whereas letters patent bearing date the day of , in the year , were granted and issued by the govern- ment of the United States, under the seal thereof, to A. B., of the town of , in the county of , in the state of , for \here state the nature of the vnvention in general terms, as in the _patent~\ a more particular and full description whereof is annexed to the said letters patent in a schedule ; by which letters patent, the full and exchisive right and liberty of making and using the said invention, and of vending the same to others to be used, was granted to the said A. B., his heirs, executors, administrators, or assigns, for the term of fourteen years from the said date : Now know all men by these presents, that I, the said A. B., for and in consideration of the sum of dollars, to me in hand paid, the receipt whereof is hereby acknowledged, have granted, assigned, and set over, and by these presents do grant, assign, and set over, unto C. D., of the town ol , m the county of , and state of , his executors, adminis- trators, and assigns, forever, the said letters patent, and all my right, title and interest, in and to the said invention, so granted unto me : To have and to hold the said letters patent and inven- tion, with all benefit, profit and advantage thereof, unto the said 0. D., his executors, administrators, and assigns, in as full, ample, and beneficial a manner, to all intents and purposes, as I, the said A. B., by virtue of the said letters patent, may or might have or hold the same, if this assignment had not been made, for and during all the rest and residue of the said term of four- teen years. A. B. In witness, &c. General Assignment iy an InsoVvent Creditor, for the Benefit of his Creditors. (For use m Oregon or Washington.) This indenture, made the day of , eighteen hun- dred and , by and between A. B., of , merchant, of 112 Bancroft's califoenia lawyeb; the first part, C. D., of , of the second part, and the sev- eral 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 full, and he is desirous to convey all his prop- erty 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 prem- ises, 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, whereso- ever the same may be, except such property only as is exempted by law from attachment and execution, as freely 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 i-ight to compound for the said choses in action, taking a part for the whole, where the trustee shall deem it expe- dient so to do ; then in trust to dispose of the proceeds of the said property in the manner following, viz. : First. 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 ; Second. To pay the costs and charges of these presents, and the expenses of executing the trusts declared in these presents ; Thwd. To distribute and pay the remainder of the said pro- ceeds 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 par- ties of the third part in full, then in trust. Fourth. 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 constitutes and appoints the party of the second part his attorney irrevocable, with power of substitution, authorizing 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. ASSIGNMENT. 113 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 all such instruments of fur- ther 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 ) A. B. [l. s.J presence of, E. F. [ 0. D. [l. s.J G, H. ) Tra/nsfer of 'Stock. For and in consideration of the sum of ten thousand dollars to me in hand paid, I do hereby sell, assign, and transfer to Jonas Whacke, three shares of stock belonging to me, of the " Poverty Bar Mining Association," of the denomination of five thousand dollars each, and being shares numbered respectively, 321, 375 and 376, 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 Jonas Whacke the said three shares of stock of the numbers and designation above mentioned. Dated the 9th June, 1859. Napoleon Gebenstonb. 8 114 Bancroft's California lawyer. CHAPTER YI. attachment and aeeest. Foe security in the collection of debts by action at law, an attachment may be issued against the property of the defendant, or the defendant may be arrested and held to bail in certain cases. The limits and plan of the present work will admit of but little more than a statement of the cases in which an attachment pr order of arrest may be issued, the statute authorizing the dis- charge of an imprisoned debtor, and the corresponding forms. An attachment may be issued against the property of the defendant at the beginning of the suit, or afterward, as security for the satisfaction of any judgment that may be recovered, un- less the defendant give security to pay such judgment in the following cases :' The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant at- tached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment in the following cases : 1. Where the debtor is not a resident of this state. 2. Where the debtor has absconded or absented himself from his usual place of abode, or is about to abscond or absent himself, so that the ordinary process of law cannot be served upon him. 3. Where the debtor conceals him- self, so that the ordinary process of law cannot be served upon him. 4. Where the debtor has removed, or is about to remove any of his property or effects out of this state, to the injury of his creditors, or with the intent to hinder, delay, or defraud them. 5. Where the debtor has fraudulently conveyed, assigned, or otherwise disposed of, or is about to fraudulently convey, assign, or otherwise dispose of his property or effects with the intent to hinder, delay, or defraud his creditors. 6. Where the debtor has fraudixlently concealed, or is about to fraudulently conceal his 1 Laws 185S, p. 152. ATTACHMENT AND AREEST. 115 property or effects, with the intent to hinder, delay, or defraud his creditors. Y. Where the debtor fraudulently contracted the debt or incurred the obligation, respecting which the suit is brought. The clerk of the court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, showing : 1. That the defendant is indebted to the plaintiff in a certain sum {speoifymg the amount of such ifo- d^tecl/ness), 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 mortgage on real or personal property. 2. That the depo- nent has good reason to believe, and does believe, that one or more of the causes set forth in the several subdivisions of the next preceding section actually exists at the time of making the affidavit, reciting the facts upon which such belief is founded. Before issuing the writ, the clerk shall require a written under- taking on the part of the plaintiff, in a sum not less than two hun- dred dollars, nor exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that, if the defendant recover judgment, or if the attachment should be dismissed, the plaintiff will pay all costs that may be awarded to the defendant, and all damage which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. An order of arrest against the defendant may be obtained in the following cases :' 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the state, with intent to defraud his creditors, or when the action is for wilful injury to person, to character, or to property, knowing the property to belong to another. 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently mis- applied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such ; or by any other person in a fiduciary capacity, or for misconduct or neglect in office or in a professional employment, or for a wilful violation of 1 Wood's Dig. art. 808, et seg. 116 Bancroft's califobnia lawteb. duty. 3. 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. 4. When the defendant has been guilty of fraud in contracting the debt or incurring the obliga- tion for which the action is brought, or in concealing or dispos- ing of the property, for the taking, detention, or conversion of which the action is brought. 6. When the defendant has re- moved or disposed of his property, or is about to do so, with intent to defraud his creditors.' An order for the arrest of the defendant shall be obtained from a judge of the court in which the action is brought, or from a county judge. The order may be made whenever 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 in this chapter, above. The affidavit shall be either positive or upon information and belief; and, wlien upon infor- mation and belief, it shall state the facts upon which the infor- mation and belief are founded. If an order of arrest be made, the affidavit shall be filed with the clerk of the county. 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 and charges that maybe 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 shaU. an- nex 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. When the debt sought to be secured is not over two hundred dollars, the remedy by attachment or arrest must be prosecuted in the Justices' Court, and under the statute provided for such proceedings in that court. ' Wood's Dig. art. 808, et seq. ATTACHMENT AND AREEST. 117 ACT OF APRIL 22, 1850, FOR RELIEF OF PEESONS IMPBISONBD ON CIVIL PROCESS. Section 1. Every person confined in jail on an execution issued on a judgment rendered in a civil action, shall be dis- charged therefrom upon the conditions hereinafter specified. Sec. 2. Such person shall cause a notice in writing to be given to the plaintiff, his agent or attorney, that at a certain time and place he will apply to the judge of the district court of the county in which such person may be confined ; or, in case of his absence or inability to act, to the judge of the county court of the county in which such person may be imprisoned, for the purpose of obtaining a discharge from his imprisonment. In the county of San Francisco, the application may be inade to a judge of the superior court of the city of San Francisco. Sec. 3. Such notice shall be served upon the plaintiff, his agent or attorney, one day at least before the hearing of the ap- plication, in cases where the plaintiff, his agent or attorney, lives within twenty miles of the place of hearing ; and one day shall be added for every additional twenty miles that such person may reside from the place of hearing. Sec. 4. At the time and place specified in the notice, such person shall be taken before such judge, who shall examine him under oath concerning his estate and property, and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed, and such judge shall also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor. Sec. 5. The plaintiff in the action may, upon such examina- tion, propose to the prisoner any interrogatories pertinent to the inquiry ; and they shall, if required by him, be proposed and answered in writing ; and the answer shall be signed and sworn to by the prisoner. Sec. 6. If upon the examination, the judge shall be satisfied that the prisoner is entitled to his discharge, such judge shall ad- minister to him the following oath, to wit : {See Forms.) Sec. 7. After administering the oath, the judge shall issue an order that the prisoner be discharged from custody, if he be im- prisoned for no other cause ; and the officer, upon the service of such order, shall discharge the prisoner forthwith, if he be im- prisoned for no other cause. 118 BANCEOFT'S CALIFORNIA LAWYER. Sec. 8. If such judge should not dischargie the prisoner, he may apply for his discharge at the end of every Bucceeding ten days, in the saihe manner as above provided, and the same pro- ceedings shall thereupon be had. Sec. 9. The prisoner, after being so discharged, shall be for- ever exempted from arrest or imprisonment for the same debt, unless he shall be convicted of having -wilfully sworn falsely upon his examination before the judge, or in taking the oath be- fore prescribed. Sec. 10. The judgment against any prisoner who is discharged as aforesaid, shall remain in full force against any estate, which may then or at any time afterward belong to him, and the plain- tiff may take out a new execution against the goods and estate of the prisoner, in like manner as if he had never been com- mitted. Sec. 11. The plaintiff in the action may at any time order the prisoner to be discharged, and he shall not thereafter be liable to imprisonment for the same cause of action. Sec. 12. Whenever a person is committed to jail on an exe- cution issued on a judgment recovered in a civil action, the cred- itor, his agent or attorney, shall advance to the jailor, within twenty-four hours after such commitment, sufficient money to pay for the support of said prisoner during the time for which he may be imprisoned, and in case the money should not be so advanced, or if, during the time the prisoner may be in confine- ment, the money should be expended in the support of such pris- oner, and the creditor should neglect for twenty-four hours to advance such further sum as might be necessary for his support, the jailor shall forthwith discharge such prisoner from custody ; and such discharge shall have the same effect as a discharge by order of the creditor. FOEMS. Affidavit for AUaohment. 12th District Court, A. B. I against > City and County of San Francisco, ss : A. B., the plaintiff in the action above named, being duly sworn, deposes and says, that the defendant above named is in- ATTACHMENT AND ARREST. 119 debted to him, the said plaintiff, in a certain sum, that is to say. In the sum of five hundred dollars, over and above all legal set- offs and counter-claims, upon an express [or, implied] contract 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 attachment in this action actually exists at the time of making this aflS.davit, to wit : That the said defendant , the debtor alDove named, is a non-resident of this stale [or, that the debtor above named has absconded, &c., &c., or other cause of attachment, as prescribed in the act], that the facts upon which such belief is foi^nded are as follows : [here set forth the facts.] A. B. Sworn and subscribed before me, this fifth day of May, 1859. John Haiota, Deputy Clerk. Undertaking on Attachment. 12th District Court, A. B. I against > Whereas, the above-named plaintiff has commenced, or is about to commence an action in the District Court of the twelfth judicial district of the state of California, 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 five hundred 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 city and county of San Francisco, in consideration of the premises, and of the issuing of said attachment, do jointly and severally under- take, in the sum of two hundred and fifty dollars, and promise, to the effect that, if defendant recover judgment, or if the attach- ment should be dismissed, in said action, said plaintiff will pay all the costs that may be awarded to. the said defendant, and all damages which he may sustain by reason of the said attachment, not exceeding the sum specified in said undertaking of two hun- dred and fifty dollars. Dated at San Francisco, this fifth day of May, A. D. 1859. E. F. G. H. 120 BANCEOFTS CALIFORNIA LAWYEE. City and County of San Francisco, ss : E. F. and G. H., whose names are subscribed as sureties to the above undertaking, being severally duly sworn, each for himself deposes and says, that he is worth two hundred and fifty 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. E. F. ^ G. H. Subscribed and sworn to- before me, this fifth day of May, A. D. 1859. John Hanka, Deputy Clerk. Endorsemmi on the above Undertahmg. Approved and filed this fifth day of'May, A. D. 1859. William Dttee, Clerk. By D. P. Belknap, Deputy Clerk. Writ of Attachment. In the District Court of the 12th Judicial District, ) City and County of San Francisco, j A. B. I against > The People of the State of California to the SherifiF of the City and County of San Francisco, greeting : Whereas, the above-entitled action was commenced in the District Court of the 12th judicial district of the state of Cali- fornia, by the above-named plaintiff, to recover from the said defendant the sum of five hundred dollars or thereabouts, besides interest and costs of suit ; and the necessary afiidavit and under- taking 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 plaintiff's demand, as above mentioned, unless the said defendant gives yon security, by the undertaking of at least two sufficient sureties, 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. Edwaed Noeton, Judge of the said District Court of the 12th Judicial District, this fiffli day of May, A. D. 1859. Attest my hand and seal of the said court, the day and year last above written. William Duee, Clerk. By Beveely C. Ddee, Deputy Clerk. ATTACHMENT AND AEEEST. 121 Affidamitfor Order of Arrest. State of California, \-i e\i n-\ ni \\ta{"vtn In the District Court of the 4th Judicial District, j M. ]Sr._ et al. ) agai/Thst \ O. P. ) M. ]Sr., one of the plaintiffs in this suit, being duly sworn, de- poses and says, that the cause of action in this case arose after the passage of the act of the legislature of the state of Cali- fornia, entitled, " An Act to regulate 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, 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 pre- scribed ly the statute]. And deponent further states and showsto the court the follow- ing facts and circumstances in support of the above allegations of fraud, that is to say : \_Sere set out the facts, c&c.'} M. 'N. Sworn to before me, this tenth day of September, A. D. 1859. B. C. DuEK, Deputy Clerk. Undertaking on Arrest. 4th District Court, M. ]Sr. et al. I aga/mst \ Whereas, the above-named plaintiffs have commenced, or are about to commence an action in the District Court of the fourth judicial district, against the above-named defendant, and are "about to apply for an order for the arrest of the said defendant in said action : Now, therefore, we the undersigned, residents of San Fran- cisco, in consideration of the premises, and of the issuing of said order of arrest, do undertake, in the sum of five hundred dollars, and promise, to the effect that, if the said defendant recovers judgment, the said plaintiffs will pay all costs and charges that may be awarded to the said defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum of five hundred dollars. Dated, this tenth day of September, A. D. 1859. W. X. Y.Z. County of San Francisco, ss : "W. X., one of the sureties, whose name is subscribed to the above undertaking, being duly sworn, deposes and says, that he 122 baitcropt's califoenia lawyer. is a resident and freeholder within this state, and is worth double t]\e sum in the said undertaking specified as the penalty thereof, over and above all his debts and liabilities, exclusive of property exempt from execution. W. X. Subscribed and sworn to, before me, this tenth day of Septem- ber, A. D. 1859. Beveelbt C. Duee, Deputy Clerk. County of San Francisco, ss : Y. Z., one of the sureties, whose name is subscribed to the above undertaking, being duly sworn, deposes and says, that he is a resident and householder within this state, and is worth double the sum specified in the said undertaking as the penalty thereof, over and above all his debts and liabilities, exclusive of property exempt from execution. Y. Z. Subscribed and sworn to, before me, this tenth day of Septem- ber, A. D. 1859. Beveelet C. Dttee, Deputy Clerk. Endorsement on above TJndertakmg. Approved this tenth day of September, A. D. 1859. JoKsr S. Ha&ae, Judge. Filed this tenth day of September, A. D. 1859. B. C. Dtoe, Dep. Clerk. Ord&r of Arrest. 4th District Court, M. ]Sr., et al. I against > To the Sheriff of the County of San Francisco : The above-named plaintiffs having commenced an action in the District Court of the fourth judicial district of the state of California, against the above-named defendant, and it duly ap- pearing to me, from affidavits submitted on the part of said plaintiff that a sufficient cause of action exists, and that the case is one of those ipentioned 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 29, 1851, and the necessary undertaking having been given, I, the undersigned, judge of the said District Court, by virtue of the authoriW in me vested by law, do order and require you, the said sheriff" of the county of San Francisco, forthwith to arrest the said defendant, if he may be found in your county, and hold him to l)ail in said action, in the sum of five hundred dollars, and that you return this order, with your proceedings thereon, to the clerk of the said District Court, on the fifteenth day of September, 1859. Dated, San Francisco, the tenth day of September, A. D. 1859. John S. Hagae, Judge. ATTACHMENT AND ARREST. 123 Proceedings to obtain DiscTmrge from Irrvprisorvment imder Ovvil Process. NOTICE. ■ ■ (.111 t^6 District Court of the Twelftli Judicial Dis- n j) \ trict, City and County of San Francisco. To A. B., the plaintiff above named : You will take notice, that I will apply to the Hon. Edw. ^Norton, judge of the District Court of the twelfth judicial district, in and for the city and county of San Francisco, in the court room of said court, in the city hall of said city and county, on Saturday the eighteenth day of June, A. D. 1859, at ten o'clock of that day, or as soon thereafter as counsel can be heard, for the purpose of obtaining a discharge from imprisonment, under the provisions of the act of April 23d, 1850, for the relief of persons imprisoned on civil process. KespectfuUy yours, C. D., defendant. Oath of Irmprisoned Debtor. I, , do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars, except such as is by law exempted from being taken in execution ; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to defraud my creditors : so help me God. Ord&rfor Discha/rge. A. B. ) vs. > [Title of Cowrt as in notice.] CD. ) Application having been made to me by 0. D., the defendant above named, to be discharged from imprisonment under the provisions of the act of April 22d, 1850, for relief of i)ersons im- prisoned under civil process, and the said C. D. being by me examined under oath, concerning his property and his ability to pay the judgment for which he is committed, and it appearing to me that the said C. D. is entitled to his discharge from impris- onment, it is therefore ordered that the said 0. D. be discharged from custody, if he is imprisoned for no other cause. Date. Edw. E^oeton. Judge of the District Court, 12th Judicial District. 124 bab'croft's califoenia lawyer. CHAPTEE YII. AUCTIONEEES. STATUTOEY PROVISIONS. By the act of. 1859 it is provided that any citizen of the state may become an auctioneer for the county in which he resides, on giving bonds for the faithful performance of his duties, with one or more sureties in the sum of five thousand dollars, payable to the people of the state of California, to be approved by the county judge and filed with the county clerk. In addition to filing such bond the auctioneer must obtain a license quarterly from the county treasurer, rated as follows : First class. Auctioneers whose average monthly sales shall amount to one hundred thousand dollars and upward, shall con- stitute the first class, and shall pay a license of four hundred dol- lars per quarter. Second class. Those between seventy-five thousand and one hundred thousand, three hundred dollars per quarter. Third class. Those between fifty thousand and seventy-five thousand, two hundred dollars per quarter. Fov/rth class. Those between thirty thousand and fifty thou- sand, one hundred and twenty-five dollars per quarter. Fifth class. Those between twenty thousand and thirty thou- sand, one hundred dollars per quarter. Sixth class. Those between ten thousand and twenty thousand, sixty dollars per quarter. Seventh class'. Those less than ten thousand, twenty-five dollars per quarter. The said act of 1859, also contains the following provisions : Section 5. No section of this act shall be so construed as to require a license, to be obtained for the selling of any goods at public sale that may belong to the United States, or to this state, AUCTIOHTEEES. 125 or upon property sold by virtue of any process issued by any state court, or United States court. Sbo. 6. Every auctioneer applying to the county treasurer for a renewal of his license, under the provisions of [this] act, shall accompany the application with a statement, under oath, which shall set forth that his average receipts per month, on account of sales during the preceding quarter, do not exceed the amount specified in the class of license for which he applies, and any auctioneer, already established in business, applying for a license, as provided in this act, for the first quarter after its passage, shall take out a license in proportion to his average monthly sales for the preceding quarter, and it is hereby made the duty of such treasurer to provide blank forms of affidavit for that purpose, and administer the oath required to such applicants, without charge. Sbo. Y. ISTo auctioneer shall be permitted to transfer his license to any other person for any part of the time, or at any time dur- ing the period for which his license may have been issued ; nor shall any auctioneer be permitted to use his license for the pur- pose of transacting an auction business in more than one store or specified place of business. Seo. 8. Any auctioneer who shall fail to comply with the pro- visions of this act, or any person acting as an auctioneer, without first having complied with its provisions, shall be deemed guilty of a misdemeanor, and on conviction thereof in any court of competent jurisdiction, shall be fined not less than fifty, nor more than five hundred dollars for each and every article sold or offered for sale ; and in default of payment of such fine, shall be imprisoned in the county jail for a period not exceeding ninety days, at the discretion of the judge before whom the case may be tried. Sec. 9. In any city or town where there is no auctioneer, the sheriff, or a constable, shall be ex officio auctioneer, and shall be permitted to sell any property, real or personal, at public "auc- tion ; and for any delinquency, as ex officio auctioneer, he shall be liable on his official bond. Sec. 10. It shall be the duty of every auctioneer, who shall sell any animal of the horse kind, or any mules, to keep a book, in which he shall register the name of each and every person 126 BANCROFT'S CALIFOENIA LAWYEB. bringing or offering any horse or mule to be sold, and the name of the person purchasing such horse or mule, together with the date of such sale or sales, and a description of each horse or mule so sold, together with the marks and brands. Said book shall be a public record, and subject to the inspection of any per- son desiring to inspect the same. Sec. 11. Each auctioneer shall keep a book in which he shall enter a memorandum of all sales, showing the name of the owner or owners of the goods sold, to whom sold, and the amount paid, and the date of each sale, which book shall at all times be open for the inspection of any person or persons interested therein. Sec. 15. Provides for the repeal of all acts or parts of acts conflicting with this act, except as to rights vested under the former acts. "Whenever goods shall be sold at auction, and the auctioneer shall, at the time of sale, enter in a sale book 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 per- son on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the statute of frauds.' JUDICIAL DECISIONS, The memorandum of an auctioneer is looked upon as a con- tract between the vendor and vendee, reduced to writing, and executed by their mutual agent, who ceases to be such agent after the sale is closed, and he must therefore sign the memo- randum at the time of sale. "Where the sale is made in the fore- noon, and the memorandum not made until the evening of the same day, it is too late." "When goods are sold at auction and a bill of particulars made out and delivered to the purchaser, and the money or a portion of it paid, it becomes an executed contract, and the vendor will not be permitted to set up a mistake as to the quantity sold.' Auctioneers who sell a balance without specifying quantity, have a reasonable time to ascertain such balance, and when so • ■Wood's Dig. art. 402. ' 4 Csl. 64. ^ Craig V. Godfrey, i Oal. 4T5. AUCTIONEERS. 127 done, and it is acquiesced in by the purchaser, they cannot aToid iV An auctioneer who receives and sells stolen property inno- cently, and in the ordinary course of his business, is liable to the true owner for the conversion thereof? And he is thus liable, although the felon has not been prose- cuted and convicted, and although he had paid over to the felon the money received on the sale of the goods, before notice that the goods had been stolen." A sale of land at auction, where no note or memorandum of sale is made by the auctioneer, and no writing exists between the parties, is void by the statute of frauds.' FOEMS. AuoUoneer^s Bond. Know all men by these presents, that we, S. L. Jones, G. L. J. Bendixen and "Wm. M. Randell, copartners doing business as auctioneers, in the city and county of San Francisco, state of California, under the name and firm of Jones and Bendixen, as principals, and C. De Ko, as surety, are held and firmly bound unto the people of the state of California, in the sum of five thousand dollars, lawful money of the tTnited States of America, to be paid to the people of the state of California, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated the tenth day of May, one thousand eight hundred and fifty-nine. The condition of the above obligation is such, that if the said S. L. Jones, G. L. J. Bendixen and Wm. M. Eandell, copartners and auctioneers, as aforesaid, shall faithfully perform their du- ties, as auctioneers, within the city and county of San Francisco, state of California, in accordance with the provisions of an act, entitled " An Act to provide and define their duties and liabil- ities, Approved April 18th, 1859," and the law governing in such cases ; then this obligation to be void, otherwise to remain in full force and effect. S. L. Jones, [l. s.J Geo. L. J. Bendixen. [l. s.J Wm. M. Eandell. [l. s.] Chs. De Ko. [l. s.] Signed and delivered in the presence of W. H. V. Ceouise. 1 4 Cal. 64. ^ 6 Oal. 75. 5 1 Oal. 489. 128 Bancroft's califoenia lawyer. JusUfication of the above Sv/rety. State of California, ) . City and County of San Francisco. ) Before me, BL. A. Cobb, a Notary Public in and for said city and county of San Francisco, personally canae Charles De Eo, the surety on the within bond, who, being duly sworn, did de- pose and say, that he is worth the sum of ten thousand dollars, over and above all his debts and liabilities, in unencumbered property within the aforesaid city and county and state, which may be levied on, and is not exempt from execution and forced sale. Chs. De Ed. Subscribed and sworn to before me, this sixth day of June, A. D. 1859. H. A. Cobb, Notary Public, [l. s.] Auctioneer's AppUcaUon for a State and Coimty License, vmder Act of ike Legislature, approved April lith, 1859. San Francisco, 18 . To the Treasurer of the City and County of San Francisco : The undersigned A. B., transacting business in the city and county of San Francisco, as auctioneer, having duly filed the bond required by the act above named, hereby makes application for a license of the class, for the quarter commencing on the day of 18 , and ending on the day of 18 . A. B., Auctioneer. Oath. State of California, 1 City and County of San Francisco, j Personally came before me, A. B., of the firm of auc- tioneer, doing business in the state, city and county aforesaid, who, being duly sworn, says, that the average receipts per month of the said firm on account of sales during the quarter next pre- ceding the day of 18 , amounted to less than thousand dollars, as specified in the class of license applied for, and further deponent says not. A. B. Subscribed and sworn to before me, this day of 3 8 . Treasurer. BILL OF SALE. 129 CHAPTER VIII. BILL OF SALE. The term Mil of sale is applied to a written instrument whicli is the evidence of an act of sale, of goods and chattels. A dis- tinction 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 writing. A chattel mortgage is in form a bill of sale, coupled with a condition that the property may be redeemed and returned to the owner, upon his paying the debt to secure which the mort- gage was given, together with interest and expenses. A bill of sale not under seal is insufficient to convey a min- ing claim.' Many principles of law and various statutory provi- sions concerning assignments, apply also to bills of sale, and reference is therefore made to the chapters on Assigmment, and also that on Chattel Mortgage. FOEMS. Bill of Sale — sim/ple Form. In consideration of two hundred and fifty dollars to me in hand paid by JBruno Eernal, I do hereby sell and deliver to him my Alazan horse, branded C, on the left hip. San Jos6, June 10, 1859. Pedeo Chevota. Another Form. Received of John Pilie $1,000, in payment of five thousand fruit-trees I have sold and delivered to him, this 4:th day of May, 1869. F. Peevaux. Bill of Sale of Goods and Chattels. Know all men by these presents : That 1, Charles Swift, of the town of Oro, in the county of Yuba, and state of California, of 1 7 Oal. 152. 130 Bancroft's California lawyer. the first part, for and in consideration of the sum of dollars, lawful money of the United States, to me paid by James Diggs, of, &c., 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 executors, administrators and assigns, the one equal, undivided half, of one hundred acres of barley, now growing on the rancho of E. F., near the town of Oro, aforesaid, one roan horse, and five thousand sheep belonging to me, and now 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, administrators 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 all and every person and persons whomsoever. Witness my hand and seal this 21st day of May, A. D. 1859. Chaeles Swut. [l. s.] £ill of /Sale of JEtegisUred or Enrolled Vessel. Know all men by these presents : That I, A. B., of, &c., owner of the bark or vessel called the " Paul Pry," of the burden of three thousand tons, or thereabouts, now lying at the port of , for and in consideration of the sum of dollars, law- ful money of the United States, to me paid, by C. D., of the place aforesaid, the receipt whereof I hereby acknowledge, have bargained and sold, and by these presents do bargain and sell, unto the said C. D., his executors, administrators and assigns, all the hull or body of said bark or vessel, together with the masts, bowsprit, sails, boats, anchors, cables, spars, and all other neces- saries thereunto appertaining and belonging ; the certificate of the registry of which said bark or vessel, is as follows, to wit : [copy certificate of registry in full:'] To have and to hold the said bark or vessel, and appurtenances thereunto belonging, unto the said C. D., his executors, administrators and assigns, to his and their proper use, benefit and behoof, forever. And I do, for my- self, my heirs, executors and administrators, covenant and agree, to and with the said 0. C, his executors, administrators and assigns, to warrant and defend the said bark or vessel, and all the before mentioned appurtenances, against all and every person and persons whomsoever. In witness, &c., \as in foregoing.] See Assignment, Chattel Mortgage, Mining, &c. BONDS. 131 CHAPTEE IX. BONDS. A BOND is a written obligation, under seal, holding the party who executes it to some performance, duty, obligation, or pay- ment. An obligation under seal to pay a sum of money at a certain time, is called a single bond ,' but there is utually a condition affixed, upon the performance of which the bond is to be void, that may be termed a condii/yonal bond. It is usual to make the penalty of a bond twice the amount of the real debt, so as to cover interest and costs, as the party can- not recover beyond the amount expressed in the bond, even if the debt or damages secured should, when they come to be col- lected, amount to more than the penal sum of the bond. In California, a seal may bfe made by an impression on wafer, or wax, or any impressible substance, or on the paper itself, or by writing a scroll with the pen. The legal eifect, at common law, of a bond, as differing from an obligation of like purpose not under seal is, that the seal is held to import that a consideration existed for giving the bond. But by the statute of California, bonds are placed upon the same footing with other non-negotiable instruments for the payment of money or goods, so that if suit be brought on a bond which was given without consideration, or where the consideration has failed in whole or in part, the defendant may plead and prove in defence such want or failure of consideration.' The statute referred to, embraces within its provisions, bonds, due-bills, and other instruments of writing not negotiable, made by any person, or body politic or corporate, for the payment of money, or articles of personal property, or the payment of money in personal property, or acknowledging any such indebtedness. > Wood's Dig. strt. 192 and 201 ; Gomstoctc «. Dennio. Jan. Term, 1859. 132 Bancroft's califoenia lawyer. It also provides that any such instrument may be assigned by endorsement, in the same manner as bills of exchange," and the assignee may recover the same of the maker by suit in his own name ; except that the defendant can set up in answer, any de- fence to the instrument that arose before he had notice of such assignment.' It also provides that the assignee, if he fails to recover of the maker of such bond or other instrument, may recover of the assignor; provided he has used due diligence, by suing the maker within sixty days after the maturity of the obligation ; or, the maker absconds within twenty days ; or, a suit, if insti- tuted, would have been unavailing." It also provides that fraud or circumvention used in obtaining or making the instrument, shall vitiate the same. A bond, and all written instruments, may be sued on at any time within four years after they become due, but not afterward. But when the party liable dies within that time, claim must be presented to his representatives, within ten months after it be- comes due, or the debt will be lost. See chapter on Exeoutoes and on Administeatoes, and see index, Limitatiout of Actions. A bond required by law, or the provisions of any statute, will be deemed suJScient if it conform substantially to the form pre- scribed by the statute, and do not vary in any matter, to the prejudice of the rights of the party to whom, or for whose bene- fit, such bond shall be given." So in California it has been held that where the word plaintiff was by mistake used for defend- ant, in reciting the condition, the bond was held good ;' and that sureties to a bail bond cannot avail themselves in defence to an action thereon of an insufficiency of the justification of the undertaking.' A hottomry 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 successful termination of a voyage. At home, the bond is executed by the owners, or the master as their agent. In a foreign country, the master has full authority to ■ Wood's Dig. art, ]98. < T Paige, 60; 26 Wend. 502, 5 id. 199. » 8 Cal. 549. » id. 200. ' T Cal. 402. BONDS. 133 bind the owners, and pledge the ship and cargo by a bottomry bond, in cases of necessity. Any amount of interest may be ex- acted, so long as the sea-risk continues, irrespective of the usury laws ; but when that terminates, the obligation will only draw legal interest. Eesjpondentda is a contract similar to lottom/ry, 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. An alteration of a bond, or other sealed instrument, in a material part, without the consent of the obligor, by any party claiming to recover under it, renders it void ; otherwise, if the alteration be made by a stranger, provided the tru6 contents can be made to appear by testimony, though the burden of proof will then be thrown on the party claiming under the instrument. But no alteration or erasure will defeat the recovery of the bond, unless it materially affects the rights or condition of the obligor, or is the result of a fraudulent intent to effect the same object." Bonds of public officers and other bonds of a special character are treated of under their respective titles. See Index. FOEMS. Com/mon Bond with Condition. Know all men by these presents : That I, A. B., of the town of , in the county of , and state of California, am held and firmly bound unto C. D., of, &c., in the sum of one thousand dollars, lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the day of , one thousand eight hundred and The condition of the above obligation is such, that if the above bounden A. B., his heirs, executors, or administrators, shall well and truly pay, or cause to be paid, unto the above-named C. D., his executors, administrators, or assigns, the just and full sum of five liundred dollars, in five equal annual payments, from the date hereof, with lawful interest, then the above obligation to be void ; otherwise to remain in full force and virtue. Sealed and delivered, ) A. B. [l. s.J in presence of >- G.H. ) 1 2 Cal. 620. 134 BANOHOFT'S CALIFOEJSriA LAWYER. Bond to a Corporation. Know all men by these presents : That I, A. B., of, &c., am held and firmly bound, unto the S. F. Gas Company, in the sum of one thousand dollars, lawful money of the United States, to be paid to the said S. F. Gas Company or assigns ; for which pay- ment, well and truly to be made, I bind myself, my heirs, execu- tors, 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 A. B., his heirs, executors, or administrators, shall well and truly pay or cause to be paid, unto the above-named S. F. Gas Company, or assigns, the just and full sum of, &c. \as m foregom,g\. Bond of two ObUgors. Know all men by these presents : That we, A. B. and E. F., of, &c., are held and firmly bound unto C. D., of, &c., in the sum of one thousand dollars, lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns ; for which payment, well and truly to be made, we bind our- selves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Bond of Indemnity on payvng Lost Note. Know all men, &c. \as above] Whereas the said C. D., on the day of , 18 , did make, execute, and deliver unto the above bounden A. B., for a valuable consideration, his prom- issory note, for the sum of one hundred dollars, written due and payable, on or before the day of , then next, with interest, which said promissory note the said A. B., since the delivery of the same to him, as aforesaid, has in some manner, to him unknown, lost out of his possession ; and whereas the said C. D. hath this day paid unto the said A. B. the sum of dollars, the receipt whereof the said A. B. doth hereby acknowl- edge, in full satisfaction and discharge of the said note, upon the promise of the said A. B. to indemnify and save harmless the said C. D. in the premises, and to deliver up the said note, when found, to the said C. D. to be cancelled : JSow, therefore, the con- dition of this obligation is such, that if the above bounden A. B., his heirs, executors, or administrators, or any of them, do and shall, at all times hereafter, save and keep harmless the said C. D., his heirs, executors, and administrators, of, from, and against the promissory note aforesaid, and of and from all costs, dam- BONDS. 135 ages, and expenses that shall or may arise therefrom ; and also deliver, or cause to be delivered up, the said note, when found, to be cancelled, then this obligation to be void ; else to remain in full force and virtue. Sealed, &c. [as above]. A. B. [l. s.j E. F. [l. s.] Bond for Performance, to he Endorsed oh a Contract. Know all men, &c. [as vn foregoing]. The condition of this obligation is such, that if the above bounden A. B., his executors, administrators or assigns, shall, in all thiugs, 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 per- formed, 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, &c. [as vn foregovng]. Bond to Produce Bill of Ladvag. BJiow all men by these presents : That we, A. B. & 0. D., composing the firm of B. & Co., and E. F. & G-. H., of city and county of San Francisco, and state of California, are held and firmly bound unto the owners, master and consignees of the ship Ocean Cable, in the penal sum of twenty thonsand dollars, to be paid unto the said owners, master, or consignees, their executors, administi-ators, or assigns, to which payment, well and truly to be made, we do bind ourselves, our heirs, executors and adminis- trators, firmly by these presents. The condition of this obligation is such, that, whereas M. & Co., claim to be the true and lawful consignees of certain goods, wares and merchandise, now on board the ship Ocean Cable, of which they hold no valid bill of lading, now, in consideration of the deliv- ery of said goods to the said B. & Co., by M. & Co., the con- signees, of said ship Ocean Cable, without presentation of bill of lading : we, the undersigned, hereby agree to furnish to the said consignees of said ship, within ninety days from the date hereof, a proper bill of lading of said goods, dulyfiUed up to the order of said B. & 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 B. & Co. 136 Bancroft's California lawyer. Now, if the said B. & Co., do well and truly_ fulfil the condi- tions of the above agreement, then this obligation is to be void and of no effect, otherwise to remain and be in full force and virtue. In witness whereof, we have hereunto set our hands and seals, this day of eighteen hundred and fifty-nine. In presence of ) A. B. [l. s.J L. M. f C. D. [L. s.] E. F. [l. s.] G. H. [l. s.] Bottom/ry Bond. Know all men by these presents : That I, A. B., now master and commander of the ship or vessel called the Hercules, of the burden of one thousand tons, or thereabouts, now lying in the port of , am held and firmly bound unto C. D., in the sum of ten thousand dollars, lawful money of the United States of America, to be paid to the said C. D., or to his certain attor- ney, executors, administrators, or assigns; for which payment well and truly to be made, I bind myself, my heirs, executors and administrators, and also the said vessel, her tackle, apparel and furniture, firmly by these presents. Sealed with my seal, at this day of in the year of our Lord one thou- sand eight hundred and fifty-nine. Whereas the above bounden A. B. has been obliged to take up and borrow, and hath received of the said C. D., for the use of the said vessel, and for the pur- pose of fitting the same for sea, the sum of ten thousand dollars, lawful money of the United States of America, which sum is to be and remain as a lien and bottomry on the said vessel, her tackle, apparel and furniture, from the port of on a voyage to the port of , at the rate or premium of per cent, for the voyage. In consideration whereof, all risks of the seas, rivers, enemies, fires, pirates, &c., are to be on account of the said C. D. And for the better security of the said sum and premium, the said master, doth by these presents, hypothecate and assign over to the said 0. D., his heirs, executors, adminis- trators and assigns, the said vessel, her tackle, apparel, furni- ture, &c. And it is hereby declared, that the said vessel Her- cules, is thus hypothecated and assigned over for the security of the money so borrowed and taken up as aforesaid, and shall be delivered for no other use or purpose whatever, until this bond is first paid, together with the premium hereby agreed to be paid thereon. Now the condition of this obligation is such, that if the above bounden A. B., shall well and truly pay or cause to be paid, unto the said C. D., or to his attorney legally authorized to re- BONDS. 137 ceive the same, his or their executors, administrators and assigns, the just and full sum of one thousand dollars, lawful money as aforesaid, being the sum borrowed, and also the premium afore- said at or before the expiration of thirty days after the arrival of the said vessel at the said port of , then this obliga- tion, and the said hypothecation, to be void and of no effect, otherwise to remain in full force and virtue. Having signed and executed these bonds of the same tenor and date, one of which being accomplished, the others to be void and of no effect. Signed, sealed and delivered' ) A. B. [l. s.J in the presence of E. F. j Bond of Indenmiiy. Know all men by these presents : That I, Cornelius Vander- bilt, of the city of New York, in the state of New York, am held and firmly bound unto Albert Dibblee, of the city of San Fran- cisco, in the state of California, in the sum of five thousand two hundred and seventy-five dollars, lawful money of the United States of America, to be paid to the said Albert Dibblee, his executors, administrators or assigns, for which payment, well and truly to be made, I bind myself, my heirs, executors and admin- istrators, finally by these presents. Sealed with my seal. Dated the day of January, in the year of our Lord one thousand eight hundred and fifty-eight. Whereas heretofore, one B. Frederick Moses tiled his bill in the District Court of the United States, for the northern district of California, against the steamship Cortes, upon cause of action alleged to have accrued to him in the early part of the year 1856, 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 29th day of December, A. D. 1867, that the said Moses do recover in said action the sum of two thousand four hundred and fifty-nine dollars, for his damages therein, and also the sum of one hundred and seventy-one dollars and fifty cents, for his costs of said action, and that the said steamship be con- demned and sold to satisfy him for his said damages and costs, and whereas at the time when said alleged cause of action ac- crued, 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 California, and whereas the said above bounden obligor has applied to the above-named obligee to be- come one of the sureties in the stipxilation to be given on the said appeal, to stay the execution of said decree, and abide the judg- ment and decree of the appellate, and whereas the said obligee 138 Bancroft's califoenia lawyei;. 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 constitution of this obligation is such, that if the said obligor, the said Cornelius Yanderbilt, and his heirs, executors, and administrators, shall and do at all times hereafter, well and truly save and keep the said obligee, Albert Dlbblee, his execu- tors 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 ad- ministrators, on demand, any and all such sum and sums of money that he may be required to pay as such surety as afore- said, then this obligation to be void ; else to remain in full force and virtue. C. Yandeebllt. [l. s.] By A. B., his Attorney in fact. Sealed and delivered in the presence of M. N. Legatees Bond. Know all men by these presents : That we, A. B., principal, and C. D. and 0. P., of, &c., are held and firmly bound unto E. F. and L. M., of, &c., executors of the last will and testament of S. T., deceased, late of the town of , in the sum of one thousand dollars, lawful money of the United States, to be paid to the said E. F. and L. M., executors, as aforesaid, the survivors or survivor, 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 S. T., deceased, a legacy of one thousand dollars is bequeathed to the said A. B., which has been paid to him by the said E. F. and L. M., 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 sufiicient, then the said A. B. shall refund the legacj' so paid, or such ratable propor- tion 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 A. B. ; and that if the probate of the will of the said deceased be revoked, or the BOJN^DS. 139 will declared void, then the said A. B. shall refund thg. whole of the legacy, with interest, to the said E. F. and L. M., their exec- utors, administrators, or assigns. Sealed, &c. [as above]. A. B. [l. s.J C. D. [l. s.] O. P. [l. s.] 140 Bancroft's California lawyer. CHAPTEE X. BILLS OF EXCHAJSTGE AND PEOMIBSOET NOTES. These instruments derive their great practical utility from the qualities and incidents which attach to them in their character of negotiable paper. By negoticMe fa/per is usually meant evidence of debt, which may be transferred by endorsement or delivery, so that the trans- ferree or holder may sue the same in his own name ; or, in other words, it means paper, that is, bills of exchange or promissory notes, payable to the order of a payee or to bearer. By the statute of California, however, all bills and notes ne- gotiable, and all bonds, due bills and other instruments of writing not negotiable, payable in money or articles of personal property, or any sum of money in personal property, are trans- ferable by endorsement ; and all alike, negotiable and non-nego- tiable, must be sued in the name of the real owner. In this state, therefore, a full definition of negotiable paper would be, a bill, or note, or evidence of debt, payable to order or to bearer, or evidence of debt which may be transferred by endorsement or by delivery before maturity hona fide, so that the new owner can sue the same in his own name, and recover the face of the instrument, without giving notice of the transfer to the payer, although the payer may have a legal counter-claim against the payee. The great importance of such paper among business men is derived from the circumstance, that in proportion to its credit, it may be used to pass from band to hand, serving the purposes of cash ; the principle of law being that, if negotiable where made, it is negotiable everywhere. A bill of exchange is a written order or request, and a prom- issory note a written promise, by one person to another for BILLS AND NOTES. 141 the payment of money at a specified time, absolutely and at all events. A., who draws the bill, is called the d/rawer ; B., to whom it is addressed, is called the d/ra/wee, and on acceptance he becomes the acceptor I C, to whom the bill is made payable, is called the payee; X., who makes the note, is called the maker; Y., to whom the note is made payable, is called the payee. The instrument is made negotiable when drawn to the order of the payee, or to the payee or order, or to bearer. The payee to order, M., may by endorsement direct the bill or note to be paid to IS".; and in that case M. becomes the endorser, and N., to whom it is endorsed, is called the endorsee or holder. He is also called the assignee ; and if N. endorses to O., then N. is a svh- sequent endorser, and O. is a svhsequent endorsee, holder, or as- signee ; and each preceding endorser is liable to the holder for the payment of the bill or note. If he wishes to avoid liability, he should write over his name the words, " without recourse" The usual mode of endorsement is, for the person to whose order the instrument is payable to write his name across the back of it. This is called an endorsement in blank; because it is not endorsed to any particular person, and is good in the hands of any ionafide holder, and can be again transferred, with- out further endorsement, by mere delivery. If he wishes to make it payable to any particular person, A. B., he writes across the back, " Pay to A. B. or order." This is called a special endorsement, because it is good only in the hands of A. B., and cannot be again transferred unless endorsed by A. B. If the note be drawn to the order of several persons, not co- partners, it must be endorsed by each of such persons upon transfer. A guarantor is one who puts his name on the back of the paper, out of the usual course of regular transfer and negotia- iDility. Under the California 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.' See post. • 2 Cal. 485 ; Brady ®. Eeynolds, January Term, 1859 ; Gelger v. Clark, et ol, April Terni, 1859. 142 BANCEOFT's CALIFORNIA LAWYER. A bill or note is not confined to any set form of words. A promise to deliver, or to be accountable, or to be responsible for so much money, is a good bill or note ; but it must be exclu- sively and absolutely for the payment of money, and should be without condition or contingency. The words "value received" are not essential, and may be omitted, but it is usual to insert them, as banks do not in some places consider paper negotiable without them. The legal effect of the note is the same in either case.' Any thing valuable is a good consideration for the promise. An endorsement payable to order on a note or bond is a bill of exchange. The date should be carefully expressed, although, if it were omitted, the paper would be considered to bear date from the ' time it was made and delivered. Bills of exchange are c?iX\edL foreign when drawn upon a party and place out of this state, and mlamd when between parties within the state. Checks upon a banker partake of the character of inland bills of exchange.' What are commonly called drafts, orders, and acceptances upon other persons for the payment of money, are in general in- land bills of exchange. Due bills and certificates of deposit are considered in the char- acter of promissory notes." 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 except to the following extent : By the statute of California, bonds, due bills, notes, and other instruments of writing, by which a person promises to pay money or goods to another, although not negotiable, may be assigned by endorsement in the same manner as bills of exchange ; but if suit be brought thereon by the holder, the maker can set up in defence, any good offset he may have against the payee, that existed before he received notice of the assignment.* The endorser of such paper, is only liable, provided the holder > 8 Cal. 288. s 4 Cal. 137. = 8 Kent, 75. Wood's Dig. art. 198, 199. BILLS AND NOTES. 143 has brought suit against the maker within sixty days, except where suit would have been unavailing, or the maker has ab- sconded.' 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 pay- ment, 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 deniand, it would be at the end of the days of grace — three days. 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 endorsement, upon protest for non-payment, notice should be given to each of the endorsers, 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, &c., will be found in this volume under the head of Notary. 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 endorser, in order to hold him liable; and if there be several endorsers, notice should be given to each one, for the same purpose. If payable on demand, the demand should be made within a reasonable time ; and on the third day thereafter, within reason- able hours, the note should be presented for payment ; and on failure of payment, notice should be given to the endorser or en- dorsers in like manner and for the like object. > "Wood's Dig. art. 200. 144 BANCEOFT'S CALIFORNIA LAWYER. It is not necessary to protest a promissory note or inland bill of exchange, although it is usual to do so. A demand of pay- ment, and, upon neglect or refusal, notice to the endorser is all that is requisite.' STATUTOKY PROVISIONS. The following provisions in relation to bills and notes are found in the statutes of California, Oregon and Washington!' Promissory 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 agent, if lawfully authorized, and by corpora- tions capable by law of making contracts. Such notes made payable to the maker, or to the order of a fictitious person, shall have the same effect and be of the same validity as against the maker and all persons having knowledge of the facts, as if pay- able to the bearer. No person within the state or territory shall be charged as an acceptor on a bill 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 Califor- nia and Washington only. 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 acceptance shall have been shown, and who, on the faith thereof, shall have received the bill for a valuable consider- ation. An unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance, in favor of a person who, upon the faith thereof, shall have received the bill for a valuable consideration. A refusal to write an accept- ance on the bill after request, is a refusal to accept; and the bill may be protested for non-acceptance. A party who has drawn or negotiated a bill on the faith of a previous promise to accept, may recover damages on refusal of the promisor to ac- cept. If a drawer destroy a bill delivered for acceptance, or refuse to return it accepted or non-accepted, for twenty-four 1 8 Oal. 686. gon, p. 530, et seq. ; Statutes Washington, p. 2 Wood's Dig. art. 17T, et seq. ; Statutes Ore- 400, et seq. BILLS AND NOTES. 145 hours, or sucli longer time as the holder may allow, he shall be deemed to have accepted it. The provisions of the several statutes in regard to damages are as follows : In California, upon protest for hon-acceptaince or non-payment of bills drawn or negotiated in this state. 1. If drawn upon any person in the United States east of the Rocky Mountains, fifteen dollars upon the hundred upon the principal sum. 2. 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 foreign country, the amount is ascertained and determined by the rate of exchange on the value of such cur- rency at the time of the demand for payment. Such damages are allowed only to a honafide holder for a valu- able consideration, and are in lieu of interest and all charges previous to, and at the time of giving notice ; but interest may be recovered upon the principal sum and damages from the time of giving notice. In Oregon, upon protest for non-acceptance or non-payment of bills drawn in the state. 1. On any place out of the United States, ten per cent, upon the contents, with interest on the con- tents from the date of protest, with the addition of the current rate of exchange at the time of the demand. 2. 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 endorsed 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 territory, five per cent, on the contents : such damages to be in lieu of interest, charges of pro- test, 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 damages may be recovered from the time of giving notice. Three days of grace are allowed in California, except on sight bills or drafts, and the^ra^ of Janua/ry, ih^fo^irth of July, and 10 146 Bancroft's califobnia lawyer. the imenty-fifth of Deoemler, for the purposes of presentment, protest and notice, 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 promissory notes, orders and drafts, payable at a future day, cer- tain within the state or territory; except that in Oregon grace is not allowed on bills, notes or drafts, payable on demand. In Washington the fom-th of July and the twemty-fifth of December, for the purposes of protest, &c., are considered as Sunday. JtrDIOIAL DECISIONS. When a note is signed by two parties, one of whom writes the word surety after his name, both are treated as makers; the word surety being of effect only as between the makers.' Such a maker is not guaranteeing another's contract, he is making his own ; and cannot show by parol, a different motiye from that which appears upon the face of the contract he signs, which is an unconditional contract to pay money; whereas a guarantor or endorser makes only a conditional promise.' The possession of a promissory note, payable to bearer, or en- dorsed in blank by the payee, whether obtained before or after maturity, is prvma facie evidence of ownership. The transfer, with or without value, confers upon the holder the right of action, and a consideration need not be proved, unless a defence is inter- posed which would otherwise preclude a recovery." An agreement for the extension of the time of payment, if with- out consideration, is void." When a note is given with the rate of interest in blank, the holder may insert the rate of interest by consent of the maker. If he insert it without such consent, it is not such an alteration as will make the note void, but the principal and interest at the legal rate may be recovered, an innocent holder, however, could recover the principal and interest expressed.' Giving a note either of the debtor or of a third person, for a pre-existing debt, is no payment, unless it be expressly agreed to ' 10 Cal. 882. s 8 Id. 109 ; 6 Id. 57T. « 9 id. 246. BILLS AND NOTES. 147 take the note as payment, and to run the risk of its being paid ; or unless the creditor parts with the note, or is guilty of laches in not presenting it for payment in due time. He is not obliged to sue upon it. He may return it when dishonored and resort to his original demand. It only postpones the time of the payment of the old debt until a default be made in the payment of the note.' When a promissory note is payable three months after date, with interest at the rate of per cent, a month, the interest runs from the date of the note." In a judgment on a note bearing an agreed amount of interest, the interest is computed as part of the judgment, and the judg- ment should bear the agreed interest." A certificate of deposit is a negotiable security, and, as far as negotiability is concerned, must be placed on the same footing as promissory notes.* Where it is alleged that a negotiable security, as, for example, a banker's certificate of deposit has been lost or destroyed, the maker of it has a right to require indemnity against all future claims under it before its payment can be enforced. The best rule is, to require indemnity in all cases, whether the bill or note has been lost or destroyed, notwithstanding its occasional hard- ship.* Sight checks are sight bills, and by our statute are not en- titled to grace. But an order in the nature of a check, payable at a future day, is an inland bill of exchange, and the drawer is entitled to three days' grace and notice of non-payment. In such a case, presentation before the last day of grace, and the immediate commencement of suit on the day of demand and non-payment, are premature.' A negotiable note taken by the holder after maturity, is taken subject to all subsisting equities between the maker and the payee relating to the transaction out of which the note was given, but not such as subsisted between the maker and any in- termediate holder." ' seal. 145; Griffith V. Grogan, Jan. Term, < 4 id. 87. 1859. » id. 86. ' 8 Cal. 145. • id. 809. » 9 id. 294; 6 id. 155. 148 BANCROFT'S CALIFORNIA LAWYER. A negotiable promissory note, the consideration of whieh is against public policy, when transferred to an innocent holder be- fore its maturity, is purged of the objection and must be en- forced.' One who puts his name upon a promissory note, out of the usual course of regular negotiability, is not an endorser ; he is a guarantor. And this whether his inscription is in blank, or pre- ceded by the words " I guarantee," &c. Such guarantee is. not within the statute of frauds, for the want of a consideration ex- pressed in writing. The contract — the promissory note — ^imports a consideration, each one who writes his name upon it is a party to it, and each party an original undertaker. The liability of an endorser is a guarantee that he will pay, if the njaker does not upon presentment, if he receives due notice." The liability of the guarantor can only be fixed by notice the same as in case of an endorser. The contract of both is condi- tional, but the conditions are unlike. The contract of endorse- ment is primai-ily that of transfer, the contract of guarantee is that of security." A promissory note was endorsed by a third person before de- livery to the payee. Held, that such endorsement was prima, facie an accommodation to the payee; but proof that his design was to become a surety or guarantor for the maker, would make him liable to the payee ; and default by the endorser with proper averments dispenses with this proof." When a place of payment is designated in a promissory note, or in the body or acceptance of a bill of exchange, the under- taking of the parties and the legal effect of the contract is, that, if ready at the time and place with the funds, the obligor has so far satisfied the contract, that he cannot be responsible for any future damages, either as costs of suit or interest for delay ; not that he is thereby discharged of the debt. The insertion of the place of payment is usually made for the convenience of one of the parties ; and is given and j^eceived with that understanding and none other.* A note commencing " For value received I promise to pay, 1 4 Oal. 821. » 2 Cal. 605. ' 2 Id. 485; 5 id. 188; Brady v. Eeynolds, Jan. < Montgomery v. Tntt, Jon. T«rm, 1859 Term, 1859. BILLS AJSTD NOTES. 149 &c.," and signed by two parties, is joint and several; so also where one signs a note as surety for another. A note payable in specific articles, is payable at the place where the payee resided at the time of making the note; pro- vided that if the articles are too ponderous or his residence is unknown, then at the residence of the maker.' A party may become an endorser of a bill or note by any mark, whether his initials or other figure or sign, if it be sub- stituted for his name, and he intend to be bound by it." Bills or drafts payable at sight, given due, or on the face of which there is no time of payment expressed, are immediately due without grace.' One who makes or endorses an accommodation note, is a surety for the party accommodated, and the latter is liable to refund the costs of a suit for collection brought against such maker or endorser.* A person becoming surety on a note must be treated and charged as an endorser." An endorser may waive demand and notice before maturity of the bill or note endorsed, without any consideration for such waiver.' The dating of a promissory note at a particular place does not make that the place of payment and authorize a demand to be made, there to charge the endorser, though it is presumptive evidence that the place mentioned is the residence of the maker.' K a note be endorsed after it is due, the endorser is entitled to demand and notice before he is liable to his endorser. The de- mand shotild be made in a reasonable time, and notice of default seasonably given.' In conclusion, the reader is referred for further consideration of the present subject, to the chapter entitled Notaut. 1 Wood's Dig. art. 208. » 7 Hill, 416. 2 6 Hill, 443 ; 1 Denio, 4T1. ' 1 Comstook, 186. s Wheatley v. Strobe, January Term, 1869; ' 3 Donio, 145. Wood's Dig. 196. ' Beobe «. Brooks, January Term, 1829. < 8 Barb. Sup. Ct. Eep. 684. 150 BANCROFT'S CALIFORNIA LAWYER. FOEMS. Bill of Exohomge. $10,000. San Feancisco, May 1, 1856. T^en days after sight, pay to the order of Thomas Kensett & Co., ten thousand dollars, and charge the same to account of D. L. Eoss & Co. To Messrs. "Wm. T. Coleman & Co., E"ew York. A Set of Bills of ExcJiange. "Wells, Faego & Co., Express and Banking Office. No. 104,901. Ex. for $10. San Feancisco, Cal., Aug. 4, 1858, At sight of this first of exchange (second and third unpaid), pay to the order of Morris & Willis, ten dollars. Value received, and charge the same to account of Wells,, Fargo & Co. To Messrs. Wells, Faego & Co., 82 Broadway, New York. Wells, Faego & Co., Express and Banking Office. No. 104,901. Ex. for $10. San Fean-qisco, Cal., Aug. 4, 1858. At sight of this second of exchange (first and third unpaid), pay to the order of Morris & Willis, ten dollars. Yalue received, and charge the same to account of Wells, Faego & Co. To Messrs. Wells, Faego & Co., 82 Broadway, New York. Wells, Faego & Co., Express and Banking Office. No. 104,901. Ex. for $10. San Feanoisco, Cal., Aug. 4, 1858. At sight of this third of exchange (first and second unpaid), pay to the order of Morris & Willis, ten dollars. Value received, and charge the same to to accoimt of Wells, Faego & Co. To Messrs. Wells, Faego & Co., 82 Broadway, New York. Bcmk Check. No. 387. San Feanoisco, Nov. 12, 1853. B. Davidson & Co., pay to S. E. Throckmorton, or order, fifty thousand dollars ($50,000). Saml. Beannan. Promissory Note Negotiahle. $l,000,''oV San Feanoisco, March 5th, 1857. Thirty days from date for value received, I promise to pay to BILLS AND NOTES 151 the order of J. 0. Horan & Co., one thousand dollars, with in- terest at two per cent, per month. D. Qttattlb. Another Form. $279iM. One month after date for value received, I promise to pay to A. S. Church, or bearer, two hundred and seventy-nine I'oo dollars, with interest after maturity at three per cent, per month. James Bull. San Francisco, August 4th, 1856. AnotJier Form. $500, Sqttaw Hollow, May 1, 1858. Ninety days from date, I promise to pay to Chas. Plover, or order, five hundred dollars. Andeew J. Siiaet. Note not NegoUahle. $290. Dutch Flat, June 9th, 1856. Ten days from date I promise to pay to Elkins Todd, two hun- dred and ninety dollars — value received. " Geo. Paeks. Note Payable on Demamd. $1,500. On demand, for value received, I promise to pay to C. "W. Kendall, or bearer, one thousand five hundred dollars, with interest from date until paid, at five per cent, per month, compounded. Abiel Bkown. Murderer's Bar, Oct. 10, 1850. Note Payable ai a Bamker's. San Feascisoo, Aug. 5, 1858. $5,000i''o''o. Ninety days from date, value received, I promise to pay to the order of Jennings and Brewster, at the Banking House of B. Davidson, five thousand dollars. John Young. Note for Loam, to he accompamied ly Mortgage. San Francisco, April 1, 1856. $3,OOOmo. Six months from date, without grace, for value re- ceived, I promise to pay to Pyncheon Close, or order, at the Banking House of Sather and Church, three thousand dollars, with interest thereon, at the rate of two and one half per cent. per month, payable monthljr in advance, a^eeing that upon failure to pay said monthly interest at any time for more than 152 BANCEOFt'S CALIFOENIA LAWTEE. 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 maybe added to and form a part of such judgment. Mark Dashee. Note Secured hy Collateral, with Power to Sell. Akgel's Canon, June 1, 1859. $1,000. Ninety days after date, without grace, I promise to pay to the order of E. L. Taylor, at the Banking House of John Parrott, in the city of San Francisco, one thousand dollars, value received, with interest after thirty days until paid, at the rate of two per cent, per month, payable monthly. I hereby deposit, as collateral security, for the payment of the above note, five shares ($1,000 each) of the Odic Quartz Mining Co., and I hereby appoint and constitute E. L. Taylor, 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 payment 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 re- turned to me. Paul Haedop. Note Payahle ly Instalmemts. Geeenhoen Gtolch, Nov. 3, 1855. $300i°o°o. For value received, I promise to pay to the Snow Mountain "Water Co., one hundred dollars in one month from date, one hundred dollars in forty days from date, and one hun- dred dollars in fifty dkys from date, said respective sums to bear legal interest at ten per cent, per annum. Honest J. Minee. nmn M&mora/ndum Note for Money Lent. $50. Borrowed of Wm. Hix, fifty dollars, to be paid when demanded. Green Briar Gulch, August 5th, 1856. Witness, Saeah "Williams, her X mark, Jebms Knight. BILLS AND NOTES. 158 Due Billi $100. Due Gardner Jenks one hundred dollars for tailings. Whiskey Hill, Kov. 1, 1858. Sam Sluice. Draft or Ord&r. Geub Flat, May 1, 1859. Mes. Euotoe Stone : Please pay Thomas Cole, or bearer, seventy-five dollars, and charge' the same to account of John Halifax. Note Pwydhle m Specific Articles. $1,000. Six months from date for value received, I promise to pay to H. S. Austin, or bearer, one thousand dollars, in red-wood lumber, of best quality, at the then current market price. Eedwood City, May 1, 1859. S. B. Maeston. FOEMS of ENDOESEMENT. 1. — Endorsement in Bla/nk. Henet Bakee. 2. — Endorsement to a Part/iculwr Person. Pay to H. B. Jaendyoe. Heney Bakee. 3. — Endorsemervt to Avoid LiahUiiy. Without recourse. Heney Bakee. 4. — Bpedal Endorsement. Pay to the order of Manuel Toeees. Heney Bakee. 5. — Endorsement of an Agent. Heney Bakee by his agent, D. B. Aeeowsmith. 154 BANCROFT'S CALIFORNIA LAWYER. Notice of Protest of Bill, or Note, or Oheck^for Non-Payment. Sait Fbancisco, , 1857. SiE : — ^Please take notice that a certain bill of exchange \or note, or check], dated May 1, 1857, for five thousand dollars, payable one month from date, drawn by A. B. in favor of 0. D. [and accepted by E. F.,] \or, and endorsed by C, D., G. H., J. K., &c.,] was this day presented by me, to E. F. \ot, A. B.], and payment thereof demanded, which was refused; the said bill \or note, or check] having been dishonored, 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 hereafter accrue thereon by reason of the non-payment of said bill of exchange [or note, or check]. V ery respectfully, your obedient servant, Sajviuel Heemann, Notary Public. To A. B. [w 0. D., E. F., G. H., &c.J For other forms of notice and of protest see under head of NOTAET. CHATTEL MORTGAGE. 155 OHAPTEK XI. CHATTEL MOETGi^GE. STATUTOEY PROVISIONS. ACT qj MAT 11, 1853, m KBLATION TO PEKSONAL MOETfiAGES. Section 1. A mortgage for a good and valuable consideration upon poseessoiy claims to public lands, all buildings and im- provements upon such lands, all quartz claims, and all other such personal property as shall be fixed in its structure to the soil, ac- knowledged in manner and form as mortgages upon real estate are required by law to be acknowledged and recorded in the office of the recorder of the county in which the property is situ- ated, shall have the same efifect against third persons as mort- gages upon real property'. SUPPLEMENT OF APRIL 29, 1857. Section 1. Chattel mortgages may be made on the following property to secure the payment of just indebtedness. Upholstery and furniture used in hotels and public boarding-houses, when mortgaged to secure the purchase-money of the identical articles mortgaged, and not otherwise ; mining claims, saw-mill, grist- mill, and steamboat machinery ; tools and machinery used by machinists, foundrymen, and other mechanics; steam-boilers, steam-engines, printing-presses, and other printing materials; possessory claims on the lands of the state, with the improve- ments thereon ; quartz claims, with the machinery and buildings connected therewith ; water-ditches, flumes, and aqueducts ; tun- nels, cuts, and other improvements in mining claims; instru- ments and chests of a surgeon, physician, or dentist, with their professional library, and libraries of all other persons ; stock in any incoi-porated company. No mor>;gage made by virtue of 156 BANCEOFT'S CALIFORNIA LAWYER. this act shall have any legal force or effect (except between the parties thereto), unless the residence of the mortgagor and mort- gagee, their profession, trade, or occupation, the sum to be secured, the rate of interest to be paid, when and where payable, shall be set out in the mortgage, and the mortgagor and mort> gagee shall make aiSdavit that the mortgage is honafide, and made without any design to defraud or delay creditors : which affidavit shall be attached to such mortgage. Sec. 2. All mortgages made in pursuance of this act (with the affidavit attached) shall be recorded in the county where the mortgagor lives, and also in the county where the property is located ; provided, that property in tra/nsitu from the possession of the mortgagee to the county of the residence of the mortgagor, or to a location for use, shall, during a reasonable time for such transportation, be considered as located. It shall be the duty of the county recorders of this state to provide proper books of record and of index, in which they shall make a true copy or record of all mortgages made in pursuance of the provisions of this act and left with them for record, and.they shall enter, in alpha- betical order, the names of the mortgagee and mortgagor in such index books. The recorders shall note on the mortgages and in the index books the time (in like manner as mortgages on real estate) when the same was received into the office for record, and the recording shall take effect from that time. The recorder's fees for recording and indexing shall be the same as are allowed him by law for like services for recording deeds of real estate, to be paid in advance by the person presenting the same for record. Sec. 3. No chattel mortgage shall be valid (except between the parties thereto) unless the same shall have been made, ex- ecuted, and recorded in conformity to the provisions of this act ; provided, howeroer, if the mortgagee receives and retains the actual possession of the property mortgaged, he may omit the record- ing of his mortgage during the continuance of such actual possession. Sec. 4. A right of redehiption shall remain in the mortgagor until the same shall have been foreclosed by due process of law, or by agreement between the parties to the mortgage; which agreement shall be entered on the record of the mortgage, and for CHATTEL MOBTGAGE. 157 the entering of whicli the recorder shall be entitled to the same rate of fees as for recording the original, to be paid in advance by the parties to the mortgage. Sec. 5. All property mortgaged in pursuance of the provisions of this act may be attached at the suit of the creditors of the mort- gagor or mortgagee. When attached at the suit of the creditor of the mortgagor, such creditor shall pay or tender to the mortgagee the actual amount due him on such mortgage, before the officer making such attachment shall be entitled to the actual possession of such property. When property thus situated, and thus re- deemed, shall have been sold by the officer by virtue of due legal proceedings, out of the proceeds of the sale he shall: 1. Pay to the creditor the amount advanced by him to pay the mortgagee, with legal interest thereon. 2. Pay all legal costs and fees appertaining to the judgment, execution, and sale. 3. Pay the judgment creditor the amount of the judgment, and any remaining surplus pay to the judgment debtor. If the creditor of the mortgagor prefers, he may cause to be attached the right of redemption of said mortgagor, and cause the same to be sold, subject to the rights of the mortgagee. Such attachment shall be made by leaving a copy of the writ of attachment, with no- tice of the attachment, with the mortgagee. When a sale of such equity is made on an execution obtained by such attaching creditor, the sum realized shall be applied to. the payment of costs, fees, discharge of the execution, and any remainder paid to the judgment debtor. When the interest of the mortgagee shall be attached, a copy of the writ of attachment shalPbe left with the mortgagor, with notice of the attachment ; and any pay- ment made by him to the mortgagee after such notice, shall not release the attachment or affect the rights of the attaching cred- itor ; but said mortgagor may pay the amount due on said mort- gage to the officer who made the attachment, and thereupon said officer shall release said attachment, and hold the money so paid him in the same manner as if he had originally attached said money. Sec. 6. This act shall not be so construed as to interfere or conflict with the lawful mining rules, regulations, or customs in regard to the locating, holding, or forfeiture of claims, but in all cases of mortgages of mining interests under this act, the mort- 158 bastcroft's California lawyer. gagee shall have the right to perform the same acts that the mortgagor might have performed for the purpose of preventing a forfeiture of the same under the said rules, regulations, and customs of mines, and shall be allowed such compensation there- for as shall be deemed just and equitable by the court ordering the sale upon a foreclosure ; provided, that such compensation shall in no case exceed the amount realized from the claim by a foreclosure and sale. Sec. T. The mortgagee in all mortgages made under this act, shall be allowed one day for every twenty miles of the distance between his residence and the county recorder's office, where such mortgage ought by law to be recorded to conform to the provisions of this act, before any attachment shall be valid, made by the creditors of the mortgagor. Sec. 8. Mortgages may be made on all kinds of water craft of five tons' burden or upward, custom-house measurement, whether propelled in whole or in part by steam or wind ; provided, that the requirements of the preceding sections are complied with ; and provided, fwriher, that an endorsement shall be made on the custom-house register or enrolment of such vessel, showing the amount for which the same is mortgaged, and the place, book and page where the same is recorded : and provided, also, that this section shall not be construed to affect or impair, in any way whatever, maritime liens. AMENDMENT OF 1856. No mortgage of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to, and re- tained by, the mortgagee ; provided, that a mortgage upon growing crops, executed, acknowledged and recorded, like mort- gages upon real estate, shall be valid as against third parties, without such delivery of possession ; but the lien of such mort- gage shall cease as against subsequent purchasers, unless posses- sion of such crops, ,when harvested, be delivered to the mort- gagee, as required in other cases of mortgage of personal prop- erty. CHATTEL MOETGAGB. 169 TBOM EEVENUB ACT OP 1857. Sec. 67. When personal property is under mortgage, or in any manner pledged, it shall, for the purposes of taxation, be deemed the property of the party having possession thereof. See subjects entitled Assignments and Bill of Sale. JUDICIAL decisions. Where a lease is assigned as security for a note, it is a pledge, and not a mortgage. The '■^pledgee" does not take the legal title by the assignment, or by failure of the '■'■pledgor''^ to pay the note ; but he has the right to collect the rents, and apply them on the note, and is responsible for the surplus.' A pledgee has no right to sell until after demand and notice ; and if he sells without demand and notice, to a party having full knowledge of his title, no absolute title passes, and the prop- erty remains in the hands of the purchaser, as a pledge.' A party, by pledging negotiable securities transferable by de- livery, loses all right to the securities, where transferred by the pledgee in good faith to a third party." The pledgee in such a case should be treated in the transaction as the agent of the owner, and the owner should be bound by his act in the premises." A pledge is a bailment which is reciprocally beneficial to both parties, and therefore the law requires of the pledgee the exer- cise of ordinary diligence in the custody and care of the goods pledged, and he is responsible for ordinary negligence.' When the bailors agreed that the goods should be stored in a certain warehouse at their risk and expenses, Meld, that their removal by an agent of the bailees, though without their knowl- edge, charged them for the safe-keeping of the goods after their removal, and that they were responsible for any damage to said goods caused by their removal to an insecure or improper place of storage." » 8 Cal. 145. 36 Id. 643. " 5 id. 260. 160 banceoft's oalifoenia lawyer. OREGON. Every mortgage of goods and chattels shall cease to be valid as against the creditors of the person making the same, or sub- sequent purchasers or mortgagors in good faith, after the expira- tion of one year from the filing of the same, or a copy thereof, with the Eecorder, unless within thirty days next preceding the expiration of the year, the mortgagee, his agent or attorney, shall make and annex to the instrument or copy on file, as afore- said, an affidavit, setting forth the interest which the mortgagee has, by virtue of such mortgage, in the property therein men- tioned, upon which affidavit the Recorder shall endorse the time when the same was filed.' The effect of any such affidavit shall not continue beyond one year from the time when such mortgage would cease to be valid as against the creditors of the person making such mortgage, or subsequent purchasers or mortgagees, in good faith ; but within thirty days next preceding the time when any such mortgage would otherwise cease to be valid as aforesaid, a similar affidavit may be filed and annexed, as provided in the preceding section, and with like effect. The statutes of Washington make no special provision in ref- erence to chattel mortgages. See, in this work, chapters on As- signment and Bill of Sale. FORMS. Chattel Mortgage— for Furnitmre. This indenture, made this thirtieth day of April, in the year of our Lord one thousand eight hundred and fifty-nine, between John Doe, whose residence is at Angel's Camp, county of Cala- veras, in the state of California, and who is by profession, trade or occupation, a hotel keeper, party hereto of the first part, and Richard Eoe, whose residence is at Sacramento, in the county of Sacramento, in said state, and who is by profession, trade or occupation, a furniture dealer, party hereto of the second part, witnesseth, that the said party of the first part, for and in consid- eration of the sum of. three thousand dollars, to him in hand paid by said party of the second part, the receipt of which is * statutes 0. p. 528. CHATTEL MORTGAGE. 161 hereby acknowledged, hath bargained, sold, assigned, transferred and set over, and by these presents doth bargain, sell, assign, transfer and set over, unto the said party of the second part, the following described articles of furniture, being the identical articles for the purpose of securing the purchase money of which they are herein mortgaged \here insert schedule^ or refer to schedule attached] ; the said goods and chattels above mentioned and described being now in the hotel kept by said party of the first part, in said town of Angel's Camp, to have and to hold all and singular the said goods and chattels above bai-gained and sold, or intended so to be, unto the said party of the second part, his executors, administrators and assigns, forever. Provided, nevertheless, and this present indenture is upon this express con- dition, that if John Doe, the said party of the first part, his ex- ecutors, administrators or assigns, shall well and truly pay unto the said party of the second part, his executors, administrators or assigns, the sum of three thousand dollars, on the thirtieth day of July, at the Banking House of Thos. S. Fiske and Co., in the city and county of Sacramento, in this state, and shall further pay unto the said party of the second part, his executors, administrators or assigns, intei'est upon the said principal sxim at and after this date, at the rate of two per cent, per month, on the thirtieth day of each month, at said Banking House of Thomas S. Eiske and Co., in the said city and county, until the said prin- cipal sum be fully paid and discharged, then these presents shall be void. But in case default shall be made in the payment of the said principal sum above mentioned, or any one of said instal- ments of interest, then it shall and may be lawful for, and he the said party of the first part doth hereby authorize and empower the said party of the second part, his executors, administrators or assigns, with the aid and assistance of any person or persons, lawfully to enter his dwelling-house, hotel, store and other prem- ises, and such other place or places as the said goods or chat- tels are or may be placed, and take and carry away the said goods and chattels, and sell and dispose of the same for the best price they can obtain by due process of law, or by agreement between the parties to this mortgage, their executors, adminis- trators or assigns, which agreement shall be entered on the record of this mortgage ; and out of the money arising therefrom, to re- tain and pay the said sura above mentioned, with interest ae aforesaid, and all charges touching the same, and counsel-fees, not to exceed five per cent, upon the full amount which shall then be due, rendering the overplus, if any, unto the said party of the first part, or to his executors, administrators, or assigns. And until default be made in the payment of the said sum of money, said party of the first part may remain and con- 11 162 banceoft's califoenia lawtee. tinue in the quiet and peaceable possession of the said goods and chattels, and full and free enjoyment of the same. In witness whereof, the said party hath hereunto set his hand and seal, the thirtieth day of April, one thousand eight hundred and iifty-nine. (Signed) John Dob. [l. s.] Signed, sealed, and delivered in the presence of A. N. State of California, ) . County of Calaveras, j John Doe, the mortgagor in the foregoing mortgage named, and Eichard Koe, the mortgagee in said mortgage named, being severally duly sworn, each for himself doth depose and say, that the aforesaid mortgage is hona fide, and made without any de- sign to defraud or delay creditors. (Signed) John Doe. Richard Eoe. Subscribed and sworn to before me, this 30th day of April, 1869. J. B., Notary Public. • Chattel Mortgage, on Mmmg Claims, Fl/wtnes, Turmels, c&c. This indenture, made this thirtieth day of April, in the year of our Lord one thousand eight hundred and fifty-nine, between John Doe, whose residence is at Grass Valley, county of Nevada, in the state of California, and who is by profession, trade or occu- pation, a quartz mill proprietor and operator, party hereto of the first part, and Richard Roe, whose residence is at the city and county of San Francisco, in said state, and who is by profession, trade or occupation a banker, party hereto of the second part, witnesseth, that the said party of the first part, for and in con- sideration of the sum of one hundred dollars, lawful money of the United States of America, to him in hand paid, by said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, assigned, transferred and set over, and by these presents doth grant, bargain, sell, assign, transfer and set over, unto the said party of the second part, and to his heirs and assigns, forever, all and singular, [here insert descrip- tion of quarts cloA/ms, with the machi/nery and huilditigs connected therewith, or, water ditches, flumes and aqueducts, or, tunnels, cuts and other improvements in mining claims, &c., &c.] [In vnortgages of steamboats or other water craft, insert copy of the enrolment from custom-house.] To have and to hold the above mentioned and described premises, together with all and singular the tenements, hereditaments, franchises, rights, privileges, implements, tools, buildings, machinery, and other CHATTEL MOETGAGE. 163 property and appurtenances thereunto belonging or in anywise appertaining. Provided nevertheless, and these presents are upon this express condition, that if the said party of the first part, his heirs, exec- utors, administrators or assigns, shall well and truly pay or cause to be paid, unto the said party of the second part, his exec- utors, administrators or assigns, the sum of one hundred dollars, on the thirtieth day of July, A. D. 1859, at the banking house of Fretz & Kalston, in the city and county of San Francisco, state aforesaid, with interest thereon at the rate of three per cent, per month from the date hereof, until paid, according to the true intent and meaning of a certain promissory note, a copy of which is as follows : \h,6Te insert copy of'note^ then these presents shall be void. But in case default be made in the payment of the principal sum or interest, as above provided, then the said party of the second part, his executors, administrators or assigns, are hereby authorized and empowered to sell the premises above de- scribed, with all and every of the appurtenances, in the manner and form prescribed by law, or by an agreement between the parties to this mortgage, which agreement shall be entered on the record of this mortgage, and out of the money arising from such sale to retain the said principal sum and interest, together with the costs and charges of making such sale, and counsel-fees not to exceed five per cent, upon the full amount which shall then be due, the overplus, if any there be, to be paid unto the said party of the first part, his heirs, executors, administrators or assigns. In witness whereof, the said party of the first part, hath here- unto set his hand and seal the day and year first above written. (Signed) John Doe. [l. s.] Signed, sealed and delivered ) in presence of E. F. j State of California, \ City and County of San Francisco, f ^^ ' John Doe, the mortgagor, in the foregoing mortgage, named and Eichard Eoe, the mortgagee in said mortgage, named being severally duly sworn, each for nim- self doth depose and say, that the aforesaid mortgage is bona fide, and made without any design to defraud or delay creditors. (Signed) John Doe. Subscribed and sworn to, before me, ) Kiohabd Roe. this 30th day of April, 1859. \ "Wd. W. Wiggins, Notary Public. ) 164 Bancroft's calipoenia lawyee. Chattel Mortgage of Vessel. \Forthe tranter part proceed as in the foregoing, and conclude as follows :'] Provided always, and these presents are upon the express condition, that if I, the said party of the first part shall well and truly pay, or cause to be paid unto the said party hereto of the second part, the just and full sum of , with the interest thereon secured, to be paid by my certain promissory note in the words and figures following, to wit : {here insert note] at the time and in the manner mentioned in said promis- sory note, and also pay the further sum of dollars per month, in each and every month from and after the date of these presents, as an indemnity to him for the expenses of keeping said steamboat or vessel insured from loss or damage by fire or other casualty, then these presents shall be void, otherwise of force. But if default shall be naade in the payment of the said several sums of money above mentioned, or of the interest according to the terms of said promissory note, from thenceforth it shall be lawful for said party of the second part, to consider the said promissory note as immediately due and payable, and to sell and dispose of the said steamboat or vessel absolutely, for cash or on credit, at public auction, in the city of San Francisco, or else- where, where she may then be, without any personal notice to me of the time and place of sale or intention to sell, by giving six days' previous notice of the time, place, and terms of sale, by advertising the same for six days successively in the San Francisco Herald, or such other newspaper as he may select ; and as my attorney for that purpose hereby authorized and ap- pointed, to make and deliver to the purchaser thereof a good and sufficient bill of sale of said steamboat or vessel, and out of the proceeds of sale to retain the amount of principal and interest, and other moneys which may be due to him hereunder, together with the costs, and expenses, and charges of sale, including auc- tioneer's fees at the rate of ten per cent, upon the- amount secured to be paid by said promissory note, returning me the overplus, if any. And I do hereby agree, that until the moneys hereby secured shall be fully paid, the said , the party here- to of the second part, shall have and be entitled to the full and complete possession and control of the said steamboat or vessel. In witness, &c. [I^or execution see preceding forms and the statute^ Chattel Mortgage for Oregon. This indenture, made the day of, &c., between A. B. of, &c., of the first part, and C. D., of, &c., of the second part, wit- nesseth : That the said party of the first part, in consideration of CHATTEL MORTaAaE. 165 the sum of dollars, to him duly paid, hath sold, and by these presents doth grant and convey to the said party of the second part, and his assigns, the following described goods, chattels, and property [describe them pa/rtioularh/ or refer to them in the schedule, to be annexed, signed by the mortgagor], now in my possession at the town of aforesaid, together with the appurtenances, and all the estate, title, and interest of the said party of the first part therein. This transfer is intended as a security for the payment of five hundred dollars, with interest, on or before the expiration of one year from the date hereof, and the additional sum of one hundred dollar^, with interest, on the day of , 1860, which payments, if duly made, will render this conveyance void. [The following clause may he added, if necessary /] And it is agreed that, until default by the party of the first part in the performance of the con- ditions aforesaid, it shall and may be lawful for him to keep possession of the property above mentioned and described, and to use and enjoy the same ; but if the said party of the first part shall attempt to sell the same, or any part thereof, or to remove the same out of the county of without notice to the said party of the second part, or his assigns, and without his or their assent to such sale or removal, to be expressed in writing, then it shall be lawful for the said party of the second part, or his assigns, to take immediate possession of the whole of said prop- erty to his or their own use. in witness whereof, the said party of the first part hath here- unto set his hand and seal, the day and year first above written. Signed, sealed, and delivered, ) A. B. [l. s.] in presence of W. P. T. j Affidavit to Chattel Mortgage in Oregon {to be made by Mort- gagee, his agent, or attorney, and annexed to the instrvmient or copy on file, within thirty days next preceding the expi/ra- tion of the yea/r^. State of Oregon, ) . County of Multnomah, ) C. i)., the mortgagee \or E. F., the assignee of C. D., the mort- gagee, or G. H., the agent or attorney of C. D., the mortgagee] named in the annexed \or within] mortgage \or copy mort- gage,] being duly sworn, says, that he is still the owner of said mortgage, and that there is due to him thereon the sum in said mortgage named, to wit, one hundred dollars, which sum con- stitutes the interest which deponent has in the property men- tioned in said mortgage. Sworn to before me, June 7, 1859. C. D. M. N., Justice of the Peace. 166 Notice of Sale on Chattel Mortgage for Oregon. MOETGAGE SALE. By virtue of a chattel mortgage executed by A. B. to 0. D., dated the day of ? 18 , and filed in the office of the recorder of the county of , on the day of , in the year aforesaid, and upon which default has been made, I shall sell the property therein mentioned and described, viz. \mention the a/rticles], at pubHc auction, at the house of , in the city [or, town] of aforesaid, on the day of instant [or, next], at ten o'clock in the forenoon of that day. Dated at , the day of , 18 . 0. D., Mortgagee, [or, E. F., Assignee]. CLERKS. 167 OHAPTEE XII. CLEEK8. STATUTORY PEOVISIONS. The county clerk is chosen by the electors of the county, to serve for two years, and enters upon the duties of his oflS.ce on the first Monday of October subsequent to his election.' He is required to keep his oflSce at the county seat of the county, and take charge of, and safely keep, or dispose of, ac- cording to law, all books, papers and records, which may be filed or deposited in his oflRce.' In Sam, Frcmcisco he is required to keep his oflSce open for the transaction of business on all judicial days (Sunday, ISTew Year's Day, the Fourth of July, Christmas and Thanksgiving Days, being non-judicial days), during the following hours : from March 20th to September 20th, from nine A. M. to five P. M., and the remainder of the year from ten A. M. to four P. M.' 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. Beside being clerk of the county court, he is made by statute ex officio clerk of the District Court, the Probate Court, and the Court of Sessions of his county ; and he is required, either in person or by deputy, to attend each term of either of said courts held in his county.* He shall issue all writs and process required to be issued from any court of which he is clerk ; he shall enter, under the directions of the court, all orders, judgments, and decrees proper to be en- tered ; and shall keep in each of said courts a docket, in which 1 Wood's Dig. art. 2861. ■> Wood's Dig. art. 274, 2T9, and 1869; Const » id. 280. art. vl. § 7. ' Laws 1S56, p. 148; Wood's Dig. 704. 168 BANCEOFT'S CALIFORNIA LAWYER. shall be entered tlie title of each cause, with the date of its com- mencement, a memorandum of every subsequent proceeding in said cause, 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 rules of the court.' 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 county; he may revoke the appointment of any deputy at will, by writing, filed in the same office. Each deputy, before enter- ing on his duties, shall take the oath of office, which shall be en- dorsed on his appointment." The county clerk may take from each of his deputies a bond, with sureties for the faithful performance of his duties ; but the clerk and the sureties on his official bond shall be liable for all the official acts of each deputy.'' All process issued by any deputy clerk shall be issued in the name of the principal." No clerk or deputy clerk shall be permitted to practise as an attorney or counsellor at law in any action or proceeding in any court whatever ; for violating the provisions of this section he shall be deemed guilty of a misdemeanor.^ Authority is given to him as clerk to take and certify ac- knowledgments. He is also authorized to administer oaths and affirmations,* and to certify the attestations of certain officers. By various statutory enactments, other duties fall under the province of the county clerk. He receives the election returns of his county, estimates the vote, issues certificates of election, and makes report to the secretary of state.^ He is required to certify to the governor certain vacancies in office," also, to notify the governor of applications made under the act concerning ap- plications for pardon of criminal offences.' It is his duty to assist in the drawing of jurors," to record the bonds of public ' Wood's Dig. art. 281. « Wood's Dig. art. 2144-2153. » id. 2T8. » Id 2875 and 2893. ' id. 284. ' id. 2902-2904. * id. 115T and 11T5 ; See chapter on Aokhowl- ^ Soe chapters on Jurors, Officers, Corpora- EDGMENTS TIONS. CLEBKS. 169 officers, that are required by law to be filed in his office/ to record certificates of incorporation of religious and benevolent associa- tions/ to file with the county recorder for registiy, 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 deposited with him, when a vacancy in that office occurs," and upon the filing of a transcript of judg- ment from a justices' court, he may be required to docket such judgment in the county court judgment docket, and issue execu- tion thereon into any other county of the state.* He is also re- quired to deliver the writ of habeas corpus to the sheriff, or other ministerial 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 reg- ulated by law, except in a few instances, for all services required of him ; nor can he be compelled to perform any service, until the fees fixed by law for such service have been paid or tendered to him. For the collection of any fees due him for services ren- dered, he may have execution in his own name against the party for whom the services were performed.' The following sections of the act in relation to proceedings in civil cases as amended," contain the statutory provisions in regard to sealing and certifying records. Sec. 449. A judicial record of this state or of the United States may be proved by the production of the original, or a copy thereof, certified by the clerk or other person having the legal custody thereof, under the seal of the court, to be a true copy of such record. Sec. 450. The records and judicial proceedings of the courts of any other state of the United States may be proved or admit- ted in the courts of this state by the attestation cf the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief-justice or presiding magistrate, as the case may be, that the said attestation is in due form. 1 See chapters on Juboks, Officebs, Oobfosa.- ' Wood's Dig. art. 2561. T10N8. « id. 24T0. " Laws 1859, p. 103. ' id. 2466. » Prao. Act, 61-7. « id. 1181-1187. 4 id 5d9. 170 Bancroft's caufoestia lawyer. Sec, 451. A judicial record of a foreign country may be proved by the production of a copy thereof, certified by the clerk, with the seal of the court annexed, if there be a clerk and seal ; 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 certificate of a judge of the court that the person making the certificate is the clerk of the court, or the legal keeper of the record, and in either case that the signature is genuine and the cei-tificate 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. Sec. 45 \ A copy of the judicial record of a foreign country shall also be admissible in evidence upon proof: 1. That the copy ofl^ered has been compared by the witness with the original, and is an exact transcript of the whole of it. 2. That such orig- inal was in the custody of the clerk of the court or other legal keeper of the same : and 3. That the copy is duly attested by a seal, which is proved to be the seal of the court where the record 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. Sec. 453. Printed copies, in volumes of statutes, code or other written law, enacted by any other state or territory or foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evi- dence 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 presumptive evidence of such laws. Sec. 464. A seal of a court or public office, when required to any writ or process or proceeding, or to authenticate a copy of any record or document, may be impressed with wax, wafer, or any other substance, and then attached to the writ, process or proceeding, or to the copy of the record or docujnent, or it may be impressed ou the paper alone. A copy of any record, document or paper in the custody of a CLERKS. 171 public officer of this state or of the United States, within this state, certified under the official seal, or verified by the oath of such officer to be a true, full and correct copy of the original in his custody, may be read in evidence in any action or proceed- ing in the courts of this state, in the like manner and with the like effect as the original could be if produced. Whenever the public records, books or papers in the custody of any collector of customs of the United States, or of the register or receiver of any land-office of the United States, in this state, or in the office of the surveyor-general of the United States for the state of California, or in the office and in the custody of the clerk of the circuit or any district court of the United States for the state of California, shall be required as evidence in any court of this state, copies of such records, books or papers, duly certi- fied by the proper officer, under his hand and official seal, where he has a seal, shall be received in evidence with the same force and effect as the originals. FOEMS. Forms of Oath* You do solemnly swear that, &c. So help you God. You do swear in the presence of the ever-living God \or, of almighty God], that,. &c. Form of AJfi/rmation. You do solemnly, sincerely, and truly declare and affirm that, &c. Assent to Oath or Affirmation. I do. Oath of For&mam, of the Or and Jv/ry. You, as foreman of the grand jury, shall diligently inquire into, and true presentment make, of all public offences 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, hatred, or ill-will, nor leave * "When a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there, he any such. 172 BANCEOFT'S CALIFORNIA LAWYER. any unpresented throiigh fear, favor, or affection, or for any re- ward, 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 understand- ing. So help you God. Oath, of the other Grand Jwrors. The same oath which your foreman has now taken before you on his part, you, and each of you, shall well and truly observe on your part. So help you God. Oath, 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 he'] juror. So help you God. Oath of Triers, on Challenge to Juror for Actual Bias. That you will truly inquire whether or not the several persons challenged, or who may be challenged, as trial jurors in this issue joined, between , plaintiff, and , defendant \or, between the people, &c.], and in respect to whom the chal- lenges shall be given to you in charge, are biased against the challenging party, and decide the same truly according to the evidence. So help you God. Findiflfig of the Triers. "We find [or, the majority of the triers find] the challenge true \or, not true]. Oath as to Competency of Jwror. 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 A. B., plaintiff \o-r, the people of the state of California, complainants], and C. D., defendant. So help you God. Oath of Empanelled Jury. You, and each of you, do solemnly swear, that you will well and truly try this matter at issue, wherein A. B. is plaintiff \or, the people of, &c., as above, are complainants], and C. D. is defendant, and a true verdict render therein according to the evidence. So help you God. CLERKS. 173 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 witnesses], in this issue pending between , plaintiff, and , defendant. So help you God. Oath on Yoir Di/re. You 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 A. B., plaintiff [or, the people of the state of California, complainants], and C. D., 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,-the whole truth, and nothingbut the truth, So help you God. Oath of Party, or Interested Witness, to Admit Evidence of the Contents of a Paper not Produced. That you will 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 Handwriting of a Subscrihing Witness. That you will true answers 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 G. H., 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 Leaoe. That you will retire with such jurors as will have leave of absence from this court ; you will not speak to them yourself in relation to this trial nor suffer any person to speak to them ; and you will return with them without delay. So help you God. 174 Bancroft's California lawyer. Of Officer to he&p Jwry on cm Adjourmrtent. That you will retire with the jury to some convenient room during the recess of court ; you will not suffer any person to speak to them, nor speak to them yourself in relation to this trial, and return with them at the order of the court. So help you God. Oath of Officer to take Charge of the Jury on Betiring to. Deliberate. That you will keep this jury together in a private and con- venient place for their deliberation ; that you will not permit any person to speak to them, nor speak to them yourself, with- out leave of the court, unless it be to ask them whether they have agreed upon a verdict, and that you will return them into court when they have so agreed. So help you God. Form of Taking a Verdict. CouET. — Mr. Clerk. Call the jury. Cleek.— Gentlemen of the jury: please answer to your names as called [call them, one by one., the sherif counting as they answer~\. Gentlemen of the jury : have you agreed upon your verdict ? Jtjet. — [The foreman, rising, answers] We have. Cleek.— -Declare your verdict. FoEEMAN. — We find [here state thefrndi/ng], CouET. — Mr. Clerk, record the verdict. Cleek. — [The Olerk then enters the verdict and continues,] Gentlemen of the Jury, listen to your verdict as it stands re- corded. You say you find [here state the finding]. So say you all. FOEMS OF VBEDICT. In a Criminal Case on issue of Ouilty or Not Ouilty. We find the defendant guilty [or, not guilty], as charged in the indictment. In a Criminal Case, when the question of the Sanit/y of the JDefendant is tried. We find the defendant sane [or, insane], and that he was so at the time of the alleged commission of the larceny [or other act, as may be] charged against him, to wit, on &c. CLERKS. 175 Upon a Plea of a Forme/r Conviction or Acqmttal of the Same Ofenoe. We find for the People \or, for the defendant]. A special verdict need not be in any particular form — it must intelligibly present the facts foimd by the jury. It must be re- duced 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 discharged. Special Yerdict, where Defendcmt is \mder fowrteen years of age, rendered m San Francisco^wnder the Act in relation to the lii- d/ustrial 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 per- son of responsible age, would warrant a conviction of the oflFence alleged in the indictment. ^iD'- Speoial Verdicts in Probate Matters, certified to the District Court for Jv/ry Trial. In answer to the question, Is C. B., the person styling herself Sarah Hope, in the opposition to the issuance of letters of ad- ministration, the surviving wife of Bartemas Hope, deceased? "We say, Tes. "We find that the said promissory note was not made and executed by the intestate, Alexander Broom, in his lifetime and delivered to the said Peter Joram, for a valuable consideration, and that said promissory note is not a valid claim against the said estate. VEEDICTS KT CIVIL CASES. In Action fm Damages. We find for defendant, [or, for plaintiflp, damages % ; or, for plaintiff against defendant, C. D., damages $ , and verdict for the defendant E. F.;] [w, if it he a special verdict, insert the same at length.'] Yerdict, with Assessment of Yalue of Personal Property. We find, [as in the preceding forms, and then add:] and the jury assess the value of the said {mention the property in qxies- 178 Bancroft's California lawyer. iion] at dollars. [If necessary add : and they further assess the damages of the said defendant by occasion of the de- livery and detention of the said property, at dollars.] Yerdict where Personal Property is in Question. We find the title of the horse in question to be in the plain- tiff, and assess the Value thereof at one hundred dollars. In Gases of Lunacy, c&c. We find that A. B. is a lunatic, of unsound mind, and inca- pable of mauaging or conducting his affairs [or, that A. B. was of unsound mind] at the time of the execution of the will [or, deed] in question, to wit : on the day of , 18 , and incompetent to execute the same ; [or, that A. B. was of unsound mind, and incompetent to contract matrimony, at the time of the solemnization of the marriage to E. D., to wit : on the day of , 18 .] In Action for Recovery of Peal Property. We find the title of the land in question to be in the plaintiff; [or, defendant ; 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 six cents costs. Porm of Polling the Jury. [Begin with the first name on the panel, as in criminal actions.] A. B., you say you find [as the verdict may le : after the answer is gi/ven then call the next juror], C. D., is that your verdict? [Pro- ceed in this manner through the list, and tohen 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 he], and so you say all. Pntry of Default. Clerk's Office of the District Court ) of the 12th Judicial District, j ®® ' In this action, the defendants, John Smith and William Brown, 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 &r answering having expired, the defaults of the said defendants. CLEEKS. 177 John Smith and 'William Brown, in the premises, are hereby en- tered according to law. Attest my hand and seal of said court this 21st day of June, A. D. 1859. "William Duee, Clerk. [l. 8.] By Chas. S. Capp, Deputy Clerk. Form of Docketing Judgment. Name of Judg- ment Debtor. Njirsie of Judg- ment Creditor Judgment. Time of Entry. "Wliero Entered in Judgment Book. Appeal when talcen; Judgment of Appellate Court. Satisfaction of Judgment Entered. CD. A. B. Dams., $525 00 Costs, 39 15 1858. May 5. folio 283. 1858. June 1. 1859. July 9. Judgment af- , firmed, with 5 per cent, dam- ages ; costs on appeal taxed, $60. Satisfied in full, Aug. 5, 1859. Entmj vn the Minutes of the Election of Associate Justices of the Court of Sessions. Court of Sessions, Oct. Term, 185S. Tuesday, Oct. 12. The court met pursuant to adjournment. Present — Hon.M. C.Blake, county judge, S.A.Hastings, and S. P. Burnham. The regular convention for the election of associate justices having met, pursuant to statute, on the fourth day of October, A. D. 1858, it is ordered that the minute of the proceedings of said convention, taken and made at the time thereof, by the clerk of said convention, be entered, pursuant to statute, in the records of this court. Minute of the proceedings of the convention of October 4th, 1858, for the election of associate justices of the Court of Sessions of the city and county of San Francisco. 4 ss ; State of California, City and County of San Fi-ancisco, On this fourth day of October, A. D. 1858, being the first Monday of the month subsequent to the general election of the year 1858, in pursuance of the call of the county judge of said city and county, convening, the persons elected as justices of the peace of said city and county, at the general election held on the first day of September, A. I). 1858, for the purpose of electing associate justices of the Court of Sessions of said city and coun- 12 178 Bancroft's califoenia lawyer. ty, a convention of said persons was hold at the charahers of said county jiidge at the city-hall, in the city and county of San Francisco. Present — B. Carman, justice of the third township ; Lawrence Eyan, justice of the first ; George Eobbius, justice of the fourth ; William H. Culver, justice of the second; S. P. Burnhani, jus- tice of the fifth ; Thomas Borland, justice of the sixth. Hon. M. C. Blake, county judge of said city and county, pre- sided over the said convention, and William l)tier, county clerk of said city and county, acted as clerk. It being shown that the above-named persons were duly elect- ed as justices of the peace of the said city and county, at the general election for the year eighteen hundred and fifty-eight, held in said city and county, on the first day of September, 1858, and that said justices elect, had severally duly qualified and filed their respective bonds as such justices, as required by law, and were all of the justices so elected on motion of Justice Eyan, the said justices proceeded to elect two of tlieir number as asso- ciate justices of the Court of Sessions of said city and county. The president thereupon appointed William H. Culver and Lawrence Eyan, tellers. On the ballot for election of one of the associate justices, the number of votes polled was six, of which S. P. Burnham received six votes; and thereupon the said S.«P. Burnham was declared elected. On the ballot for the remaining associate justice, the number of votes polled was six. B. Carman received four votes, and Thomas Dorland received two votes ; and thereupon B. Carman was declared elected. The president then directed certificates to be made and issued, to S. P. Burnham and B. Carman, as associate justices elect, of the Court of Sessions of the city and county of San Francisco. And thereupon, there being no further business before the convention, the same was adjourned sine die. Wm. Duee, County Clerk. Appointment of Associate Justice to serve in Court of Sessions, during the temporary absence of Associate Justice Elect. In the Court of Sessions of the County of Thursday, A. D. 18 . ^ At the time for the opening of the court, A. B., Esq., one of the associate justices of said Court of Sessions, being absent, and upon learning that he is unable to be present, I do hereby, before the transaction of any business in said court, designate and appoint C. D., Esq., one of the justices of the peace of said county, associate justice of said court, in the place of, and CLERKS. 179 to supply the vacancy or deficiency occasioned by the absence of said A. B. for the present term of said conrt. E. F. County Judge of the County of Form for Certifying and Tramsferring Indictment to the Dist/riot Court. City and County of San Francisco, ss : I, William Duer, county clerk of said city and county, and ex offioio clerk of the court of sessions thereof, do hereby certify that, on motion of Esq., district attorney of said county, made in open court in said court of sessions, on the day of , 1859, it was ordered by said court that the indictment found against , the within-named defendant, and filed in said court on the day of , 1859, charging him with the crime of , be certified and transferred to the Dis- trict Court of the judicial district of the state of California, in and for the county oT 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 afore- said in said court of sessions, on the day of , 1859, and do hereby transfer the same to said district court for trial. Witness my hand, and the seal of said court of sessions, this day of , 1859. WiLLiAjM DoEE, Clerk. Ey D. P. Belknap, Deputy. Subpmna in a Criminal Case. The People of the State of California to A. B. You are commanded to appear before the court of sessions of the city and county of San Francisco, state of California, at the court house of said court, in the city-hall of said city and county, on the eighth day of June, A. D. 1859, at ten o'clock A. M., as a witness in a criminal action prosecuted by the people of the state of California against M. N., on the part of the defendant. \^If hooks, papers, or documents be required, insert a direction to the following effect in the subpoena.'] And you are required also to bring with you the following [describe intelligibly the boohs, papers, or documents required]. By order of the court, William Duee, Clerk. [l. s.] By J. F. Bowman, Deputy Clerk. 180 Bancroft's califoenia lawyer. Hetv/rn of Sherif on Service of Subpoena in a Criminal Action. Sheriff's Office, _ ) ^ . City and County of San Francisco, j 1 hereby certify that I served the within subpoena on the within-named witness A. B., at the city and county of San Fran- cisco, on the sixth day of June, 1859, by showing the original to said witness, personally, and informing him of the contents thereof. Chaeles Doane, Sheriff of the City and County of San Francisco. By H. L. Davis, Deputy. San Francisco, June 8th, 1859. Affidamit as to Non-Resident Witnesses. Court of Sessions of the City and County of San Francisco. The People of the State of California, ) against )■ J- Z-. ) State of California, | . City and County of San Francisco, j Harvey S. Brown, being duly sworn, deposes and says that he is the district attorney in and for said city and county ; that above entitled cause is at isstie, and is set to be tried on the 30th day of March instant thereon ; that A. B. is a necessary and ma- terial witness in the above cause, and resides and now is in Marysville, Yuba county, in this state ; that C. D. is a necessary and material witness in above cause, and resides and is now in the county of Butte, in this stale ; that E. H. is a material and necessary witness in above cause, and resides at or near Honey Lake, in the county of Plumas or Sierra, in this state ; that each and every of said witnesses is out of the city and county of San Francisco; 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 at said trial, on the 30th day of March instant, is necessary ; and further deponent says not. H. S. Beown. Subscribed and sworn to before me, this 13th day of March, A. D. 1859. "W. Baetlett, Deputy County Clerk. Order on the above Affidavit, to he Endorsed on the Subpcena. It satisfactorily appearing to me upon an affidavit of H. S. Brown, district attorney for the city and county of San Francisco, that the evidence of the within-named witness is material, and his attendance necessary at the trial, and that he resides out of said city and county where the trial is to take place, it is or- CLERKS. 181 dered that the within-named witness attend at the time and place mentioned in the within subpoena, in obedience to the commands thereof and of this order. Dated San Francisco, March 12th, 1859. M. C. Blakb, County Judge, Of the City and County of San Francisco. Order agamst Defaultvng ^Witness, Svhjpcmhaed before the Orand Jury. Court of Sessions, ) In and for the City and >• April Term, 1859. County of San Francisco, ) Thursday, June 2d, 1859, as yet of said April Tenn. The grand jury came into court, and by their foreman repre- sented to the court that A. B. is a material witness in a proceed- ing before said grand j ury, and that having been served with a subpoena to attend before them, he had nevertheless neglected so to attend, and the said grand jury thereupon by their foreman ask for an attachment against said A. B. And upon said appli- cation, and due proof being filed, of the facts stated therein, and of the service of a subpoena upon said A. B., and his failure to obey the same, it is ordered by the court that said A. B. appear before said court of sessions, at ten o'clock, A. M., on Friday, June 3d, and show cause why he should not be punished for contempt in disobeying said subpoena. Writ of Attachment. The People of the State of California, to the Sheriff of the City and County of San Francisco, greeting : You are hereby commanded, forthwith, to attach the body of A. B., and bring him before the court of sessions of said county, to answer, &c. [_as may l)e\. "Witness, Hon. M. C. Blake, county judge of the county of San Francisco, this first day of June, 1859. William Dttee, Clerk. By Wm. R. SATrEELEE, Deputy Clerk. Bench Warrant on a Presentment. State of California, ) . County of , ) ' The people of the state of California, to any sheriff, constable, marshal or policeman in this state. A presentment having been made, on the day of j 18 , to the court of sessions 182 Bancroft's California lawyer. of the county of , charging C. D. with the crime of (designating it generally) ; you are therefore commanded forth- with to arrest the above named C. D., and take him before E. F., a magistrate of this county, or, in case of his absence or inabili- ty 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. ^ G-.H., Clerk. Bench Warrant on an Indictment. State of California, | . County of , ( ■ The people of the state of California to any sheriff, constable, marshal or policeman in this state. Anindictment having been found on the day of , A. D., 18 , in the court of sessions of the county of , charging C. D. with the crime of (designating it generally). You are therefore com- manded forthwith to arrest the above-named C. D., and bring him before that court to answer the indictment ; or if the court have adjourned for the term, that you deliver him into the cus- tody of the sheriff of the county of . Given under my hand with the seal of the court affixed, this the day of , A. D. 18 , seal. By order of the court. E. F., Clerk. HecognizoMce of Bail hefore Indictment. State of California, ( . County of , j ' An order having been made on the day of , A. D. 18 , by A. B., justice of the peace of county [or as the case may 5e], that C. D. be held to answer upon a charge of [stating briefly the natv/re of the offence~\, upon which he has been duly admitted to bail, in the sum of dollars, we, E. F. and G. H. [stating their place of residence], hereby undertake that the above-named C D. 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 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 dollars, [inserting the sum, in which the defendant is admitted to hail.'] CLEEKS. 183 liecogiiizcmce of Bail after Indiabmemt. State of California, City and Cpnnty of San Francisco, f An indictment having been found on the first day of May, A. D. 1859, in the conrt of sessions of the city and county of San Francisco, charging A. B. witli the crime of grand larceny, and he having been duly admitted to bail in the sum of one thousand dollars, we, C. D. and E. F., residents of San Francisco, hereby undertake that the above-named A. B. shall appear aud answer the indictment above mentioned in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and processes of the court, and if convicted, shall ap- pear 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. C. D. Acknowledged this 1st day of May, ) E. F. A. D. 1859, in presence of > M. C. Blake, ) County Judge. State of California, | City and County of San Francisco, j 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 are householders [or freeholders] and residents in said state. C. D. Sworn to before, this 1 st day of ) E. F. May, 1859, M. C. Blake, j County Judge. {Endorsed). Approved this 1st day of May, 1859. M. 0. Blake, County Judge. Recognizance on a HeooTmnitment. An order having been made on the day of , A. D. 18 , by the court {naming it], that A. B. 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 California, upon an [information, presentment, indictment, or appeal, as the ease may ie], we, C. D. and E. F., of [stating their places of residence], hereby undertake, that the above-named A. B. shall appear in that or any other court in which his appearance may be lawfully required upon that [information, presentment, indict- ment, or appeal, as the case may be], and shall at all times render 184 Bancroft's California lawyer. 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 California, the sum of dollars [insert- ^ng the sum in which the defendant is admitted to iadl]. Form of Plea. The plea shall be entered in substantially the following form : 1. If the defendant plead guilty, " The defendant pleads that he is guilty of tlie offence charged in this indictment." 2. If he plead not guilty, " The defendant pleads that he is not guilty of the offence charged in this indictment." 3. If he plead a former ac- quittal or conviction, " The defendant pleads that he has already been convicted \or acquitted, as the case may he] of the offence 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 Court of Sessions. Court of Sessions, ) County of , j The People of the State of California \ aqamst > A.B. f Application having been made by the defendant heretofore, to wit, on the day of , A. I). 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 praying that this action may be removed to the county of for trial, which matter was takeii under advisement by tlie court, and tlie same having been duly considered, and the court being satisfied that the representation of the defendant is true, it is hereby ordered that this action be removed to the Court of Sessions of the county of , state of California. 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 CLERKS. 185 Forfeit of Bail — Court of Sessions. Court of Sessions, June Term, 1858. City and County of San Francisco, j " "'"^ -^^'"i; The People of the State of California ) t ^ • *. v. *• r^ i ^ . . ( Indictment tor (rrand Upon motion of the district attorney, it was ordered, that the defendant, A. B., be called. And the said defendant having been thrice solemnly and duly called, failed and neglected to ap- pear for trial. Whereupon, on motion of the district attorney, it was ordered that, C. D. and E. F., the bail of said A. B., be like- wise called to produce the said A. B. in court for trial ; and the said C. D. and E. F. having been thrice duly and solemnly called to produce the said A. B. for trial ; and the said A. B. still neg- lecting and failing to appear, and the said bail wholly neglecting and refusing to produce said A. B. for trial, upon motion of the district attorney, the court directed the following order to be entered, to wit : The above-named defendant, A. B., having been heretofore in- dicted for grand larceny, and duly admitted to bail in the sum of one thousand dollars, and tlie said A. B., on the 20th of July, A. D. 1868, having, without sufficient excuse, neglected to appear in court for trial, although the said A. B. was thrice solemnly called to appear in court for trial, and although C. D. and E. F., the bail of said A. B., were thrice solemnly called to produce said A. B. in court for trial, yet the said A. B. neg- lected and refused to appear for trial, and the said bail neglected and refused to produce the said A. B. for trial. Wow, therefore, it is ordered by the court that the recogni- zance executed by the said C. D. and E. F. be, and the same is hereby declared forfeited, and it is further ordered that the said A. B. be arrested, and committed to the custody of the sheriff of the city and county of San Francisco, until legally discharged therefrom. It is further ordered that the foregoing facts and order be entered on the minutes of this court. Forfeit of Money deposited as Bail. Court of Sessions, ) t t iqkq City and County of San Francisco, p""® ™' The People of the State of California, J Indictment against \ for A. B., indicted as C. D. ) Grand Larceny. The above-named defendant, A. B., indicted by the name of C. D., having neglected to appear in court for the purpose of pleading, when his presence was lawfully reqiiired in court, al- 186 Bancroft's California lawyer. though he was called to appear in court for the purpose of pleading to the indictment thei-ein, in a loud and audible voice at the court-room door, and proclamation publicly made that, unless he appear, the money, to wit: iifteen hundred dollars, de- posited in lieu of bail for that amount, would be forfeited, and the said A. B., 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 de- posited in lieu of bail be, and the same is hereby, declared for- feited. And it is further ordered that the said A. B. be rearrested by any sheriff, constable, marshal or policeman within this state, and be committed to the custody of the sheriff of the city and county of San Francisco, and that he be detained until legally discharged. Entry of Judgment on Conviction of Grand Larceny. Court of Sessions, I "Febrr arv Term 1S')8 City and County of San Francisco, j 7 > • The People of the State of California, ) Stealing property of against > C. H. Randall. Alexander Orleanski. ) Sentence. Defendant appeai-ing for judgment, is duly informed by the court of the nature of the indictment, the plea and the verdict, and being asked by the court if he had any legal cause to show why the judgment of the court should not be pronounced against him, and no sufficient cause being shown, the judgment of the court was pronounced as follows : that the defendant bo im- prisoned in the state prison for the term of five years. Entry of Additional Sentence. Court of Sessions, February Term, 1858. The People of the State ] of California [ Stealing property of J. H. Gildi- against f meester. Alexander Orleanski. J Defendant appearing for judgment is duly informed by the court of the nature of the indictment, and his plea of guilty, and being asked if he had any legal cause to show why j udgment siiould not be pronounced against him, and no sufficient cause being shown, the judgment of the court is pronounced as follows : That the defendant be imprisoned in the state prison for the term of one year, such imprisonment to commence after the expiration of the foregoing sentence of five years. CLEEKS. . 187 Trial of Issue of Ifiswrdty. Conrt of Sessions _ ) q^^^^^^ r^ ^^^^_ (Jity, and County oi ban Jb rancasco. \ ' The People of the ' State of California against Ching Lang Wo. This case having been formerly tried, and the defendant having been convicted 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 the district attorney being now pres- ent in court ready to try said issue, a jury is now ordered to be drawn. And thereupon the following jurors having been called and examined as to their competency, and duly accepted by the par- ties, who agree to go to trial with said jury, the said jurors are duly empanelled and sworn, the issues herein joined well and trul}' to try — to wit: A. M. E. C. B. L. S. D., &c. And thereupon the evidence is proceeded with, and Tong K. Achick, Ko Hong, J. W. Pickett, W. Tenneuts, Josiah Palmer, and J. H. Tibbetts, were duly called, sworn and examined on the part of the defendant as witnesses to establish the insanity of defendant; and Ira 0. Hoot, was then. called, swoi"n and exam- ined as a witness on the part of the peo]3le. 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 the de- fendant 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 axe asked by the clerk if the same is their verdict, to which all of said jurors duly assent.- And thereupon it is ordered by the court upon application of Tong K. Achick, the district attorney assenting thereto, that the said defendant Ching Lang Wo, so found to be insane aforesaid, be committed to the Care and custody of the said Tong K. Achick, a proper and responsible persbn, until the further order of the court. 188 bajstcroft's califobnia lawyee. Efiin^ of Verdict on Issue of former Acquittal. Court of SeBsions, _ I April Term, 1858. City and County of San i rancisco. j ^ The People of the State 1 of California ! Grand Larceny, Issue of former Ac- agadnst f quittal. John Nelson. J The district attorney being in court, and the defendant with his counsel, and the jury', duly empanelled herein on the _15th inst., being all present, the respective counsel for the complainants and the defendant being fully heard, the court proceeds to charge the jury, which charge is delivered in writing, and defendant by his coimsel excepts thereto. The jury retire under a sworn offi- cer, and returning into court, they by their foreman say, " We lind 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, all 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 tlie 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. Suhposna — Civil Case. The People of the State of California send greeting to A. B. 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 San Francisco, state of California, 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 first day of June, A. D. 1859, at ten o'clock, A. M., then and there to testify in a certain case now pending in said court, then and there to be tried, be- tween M. N., plaintiff, and L. P., defendant, on the part of plaintiff. And for a failure to attend you will be deemed guilt}' of a contemjjt of court, and liable to pay all loss and damages sustained thei'eby to the party aggrieved. Witness — Hon. M. C. Blake, county judge of the city and county of San Francisco, at the court-liouse in said city and county, and the seal of said court, this 20th day of May, A. D. 1869. William Dube, Clerk. By J. F. Bowman, Deputy Clerk. CLERKS. 189 Concluding Part of the Entry of Judgment in a Civil Case, where the Jv/ry find the Defendant to have ■ committed ^ Fraud. — County Court. We find for the plaintiff upon all the issues made in the case, to wit: That, on the 15th of May, A. D. 1858, the said plaintiffs ■were associated as partners in the business of manufacturing pei'- fumery in the city and county of San Francisco, that while so engaged in business they employed tlie defendant as an agent to sell and dispose of perfumery for them and to receive payment therefor, for which said defendant was to receive the sum of ten per cent, upon the amount of all sales made by him ; that wliile acting as agent for them, as aforesaid, the said defendant, to wit, on the 30th of May, 1858, or thereabouts, did sell and dispose of, on behalf of the plaintiff, to divers parties, perfumery to the amount of five hundred and fifty dollars, and of which amount he collected and received the sum of one hundred and forty dollars and seventy-five cents; that out of said last-named sum, the said defendant was entitled to the sum of fifty-five dollars as commis- sions ; and that there is due to the plaintiff from the defendant, of the amount so collected, the sum of eighty -five dollars and seventy- five cents ; that the plaintiffs did, on or about the 30th of June, A. D. 1858, and at divers times thereafter, duly demand from the said defendant payment of the said sum of money so due to tliera ; that said defendant has i-efused to pay the same, and wilfully and corruptly converted the same to his own use; and the jury fur- ther assessed the damages in favor of the plaintiff for the money so received and converted by the defendant to his own use, at the sum of eighty-five dollars and seventy-five cents. Wherefore, by reason of the law, and the verdict of the jury, as aforesaid, it is ordered, adjudged, and decreed, that the de- fendant is indebted to the plaintifts in the sum of eighty-five dollars and seventy-five cents, for money collected, received, and converted to his own use while acting in the capacity of agent of plaintiffs ; and that plaintiffs do have, and recover from said defendant, the sum of eighty-five dollars and seventy -five cents, with interest thereon, at the rate of ten per cent, per annum, from the date thereof until paid, together with said plaintiff's' costs and disbursements in this action, and the percentage allowed by law — in all amounting to the sum of fifty-eight dollars and three cents. Judgment rendered, Sept. 16, A. D. 1858. 190 Bancroft's California lawyer. Confession of Judgment. In the District Court of the 4th Judicial District, City and Countj of San Francisco, State of California, William M. Black \ against \ John P. Squibob. ) I, John P. Squibob, defendant above named, do hereby confess judgment in this cause in favor of the said plaintiff, William M. Black, for the siim of two hundred and twenty-four dollars and seventy-five 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 upon the following facts, to wit : money had and received at said city and county of the said plaintiff, for the use and benefit of the said defendant, at his special instance and request, at various times, between the first of August, 1858, and the sixth of Decembei', 1858, amounting to said sum of two hundred and twenty -four dollars and seventy -five cents. San Francisco, Dec. 9, 1858. John P. Squibob. State of California, 1 City and County of San Francisco, j John P. Squibob, the defendant above named, being duly sworn, deposes and says, that the facts stated in the above confes- sion are true, and further he saith not. Johd P. Squibob. Sworn and subscribed to, before ) me, this 9'th day of December, 1868. \ Chas. S. Capp, Deputy County Clerk. Entry of Judgment on the foregoing Confession. In the District Court of the Fourth Judicial District of the State of California, in and for the City and County of San Fran- cisco. William M. Black \ ^Q.\^i^^ No 7563 John Tsquibob. i I^--^^'-- 9th. A. D. 1858. In this action the defendant, John P. Squibob, having filed his confession of judgment, wherein he consents that judgment be entered in favor of the plaintiff, William M. Black, for the sum of two hundred and twenty-four ,„„ ($224;o'o) dollars, on ap- plication of John Reynolds, 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 William M. Black, plain- CLEEKS. 191 tiff, do have and recover of and from John P. Squibob, defend- ant, the sum of two hundred and twenty-four ($224,") dollars, and seventy-five cents with interest thereon at tlie rate of ten per cent, per annum from the date hereof until paid, together with said plaintiff's costs and disbursements incurred in this proceeding, amounting to the sum of nine dollars and fifty cents ($9io°„). Judgment entered December 9th, A. D. 1858. I hereby certify the foregoing to be a true copy of the judg- ment entered in the above-entitled action. Attest my hand and seal of said Fourth District Court, this ninth day of December, A. D. 1858. i- 1 William Dqee, Clerk. L^- ^-J By Chas. S. Capp, Deputy Clerk. Order to Transfer Cause to another Court, on aocov/nt of Disability of the Judge. A.B. a,gainst It being shown to the court by Townsend, of counsel for the defence, that the judge of this court was heretofore of counsel in a cause involving the same title which is in issue in this cause: Wherefore it is ordered that this cause be transferred to the Dis- trict Court of the fourth judicial district for trial. The costs of this term to abide the event of the suit. Order Anointing an EUsor. Third District Court. County of Santa Cruz, Goodwin Castle ) against > A. B., sheriff, county of Santa Cruz. ) It appearing to the satisfaction of this court that a suit has been commenced 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 plain- tiff's attorneys, it is ordered that M. N., a citizen of , be and he is hereby appointed an elisor to execute all 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 that said elisor shall give security in the sum of $5,000. 192 Bancroft's califoenia lawyeb. Entry of Order admitting to Citizenship. Twelfth District Court. In the matter of the application of Leon | Level to become a citizen. j In open court appeared Leon Level, with his witnesses, Alex- andre Halphen and Lazarus Wacheiiheimer, an applicant to be admitted a citizen of the United States, in pursuance of the statute in reference thereto made and provided, and said appli- cant having produced such evidence, made such declarations and renunciations, and taken such oaths as by the said Act of Con- gress are required, It is ordered that said applicant be and he is hereby admitted to become a citizen of the united States of America. Order Confirming Mortgage Sale. In the District Court of the Twelfth Judicial District, State of California. A. B., and others, \ against > City and County of San Francisco. CD. ) ' Charles Doane, Esq., sheriff of the city and county of San Francisco, having tiled his report of tlie 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 two- tliousand and two hundred and twenty-six dollars and twenty cents, which has been applied in part satisfac- tion of said mortgage debt, leaving the sum of seven thousand and seventy-six dollars, and six cents, unpaid and unsatisfied, and now due and payable by said dei'endant C. D. to said A. B. and others, now on motion of said plaintiffs by their attorneys, Hoge & "Wilson, it is ordered that said report and all things and matters therein contained do stand ratified and confirmed. San Francisco, September 4th, 1858. Order for Execution for Deficiency on Mortgage Sale. 12th District Court \ against > On reading and filing report of sale herein by which it appears that there is a deficiency due the plaintiff herein, after apply- ing the proceeds of sale of the property described in decree herein, the sum of $2,871.60, with interest thei'eon at the rate of four per cent, per month, from the 14th day of August, 1858, until paid. On motion of Mr. Sharp, attorney for plaintiff, or- OLEEKS. 193 dered that said report of sale be and the same is hereby confirmed, and that said plaintiff, A. B., have judgment and execution against said defendant, C. D., for said sum of $2,8Y1.60, with interest thereon at the rate of four per cent, per month, from said 14th day of August, 1858, until paid. Writ of Venditioni Exponas. TJnited States of America, ) State of California, County of San Mateo, j The People of the State of California, to the Sheriff of San Mateo County, greeting : Whereas, heretofore we issued onr writ of execution to you, di- rected in the words and figures following, to wit : {here copy in full the execution, omitting the retwrn wnder which the sheriff made the sale of January 1st, 1858,] and you on the day of January, 1858, made your return to the said writ, by which return it ap- pears that you had levied on the real estate described as follows here insert description thereof as im, the levy], which real estate so evied on by you under said writ, remained unsold for want of Duyers. Therefore we command you that you sell, or cause to be sold, the real estate by you taken as aforesaid, and every part thereof, for the best price 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. Edward I^orton, judge of the district court of the 12th judicial district, in and tor San Mateo county, and the seal of said court, this day of A. D. 1859. [l. 8.] William Ddee, Clerk. Order for Writ of Assistance. State of California, ) City and County of San Francisco, f In the District Court of the Twelfth Judicial District. George Scarpa ) against > Jose de la Cruz Sanchez. ) On reading and filing the affidavit of James Wilson setting forth that he was the purchaser of the premises described in the complaint herein, that he has presented to the defendant Sanchez the sheriff's deed for said property^ and demanded possession thereof, and that said Sanchez has refused to deliver to him pos- session of said premises, and it appearing that due notice has 13 194 Bancroft's califoenia lawtee. been given of this notice to Messrs. Stow & Brown, the attor- neys of said defendant, now, on motion of "Whitcomb, Pringle & Felton, on behalf of said Wilson,. it is ordered that a writ of as- sistance issue to the sheriff of San Mateo county, to put the said James Wilson in possession of the said premises, and him m the possession thereof from time to time to maintain and de- fend. Writ of Assistcmce. In the District Court of the Fourth Judicial District of the State of California, in and for the City and County of San Fran- cisco. William Pitt \ against > Guy Fawkes. ) The People of the State of California to the Sheriff of the City and County of San Francisco, send greeting : Whereas, by a certain decree or judgment of our district court of the fourth judicial district, in a certain cause there pending, between William Pitt, plaintiff, and Guy Fawkes, defendant, made at a district court of the fourth judicial district, held at the city-hall, in the city and county of San Fraucisco, on the first day of May, in the year one thousand eight hundred and fifty-eight, in and for the city and county of San Francisco, be- fore the Honorable John S. Hagar, judge of the fourth 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 sheriif 's deed for said premises, be forthwith put in possession of a certain piece or parcel of land situate in the said city and county, and therein described as follows, to wit : [here insert desoription.'] And whereas, the time for redemption having expired, and the said sheriff's deed duly executed and delivered to Charles Lamb, who was the purchaser at said sale, yet the said Charles Lamb has not been let into nor taken possession of the said piece of land, oi' any part thereof, according to the tenor of the said decree ; and whereas, the said piece ot land is in the tenure and occupation of said Guy Fawkes, and whereas, by an order of said district court of the fourth judicial district, made in the said cause on the fifth day of July, 1859, it was ordered that our writ of assistance should issue to you, the said sheriff, to put the said Charles Lamb in possession of the said piece or parcel of land, and him in possession thereof from time to time to maintain and defend. CLERKS. 195 Therefore, we command you, that immediately after receiWng 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 Chas. Lamb ; and that you put and place the said Charles Lamb or his assigns in the full, peaceable and quiet possession of the said piece or parcel of land without delay ; and him, the said Chas. Lamb, in such possession thereof from time to time to maintain, keep and defend, or cause to be kept, maintained and defended, according to the tenor and true intent of the said decree and order of the said court. Witness, Hon. John S. Hagar, judge of the fourth judicial dis- trict, at the city-hall in the city and county of San Francisco, and the seal of said court, this sixth day of July, A. D. 1859. [l. s.] William Duee, Clerk. By S. L. LuPTON, Deputy Clerk. Writ of EmcuUon. State of California, ) City and County of San Francisco, j In the District Court of the Fourth Judicial District. The People of the State of California to the Sheriff of the City and County of San Francisco, greeting : Whereas, on the fifth day of February, A. D. 1859, Charles Box, plaintiff, recovered a judgment in the district court of the fourth judicial district, against Peter Chest, for the sum of five hundred dollars damages, with interest thereon at the rate of ten per cent, per annum till paid, together with his costs and dis- bursements at the date of said judgment, and accruing costs, amounting to the sum of two hundred and five i'' dollars, as appears to ns of record. And whereas, the judgment roll in the action in which said judgment was entered, is filed in the clerk's ofiice of said court, in the city-hall, in said city and county of San Francisco, and the said judgment was docketed in said clerk's office, in said city and county, on the sixth day of February, 1859, and the sum of seven hundred and five uo dollars, with interest as aforesaid^ is now (at the date of this writ) actually due on said judgment, Now, you, the said sheiiff, are hereby required to make the said sum of five hundred dollars damages, with interest as afore- said, and said sum of two hundred and five m dollars of costs, to satisfy the said judgment, out of the personal property of the said debtor, Peter Chest, in your county, and if sufficient per- sonal property of said debtor cannot be found, then out of the real property in your county belonging to said Peter Chest, on the sixth day of I ebruary, 1859, (the day whereon 196 Bancroft's oalifobnia lawyer. 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 city-hall in the city and county aforesaid, on the twenty- sixth day of February, A. D. 1859, to render unto the said Charles Box, plaintiflF, 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. John S. Hagar, judge of our district court of the fourth judicial district, at the city-hall in the said city and county, this sixth day of February, A. D. 1859. Attest my hand and the seal of the said court, the [l. s.J day and year last above written. William Dueb, Clerk. Another Form. District Court of the Fourth Judicial District of the State of California, City and County of San Francisco. The People of the State of California to the Sheriff of the County of greeting : Whereas, on the day of , A. D. 18 , plaintiff, recovered a judgment in the said district court of the fourth judicial dis- trict of the state of California, in and for the city and county of San Francisco, against for the sum of dollars, damages, with interest at the rate of per cent, per till paid, together with costs and disbursements at the date of said judgment, and accru- ing costs, amounting to the sum of 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 city and county of San Francisco, and the said judgment was docketed in said clerk's office, in the said city and county, on the day and year first above written. And the sum of % , with interest is now (at the date of this writ) actually due on said judgment. ITow, you, the said sheriff, are hereby required to make the said sums due on the said judgment, for damages, with interest as aforesaid, and costs and accruing costs, to satisfy the said judg- ment, out of the personal property of the said debtor or, if sufficient personal property of said debtor cannot be found, then out of the real property in your county cijEeks, 197 belonging to on the day whereon said judg- ment was docketed, in the aforesaid city and county, or at any time thereafter ; and make return of this^writ within days, with what you have endorsed hereon. Witness,, Hon, , judge of the fourth judicial district of the state of California, at the court-house, in the city and county of San Francisco, 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. Order for Removal of Ocmse to United States Cowrt* In the District Court of the Sixth Judicial District of the State. of California, in and for the County of Sacramento. Joseph Brown \ agwmst > John Smith. ) Upon reading and filing thepetition of John Smith, the defend- ant in the above-entitled action, and upon finding the bond and sureties offered by him, the said defendant in the premises, good and sufiicient, and the same being by me, the judge of said district court, duly accepted, it is hereby ordered that no further pro- ceedings be had in this cause, and the removal of the same to the Circuit Court of the United States tbr th,e districts of California, to be held in and for the northern district of California, 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, Sacramento, June 23, 1859. Certificate to Transcript on A^eal to the Sv^eme Court. State of California, , I aq ■ City and County of San Francisco, j Henry A. Bull | against > John O. Cox. ) J Clerk's Office of the District Court of the 4th Judicial District. I, William Duer, clerk of the district court of the fourth judicial district, do hereby certify, that the foregoing complaint, amended answer, judgment, settled statement and notice of ap- * The matter of removal of actions from a State Court to the U. S. Court is freely considered in Conkling's Treatise, Sd cd. p. 4T5. 198 BAJiTCEOFT'S CAIilFOENIA LAWYEE. peal are true and correct copies of the original papers on file in my office, and of the order of trial entered in the, rainutes of said court, and that the same constitute the transcript or appeal from the judgment made and entered on the 27th day of August, A. D. 1859, in favor of said plaintiff and against said defendant. 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 fourth judicial district, this first day of May 1859. William Duee, Clerk. [l. s.j By James B. MoMinn, Deputy Clerk. CerUJioate of Official Charaoter. State of California, ) . City and County of San Francisco, j I, William Duer, clerk of the county court of the city and county of San Francisco, sta^te of California, do hereby certify, that , whose genuine signature is affixed to the foregoing certificate, was, at the time of signing the same, and still is, of the city and county of San Francisco, 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 liand and the seal of said county court, this day of , A. D. 18 . William DtrEE, Clerk. [l. S.J By J. F. Bowman, Deputy Clerk. CerUfioate of lExemplifioation of Hecord. State of California, ) City and County of San Francisco, j I, William Duer, county clerk of the city of San Francisco, state of California, and ex officio clerk of the Probate Court thereof, do hereby certify, that the foregoing eight pages, num- bered from one to eight inclusive, contain a true, full, and correct transcript of all the papers, orders, and proceedings on file, and of record in any office, in the matter of the estate of A. B. de- ceased. Witness my hand and the seal of said Probate Court, this fourteenth day of April, one thousand eight hundred and fifty- nine. William Duee, Clerk. ' [L. S.J CLERKS. 199 Certificate of Jvdge to Signatm^e, i&c, of the Cleric. State of California, ) . City and County of San Francisco, j I, M. E. Blake, judge of the Probate Court of the city and county of San Francisco, do hereby certify, that William Duer, whose genuine signature is affixed to the foregoing certificate, iSj and was at the time of signing the same, the clerk of said court, duly authorized by law to make such certificate, that he is the legal keeper of said record, and that the foregoing attestation is in due form. Witness my hand, this fifteenth day of April, one thousand eight hundred and fifty-nine. M. 0. Blake, Probate Judge. Cei t^ficate of Mcem^lification of Record. The People of the State of California, by the grace of God free and independent, to all to whom these presents shall come, greeting : Know ye, that we, having inspected the records and files in the office of the clerk of the city and county of San Francisco, and clerk of the district court ot the twelfth judicial district of the state of California, in and for said city and county, do find a certain judgment roll there remaining of record, which is in the words and figures following, to wit : \here insert the record am,d conclude as follows^ all of which we have caused to be exempli- fied in accordance with the act of Congress. Attest my hand and the seal of said 12th district court, this first day of July, A. D. one thousand eight hundred and fifty- nine. William Duee, Clerk. [l. s.J By Wm. E. Satteelee, Deputy. Certificate to Copy of a Record, or Paper, on File in the ClerFs Office. State of California, ) . City and County of San Francisco, j County Clerk's Office, May 1, 1859. I, William Duer, county cleA of the city and county of San Francisco [where the paper is on file or on record im, one of the cowrts of which he is cleric, add, and clerk of the court], do hereby certify, that I have compared the foregoing copy of a {name the insirumenf], and of the endorsements thereupon, with the original records of the same remaining in this office [or, with, the originals now remaining on file in this office], and that 200 bajStcroft's California lawyer. the same are correct transcripts therefrom, and of the whole of said original records [or, originals]. [l. s.] "Witness my hand and the seal of, &c., [as in foregoing forms-l Certificate of a Judge to the Signature amd Attestation of am, Officer. State of California, ) County of Santa Clara, j I, William H. McKee, judge of the third judicial district of the state of California, in and for the county of Santa Clara, do hereby certify that Austin M. Thompson, by whom the annexed transcript [or record, or copy of, as the ease may he~\, certificate and attestation were made and given, and who in his own proper handwriting has thereunto subscribed his name [where he is an officer homing 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 Santa Clara, state of California, duly commissioned and qualified ; to all whose acts as such, full faith and credit are and ought to be given, as well in courts of jurisdiction as elsewhere, and that the said transcript [or record, or copy of, as the case may ie], certificate and attestation, are indue form and made by the proper officer. In witness whereof, I have hereunto set my hand, the tenth day of May, one thousand eight hundred and fifty-nine. William H. McKee, District Judge. Certificate of Cl&rk of Cowrt to the Signatwre of the Judge. County of Santa Clara, ss : I, John B. Hewson, county clerk of the county of Santa Clara, state of California, and ex officio clerk of the district court of the third judicial district^ in and for the county of Santa Clara, do hereby certify that the Hon. "William McKee, by whom the foregoing attestation was made, and whose genuine signature is subscribed thereto, was at the time of signing the same, and still is, judge of the district court of the third judicial district, in and for the county of Santa Clara, 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 the seal of said third district court, this tenth day of May, A. D. 1869. [l. S-] John B. Hewson, Clerk. COiiTTRACTS AND, AGEEEMENTS. 201 CHAPTEE XIII. CONTEACTS AND AGEEEMENTS. I. OF OONTEAOTS OR AGREEMENTS GENERALLY, AconteactIs an agreement between two or more persons, upon a sufficient consideration, to do or not to do a particular thing. To constitute a valid contract, or agreement, there must be — 1. The mutual assent of two or more persons competent to con- tract; ; an intelligent meeting of the minds of the parties. 2. A good and valid consideration, i. e., motive or inducing cause to make the promise upon which the party is to be held or charged. 3. 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. Contracts are divided into agreements 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 be- tween a written contract without a seal and a mere verbal agree- ment 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 desir- able, to add a seal whenever they draw their own contracts or act without legal advice. In this state, a seal made of a foreign substance, and affixed to the document, is not necessary, and a stamp or impression 202 Bancroft's cALiFOEifiA lawtee 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 outline of the seal, has been held to be sufficient by the Supreme Court. The essence of an agreement is the intelligent assent or union of the minds of the parties, and in its construction the actual in- tent 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 ambi- guity in the terms of the written instrument, can parol proof or extrinsic circumstances be invoked to aid in its construction. If, however, a written instrument fails to express the real con- tract 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 con- formable to the intention of the parties. Incapacity to contract arises, among other causes, from in- fancy, from marriage (on the part of the woman), and from insanity. Infants are incapable of binding themselves by contract, ex- cept 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 fulfilment of the condition. The contract of an infant may also be confirmed without an express new promise ; and where he has neither dis- avowed nor affirmed it by words, a ratification 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 nature too nice to be capable of proper discussion in a work of this kind. The exception to the rule permitting an infant to repudiate con- tracts made by him, is the case where the promise or agreement is for necessaries. In regard to the age of miijority in this state, see the statutory CONTEACTS AND AGEEEMENTS. 203 provision below cited, under head of Miscellaneous Pitti- VISIONS. In regard to the power of married women to contract, see title, Husband and Wife. Fraud vitiates and annuls all contracts 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 bene- fit, 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 in- tent to defraud his creditors, cannot set the bill aside, though the creditors may do so. n. STATUTORY PEOVISIONS. 1. 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 memorandum thereof expressing the consideration, be in writing, and be sub- scribed by the party by whom the lease or sale is to be made. i!. Every instrument required to be subscribed by any person, under the last section, may be subscribed by the agent of such party, lawfully authorized.' 3. In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof expressing the consideration be in writing, and subscribed 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 mis- carriage of another. 3. Every agreement, promise or under- taking made upon consideration of marriage, except mutual promises to marry. 4. 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 ^ Wood's Dig. arts. 396, 897. In article 898 it is declared, tliat the provisions contained in tlie chapter of which those above cited form a part, " shall not be construed to abridge the powers of courts to compel the specific performance of agreements in cases of part performance of such agreements. 204 Bancroft's califoenla. lawxbe. therewith ; or, 2. Unless the buyer 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. 5. Whenever goods shall be sold at auction, and the auctioneer shall, at the time of sale, enter in a sale-book 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 per- son 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. 6. 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 th« vendor, or the creditors of the person paaking such assignment, or subsequent purchasers in good faith. Y. Every instrument required by any of the foregoing pro- visions to be subscribed by any party, may be subscribed by the lawful agent of such party. 8. The term " lands," as used in the foregoing statutory pro- visions, is to be construed as coextensive in meaning with lands, tenements and hereditaments, and the terms " estate and interest in lands," are to be construed to embrace every estate and interest, present and future, vested and contingent, in lands, as above defined. OF CERTAIN CONTRACTS, IN WHICH OFFICERS ARE PROHIBITED PROM BEING INTERESTED.' 1. It shall not be lawful for any officer of state or member of legislature, alderman, or member of the common council of any city in this state, or for the trustees of any city, town or village, or for the supervisor of any county, to become a contractor under any contract or order for supplies authorized by or for the state, or any department thereof, or the legislature, or either branch > Wood's Dig. p. 568, art. 2894-5. CONTBAGTS AND AGREEMENTS. 205 thereof, or by or for the aldermen or eomlnoti 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 prin- cipal in any such contract. 2. It shall not be lawful for any town, city, county or state officer, or member of the legislature, to be interested in any con- tract 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 dischargie of his official duties. 3. All contracts made in violation of the provisions of the first and second sections of this act may be declared void at the in- stance of the city, town or village, or county interested, or of any other party interested in such contract, except the officers pro- hibited in said sections from making or being interested in such contract. 4. 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. 1. If any debtor shair fraudulently remove his property or efiects 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 de- mands, 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 dollars, or by both fine and impris- onment. 2. Any person against whom an action is pending, or against whom a judgment has been rendered for the recovery of any personal property or effects, who shall fraudulently conceal, sell, or dispose of such property or effects, with intent to hinder, delay or defraud the person bringing such action, or recovering fiuch judgment, or shall with such intent remove such property • Wood's Dig. p. 860, art. 199J-6. 206 BA^'CEOFT'S CALIFORNIA LAWYEE. or effects beyond the limits of the county in which it may be a1 the time of the commencement of such actions, or the rendering of such judgmentj shall, on conviction, be punished as provided in the above section. OF THE TIME WITHIN WHICH ACTIONS UPON CONTRACTS MAT BE BROUGHT. The statute of this state in reference to the limitation of the time for bringing civil actions, provides as follows :' 1. The people of this state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless : 1. Such right or title shall have accrued within ten years before any action or other proceeding for the same shall be commenced, or unless, 2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or serve part thereof, within the space, of ten years. 2. No action shall be brought for or in respect to real property by any person claiming by virtue of letters patent, or grants from this state, unless the same might have been commenced by the people, as above specified, in case such patent or grant had not been issued or made. 3. When letters patent or grants of real property shall have been issued or made by the people of this state, and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such case an action for the recovery of the premises so conveyed may be brought, either by the people of this state, or by any subsequent patentee or grantee, of the same premises, his heirs, or assigns, within five years after such determination was made, but not after that period. 6. No action for the recovery of real property, or for the re- covery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor, ' Wood's Dig. p. 45. CONTEACTS AND AGEEEMENTS. 207 was seized or possessed of the premises in question, within five years before the commencement of such action ; provided, how- ever, that an action may be maintained by a party claiming sucli real estate, or the possession thereof, under title derired from the Spanish or Mexican gOYernments, 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. Y. No cause of action, or defence to an action, founded upon the title to real property, or to rents, or to services out of the same, shall be efiectual, unless it appear that the person prose- cuting the action, or making the defence, or under whose title the action is prosecuted, or the defence 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 com- ineneement of the act, in respect to which such action is prose- cuted, or defence made, or unless 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 commence- ment of such action. 8. Any peaceable entry upon real estate shall be deemed suffi- cient 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 confirma- tion by the United States of any title derived from Spain or Mexico. 9. In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises, shajU be presumed to have been possessed thereof, within the time prescribed by law, and the occupation of such premises by any other person shall be deemed to have been un- der, and in subordination to, the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for five years before the commencement of such action. 10. Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises, under claim of title, exclusive of any other right, founding such 208 bajstceopt's califoenia lawyer. claim upon a writteu instrument, as being a conveyance of the premises in question, or upon the decree or judgment' of a com- petent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment, or of some part of such premises, under such claim, for five years, the premises so included shall be deemed to have been held adversely, except that where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. 11. For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land shall be deemed to have been pos- sessed and occupied in the following cases : 1. Where it has been usually cultivated or improved. 2. Where it has been protected by a substantial enclosure. 3. Where (although not enclosed) 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 ordinary use of the occupant. 4. Where a known lot or single farm has been partly improved, the portion of such farm or lot that may have beeu left not cleared, or not enclosed, 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. 12. Where it shall appear that there has been an actual con- tinued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a written instrument, or a judgment, or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely. 13. For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment or decree, land shall be deemed to 'have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial enclosure. 2. Where it has been usual- ly cultivated or improved. 14. Whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, or where there has been no written lease, until the expiration of five years from CONTRACTS AND AGREEMENTS. 209 the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But euch presumptions shall not be made after the periods herein limited. 16. The right of a person to the possession of any real property shall not be impaired or affected by a descent being cast in con- sequence of the death of a person in possession of such property. 16. If a person entitled to commence any action for the recov- ery of real property, or to make an entry or defence, foimded 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: 1. "Within the age of twenty-one years ; or, 2. Insane ; or, 3. Im- prisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life ; or, 4. A mar- ried woman. The time during which such disability shall con- tinue shall not be deemed any portion of the time in this act limit- ed for the commencement of such action, or the making of sueli entry or defence, but such action may be commenced, or entry or defence 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 com- menced, or entry or defence made, after that period. 17. Actions, other than those for the recovery of real property, can only be commenced as follows : Within five years — An ac- tion upon a judgment or decree of any court of the United States, or of any state or territory within the United States. Within four years — An action iipon any contract, obligation, or liability founded upon an instrument of writing, except those mentioned in the preceding section. Within three years — 1. An action upon a liability created by statute, other than a penalty or for- feiture. 2. An action for trespass upon real property. 3. An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property. 4. 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 discov- ery, by the aggrieved party, of the facts constituting the fraud. Within two years — 1. An action upon a contract, obligation, oi- liability, not founded upon an instrument of writing, including an action on an open account, for goods, wares and merchandist-, 14 210 BANCEOFT's CALIFORNIA LAWYER. and an action for any article charged in a store account. 2. An action against a sheriff, coroner or constable, npon the liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, includ- ing the non-payment of money collected upon an execution. But this section shall not apply to an action for an escape. Within one year — An action upon a statute for a penalty or forfeiture, where the action is given to an individual, or to an individual and the state, except where the statute imposing it prescribes a different limitation. An action upon a statute for a foi'feiture or penalty to the people of this state. An action against a sheriff, or other officer, for the escape of a prisoner, arrested or impris- oned on civil process. 18. In an action brought to recover a balance due upon a mu- tual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the ac- count on either side. 19. An action for relief, not hereinbefore provided for, must be commenced within four years after the cause of action • shall have accrued. 20. The limitations prescribed shall apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties. 21. An action shall be deemed to be commenced within the meaning of this act when the complaint has been filed in the proper court. 22. 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 absence shall not be part of the time limited for the com- mencement of the action. 23. If a person, entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either : 1. Within the age of twenty-one years ; or, 2. Insane ; or, 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term COIfTBACTS AND AGREEMENTS. 211 less than his natural life ; or, 4. A married woman : the time of such disability shall not be a part of the time limited for the commencement of the action. 24. If a person entitled to bring an action die before the ex- piration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and v?ithin six months from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an ac- tion may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration. 25. When a person shall be an alien subject, or citizen of a country at war with the United States, the time of the continu- ance of the war shall not be a part of the period limited for the commencement of the action. 26. If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives may commence a new action within one year after the reversal. 27. When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time lim- ited for the commencement of the action. 28. No person shall avail himself of a disability, unless it ex- isted when his right of action accrued. 29. When two or more disabilities coexist at the time the right of action accrues, the limitation shall not attach until they all be removed. 30. The preceding sections of this act shall not affect actions against directors or stockholders of a corporation to recover a penalty or forfeiture imposed, or to enforce a liability created by law ; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached^ or the liability was created. 31. No acknowledgment or promise shall be sufficient evidence of a new or contimiing contract, whereby to take the case out of 212 BANCEOFT't; CAhlFOENIA LAWYER. the operation of tliis statute, unless the same be contained in some writing signed by the party to be charged thereby. 32. An action upon any contract, obligation or liability for the payment of money, founded upon an instrument of writing exe- cuted out of this state, can only be conmienced as follows: 1. "Within one year, when more than two and less than five years have elapsed since the cause of action accrued. 2. Within six months, when more than five years have elapsed since the cause of action accrued." 33. When the cause of action has arisen in another state or a territory of the United States, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, no action thereon shall be maintained against him in this state. 34. An action upon any judgment, contract, obligation or lia- bility for the payment of money or damages obtained, executed or made out of this state, can only be commenced within two years from the time the cause of action has accrued or shall accrue.^ 35. An action against any officer or de facto officer engaged in the collection of taxes, can only be commenced within six months : 1. For money paid to any such officer, under protest, or seized by such oflicer in his official capacity as a collector of taxes, and which it is claimed ought to be refunded. 2. To re- cover any goods, wares, merchandise, or other property seized by any such officer in his official capacity as tax collector, or to recover the price or value of any goods, wares, merchandise, or other personal property so seized, or for damages for the seizure, detention, sale of, or injury to, any goods, wares, merchandise, or other personal property, seized as aforesaid, or for damages done to any person or property in making any such seizure, or for damages for any act, or the consequences of any act, done by any such officer in his official capacity, as aforesaid. • Act of May 4, 1852, deflning the time of ' Supplementary act of Aprils, 1866. commencing civil actioDS in certalQ casoe. CONTRACTS AiSTD AGREEMENTS. 213 MISCELLANEOUS PROVISIONS. THE LEGAL LABORING DAT. Ten hours shall be considered a legal day's labor, in any action in law in any of the courts of this state.' THE AGE OP MAJORITY. Males shall be deemed of full and legal age when they shall be twenty-one years old, and females shall be deemed of full and legal age when they shall be eighteen years old, or at any age under eighteen, when, with the consent of the parent, guardian, or other person under whose care or government they may be, they shall have been lawfully married. Males and females of legal age, as fixed by this act, shall be competent to make contracts, convey real estate, and do all other acts and things that persons of full age may legally do." ERASURES AND ALTERATIONS. The party producing a writing as genuine, which has been ,altered, or appears to have been altered, after its execution, in a part material to the question in dispute, and such alteration is not noted on the writing, shall account for the appearance or al- teration. He may show that the alteration was made by another without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made. If he do that, he may give the writing in evidence, but not otherwise. WRITING AND SIGNATURE. For certain purposes, the "writing" includes printing, or printed paper, and the word " signature," or " subscription," in- cludes the " mark" of a person who cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness.' ■ Wood's Dig. art. 1383. s Bee § 64T of LabaU's Practice Act, and 2 id. 2811 ; Laws 1858, p. 108. Wood's Dig. art, 1858., 214: BANOEOFT'S CALIFORNIA LAWYEE. ACT OP MARCH 13, 1850, TO RBOULATB THE INTEREST OF MONEY. Section 1. When there is no express contract in writing, fixing a difi'erent rate of interest, interest shall be allowed at the rate of ten per cent, per annnm, for all moneys after they become due on any bond, bill, promissory note, or other instrument of writ- ing, on any judgment recovered before any court in this state, for money lent, for money due on the settlement of accounts, from the day on which the balance is ascertained, and for money received to the use of another. Sec. 2. Parties may agree in writing for the payment of any rate of interest whatever on money due, or tobecome due on any contract. Any judgment rendered on such contract shall con- form tliereto, and shall bear the interest agreed upon by the parties, and which shall be specified in the judgment. Sec. 3. The parties may, in any contract in writing, whereby any debt is secured to be paid, agree, that if the interest on such debt is not punctually paid, it shall become a part of the prin- cipal, and thereafter bear the same rate of interest as the principal debt. The rule for computing interest is prescribed in the case of Bacchus V. Minor, 3 Cal., 231, as follows: The rule for casting interest where partial payments have been made, is, to apply the payment in the first place to the discharge of the interest tlien due ; if the payment exceeds the interest, the surplus goes toward discharging the principal, and the subsequent interest is to be computed on the balance of the principal re- maining. If the payment be less than the interest, the surplus of interest must not be taken to augment the principal, but in- terest continues on the forriier principal, until the period when the payments taken together exceed the interest due. Where an account has been stated by plaintiff, charging in- terest on both the debt and payments, and rendered to defendant, and no objection made thereto, it is the same as an agreement that the interest should be computed accordingly. JUDICIAL decisions. Gold dust is not cash within the meaning of a contract calling for payment of cash.' ' 1 Gal. 45. CONTEAOTS AND AGREEMENTS. 215 On a sale of chattels, where no time for paymeiif or delivery is agreed upon, delivery and payment are concurrent acts, and neither party can maintain an action for non-performance, with- out showing a readiness and willingness to perform on his part. Upon part delivery of goods, the vendor is entitled to recover the stipulated price of the quantity actually delivered, although he is unable to deliver the whole quantity sold. But the pur- chaser is entitled to a reduction therefrom, of the amount of damages he has sustained on account of the non-delivery of the whole.' "Where the terms of a verbal contract are reduced to writing, but the written paper is neither signed nor delivered, the written contract will be deemed inchoate and, incomplete, and neither party will be bound by it.' Where an agreement is reduced to writing, all stipulations, conditions and provisions relating to the subject matter of the contract, are merged in the writing, except in some special cases. It is an indisputable rule of law that all conversations and inten- tions of the parties before and at the time of making a written contract, are contained in it ; so that the written instrument alone must be looked to for the purpose of collecting its meaning." A written contract must be construed so as to give eflfect, if possible, to all parts of it.* Where there has been a special contract to erect a building at a specified price, and according to an agreed plan, and the con- tract is afterward deviated from by consent, the plaintiff cannot recover ,upon the express contract, because the work has not been performed according to the terms of the express contract. But the plaintiff is entitled to compensation, and he can sue upon an implied contract, and the compensation must be gradu- ated, at the trial, by the terms of the contract, so far as the work can be traced under it.* Where the agreements of the party are dependent, neither party can maintain an action against the other, without showing performance, or an offer to perform." A public ofiBeer, who stands in the relation of agent of the 1 1 Gal. 51. ' * ii- 200. a id. 119. ' id. 206. * » id. 129; id. 887. " id. 837. 216 Bancroft's califoenia lawyek. government, or of the public, is not personally liable upon con- tracts made by him as such oflacer, and within the scope of his legitimate duties.' A public administrator is personally liable upon contracts made in relation to estates upon which he administers, unless the contract shows that it was not the intention to hold him person- ally liable.' A contract to pay the plaintiff ninety dollars per month, as wages for work and labor, will not include the plaintiff's board.' The designation of a contract by an improper term cannot be allowed to take away a substantial right, where all the circum- stances attending it are fully detailed.^ A parol agreement to rescind a contract under seal is good, if such parol agreement is executed, and such agreement may be presumed from the acts of the parties.* It is clearly settled that a vendee of goods may avail himself of fraud, breach of warranty, or failure of consideration, by way of defence in any action upon the contract of sale. To avoid cir- cuity of action, the defendant is permitted to set up this defence, either in mitigation of damages, or as a bar.' To constitute a valid sale of personal property against cred- itors, under the statutes, there must be " an immediate delivery thereof, accompanied with an actual and continuous change of possession. By an immediate, is not meant a delivery instanter, but the character of the property sold, its situation, and all the circumstances, must be taken into consideration, in determining whether there was a delivery within a reasonable time, and this will often be a question of fact for the jury.' A party cannot invalidate a fair contract, founded on a snfiS- eient consideration, on the ground of the insanity of one of the parties at the time. That a party is under the influence of liquor at the time of his making the contract is not sufficient to avoid it. Intoxication must be shown to exist to such an extent as to seriously impair the reasoning faculties at the time of the con- tract, to avoid it.' ' 1 Cal. 887. > 4 id. IT. = 2ia. 8T. «6ic1 226. = id. 489. ' i,i 36e-412. ' id, 561. CO]^TBACTS AND AGEEEMENTS. 217 Where part of the consideration of a contract is illegal, the whole is void.' A person who undertakes tlie erection of a building, or other work, for his own benefit, is not responsible for injuries to third persons, occasioned by the negligence of a person, or his ser- Tants, who are actually engaged in executing the whole work under an independent contract.' The right of selection is the basis of the responsibility of a master or principal for the acts of his agent. No one can be held responsible, as principal, who has not the right to choose l^e agent from whose act the injury flows.' After acceptance of the work, or construction by the person for whom it was built, he becomes liable for subsequent injuries, having thus assumed the responsibility of its sufficiency ; and the liability of the contractors ceases." Where the party employed receives a regular specific monthly salary for his services, the presumption of the law is, that all ser- vices rendered by him for his employer during that period, which are of nearly a similar nature to those of his regular duties, are paid for by his salary. And to overcome this presumption, he must show an express agreement for extra pay, otherwise he can- not recover." Where a contract is entire, a party cannot abandon one part and hold to another part. To rescind a contract requires the volition and action of both parties.* Where parties contract in respect to a law, the law itself be- comes a part of the contract, and they are boimd thereby. As where the parties execute a bail-bond, the whole statute respect- ing bail must be examined to determine the defendant's liability.' FORMS. Contract of Sale of Personal Property. Contract made and concluded the twenty-first day of May, one thousand eight hundred and fifty, by and between Jacob Cabot, party of the first part, and Samuel Harkness, party of the second part, in these words : The said party of the second part ' 8 Cal. 118. ■• Jones v. Post & Co., 6 Cal. 102. " id. 469. . » Mattoon v. Eder, 6 Ca). 57. 3 9 id. 198. 218 bakceoft's OALIFOENIA LAWX'EE. covenants and agrees to and with the said party of the first part, to furnish to said party of the first part at the town of Eough and Keady, on or before the first day of July next, three hundred pack-mules, with saddles and all equipments for packing, said mules to be of the average medium size of pack-mules, in good condition, and well broken and trained. And the said party of the first part, covenants and agrees to pay unto the said party of the second part, for the same, the sum of five thousand doUais, lawful money of the United States, as follows : the sum of one thousand dollars on the delivery of said mules, and one thousand dollars 6ach and every month thereafter, until the whole sum of five thousand dollars be paid ; and for the true and faithful per- formance of all and every of the covenants and agreements above mentioned, the parties to these presents bind themselves, each unto the other, in the penal sum of one thousand dollars, as fixed and settled damages, to be paid by the failing party. In witness whereof, the parties to these presents have hereunto set their hands, the day and year first above written. Sealed and delivered in presence of ) Jacob Cabot. Geoegb Coitltkr. j Samuel Haekstess. Agreement f(yr the Sale and Pv/rchase of Personal Property. This agreement, by and between E. K., of the city of , in the county of , of the first part, and M. B., of , of the second part, made the day of , one thou- sand eight hundred and sixty, witnesseth : That tlie said M. B., in consideration of the agreement hereinafter contained, to be per- formed by E. K., agrees to deliver to the said E. K., at his ware- house in the city of , one hundred sacks of barlej' [or, twenty head of cattle, as the co^se may be], on or before the day of , 18 . And the said E. K., in consideration thereof, agrees to pay to the said M. B. the sum of for each and every of the said immediately upon the com- pletion of the delivery thereof. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered in the | E. K. [l. s.] presence of A. P. j M. B. [l. s.] Agreement of Banrter. This agreement, made the day of, &c., between A. B., of, &c., and 0. D., of, &c., witnesseth: That the said A. B. agrees to sell and deliver to the said C. D., at his store in Mount Ophir, on the day of instant, fifty ounces of gold dust. In consideration whereof, the said C. D. agi-ees to sell and CONTEAOTS AND AGREEMENIS: 219 deliver to the said A. B., at the store-hoiise of G. 11., in , on the day of , aforesaid, one thousand pounds of barley, ten pounds of quick- silver, &c., &c. In witness, &c. Agreement to Sell Stooh m a Store. This agreement, made the day of , in the year 1860, between A. B., of, &c., and C. D., of, &c., wit- nesseth : That the said A. B., for the consideration hereinafter specified, agrees to sell to the said C. D., and the said 0. I). agrees to buy of the said A. B., all the stock of groceries, dry- goods, hardware, and goods, wares and merchandise belonging to the said A. B., and now being in the store occupied by him, in the town of Grub Flat, togethter with the furniture and fix- tures, thereunto appertaining, and also all the barley, haras, cheese, potatoes and produce, of eveiy name and nature, bought or contracted for by the said A. B., and intended for sale within the said store. The stock of goods, wares and merchandise is to be inventoried to the said 0. JD. at the original cost, without in- cluding 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 aforesaid, the same shall be deter- mined according to the appraisal of E. F., G. H., and I. J., of Grub Flat 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 five days from the date hereof, and the property above specified de- livered over to the said C. D. immediately thereupon. In consideration of the premises, the said 0. D. agrees to pay to the said A. B., as and for the purchase money of the above- mentioned pi-operty, the sum of five thousand dollars in cash. And the said A. B. further covenants and agrees, to and with the said 0. D., 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 Grub Flat. And it is expressly understood that the stipulations aforesaid are to apply to and to bind the heirs, executors and administra- tors of the respective parties, and in case of failure, the parties bind themselves, each unto the other, in the sum of one thou- sand dollars, as fixed and settled damages, to be paid by the failing party. In witness, &c. 220 Bancroft's califoenia lawyer. Agreement with a Clerk or Worhman. This agreement, made the day of, &c., betweeii A. B., of, &c., and C. D., of, &c., witnesseth : That the said _C. D. covenants and agrees, faithfully, truly and diligently, to write \pr, work] for the said A. B., as his clerk, [or, journeyman,] in the office [or, shop, or, store] of the said A. B., at , aforesaid, from the _ day of instant, for and during the space of : In consideration of which service so to be per- formed, the said A. B. covenants and agrees to pay to the said 0. D. the sum of _ dollars monthly, at the end of each and every month of this contract. In witness, &c. Agreement to Sell and Deliver Cord- Wood, or Stone. ' This agreement, made the day of, &c., between A. B., of, &c., and C. D., of, &c., witnesseth : That the said A. B., for the consideration hereinafter mentioned, agrees to sell to the said C. D., five hundred cords of seasoned oak cord-wood, and to deliver, and securely pile the same, on the west bank of the Sacrameuto River, immediately in the town of Colusi \or, two hundred tons of good quarry stone, suitable for building, and to deliver the same on Pacific wharf, in the city of San Francisco] on or before the day of next. In consideration whereof, the said C. D. agrees to pay to the said A. B., the sum of for each and evejy cord of wood, [or, tons of stone,] as aforesaid, upon the final and com- plete delivery thereof. In witness, &c. Builders' Contract. Articles of agreement, made this first day of May, one thou- sand eight hundred and fifty-nine, between Richa;rd H. Sinton, of the first part, and Alexander H. Houston, of the second part. 1. The said party of the second part does hereby, for himself, his heirs, executors and administrators, covenant, promise and agree with and to the said party of the first part, his executors, administrators and assigns, that he the said party of the second part, his executors or administrators, shall and will, for the con- siderations hereinafter mentioned, on or before the first day of September next, well and siifficiently erect and finish a new building of brick and stone upon tlie lot on the corner of and streets, in the city of San Francisco, agreeable to the CONTEACTS AND AGKEEMENTS. 221 drawings and specifications made by Lewis E. Townsend, archi- tect, and signed by the parties hereunto annexed, within the time aforesaid, in a good, workmanlike and substantial manner, to the satisfaction, and under the direction of the said Lewis K. Towns- end, to be testified by a writing or certificate under the hand of the said Lewis R. Townsend, and also shall and will find and provide, such good, proper and sufficient materials, of all kinds ■whatsoever, as shall be proper and snflicient for completing and finishing all the foundation, walls, fioors, ceilings, roofings, and other works of the said building mentioned in the annexed speci- fications for the sum of ten thousand dollars. And the said party of the first part, does hereby, for himself, his heirs, executors and administrators, covenant, promise and agree, with and to the said party of the second part, his execu- tors and administrators, that he the said party of the first part, his executors or administrators, shall and will, in consideration of the covenants and agreements being strictly performed and kept by the said party of the second part, as specified, well and truly pay, or cause to be paid, unto the party of the second part, his executors, administrators or assigns, the sum of ten thousand dollars of lawful money of the United States of America. In manner following : [here state the terms of paymenf]. Provided, that in each of the said cases a certificate be obtained and signed by the said Lewis E. Townsend, architect, and it is hereby further agreed by and between the said parties : 1. The specifications and the drawings are intended to co-oper- ate, so that any works exhibited in the drawings and not men- tipned in the specifications, or viae versa, are to be executed the same as if they were mentioned in the specifications and set forth in the drawings, to the true meaning and intention of the said drawings and specifications. 2. The contractor, at his own proper cost and charges, is to provide all manner of materials and labor, scafi'olding, imple- ments, moulds, models, and cartage of every description, for the due performance of the several erections. 3. Should the owner, at any time during the progress of the said building, request any alteration, deviation, additions or omis- sions, from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation. 4. Should the contractor, at any time during the progress of the said works, refuse or neglect to supply a sufficiency of mate- rials, or workmen, the owner shall have the power to provide materials and workmen, after three days' notice in writing being given to finish the said works, and the expense will be dedncted from the amount of the contract. 222 Bancroft's California lawyer. 5. Should any dispute arise respecting the tme eonstruction or meaning of the drawings or specifications, the same shall be de- cided by Henry A. Cobb and A. A. Selover, and their decision shall be final and conclusive; but should any dispute arise re- specting the true value of the extra work or works omitted, the same shall be valued by two competent persons — one employed by the owner and the other by the contractor — and those two shall have power to name an umpire, whose decision shall be binding on all parties. 6. The owner shall not, in any manner, be answerable or ac-. countable for, any loss or damage that shall or may happen to the said works, or any part or parts thereof respectively, or for any of the materials or other things used and employed in finishing and completing the same (loss or damage by fire excepted), until the said building is completed. In witness whereof, the said parties to these presents have hereunto set their hands the day and year first above written. Signed and sealed in the ) Kichabd H. Sinton. presence of j Alexander H. Houston. Agreement for Buildvng a Souse — short Form. This agreement made the day of , one thousand eight hundred and , by and between A. B., of, &c., of the first part, and C. D., of, &c., 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, build and finish, in good, substantial, and workmanlike manner, on the fifty vara lot of the said party of the first part, situate on Hyde street, in the city of San Francisco, a dwelling-house, agreeable to the draft, plan, and explanation, hereto annexed, of good sub- stantial materials \_if the materials a/re to he furnished hy the party of the first part, say : of such materials as the said party of tlie first part shall find or provide for the same], by the day of next. And the said party of the first part covenants and agrees to pay unto the party of the second part, for the same, the sum of dollars, lawful money of the United States, as follows : the sum of dollars in thirty days from the date hereof, and the remaining sum of dollars, when the said dwel- ling-house shall be completely finished. . [If necessary, add : And also, that he will furnish and procure the necessary mate- rials for the said work, in such reasonable quantities, and at such reasonable time or times, as the said party of the second part shall or may require.] And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to GONTEACTS AND AGEEEMBNTS. 223 these presents bind themselves, each unto fhe other, in the penal sum oi dollars, as fixed and settled damages, to be paid by the failing party. In witness, &c. Agreement with a Mason. This agreement, made the day of, &c., between A. B., of, &c., and C. D., of, &c., witnesseth : That the said C. J)., for the consideration hereinafter mentioned, promises and agrees, to and with the said A. B., that he will do and perform, by himself or persons in his employ, in a good and workmanlike manner, and with materials to be furnished by the said A. B., all the ma- oon and plastering work to be done in and about the erecting and building a new dwelling-house on the lifty vara lot No. 200, of the said A. B., on California street, in the city of San Francisco, according to the plans and specifications hereto annexed ; and also, that he will use the utmost care in working up the materials to be furnished by the said A. B., as aforesaid, to the best advan- tage for the said A. B., and that he will complete the said work on or before the day of next. And the said A. B., in consideration of the premises, agrees to furnish and provide good and sufiicient materials for the said work, at such time or times as the said C. D. may request; and to pay the said C. D. for all such work as shall be performed by him or his servants in and about the said new dwelling-house, ornamental work excepted, on the completion of the same, at and after the rate of per yard of three feet square, and the sum of dollars for all the ornamental work done or per- formed in and about the said dwelling-house — it being expressly understood and agreed, that no extra charge is to be demanded or allowed, for corners, arChes, jams, joints, fire-places, or any other kind of work not strictly ornamental, but all the work is to be measured as plain, except the ornamental work to be paid for, as aforesaid, in gross. In witness, &c. Party- Wall Agreement. This agreement made and entered into at the city of San Fran- cisco, this day of , A. D. one thousand eight hundred and sixtVj, between Albert L. Bancroft, Charles J. Leonard, and Frederick Whittram, of the said city, of the first part, and John 0. Barnes, of the city of ISTew York, of the second part, witness- eth : That whereas the said parties of the first part are the owners of a lot of land \insert description'], and whereas the said party of the second part, is the owner of the adjoining lot of land upon 224 banceoft's California lawyer. the easterly side thereof, and whereas the said parties purpose to improve their said lots by the erection of brick or stone buildings thereon, and the said parties of the first part have commenced erecting such improvement on their said land, under a verbal agreement, that the walls to be erected on their division lines should be erected equally upon their several lots ; and whereas, the respective parties are desirous of having their said agreement reduced to writing ; now, therefore, in consideration of the premises, it is agreed by and between the parties to these pres- ents, that the said parties of the first part shall have the imme- diate possession and use of one of the portions of the lot of the said party of the second part, convenient or necessary for the purpose aforesaid, and shall construct thereupon, in a good and woi'kmanlike manner, upon a foundation to be substantially piled and capped, a wall or walls, one-half whereof shall be upon the land of said party of the second part, and one-half upon the land of said parties of the first part, and running southerly from street sixty feet and six inches, on the division line of the lots aforesaid, to be built of good building stone or brick, of the thick- ness of sixteen inchesfrom thebaseto the second fioor, to the height of twenty -four feet, and of the thickness of twelve inches from the second floor upward to the height of twenty feet, including the second and third stories ; the whole to be capped with a fire-wall of the thickness of eight fnches to the height of two feet. The whole of said wall to be of the depth of sixty feet and six inches. And the said party of the second part doth hereby covenant, promise, and agree to and with the said parties of the first part, that after the said wall shall be erected, finished, and ready for use, whenever he sliall use the whole or any part thereof for the construction of a brick or stone building, that he will pay to the said parties of the first part, on demand, the one-half part of the value of so much and such part of said party-wall, including the made foundation thereof, as he shall make use of; and in case the parties hereto cannot agree and determine as to the amount to be paid by the said party of the second part for the use of said party-wall, then such amount shaU be ascertained and de- termined by arbitration ; the parties of the first part to appoint one arbitrator, and the party of the second part to appoint one arbitrator, and in case said arbitrators cannot agree and deter- mine upon such valu6, they shall themselves appoint a third ai'bitrator; and the decision of any two of said arbitrators, de- livered in writing, shall be conclnsive and binding upon the parties hereto. And the said parties to these presents do hereby mutually covenant and agree, that if it shall thereafter become necessai'y to repair any portion of tlie said party-wall, the expense of such repairing shall be borne equally by the parties hereto; and if it CONTEACTS AND AGREEMENTS. 225 shall hereafter become necessary to rebuild such party-wall, or any portion thereof, by reason of its destruction by fire or other calamity, in that event, either party shall be at liberty to re- build the same, and the expense of rebuilding shall in the first instance be borne by the party rebuilding; and -whenever the other party shall desire to make use of the wall so rebuilt, or any part thereof, he shall be at liberty to do so upon paying to the party rebuilding, on demand, one-half of the value of the wall rebuilt, or of such portion thereof as said party shall desire to use at the time he shall so desire to use the same. And if the parties hereto cannot agree upon the price to be paid to the party desiring the use thereof, the same shall be determined and fixed by arbitra,tion, as hereinbefore provided, for ascertaining the amount to be paid on the first use of said party-wall ; and that whenever said party-wall shall be rebuilt, it shall be erected on the same spot where it shall be erected under this agreement, and shall be of the same dimensions, and of the same or similar materials. And it is hereby mutually agreed by and between the parties to these presents, that in case either party shall, at any time, desire to erect said party-wall to any greater height than the same shall be erected as aforesaid, said party shall be at liberty to do so, either upon the whole width of said wall or upon that portion thereof which corresponds with his portion of the land upon which said wall shall then stand ; and in case said party shall erect to a greater height, either upon the whole width, or on such portion thereof, such erection shall in the first instance be at the expense of the party building, and in case either party shall continue such higher erection the whole width of said party-wall, whenever the other party shall desire to use the same he shall be at liberty to do so, upon paying to the other on de- mand one half of the value of said higher erection, or of so much thereof as he shall make use of, at the time when he shall so make use of the same ; and in the event the said parties hereto cannot agree and determine on said value, it shall be determined and fixed by arbitration, in the manner hereinbefore provided for ascertaining the amount to be paid for the first use of the wall to be settled in pursuance of this agreement. And the said parties to these presents do hereby mutually covenant and agree, for and with themselves and their respective heirs and assigns, that the whole of the wall above-mentioned siiall be and remain as a party-wall, to be continued and used as such forever. And it is further mutually understood and agreed, by and be- tween the parties hereto, that this agreement shall be perpetual, and at all times be construed into a covenant running with the land ; and that no part of the fee of the soil upon which said 15 226 baktoeoft's califoenia lawyee. ■wall shall be erected, belonging to the said parties of the first part, shall pass to the said party of the second part ; and that no( part of the fee of the soil upon' which said wall shall be erected, belonging to said party of the second part, shall pass to said parties of the first part, or to the respective heirs or assigns of said parties, or be vested in them or either of them, in or by these presents. And it is mutually understood, that the stipulations and agree- ments aforesaid are to apply to and bind the heirs, executors, administrators, and assigns oi" the respective parties. In witness whereof, the respective parties to these presents, have hereunto, and to a duplicate hereof, interchangeably set their hands and seals, the day and year first above written. Witness, J. W. J. Pieeson. Ohas. J. Leonard, [l. s.] Albeet L. Banceoft. [l. s.J Feedeeiok; Whitteam. [l. s.] John C. Baenes. [l. s.] By his attorney in fact, Aaeon Johnson. Party- Wall Agreement — short Form. This agreement, made the day of, &c., between A. B., of, &c., and C. D., of, &c., witnesseth : That whereas the said A. B is the owner of the lot and store known as number , street, in the city of Sacramento ; and the said C. D. is the owner of the lot adjoining the same on the northerly side thereof, on which last-mentioned lot the said C. D. is about to erect a brick store ; now, therefore, the said A. B., in consideration of the snni of dollars, to him in hand paid, the receipt whereof is hereby acknowledged, doth for himself, his heirs, executors, ad- ministrators, and assigns, covenant, grant, promise, and agree to and with the said C. D., his heirs, executors, administrators, and assigns, that he, the said C. D., his heirs and assigns, shall and may, in the erection of the brick store about to be built, as afoi'e- said, freely and lawfully, but in a workmanlike manner, make use of the northerly gable-end wall of the said A. B., or so much thereof as the said 0. D., his heirs or assigns, may desire as a party-wall, to be continued and used as such forever. And the said A. B. and C. D. do hereby mutually covenant and agree for and with themselves, and their respective heirs and assigns, that if it shall hereafter become necessary to repair or re- build tlie whole or any portion of the said party -wall, the expense of such repairing or rebuilding shall be borne equally by the said A. B. and CD., their respective heirs and assigns, as to so much and such portion of the said wall as the said C. D., his heirs and assigns, shall or may use for the purposes aforesaid; and that whenever the said party-wall, or any portion thereof, shall be re- CONTRACTS AND AGREEMENTS. 227 built, it shall be erected on tbe same spot where it now stands, and be of the same size, and the same or similar materials, and of like quality with the present wall. It is further mutually understood and agreed between the aforesaid parties, that this agreement shall be perpetual, and at all times be construed into a covenant running with the land ; and that no part of the fee of the soil upon which the wall of the said A. B. above described, now stands, shall pass to, or be vested in, the said C. D., his heirs and assigns, in or by these presents. In witness, &c. Agreement to Sell Shares of Stock m cm Incorporated Company. This agreement, made the day of, &c., between A. B., of, &c., and C. D., of, &c., witnesseth : That the said A. B. agrees to sell and convey to the said C. D., on or before the day of , next, one hundred shares of the capital stock of the California Steam Navigation Company, now owned and held by the said A. B., and standing in his name on the books of the said company, and to make and execute unto the said C. D. all assign- ments, transfers and conveyances necessary to assure the same to him, his heirs, and assigns. In consideration whereof, the said C. D. agrees to pay unto the said A. B., for each and every share of such stock, the average cash market price of the same, for and during twenty days pre- ceding the day of , aforesaid, to be determined by the sales made in the city of San Francisco. In witness, &c. Agreement, or Subsariftion,for Raising Money to Build a Ch'^rcJi or other Work. "We, the undersigned, do hereby severally promise and agree to pay to A. B., C. D., and E. F., the trustees of the Calvary Presbyterian Church and Congregation Society, in the city of San Francisco, the sums set opposite to our respective names, on demand [or as the terms of payment may he'], for the purpose of building a church or place of worship for the said society in the city of San Francisco, aforesaid ; and we request the said trustees fn contract for the building of such church or place of worship, and to build the same, and to apply the sums of money hereto siibscribe.d in payment therefor. Witness our hands, this day of , 1854. NAMES. AMOUNT. J. B. E $1000 00, PI. P. C 500 00 J. M 750 00 228 Bancroft's CALiFOEiiriA lawyer. Agreement to CiM/vate La/nd on ShwreS. This agreement, made the day of, &c., between A. B., of, &c., and C. D., of, &c., witnesseth : That the said A. B. agrees that he will break up, plough, properly fit and sow with wheat, all that field belonging to the said C. I)., lying immediately north of the town of Santa Clara aforesaic^, and containing two hundred acres or thereabouts, on or before the fifth day of Septem- ber 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 C. D., at , on or before the day of , in the year 1859. It is understood between the parties, that one half of the seed wheat is to be found by the said C. D. ; that the said A. B. 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 A. B. In witness, &c. CanceUmg Agreement. This agreement, made this day of , A. D. , between- A. of the first part, and B. and 0. of the second part, witnesseth : Whereas, on A. D. 1857, 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. 1857, to the care and management of certain real estate (in said agree- ment in writing 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 part, 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 determination of the said care, management and employ- ment. And the party of the first part does hereby discharge, release and acquit the parties of the second part, of and from all obliga- tion 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 thereof. CONTRACTS AND AGREEMENTS. 229 And tlie 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 manage- ment of tne said real estate, property and business as aforesaid, or of the acts of any person hereafter employed by the parties of the second part, in the care and management thereof, during the said unexpired term : And they also agree that the party of the first part may have access to the books, papers and accounts of the management of said real estate, property and business, kept during the manage- ment thereof by the party of the first part. In witness whereof, &c., &c. 230 BANCROFT'S CALIFOKNIA LAWYEB. OHAPTEE XIV. COEONEE. STATUTORY .PKOVISIONS. It is provided that one coroner shall he elected from each county, to serve for two years, and to give bond in the sum of five thousand dollars.' In some of the counties his bond is fixed at a different amount, and in some his oifice is united with that of public administrator." In San Francisco his bond is given under the provisions of the consolidation act, and his compensation iu the form of a salary.^ He is allowed a sum not to exceed fifty dollars per month for making analyses, and for interments not exceeding ten dollars in each case.* The coroner shall perform the duties of sheriff in all cases where the sheriff is interested, or otherwise incapacitated from serving ; and also in cases of a vacancy by death, resignation, or otherwise, in the office of sheriff, the coroner shall discharge the duties of such office until a sheriff is elected and qualified. When both are parties to the action, or when either one is prose- cuted for disobedience, an elisor may be appointed.' Whenever the coroner acts as sheriff, he shall possess the powers and responsibilities, and perform all the duties of sheriff, and shall be liable on his official bond in like maimer as a sheriff would be, and shall be entitled to the same fees as are allowed by law to the sheriff for similar services." "When a coroner has been informed that a person has been killed, or has committed suicide, or has suddenly died under such circumstances as to afford a reasonable ground to suspect that his 1 Wood's Dig. art. 2852, 2861 nnd 426. • Wood's Dig. art. 427 and 8271-8274; Laws 2 Laws 1S58, p. 28 and 1S6 ; Laws 1869. 1859, P- 8. a Laws 1857, p. 212. " Wood's Dig. art. 428 and 8272. ' Laws 1851, p. 89. CORONEE. 231 death Las been occasioned by tlie act of another, by criminal means, he shall go to the place where the body is, and forthwith summon not less than nine, nor more than fifteen persons, quali- fied by law to serve as jurors, to appear before him forthwith at the place where the body of the deceased is, to inquire into the cause of the death.' Every person summoned as a juror who shall fail to appear withovit having a reasonable excuse, shall forfeit any sum not exceeding one hundred dollars, to be recovered by the coroner in the name of the people of the state, before any justice of the peace, in the proper township, and when collected, to be paid over to the county treasurer for the use of the county.' "When six or more of the jurors attend, they shall be sworn by the coroner to inquire who the person was, and when, where, and by what means he came to his death, and into the circum- stances attending his death ; and to render a true verdict there- on, according to the evidence afforded them, or arising from the inspection of the body. If a juror neglect or refuse to attend, he may be fined in the sum of fifty dollars.' The coroner may issue subpoenas for witnesses, returnable forth- with, or at such time and place as he may appoint, which may be served by any competent person. He must summon and exam- ine as vtritnesses, every person, who, in his opinion, or that of any of the jury, has any knowledge of the facts, and he may summon a surgeon or physician to inspect the body, and gi's'e a professional opinion as to the cause of the death." A witness served with a subpcena may be compelled to attend and testify, or punished by the coroner for disobedience, in like manner as upon a subpoena issued by a justice of the peace.' After inspecting the body and hearing the testimony, the jury shall render their verdict aud certify the same by an inquisition in writing, signed by them, and setting forth who the person killed is, and when, where and by what means he came to his death ; and if he was killed, or his death occasioned by the act of another by criminal means, who is guilty thereof.^ The testimony of the witnesses examined before the coroner's jury shall be reduced to writing by the coroner, or under his 1 Wood's Dig. art. 429 and 430. s jij. iSS-U7. 2 id., 481 and 2709, §§ 28 and 29. 232 Bancroft's oaijfoenia la-wyeb. direction, and shall be forthwith filed by him, with the inquisi- tion, in the office of the clerk or the district court of the county.' If, however, the person charged with the commission of the offence be arrested before the inquisition can be filed, the coroner shall deliver the same, with the testimony taken, to the magis- trate before whom such person may be brought, who shall return the same, with the depositions and statement taken before him, to the office of clerk of the district court of the county.' If the jury find that the person was killed by another, under circumstances not excusable or justifiable by law, or that his death was occasioned by the act of another by criminal means, and the party committing the act be ascertained by the inquisi- tion, and be not in custody, the coroner shall issue a warrant, signed by him, with his name of office, into one or more counties, as may be necessary for the arrest of the person charged.' The coroner's warrant may be served in any county, and the officer serving it shall proceed thereon in all respects as upon a warrant of arrest on an information before a magistrate, except that when served in another county, it need not be endorsed by a magistrate of that county.' The coroner must, within thirty days after an inquest upon a dead body, deliver to the county treasurer any money or other property which may be found upon the body, unless claimed in the mean time by the legal representatives of the deceased. If he fail to do so, the treasurer may proceed against the coroner, to recover the same, by a civil action in the name of the county.' Upon the delivery of money to the treasurer, he shall place it to the credit of the county. If it be other property, he shall, within thirty days, sell it at public auction, upon reasonable public notice, and shall, in like manner, place the proceeds to the credit of the county.' If the money in the treasury be demanded within six years by the legal representatives of the deceased, the treasurer shall pay it to them, after deducting the fees and expenses of the coroner and of the county in relation to the matter, or the same may be so paid at any time thereafter, upon the order of the Court of Sessions of the county.' 1 Wood's Dig. art. 48S-447. COEONEE. 233 Before auditing and allowing the account of the coroner, the Court of Sessions' shall require from him a statement in writing, of any money or other property found upon persons on whom inquests have been held by him, verified by his oath, to the effect that the statement is true, and that the money or property men- tioned in it has been delivered to the legal representatives of the deceased or to the county treasurer.' If the office of coroner be vacant, or he be absent, or unable to attend, the duties of his office may be performed by any justice of the peace of the county, with the like authority, and subject to the same obligations and penalties as the coroner.' In the counties of San Diego, Los Angeles, Santa Barbara, San Luis Obispo, Sonoma, Santa Clara, Monterey, a coroner shall re- ceive five dollars for each inquest he may hold, and twenty cents for each mile necessarily travelled to hold an inquest. In all other counties of the state a coroner shall receive ten dollars for each inquest he may hold, and twenty-five cents for each mile necessarily travelled to hold an inquest. Coroners' fees shall be county charges.' A justice of the peace acting as coroner, shall be entitled to the same fees, payable in the same manner.' When an inquest shall be held by the coroner, and no person shall offer to take charge of the body of the deceased, it shall be his duty to cause said body to be decently interred, and in case that there shall not be sufficient property belonging to the estate of the deceased to pay the necessary expenses of the said burial, said expenses shall be a legal charge upon his county. The coroner shall be entitled to receive the sum of two dollars out of his county treasury, for attending to the burial of such dead body." ' Wood's Dig. art. 48S-44T. ^ This provision in relation to money or other property of the deceased, controlled by the statute authorizing the Public Administrator to take charge of such cflFects, and by the decision of the Supreme Court, declaring that the jurisdiction of the Court of Sessions is limited to criminal mat- ters only. 234 banceoft's California lawyer. FOBMS. Coroner's Subjpmna for Jurors. State of California, ) . County of San Francisco, ) The People of the State of California send greeting : To Mr. A. B.: We command you that, all and singular business and excuses being laid aside, you be and appear before J. M. McNulty, county coroner for the county of San Francisco, at the police judges' court-room, on the first day of May, 1859, at seven o'clock, P. M., then and there to serve as a juror, in a certain in- quisition now pending before said county coroner — and herein fail not, or answer the contrary, at your peril. Given under my hand, this first day of May, A. D. 1859. J. M. McNuLTY, County Coroner. Coroner'' s Subpmna for Witnesses. State of California, ) County of San Francisco, j The People of the State of California send greeting : To Mr. John Minn : We command you that, all and singular business and excuses being laid aside, you be and appear before J. M. McNulty, county coroner for the county of San Francisco, at my ofiice, on the fifth day of July, 1859, at twelve o'clock M., then and there to testify and give evidence in a certain inquisition now pending before said county coroner — and herein fail not, or an- swer the contrary at your peril. Given under my hand, this second day of July, A. D. 1859. J. M. McNuLTT, County Coroner. Coroner's Suhpcenafor a Surgeon or Physician. State of California, City and County of San Francisco, \ ^ ' The People of the State of California send greeting : To William A. Douglass, M. D. : We command you that, all and singular business and excuses being laid aside, you be and appear before the undersigned, county coroner for the city and county of San Francisco, at , on the dny of , 18 , at o'clock, then and there to inspect the body of a certain deceased person, and to testify and give COEONEB. 235 evidence in a certain inquisition now pending before said county coroner — and herein fail not or answer the contrary at your peril. Given under my hand, this day of , A. D. 1869. J. M. McNuLTT, County Coroner. Oath to Coroner'' s Jwry. You and each of you do solemnly swear that you will truly inquire into the cause of the death of the person whose body is now lying here [or, whose body you have just viewed], who he was, when, wliere and by what means he came to his death, and into the circumstances attending his death : and render a true verdict thereon, according to the evidence afforded you, or ari- sing from the inspection of the body. So help you God. Oath of Witness iefore Oor'oner's Inquest. You do solemnly swear [or, affirm] that the evidence you shall five upon the inquest now pending, concerning the death of A. >. [or, the person now lying here, or, the person upon whom in- quisition is being made], shall be the truth, the whole truth, and nothing but the truth. So help you God. Inquisition iy Coroner's Jwry. State of California, ) City and County of San Francisco, j Before J. M. McNultt, Coroner. In the matter of the inquisition upon the body ) of A. B. deceased. ,f We, the undersigned, the jurors summoned to appear before J. M.McNulty, the coroner of the city and county of San Fran- cisco, at , on the day of , 1859, to inquire into the cause of the death of A. B. [or, of a person found drowned in the Bay of San Francisco, or, found lying dead in the street, or as the case may ie, whose name is unknown], having been duly sworn according to law, and having made such inquis tion, after inspecting the body, and hearing the testimony adduced, upon our oaths, each and all do say, that we find the deceased was named A. B., was a native of , aged about years, that he came to his death on the day of , 1869, in this county, by drowning, having been found in the Bay of San Fran- cisco, at or near the Washington street wharf, and that Avhether the same was accidental or intentional we have no means of knowing [or, by poison administered wilfully by his own hand,. or, by the hand of, or, by the means or instigation of some other person to the jury unknown, or, and wc further find, that wc 236 banckoft's California lawyer. believe C. D. to be the person by "whose act tbe death of the said A. B. is occasioned — stating the facts, as the case may he']. All of which we duly certify by this inquisition, in writing, by us signed, this day of , 1859. G. H. I. K., &c. Coroner's OerUficate of Death. Office of the Coroner of the City and County ) of San Francisco, f I, J. M. MclSTulty, coroner, do hereby certify, that I held an inquisition upon the body of Peter Joram, a native of London, England, aged thii-ty-seven years, at Ifo. 29 Washington street, on the second day of May, 1859. Verdict of the jury — death from intemperance. And I further certify, that I interred the body at the Lone Mountain Cemetery, in this county, on the third day of May, 1859. Dated, this third day of May, 1859. J. M. McNtiltt, County Coroner. Coroner's Wajrrant.. State of California, ) . City and County of San Francisco, j The People of the State of California send greeting, to any sheriff, constable, marshal, or policeman in said state. An inquisition having this day been found by a coroner's jury before me, stating that a man, named George Hax, has come to his death by criminal means, by the act of a man named Richard Stew, you are therefore commanded forthwith to arrest the above-named Richard Stew, and take him before the nearest or most accessible magistrate in this county. Given under my hand, in the city and county of San Francisco, this tenth day of May, 1859. J. M. MoNoltt, County Coroner. CORPOEATIONS. 237 CHAPTER XV. COEPOEATIONS. CONSTITUTIONAL PROVISIONS.' ' CoKPOEATiONS may be formed under general laws, but shall not be created by special acts, except for municipal purposes. ' AH general laws and special acts passed pursuant to this sec- tion may be altered from time to time or repealed. Dues from corporations shall be secured by such individual liability of the corporators and other means, as may be pre- scribed by law. The term corporations, as used in this article, shall be con- strued to include all associations and joint-stock companies, hav- ing any of the powers or privileges of corporations not possessed by individuals or partnerships. And all corporations shall have the right to sue, and shall be subject to be sued, in all courts, in like cases, as natural persons. The legislature shall have no power to pass any act granting any charter for banking purposes ; but associations may be formed, under general laws, for the deposit of gold and silver; but no such associations shall make, issue, or put in circulation, any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money. The legislature of this state shall prohibit by law any person or persons, associations, company, or corporation from exercis- ing the privileges of banking, or creating paper to circulate as money. Each stockholder of a corporation, or joint-stock association, shall be individually and personally liable for his proportion of all its debts and liabilities. It shall be the duty of the legislature to provide for the organ- J Const. Cal. art. 4, §§ 31-37. 238 banci;oft's califoenia lawyee. ization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assess- ment and in contracting debts by such municipal corporations. STATUTORY PROVISIONS. A serviceable outline of the statutes concerning corporations would be nearly of equal length with the statutes themselves. The following selection includes the general corporation law, the law concerning steam navigation, water, and telegraph com- panies, agricultural societies, and benevolent, religious, and lite- rary associations, with portions of the acts concerning plank- road insurance, and mechanical mining, commercial, &c., com- panies, sufficient to show respectively their modes of organiza- tion, their principal authority, and the personal liabilities of their members. ACT OP APRIL 22, 1859, CONOEENING COEPOEATIONS.' Section 1. Every corporation, as such, has power: 1. To have succession by its corporate name, for the period limited, and when no period is limited, perpetually. 2. To sue and be sued in any court. 3. To make and use a common seal, and alter the same at pleasure. 4. To hold, purchase, and convey such real and personal estate as the purposes of the corporation shall re- quire, not exceeding the amount limited by law. 5. To appoint such subordinate officers and agents as the business of the cor- poration shall require, and to allow them a suitable compensa- tion. 6. To make by-laws not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of its stock. Sec. 2. In addition to the powers enumerated in the preceding section, and to those expressly given in the chapter of this act under which it shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be neces- sary to the exercise of the powei'S so enumerated and given. Sec. 3. 'No corporation created, or to be created, shall, by any ' Wood's Dig. p. 115. COlli'OEATIONS. 2s9 implication or construction, be deemed to possess tlie power of discounting bills, notes or other evidences of debt, of receiving deposits, of buying gold or silver, bullion or foreign coin ; of buying and selling bills of exchange, of issuing bills, notes or other evidences of debt, upon loans, or for circulation as money. ■ Sec. 4. "Where the whole capital of a corporation shall not have been paid in, and the capital paid shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay, on each share held by him, the sum necessary to complete the amount of such share as fixed by the charter of the com- pany, or such proportion of that sum as shall be required to satisfy the debts of the company. Sec. 5. When the corporate powers of any corporation are di- rected to be exercised by any particular body or number of per- sons, a majority of such body or persons shall be a sufiBcient number to form a board for the transaction of business, and every decision of a majority of the persons duly assembled as a board, shall be valid as a corporate act. Sec. 6. If any corporation hereafter formed shall not organize and commence the transaction of its business within one year from the date of its incorporation, its corporate powers shall cease. Sec. 7. All corporations may, by their by-laws, where no other provision is specially made, determine the manner of calling and conducting their meetings, the number of members that shall constitute a quorum, the number of shares that shall entitle the members respectively to one or more votes, the mode of voting by proxy, the mode of selling shares for the non-payment of as- sessments, and the tenure of office of the several officers ; and they may prescribe suitable penalties for the violation of their by-laws, not exceeding, in any case, one hundred dollars for any one offence. Sec. 8. The first meeting of every corporation, where no other provision is specially made, shall be called by a notice, signed by one or more of the persons named in, or associated as corpo- rators under the law by which it is incorporated, setting forth the time, place and purposes of the meeting ; and such notice shall, at least twenty days before the meeting, be delivered to each member, or published in some newspaper of the county 240 BANCEOFT'S CALIFORNIA LAWYEE. where the corporation shall he established, or if no newspaper be published in the county, then in some newspaper nearest thereto. Sec. 9. "Whenever, by reason of the death, absence or other legal impediment of the officers of any corporation, there shall be no person duly authorized to call or preside at a legal meeting thereof, any justice of the peace of the county where such corpo- ration is established, may, on written application of three or more of the members thereof, issue a warrant to either of the said members, directing him to call a meeting of the corporation, by giving such notice as shall have been previously required by law, and the justice may, in the same warrant, direct such per- son to preside at such meeting until a clerk shall be duly chosen and qualified, if there shall be no other officer present legally authorized to preside thereat. Seo. 10. When all the members of a corporation shall be present at any meeting, however called or notified, and shall sign a written consent thereto on the record of such meeting, the doings of such meeting shall be as valid as if legally called and notified. Sec. 11. The members of such corporation, when so assembled, may elect officers to fill all vacancies then existing, and may act upon such other business as might lawfully be transacted at reg- ular meetings of the corporation. Sbo. 12. Whenever the capital stock of any corporation is di- vided into shares, and certificates thereof are issued, such shares may be transferred by endorsement and delivery of the certifi- cates thereof, such endorsement being by the signature of the proprietor, or his attorney or legal representative ; but such transfer shall not be valid, except between the parties thereto, until the same shall have been so entered on the books of the corporation as to show the names of the parties by and to whom transferred, the number and designation of the shares, and the date of the transfer. Seo. 13. It shall not be lawful for the directors or managers of any incorporated company in this state to make dividends, excepting from the surplus profits arising from the business of such corporation ; and it shall not be lawful for the directors of any such company to divide, withdraw or in any way pay to the stockholders or any of them, any part of the capital stock of such CORPOEATIOOT. 241 company, or to reduce the said capital stock, without the con- ;ient of the legislature ; and in case of any violation of the pro- visions of this section, the directors, under whose administration the same may have happened, except those who may have caused their dissent therefrom to be entered at large on the minutes of the said directors at the time, or were not present when the same did happen, shall in their individual and private capacity jointly and severally be liable to the said coi"poration, and to the credi- tors thereof in the event of its dissolution, to the full amount of the capital stock of the company so divided, withdrawn, paid out or reduced, and no statute of limitations shall be a bar to any suit against such directors for any sums for which they are made liable by this section ; ip'ovided, that this section shall not be construed to prevent a division and distribution of the capital stock of such company which shall remain after the payment of all its debts, upon the dissolution of such company, or the expi- ration of its charter. Sec. 14. The total amount of the debts which any incorporated company shall owe, shall not at any time exceed the amount of the capital stock actually paid in ; and in case of any excess, the directors under whose administration the same may have hap- pened, except those who may have caused their dissent, there- from to be entered at large on the minutes of the said directors at the time, and except those who were not present when the same did happen, shall, in their individual and private capacities jointly and severally be liable for such excess to the said corpo- ration, and in the event of its dissolution, to any of the creditors , thereof to the full amount of such excess, with legal interest from the time such liability accrued, and no statute of limitation shall be a bar to any suit against such directors for any sums of money for which they are made liable by this section. Sec. 15. Upon the application of any persons, or body incor- porate, that may be aggrieved by, or may complain of, any elec- tion held by any corporate body, or any proceeding, act, or mat- ter in or touching the same, it shall be the duty of the district judge of the district in which such election is held (reasonable notice having been given to the adverse party, or to those who are to be affected thereby, of such intended application,) to pro- ceed forthwith and in a summary way to hear the affidavits, 16 242 bancboft's califoenia lawyek. proofs and allegations of the parties, or otherwise inquire into the matters or causes of complaint, and thereupon to establish the election so complained of, or to order a new election, or make such order and give such relief in the premises as right and jus- tice may appear to the said district judge to require; jpromded, that the said judge may, if the case appear to require it, direct the district attorney of his district to exhibit one or more information or informations in the nature of a quo warranto in the premises. Sec. 16. Upon the dissolution of any corporation, unless other persons shall be appointed by the legislature, or by some court of competent anthority, the directors or managers of the affairs of such corporation at the time of its dissolution, by whatever name they may be known in law, shall be the trustees of the creditors and stockholders of the corporation dissolved, and shall have full power to settle the affairs of the corporation, collect and pay the outstanding debts, and divide among the stock- holders the moneys and other property that shall remain after the payment of the debts and necessary expenses. Seo. 17. The persons so constituted trustees shall have author- ity to sue for and recover the debts and property of the dissolved corporation, by the name of the trustees of such corporation, and shall have full power to settle the affairs of the corporation, and shall be jointly and severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that shall come into their hands. Sec. 18. Upon the dissolution of any corporation, the district court of the county in which the corporation carries on its busi- ness, or has its principal place of business, on application of any creditor of the corporation, or of w^j stockholder or member thereof, may appoint one or more persons to be receivers or trustees of and for the corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation, and the power of such receivers may be continued as long as the court shall think necessary. Sec. 19. The said court shall have jurisdiction of such appli cation, and of all questions arising in the proceedings thereon and may make such orders, injunctions and decrees thereon as justice shall require. Sec. 20. When any jiidgment shall have been recovered COBPORATIONS. 243 against any turnpike or other corporation authorized to receive toll, the franchises of such corporation, with all the rights and privileges thereof, together with all their corporate property, both real and personal, may be taken on execution and sold at public auction. Sec. 21. The ofiScer having such execution against any corpo- ration mentioned in the preceding section, shall, thirty days at least before the day of sale of the franchise or other corporate personal property, give notice of the time and place of sale, by posting up a notice thereof in the county in which the clerk, treas- urer, or any one of the directors of the corporation may dwell, and also by causing an advertisement of the sale, expressing the name of the creditor, the amount of the execution, and the time and place of sale, to be inserted three weeks successively in some newspaper published in any county in which either of the afore- said officers may dwell, if any such there be: and if no news- paper be published in any such county, then in the newspaper published nearest thereto. Sec. 22. The ofBcer who may levy any execution, as prescribed in the preceding section, may adjourn the sale from time to time, as may be necessary, until the same shall be completed. Sec. 23. In the sale of any franchise of any corporation, the person who shall satisfy the execution, with all legal fees and ex- penses thereon, and shall agree to take such franchise for the shortest period of time, and to receive during that time, all such tolls as the said corporation would by law be entitled to demand, shall be considered the highest bidder. Sec. 24. The oflElcer's return on such execution, shall transffer to the purchaser all the privileges and immunities which by law belonged to the corporation so far as relates to the right of de- manding toll ; and the officer shall, immediately after such sale, deliver to the purchaser, possession of all the toll-houses and gates belonging to such corporation, in whatever county the same may be situated, and the purchaser may thereupon demand and receive all the toll which may accrue during the time limited by the terms of his piirchase, in the same manner and under the same regulations as such corporation was before authorized to demand and receive the same. Sec. 25. Any person who may have purchased, or shall here- :244 bajstcroft's California lawyer. after purchase, nnder the provisions of this chapter, the franchise of any turnpike or other corporation, and the assignees of such) purchase may recover any penalties imposed by law for an injury, to the franchise, or for any other cause, and which sucli corpora- tion would have been entitled to recover during the time limited in the said purchase of the franchise, and during that, time the corporation shall not be entitled to prosecute for such penalties. Sec. 26. The corporation whose franchise shall have been sold as aforesaid, shall, in all other respects, retain the same powers, and be bound to the discharge of the same duties, and liable to the same penalties and forfeitures as before such sale.. Sec. 2Y. Such corporation may, at any time within one year after such sale, redeem the franchise, by paying or tendering to the purchaser thereof the sum that be shall have paid therefor, with ten per cent, interest thereon, but without any allowance for the toll which he may have received ; and, upon such pay- ment or tender, the said franchise and all the rights and privileges thereof, shall revert and belong to said corporation, as if no such sale had been made. Sec. 28. All the proceedings aforesaid respecting the levy of executions, may be had in any county in which either the credi- tor, or the president, or any director, or the treasurer, or the clerk of the corporation may reside, or in which the corporation has personal or real estate. Sec. 29. It shall be the duty of the attorney-general or district attorney, whenever, and as often as shall be required by the governor, to examine into the affairs and condition of any cor- poration in this state, and report such examination in writing, together with a detailed statement of facts to the governor, who shall lay the same before the legislature ; and, for that purpose, the said attorney-general or district attorney shall have power to administer all necessary oaths to the directors and oflBcers of any corporation, and to examine them on oath in relation to the affairs and condition thereof, and to examine the books, papers and documents belonging to such corporation, or appertaining to. its affairs and condition ; and the legislature, or either branch thereof, shall have full power to examine into the affairs and condition of any corporation in this state at all times ; and, for that purpose, any committee appointed by the legislature, or COEPOBATIONS. 245 eitlier branch thereof, shall have full power to administer all necessary oaths to the directors, ofiSoers and stockholders of such corporation, and to examine them on oath in relation to the affairs and condition thereof, and to examine the safes, books, papers and documents belonging to such corporation, or pertain- ing to its affairs and condition, and to compel the production of all keys, books, papers and documents, by summary process, to be issued on application to any court of record, or any judge thereof, under such rules and regulations as the said court may prescribe. Sec. 30. The legislature may, at any time, amend or repeal this act, and dissolve all corporations created under it ; but such amendment or repeal shall not, nor shall the dissolution of any such corporation, take away or impair any remedy given against any such corporation, its stockholders or officers, for any liability which shall have been previously incurred. Sec. 31. Any corporation wishing to dissolve and disincorporate itself, shall present, a petition to the county judge of the county in which the meetings of the stockholders are usually held, ac- companied by a certificate, signed by its proper officers, and setting forth that, at a general or special meeting of the stock- holders, called for that purpose, it was decided, by a vote of two- thirds of the stockholders, to disincorporate and dissolve the in- corporation. The clerk shall enter such petition and certificate of record, and the judge shall, after thirty days' notice by publi- cation in some newspaper published in the county, and if there are none such, then by advertisements, posted up in the principal public places in the county, proceed to consider the same ; and, if the judge shall be of opinion that such incorporation has taken the necessary preliminary steps, and obtained the necessary vote to dissolve itself, and that all claims against the incorporation are discharged, he shall declare such incorporation dissolved. Sec. 32. Each stockholder of any corporation shall be individ- ually and personally liable for a portion of all its debts and liabilities, proportioned to the amount of stock owned by him. 246 banckoft's California lawybe. CORPORATIONS FOR MANUFACTURING, MINING, COMMERCIAL AND OTHER PURPOSES.' Corporations for manufacturing, mining, mechanical, wharfing and dockage, chemical, or agricultural purposes, or for the pur- pose of engaging in any species of trade or commerce, foreign or domestic, may be formed according to the provisions of this act; such corporations and members thereof being subject to all the conditions and liabilities herein imposed, and to none others : Provided, that nothing in this section shall be so construed as to authorize a company formed under it, to own or hold possession of more than fourteen hundred and forty acres of land, or to authorize an individual member of such company or association, in his corporate capacity, to hold, own, or possess a number of acres to exceed eighty; and provided, further, that no corpora- tions formed under the provisions of the act of April fourteenth, one thousand eight hundred and fifty-three, except those formed for agricultural purposes, shall own or hold possession of more real estate than shall be actually necessary for the prosecution of the business for which it was incorporated ; and provided, further, that no corporations, formed for agricultural purposes shall be allowed to hold any mineral lands under the provisions of this act." Any three or more persons who may desire to form a company for any one or more of the purposes specified in the preceding section, may make, sign, and acknowledge before some officer competent to take the acknowledgment of deeds, and file, ia the office of the county clerk of the county in which the principal place of business of the company is intended to be located, and a certified copy thereof under the hand of the clerk and seal of the county court of said county, in the office of the secretary of state, a certificate in writing, in which shall be stated the cor- porate name of the company, the objects for which the company shall be formed, the amount of its capital stock, the time of its existence, not to exceed fifty years, the number of shares of which the stock shall consist, the number of trustees and their names, who shall manage the concerns of the company for the > Wood's Dig. p. 119; Amended Laws, 1858 ^ Lows 185S, p. 138. and 1359. OOEPORATIONS. 247 first three raonths, and the names of the city, or town and coun- ty, in which the principal place of business of the company is to be located. This section stands as amended by the act of 1859, which also provides that corporations heretofore formed by filing a certified copy in the office of secretary of state, are valid.' A copy of any certificate of incorporation, filed in pursuance of this act, and certified by the county clerk of the county in which it is filed, or by his deputy, or by the secretary of state, shall be received in all the courts and places as presumptive evi- dence of the facts therein stated." "When the certificate shall have been filed, the persons who shall have signed and acknowledged the same, and their succes- sors, shall be a body politic and corporate, in fact and in name, by the name stated in the certificate, and by their corporate name have succession for the period limited." The total amount of the debts of the corporation shall not at any time exceed the amount of the capital stock actually paid in ; and in case of any excess, the trustees, under whose admin- istration the same may have happened, except those who may have caused their dissent therefrom to be entered at large on the minutes of the board of trustees at the time, and except those not present when the same did happen, shall, in their individual and private capacities, be liable jointly and severally, to the said corporation, and in the event of its dissolution, to any of the cred- itors thereof, for the full amount of such excess.' No corporation organized under this act, shall, by any impli- cation or construction, be deemed to possess the power of issuing bills, notes, or other evidences of debt for circulation as money.' Each stockholder shall be individually and personally liable for his proportion of all the debts and liabilities of the company, contracted or incurred during the time that he was a stockholder. For the recovery of which, joint or several actions may be insti- tuted and prosecuted." No person holding stock as executor, administrator, guardian, or trustee, or holding it as collateral security, or in pledge, shall be personally subject to any liability as a stockholder of the 1 Laws 1859, p. tfS. = id- 493-496. 2 "Wood's Dig. art. 462, 488. 248 bajstceoft's califoenia lawyek. company ; but the person pledging the stock shall be considered as holding the same, and shall be liable as a stockholder accord- ingly ; and the estate and funds in the hands of the executor, administrator, guardian, or trustee, shall be liable in like manner and to the same extent as the testator ormtestate, or the ward or person interested in the trust fund would have been, if he had been living and competent to act and hold the stock in his own name.' Corporations formed under this act [act of 1853] and the mem- bers thereof, shall not be subject to the conditions and liabilities contained in an act entittled " An Act concerning Corporations," passed April twenty-second, one thousand eight hundred and fifty,'' [quoted above, at the beginning of Statutoet Provisions.] See further statutory provisions, collected in Wood^s Digest, pages 119 to 124. It shall be lawful for all churches, congregations, religious, moral, beneficial, literary or scientific associations or societies, by such rules or methods as their rules, regulations or discipline may direct, to appoint or elect any number, not less than three nor more than fifteen, as trustees or directors, to take charge of the estate and property belonging thereto, and to transact all afi'airs relative to the temporalities thereof.' Upon the appointment or election of such trustees or direc- tors, a certificate of such appointment or election shall be execu- ted by the person or persons making the appointment, or the judges holding the election, stating the names of the trustees or directors. The name by which the said trustees shall thereafter forever be called and known shall be particularly mentioned and specified." Such certificate shall be acknowledged by the persons making the same, or proved by a subscribing witness thereto, before some officer authorized to take acknowledgment of deeds, and recorded, together with the certificate of such acknowledgment or proof, by the clerk of the county within which such church, congregation, religious, moral, beneficial, literary, or scientific society or association shall be situated.' ' Wood's Dig.^art. 498-496. > id. 75-78. " id. 606. COEPOEATIONS. 249 , Such trustees or directors may. have a commou seal, and may alter the same at pleasm-e ; they may take into their possession and custody all the temporalities of such corporation, whether the same shall consist of real or personal estate, and whether given, granted or devised, directly or indirectly, to such society or association, or to any person or persons , for their use ; they may sue and be sued ; may recover and hold all the debts, de- mands, rights and privileges, all churches, burying-places, halls, school-houses, hospitals or other buildings, all the estates and appurtenances, belonging to such association or society ; they may have, lease and improve the same, erect all houses or build- ings that are necessary to carry out the objects of the society or association, and perform all duties imposed on them by the regu- lations, rules or discipline of such organization.' It shall be lawful for the district court within and for the county in which any such corporation shall have been constituted, on the application of such corporation, and on its satisfactorily appearing to said court by competent proof, by affidavit or other- wise, that due notice, by personal service or by publication in some newspaper as the said court or judge thereof shall direct, has been given to all persons interested in the matter, and that it will be to the benefit, interest and advantage of such church, congregation, religious, moral, beneficial, literary or scientific association or society, to make an order for the sale or mortgage of any real estate belonging to such corporation, or for the con- firmation of any contract under which a valid lieu may attach to said property; and it shall be lawful for any member of such church, congregation, association or society, to oppose, by afiida- vit or otherwise, the granting of such order ; and it shall be law- ful for said court at the time of making such order directing the execution of a mortgage, also to make a further order allowing such corporation to make and deliver with such mortgage, a bond or promissory note, under the corporate seal and in the corporate name of siich corporation, as evidence of the indebted- ness to secure which such mortgage is directed to be made; and it shall be the duty of said court, when granting such order or orders, to direct therein the application of the moneys arising > WoocVa Dig. art. T5-78. 250 Bancroft's califoenia lawyer. from sucli sale or procured under such contract or upon such security as it shall be made to appear to said court would be for the interest and advantage of such church, congregation or asso- ciation or society.' Every corporation of the character aforesaid, heretofore incor- porated, in pursuance of law, and not since dissolved, shall be and is hereby established and confirmed ; and in case of the dis- solution of any such corporation, or any corporation hereafter to be formed in pursuance of the provisions of this chapter, for any cause whatever, the same may be incorporated under the provisions of this chapter, at any time within six years after such dissolution, and thereupon all the estate, real and personal, form- erly belonging to the same, and not lawfully disposed of, shall vest in such corporation, as if there had been no such dissolu- tion.' All lands, tenements and hereditaments, that have been or may hereafter be lawfully conveyed by devise, gift, grant, purchase or otherwise, to any persons, as trustees in trust for the use of any such organization, shall descend, with the improvements, in perpetual succession to, and shall be held by such trustees, in trust for such organizations, provided the amount of real estate held by such society shall never exceed the amount named in the following section." The real estate held by the ti-ustees in trust for such organiza- tion, shall in no case exceed four whole lots in a town or city, or twenty acres in the country ; nor shall the annual income of such real and personal property, held in trust by them, exceed the sum of twenty thousand dollars ; provided, that the grand lodge of tlie ancient order of free and accepted masons in this state, or any subordinate lodge thereof, may acquire and hold such proper- ty, real and personal, as may be deemed necessary by the proper authorities thereof, to carry out the charitable purposes of said grand lodge, or subordinate lodges, or for the establishment and endowment of a college, school or schools in said state, and for the necessary use and ceremonies of said order, and may sue and be sued, and shall have such other general powers as are granted to corj)orations under an act entitled " An Act concerning Cor- I Laws I8i9, p. 8T. = Wood's Dig, art. 80-80. OOEFOEATIONS. 251 poratious," passed. April twenty-second, one thousand eiglit hun- dred and iifty.' It shall be the duty of said trustees annually to make a full report of all property, real and personal, held in trust by them, and the condition, of the corporation, to the society or association by which they have been appointed or elected, a copy of which report shall be filed in the county clerk's office, where the orig- inal certificate is filed, with an affidavit of the truth of such report, and also that such association or corporation has not been engaged, directly or indirectly, in any other business than such as is set forth in the original certificate on file. Whenever the rules, regulations and discipline of any religious denomination, society or church require, for the administration of the temporalities thereof, and the management of the estate and property thereof, it shall be lawful for the bishop, chief priest, or presiding elder of such religious denomination, society or church to become a sole corporation, in the manner prescribed in this chapter, as nearly as may be, and with all the powers and duties, and for the uses and purposes in this chapter provided for religious incorporations, and subject to all the conditions, limita- tions and provisions in said chapter prescribed ; provided, that, for proof of the appointment or election of such bishop, chief priest or presiding elder, it shall be sufficient to record with the clerk of the county in which such bishop, chief priest or presid- ing elder resides, the original, or a copy of his commission, or certificate, or letters of election or appointment, duly attested ; and that all property held by such bishop, chief priest or presid- ing elder, shall be in trust for the use, purpose and behoof of his religious denomination, society or church ; and tliat tlie limita- tion, in section one hundred and eighty-two, sliall not apply to incorporations formed under this section ; ound provided, also, that the district judge of the district in which any incorpoi-ation is formed under this chapter, shall, at all times, have access to the books of such incorporation.' Any nine or more persons who may desire to act in concert for the care, protection, relief or improvemeiit of, 1. orphans ; or, 2. foundlings ; or, 3. shipwrecked or destitute sailors ; or, 4. sick 1 Wood's Dig. art 80-86. 252 BANCEOFT'S CALIFORNIA LAWYEE. and disabled, or unprotected and needy persons ; or, 5. for the establishment and management of cemeteries ; and who shall desire to form an incorporated society for the promotion of either of the said benevolent objects, may do so by complying with the provisions of chapter eight of the act concerning incorporations, passed April twenty-second, one thousand eight hundred and fifty; and such benevolent societies, incorporated under the provisions of said act, as hereby extended, shall possess the same powers, be subject to the like liabilities, and enjoy the like privi- leges as therein provided ; provided, that any corporation estab- lished for purposes of forming or conducting of cemeteries, shall be competent to take and hold any quantity of land not exceed- ing three hundred and twenty acres.' The corporations hereinbefore enumerated shall have power to elect such officers, and such number of directors, managers or trustees, and fill vacancies, and make such needful rules and reg- ulations to carry their benevolent objects into effect as they may, by their constitution and by-laws, from time to time pro- vide, and as shall not be inconsistent with any of the laws of the land.- OEPHAN AND BELIEF SOCIETIES. ACTS or MARCH 12 AND APRIL 24, 1858.° Section 1. Any nine or more persons who may desire to act in concert for the care, protection, relief or improvement of — ^first, orphans ; or, second, foundlings ; or, third, shipwrecked or desti- tute sailors ; or, fourth, sick and disabled, or unprotected or needy persons ; or, for literary or educational purposes— and who shall desire to form an incorporated company, or society, for the protection of either of said benevolent or educational ob- jects, may do so by complying with the provisions of chapter eight of the act concerning corporations, passed April twenty- second, A. D. one thousand eight hundred and fifty, and such benevolent and educational society, incorporated under the pro- visions of said act, as hereby extended, shall possess the same ' Wood'B Dig. art. 80-86. » Laws 1858, p. 5T and 264 CORPORATIONS. 253 powers, be subject to the like liabilitieBj and enjoy the like privi- leges as therein provided. Sbo. 2. Women, married or unmarried, may be incorporators, officers and members, of benevolent, literary or educational cor- porations, for the purposes herein aforesaid, and may transact the business thereof in. the same manner and subject to the same liabilities as males. But no married woman sliall have power to contract or incur any liability therein against her husband, nor shall any husband be liable, in any manner, for any debt or lia- bility in any manner contracted or incurred, nor shall the com- mon property of the husband and wife be in any manner affected by his wife becoming or acting as such corporator, except the same be specifically agreed to by the husband and wife, in writing. Sec. 3. Any corporations formed under the provisions of this act shall have the right to acquire, by purchase or otherwise, and to hold, any quantity of land, not exceeding five hundred acres, with the improvements thereon ; or, if within the limits of any incorporated town, then not to exceed twenty acres, with the im- provements thereon. Sec. 4. The corporations hereinbefore enumerated shall have power to elect such officers and such number of directors mana- gers or trustees, and fill vacancies, and make such needful rules and regulations to carry their benevolent objects into effect, as they may, by their constitution and by-laws from time to time provide, and as shall not be inconsistent with any of the laws of this state. KAILEOAD COMPANIES. Any number of persons, not less than twenty-five, either in this state or through any portion of the territories of the United States contiguous to this state, may be formed into a coi'poration for the purpose of constructing, owning and maintaining such railroad, of either single or double track, by complying with tlie following requirements : When an instrument, setting forth the road intended to be built, and the name of a person to act as treasurer until articles of association have been adopted, and until a treasurer has been duly elected, has been signed by not less than twenty-five persons as aforesaid, and when stock to tlie 254: banoeoft's California lawyer. amount of at least one thousand dollars for every mile of the road so intended to be built, shall be in good faith subscribed, and ten per cent, paid thereon to the treasurer named in said in- strument ; then (the said treasurer having given notice in writing to all such subscribers, of a meeting to be held not less than twenty days after the date of such notice) the said subscribers, either in person or by written proxy, may adopt articles of asso- ciation, and may elect from among the subscribers to said articles, thirteen directors for said company.' The said articles of association shall set forth the name of the corporation, the number of years the same is to continue (which shall not exceed fifty years), the amount of the capital stock of the company (which shall be divided into shares of one hundred dollars each, and which shall be the actual cost of constructing the road, together with the cost of the right of way, motive power, and every other appurtenance for the completion and running of said road, as nearly as can be estimated by competent engineers), the names of the directors to manage the concerns of the company, subject to the restrictions hereinafter speci- fied, who shall hold their offices until others are elected, the place from and to which the proposed road is to be constructed, and each county into and through which it is intended to pass, and its length as near as may be, and the names of five commissioners to open books of subscription to the stock, which commissioners shall be subscribers to said articles of association.' Each subscriber to said articles of association shall personally subscribe thereto his name, place of residence, and number of shares of stock taken by him in such company, and the said articles being so subscribed by not less than twenty-five per- sons, may, after the provisions of section four are complied with, be filed in the office of secretary of state, and thereupon the per- sons who have so subscribed, and all persons who shall from time to time become stockholders in such company, shall be a body corporate, by the name specified in such articles, and shall be capable in law to make all contracts, acquire real and personal property, and possess all the powers and privileges for the pur- I Wood's Dig. art. 2966-2970. CORPOEATIONS. 255 pose of carrying on the business of the corporation that private individuals and natural persons now enjoy ; and all deeds and conveyances made by such company shall be signed by the pres- ident, under the seal of the corporation.' When the amount of stock specified in the first section of this act shall have been subscribed, and ten per cent, on said amount shall have been actually and in good faith paid in cash, to the treasurer appointed by the directoi'S named in such articles, and when there shall be endorsed on said articles, or annexed thereto, an affidavit made by at least three of the said directors that said amount of stock has been subscribed, and that said ten per cent, has been actually paid in as aforesaid, and that the subscribers to said articles are all known by one or the other of the said three directors to be subscribers thereto, and to be the persons so represented, then the said articles of association may be filed in the office of the secretary of state.' The directors named in the articles of association shall organ- ize as a board immediately after their election, notice in writing of the time and place of such meeting having fii-st been given by the treasurer to each director, and at such meeting they shall ap- point a president from among the directors, and a secretary and a treasurer, who shall be officers of the company as well as of the board of directors, and hold their respective offices until their successors have been duly qualified. The secretary and the treasurer, before they enter upon the performance of their duties, shall each give a bond, with sufficient surety for the faithful per- formance of their respective duties, which bond and surety shall be approved and accepted by the board of directors. The tem- porary treasurer required by the first section, shall pay over all moneys received by him as such treasurer, to the treasurer ap- pointed by the board of directors, as soon as the latter has been qualified. The board of directors shall name, and give notice thereof to all the commissioners, in two or more newspapers of this state, in which notices of the time and place of all the meet- ings of the company shall be published prior to any such meet- ing, until after the directors provided for in section eleven shall have been elected ; provided, in selecting such newspapers, those ' Wood's Dig. ort. 2966-2970. 256 banceoft's oalifoenia lawyee. published in the counties into or through which the contemplated railroad may run, shall be preferred.' Should the entire capital stock not be subscribed within one year from the date of the articles of association, a new board of directors shall be elected by the stockholders at the tirst regular meeting thereafter of the company, notice of such intended elec- tion having been given as hereinafter provided in section eleven; and the directors so elected shall have the same powers and the same duties as their predecessors in office.' A copy of any articles of association filed in pursuance of this act, with a copy of the affidavit aforesaid endorsed thereon or annexed thereto, and certified to be a copy by the secretary of state, shall, in all courts and places, be presumptive evidence of the incorporation of such company, and of the facts therein stated, and such a copy, so certified, shall be kept in the office of the secretary of the corporation, subject to examination, during office hours, by any person.' Said articles of association may, at any time before the capital stock is fully subscribed for, be altered, modified or changed, by filing with the secretary of state new articles of association sub- scribed by two-thirds in numbers and also in amount of the stockholders and stock in such company, at the time the said new articles are adopted ; provided, there is endorsed upon the said new articles, or attached thereto, an affidavit made by the secre- tary of the company that he is the acting secretary of such com- pany, and that the names of two-thirds in numbers and amount of stockholders and stock, at the date of said affidavit, are sub- scribed to said new articles by such stockholders, which said affi- davit shall be made before the county clei'k of the county in which the office of the secretary of the company may be located. As soon as such new articles, with such an affidavit endorsed thereon, or attached thereto, hare been filed as aforesaid, the corporation shall be conducted under the new articles, in the same manner as though the original articles had contained all the provisions of the new articles; and from and after the date of the filing of said new articles as aforesaid, the original articles shall be null and void. But the duration of the corporation shall ' Wood's Dig. art. 2966-S9T0 COEPOEATIONS. 257 not be extended by any new articles beyond fifty years after the date of the original articles ; and the new articles shall not so change the character of the company as to make it other than a company incorporated for railroad purposes, according to the pro- visions of this act ; provided, should any portion of \h.e stock- holders object to the filing of new articles as aforesaid, the com- pany shall be liable for, and pay to each of the stockholders ob- jecting, who may demand it, the several assessments they may have previously paid upon their several shares, and such shares, from and after the repayment of the assessments by the company, shall belong to the company.' The provisions of this act shall extend and be applied to com- panies incorporated for the purpose of constructing roads on which to run prairie cars, so far as the same can be made appli- cable. The stockholders in car-road companies shall not be less than eight, and the dii-ectors not less than three in number.'' It is hereby declared lawful for railroad companies or railroad corporations hereafter to be formed, by any number of persons not less than ten, and for the affairs thereof, to be managed by any number of directors not less than five nor more than thirteen ; provided, always, that such corporations or companies shall in all other respects conform to, and abide by, the provisions of the sev- eral acts now in force, relating to railroad corporations or com- panies.' The statutory provisions affecting railroads are found collected in full in Wood^s Digest of Laws, pages 691 to 605, except cer- tain amendments found in laws of 1858, pages 317 to 326. PLAJSTK-EOAD COMPANIES. The following sections of the act do not apply to the counties of Plumas, Sierra, Trin'ty, Siskiyou, Del ISTorte, Klamath, Butte ^and Shasta. Nine or more persons may organize a joint-stock company for the construction of a plank-road, a turnpike road, or a plank and turnpike road, in this state, in the following manner :* ■ Wood's Dig. Brt. 2906-29TO. » id. 29S8. « id. 2986. * id. 3148-8152, n 258 baxceoft's califobnia lawyer. They shall make and subscribe their declaration of intention to organize such company, and shall designate therein what kind of road, the general route, and the termini, as nearly as practicable, and shall also designate therein a time not less than ten days after publication, and a place in one of the counties intended to be traversed by such road, for a meeting of the subscribers of the notice, for the purpose of a preliminary organization of such com- pany, as hereinafter provided. Said notice shall be published one week or more in one or more newspapers in each of the counties intended to be traversed by such road, and if there be no newspaper published therein, then said notice shall be posted for the same period in five public places in said counties. At the time and place specified for the meeting of the sub- scribers, they shall proceed to the election from their number, of a president, secretary and treasurer, and designate the corpo- rate name, and shall file a certificate of the same, together with their declaration of intention, as provided in section nine of this act, from which time they and their successors and all ofiicers and stockholders, shall be and remain a body corporate. The ofiicers shall hold their offices until the final organization of the company and the election of their successors, as is hereafter pro- vided.' The company, after the preliminary organization, shall, as soon as practicable, cause a survey to be made of the proposed route, and shall determine the amount of capital stock required for the construction of the road, and also fix the number and valuation of shares, and to determine the period of its existence, which shall not exceed twenty yeai-s. They shall also open the books for subscriptions to stock in such company, at such time and place and in such manner as they shall designate by vote.' Until the final organization of the company, as hereinafter pro- vided, the members thereof shall be jointly and severally liable for all debts contracted prior to such final organization.' As soon as the amount of the capital stock designated shall be subscribed, reasonable notice shall be given by the company to all resident stockholders of the state, in such manner as the com- > Wood's Dig. art. 3148-S152. CORPORATIONS. 259 pany may direct, that a meeting of the stockholders will be held at a specified time and place, for the purpose of electing a presi- dent, secretary and treasurer, and a board of not less than five directors and officers, to fill such other offices as may be estab- lished, and of enacting by-laws for the company ; and thereupon, at such specified time and place, the stockholders shall proceed to elect said officers, and perform such other acts as may be necessary for the better organization of the company. The offi- cers specified in this section shall hold their offices one year and until their successors be elected, and thereafter such offices shall be annually elected. They shall be stockholders and residents of the state, except absent on business of the company, and shall be elected at such time and place, and Upon such notice, and in such mode, as shall be decided by the by-laws of the company. But all elections shall be by ballot, and each stockholder, either in person or by proxy, shall be entitled to as many votes as he owns shares of stock. In such elections, a phirality of votes shall elect. Vacancies shall be filled in such manner as may be pro- vided for in the by-laws. The president and secretary of the company shall be ex officio members of the board of directors, and the president and secretary thereof Whenever any stock is held by any person as executor, administrator, guardian, or trus- tee, he shall represent such stock at all meetings of the company, and may vote accordingly as a stockholder. Any stockholder may pledge his stock by a delivery of the certificates or other evidence of his interest, but may nevertheless represent the same at all meetings, and vote accordingly as a stockholder.' If it should happen at any time that an election shall not be made on the day designated by the by-laws of the company, the corporation shall not for that reason be dissolved ; but it shall be lawful on any other day to hold an election in such manner as shall be provided for by the by-laws of the company ; and all acts of directors and officers, shall be valid and binding upon the company until their successors shall be elected. A majority of the whole number of directors shall form a board for the transac- tion of business, and every decision of a majority of the persons duly assembled as a board, shall be valid as a corporate act." ' Wood's Dig. art 814S-81B2. 260 BANOEOFT'S CALIFORNIA LAWYER. The meeting of the directors shall be called by a notice, signed by the president or two directors, setting forth the time and place of the meeting, which notice shall be either delivered personally to each director, or published at least ten days in some newspaper of the county in which is the principal place of busi- ness of the corporation, or if no newspaper be published in the county, then in some newspaper nearest thereto." Unless the preliminary organization provided for in section four of this act, be made within one month after the publication of the original notice of declaration of intention, and unless the whole amount of capital stock designated shall be subscribed, and the final organization provided in section seven be made, within six months after such preliminary organization, and an amount equal to ten per cent, or more of the capital stock be paid in, and the survey filed within one month after such final organization, then the company shall be deemed to have aban- doned its intention and shall be dissolved by operation of law.' As soon as the preliminary organization shall have been made, the company shall file in the office of the county recorder in each county traversed by such road, a copy of the original notice of declaration of intention, and a certificate of the election of officers and of the corporate name; and as soon as the final organization of said company shall have been made, and an amount equal to ten per cent, of the capital stock has been paid in, a certificate of the same, setting forth the whole amount of stock and the percentage therein paid, shall be filed as above provided in this section, and as soon as the survey and the route shall have been adopted, the same shall be filed in each county traversed by the road. Immediately after the filing of the no- tice, certificates and surveys, the recorder of the county first in alphabetical order, shall certify to the secretary of state the fact of the complete organization of the company, as appearing on record in his office.' Each stockholder shall be individually and personally liable for his proportion of the debts and liabilities of the company contracted or incurred during the time that he was a stock- holder ; for the recovery of which, joint or several actions may ' Wood's Dig. art. 8148-S1S2. COEPOEATIONS. 261 be instituted and prosecuted. The liability of each shall be pro- portioned to the amount of stock owned respectively.' No person holding stock, as executor, administrator, guardian or trustee, or holding it as collateral security, or in pledge, shall be personally subject to any liability as a stockholder of the com- pany, but the person pledging the stock shall be considered as holding the same, and shall be liable as a stockholder accord- ingly ; and the estate and funds in the hands of the executor, administrator, guardian or trustee, shall be liable in like manner and to the same extent, as the testator or intestate, or the ward or person interested in the trust fund would have been, if he had been living and competent to act and hold the stock in his own name.' All the provisions of " An Act to Authorize the Formation of Corporations for the Construction of Plank or Turnpike Roads," passed May twelfth, one thousand eight hundred and fifty-three, wherein the same do not conflict with the provisions of the fol- lowing sections of this act, shall apply to the corporations of companies formed for the purpose of constructing common wagon roads." See further statutory provisions, WooWs Digest, pages 652 to 658, section 34 of which is repealed. — Laws, 1858, p. 145. TELEGRAPH COMPANIES. Any number of persons may associate for the purpose of con- structing a line or lines of wires of telegraph through this state, or from and to any point within this state, upon such terms and conditions, and subject to the liabilities prescribed in this chapter.' Such persons, under their hands and seals, shall make a certif- icate which shall specify : 1. The name assumed to distinguish such association, and to be used in its dealings, and by which it may sue and be sued. 2. The general route of the line or lines of telegraph, designating the points to be connected. 3. The capital stock of such association, and the number of shares into which the stock shall be divided. 4. The names and places of residence of the shareholders, and the number of shares held by J Wood's Dig. art. 3159. = id. 8361-3370. 1 id. 816T. 262 BAITCEOFt'S OALirOKNIA LAW TEE. each of them respectively. 5. The period at which such association shall commence and terminate ; which certificate shall be proved, or acknowledged and recorded in the ofBce of the clerk of tlie county where any ofSce of such association shall be established, and a copy thereof filed in the ofiice of the secretary of state. Such acknowledgment may be taken by any oificer authorized to take the acknowledgment of deeds of real estate, at the place where such acknowledgment is taken.' Upon complying with the provisions of the last preceding sec- tion, such association shall be, and is hereby declared to be, a body corporate by fhe name so as aforesaid to , be designated in said certificate ; and a copy of said certificate, duly certified by the clerk of the county where the same is filed and recorded, or by the secretary of state, may be used in all courts and places for and against such association.' Such association shall have power to purchase, receive and hold and convey such real estate, and such only, as may be neces- sary for the convenient transaction of the business, and for effec- tually carrying on the operations of such associations ; and may appoint such directors, ofiicers and agents, and make such pru- dential rules, regulations and by-laws, as may be necessary in the transaction of their business, not inconsistent with the laws of this state or of the United States.' Such association is authorized to construct lines of telegraph along and upon any road or highway, or across any of the waters or any lands within the limits of this state, by the appropriation of any trees growing by nature, or by the erection of the neces- sary fixtures, including posts, piers or abutments, for sustaining the wires of said lines; provided, the same shall not be so con- structed as to incommode the public use of said road or highway, or injuriously interrupt the navigation of said waters; nor shall this chapter be so construed as to authorize the construction of any bridge across any of the navigable waters of this state.' If any person over whose lands said lines shall pass, upon which posts, piers or abutments shall be placed, or standing trees appropriated, shall consider himself aggrieved or damaged thereby, it shall be the duty of the county court of the county ' Wood's Dig. art. 8861-S8T0. CORPORATIONS. 263 within which such lands are, on the application of snch person, and on notice of such application being served on the president or any director of such association, to appoint three discreet and disinterested persons as commissioners, who shall severally take an oath before any person authorized to administer oaths, faith- fully and impartially to, perform the duties required of them by this chapter ; and it shall be the duty of said commissioners, or a majority of them, to make a just and equitable appraisal of all the Ibss or damage sustained by said applicant, by reason of said lines, posts, piers or abutments, or appropriation of standing trees, duplicates of which said appraisement shall be reduced to writing and signed by said commissioners, or a majority of them ; one copy shall be delivered to the applicant, and the other to the ])resident or any director or oificer of said association or cor- poration, on demand; and in case any damage shall be adjudged to said applicant, the association or corporation shall pay the amount thereof, with the costs of said appraisal, said costs to be sot forth and liquidated with the damage appraised, and said commissioners shall receive for their services such compensation as the county judge may award, to be paid in like manner as the costs and damages appraised.. But in no ease shall the person feeling himself injured or aggrieved be entitled to any damage, when application is not made to the county court within three months after the erection of said telegraph lines across the lands of such person.' Any person who shall unlawfully and intentionally injure, molest or destroy any of said lines, posts, piers or abutments, or the materials, or property belonging thereto, shall, on convic- tion thereof, be deemed guilty of a misdemeanor, and be punished by a line not exceeding five hundred dollars, or imprisonment in the county jail, not exceeding one year, or both, at the discretion of the court before which the conviction shall be had.' It shall be lawful for any association of persons organized under this chapter, by their articles of association, to provide for an in- crease of their capital, and the number of the association.' It shall be the duty of the owner, or the association owning any telegraph line doing business within this state, to receive dis- " Wooers Dig. art. S361-8aT0. 264 Bancroft's California lawyer. patches from and for other telegraph lines and associations, and from and for any individual ; and, on payment of their usual charges for individuals for transmitting dispatches, as established by the rules and regulations of such telegraph lines, to transmit the same with impartiality and good faith, and shall not disclose any communication transmitted on said line or lines, directed to a third person, in the penalty of five hundred dollars for every neglect or refusal so to do, or confidential disclosure, to be re- covered with costs of suit in the name and for the benefit of the person or persons sending or desiring to send such dispatch. It shall likewise be the duty of every such owner or association to transmit all dispatches in the order in which they are received, under the penalty of one hundred dollars, to be recovered with costs of suit, by the person or persons whose dispatch is post- poned out of its order, as herein prescribed ; pr'ovided, however, that an arrangement may be made with the proprietors or pub- lishers of newspapers for the transmission, for the purpose of publication, of intelligence of general and public interest out of its regular order." Any person or persons who shall wilfully or maliciously break, injure or destroy a subaqueous telegraph cable, crossing any of the waters of this state, shall, upon conviction thereof, be fined in any sum not less than five hundred dollars, nor more than ten thousand dollars, to which may be added impi'isonment in the state prison for any term not less than one year nor more than five, at the discretion of the court. Such persons, so oflTending, or any per- son who shall break, injure or destroy, through neglect or want of proper care, said subaqueous cable, shall also be held liable for full damages arising from the injury or destruction of the same ; and any ship, steamer or other vessel, which, by dragging its anchor or otherwise, shall in any manner damage or destroy said subaqueous cable, upon proof that proper care and discretion were not used by the master of said vessel, or person command- ing or having charge of such vessel, at the time the said injury or destruction took place, shall be held responsible for all dam- ages, and the person commanding or having the said vessel in charge, at the time said injuries to said cable were sustained, ' ■WoO'Tb Dig. art. 3861-S370. COEPOEATIONS. 265 shall be subject to the fine and imprisonment hereinbefore pro- vided.' Before any association formed for telegraph purposes shall be entitled to the benefits of section second of this act, they shall cause to be erected at the commencement and termination of said subaqueous cable, on the shores of the water such cable un- derlies, suitable monuments, one on each shore, indicating the place of said cable, and shall also cause to be published, in a public newspaper having a fair circulation, on and about the waters crossed by said cable, a public notice setting forth a de- scription of said monuments, together with the termination and course of said cable. Such notice shall be published at least one month, and it is herein provided, that no association for tele- graph purposes shall bo entitled to the benefits of section second of this act, unless said subaqueous cable be not less than two miles from the centre of shipping, in the port of San Francisco.' STEAM NAVIGATION COMPANIES. One or more persons, being subscribers to the stock of any contemplated company for the purpose of navigating the ocean, any bay, river or stream within this state, with vessels propelled in whole or in part by steam, may be formed into a corporation for that purpose by complying with the following requirements : When stock to the amount of one-fourth part of the whole capi- tal stock of such company shall have been in good faith sub- scribed for, and ten per cent, thereof actually paid in, they may make, sign and acknowledge, before some oflScer competent to take the acknowledgment of deeds in this state, a certificate in writing, and file the same in the office of the secretary of state, and a duplicate thereof with the county clerk of each county wherein may be situated the port or ports hereafter in this sec- tion mentioned, in which shall be stated the corporate name of said company, and the objects for which the company shall be formed ; the amount of the capital stock of the said company ; the amount subscribed for, and the amount actually paid in ; the term of its existence, not to exceed fifteen years ; the number of ' Wood's Dig art. 8361-3870. 266 banceoft's California lawyek. tiluii-es of which the said stock shall consist ; the number of direc- tors or trustees and their names, who shall manage the concerns of the company for the first year, aild the name of the, port or ports in this state where the principal business of said company is to be transacted.' When the certificate shall have been filed as aforesaid, the persons who shall have signed and acknowledged the same, and their successors, shall be a body politic and corporate in fact and in name, by the name stated in such certificate ; and by that name have succession, and be capable of suing and being sued in any court of law or equity in this state ; and they or their successors may have a common seal, and make and alter the same at pleasure ; and they shall, by their corporate name, be capable in law, of purchasing, holding or conveying any real or personal estate whatever, which may be necessary to enable the said company to carry on the operations named in such certifi- cate.' The stock, property and concerns of such company shall be iii-anaged by any number not exceeding fifteen directors, or trus- tees, who shall respectively be stockholders in such company, and a majority of whom shall be residents of this state, and who shall, except the first year, be annually elected by the stockhold- ers at such time and place as shall be directed by the by-laws of the company ; and a public notice of the time and place of hold- ing such election, shall be published not less than twenty days previous thereto ; and the election shall be made by such stock- holders as shall attend for that purpose, either in person or by proxy. All elections shall be by ballot, and each stockholder shall be entitled to as many votes as he owns shares of stock in said company ; and the persons receiving the greatest number of votes shall be directors or trustees as aforesaid ; and when any vacancy shall happen among the directors or trustees by death, resignation or otherwise, it shall be filled for the remainder of the year in such manner as shall be provided for ^by the by-laws of said company.' In case it shall happen at any time that an election of direc- tors or trustees shall not be made on the day designated by the ' Wood's Dig. art. 3S91-SS05. COEPOEATIONS. 267 bj-la\y8 of said company, when it ought to have been made, the company for that reason shall not be dissolved, but it shall be lawful on any other day to hold an election for directors or trus- tees in such manner as shall be provided for by the said by-laws, and all acts of directors or trustees shall be valid and binding as against such company, until their successors shall be elected.' There shall be, a president of the company who shall be des- ignated from the number of directors or trustees, and also such subordinate officers as the company by its by-laws may designate, who may be elected or appointed, and required to give such se- curity for the faithful performance of the duties of their office, as the company by its by-laws may require.' It shall be lawful for the directors or trustees to call in, and demand from the stockholders respectively all such sums of money by them subscribed, at such time, or in such payments or instalments as to them shall seem proper, under the penalty of fi)rfeiting the shares of stock subscribed for, and all previous payments made thereon, if payment shall not be made by the stockholders within forty-five days after a personal demand or notice reqiiiriug such payment shall have been made or publish- ed for two successive weeks in any newspaper where the business of the company shall be carried on as aforesaid. The stock of such company shall be deemed personal estate, and shall be transferable in such manner as shall be prescribed by the by-laws of the company.' The directors or trustees of such company shall have power to make such prudential by-laws as they shall deem proper for the management and disposition of the stock and business affairs of such company, nqt inconsistent with the laws of this state, and prescribing the duties of officers, engineers, agents and servants that may be employed, for the appointment of all officers, and for the carrying on of the business aforesaid.' A copy of the certificate of incorporation, filed in pursuance of this chapter, certified by the county clerk or his deputy, to be a true copy of the whole of such certificate, shall be received in all courts and places, as presumptive legal evidence of the incor- ■ Wood's Dig. art. 8254-S805. 268 BAis^CEOFT'S CALIFORNIA LAWYER. poration of such company, if the same shall comply with the provisions of this chapter.' The capital stock in said certificate, fixed and limited, shall all be paid in, one-half thereof within one year, the other half thereof within two years, from the incorporation of said company, or such corporation shall be dissolved ; and certificates of its having been so, as aforesaid, paid, shall be signed and sworn to by the president and a majority of the trustees, before some per- son authorized to administer oaths, and filed in the office of the clerk or clerks where the original certificate aforesaid shall have been filed, within thirty days after the same shall have been paid as aforesaid.' Each stockholder in any company formed under the provisions of this chapter, shall be personally liable for all debts and liabil- ities of said company, in proportion to the amount of stock by him held at the time such debts or liabilities shall have been incurred ; but no suit shall be brought against any stockholder who sliall cease to be a stockholder in any such company, for any such debt or liability, unless the same shall be commenced within one year from the time he shall have ceased to be a stock- holder in such company, nor until an execution against the com- pany shall have been returned unsatisfied or in part.' Any corporation formed under the provisions of this chapter may, at any time, by a vote representing two-thirds of all its stockholders, increase or diminish its capital, by filing a new certificate, similar in other respects to the original one, and an affidavit of the president and a majority of the directors or trus- tees, that the new stock has been paid in within thirty days thereafter, in the office of the clerk of the county where their principal place or places of business are situated, except that the term of office of the existing directors or trustees shall not be thereby shortened or enlarged.' If the directors or trustees of any such company shall declare and pay any dividend when the company is insolvent, or any dividend, the payment of which would render it insolvent, or which would reduce the amount of the capital stock, all the directors or trustees voting to declare the same, shall be jointly > Wood's Dig. art. 3294-3305. GOEPOHATIONS. 269 and severally liable for all the debts of the company then exist- ing.' If any certificate, report made, or public notice given, by the ofiicers of any such company, in pursuance of the provisions of this chapter, shall be false in any material representation, any and all such officers who shall have signed the same, knowing it to be false, shall be deemed guilty of a misdemeanor, and shall be disnjiissed from office ; and, on conviction thereof, before any court having jurisdiction, be fined in a sum not exceeding ten thousand dollars, and imprisoned for a term of time not exceed- ing twelve months, at the discretion of the court.' WA'rER COMPAlflBS. The provisiQns of chapters one and five Of the act entitled " An Act concerning Corporations," passed April twenty-second, one thousand eight hundred and fifty, shall extend to and apply to all associations already formed or hereafter to be formed under said act, for the purpose of supplying any cities or towns in this state, or the inhabitants thereof, with pure and fresh water.' Any company incorporated for the purposes specified in the preceding section, shall have the right to purchase or take pos- session of, and use, and hold, such lands and waters as may be required for the purposes of the comj^any, lying without the limits of the city, intended to be supplied with water, upon mak- ing compensation therefor. The mode of proceeding to obtain possession of such lands for the use of the company, in cases where the parties cannot agree upon a purchase for the use of the company, shall be the same as prescribed in sections seven- teen and eighteen of " An Act to provide for the Incorporation of Kailroad Companies," passed April twenty-eighth, one thousand eight hundred and fifty-one.' This act shall not give to any company a right to supply any city with water, uuless it shall be previously authorized by an ordinance, or unless it be done in conformity with a contract en- tered into between the city and company ; any contracts hereaf- ter so made, shall be valid and binding in law, but shall not take • Wood's Dig. art. 8294-3305. ' Id. 8465-S467. 270 banckoft's oalifobnia lawyer. from the city the right to regulate the rates for water, nor shall any exclusive right be granted by contract, or otherwise, for a. term exceeding twenty years.' SUPPLEMENTABT ACT OP 1858. Section 1. The provisions of an act entitled an act to provide for the formation of corporations for certain purposes, passed April fourteenth, one thousand eight hundred and fifty-three, and the provisions of an act entitled an act to amend an act en- titled an act to provide for the formation of corporations for certain purposes, passed April fourteenth, one thousand eight hundred and fifty-three, and passed on the thirtieth (30th) day of April, one thousand eight hundred and fifty-five," shall extend and apply to all corporations already formed, or hereafter to be formed, under said acts, for the purpose of supplying any city and county, or any cities or towns in this state, or the inhabitants thereof, with pure fresh water. Sko. 2. Any company incorporated for the purposes specified in the preceding section, shall have the right to purchase, or to appropriate and take possession of, and use and hold, all such lands and waters as may be required for the purposes of the company, upon making compensation therefor. The rriode of proceeding to appropriate and take possession of such lands and waters, when the parties cannot agree upon a purchase thereof, shall be the same as prescribed in sections twenty-seven, twenty- eight and twenty-nine, of an act to provide for the incorporating of railroad companies, passed April twenty-second, one thousand eight hundred and fifty-three, except that such proceedings shall be had before the county judge of the county in which such lands or waters, or both, may be situated ; provided, that all res- ervoirs, canals, ditches, pipes, aqueducts, and all conduits here- tofore built, or that hei'eafter may be constructed by any corpo- ration formed under this act, or claiming the privileges, rights^ and immunities herein granted, or any of them, shall be used ex- clusively for the pui-pose of supplying any city and county, or any ' Wood's Dig. art. 8466-3461. ^ These provisions of the statutes are found above under the head of ConpoRATioNs for Manu- facturing, MiNiHO, Commercial and oxnEii rucrosES. CORPORATIONS. 271 cities or towns, in this state, or the inhabitants thereof, with pure fresh water. Seo. 3. All privileges, immunities, and franchises, that may hereafter be granted to any individual or individuals, or to any corporation or corporations, relating to the introduction of fresh water into the city and county of San Francisco, or into any city or town in this state, for the use of the inhabitants thereof, are hereby granted to all companies incorporated, or that may here- after become incorporated, for the purposes aforesaid. Sec. 4. All corporations formed under the provisions of this act, or claiming any of the privileges of the same, shall furnish pure fresh water to the inhabitants of such city and county, or city or town, for family uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor, and shall furnish water, to the extent of their means, to such city and county, or city or town, in case of fire or other great necessity, free of charge. And the rates to be charged for water shall be determined by a board of commis- sioners, to be selected as follows : two by such city and county, or city or town authorities, and two by the water company ; and in case that four cannot agree to the valuation, then, in that case, the four shall choose a fifth person, and he shall become a member of said board ; if the four commissioners cannot agree upon a fifth, then the sheriff of the county shall appoint such fifth person. The decision of a majority of said board shall de- termine the rates to be charged for water for one year, and until new rates shall be established. The board of supervisors, or the proper city or town authorities, may prescribe such other proper rules relating to the delivery of water, not inconsistent with this act and the laws and constitution of this state. , Sec. 5. Any corporation created under the provisions of this act, shall have the right, subject to the reasonable direction of the board of supervisors or city or town authorities, as to the mode and manner of exercising such right, to use so much of the streets, ways and alleys, in any town, city, or city and county, or any public road therein, as may be necessary for laying pipes for conducting any water into such town, city, or city and county, or through or into any parts thereof. Sec. 6. Any corporation heretofore formed for the pui-poses 272 Bancroft's oalifobnia lawybe. specified in this act, shall have the right to reincorporate under the provisions of. this act, without losing, forfeiting, or diminish- ing any of the rights, privileges, franchisee or immunities which they have heretofore lawfully acquired. iNSUEAiircE companies. Any seven or more persons who may desire to form an insur- ance company, may make, sign and acknowledge, before some officer competent to take acknowledgment of deeds, and file in the office of the clerk of the county in which the business of the company shall he carried on, and a duplicate thereof in the office of the secretary of state, a certificate in writing, in which shall be stated the corporate name of the company, the amount of its capital stock, the term of its existence (not to exceed fifty years), the number of shares of which the stock shall consist, the num- ber of directors and their names who shall manage the concerns of the company for the first year, and the names of the town and county in which the office of the company is to be es- tablished.' When the certificate shall have been filed as aforesaid, the persons who shall have signed and acknowledged the same, shall be a body politic and corporate, by the name stated in the cer- tificate.' Every company incorporated under this chapter, may make insurance upon vessels, freight, money, goods and effects, and against captivity of persons, and on the life of any person during his absence at sea, and on money lent upon bottomry and respon- dentia ; and they may also make insurance against fire on any dwelling-house or other buildings, and on merchandise or other property within the United States. Such company shall not, directly or indirectly, deal or trade in buying and selling any goods, wares, merchandise, stocks or commodities whatever." If any of the said companies shall be under liabilities for losses to an amount equal to their capital stock, and the president or directors, after knowing the same, shall make any new or further insurance, the estates of all who make such insurance, or assent ■ Wood's Dig. art. 2688. ' id. 2685. CORPORATIONS. 273 thereto, shall be severally and jointly liable for flie amount of any loss which shall take place under such insurance.' For further provisions of the statutes in regard to insurance companies, see WoocPs Digest, pages 505 to 507. MDTLTAX mSUEANOJ; COMPANIES. Any seven or more persons who desire to form a mutual insur- ance company, shall make, sign and acknowledge, before some officer competent to take the acknowledgment of deeds, and file in the office of the clerk of the county in which the business of the company shall be carried on, and a duplicate thereof in the office of the secretary of state, a certificate, in writing, in which shall be stated the corporate name of the company, the proposed amount of the capital stock, the proposed term of its existence, not to exceed twenty years, the proposed number of shares of which its stock shall consist, the number of directors, and their names, who shall manage the concerns of the company for the first year, and the names of the town and county in which the office of the company is to be established. ° All the provisions of chapter second of the act entitled " An Act concerning Corporations," passed April twenty -second, one thousand eight hundred and fifty, excepting sections thirty-four, thirty-seven, forty-two, forty-three, fifty-one and fifty-two of said chapter, shall be applicable to mutual insurance companies.' When the certificate shall have been filed as aforesaid, the persons who shall have signed and acknowledged the same, and those who shall thereafter subscribe to the capital stock, or who shall become insurers under such certificate of organization, shall be a body politic and corporate by the name stated in the certificate.' It shall be lawful for the directors to call in and demand from ihe stockholders respectively, all such sums of money by them subscribed, at such times and in such payments or instalments as the directors shall deem proper, under the penalty of forfeit- ing the shares of stock subscribed for and all previous payments made thereon, if a personal demand shall have been made at ' Wood's Dig. art 2688. ' id. 2690-2692. 18 274 BANCROFT'S CALIFORNIA LAWYER. least BIX weeks previously, or if a notice requiring such pay- ment shall have been published for six successive vreeks in some newspaper of the place where the business of said company is carried on, or if no newspaper be published in such place, then in a newspaper published nearest thereto.' Every company incorporated under this act, may make insur- ance upon vessels, freight, money, goods and effects, and against captivity of persons, and on the life of any person during his or her absence at sea, and on money lent on bottomry and respon- dentia, and may also make insurance against fire, on any dwel- ling-house, buildings, merchandise, or other property, situated in the state of California, and may also make insurance upon the life of any person, whether at home or abroad, for a limited term, or during his or her natural life.' No company shall issue policies until the sum of two hundred thousand dollars shall have been subscribed and conditions com- plied with, as required in section seventh." No company shall directly or indirectly deal or trade in buy- ing or selling any goods, wares, merchandise, stock, or commod- ities whatever ; but this shall not be construed to prevent such company from selling any goods, wares, merchandise, stock, or commodities which may have been hypothecated or pledged with them as securities, for the loan or investment of money, when- ever the same is made in good faith to protect the company from loss upon such loan or investment." The following section applies to all insurance companies : No company incorporated under this act shall take on any one risk, whether it be a marine risk, an insurance against fire, or an insurance on the life of any person, a sum exceeding one-tenth part of their capital subscribed.' AGRICULTUEAI, SOCIETIES. AN ACT OONOBEmNG AGEICULTUEAL SOOIETrES, PASSED MARCH 19, 1859. Section 1. Any seven or more persons may form an association for agricultural purposes, and when so formed shall be known and designated by the name of Agricultural Society, ' Wood's Dig. art. 2690-2692. » id. 2692. » id. 2694. CORPORATIONS. 275 and by such name and style shall have perpetilaP succession, and shall have power and authority to contract and be contracted with ; to sue and be sued in all courts ; to have and use a com- mon seal, and to alter the same at pleasure ; to make, ordain and establish, and put in execution, such by-laws, ordinances, rules and regulations, as shall be necessary for the good government of such society, and the management of its affairs ; pn'ovided that said by-laws, ordinances, rules and regulations, shall not be contrai'}'^ to any provisions of this charter, or the constitution of this state, or of the United States. Sec. 2. In addition to the powers above enumerated, the so- ciety shall, by its name, have power to purchase, hold, and lease, any qiiantity of land not exceeding in the aggregate one hun- dred and sixty acres, with such buildings and improvements as may be erected thereon, and may sell, lease and dispose of the same at pleasure. The said real estate shall be held by such so- ciety for the purpose of erecting buildings and other improve- ments calculated to promote ahd encourage the interests of agri- culture, horticulture, mechanics, manufactures, stock-raising and general domestic industry. Sec. 3. The officers of such society shall consist of a president, two vice-presidents, a secretary, a treasurer and two directors, all of whbm shall be members of such society at the time of their election, and shall have the management of the fiscal, pru- dential, and other concerns of such society, and shall be styled the board of managers. The said officers shall be elected an- nually by the members of the society, at such time, and in such manner, as in their constitution and by-laws they may prescribe, and shall hold their offices for the term of one year, and until their successors enter upon their duties. Sec. 4. Such society may provide, by its. constitution and by- laws, for memberships of such society, and iix the prices of such membership, and terms of duration thereof. Sec. 5. No society organized under the provisions of this act shall contract any debts or liabilities to exceed the amount of money in the treasury at the time such debt or liability shall have been contracted, except as provided in the next section. Sec. 6. Such society may, by the unanimous vote of the board of managers, for the purpose of purchasing or leasing property, 276 BANCROFT'S CALIFORNIA LAWYER. as provided for by the second section of this act, create debts or liabilities, not to exceed the sum of one thousand dollars, and in case of any excess being incurred, the said board of managers shall, in their individual and private capacities, be held jointly liable to such society for the amount of such excess ; provided that any member of said board, who shall have been absent, or caused his dissent therefrom, at the time, to be entered on the minutes, shall not be so held liable. Sec. 7. Within three months after the organization of snch so- ciety, the board of managers thereof shall cause to be filed in the office of the county clerk of the county in which such society is organized, a certificate stating the name of the^ society, the pur- poses for which it was organized, the date of its organization, and the names of its officers, which certificate shall be signed by the president and secretary of said society ; a copy of such cer- tificate, filed as aforesaid, and certified by the county clerk, shall be received in all courts and places, as presumptive evidence of the matters therein stated. Sec. 8. It shall not be lawful for any person to sue such so- ciety for the failure to award any premium or premiums, or for a failure to pay the same when awarded. For remainder of this act, see Laws of 1859, page 104. For Eural Cemetery Associations, see Laws 1858, page 281. OREGON . CONSTITUTIONAL PEOVISIONS.' Under the constitution of Oregon, no law can be passed authorizing the establishment of any corporation for banking purposes, or for the issuing or circulation of any kind of paper money. Corporations may be formed undei- general laws, but cannot be created by special laws, except for municipal purposes. The stockholders of all corporations and joint-stock companies shall be liable for the indebtedness of said corporation to the amount of their stock subscribed and unpaid, and no more. Private property cannot be taken by a corporation, until com- pensation is made or secured. ' Cotiat of Oregon, art. XI. CORPORATIONS. 277 The state cannot subscribe to or be interested in the stock of any company, association or incorporation. STATUTORY PROVISIONS. Actions may be brought to vacate or annul acts of incorpora- tion fraudulently passed ; or to vacate the charter or annul the existence of a corporation other than municipal, for violating its act of incorporation, or abuse of its powers, or failure to exercise its powers, or for doing or omitting any act which amounts to a surrender of its corporate rights, privileges and franchises, or for exercising a privilege or franchise not conferred upon it by law.' ACT TO RE&ULATE ■ INCORPORATED RELIGIOUS SOCIETIES, PASSED JAN. 30, 1855, LAWS OREGON, p. 671. It shall be lawful for each religious denomination in this terri- tory, in the appointment of boards of trustees for holding church property, to appoint and keep up said boards of trustees, in ac- cordance with the economy and usages of the said religious denominations, in their separate organizations severally, by giving public notice in the church or congregation, when such boards of trustees are to be constituted, at least two successive Sabbaths previously to the time of organizing such boards of trust, for the objects contemplated in this act; the time and place of meeting to accompany said notice. "WASHINGTON. Under the organic act of Washington Territory, laws author- izing the establishment of any corporation for banking purposes, or for issuing or circulating any kind of paper money are for- bidden." An information may be filed against any association or num- ber of persons who shall act as a corporation, without being legally incorporated, or where any corporation do, or omit acts, which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or where they exercise powers not conferred by law.' > Stat. 0. pp. 159, 100. s id. 216. « Laws W. p. 85. 278 BANCEOFT'S CALIFORNIA LAWYER. JXTDIOIAL DECISIONS. Corporations have no powers, except such as are specifically granted, and must be held strictly within the limits of their granted powers.' The " Act concerning Corporations " of 1850, provides, that no corporation created, or to be created, sliall by any implication or construction, be deemed to possess the power of issuing bills, notes, or other evidences of debt, upon loans, or for circulation as money. The act however contemplates, that corporations will incur debts to the amount of the capital stock paid in. It there- fore must be inferred, that they were to create the ordinary evi- dences of debt, and that the corporation issuing paper securities for the same would be bound thereby." The policy of our state has altered the rigidness of the common law, which disabled a corporation from makings contract except under its corporate seal. The act of incorporation, instead of being, as formerly, a favor granted by the sovereign to the sub- ject, has, under our system, become a matter of right, available under general laws ; under those laws, the power of corporations to create debts, is treated as an incident to the express power, and not as in itself one of the express powers. Issuing bills or notes as a circulating medium is expressly excluded ; the right to issue them in all other proper cases must be inferred as an in- cident to the express powers or objects of the corporation. Cor- porations, by the general act, have power to make by-laws for the " organization of the company," the " management of its property," the " regulation of its affairs, and for carrying on all kinds of business within the objects and purposes of the com- pany," in which there is no reason to exclude the right to make promissory notes." Where the charter of an old hospital is repealed and one at the same time granted for a new one providing that the board of health of the old, deliver to the trustees of the new institution, all property, real and personal, held by them in trust fpr the old hospital, and making it the duty of the trustees of the new hos- pital to " pay out of any funds which may come into their hands, »5 0al. 241. '6id. 1. ' id. 25S. COEPOEATIONS. 279 all the debts wticli may be owing," by the old hospital, held, that the trustees of the new hospital were bound to pay all the debts of the old one, without reference to the value of the prop- erty received.' Incorporations are not bound by the acts or admissions of individual members, unless they were acting by its express au- thority." Under the act for the incorporation of railroad companies, the statute provides, that the commissioners shall ascertain, and re- port, the compensation proper to be made, for the land or other property, taken or injuriously ajffected ; and is evidently intended to include every sort of damage which the owner of the land should sustain by the act of the corporation, including the build- ing of fences, on each side of the road.' Where shares of stock in a corporation have been regularly transferred on the books of the company, although only mort- gaged as security for a loan, in a suit against the mortgagor, the mortgagee is the only proper person to be garnished ; what re- mains to the mortgagor, is an equity in the hands of the mortga- gee, to be ascertained after payment of the mortgagee debt.* Where the by-laws of a corporated company authorize the president and secretary to transact and manage the general busi- ness of the company, a note and mortgage executed by them, on behalf of the company, binds the corporation ; and where the complaint states the execution to be the act of the corporation, no further authority is necessary to be averred. ° The 12th section of the act concerning corporations, passed 22d April, 1850, provides, that whenever the capital stock of any corporation is divided into shares, and certificates thereof issued, such shares may be transferred by endorsement, but such trans- fer shall not be valid, except as between the parties, until the same shall have been entered on the books of the corporation ; the statute is imperative, and therefore no transfer is good against third parties unless the same be made on the books of the corpo- ration." A party who purchases, at sheriff's sale, stock of an incorpora- » 2 Cal. 819. « T id. 163. » 6 Id. T3. » 10 id. 441 and 896. > Id. 74. » 5 id. 1S6. 280 banceoft's California lawyer. tion, knowing the certificates of such stoct to be hypo^^^^ecated, is chargeable with notice of the fact, and takes, subject to the claim of the pledgee. Neither the incorporation law of 1850 nor of 1853 was intended to cover a case of this kind, but to apply only to transfers and purchases, in good faith, without notice.' A railroad company cannot refuse to transfer stock on their books, on the ground that the assignor of the stock was indebted to the company, unless the company had a lien on the stock at the date of its transfer.' A by-law of a railroad company, passed two days after the assignment of stock, providing that no transfer of stock should be made upon the books of the company, until all indebtedness of the assignor was paid, would create no lien, to justify the company in refusing to enter the transfer on their books.' The right of a inembei' of an incorporated company to sue the incorporation, has never been doubted, and in this very right consists one of the essential differences, between incorporations and mere partnerships ; for, in the latter, one partner cannot sue another in an action at law, but must file his bill in equity for u, dissolu4on and an account.' In an action against a corporation, witnesses, who were mem- bers of the corporation at the time the liabilities were incurred for which the action is brought, are incompetent on account of interest. By the 15th section of the act of 1853, " to provide for the formation of corporations," the liability of a stockholder con- tinues for " all debts contracted during the time that he was a stockholder."* In an action against a corporation, by its corporate name, the sheriff's return must show, that the summons was served on the president, secretary, cashier, or managing agent thereof, as named in the 20th section of the Practice Act, and service made upon any other party, though a stockholder, is void.' A joint-stock association, formed for a definite period, cannot be voluntarily dissolved, except by the unanimous consent of all ' 6 Cal. 428. * 6 Id. 80. ' 9 id. 112. • la. 186. » 6 Id. 299. OOEPOEATIONS. 281 the stockholders; if such consent cannot be Lad, then applica- tion must be made to a court to decree a dissolution.' Two corporations cannot hold land together as joint tenants." A telegraph company is liable for the neglect of its agent in failing to transmit a message in due season. The same principles of law apply in such a case as in that of a common carrier.' FOEMS. Election of Directors of the Pacific and Atlantic Railroad Company. At a meeting of the stockholders of the " Pacific and Atlantic Eailroad Company," held at San Jose on the 1st day of January, 1853, in pursuance of a notice duly published in the Placer Times and Transcript, and other papers in San Francisco, and in the San Jose Telegraph, and Santa Clara Register, by the board of commissioners for receiving subscriptions to the stock of said company, the undersigned, being a majority of said board of commissioners, presided in pursuance of the statute in such case made and provided, and acted as inspectors of the votes of said stockholders for president and directors of said company. The whole number of shares of the stock of said company is For the office of president, A. B., of San Francisco, received the vote of shares, being all the votes cast, and was de- clared to be unanimously elected. The following are the names of the directors with the votes of each respectively. C. D. of San Francisco, 500 shares. E. F. " San Jose, &c. " "We hereby certify that the above is a correct statement of the election of president and directors of said company, and of the result thereof. CD. E. F. &c., &c. >■ Commissioners. Certificate of Incorporation of Telegraph Compa/ny. State of California, ) City and County of San Francisco, \ ^^ ' We , do hereby certify and declare : That we have this day associated ourselves together as a company, for the purpose of constructing and putting in operation a line of wires ' 1 Cal. 65. > Parks v. Alta Tel. Co. April Term, 1859. » 2 id. 289. 282 Bancroft's California lawtkr. of electro-magnetic telegraph from the city of San Francisco, by way of the city of San Jose, the towns of Santa Cruz and Mon- terey, and other intermediate points, to the city of Los Angeles, Tinder and in pursuance of an act of the legislature of the state of California, entitled " An Act concerning Corporations," passed April 22d, 1850. And we further certify and declare as follows, to wit : First. That the corporate name to distinguish such company and association, and to be used in its dealings, and by which it shall sue and be sued, is and shall be " The Pacific and Atlantic Telegraph Company." Second. That the general route of said line of telegraph is and shall be the most practicable and direct route from the city of San Francisco by way of the city of San Jose, the town of Monterey, the town of Santa Cruz, and other intermediate points and places to the city of Los Angeles. Third. That the capital stock of said association is and shall be dollars, which capital stock is and shall be divided into shares of stock, each share of which shall I'epresent dollars, of the capital stock of said company. Fourth. That the names and places of residence of the persons holding shares in said association and company, and the number of shares held by each of them respectively, are as follows, to wit: NAME. PLACE OF EESIDENOE. NO. OF SHAKES. A. B. San Francisco, 500 CD. " &c., &c. Fifth. That said association and company shall commence on this day of A. D. and shall continue for the period of years next thereafter, and shall terminate at the expiration of said time. In witness whereof, we have hereunto set our several hands and seals this day of A. D. at the city and county of San Francisco (signed in duplicate). Sealed and signed in ) A. B. [l. s.] presence of J. B. j C. D. [l. s.] E. F. [l. s.] Certificate of Incorporation of the San Francisco Dock and Wharf Company. The undersigned trustees of the San Francisco Dock and Wharf Company, in conformity with the requirements of an act entitled " An Act to provide for the formation of corporations foi certain purposes," passed day of , do certify that they desire to form a corporation for wharfing, dockage and general warehousing purposes, under the name and style of "The COEPOEATIONS. 2 S3 Sail Francisco Dock and Wharf Company," and to incorporate the same for years, from the day of A. D. The said corporation to pursue the business of whariing, dock- age and warehousing, in tlie city of and county of , the principal place of business of the company, with a capital of dollars, represented by shares of stock, divided into shares of tloUars each. Said corporation to purchase and sell such real est are as may be deemed necessary by its trustees to carry on said business, or which may bo ob- tained by purchase or otherwise in the course of its business. To build a sea-wall or bulkhead, wharfs, piers, docks and ware- houses, and to purchase or lease the same, with the rights, fran- chises or contracts appurtenant, to hire or build such warehouses as may be required to carry on said wharfing and dockage, and the business incident thereto ; aind generally to possess powers sufficiently ample and extensive to meet the requirements of the increasing business in which said corporation may engage. The undersigned do further certify, that the number of trustees of the San Francisco Dock and Wharf Company, herein incor- porated under the before-mentioned act, shall be as follows, namely, A., B., C, &c., of tlie city of , who shall manage the concerns of the company for the first months, and until their successors are lawfully elected. Dated this day of A. D. . A. B. C, &c. Certificate of the Trustees of, the Quartz amd Tailing Mining Company^ of Airmdor County. This is to certify that the undersigned have this day united themselves, and formed a corporation, under the corporate name of the Quartz and Tailing Mining Company of, Amador county. The company is formed for the purpose of extracting gold and other metals from all ores, in the county of Amador, in the state of California, by a new process discovered by Messrs. , and for acquiring, by purchase or otherwise, such real and personal estate as may be necessary to carry on the above-described undertaking. The ariiount 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 A., B., and C, shall be the 284 Bancroft's California lawyer. tnistees to manage the con mortgage, &c. ) On reading the annexed petition of " The Trustees, &c.," a re- ligions corporation, and on motion of A. B., in behalf of said cor- poration, ^ It is ordered tliat said petition be presented, and said applica- tion made to the said twelfth district court, at the court-room thereof, &c., on , the day of , A. D. , at the opening of the court on that day, or as soon there- after as said application can be heard. And it is further ordered that a notice of said application be published in the , a newspaper printed and pub- coBPOEATioisrs. 295 lished in said city and county, each day for five days immediately preceding said application. Dated Edwaed JSToeton, Judge Twelfth District. NOTICE. Twelfth District Court. In the matter of the application of the ) Trustees of Church to mortgage, &c. j Notice is hereby given, that application will be made by " The Trustees, &c.," a religious corporation, to the District Court, &c., on, &e., at the court room, &c., at the opening of the court on that day, or as soon thereafter as such application can be heard, for an order allowing the corporation aforesaid to execute a promis- sory note for a sum not exceeding $5,000, and also to execute a mortgage upon the real estate of said corporation, to secure pay- ment thereof. Dated, &c. "William Duee, Clerk. By W. E. Sateelee, Deputy. Affidavit of PiMioation of the above Notice. City and County of San Francisco, ss : A. B. of the said county being duly sworn, deposes and says that he is the proprietor and publisher of the , a newspaper published daily in said county, and has chargfe of all the advertisements in said newspaper, and that the foregoing notice in the case of " The Trustees &c.," has been published in the for five successive days, from to , 1858, and further sayeth not. A. B. Sworn to this day of , ) A. D. before me. j [l. 8.] C. D., Notary Public. Ordkf of Courts authorizmg the OTvwrch to give the Mortgage, d;c. In the District Court of the Twelfth Judicial District, City and County of San Francisco. In the matter &c., of ) of church. | In the above entitled matter, on reading and filing the petition of " The Trustees &c.," and it satisfactorily appearing to me therefrom, that it will be to the benefit, interest and advantage of such church and congregation, to grant the prayer of said petition, and it also satisfactorily appearing to the court, by com- petent proof, that due notice of this application has been given. Now, therefore, on application of said trustees, by their attoiv 296 Bancroft's calipobnia lawyer. ney, A. B., it is ordered that the said trustees may make, execute and acknowledge, under and in the corporate name and seal of said trustees, a mortgage upon the property described in said petition; to secure the payment of such sum not exceeding |5,000, as they can obtain at a rate of interest not exceeding one and one lialf per cent, per month, for a period not exceeding two years. And to deliver the same to any person who will furnish such sum of money on the terms aforesaid. And it is further ordered, that the said corporation may execute and deliver with such mort- gage, a promissory note for such amount as, aforesaid, under the corporate seal and in the corporate name of said trustees. And it is further ordered, that said trustees, on receiving said sum of money as aforesaid, shall appropriate the same, or so much thereof as may be necessary for tliat purpose, to the pay- ment of the present .indebtedness of said corporation and church, and if any balance remain after the payment of such debts, it shall be used under the direction of said trustees for the benefit of said church. Petition for Disim,corporation. County Court in and for the County of , State of Matter of the disincorporation of the Corporate Company "The North-West Ice Company." To the Hon. A. B. C, Judge of the Court aforesaid : The subscribers, being officers of the company aforesaid, and also owners of two-thirds 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 legislature of , passed of , A. D. , entitled, " An Act to provide for the Formation of Corporations for certain Pur- poses," 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 ice 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 tlie 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 the by-laws of said com- pany, to be held on the day of , A. D. , at o'clock of that day, at the ofiice of , in the ,:,;,-■,,, COEEOEATIONSi , . 29 T city of , aforesaid, wliicli has been and is also tlie 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, by a vote of more than two-thirds of all the stockholders of said company : That other necessary pre- liminary steps hereto have' been taken, and that all valid claims against the corporation have been discharged. Dated D. E., President. E. G., Secretary. Notice of PvhliGation. County Court in and for the County of , State of : Matter of the Disincorporation of the Corporate Company, " The North-West Ice Company." Notice is hereby given, that, on the day of , A. D. , at the court-room of the county court of die city of , and county of , in said city, at o'clock of that da,y, will be heard the application and petition of the officers and stockholders of corporate company, "The North-West Ice Company" (said petition being now on file in the office of the clerk of said court). The object of said application and petition is to dissolve and disincorporate said company according to law. Dated A. B., Clerk. By C. D., Deputy. Order of Disi/ncorporaUon. County Court in and for the City of and County of , State of In the matter of the disincorporation of the | Corporate Company, " The North-West >• Ice Company." ) The petition of the officers and stockholders of the corporate company, " The North- West Ice Company" to dissolve and dis- incorporate said company, coming on to be heard ; and due proof being made of the publication of the notice of said petition, and of the time of the nearing thereof, on motion of A. B., counsel for said petitioners, it is ordered, That the corporate company known by the name of " The North-West Ice Company" be and the same is hereby dissolved and disincorporated. day of A. D. . E. T., County Judge. 298 Bancroft's califoenia lawyer. CHAPTEE XVI. DEEDS. A DEED is a written instrument containing some contract or agreement sealed and delivered : but in the general use of the term, it signifies a conveyance or transfer of land, or of some in- terest in land. A conveyance of land or of any estate therein, may be made by deed, signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his law- yer or attorney, and duly acknowledged, or proved and recorded. The estate of infants, idiots, persons of unsound mind, and incompetent persons, can only be conveyed by their guardians, under certain regulations and restrictions provided by law. A married woman may convey her real estate by joint deed with her husband, provided the same be properly acknowledged.' And when her husband is not, and for a year preceding the con- veyance has not been hona fide residing in this state, she may convey her real estate as fully and perfectly as if she were single, upon acknowledgment before the district judge of the county where the land lies, and the certificate of the judge made upon the testimony of two credible disinterested witnesses to the fact.' Males are deemed of full and legal age at twenty -one years, and females at eighteen, or at any age under eighteen, when, with the consent of the parent, guardian or other person under whose care or government they may be, they shall have been lawfully married ; — and at those ages respectively are competent to convey real estate, make contracts and do all other acts and things, that persons of full age may legally do.' 1 W. D. avta. 889 and 856-860. Soe chapter « W. D. art. 2680. on Acknowledgments and on HuaBAND and ^ id. 2811; Laws 1858, p. 108. Wife. DEEDS. 299 A deed should be founded on a sufficient consideration, and executed by persons able to contract 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, illegal, or fraudulent. Every deed, or contract, is void, when made for any fraudulent purpose, or in violation of law. A good consideration is founded upon natural love and affection be- tween near relations by blood ; a valuahle consideration is found- ed on something deemed valuable, as money, goods, services, or marriage. An equitable liability is sufficient to uphold an ex- press covenant or promise. "Where the consideration is expressed in a deed, any averment to the contrary cannot be made, although it may be inquired into, for all purposes, except to impeach the deed as between the par- ties ; nor will the validity of a deed depend on the amount of the consideration. In the construction of every instrument granting or conveying, or authorizing the creation or conveyance of, any estate or in- terest in lands, it is the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be col- lected from the whole instrument, and is consistent with the rules of law. Material erasures or interlineations in a deed, should always be noted before the execution." ' When a deed is executed by an attorney, for several principals, one seal is sufficient, provided it appear that the seal affixed was intended to be adopted, as the seal of all." The attorney should sign the name of the principal by himself,' writing his own name under that of the principal, with the words, " By his attorney in fact." See accompanying Forms. The rule in relation to the description of premises conveyed by metes and bounds is, that known and fixed monuments con- trol courses and distances; and the certainty of metes and bounds will include all the lands within them, though they vary from the quantity expressed in the deed. Whe^e natural and 1 Wood's Dig. art 1180. 300 BANCEOFT's CALIFORNIA LAWYEB. fi:xed objects are wanting, and the course and distance cannot be reconciled, the one or the other may be preferred, according to circumstances.' Where land is conveyed by metes and bounds, if the descrip- tion contains positive language as to quantity, it is to be regard- ed as descriptive only, and not as a covenant of quantity.' In drawing deeds for exchange of lands, or amicable partition, the true and actual consideration, 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 party, if he is entitled to recover for his loss, may be fixed. A deed will not take eifect, 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 in- tention to deliver it, will be sufficient ; or it may be delivered as an escrow, on conditions, and will take effect, on the perform- ance of such conditions, from the time of the delivery." No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust, or power, over or concerning lands, or in any manner relating thereto, can be created, granted, assigned, sui-rendered, 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.' This section cannot be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.* By the statute of California the term " heirs," or other words of inheritance, are not necessary to create or convey an estate 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.' The words "grant, bargain and sell," unless re- strained by express terms, contained in the conveyance, are con- strued to be the following express covenants and none other, on ^ Stanley v. Green. January Term, 1S59. * id. 895. ' Fiske V. his croilitors, January Term, 1859. » Id. 881. ' Wood's Dig. .irt. 894 DEEDS. 301 the part of tlie grantor for himself, his lieirs and assigns, and may be sued on as such. , 1. That previous 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. 2. That such real estate is at the time of the execution of such conveyance, free from incumbrances done, made or suf- fered by the grantor, or any person claiming under him.' 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." If conveyance be made in fee simple absolute, and the grantor have not the legal estate, 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 for the sale of lands or any interest therein, or for leasing for over a year, are void unless the contract or some note or memorandum thereof, expressing the consideration be in wri- ting and subscribed by the party making the lease or sale, or by his lawfully authorized agent.* Under the Mexican law and the customs of California, where land was conveyed by deed, it was requisite that the writing should contain at least the names of the parties, the thing sold, the date of the transfer and the price paid.' Deeds of gift, where no valuable consideration passes, may be made, and when made understandingly 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 are gifts made in contemplation of death ; which take effect if the death occurs, provided the property is not needed for the payment of the debts of the deceased. All gifts are void, which are made to hinder, delay and defraud ■ Wood's Dig. art. 3S8. * W. D. art. 896 and SOT. » Id. 871. » T OaL 158; 10 id. 12. ' id. 870. 302 Bancroft's California lawyer. creditors, so far as sucli creditors are concerned, even where the gift is made as a settlement upon the wife or children of the donor. In California, a deed of gift may be made by the husband to the wife directly, without the intervention of a third party as trustee or otherwise.' In this state, every conveyance or other instrument in writmg, conveying or affecting real estate, or any instrum.ent in writing by which any real estate or interest in real estate is created, aliened, mortgaged or assigned, except wills, leases for a term not exceeding one year, and executory contracts for the sale or pur- chase 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 powers of attorney) may be used in evidence without further 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 incom- petency of the witness by whom the execution of the instrument purports to have been proved." Conveyances or deeds affecting lands are of force between 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 recommended that every deed should be re- corded as soon as possible after it has been properly acknowl- edged or proved. For the law and forms on the subject of acknowledgment and proof, see the title Acknowledgment in this book. Recording a deed is held to be notice to & prior purchaser or incumbrancer only when he has actual notice, so that a prior mortgagor is not chargeable with fraud in releasing portions of his lien, and retaining that portion subsequently sold without actual notice.' The Supreme Court decided, in January 1859, in the case of Hunter vs. Watson, that the open, notorious possession of real estate by one having an unrecorded deed for it, is evidence of notice to a subsequent purchaser of the first vendee's title. 1 Barker v. Koneman, April Term, 1659. = 6 Cal. 670. 2 Wood's Dig. p. 100, et seq. DEEPS. 303 Tlie possession must exist at the time of the acquisition of title or deed of the subsequent vendee from the common vendor. The forty-Hrst section of the statute of California in reference to recording deeds, requires conveyances made before the passage of the act, that is, prior to April 16, 1850, to be recorded ; and the penalty of failing to do so is the same as with conveyances made after the act was passed.' A deed intended to create an estate of joint-tenancy, must clearly express that intent. The fact that two persons join in a mortgage of lands does not raise a presumption that the estate conveyed is joint property. Joint-tenancies are not favored by our system, the statute having abrogated the common rule of conveyances in tliis respect, so that in order to constitute a joint estate in lands in two or more persons, such estate must be expressly declared in the convey- ance itself, otherwise the estate conveyed will be held by the grantees as tenants in common." OREGON. In Oregon, deeds of lands, or any interest in lands, convey- ances, mortgages, powers of attorney to convey lands, and ex- ecutory contracts for the sale and purchase of lands duly executed, acknowledged or proved, and certified, may be recorded in the county where the lands lie, and read in evidence. And the rec- ord thereof, or duly-certified transcript of such record, may be read in evidence, subject to rebutting testimony. Such deed should be witnessed by two witnesses, may be sealed by a scroll or other device, and should be recorded within sixty days to give notice. WASHINGTON. hi Washington a deed is a writing signed and sealed by the party to be bound thereby, witnessed by two witnesses, and acknowledged by the party making it before a judge of the Supreme Court, or of the Probate Court, a justice of the peace or notary public, and must be recorded within six months, to give notice. ' 7 Cal. 479 : Wood's Dig. art. 378. ' Brown v. May, April Torm, 1859 ; Wood's Dig. art. 880 304 banceoft's California lawyer. FOEMS. Simple Form of Deed of Bargain and Sale. I, A. B., in consideration of the sum of live hnndred dollars to me paid by C. D., do hereby grant, bargain and sell to the said C. D., that lot of land \_here inaert location and descriptio^\, with all and singular the rights and appurtenances thereof. Witness my hand and seal. May fifth, 1859. A. B. [l. s.] Sealed and delivered in presence of [^Acknowledgment iefore the proper officer.] Deed of Bargain and Sale — ths Form generally used. This indenture, made the first day of July, in the year of our Lord one thousand eight hundred and fifty-nine, between A. B., of , and M. B., his wife, parties of the first part, and C. D., of , party of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of ten thousand 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 delivery of these presents, the receipt whereof is hereby acknowledged ; have granted, bar- gained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, remise, re- lease, 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, &c. [desoriptiori]., together with all and singu- lar the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, claim of homestead, property, 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 part and pai'cel thereof, with the appurtenances. To have and to hold, all and singular the above mentioned and described premises, to- gether with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof, the said parties of the first part have here- unto set their hands and seals, the day and year first above written. A. B. [l. s.] Signed, sealed and delivered, ) M. B. [l. s.] m the presence of L. M. j t! DEEDS. 305 Fon'm of Deed hy Attorney-in-fact. This indenture, made this day of , 1859, between A. B., of, &c., party of the iirst-part, and C. D., of, &c., party of the second part, witnesseth, \_^oceed as in foregoing forms to the conoluston, and sign it.] A. B. [l. s.] By M. ]Sr., liis attorney-in-fact. [Or conclude thus:] In witness whereof, the said A. B., party of the first part, acting by M. N., his attorney-in-fact, hath here- to set his hand and seal, &c., &c. Quit-claim Deed. This indenture, made the twentieth day of July, in the year of our Lord one thousand eight hundred and fifty-nine, between A. B. of , of the first part, and C. D. of the second part, witnesseth, that the said party of the first part, for and in consideration of the siim of one thousand dollars, lawful money of the United States of America, to him in hand paid, by the said party of the second part, receipt of which is acknowledged, has remised, released, quit-claimed, and by these presents does hereby remise, release and forever quit-claim 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 tene- ments, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, lo have and to hold the same, with all and singular the appurtenances and improvements thereUnto be- longing, unto the said party of the second part, his heirs and as- signs forever. In witness whereof, &c., [as im foregoing forms.] Quit-claim, or Transfer of Interest in Property. Know, all men, that I, A. B., of &c., &c., do hereby grant, bar- gain and sell [or, sell, assign, transfer and set over], [or, sell and convey, or, sell and quit-claim, or, remise, release and quit-claim], unto C. D., of &c., &c., all my right, title and interest in and to all that certain lot or parcel of land situate, lying, and being in &c., [here vnsert description, a/tid conclude^ to have and to hold the same, together with all and singular, &c., [as in foregoing forms.] COVENANTS TO BE mSEETED IN DEEDS. General WarraM. And the said A. B. and his heirs, the said premises, in the quiet and peaceable possession of the said party of the second part, his 20 306 banceoft's California lawyee. heirs and assigns, against tke said party of tlie first part, 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. Covenant against Acts of Grantor. And the said party of the first part, for himself and his heirs, executors and administrators, doth covenant, promise and agree, to and with the said party of the second part, his heirs,- executors, administrators and assigns, that he hath not made, done, commit- ted, executed, or suffered, any act or acts, thing or things, what- soever, whereby, or by means whereof, the above-mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall, or may be, impeached, charged, or in- cumbered, in any manner or way whatsoever. Covenamt of Ownership amd quiet Possession. And the said A. B., for himself and his heirs, doth hereby cove- (lant and agree, that at the delivery hereof he is the lawful owner of the premises above granted, and seized of a good and indefeasi- ble estate of inheritance therein, clear of all incumbrance what- ever, of every name or nature; and that he will warrant and de- fend the above premises, in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, forever. Covenants inserted in a full Warra/ntee Deed. To have and to hold the above granted, bargained and described premises, with the appurtenances, unto the said party of the second pai't, his heirs and assigns, to his and their own proper use, bene- fit and behoof, forever. And the said A. B., for himself and his heirs, executors and administrators, doth covenant, grant and agree, to and with the said party of the second part, his heirs and assigns, that the said party of the first part, at the time of the sealing a,nd delivery of these presents, is lawfully seized in his own right [or, as the case may he], of a good, absolute, and indefeasible estate of inheritance, in fee simple, of and in, all and singular the above granted and described premises, with the appurtenances, and hath good right, full power, and lawful authority, to grant, bargain, sell and convey the same, in manner aforesaid : and that the said party of the second part, his heirs and assigns, shall and may, at all times hereafter, peaceably and quietly have, hold, use, occupy, possess and enjoy, the above granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance, of the said DEEDS. 307 party of the first part, his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same : and that the same now are free, clear, discharged and unincumbered, of and from all former and other grants, titles, charges, estates^ judg- ments, taxes, assignments and incumbrances, of what nature or kind soever. And, also, that the said party of the first part, and his heirs, and all and every person or persons whomsoever, law- fully or equitably deriving any estate, right, title, or interest, of, in, or to, the herein granted premises, by, from, under, or in trust for, him or them, shall and yrill, at all time or times, hereafter, upon the reasonable request, and at the proper costs and charges in the law of the said party of the second part, his heirs and as- signs, make, do and execute, or cause to be made, done and exe- cuted, all and every such further and other lawful and reasonable acts, conveyances and assurances, in the law, for the better and more effectually vesting and confirming the premises hereby granted, or so intended to be, in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs or assigns, or his or their counsel, learned in the law, shall be reasonably advised, devised, or required : And the said A. B., for himself and his heirs, the above described and hereby granted 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 whom- soever, lawfully claiming, or to claim the same, shall and will warrant, and by these presents forever defend. In witness, &c.. Gift of Personal Estate^ hy Deed. Know all men by these presents : That T, A. B., of &c., in con- sideration of the natural love and affection which I have and bear for my sister C. B., and also for divers other good causes and con- siderations, me, the said A. B., hereunto moving, have given, granted and confirmed, and by these presents do give, grant and confirm, unto the said C. B., all and singular my goods, chattels and personal estate, of every name and nature, in whose Mands, cnstody, or possession, soever, they be ; [or, the following goods and chattels, viz., &c. ; descnhmg ihem .•] To have and to hold all and singular the said, &c., &c. Deed of Oift of Real Estate. This indenture, made, &c., between A. B., of, &c., of the one part, and E. B., son of the said A. B., of the other part, witness- 308 Bancroft's calipoenia lawyer. eth : That the said A. B., as well for and in corisideratiou of the natural love and affection, which he, the said A. B., hath and beareth unto the said E. B., as also for the better maintenance, support and livelihood of him, the said K. B., hath given, granted and confirmed, and by these presents doth give, grant and con- firm, unto the said E. B., his heirs and assigns, all, &c., [desorip- tion ;] To have and to hold all and singular the premises hereby granted and given, with all and singular, &c., &c. Deed of Gift to a Married Womom — HahendAmrh Clause. To have and to hold the same to her the said , her heirs and assigns forever, to and for her and their sole and sep- arate use, benefit and behoof, forever, as her separate property, and free from the management and control of her said husband, the rents, issues and profits to be applied to her sole and sepa- rate use. This conveyance being intended to operate by way of " gift," according to the meaning of that word as first used in the first section of an act entitled "An Act to define the Eights of Husband and "Wife," passed on the 17th day of April, 1850, by the legis- lature of the state of California, and to be followed by the legal effects therein given to acquisitions by a married woman of prop- erty by " gift," to wit : That such acquisition shall be her sep- arate property, and not the common property of the husband and wife, and it being also intended to secure to the said the rents, issues and profits of the said premises above described to her sole and separate use, in accordance with the provisions of the said act as amended by the a,ct of , 1853. In witness whereof, &c. Concluding fart of Trust Deed for Benefit of Wife. To have and to hold all and singular, the said hereinbefore granted and described premises unto the said E. F., his heirs and assigns, upon the trusts nevertheless, and to and for the uses, in- terests and purposes hereinafter limited, described and declared. That is to say, upon trust for H. B., wife of A. B., as her sole, exclusive, separate and only use and benefit, exclusive of any and all rights, title, interest, power and claim of her said hus- band, A. B., one of the parties of the first part to these presents,' therein, and for all liability for the payment of any of his debts, or on account of any of his acts, or on his account by reason of their said marriage relation or otherwise. And upon tiiis further trust, that the said E. F., his heirs and assigns, shall take possession of said premises and receive the DEEDS. 809 issues, rents and profits of the said premises, and apply the same to the use of the said H. B., during the term of her natural life, and that her sole and separate receipt therefor, shall be an acquit- tance, and after the death of the said H. B., convey the same to the heirs of the said H. B. in fee. And upon this further trust, that he the said E. F., his executors and administrators, shall and may, in his and their discretion, sell, dispose of, vest and re- invest said real estate and income thereof. And that the said party of the second part, and his heirs and assigns, shall and may at all times hereafter peacefully and qui- etly have, hold, use, occupy, possess and enjoy the above granted, bargained and described premises, and every part" and parcel thereof, with the appurtenances, and receive and take the rents, issues and profits thereof to and for his and their own proper use and benefit, without any loss, suit, hindrance or molestation, eviction or denial of, from or by the said parties of the first part, their heirs and assigns, or of, from or by any other person whom- soever, lawfully claiming or to claim any estate, right, title or interest of, in or to the same, by, through or under them or either of them. In witness whereof the parties to these presents have hereunto interchangeably set their hands and seals, &c. Another Form. 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 successors for- ever. In trust, nevertheless, for the sole and separate benefit and be- hoof of the said , wife of, &c., her heirs and assigns forever, free from the control or disposition, debts and liabilities of her said husband, and to permit and suflfer her, the said , to take, collect, and receive the rents, issues, and profits thereof, to and for her sole and separate use, free from the control or dis- position, and from the debts and liabilities of her said husband, with full and absolute power to the said of incumbering, disposing of, and alienating said premises above described, or any part thereof, together with the rents, issues, and profits thereof, by deed, or by last will and testament, or otherwise, as if she were sole and unmarried, so far as she may by the laws of the statute of California. In witness whereof, &c. 310 BANCROFT'S CALIFOENIA LAWYER. Deed of Belease of Property from Attachment. For and in consideration of the sum of dollars to me in hand paid by A. arid B., I do hereby grant, remise, release, and forever discharge the following described lands and premises, to wit : ) together with all and singular the tenements, hereditaments and ^ appurtenances thereunto belonging or appertaining, and the rents, issues, and proiits thereof, from all claim to or interest in the same, or any part thereof, which I may have under and by virtue of a certain writ of attachment issued out of the district court of the judicial district, in an action pending in said court, between me, as plaintiff, and the said A. and B., as defendants, and tested on the day of , in the year 1859, an4 from all lien or incumbrance that has attached to the same by reason of ^ the issuing or levy of said writ of attachment, as free and clear in all respects as though said writ of attachment had not been issued or levied ; and also from any and all claim to or interest in the premises, by reason of any other matter or thing soever. In witness whereof, I have hereunto, and to a duplica'te hereof, ser. my hand and seal, this day of , A. D. 1859. Sealed and delivered in ) [l. s.] presence of f Deed of Confirmation on Coming of Age. This indenture, made, &c., between A. B., of, &c., of the first part, and C. D., of, &c., of the second part : Whereas, by a cer- tain deed of bargain and sale, bearing date on or about the, &c., and made between C. B. and A. B., of the one part, and the said C. D. of the other part, for the consideration of dollars, the premises therein mentioned and hereinafter intended to be released and confirmed, are thereby granted and conveyed, or intended so to be, unto and to the use of the said C. D., his heii's and assigns, forever ; as by the said indenture of bargain and sale, relation being thereunto had, may more fully appear. And whereas, the said A. B., at the time of the date and making the said in part recited indenture of bargain and sale, was not of the age of twenty-one years, but hath since attained to such age, and hath this day, and before the execution of these pi-esents, duly sealed and delivered the said in part recited indenture of bargain and sale : Now this indenture witnesseth : that, as well in the performance of a covenant for further assurance in the said indenture of bargain and sale contained, as also for and in consideration of the sum of dollars, to him, the said A. B., in hand paid by the said C. D., the receipt whereof the said A. B. doth hereby acknowledge, he, the said A. B., hath . BEEDS. 311 remised, released, aliened aad quit-claimed, and by these presents doth absolutely remise, release, alien and forever quit-claim and confirm, unto the said 0. D., in his actual possession now being, by virtue of the before-mentioned indenture of bargain and sale, and to his heirs and assigns, all [description ;] To have and to hold the above-mentioned premises to the use of the said C. D., his heirs and assigns, forever. [Insert Sfmh covenants as ma/y he necessary.'] In .witness, &c. Same hy Endorsement. " Be it known, that the within indenture was executed by A. B. therein named, while under the age of twenty-one years, who has ■ now attained his full age of twenty-one years ; and that the said A. B. has, on this day of , sealed and delivered this present indenture as his own act and deed. in witness whereof, the said A. B. has hereunto set his hand and seal, the day and year above written. Sealed, &e. Deed of Confirmation — Concluding PaH. The premises hereby conveyed being the same which were heretofore conveyed or intended to be conveyed, by said party of the first part, one A. B., on and bearing date the 14th day of December, A. D. 1859, and recorded in the county recorder's oflBce of the county of San Francisco, in Liber 1 of Deeds, at page 100, December 14th, 1859. The title and interest of said A. B. in said premises having since that time become vested in the said party of the second part— this deed being executed by "way of confirmation of the said deed so executed to the said A. B., and for the purpose of vesting the title to such premises in his grantee thereof. In witness whereof, the said party of the first part hath here- unto set his hand and seal, the day and year first above written. Sealed and delivered in the presence of Corporation Deed. Tliis indenture, made the day of , in the year one thousand eight hundred and , between the Moke- lumne Mining Canal Company [or, the California Insurance Com- pany], of the first pai-t, and C. D., of, &e., [as in foregoing forms, and conclude:'] To have and to hold the above granted, bar- gained and described premises, with the appurtenances, unto the 812 Bancroft's califoenia lawyer. said party of the second part, his heirs and assigns, to his and their own proper use and benefit, forever. In witness whereof, the said party of the first part hath here- unto caused their corporate ^eal to be aflBxed, and these presents to be subscribed by their president [or, secretary, or, as the case may be]. Sealed and delivered, in ) B. C. [l. s.] presence of M. N. j President of the Company. Deed of Exchmige of La/nds. This indenture, made, &c., between A. B., of, &c., of the first part, and 0. D., of, &c., of the second part, witnesseth : That the said A. B., in consideration of the conveyance hereinafter made to him by the said 0. D., of lands of the value of at least one thousand dollars, and of the sum of five hundred dollars in cash, money in hand paid, to said A. B. by said C. D., hath given and granted, and by these presents doth give and grant, unto the said C. D., his heirs and assigns, all IdescripiAorCl, with all and every of the appurtenances, said lands being of the value of at least one thousand five hundred dollars, in exchange of and for the lands hereinafter mentioned, of the said C. D., and for the additional consideration of money as above expressed : To have and to hold the said premises, with the appurtenances, to the said C. D., his heirs and assigns, forever. And the said A. B. doth covenant, &c. {Insert such Govenamts as ina/y be neces- sary.] And the said C. D. hath likewise, on his part, given and granted, and by these presents doth give and grant, unto the said A. B., liis heirs and assigns, all [descriptiori], with all and every of the apjrartenances, said lands being of the value of at least two thousand dollars, in exchange of and for the premises first above, described: To have and to hold the above granted premises, with the appurtenances, to the said A. B., his heirs and assigns, forever, as aforesaid. And the said C. D. doth cove- nant, &c. \_as above]. In witness whereof, the said parties have hereunto set their hands and seals, &c. Deed of Paction. This indenture made, &c., between A. B., of, &c., of the one part, and C. D., of the other part, witnesseth : That, whereas, they the said A. B. and C. D., do have and hold in common, and as tenants in common, in equal parts, all, &e, it is covenanted, granted, concluded, and agreed, by and between the said par- ties ; and each of them, covenants, grants, concludes and agrees, for himself, his heirs and assigns, that a partition of the said lands DEEDS. .313 and other premises be made in manner and form following, that is to say : First. The said A. B. shall, from henceforth, have, hold, possess, and enjoy, in severalty by himself, and to him, and his heirs and assigns, for his half part, property, share and propor- tion of the said lands and premises, all, &c. Together with all and singular, the hereditaments and appurtenances thereunto belonging, and the reversion and reversions, remainder and re- mainders, rents, issues and profits thereof. And the said C. D., doth accordingly give, grant, release, and confirm unto the said A. B., his heirs and assigns, the lands and premises so as aforesaid set apart to the said A. B., as and for liis part and share aforesaid ; and, moreover, the said C. D., for him- self, his heirs, executors and administrators, doth hereby cove- nant to and with the said A. B., his heirs and assigns, that he, the said A. B., his heirs and assigns, shall, and may from time to time, and afall times hereafter, well and peaceably have, hold, and possess, and enjoy the lands and premises herein before assigned and conveyed to the said A. B., for his part and share, as aforesaid ; free, clear, and discharged of and from all estate, rights, titles, interests, charges and encumbrances, whatsoever, had, made, caused, or suffered to be made, caused, or suffered, of or by the said 0. D., or any person claiming or to claim, by, from or under him, and without -any let, trouble, suit, entry, dis- turbance, or interruption of the said C. D., his heirs, or assigns, or of any person or persons lawfully claiming, or to claim, by, from, or under him, them, or any of them. Second. The said C. I), shall, from henceforth, have, hold, possess, and enjoy, in severalty by himself, &c. \_prooeed to set his sha/re as above, and add the covenants']. In witness, &c. For other forms of deeds, tax deeds, sheriff's deed, executor's deed, &c., &c., see the forms under those titles respectively. 314 baxceoft's calipoenia lawyer. CHAPTEE XYII. ESTEATS, LAWFUL FENCES AND ANIMALS TKESPASSING ITPON PEOPEETT. ESTEAYS. In referring to the subjoined statute of 1856, and the amend- lueuts of the act of 1859, care must be taken to observe to which counties the original act applies, to which the act as amended applies, and which counties are exempt from the application of either statute. The following is the statute concerning estrays, as applicable to the counties of Trinity, Tuolurwne, Saorathento, and Scmta Clara .-"^ Section 1. Every citizen, resident householder, in any county in this state, on finding any estray horse, mare, mule, jack or jenny, or any neat cattle, or any number of such animals, upon his farm or premises, who shall desire to take up the same, shall, at any time after the expiration of twenty days from the finding the same, if such animal or animals remain on his farm or premises, go before some justice of the peace of his town- ship, or if there be no acting justice therein, then before some justice of a neighboring township, and make oath that he has made diligent inquiry throughout his neighborhood to ascertain the ownership of such estrays, and that he has also put up ten days previously, a written notice, in one or more of the most pubilc places in his township, naming the place or places, setting forth all the information in his possession concerning the said animals, embracing a description of the marks and brands thereof, and that he was about to post the same. He shall also, at the tame time, make oath that the marks and brands of said animals liave not been altered since they came to his farm or premises, and that the owner or owners are unknown to him. ' WooiVb Dig. art. 2386-2398; Laws 1869, p. 149. ESTEAYS, . LAWFUL FE'NOES, ETC. 315 Sec. 2. At the time the taker iip appears before the justice, as aforesaid, the justice shall appoint two disinterested appraisers, who are resident householders of the county, to appraise and describe such animal or animals. Seo. 3. The appraisers so appointed, if they are not already able to describe and appraise such estray, shall, as soon as practicable, proceed to view the same, and make out a detailed description thereof, stating the marks, brands, supposed age, color, stature, and value of each animal, which description and valuation shall be signed by the appraisers, and sworn to before the justice ap- pointing them. Sec. 4. It shall be the duty of said justice immediately to re- cord in a book, to be by him kept for that purpose, a statement of the taking up, as aforesaid, together with a description, as sworn to by the appraisers, and their appraisement. Sec. 6. The justice shall, within twenty days, if the estrays have not previously been claimed and proven by the true owner, make out and transmit a certified copy of the entry in his estray book, as aforesaid, to the county recorder of the county, which shall immediately be by him recorded in a book to be kept for that purpose. Said record, and also the justice's book, to be, at all proper times, subject to examination, by all persons making application, without charge or fee. Sec. 6. If the owner of any estray animal, posted as aforesaid, shall, within one year from the time the same was posted, appear and_claim the same, he shall notify the taker up thereof, and the owner shall establish his claim to such animals, before some jus- tice of the peace of the proper township, by such evidence as shall be satisfactory to the justice. In all cases, when the claim- ant shall make satisfactory proof of ownership, the justices shall m-ake an order that he have restitution of the animal so proven, upon his paying the costs, and to the taker up, the expenses and costs that may be awarded him by the, justice; provided, the justice shall not allow any expenses for keeping an estray which the taker up, or any one under his authority, may have worked, ridden, or ,used while in his possession. Sec. 7. If the owner of any lost or stray animal shall not ap- pear and prove his property therein, within one year after the same is posted, he shall forfeit his right thereto, and the property 316 BANCROFT'S CALrPORNIA LAWYER. in such animal shall be .vested in the taker up, upon his paying into the county treasury the one-half appraised value thereof, as lixed by the appraisers, as aforesaid. Sec. 8. No person taking up any animal under this act shall sell, exchange, or dispose of the same in any manner, or remove the same from the county in which it was posted, until after the expiration of one year from the posting, and until he shall have paid the one-half appi-aised value into the county treasury. Sec. 9. If any estray animal die, or escape from the possession of the taker up, at any time before the expiration of one year from the taking up, he shall not be held liable, in any manner, on account of such animal. Sec. 10. In all cases where money has been paid into the county treasury, pursuant to the seventh section of this act, the same shall be kept in separate account by the treasurer, and safely held in trust for the space of six months after it is so paid in, to be paid over to the true owner of the estray, upon such owner, within the said time, producing to the treasurer the certificate of the proper justice, setting forth that said owner had made satis- factory proof of ownership within the six months, as aforesaid, by a like proceeding as provided for in the sixth section of this act, the treasurer retaining out of said money his own percentage. Sec. 11. All moneys paid into the county treasury under the provisions of this act, if not legally withdrawn, as above provided, shall become a part, and belong to the county school fund, and be drawn from the county treasury on the warrant of the county snperintendent, and shall be exclusively appropriated to the county school fund, and for no other purpose. Sec. 12. The owner of apy estray animal which has been legally taken up, or for the taking up of which proceedings have been commenced under this act, knowing the same to have been posted, shall not be permitted to take, lead, or drive the same from the premises or possession of the person legally possessed thereof, until proven and the charges paid ; and any person, knowingly and wilfully violating the provisions of this section, shall be sub- ject to all the penalties that he would be subject to imder the statute law ; prodded, he had no claim to said animal. Sec. 13. If any person shall take into use, or in any manner dispose of, any lost oi- estray animal, which may be found upon ESTEAYS, LAWFUL FENCES, ETC. 317 his farm or premises, or exercise any control over any such ani- mal, except in case said animal has broken into his lawful enclos- ure, without having first posted the same, or having proceeded to post any such animal, shall use, or in any manner dispose of the same, contrary to and in violation of the provisions of this act, he shall be deemed guilty of larceny, and punished accordingly. Sec. 14. K, at the expiration of one year from the taking up of any estray under this act, the justice before whom the same was posted, his successor in ofiice, or the district attorney of the county, has good reasons to believe the taker up has not duly paid into the county treasury the oue-half appraised value, as herein required, it is hereby made the special duty of said justice in whose custody the record of the estray remains, or the district attorney, to issue a notice to the delinquent requesting him to appear before the justice on a day specified, and show cause, if any he can, why judgment shall not be entered against him in favor of the county, for the sum. Such notice may be delivered to the sheriff of the county or any constable of the proper town- ship, and by him served on the party. Sec. 15. If no sufficient cause is shown, the justice shall enter judgment against the delinquent, for the amount due the county, with costs, which judgment shall be a lien upon all the property real and personal, belonging to the delinquent, from the time the same is entered. Sec. 16. In all cases wherein any services are performed by any officer or officers, under this act, their fees shall be allowed as follows, viz. : To the justice, for all services connected with the posting the animal or animals, which shall include the tran- script for the recorder, two dollars. To the county recorder, for recording the transcript, one dollar. For all services performed by the justice under this act, other than the above, and for all services performed by other ofiicers, the same fees as are allowed to civil officers in similar cases. Sec. 17. Nothing in this act shall be construed so as to apply to the counties of San Diego, Santa Barbara, San Bernardino, Los Angeles, Monterey and San Luis Obispo. The foregoing act of 1856, as to sections 2, 3, 4, 5, 6, 10, 11, 12, 13, 16 and 16, and the other sections as amended and added to, by the act of 1859, apply to all the counties except those men- 318 Bancroft's California lawyer. tioned in the commencement of this chafpter, and those named in section 16 of the act of 1856. The act of 1859 is as follows : Section 1. Section one of an act entitled " An Act concerning Estray Animals," passed April nineteenth, eighteen hundred and fifty-six, is hereby amended so as to read as follows : Section one. Every citizen, resident householder, in any county in this state, on finding any estray horse, mare, mule, jack or jenny, or any neat cattle, sheep, or goats, or any number of sach animals, upon his farm or premises, who shall desire to take up the same, shall, at any time after the expiration of twenty days, from the finding of the same, go before some justice of the peace in his town ship, or, if there be no acting justice therein, then before some justice of a neighboring township, and make oath that he has made diligent inquiry through his neighborhood to ascertain the ownership of such estrays, and that he has also put up, ten days previously, a written notice in one or more of the most public places in his township, naming the place or places, setting forth all the information in his possession, concerning the said animals, embracing a description of the marks and brands thereof, and that he lias examined the county records of marks and brands of such animal or animals upon record, and that he was about to post the same. He shall also, at the same time, make oath that the marks and brands of said animal have not been altered since they came to his farm or premises, and that the owner or owners are unknown to him. Sec. 2. Section seven of the act aforesaid is hereby amended so as to read as follows: Section seven. If the owner of any lost or strayed animal shall not appear and prove his property therein within one year after the same is posted, he shall forfeit his right thereto. "When the appraised value of any stray or strays of the same species, taken up as aforesaid, does not exceed one hundred dollars, the taker up shall apply to the justice of the peace to whom the return was made, or to his successor, for a copy of such return, appraisemeht, with marks and brands, and supposed age ; and the taker up shall forthwith deliver the same to a constable of the township, if there be any such, and if not, then to a con- stable of a neighboring township, and the constable shall imme- diately advertise such stray or strays for sale, at three public ESTRATS, LAWFUL FENCES, ETC. S19 places within the township, mentioning the time and place of sale, which shall be at least twenty days from the time of adver- tising, and the sale shall be made at some public place in the township, if of a horse kind, but, if any other kind, it shall be at tlie residence of the taker up, at which time the taker up shall deliver to the constable such stray or strays, and their increase, if any there be, and take his receipt therefor, and transmit the same to the said justice of the peace. The constable shall pro- ceed to sell the same to the highest bidder, and pay the proceeds of such sale to said justice of the peace. When the appraised value exceeds one hundred dollars, the taker up shall deliver said copy of marks and brands to the sheriff of the county in which such stray or strays were taken up, who shall advertise them in one public newspaper, if there be any published in said county, for the term of thirty days, and if not, he shall advertise by written notice, posted in three or more public places, stating the time and place of sale, at which time a,nd place the taker up shall deliver such stray or strays, and their increase, if any there be ; the sheriff shall proceed to sell the same to the highest bid- der, and after paying the amount awarded to the taker up by said justice, and for publishing, he shall pay into the county treasury the residue, reserving six per cent, for his fees, and take the treasurer's receipt for the same, and transmit it, together with the transcript of the marks and brands of the said stray or strays to the county recorder. Seo. 3. Section eight of said act is hereby amended so as to read as follows : Section eight, l^o person taking up any animal under this act shall sell or dispose of the same in any manner, or remove the same from the county in which it was posted. Any person so offending shall be deemed guilty of larceny, and pun- ished accordingly. Sko. 4. Section nine of said act is hereby amended so as to read as follows : Section nine. If any stray animal dies or es- capes from the possession of the taker up, at any time before the expiration of one year from the taking up, he shall not be held liable in any manner on account of such animal ; provided the death of such animal be not caused by maltreatment, or the es- cape of such animal be not caused by neglect on the part of the taker up. 320 Bancroft's califoenia lawyee. Seo. 5. Section fourteen of said act is hereby amended so as to read as follows : Section fourteen. It shall be the duty of the Recorder, upon the receipt of said transcript, to make an entry upon the record, showing that such animal or animals have beien sold ; or upon receipt of notice from the justice that such ani- mals have been proven by the owner, he shall make an entry of the same. It shall also be his duty to cause a list of all estrays, with a description thereof, to be posted at the door of the court-house on the first day of the court next holden after such returns have been made to his office. He shall make out a list of those who have not complied with the provisions of this act, and trans- mit the same to the district attorney, who shall issue a notice to the delinquent, requesting him to appear before the justice on a day specified, and show cause, if any he can, why judgment should not be entered against him in favor of the county for the sum of appraisement and costs. Siich notice may be delivered to the sheriff of the county, or any constable of the proper township, and by him served upon the pai'ty. Seo. 6. Section sixteen of said act is hereby amended so as to read as follows : Section sixteen. In all cases where any services are performed by any officer or officers under this act, their fees shall be allowed as follows : To the justice, for all services con- nected with the posting of the animal or animals, which shall in- clude the transcript of the recorder, two dollars ; the county recorder, for recording transcript and all other services, two dol- lars ; which fees shall be paid by the taker up. Said taker up shall be allowed five dollars for taking up such animal or ani- mals taken up at the same time, and one dollar per head, per month, for the keeping of the same, provided the same be cattle ; and two dollars, provided the same be of horse kind ; and twenty- five cents, provided the same be sheep or goats. Sec. 7. It shall be the duty of the justice of the peace, upon the receipt of the money proceeding from the sale of such stray or strays, to awara to the taker up the amount as provided for in this act, and pay the same. Also five per cent, of said proceeds to the constable, and pay the residue to the county treasurer, taking his receipt for the same, and transmit it to the county re- corder, together with the transcript of marks and brands of the said animal or animals. When the owner of such animal or ESTEAYS, LAWFUL FENCES, ETC. 321 animals shall appear and prove the same, it shall be the duty of the justice of the peace to transmit a notice of the same to the county recorder. Sec. 8. Whenever the brand or mark of any animal, claimed to be an estray under the provisions of this act, is recorded in the office of the county recorder of the county in which such ani- mal may be, it shall be the duty of any person, upon whose premises such animal may be, to give the owner of such brand, or earmark so recorded, twenty days' notice of the fact that such animal is claimed by him to be an estray. It shall be unlawful for any person to post or take up an animal as an estray under the provisions of this act, the brands and earmarks of which are so recorded, until after such notice has been given. Sec 9. The provisions of this act shall not apply to the coun- ties of Trinity, Tuolumne, Sacramento and Santa Clara. Every auctioneer, who shall sell any animal oxf the horse kind, or any mules, is required to keep a book, in which he shall regis- ter the name of each and every person bringing, or^offering, any horse or mule to be sold, and the name of the person purchasing such horse, or mule, together with the date of such sale, or sales, and a description of each horse, or mule, so sold, together with the marks and brands — said book to be a public record, open to the inspection of any person.' LAWFUL FENCES, What shall be lawful fences for the counties oi Butte, Amador, Tuolumne, Calaveras, San Diego, Nevada, Santa Barbara, Yuba, Trinity, Klamath, and Siski/you, is declared by the Statute of 1850 as follows :'— Every enclosure shall be deemed a lawful fence, which is four and a half feet high, if made of stone ; and if made of rails, five and a half feet high ; if made upon the embankment of a ditch, three feet high from the bottom of the ditch, the fence shall be two feet high ; said fence to be substantial and reasonably strong, and made so close that stock cannot get their heads through it, and if made to turn small stock, sufficiently tight to keep such ■ Laws of 1859, p. 854. - ' Wood's Dig. »rt. 2479. 21 322 BANCROFT'S CALIFOENU LAWYEE. stock out. A hedge fence shall be considered a lawful fence if five feet high and sufficiently close to turn stock.' In the counties of Sowma, Najpa, and El Dorado, the follow- ing described shall be a lawful fence, viz. : 1. Post-and-rail fence shall be made of post not less than four by six inches, set in the ground not less than two feet, with rails not less than three inches thick, plaqed not more than five inches apart, for the first three feet, and after that not more than eight inches apart, the fence to be not less than five feet high. 2. Worm fence shall be five feet high, with additional stakes and riders^ no greater space to intervene between the rails than in a post and rail fence. 3. Post and slat fence shall be of the same height and with the same space between the slats as above, in this section, the post shall not be less than twelve inches in circumference, and not less than two feet in the ground, the slats to be not less than one and a half inches thick, all well fastened to the post with twelve- penny nails. 4. Paling fence shall be of the same height, and the post of the same size, and set in the ground the same depth, as in a post-and-rail fence, with posts not more than ten feet apart. 5. Ditch fence shall be four feet, wide at the., top, and three feet deep, with post set in the embankment not over seven feet apart, with three slats not less than four inches wide, and one and a half inches thick, all securely fastened to the post ; or," Any fence which, by reliable evidence, shall be declared as strong, substantial, and as well calculated to protect enclosures as either of those described in the third section of this act, shall be a lawful fence in each of the counties named in the second section of this act." Lawful fences in the county of Contra Costa, are declared to be as follows :— A fence constructed with posts of reasonable size and strength, firmly set in the ground, not more than twelve feet apart if a rail or picket fence, and not more than eight feet if a plank fence, the rails or plank of reasonable size and strength, securely fastened to the posts to the height of four and a half feet, and reasonably close ; if a picket fence, the pickets of ordinary size and strength, strongly nailed to a rail above and one below, or driven into the ' Wood's Dig. art. 2479. ' Laws 1858, p. 128; Wood's Dig. art. 2478. ESTRAYS, LAWFUL FENCES, ETC. 323 ground and nailed to a rail above, reasonably close, and four and a half feet high ; if a ditch fence, the ditch to be three and a half feet wide at the top, and three feet deep, the embankment to be on the inside of the enclosure, with a rail, plank, or picket fence on the embankment, to the height of three feet ; or any other kind of fence equivalent in height, quality and strength to the above kinds of fences, are hereby declared lawful fences in said county.' Any horses, mules, jacks, jennies, cattle, sheep, goats, or hogs, breaking down, through, or over a fence lawful by this act, the owner of such animal or animals shall be liable for the damages done, and shall pay double damages for any subsequent trespass by such animal or animals.' "What shall be lawful fences in the counties of Scm Bernwrdvno^ Oolusa, Shasta, Tehama and Placer, are defined as follows, by the act of 1859 :— Section 1. In the counties of San Bernardino, Oolusa, Shasta, Tehama and Placer, every enclosure shall be deemed a lawful fence which is four and one-half feet high, if made of stone, and if it be made of rails, five and one-half feet high ; if the fence be a post-and-rail fence, or a picket fence, it shall be constructed of posts of reasonable size and strength, firmly set in the ground, not more than twelve feet apart, and not more than eight feet apart if it be a board fence ; the rails, boards, or pickets to be of reasonable size and strength, securely fastened to the posts, to the height of four and a half feet, and reasonably close ; if a picket fence, the pickets also to be strongly nailed to a rail above and one below, or driven into the ground and nailed to a rail above reasonably close ; if a ditch fence, the ditch to be at least two and a half feet deep, and three feet wide at the top, the embank- ment to be either on the inside or outside of the enclosure, with a rail, board or picket fence on the embankment to the height of three feet, or any other kind of fence equivalent in height, quan- tity and strength to the above kind of fences, are hereby declared lawful fences in said counties. Sec. 2. If any horse, mule, jack, jenny, hog, sheep, goat, or any head of neat cattle, shall break into any ground, enclosed by a » Laws 18B8, p. 40. 324 Bancroft's California lawyer. lawful fence, the owaer or manager of such animal shall be liable, to the owner of such enclosed premises, for all damages sustained by such trespass; and if the trespass be repeated, by neglect of the owner, or manager, of such animals, he shall, for the second and every subsequent trespass, be subject to double the damages of such trespass, to the owner of the premises, ^o- vided, also, that the owner of any premises, enclosed by a lawful fence, may take up, and safely keep, at the expense of the owner thereof, any such animal, or aningals, trespassing thereon, and if such animal or animals shall not be applied for by the owner thereof, and such damages be paid, within ten days after such taking up, the same may be posted and disposed of, under the estray law of the state ; and, before restitution shall be had by the owner of such animal, or animals, in any case, all damages done by them, and all -expense of pasturing^ keeping, and dispos- ing, shall be paid. Sec. 3. When a fence shall have been erected by any person, on the line of his land, or that for which he may have a lease for one year, or more, and the person owning the land adjoining thereto, or holding a lease of the same for one year or more years, shall make, or cause to be made, an enclosure on the oppo site side of such fence, so that such fence may answer the purpose of enclosing his ground, also, such person shall pay the owner of such fence, already erected, one half of the value of so much thereof as serves as a partition fence between them. Sec. 4. When two or more persons own land adjoining, which is enclosed by one fence, and it becomes necessary, for the pro- tection of the right and interest of one party, that a partition fence should be made between them, the other, or others, when notified of the fact, shall proceed to erect, or cause to be erected, one-half of such partition fence, such fence to be erected on (or as near as possible) the division line of such land ; and if, after notice is given by either party, and a reasonable time has elapsed, and the other party persist in refusing to erect one-half of such fence, the party giving such «otice may proceed to erect the en-' tire partition fence, and collect, by law, the proportional share of the cost of such fence, from the party, or parties, so refusing to build his or their respective portions thereof. Sec. 5. All partition fences, sepa,rating adjoining enclosures ESTRAYS, LAWFUL FENCES, ETC. 325 shall stand upon the line, and any person, or persons, when erect- ing a partition fence, and refusing to place it on the line dividing such lands, or remove it to such line, when erected otherwise than thereon, shall subject himself to one-half the cost of the re- moval, and erection thereof in the right place. Sec. 6. The respective owners, or lessees, of lands which now are, or hereafter may be, enclosed with fences, and their succes- sors in interest therein, shall keep up, and maintain, in good re- pair and condition, all partition fences, between their own and the next adjoining enclosures, in equal shares. Seo. 7. When two or more persons shall agree to cultivate lands, under one enclcJsure, neither of them shall place, or cause to be placed, any stock or animals on his, her, or their ground, to the injury or damage of the other, or others, but, for a violation of this provision, shall be liable for all damages thus sustained by the other, or others, and for a repetition of such violation, after due notice be given, and for every subsequent repetition, double damages shall be recovered ; it shall not be necessary to prove an express agreement to cultivate under one enclosure, but the fact of such cultivation shall be sufficient evidence of such agreement. Sec. 8. All acts or parts of acts inconsistent with the pro- visions of this act are hereby repealed, so far as they relate to the counties of San Bernardino, Colusa, Shasta, Tehama, and Placer. What shall be lawful fences in counties other than those al- ready mentioned, are as follows : 1. Wire fences shall be made of post not less than twelve inches in circumference, set in the ground not less than eighteen inches, and not more than eight feet apart, with not less than three horizontal wires, each one-fourth of an inch in diameter — the first one shall be eighteen inches from the ground, the other two above this one, at intervals of one foot between each, all well stretched and securely fastened from one post to another, with one rail, slat, pole or plank, of suitable size and strength, securely fastened to the post not less than four and a half feet from the ground. 2. Post-and-rail fence shall be made of post of the same size and at the same distance apart, and the same depth in the ground as above, with three rails, slats or planks, 826 BAKCROFT'S- CALIFORNIA LAWYER. of suitable size and strength, the top one to be four feet and a half frpm the ground, the other two at equal distances between the first and the ground, all securely fastened to the post. 3. Picket fence shall be the same height as above, made of pickets, each not less than six inches in circumference, not more than six inches apart, driven in the ground not less than ten inches, all well secured at the top by slats or caps. 4. Ditch and pole fence shall be made of a ditch not less than four feet wide on top, and three feet deep, embankment thrown upon the inside of the ditch, with substantial posts set in the embankment not more than eight feet apart, and a plank, pole, rail or slat securely fastened to said posts, at least five feet high from the bottom of the ditch. 5. Pole fence shall be four and a half feet high, with stakes not less than three inches in diameter, set in the ground not less than eighteen inches, and where the stakes are placed seven feet apart, there shall be not less' than six horizontal poles well secured to the stakes ; if the stakes are six feet apart, five poles ; if three or four feet, four poles ; if two feet apart, three poles, and the stakes need not be less than two inches in diameter ; if one foot apart, one pole, and stakes need not be more than two inches in diame- ter. The above is a lawful fence so long as the stakes and poles are securely fastened and in a fair state of preservation. Hedge fence shall be considered lawful when, by reliable evidence, it shall be proved equal in strength and as well suited to the pro- tection of enclosed lands as any one of the fences described in other subdivisions of this section. 6. Brush fence shall be four and a half feet high, and at least twelve inches wide, with stakes not less than two inches in diameter, set in the ground not less than eighteen inches, one on each side, every third foot tied to- gether at the top,, with one horizontal pole tied to the outside stake five feet from the ground.' Any fence which, by reliable evidence, shall be declared as strong, substantial and as well suited to the protection of enclos- ures as either of the above described, shall be a lawful fence in all the counties of this state, except Sonoma, H^apa, and El Do- rado.' The following provisions of the statute of 1855, in relation to > Wood's Dig. art 24T6, 24T7; Laws 1S58, p. 128. ESTSAYS, LAWPtJt FENCiES, ETC. 327 partition fences, apply to all the counties of the state, except San Bernardino, Colusa, Shasta, Tehama and Placer, and those men- tioned ahove in the first paragraph of this division, concerning lawful fences :' Sec. 5. When a fence shall hereafter be erected by any person on the line of his land, or that for which he may have a lease for one or more years, and the person owning the land adjoim'ng thereto, or holding a lease on the same for one or more years, shall make or cause to be made, an enclosure on the opposite side of such fence, so that such fence may answer the purpose of en- closing his ground also, such person shall pay the owner of such fence already erected one-half the value of so much thereof as serves as a partition fence between them.' Sec. 6. When two or more persons own land, adjoining, which is enclosed by one fence, and it becomes necessary for the protec- tion of the rights and interests of one party that a partition fence should be made between them, the other or others, when notified of such fact, shall proceed to erect or cause to be erected one- iialf of such partition fence, said fence to be erected on, or as near as practicable, the line of said land; and if, after notice is given by either party, and a reasonable length of time has elapsed, and the other party persist in refusing to erect, or cause to be erected, one-half of such fence, the party giving notice may proceed to erect, or cause to be erected, the entire partition fence, and collect by law one-half the cost of such fence from the other party.' Sec. 7. All partition fences separating adjoining enclosures, shall stand upon the line, and any person or persons when erect- ing a partition fence, and refusing to place it on the line dividing such lands, or to remove it to such line when erected otherwise than thereon, shall subject himself to one-half the cost of its re- moval and erection in the right place.' Sec. 8. The respective owners or lessees of lands which now are, or hereafter may be enclosed with fences, shall keep up and maintain in good repair all partition fences between their own and the next adjoining enclosures, in equal shares, so long as both parties continue to occupy or improve the same.' ' Wood's Dig. art 2480, 2481. 328 BANCROFT'S CALIFORNIA LAWYER. AOT OF MARCH 31, 1855, TO PREVENT THE TRESPASSINQ OF ANIMALS UPON PRITATB PROPERTY. Section 1. If any horse, mule, jack, jenny, hog, sheep, goat, or "any head of neat cattle, should break into any ground enclosed by a lawful fence, the owner or manager of such animal shall be liable to the owner of such enclosed premises for all damages sustained by such trespass ; and if the trespass be repeated, 'by neglect of the owner or manager of such animals, he shall for the second and every subsequent offence or trespass, be subject to double the damages of such trespass, to the owner of said prem- ises. Sec. 2. If any owner or occupier of any grounds or crops, tres- passed upon by animal, or animals, entering upon or breaking into his or their grounds, whether euclosed by a lawful fence or not, shall kill, maim or materially injure the animal or animals so trespassing, he, she or they shall be liable to the owner of such stock for all damages, and for the cost accruing from a suit for such damages, when necessarily resorted to for their recovery ; provided, the owner or occupier of such grounds and crops so damaged and trespassed upon, may take up and safely keep, at the expense of the owner or owners thereof, such animals for ten days, and if not applied for by the proper owner or owners be- fore the expiration of ten days, the same may be posted under the " estray laws " of the state, and before restitution shall be had by the owner or owners of such animals, all damages done by them, as well also as the expense of posting and keeping them, shall be paid. Any justice of the peace in the township shall have jurisdiction of all such reclamation of animals, to- gether with the damages, expense of keeping and posting the same, when the amount claimed does not exceed five hundred dollars. Sec. 3. When two or more persons shall agree to cultivate iands under one enclosure, neither of them 6hall"place, or cause to be placed, any animal on his, her or their ground, to the injury or damage of the other or others, but shall be liable for all dam- ages thus sustained by the other or others ; and if repeated after due notice is given, and for every such subsequent repetition, double damages. It shall not be necessary to prove any express ESTEAYS, LAWFUL FENCES, ETC. 329 agi'eement to cultivate under one enclosure, but the fact of such cultivation shall be deemed sufficient evidence of such agreement. FORMS. Notice to he Posted. ESTRAY NOTICE. I^otice is hereby given, that on the fifth day of June, 1859, a horse was found on my premises, in township, Ala- meda county, said horse being a bay horse, fifteen hands high, with four white feet, white nose, branded K on the left hip, and a half-breed, which I have taken up. The owner is requested to call and prove property, pay charges, and take away the same. June lOtb, 1859. John Baet. Affidomit hefore a Justice. County of Alameda, ss. ' John Bart, being duly sworn, says, that on the fifth day of June, 1859, he found upon his premises, in township, county of Alameda, a half-breed bay horse, wifh four white feet, white nose, and branded K on the left hip ; that he has made diligent inquiry throughout his neighborhood to ascertain the ownership of said stray horse, but has not been able to learn any thing whatever in regard to the same ; that ten days ago he posted a written notice, of which the annexed is a copy, in three public places in said township, one of which was on the premises of deponent, one at the tavern of Jabez Prime, and one at the office of G. H., justice of the peace; that he has examined the county records of marks and brands, and did not find the said brand of said -horse upon record. Deponent further states that the said brand upon said horse has not been altered since he came upon the premise^ of depo- nent, nor has any other brand or mark been put upon him ; that the owner or owners of said horse are unknown to deponent, and that deponent has no other knowledge concerning the said horse than that herein given ; that since said horse came upon the prem- ises of deponent, he has been in his possession, care and keeping, and that it is the desire of deponent to take up and post the said animal. , John Baet. Sworn before me, June 15, 1869, | G. H., Justice of the Peace, > for township, Alameda county. ) 330 BANCBOPT's. CALIFOBNIA LAWYER. Appomtnhent of Appraisers of Estray Anvmals. In the mattei' of the astray horse / to-vrashiD posted by John Bart; f G. H., Justice. John Bart having this 15th day of June, 1859, appeared be- fore me and made affidavit as to a certain bay horse found upon his premises in this township, June 5th, 1859, and that he has put up written notices of the same, according to law, which affi- davit has been duly filed with me, 1 do hereby appoint A. B. and C. D., appraisers, they being resident householders of this county, to appraise and describe said animal. G. H., Justice. Appraisement of Estray Animal. In the matter of the estray horse posted by John Bart. We, the undersigned, the appraisers in this matter, duly ap- pointed by G. H., justice of the peace of this county, do certify that on the 16th day of June, 1859, we proceeded to view the said horse, and we find, according to our best knowledge and judgment, that the said horse, being a bay horse, fifteen hands high, with four white feet, white nose, full mane and tail, and branded with the letter K on the left hip, is about ten years of age, and of the value of seventy-five dollars or thereabouts. June 18th, 1859. A. B. CD. County of Alameda, ss : A. B. and C. D., the appraisers named in the above certificate, being duly sworn, each for himself says, that the matters therein set forth are true. Sworn before me, June 17th, 1859, ) A. B. G. H., Justice, j 0. D. Order of HesUtution of Estray. John Bart having taken up a bay horse found on his premises, and having duly posted the same, and filed his aflidavit thereof witli me on the 15th day of June, 1859, and M. N. now appear- ing before me on this 25th day of May, 1860, claiming to be the owner of said horse, and having made satisfactory proof of such ownership, I do hereby order that the said horse be delivered lip to said M. N., on paying the costs of the proceeding before me, taxed at dollars, and the sum of ESTRAYS, LAWFUL FENCES, ETC* 331 dollars awarded by me to said Jolin Bart, as his expenses for keeping said horse [or, without any payment to said John Bart, that he has worked, ridden and used said estray horse sufficiently to compensate for all expenses of keeping]. Gr. H., Justice. JVoUce of /Sale. [TTNDER section 1 OF ESTRAT ACT AS AMENDED.] E STRAY SALE. By virtue of an order of sale to me directed by G. H., justice of the peace of township, county of Alameda, notice is hereby given, that 1 will oflfer for sale at public auction, on the 25th day of June, 1860, at twelve o'clock M., in front of the office of said justice in said county, one bay horse, branded K on the left hip, the same being an estray taken up on the 5th day of June, 1859, by John Bart, and duly posted, to pay the sum awarded to said John Bart by said justice, for the expense of keeping said horse and the costs. May 25th, 1859. P. Q., constable of said township. [^Or, where the appraised value is over hwad/red dollars']. E. S., sheriff of said county. Notice to Show Cause. Justice's Court, township. County of Alameda. The People, &c., exrel. X.. Y., district' attorney of said county, against John Bart. The People of the State of California to John Bart, defendant : Take notice, that you are required to appear before G-. H., justice of the peace, at his office in the county of Alameda, on the day of June, 1860, to show cause, if any you can, why judgment should not be. taken against you for the sum of dollars, the one-half of the appraised value of a certain bay horse taken up by you on the 5th day of June, 1859, with costs, [or, under the act of 1859, the sum of dollars, the appraised value of, &c., &c.] June , 1860. Swipt Beown, District Attorney. 332 BAiieROFT'S CALirOENIA LAWYER. CHAPTER XYIII. EXECUTOES AND ADMINISTEATOES. OUTLINE OF CALIFORNIA PROBATE SYSTEM. The duties and liabilities of executors and administrators being so nearly alike, are considered , together in this chapter ; and in connection herewith the reader is referred to the chapter on Wills. The objects of administering upon the estate of a deceased person are, principally, to collect what may be owing to him, to pay what he may legally owe, and in some cases to establish record evidence of the title to real estate in the heirs or devisees. Where these objects can be safely and legally accomplished without the formula of proceedings in the Probate Court, and the will of the deceased does not render it necessary, administration may be dispensed with. The right of administration upon an estate is obtained from the Probate Court of the county in which the deceased resided, by iiling a petition stating the facts, which must be sufficient to give the court jurisdiction ; and after due notice has been given, upon the day appointed, a hearing is had before the court, and if the applicant is so entitled, the court makes an order granting him the administration ; and upon filing a bond approved by the judge, in a penalty double the amount of the personal property of the deceased, he receives his letters of administration and is qualified to act. The same general mode of procedure is necessary for an exec- utor, except that, in addition to the petition, he files also the will of the deceased, which must be duly proved and admitted to probate ; and where the will in terms dispenses with the bond, the executor is entitled to letters testamentary without giving any security. When the executor or administrator has qualified, he becomes EXECUTOES AND ADMINISTBATOES, 833 liable for the safe keeping, protection and proper management of the estate, and for the collection of whatever property is due to the deceased. The whole real and personal estate is vested in the heir, but the executor or administrator is entitled to the possession until the estate is settled or delivered over by the order of the court to the heirs or devisees. He is required immediately to advertise in some newspaper of the county, for as long a time as the court shall direct, at least once a week for four weeks, a notice to all creditors of the de- ceased, to present their claims to him, either at his residence or place of business, within ten months from such publication. If such claims be not presented within ten months from the first publication of the notice, or within ten months from the day they fall due, they are forever barred, and the executor or administra- tor has no right to pay them. The claim, when presented, must be accompanied by the written affidavit of the claimant, and by vouchers, where such exist, to establish and prove the claim. . It is held by the Supreme Court that this course must be pursued even when the claim is secured by a mortgage upon real estate. If the claim be a just one, the administrator or executor should endorse his approval upon it, and the claimant should then, with- out delay, present it to the probate judge for his approval, which being obtained, the claim should be filed in the Probate Court, to be paid in due course of administration ; subject, however, to the right of the heirs to question the same, whenever thereafter the court is asked to order a sale of real estate, to pay the debts of the deceased. If the claim be rejected by the executor or administrator, or by the judge, a suit must be brought upon it against the executor or administrator, within three months after such rejection, or within three months after the same becomes due, or it will be forever barred. - It is not lawful to allow any claim that is barred by the statute of limitations — or in popular language — outlawed. If the executor or administrator doubts the correctness of a claim, he may have it determined by a referee selected under the approval of the probate judge. 33 i Bancroft's California lawyer. At evCTy term of the court during the pendency of the adminis- tration, the executor or administrator is required to file in court a statement of the claims presented, with the names of the cred- itors, the amount, when due, and whether approved or rejected by him. The next step in the administration, is to file a sworn inven- tory of all the property of the estate which has come to the knowledge and possession of the executor or administrator, and to have the same appraised by appraisers to be appointed for that purpose by the court ; and if this be neglected, it is the duty of the court to revoke the letters of the executor or admin- istrator. When the appraisers return the inventory with the appraise- ment, the same is filed in the court ; and if there be a family, application should be made to the court for an order setting aside for the family the homestead and all property exempt from execution ; and making an allowance out of the estate for the support of the family. An allowance for the family support may also be made at the time of granting letters, to serve until the inventory comes in. As soon as the probable amount of legal indebtedness of the deceased can be ascertained, if the amount of money of the estate will not prove sufficient to pay the same, and also the allowance to the family and the expenses of administration, the executor or administrator must proceed to sell enough of the- property of the estate to raise a fund for that purpose. This sale can only be made upon the order of the court to be obtained after petition, and notice of the application duly pub- lished ; or, upon the hearing of this application, all persons inter- ested may come in and make opposition; and the heirs may question any claims against the deceased, which have been duly presented and allowed, and ranked as established debts against the estate, except where the will especially directs the executor to sell ; but in all cases a report of sale must be made to the Pro- bate Court for its confirmation, before it becomes complete and binding. No real estate can be sold to pay debts until the per- sonal estate is first disposed of. At the third term of the court after his appointment, and thereafter whenever required, the executor or administrator must EXECUTORS AJSTD ADMINISTRATORS. 835 render, for the information of the court, an exhibit under oath, showing the amount received and expended by him, the claims presented against tbe estate, and the condition of the estate. When the ten months after the first publication of notice to creditors have expired, the estate may be closed if it be in a condition for that purpose. But the executor or administrator is allowed one year, at which time he should make a report and render his account, and if the estate is not then in a condition to be closed he should ask the court for an extension of time. He should render an annual account as long as the administration is pending, and after the lapse of one year may be required to render an account at any time. "Whenever an account is rendered, it should be passed upon by the court after notice duly given, so that all persons interested in the estate may come in and make their opposition. When the account is settled the court makes an order for the payment of the debts, as the circumstances of the case may require. If there be not money enough to pay all the debts, a payment ^o rata is ordered. The executor or administrator is not obliged to pay any debts until the year has expired and the order of the court is made for that purpose, except the funeral expenses, the expenses of the last sickness, and the allowance to the family of the deceased, which latter he must pay as soon as he has funds of the estate in hand sufficient for that purpose. It is a common practice, however, to pay debts that have been duly allowed and approved before that time, if he is confident that they will not be finally disallowed, and that there will be money enough to pay in full all the debts and claims against the estate, and to/ have the final order of the court for the payment of debts so paid and those to be-paid. Such payments, however, are made upon the judgment and at the personal risk of the ad- ministrator or executor. Sometimes he takes security to indem- nify himself against any loss, and the Supreme Court has held that a bond given for such a purpose will be good.' When the account is rendered and settled, and a payment of debts ordered, if the amount of debts equals or exceeds the > Comstock V. Breed, et al., Jannnry Term, 1859. 336 banojioft's California lawyer. amount of estate on hand, there being no further estate to admin- ister upon, the executor or administrator, after making such pay- ments, should report the same to the court and be at once finally discharged. If, however, there be a surplus, he should apply for an order of distribution of the estate to the heirs or devisees, and for this purpose, publication being made for four weeks, the heirs or dev- isees, and parties interested, should appear at the time appointed, that the court may ascertain to whom and in what proportions the balance of the estate belongs. Upon the hearing of this matter, it may be necessary to make division of real estate ; and unless the parties can agree among themselves as to a division, -the court will appoint commissioners to ascertain the character and value of the land, and to make a partition of the same, and report to the court. After the division and distribution is settled upon, and the heirs and persons entitled are ascertained, the court makes its decree of distribution. The executor or administrator should then deliver up to the person or persons entitled, respectively, all the property in his hands less his own commissions, and t^ke receipts and acquit- tances therefor. The commissions are seven per cent, upon the first thousand dollars' worth of property administered upon, five per cent, upon the next ten thousand, and four per cent, upon the balance. The amount of commissions should be ascertained and settled by the Probate Court in the final account of receipts and dis- bursements of the executor or administrator. In the case of public administrators the commissions are four per cent, upon the whole estate. After delivering up and paying over the balance of the estate, the executor or administrator should report the same to the court, and file the receipts and acquittances; and is then entitled to an order of final discharge. The foregoing is an outline of the office and duties of an ex- ecutor or administrator under the California probate system, which must be necessarily very brief for the purposes of a work of this character. For a full and complete collection of all the statutes and de- EXEOUTOES AND ADMI^TISTEATOES. 337 cisions of the Supreme Court upon this subject, and also upon the subject of guarditos and the estate of minors, with forms and directions of proceeding, the reader is referred to " The Cal- ifornia Probate Practice," published in San Francisco by the author of the present work, from which a few forms are taken to conclude this chapter. FORMS. Petition for Probate of Will in the County of which Deceased was a Resident at the time of his Death. To the Honorable the Probate Court [or, the Probate Judge] of the City and County of San Francisco, State of California : Your petitioner, John Clay, of San Francisco, herewith pre- sents to this court the last will and testament of Henry Clark, deceased, and showeth as follows : That said Henry Clark died, in the county of Los Angeles in this state, on or about the fifth day of January, 1858, being at that time a resident of the city and county of San Francisco, and leaving real and personal estate of the value of ten thousand dollars. That Mary W., the wife, and Alexander C, the father of the deceased, residents of this county, are the only heirs at law. That John Black and Susan Black, minors, residing in the county of Sacramento, and the said wife and father of said de- ceased and your petitioner are the devisees under said will. That your petitioner and Richard Ross are named therein as executors, and the said Richard Ross, intending to decline said trust, presents and files herewith his renunciation tliereof. "Wherefore your petitioner prays that said will may be admit- ted to probate, and letters testamentary issued to him, and that this honorable court would for that juirpose appoint a day, and order notice of the same to be given by publication, and that citations may issue to the heirs residing in this county and all other necessary and proper orders may be made in the premises. And your petitioner will ever pray, &c. April 12th, 1858. John Geay. Petition for the Probate of a Will in the County in which De- ceased may home died., leaving Estate therein and not being a Resident of this State. To the Honorable the Probate Court [or, the Probate Judge] of the County of Sacramento, State of California : The petition of Albert Bull, of the city of Sacramento, respect- fully showeth — That John Porter died in this county on the first day of Feb- 22 338 BANCROFT'S CALIFORNIA LAWYBE. ruary last, leaving personal estate tkerein to tlie value of twelve thousand dollars, or thereabouts. That said deceased was at the time of his death a resident of the state of Kentucky, at which place all the heirs of deceased reside, as your petitioner is in- formed and believes. That said deceased left a will wherein your petitioner and Peter Thomas and James Rose are named as executors, wliich is here- with presented and filed in this court as the last will and testa- ment of said John Porter, deceased. And your petitioner prays that the same may be admitted to probate, and that letters testamentary thereon may be issued after proper hearing and proof, and for tliat purpose, that a day may be appointed, and due notice be given by publication, and that citations issue to said executors [insert names of those execu- tors residing in the county], and, that all other orders be made, and proceedings be had, in the premises, according to law. Dated, Sacramento, February 5th, 1858. Albekt Bull. Petition for Probate of Will in the County in which any Estate may be, Deceased having died out of the Slate, and not being a Resident thereof at the imne of his Death. To the Probate Court [or, the Pi'obate Judge] of El Dorado County, State of California : The petition of Abel "Williams respectfully shows to this court — That your petitioner has received information of the death of Andrew Eeed, a resident of the territory of Oregon, who died at his residence in the said territory on the tenth day of July, 1857. That said deceased left a will in which, as your petitioner has learned within the last thirty days, he is named as one of the executors, and which is herewith presented and filed in court. That said deceased left estate in this county and in other coun- ties of this state, but no application for letters testamentary upon said will has been made in any other county. Wherefore your petitioner would humbly pray that said will may be admitted to probate, and that letters testanieiitary thereon may be issued to him, and for such purpose that a time be ap- pointed and all persons interested be notified and cited as required by law, and that all other necessary orders in the preuiises be made by this honorable court. Abel WiLLLiMs. EXECUTORS AND ADMINISTEATOBS. 339 Letters Testclmiemta/ry^ State of California, City and ) County of San Francisco. ) Tlie last will of Henry Clark, deceased, a copy of which is hereto annexed, having heen proved and recorded in the Probate Court of the city and county of San Fi-ancisco, John Clay, who is named therein, is hereby appointed executor. "Witness : William Duer, clerk of. thB Probate Court, of [l. s.] the City and County of San Francisco, with the seal of the court affixed, the 26th day of April, A. D. 18.58. By order of the Court. William Duee, Clerk. State of California, City and ) County of San Francisco, j I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California ; that I will faithfully discharge the duties of executor of the estate of Henry Clark, deceased, according to law. Subscribed and sworn \or, affirmed, as the case may be] before me, this 26th day of April, 1858. John Clay. D. P. Belknap, Deputy Clerk of the Probate Court. PeUUonfor Letters of Admmisf/ration. To the Honorable, the Judge of the Probate Court of the City and County of San Francisco : The petition of Sarah Mark, widow of said deceased, respect- fully slioweth, that Harris Mark died in the county of Alameda, state of California, on or about the 3d day of January, A. D. 1858. That said deceased, at, or immediately previous to the time of his death, was a resident of the city and county of San Francisco, state of California, and that he has left estate in tliis city and county, and within the jurisdiction of this court. [ Vai^ this paragraph according to the circumstances under the pro- visions of section 2.] That due search and inquiry have been made to ascertain if said deceased left any will and testament, but none has been found, and according to the best knowledge and belief of your petitioner, said deceased died intestate. Your petitioner further shows that the estate of said deceased, so far as she has been able to ascertain the same, is of about the value of twenty thousand dollars, and consists of as follows : real estate in the city and county of San Francisco, of the value of $15,000, or thereabouts ; personal estate, stock in trade in the painting business, about $3,000; notes, debts, &c., about $2,000; that the only heirs at law of said deceased, so far as known to 340 baetcboft's California lawyeb. your petitioner, are Charles, Sarah and Mary Ann, minor chil- dren of said deceased. "Wherefore, your petitioner prays, that a day of court may be appointed for hearing this application, that due notice thei-eof be given by the clerk, by posting notices according to law, and that upon said hearing, and the proofs to be adduced, letters of ad- ministration upon said estate may be issued to your petitioner. And your petitioner will ever pray, &c. Saeah Maek. Dated January 25th, 1868. State of California, ) . City and County of San Francisco, j Sarah Mark, the above-named petitioner, being duly sworn, says that she has read the foregoing petition, and knows the con- tents thereof, and thart the sanie is true of her own knowledge, except as to the matters therein stated to be on information or belief, and as to those matters, she believes it to be true. Saeah Maek. Subscribed and sworn to before me, this 25th day of January, 1858. E. P. Peokham, Notary Public. Bond of Adm,mist/rator or Exeawtor. Know all men by these presents, that we, Sarali Mark, prin- cipal, and J. C. Horan and Edward Willett, sureties, are held and firmly bound to the state of California, in the sum of ten thousand dollars, lawful money of the United States of America, to be paid to the state of California, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, ad- ministrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals and dated this 8tli day of February, 1858. The condition of the above obligation is such that, whereas the above bounden Sarah Mark has been appointed administratrix [or, executrix] of the estate of Harris Mark, deceased, by the or- der of the Probate Court of the city and county of San Francisco, state of California, of this date. Now therefore, if the said Sarah Mark shall faithfully execute the duties of her trust according to the law, then this obligation to be void, otherwise to remain in full force and eff'ect. Saeah Maek. J. C. HOEAN. Sealed and delivered in the ) Edward Willett. presence of S. L. Lupton, :! L. S. L. S. L. S. EXECUTORS AND ADMINISTBATOBS. 341 State of California, ) City and County of San Francisco, j ^^' J. C. Horan and Edward Willett being duly sworn, each for himself says, that he is a freeliolder resident in this state, and is worth the said sum of ten thousand dollars over and above all his just debts and liabilities, exclusive of property exempt from execution. J. C. Hoe an, ' Edwaed Willett. Sworn before me, this 8th day of February, 1858. ) S. L. Ltjpton, Deputy Clerk, j {Endorsement.'\ Approved this 8th day of February, 1858. T. W. Feeelon, County Judge. Order for Letters after Opjtosition. State of California, ] t -o r. j. r\ City and County of San Francisco. } ^° ^'"^^^ ^°"''^- In the matter of the Estate of [ Order appointing Admin- Isaac Levick. j istrator. The petition of Robert C. Rogers, public administrator, pray- ing for letters of administration upon the estate of said deceased, coming on to be heard, and due proof having been made to this court that the clerk had given notice thereof by causing notices to be posted up in at least three public places in the city and county, one of which was at the place where the court was held, stating the name of the deceased, the name of the applicant and the term of the court at which the application would be heard, the same having been given at least ten days before the hearing, and that the notice was in all respects according to law ; and the hearing of the same having been duly continued to this day, and it being proved by the oatli of the petitioner and of S. Hub- bard and A. C. Forbes, that the said Isaac Levick died on or about the twelfth day of September, 1857, at sea, and that he was a resident of the city and county of San Francisco at the time of his death, and has left estate in this city and county, and within the jurisdiction of this court; and Thomas Trounce, a per- son interested in said estate, appearing to contest the application of the said petitioner, having been heard, and it appearing to the satisfaction' of the court that the allegations in the petitions of the said Rogers are true : It is ordered that the said Robert C. Rogers be and he is here- by appointed administrator of the estate of the said Isaac Le- vick, deceased, and it is ordered that letters of administration upon the estate of the said deceased issue to the said Rogers, the public administrator. T. W. Feeelon, County Judge. 342 BANCEGFT'S CALIFORNIA LATVYEE. Another form of the same. State of California, _ I In Probate Court. City and County of San Francisco. ) In the matter of the Estate of ) John C. Cabaniss, deceased, j And now this tliirty-tirst day of May, in the year of our Lord one thousand eight hundred and fifty-eight, at the May term of the Probate Court for the city and county of San Francisco, be- gun and holden at the City Hall in said city and county, on the third Monday of May, to wit : on the seventeenth day of May, in the year aforesaid; the petition of Kobert ('. E.ogers, public administrator of, in and for the city and county of San Francisco aforesaid, praying for letters of administration on the estate of John C. Cabaniss, late of San Francisco, deceased, to be issued to him, and the written opposition thereto of Moses C Noble, and also the petition of said Noble, praying for letters of admin- istration to be issued to himself on said estate, coming on to be heard at the same time ; and it appearing to the court that due proof by affidavit on file had been made, that nf>tice had been given of both said petitions according to law, and legal proofs having been made of all the allegations contained in said pe- tition of said Eobert C. Eogers, public administrator, as afore- said ; and the allegations and proofs of the opponent and pe- titioner Noble having been heard and fully considered by the court at the difi^rent sessions of said court, held for the hearing thereof as well as other matters : It is therefore ordered and decreed, that the petition of said Moses G. Noble, praying for letters of administration on the es- tate of said John C. Cabaniss, deceased, be denied, and the same is hereby denied, and the opposition of the said Noble to the petition of said Rogers, public administrator as aforesaid, be and the same is hereby overruled. And it is hereby further ordered, adjudged and decreed, that letters of administration on the estate of said John C. Cabaniss, de- ceased, be issued to the petitioner, Eobert C. Rogers, public ad- ministrator of the said city and county of San Francisco. M. C. Blake, County Judge. Letters of Administration. State of California, ) City and County of San Francisco, j Sarah Mark is hereby appointed administratrix of the estate of Harris Mark, deceased. Witness, William Duer, clerk of the Probate Court, with [l. s.] the seal of the Probate Court of San Francisco county, affixed this 8th day of Febi'uary, A. D. 1S58. By order of court, "Wujliam Dukk, Clerk. EXECUTOES AND ADMINISTBATOBS. 343 State of California, ) City and County of San Francisco, j I do solemnly swear, that I will support the constitution of the United States and the constitution of the state of California ; that I will faithfully discharge the duties of administratrix of the estate of Harris Mark, deceased, according to law. Saeah Maek. Subscribed and sworn [or, affirmed, as the case may he] before me, this eighth day of February, 1858. T. W. Feeelon, Judge of the Probate Court. Order Bevohvng Letters for Failure to gwe New Bond. In the Probate Court of the City and County of San Francisco \ In the matter of the Estate ) of J. Willard Barker, deceased, f James Thompson, executor of the last will and testament of J. "Willard Barker, deceased, having neglected to give new sure- ties, to the satisfaction of the judge, on his bond as executor, as aforesaid, within the time prescribed by the order of this court of the fifteenth of March inst., it is now ordered, that the ktters testamentary of the estate of said Barker, deceased, heretofore issued to said Thompson by this court, be, and the same are hereby revoked. San Francisco, March 22, 1858. T. "W". Feeelon, County Judge. Order for Special Betters. In the Probate Court, City and County of San Francisco, State of California. In the matter of the Estate of ) Hamilton Bowie, deceased. \ It appeai'ing to me, upon the petition of Mrs. Mary Bowie, widow of the said Hamilton Bowie, deceased, that said deceased departed this life on or about the twenty-first day of September, A. D. eighteen hundred and fifty-six, in the republic of Nicara- gua, Central America, and that he was, at the time of his death, a resident of the said city and county of San Francisco, and that he died intestate, leaving property and estate in said city and county, and that said petitioner is the widow of said deceased, and prays general letters of administration on said estate, and in the mean time special administration thereon ; and the said alle- gations in said petition appearing to be true by witness, and it likewise appearing that there has been delay in taking out letters of administration on said estate, it is ordered that Monday, the tenth day of May, 1858, be appointed for the hearing of said ap- '64A: banceoft's califobnia lawyee. plication for general letters of administration upon said estate, and that until such general letters be granted, that said Mary Bowie be appointed special administratrix of said estate, with full power and authority to collect and take charge of the estate of the deceased, in whatever county or counties the same may be found, and to exercise such other powers as may be necessary for the preservation of said estate, and that letters as such special administratrix shall issue to said Mary Bowie, on giving bond in the sum of seven thousand dollars, with sureties to the satisfaction of the undersigned probate judge. San Francisco, April 24, 1858. M. C. Blake, County Judge. A^oiniment of Appraisers. In the Probate Court, of the City and County of San Francisco : In the matter of the Estate of I Alexis Williams, deceased, j Letters of administration having been granted to I. Lawrence Pool, and application being made to the court for appointment of appraisers, to appraise the estate of said deceased : It is hereby ordered that C. C. P. Parker, George Jones and Samuel Swift, three disinterested persons, competent and capable to act, be appointed such appraisers. San Francisco, April 1st, 1858. M. C. Blake, Probate Judge. Imuentory, with the Affidavits, (&g. Probate Court, City and County of San Francisco : In the matter of the Estate of ) Alexis Williams, deceased, f I, William Duer, county clerk of the city and county of San Francisco, and ex officio clerk of the Probate Court, do hereby certity that C. C. P. Parker, George Jones and Samuel Swift have been duly appointed appraisers of the estate of Alexis Wil- liams, deceased, by order of the court, duly entered and recorded on the 1st day of April, A. D. 1858. P I Witness my liand, and seal of said Probate Court, this L^- ^--l 1st day of April, 1858. William Duee, Clerk. State of California, ) City and County of San Francisco, j *"^ " C. C. P. Parker, George Jones iind Samuel Swift, duly ap- ixjinted appraisers of the estate of Alexis Williams, deceased, being duly sworn, each for himself says, that he will truly, hon- EXECUTOBS AND ADMINISTEATOES. 345 estly aud impartially appraise the property of said estate which shall be exhibited to him, according to the best of his knowledge and ability. Subsciibed aud sworn before me, this ) C. C. P. Pakkke. 17th day of May, 1858. ^ Geoege Jones. John Hanna, Deputy Olerk. ) Samuel Swifi'. Inventory and Appraisement. In the matter of the Estate of ) Alexis Williams, deceased. \ BEAL ESTATE. 1. A certain lot of land in the city and county of San Francisco, described as follows, etc., etc., valued at - . . . $10,000 00 2. A certain tract of land in the county of Alameda, described, etc., etc., valued at - - 5,000 00 PBRSONAL ESTATE. 3. Promissory note, made by John Hoyt, dated May 1, 1857, for $1,000, endorsed by "Wm. Pitt. Payment of $200 receipted. Valued at - 800 00 4. Promissory note, Peter Hanks, $375, considered worthless 5. One horse, valued at - 200 00 6. One-half partnership interest in the house of Hol- man, Williams & Co., valued at - - 6,000 00 7. Clothing and furniture, small items, valued at - 47 00 8. Moneys that have come to the hands of the ad- ministrators . . - • - 1,083 25 $22,130 25 State of California, ) ^^ . City and County of San Francisco, j * I. Lawrence Pool, administrator of the estate of Alexis Wil- liams, deceased, being duly sworn says, that the annexed inven- tory 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 money belonging to said deceased, and all just claims of said deceased against this deponent. I. Laweenoe Pool. Subscribed and sworn to before me, this 17th day of May, A. D. 1858. William R. Satteklee, Deputy Clerk of the Probate Court. I 346 BANCEOrT'S CALIFORNIA LAWYER. "We, the undersigned duly appointed appraisers of tlie estate of Alexis Williams, deceased, do certify that the property men- tioned in the foregoing appraisement has been exhibited to us, and we appraise the same at twenty-two thousand one hundred and thirty dollars and twenty-five cents. May 2bth, 1858. C. 0. P. Paekee. Geoege Jones. Samuel Swift. Estate of Alexis Williams, deceased. To Parker, Jones and Swift, Appraisers, Dr. To compensation for services in appraising said estate, items as follows : 2 days' services, at $5 per day each - $30 00 Necessary disbursements, as follows : Faro to Alameda county and return - - 1 50 $31 50 Received payment, C. 0. P. Paekee. Geoege Jones. Samuel Swift. This bill of appraisers' fees allowed this 20th May, 1858. M. C. Blake, Probate Judge. State of California, , - - - -' "^ ss : City and County of San Francisco, j ' C. C. P. Parker, George Jones and Samuel Swift, the apprais- ers above named, being duly sworn, each for himself says, that the foregoing bill of items is correct and just, and that the ser- vices have been duly rendered as therein set forth. Subscribed and sworn to before me, ) C. C. P. Paekee. this 20th day of May, A. D. 1858. V Geoege Jones. Benj. E. Baboock, ) Samuel Swift. Deputy Clerk. Petitibnfor Allowcmoe for the Siipport of Family. [Title, c&c, of Estate am,d Cov/rt.'] The petition of C. B., widow of A. B., deceased, respectfully showetn : That letters of administration have been granted herein to E. F. [or, that no letters of administration have yet been granted upon said estate], and that no inveni ory has been as yet returned to rhis court. That your pe;itioner, and G. II., J. K. and L., the minor chil- EXECUTORS AND ADMINISTEATOES. 847 dren of said deceased, are without estate of tlieir own, and wholly dependent on the estate of said deceased for maiutenance ; that said estate is amply able to provide an allowance to your peti- tioner for her support and that of her said minor children, to the extent of $250 per month, and which is a reasonable amount for that purpose, according to their circumstances and accustomed mode of life. "Wherefore, your petitioner prays that an allowance out of said estate, to said amount of $250 per month, for the support of the family of deceased until the return of said inventory, be made by order of this court. C. B. Sworn to, &c. Order 8ettmg Ajpa/rt Property. {Title, &c.] _ The petition of 0. B., being filed herein and presented to this court, and it appearing to this court that the inventory of the estate of deceased has been returned and filed, the same having been duly appraised, whereby it appears that said estate is pos- sessed of property to the amouut in value of $20,000, and it fur- ther appearing by the said petition of C. B., the widow of de- ceased, that the amount of property included in said inventory, which is by law exempt from execution, is insufficient for the support of the said widow and the minor children of deceased, and that the sum of $250 per month heretofore allowed by this court is insufiicient for the purposes of such maintenance ; and it further appearing by said petition that the debts of said estate are moderate, and do not exceed, in all probability, the sum, of $1,000, it is hereby ordered, that the order heretofore made in this estate, granting an allowance to the widow and children of deceased of $250 per month be vacated, and that an allowance of $300 per month be made from henceforth, and until the fur- ther order of the court, to be paid to said widow, monthly, on the first day of each month, by said administrator. And it is further ordered, that the homestead of said deceased, consisting of a cer- tain lot with the dwelling-house thereon, situate, lying and being in the city of San Francisco, and described as follows, &c. : \in- sert desoription] and also the following articles mentioned and appraised in said inventory, to wit : \vrhsert the a7'tioles] be set apart for the use of the family of deceased, the one-half part of ail which property to set apart, shall belong to the said widow, and the remaining half, in equal shares, to John, James, Sarah, Ellen E., and Mary Ann, the minor childi'en of deceased. M. 0. Blake, Probai e Judge. 348 banceoft's califoenia lawyee. Ord&rfor AUowcmce to Famiby. In Probate Court, City and County of San Francisco. In the matter of the estate of ) John Hart, deceased. j It appearing to the court on the application of the executrix and executor of said estate, that said testator died leaving a widow and five children, four of whom are minors, and three of the minors females, and that the said widow and children are not possessed of any separate estate, and tliat a reasonable allowance out of the said estate is necessary for their support, it is tliere- fore ordered by the court that the sum of twenty-live hundred dollars be allowed and set apart for the support and maintenance of said widow and minor children, for one year for and after the date of the letters testamentary herein, and also that the property belonging to said estate and exempt from execution shall also be set apart and reserved for the use of said widow and minor chil- dren. T. W. Feeelon, County Judge. Order of Publication of Notioe to CredMors. City and County of San Francisco. In the matter of the Estate of ) Valentine Castro, deceased. j It is ordered, that the notice to the creditors of the said Valen- tine Castro, deceased, requiring all persons having chiims against the said deceased, to exhibit the same with the necessaiT vouchers, according to law, to be given by publication in the Daily Alta Californior-a, newspaper printed and published in the city and county of San Francisco, twice a week — for the period of ten weeks. T. W. Fkebxon, County Judge. Notice to Creditors, with Affidavit of Publication. Estate of Valentine Castro, deceased. l^'otice is hereby given by the undersigned, administrator of the above-named estate, to the creditors of, aftd all persons having claims against said deceased, to exhibit the same, with the neces- saiy vouchers, within ten months from the publication of this notice, to the undersigned, at his office, Nos. 36 and 38 Eattery street, in the city of San Francisco. Geo. C. Johnson, Administrator. San Francisco, February 1, 1858. City and County of San Francisco, ss : A. D., printer [or, jjublisher], of the Daily Evening Bulletin^ EXECUTORS AND ADMINISTRATORS. 8i9 a newspaper published in said city and county, being duly sworn, says, that the notice to creditors of the estate of Valentine Castro, of which the annexed is a copy, was published in said paper twice a week, for the period of ten weeks, from the first day of February, 1858, to the nineteenth day of April, 1858. A. D. Sworn before me, April 20, 1858, ) Wm. F. Swaset, Notary Public, j Creditor's Claim. Ill the Matter of the Estate of i Jabez Coit, deceased. Letters of administration upon the above-named estate having been granted to J. H. Fish, the undersigned presents his claim against said estate, with the necessary vouchers, to said J. H. Fish, administrator, for approval, as follows, to M'ii': Estate of Jabez Coit, To Robert C. Johnson, Dr. To amount of promissory note herewith filed, dated January 5, 1858, - $500 00 To interest on same, from January 5, 1858, at 2 per cent. i per month, till paid, To cash loaned. May 1, 1856, - - - 50 00 To agreed price of horse, sold and delivered, March 6, ,185T, - 250 00 City and County of San Francisco, ) . State of California, j Robert C. Johnson, whose foregoing claim is herewith presented to the administrator of said estate, being duly sworn says, that the amount thereof, to wit, the sum of eight hundred dollars, Avith interest as above set forth, is justly due to this claimant, that no payments have been made thereon, and there are no ofi"sets to the same to the knowledge of this claimant. Robert C. Johnson. Subscribed and sworn to before | me. May 25,A. D. 1858, f ' J. F. Bowman, Deputy Clerk. [Endorsement upon this clmm.] The within claim' is allowed and approved for $500, with in- terest as claimed, and $250 for the horse. The item of $50 is without voucher or proof, is barred by the statute of limitations and is rejected. May 25, 1858. J. H. Fish, Administrator. Allowed and approved, this 27th day of May, 1858, for all but the item of $50, which latter is rejected. M. C. Blake, Probate Judge. 350 BANCBOFT'S CALIFORNIA LAWTEB. PetiUonfor 8^Al>MIKrSH£AT6BS. 369 of October, in the year of our Lord one thousand eight hundred and fifty-five, directing distribution of the assets of the estate of Elizabeth Sullivan, deceased, among the legatees and devisees named in the will of said deceased, and the persons entitled there- to, as shown -by and set forth in said order ; and it being now at this day shown, that Eugene L. Sullivan^ the executor of said last will and testament, has fully and faithfully discharged the duties of his trust, and has filed proper and true vouchers with' the clerk of this court, showing a strict compliance with the terms of said order, and that he has- distributed the whole of said estate then remaining in his hands, as thereby directed, and that no other assets have since come into his possession or knowledge, belong- ing thereto. - : , . On motion of Messrs. Saunders and Hepburn, of counsel for said executor. It is by the court, ordered, adjudged and decreed, and the court does hereby order, adjudge and decree that the said Eugene L. Sullivan, executor of the said last will and testament, has rally- and faithfully discharged the duties of his trust, as shown by hi* final accounts now on file, and has, as shown by the vouchers 6n file, fully complied with the order hereinbefore referred to, making distribution of said estate : and he the said Eugene L. Sullivan is hereby wholly and absolutely discharged from all further duties and responsibilities as such executor; and the said estate declared fully distributed, and the trust settled and closed. T. W. Fbeelon, County Judge. San Francisco, June 9th, 1856. FORMS OTTDEE GTTAEDIAlf ACT. Petition for Appovntmjent of Ouardicm. To the Honorable Thomas "W". Freelon, Probate Judge for the County of San Francisco : Tour petitioner, Montgomery Blair, respectfully represents, that Catherine A. Young, Mary A. Young and Albert Young; infant children of Alexander H. Young, and his deceased wife, Serena Young, are entitled to certain real estate situate in the counties of San Francisco, Alameda and Santa Cruz, in the state of California, and that said infants are all under the age of foui-- teen years, and reside in the District of Columbia, and are not now and never were, residents of the state of California. Your petitioner further states that the said Alexander H. Young, the father of said infants, also resides in the District of Columbia, and is jointly interested with his said children as tenant in common of the property aforesaid ; and has authorized your petitioneir by 24 370 BANCROFT'S CALIFOENIA LAWYER. letter of attorney, duly signed and delivered, to take such steps as may be necessary to protect the interests of his said children in the property aforesaid. Your petitioner further represents that in his opinion it is important to the interests of said infants that a guardian be appointed for them by this honorable court, to take charge of the said estate, and protect their rights in the same. Wherefore, as the friend of said infants, thereunto duly authorized by their father, your petitioner prays your honor to appoint a guardian for them, and respectfully suggests the name of Lloyd Tevis, as a fit and proper person for said trust. Sworn to, &c. M. Blaie. Petition for Appointment of Gua/rdiam,. To the Honorable T. "W. Freelon, County Judge, having charge of the probate business in the County of San Francisco : Tour petitioner, Maria J. Slack, a resident of San Francisco, respectfully represents, that Kate Agnes Kline is her daughter, aged four years next July, and has some property, consisting of a nonse and lot in Sacramento city, worth about seven hundred and fifty dollars, which needs some care and attention which cannot be bestowed without a legal guardianship. She therefore prays that she may be appointed guardian of her said child, Kate Agnes Kline, and have care and control of the property and custody of her person. And as, &c. Maeia J. Slack. State of California, ) City and County of San Francisco, j Maria J. Slack, being duly sworn, says that she has read the foregoing petition and knows the contents thereof, that the same are true of^her own knowledge. Maria J. Slack. Subscribed and sworn before me, this 20th of March, 1858. D. P. Belknap, Deputy Clerk. Order Appointing Ouardiom. In Probate Court, City and County of San Francisco. In the matter of the Estate and Guardianship ) of Kate Agnes Kline, minor. j On reading and filing the petition, duly verified, of Maria J. Slack, praying to be appointed guardian of Kate Agnes Kline, a minor, and the said Maria J. Slack having executed and filed a bond to the said minor in the sum of five hundred dollars, con- ditioned according to law, with sufficient sureties and approved by the judge of this court, she is appointed guardian of the per- son and estate of said Kate Agnes Kline, a minor. T. "W. Feeelon, Probate Judge. EXECUTORS AND ADMINISTEATORS. 371 Letters of Oua/rdianship. In Probate Court. State of California, ) County of San Francisco, ) Maria J. Slack is hereby appointed guardian of the person and estate of Kate Ames Kline, a minor. Witness, w illiam Duer, clerk of the Probate Court of the [l. s.] county of San Francisco, with the seal of said court affixed, this 23d day of March, A. D. 1858. By order of the court, William Dtjee, Clerk. State of California, ) . Oit^ and County of San Francisco, ) I do solemnly swear that I will support the constitution of the United States and the constitution of the state of California, that I will faithfully discharge the duties of the person and estate of Kate Agnes Kline, a minor, according to law. Maeia J. Slack. Sworn and subscribed to before me, ) this 23d day of March, A. D. 1858. j D. P. Belknap, Deputy Clerk. QuwrdiaTHs Bond. Know all men by these presents, that we, Maria J. Slack, Wil- liam Vosburgh and S. A. Presho, are held and firmly bound unto Kate Agnes Kline, a minor, in the sum of five hundred dollars, lawful money of the United States of America, to be paid to the said Kate Agnes Kline, minor, for which payment well and truly to be made, we bind ourselves, our executors, administrators and assigns, jointly and severally and firmly by these presents. Sealed with our seals and dated this twenty-second day of March, 1858. The condition of the above obligation is such that, whereas application has been made to the judge of the Probate Court of the city and county of San Francisco, state of California, for the appointment of Maria J. Slack, guardian of the person and estate of the said Kate Agnes Kline. ITow therefore, if the said Mary J. Slack be appointed such guardian, and shall faithfully perform the duties of her trust ac- cording to law, and shall : 1st. Make a true inventory of all the estate, real and personal, of her said ward, that shall come to her possession or knowledge, and shall return the same within such time as the judge shall order. 2d. Shall dispose of and manage all such estate according to law 372 BAIfCilOET'S ,' CAIilFOEKU:: LAWYEE. and for the best interest of .said ward, and faithfully discharge her 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 her hands ; and aU proceeds or interests derived therefrom, and of the management and disposition of the same within one year after her appointment, and at such other times as the court shall direct ; and , _ 4:th. At the expiration of her trust shall settle her accounts with the probate judge or with the said ward if she be of full age, or her legal representatives ; and shall pay over and deliver all the estate, moneys and effects remaining in her hands, or due from her on such settlement to the persgn or persons who shall be lawfully entitled thereto. Then this obligation shall be void, and of no effect, else to rer main of full force and virtue. M. J. Slack. [l. b.] VnXIAM TOSB^EGH. [L. S.] 6. A. Peesho. [l. s.] Sealed and delivered in the presence of ) D. P. Belknap. j State of California, ) City and County of San Francisco, j William Yosburgh and S. A. Presho, being duly sworn, each for himself says, that he is a freeholder resident in said state, and is worth the said sum of five hundred dollars over and above all his just debts and liabilities, exclusive of property exempt from execution. ■ William Vosbtiegh. S. A. Peesho. Sworn to before me, this 22d day of March, 1858. D. P. Belknap, Deputy Clerk of the Probate Court. Petition.for Order of Sale of Seal Estate Tyy Chaardian. In the Probate Court, City and County of San' Francisco : In the matter of the Estate and Guardi- ) anship of Alonzo Field, a minor. j The petition of Thomas Cole, Jr.; ^guardian of the above- named minor, respectfully showeth to this court, That the estate of said minor consists almost wholly of real^ estate, the most of which is unproductive, and yields little or no income for the maintenance and education of said minor. That said real estate consists, &c., &c. \_Here follows descrvption of property. 1 And by selling the same, a sufficient sum could be realized to BSBGU!r,0BSr:AN©.riA'DMINtSTRA:TOKS. 373 make an investment that would furnisli a sufficient income for the purposes above mentioned. That said minor' has no other means of maintenance and edu- cation, and it becomes necessary therefor to make a sale of some part of said real estate. , ■■■ '■■■ Your petitioner would further represent' that said land being wholly unproductive, it would be greatly for the benefit of said minor if the whole were sold, and the proceeds, after providing for the wants of the minor as above stated, be invested in some safe securities from which an accruing interest and profit could be derived. Wherefore, your petitioner prays, that an order may be made, directed to the next of kin of the said minor, and to persons in- terested in the estate, to be and appear before this court, at such time as the court may appoint, to show cause why an order should not be granted for the sale of said real estate; and that upon such hearings this honorable coitrt may order said land or such part thereof as may be for the best interest of said minor, to be sold for the purposes above mentioned. And your petitioner will ever pray, &c. Sworn to, &c. ' ' ' Thomas Cole, Jr. Order to Show Cause amd to Make PubUcation. [Title of Estate and Omi/rt as m the foregoing.} , On reading and tiling the petition of Thomas Cole, Jr., pray- ing for a sale, of reaL estates, and it appearing therefrom, that a sale of the whole or of some portion of the real estate of said minor would be for his benefit, and is necessary, It is hereby^ ordered, that the next of krn of said minor, and all persons interested in said estate, appear before this court, at the court-room thereof, at the city-hall, in the city and county of San Francisco, on Monday, the 7th day of June, 1858, at 11 o'clock A. M., then and there to show cause why an order should not be granted for the sale of such real estate, and let a copy of this order be published twice a week for three weeks successively, before the said day appointed, in the Da/il/y Sam Fra/ncisco Times, a newspaper printed and published in said city and county of San Francisco. May 3d, 1858. M. C. Blake, Probate Judge. 374 banoeopt's califoenia lawyee. Order of Sale of Heal Estate, Probate Court, City and County of San Francisco : In the matter of the Estate and Guar- 1 dianship of Henry L. Moore and >• Maria Moore, minors. ) Benjamin Brewster, guardian of the above-named minors, having heretofore presented to the Probate Court of the city and county of San Francisco, his petition for authority to sell the real estate in the state of California in which said minors are interested, for the immediate relief of said minors, they being in poor and needy circumstances and without the means of maintenance and education, and said real estate being in litigation ; and the said Probate Court having upon such petition made an order directing the next of kin of said minors and all persons interested in said estate, to appear before said Probate Court, at the court-room , thereof at the city-hall, in the city and county of San Fran- cisco, on Monday, the 21st day of June, 1858, at 11 o'clock A. M., then and there to show cause why an order should not be granted for the sale of said real estate ; Now on this 21st day of June, 1858, on reading and filing satisfactory proof by affidavit, of the publication of said order, and the said guardian, Benjamin Brewster, having appeared by his attorney, E. D. Sawyer, and the proper proceedings having been thereupon had (no one ap- pearing to oppose the application), and the Probate Court upon due examination being satisfied, after a full hearing upon the said petition, that a sale of the whole of the property mentioned in the said petition is necessary to be made for the maintenance and support of said minors, It is ordered by the court, that the said Benjamin Brewster, guardian as aforesaid, do sell the right, title and interest of said minors of, in and to the following described real estate, for the support and maintenance of said minors, that is to say : [llere follov)s description of property ^^ And it is further ordered, that the said sale be made at public auction, according to law, and that it be made for cash, and that the said guardian do make return of said sale to this court, ac- cording to law. M. C. Blake, Probate Judge. Order allowing OuardAa/eCs Accownt. In the Probate Court of the County of San Francisco : In the matter of the Estate and ) Guardianship of > Mary Evelina Brunell, an infant. ) On reading and filing the account of Orson A. Keynolds, guardian of Mary Evelina Brunell, an infant, filed in this court EXECUTOES AST) ADMINISTEATOES. 375 the twenty-third day of October, A. D. eighteen hundred and fifty-six ; and also on filing the vouchers appertainiag thereto ; and also on filing the notice required by law to be given of the settlement of said account with due proof of publication or post- ing, as i-equired by law ; and the matter of said accounting com- ing on to be heard on the third day of October, A. D. eighteen hundred and fifty-six, and no one appearing to oppose ; and the said accoiint and vouchers having been duly examined by this court and found to be correct and reasonable, for the interests of said infant ; And on motion of Messrs. Jones, Doyle, Barber & Boyd, of counsel for said guardian. It is ordered that the said account of the said Orson A. Eey- nolds, guardian of the said infant, be and the same is hereby passed, approved and allowed, as tendered by him ; And it is hereby further ordered that the said guardian be allowed the commissions charged by him in said account, as and for his compensation. Dated San Francisco, November 10th, 1858. T. W. Feeelon, Probate Judge. Bond hy Oua/rdian on the Sale of Meal Estate. Know all men by these presents : That we, Charles Lumbard, principal, and William A. Yates and Thomas Cole, Jr., sure- ties, are held and firmly bound to the Probate Judge of the city and county of San Francisco, in the sum of five thousand dol- lars, lawful money of the United States of America, for the pay- ment whereof well 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, and dated this 30th day of June, 1858. The condition of the above obligation is such, that whereas an order has been made by the Probate Court of the city and county of San Francisco, authorizing the above-named principal, as guar- dian of the person and estate of Sarah Morey, a minor, to sell certain real estate, the property of said minor, and bond in the sum above named has been ordered. Now, therefore, if the said Charles Lumbard, as such guardian, shall sell the said real estate in the manner prescribed by law for sales of real estate by executors and administrators, and shall account for and dispose of the proceeds of the sale or sales there- of in the manner provided by law, then this obligation to be void, otherwise to remain in full force and effect. Sealed and delivered ) Chaeles Ltjmbaed. [l. s. in presence of > William A. Tates. l. b. Temple Emmett. ) Thomas Cole, Jr, [l. s. 376 MNOBCi'T'S. CAWFOiUSriA LAWYBB. State of California, City and County ) of San Francisco,- ) ^^' Thomas Cole, Jr., and William A. Yates, being duly sworn, each for himself says, that he is a freeholder resident in this state, and •is worth the said sum of five thousand dollars over and above all his just debts and liabilities, exclusive of property exempt from execution. Sworn to before me, this 30th ) William A. Tates. day of June, 1858. j Thomas Cole, Jr. D. P. Belknap, Deputy Clerk of the, Probate Court. {Endorsed.'] The within bond and sureties approved by me, this 30th day of June, 1858. M. C. Blake, Probate Judge. FOEEIGNERS. 377 OHAPTEEXIX. FOEEIGNEES. The rights of foreigners, as to property and their admission to citizenship, are considered in this. chapter. The former are pro- vided, for under the la-^YS of California, the latter are governed by the legislation of the United States only. The constitution of California provides, that foreigners who are, or who may hereafter become })ona fide, residents of this state, shall enjoy the same rights, in respect to the possession, enjoyment and inheritance of property, as native citizens.' The statute of 1866 provides, that aliens or foreignei'S may in- herit, and hold by inheritance, real and personal estate, in as full a manner as though they were native-born citizens of this or the United States, but if they are non-residents at the time of inher- iting any real estate,,and,do not become residents in five years, the real estate. is sold, and the proceeds are paidjnto the state treasury for their benefit, and if not claimed for five years there- after, such proceeds gscheat to the state. This statute has been adjudicated by the Supj-eme Court, and is declared to be in har- mony with the constitutional provision.' The political rights and position of the people inhabiting Cali- fornia at the period of its acquisition are defined by the treaty as follows : Aeticle YII. Mexicans now established in territories previous- ly belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof, and re- moving the proceeds wherever they please, without their being 1 Const, art. i. § IT. ''Wood's Dig. art. 2866; State of Cal. «. Bogers, April Term, 1859. 378 bahtceoft's califoenia lawyer. subjected, on this account, to any contribution, tax or charge whatever. Those who shall prefer to remain in the said territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. But they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty ; and those who shall remain in the said territories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to be- come citizens of the United States. In the said territories property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy, with re- spect to it, guarantees equally ample as if the same belonged to citizens of the United States. Article IX. The Mexicans, who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Eepublic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Con- gress of the United States), to the enjoyment of all the rights of citizens of the United States, according to the principles of the constitution ; and in the mean time shall be maintained and pro tected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion, without restriction The constitution of California, Article 11., Section 1, extends the right of popular suffrage to such white male citizens of Mexico as elected to become citizens of the United States, under the treaty. For laws regulating the rights of foreigners in the mines, see chapters on Mining Eights and Taxes. NATURALIZATION. An alien, or foreigner, being a free white person, who has re- sided five years in the United States and one year in the state, whose country is not at the time at war with the United States, FOREIGNERS. 879 may be naturalized, provided he has declared his intention two years previously to become a citizen of the United States ; upon establishing, to the satisfaction of the court, the above facts, as to his term of residence, and also, that during that time he has be- haved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same ; and upon taking the oath that he will support the constitution and renounce his former allegiance.' The declaration of intention may be made on oath or aflSrma- tion, before a circuit or district court of the United States, or any state court having common law jurisdiction, and a seal, and a clerk, or prothonotary ; or before the clerk of either of such courts. It must declare that it is ionajide his intention to be- come a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly, by name, the prince, potentate, or sovereignty whereof such alien may at the time be a citizen or subject.' In the state of California, the proper state courts are the dis- trict courts, it being held that the Supreme Court has only appellate jurisdiction, and that the other courts of the state have only statutory and not common law jurisdiction." In every case if the applicant shall have borne any hereditary title or order of nobility, he must expressly renounce the same.' "When the applicant was a minor of eighteen years or less at the time of his arrival in the United States, he may be natural- ized without having made the declaration two years previously, provided he has lived in the United States five years, including the three years of his minority, and at least one year in the state or territory where the coiirt is held, and at the time of his ad- mission shall make the declaration of intention ; and shall further declare on oath, and prove to the satisfaction of the court that, for three years next preceding, it has been honafide his intention to become a citizen ; and shall, in all other respects, comply with the naturalization laws.* 1 Acts U. S. 1802 and 1824. > Acts U. 8. 1802. s 6 Cal. 800. » Act V. S. May 26, 1854, § 1. 380 bajstcroft's califoenia lawyer. If an alien who shall have regularly declared his intention to be- come a citizen, die before he is actually naturalized, his widow and children will be deemed citizens upon taking the oath pre- scribed by law.' A married woman who is an alien may be naturalized. It is also provided, that children of persons duly naturalized under the laws of the United States, being under the age of twenty-one years at the time of their parents being naturalized, shall, if dwelling in the United States, be considered as citizens. And that children of citizens, though born out of the United States, shall be deemed citizens; but the right of citizenship shall not descend to persons whose fathers have never resided within the United States.' Provision is also made in reference to persons, and the chil- dren of persons, residing in the United States at an early period, when the naturalization laws were not fully established, FOEMS. Deda/raUon of IntenUon. United States of America, ) State of California. | District Court of the Twelfth Judicial District of the State of California, in and for the City and County of San Francisco : I, Pierre Martin, do declare on oath, that it is honafide my in- tention to become a citizen of the United States of America, and to renounce forever all allegiance and fidelity to all and any foreign prince, potentate, state and sovereignty whatsoever: and farticularly to Louis Napoleon III., Emperor of France, of whom am a subject. Pieeee Maetin. Sworn in open court, this first 1 day of June, 1857, before me, j Thomas Hates, Clerk., City and County of San Francisco, ss : I, Thomas Hayes, Clerk of the District Court of the twelfth judicial district of the 8ta,te of California, in and for the city and county of San Trancisco, being a court of record, having common law jurisdiction, and a clerk and seal, do certify that the ' Act TJ. 8. March 26, 1804, § 3. » Act U. 8. April 14, 1802, § 4; 6 Oranoh, 177. 2 20 Wend. 838. UPBJBIGWEgs., ,...;;..:. ; 381 above is a true copy of tti6, orieinal declaration of intention of Pierre Martin, on his application to become a citizen of the United States, remaining in my office, upon .the. records of -said court. , . . In testimony whereof,, the seal of said, court is hereunto P -, affixed, this first -day of June, in the year of our Lord L^' ^'J one thousand eight hundred and fifty-seYen, in the year of our independence the eighty-first. . . ■ . ; Thomas Hates, Clerk. , By John C. Ooebett, Deputy Clerk. ' Oaih to Bujpjpmt the Constitution,- <&c. - I, C. D., do solemnly Bwear^ that I will support the Constitu- tion of the United States, and that I do absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign f)rince, potentate, state, or sorereignty, whatever, and particu- arly to Louis Napoleon, Emperor of France. ' ' i -'C. "D. Sworn, &c. Proof of JResidenee', Good Behomior, c&c. State' of California, City and \ . County of San Francisco, j E. F., of said county, being duly sworn, doth depose and say, that he is a citizen of the United States; that he is well ac- quainted with the above-named C. D. ; and that the said C. D. has resided within the liniits, and under the jurisdiction of the United States^ for five years last past, and, for one year last past, within the state of California ; and that during the same period he has behaved himself as a man of good moral character, at- tached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. And' he further saith, that, at the time the said C. D. arrived in the United States, he had not attained his eighteenth year. Sworn, &c. E. F. Certificate of Citizenship. United States of America ; ) State of California, >■ ss : No. City and County of San Francisco, ) Be it remembered, that on the tenth day of June, in the year of our Lord one thousand eight hundred and fifty-nine, Pierre Martin, formerly of Paris, in the empire of France, at present of the state of California, aforesaid, appeared in the District Court 382 BAJSrOBOFT's CALIFORNIA LAWYEB. of the twelfth judicial district, of the state of California, in and for the city and county of San Francisco, the said court being a court of record, having common law jurisdiction, and a clerk and seal, and applied to the said court to be admitted to become a citizen of the United States of America, pursuant to the direc- tions and requisitions of the act of Congress of the United States of America, entitled " An Act to establish an Uniform Rule of Naturalization, and to repeal the acts heretofore passed on that subject," and of the several acts in relation thereto : And the said Pierre Martin, having thereupon produced to the court such evidence, made such declaration and renunciation, and taken such oaths, as are by the said acts required : thereupon it was ordered by the said District Court that the said Pierre Mar- tin be admitted, and he was accordingly admitted, by said court to be a citizen of the United States of America. Attest, William Duee, Clerk. By Jas. B. MoMihn, Deputy Clerk. Signature, Piebee Maetin. City and County of San Francisco, ss : I, William Duer, clerk of the District Court of the twelfth judicial district of the state of California, in and for the city and county of San Francisco, being a court of record, having common law jurisdiction, and a clerk and seal, do certify that the above is a true copy of the original certificate of citizenship, to Pierre Martin, on his application to become a citizen of the United States, remaining in my office, upon the records of said court. In testimony whereof, the seal of said court is hereunto P T affixed, this tenth day of June, in the year of our Lord L ■ ■-' one thousand eight hundred and fifty-nine, in the year of our independence the eighty-third. Per Cwriain, William Duee, Clerk. By Wm. E. Satteelee, Deputy Clerk. Declaration of Intention to heoome a Citizen for Three Yea/rs past. I, M. IST., do declare, on oath, that it is lonafide my intention, and has been for the last three years, to become a citizen of the United States, and to renounce forever all allegiance to all and every foreign prince, potentate, state, and sovereignty, whatever, and particularly to Victoria, Queen of Great Britain and Ireland. Sworn, &c. M. 1^. FOEBIGNEBS. 383 Affida/oit of Alien vmder Eighteen Years of Age at the irnie of his Arri/oal. State of California, ] . City and County of San Francisco, j In the matter of M. N., on his naturalization. M; N., being duly sworn, says, that, for the continued term of five years last past, he has resided within the United States, without heing at any time, during the said five years, out of the territory of the United States, and that for one year last past, he has resided within the state of California ; and that, at the time he so arrived in the United States, he had not attained his eight- eenth year. M. N. Sworn in open court, this day of ) of ? 18 > before me, J. C, j Clerk of the District Court of the Northern District of Cali- fornia. 884 BANCEOFt's, CAtlFOENIA LAWYER. CHAPTEE XX. HOMESTEAD. . The constitution declares, that, the legislature shall protect by law, from forced sale, a certain portion of the homestead and other property of all hieads of families. In pursuance of this provision, the legislature have passed the following statute : ACT OF APBIL 21, 1851, TO EXEMPT THE HOMESTEAD AND OTHER PROPERTY PROM FORCED SALES IN CERTAIN OASES. Sectioij 1. The homestead, consisting of a quantity of land, together with the dwelling-house thereon and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the owner thereof, shall not be subject to forced sale on execution or on any other final process from a court, for any debt or liability contracted or incurred after thirty days from the passage of this act, or if contracted or incurred at any time in any other place than in this state. Sec. 2. Such exemption shall not extend to any mechanic's, laborer's or vendor's lien, or to any mortgage, lawfully obtained ; but no mortgage, sale, or alienation of any kind whatever of such land by the owner thereof, if a married man, shall be valid with- out the signature of the wife to the same, acknowledged by her separately and apart from her husband ; provided, that the wife be a resident of this state, and that such signature and acknowl- edgment shall not be necessary to the validity of the mortgage upon the land, executed before it became the homestead of the debtor, or executed to secure the payment of the purchase money. Seo. 3. "Whenever any levy shall be made upon the land or tenements of a householder, whose hom'estead has not been se- lected or set apart, such householder may notify the officer at the time of making such levy of what he regards as his home- HOMESTEAD. 385 stead, with a description thereof, and tlie remainder alone shall be subject to sale under such levy. Sec. 4. If the plaintiff in execution shall be dissatisfied with the lands and tenements selected and set apart as aforesaid, the matter shall be submitted to two appraisers, one to be selected by the plaintiff and the other by the defendant, who shall deter- mine whether such land and tenements exceed in value the sum of five thousand dollars. If the appraisers so chosen cannot agree, they shall appoint a third person to decide between them. If they cannot agree in the choice of a third person, he shall be named by the officer. Sec. 5. K the land selected as a homestead consist of a lot containing twenty-five hundred square yards or less, and the ap- praisers shall certify to the officer that such lot exceeds in value the sum of five thousand dollars, the said officer may proceed to sell such excess, or the whole, at the option of the defendant in execution, in the manner provided in other cases for the sale of real property under execution. In case the excess only is sold, then such proceeds shall be applied to the satisfaction of the ex- ecution ; and in case the whole amount of the property is sold, five thousand dollars of the proceeds of such sale shall be paid to the defendant in execution, and the excess shall be applied to the satisfaction of the execution ; provided, that no bid shall be received for a less sum than five thousand dollars. Seo. 6. In any case where the land selected and claimed as a home shall exceed in extent twenty-five hundred square yards, and if the appraisers be of opinion that such land, together with the dwelling-house and its appurtenances, exceed in value the sum of five thousand dollars, they shall set apart a portion thereof, in a compact form, including the dwelling-house, if possible, as the homestead; such homestead shall be, as near as may be, of the value of five thousand dollars, and the said appraisers shall cause the same to be surveyed. The expenses of such survey shall be chargeable on the execution and collected thereon. Sec. 7. After the survey shall have been made, the officer ma- king the levy may sell the property levied upon and not included in the survey, as in cases of other sales of real estate under exe- cution ; and in giving a deed for the same he may describe it according to his original levy, excepting therefrom, by metes and 25 886 Bancroft's oalifoenia lawyer. bounds, according to the certificate of survey, the quantity set apart as aforesaid. Sec. 8. The defendant in execution, at the time of making any levy, may also designate to the officer any article of personal property as being exempt from forced sale as specified in the act to regulate proceeds in the courts of justice in this state; provi- ded, however, that nothing in this section shall be so construed as to exempt over and above that provided for in title seven, chap- ter one, of "An Act to regulate Proceedings in Civil Cases in Courts of Justice in this State." Sec. 9. Before proceeding to act, the appraisers mentioned in the act shall be sworn by the ofiBcer to do justice between the parties. Their decision shall be delivered to the officer, shall be returned by him with the execution, and shall be conclusive between the parties and for the protection of -the officer against all liability. If the value of the real estate or personal property, as the case may be, do not exceed the amount made exempt by this act, the cost of the proceedings shall be paid by the plain- tiff in execution ; otherwise by the defendant. Sec. 10. The homestead and other property exempt from forced sale, upon the death of the head of the family, shall be set apart by the Probate Court for the benefit of the surviving wife and his own legitimate children, and in case of no surviving wife or his own legitimate children, for the next heirs at law ; provided, that the exemption as provided in this section shall not extend to un- married persons, except when they have charge of minor broth- ers or sisters, or both, or brothers' or sisters' minor children, or a mother, or unmarried sisters living in the house with them. Sec. 11. ISTothing in this act shall be so construed as exempting any real or personal property from sale for taxes. Property exempt from seizure on execution is defined by statute as follows :' The following property shall be exempt from execution, except as herein otherwise specially provided : 1. Chairs, tables, desks and books, to the value of one hundred dollars, belonging to the judgment debtor. 2. Necessary household, table and kitchen furniture, belonging to the judgment debtor, including stove, 1 Wood's Dig. art. 958 ; Prao. Act, 219. HOMESTEAD. 387 stove-pipe and stove-furniture, wearing apparel, beds, bedding and bedsteads, and provisions actually provided for individual 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, two cows, and one cart or wagon, and food for such oxen, horses, cows or mules for one month. 4. The tools and implements of a mechanic, neces- sary to carry on his trade, the instruments and chests of a sur- geon, physician, surveyor and dentist, necessary to the exercise of their profession, with the professional library and the law libraries of an attorney or counsellor. 6. The tent and furniture, including a table, camp-stools, and bed and bedding of a miner ; also, his rocker, shovels, spades, wheelbarrows, pumps, and other instruments used in mining, with provisions i;ecessary for his support for one month. 6. Two oxen, or two horses, or two mules, and their harness, and one cart or wagon, by the use of which a cartman, teamster or other laborer habitually earns his living, and food for such oxen, horses or mules for one month ; and a horse, harness and vehicle used by a physician or surgeon in making his professional visits. 1. All fire-engines, with the carts, buckets, hose and apparatus thereto appertaining, of any fire company or department, organized under any law of this state. 8. All arms and accoutrements required by law to be kept by any person; but no article mentioned in this section shall be exempt from execution issued on a judgment recovered for its price, or upon a mortgage thereon. 9. All court-houses, jails, public offices and buildings, lots, grounds and personal property, belonging to any county of this state, and all ceme- teries, public squares, parks and places, public buildings, town halls, markets, buildings appertaining to the fire departments, and the lots and grounds thereunto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by such town or city to health, ornament or public use. The following sections of the Probate Act make provision for the family' — and are found also in the statutes of Oregon and Washington : " Section 120. When a person shall die, leaving a widow or a 1 Wood's Dig. art. 2280-228S. » Laws Oreg. p. 355 ; Laws Wash. p. 279. 388 Bancroft's oalifoenia lawyee. minor child or children, the widow, child, or children, shall, until letters have been granted, and the inventory has been returned, be entitled to remain in possession of the homestead and of all the wearing apparel of the family, and of all the household fur- niture of the deceased, and shall also be entitled to a reasonable provision for their support, to be allowed by the probate judge. Sec. 121. Upon the return of the inventory, the court shall set apart, for the use of the widow or minor child or children, all property which is by law exempt from execution, or so much of such property as may have belonged to the deceased. Sec. 122. K the whole property exempt by law be not included in the inventory, and if the amount set apart be insufficient for the support of the widow and child or children, the probate court shall make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate ; which, in case of an insolvent estate, shall not be longer than one year after granting letters of administration. Sec. 123. Any allowance made by the court, in accordance with the provisions of the preceding section, shall be paid by the administrator in preference to all other charges, except funeral charges, and expenses of administration. Sec. 125. When property shall have been set apart for the use of the family in accordance with the provisions of this chapter, if the deceased shall have left a widow and no minor child, such property shall be the property of the widow. If he shall have left also a minor child or children, the one-half of such property shall belong to the widow, and the remainder to the child, or in equal shares to the children, if there be more than one. K there be no widow, the whole shall belong to the minor child or chil- dren. Sec. 126. If, on the return of the inventory of any intestate estate, it shall appear that the value of the whole estate does not exceed the sum of five hundred dollars, the Probate Court shall, by a decree for that purpose, assign for the use and support of the widow and minor children of the intestate, or for the support of the minor child or children, if there be no widow, the whole of the estate after the payment of the funeral charges and ex- penses of the administration, and there shall be no further pro- HOMESTEAD. 389 ceedings in the administration, unless further estate be dis- covered. Sec. 121. If the widow has a maintenance derived from her own property equal to the portion set apart to her by the one hundred and twenty-fifth and one hundred and twenty-sixth sec- tions of this act, the whole property so set apart shall go to the minor child or children. The Eevenue Act of April 29, 1857, provides, that the pro- perty of widows, or orphan children, to the amount of $1,000, shall not be subject to taxation.' JDDICIAI, DECISIONS. The Homestead Act does not apply to and affect property nc- quired ^?'evious to its passage." The " homestead" is the dwelling place of the family, where they permanently reside ; and, by common law, such residence raises the presumption, that the premises so held are the home- stead, and every one is bound to take notice of the character of the occupant's claim." Occupancy by the family is presumptive evidence of the ap- propriation of a place as a homestead, and is consequently notice to all the world.' The removal of husband and wife from a homestead thus selected, after and in consequence of a sale and conveyance by the husband, in which the wife did not join, furnishes no evi- dence of an abandonment of the homestead by her, but seems to be the very case against which the statute intended to provide.' As soon as a place acquires the character of a homestead, it is immaterial how the title to the property originated, whether it was the separate property of the husband, or wife, or the com- mon property of both. It becomes a sort of joint tenancy, with the right of survivorship, as between husband and wife, and this estate cannot be altered or destroyed, except by the concurrence of both in the manner provided by law, unless it be in favor of an innocent purchaser, without notice.' In the case of the successive occupancy of several places as ' Laws 1857, p. 826, § 2, snb. T. = 4 id. 268 ; 6 id. 284 ; 10 id. 296. "4Cal. 28; 10 Cal. 296. 890 Bancroft's California lawyer. residences, the recovery of any one of them- by the wife, as a homestead, would bar her recovery of any other as such." Premises never assume the character of a homestead until actual residence thereon by the family.' Where the wife, at the date of the execution of a mortgage thereon, was not a resident of the state, the homestead right can- not be sustained." The phrase " resident of this state," used in the second section of the Homestead Act, means an actual and not a constructive presence.' To make a valid sale of the homestead requires a joint deed of the husband and wife. Separate deeds of the husband and wife are both invalid.* A wife cannot sue alone to recover the homestead; it is a joint estate, with right of survivorship, and both husband and wife must join in the action.* The statute does not contemplate that homesteads should be carved out of land held in joint tenancy, or by tenancy in com- mon, because it has provided no mode for their separation and ascertainment.' The plaintiff is entitled to make out of the lot claimed as a homestead, only the actual amount of the purchase money and interest remaining due, and for the excess over the purchase money, he must proceed on his other security, or against the party, but not against the homestead." A sale or alienation of the homestead property, without the signature of the wife, is void only as to the homestead value. Any excess oV'er five thousand dollars is subject to the control of the husband, and may be disposed of in any manner by him." Where an action is brought to foreclose a mortgage upon prop- erty claimed as a homestead, the wife of the mortgagor is a ne- cessary party to a full adjustment of the controversy, and should be allowed to intervene." A sale by a sheriff, under execution, of a house claimed as a homestead by the defendant in execution, and ascertained by ; « MOal. 26S; 6 id. 284; 10 id. 296. *• Sid. 244; 6 id. 165; id. 416. 2 7 id. 445; 6 Id. 625; 10 id. "296. ' 6 id 45S. = 7Id.89. «6id604; Sid. 66; id. 74; 9id.90; lOid.296! *61d,Tl. HOMESTEAD. 891 appraisement to be worth over five thousand dollars, should not be made until an exact appraisement of the value of the premises is obtained, so that the sheriff can convey a definite fractional undivided interest therein.' As a husband and wife may by joining in a conveyance, de- stroy a homestead right already acquired, by selling the whole, so they may equally destroy it by selling an undivided portion of it." The constitution is inoperative in itself, and looks to legislation to determine how far and in what manner the homestead should be protected from forced sale.' The separate property of the husband acquired before mar- riage, may become the homestead, as well as the common prop- erty of husband and wife.' A mortgage of a homestead, signed by the husband alone, is absolutely void where its value does not exceed five thousand dollai's. When a husband ceases to be the head of a family, the right to a homestead also ceases.' A mortgage, void because it was upon a homestead, will not become valid, by reason of the homestead right being lost by the death of the wife of the mortgagor without children ; the debt which the mortgage was intended to secure, is not impaired, but it is placed on the same level with the other debts of the mort- gagor, and must be enforced in the same manner.* Any individual, whether married or not, may be the head of a family, and as such, entitled to a homestead right. But when this relation ceases, the right also ceases.' Where A., who is a married man, is occupying premises as the tenant of B., and concludes to purchase the same, and to do so borrows the whole of the purchase money from C, and to secure the payment thereof to C, mortgages the premises to him, but the wife does not sign the mortgage : held, that the homestead right was subject to the mortgage. The deed and mortgage be- ing simultaneous, were but parts of the same transaction. It would seem, under the circumstances, that neither the husband nor his wife had either legal or equitable right to the premises." > 6 Cal. 45T. 4 8 id. 66 ; 10 id. 296. » 10 id. 568. ' 8 id. 271. » 6 id. 625. 392 baitcroft's califobnia lawyee. The homestead right is not affected by the foreclosure of a mortgage signed by the husband alone.' The homestead being held in a sort of joint tenancy, passes, on the death of the husband, to the wife, by right of survivorship." No damage can result from a sale of property exempt from forced ^ale as a homestead. If the property sold was a home- stead, the sheriff's deed conveyed nothing. The purchaser at such sale could acquire no right to the property, nor could the plaintiff suffer any injury.^ The only way in which the right of the wife to the homestead can be extinguished, is by a joint deed executed by both husband and wife, and properly acknowledged.' In an action by the wife against the husband, for a divorce, the defendant cannot have a portion of the homestead set apart to him, where it is not shown that the property claimed as a homestead has been at any time during the existence of the mar- riage the residence of the family.^ The voluntary removal of the husband, with his family, is not, of itself, evidence of abandonment of the place as a homestead ; much less so a removal under apprehensions for the safety of his family." Where commissioners were appointed by the court to select and set apart as the homestead a portion of the tract of land mortgaged, such portion to be of the value of five thousand dol- lars, in form as compact as possible, including the place where the dwelling-house is situated, and to report their action to the court, and the commissioners, acting under oath, made the selec- tion, arid their report was approved : held^ that the proceeding was proper.' FOEMS. Petition for Homestead hy am, InsdI/oent. District Court, 4th Judicial District. Frank Max, an Insolvent Debtor, ) agavnst v his Creditors. ) City and County of San Francisco, ss : The petition of Frank Max, the said insolvent, respectfully ' 8 Cal. 3iT. 4 id. 16T. '' id. 607. » id. 224. ' 10 id. 17. « id. 296. HOMESTEAD. 393 represents, that he is, and was at the time of filing his petition and schedule herein, and for a long time theretofore, has been a married man and man of family, and at and during said several times resided with his family in and upon that certain house and lot, or parcel of land, situated in the city and county of San Francisco, and bounded and described as follows, to wit : [herein insert desoription,'] as his homestead, and that he claims the same as his homestead. That he purchased the same on or about the first day of April, A. D. 1867, and executed a mortgage upon the same for a part of the purchase money, to wit : the sum of three thousand dollars, which said mortgage is still wholly unpaid and in full force and virtue. That said nouse and lot subject to the payment of said mortgage, is reasonably worth less than the sum of five thousand dollars. Petitioner also represents, that said house and lot is set forth in his schedule in said proceeding, and that there is also set forth in said schedule, a small lot of furniture, to wit : [here insert de- scription,'] valued at the sum of three hundred dollars. Also, that he is a carpenter by trade, and that his schedule contains a lot of tools, with which your petitioner carries on his said business and trade, and which are necessary thereto ; all of which your peti- tioner is advised and verily believes he is entitled to have set apart for the use of himself and family, as property exempt by law from forced sale by execution. Wherefore, the premises considered, your petitioner prays that the said premises be set apart as his homestead, and that said furniture and tools be also set apart for his use, and for such other relief as may be just, and so he will ever pray, &c. Subscribed and sworn to, before me, ) Feanx Max. this 2d day of May, 1858. f W. Baetlett, Dep. County Clerk. Order of Reference. District Court of the Fourth Judicial District of the State of Cali- fornia, in and for the City and County of San Francisco : April Term, Tuesday, April 5, 1858. Present, Hon. John S. Hageb, Judge, Frank Max, an Insolvent Debtor, ) agavnst \ • his Creditors. ) S. M. Wilson, Esq., counsel for John Smith, the opposing cred- itor herein, appeared in open court, and with the consent of the insolvent's counsel, withdrew the opposition of said creditor to the discharge of the insolvent. Whereupon, on motion of in- solvent's counsel, it is ordered, that this cause be, and it is hereby referred to S. H. Dwindle, Esq., to take testimony and ascertain 394 banceoft's California lawyer. the value &c., of the homestead, tools, and other property claimed hj the insolvent as exempt from execution and forced sale, and to report the same to this court. Order Setting Apart Homestead to Insolvent. In the District Court of the Fourth Judicial District. Frank Max, an Insolvent Debtor, 1 against > his Creditors. ) On motion of Messrs. McDougall and Sharp, attorneys for petitioner, and there being no opposition thereto, and it appear- ing to the satisfaction of the court that the property set out and described in petitioner's schedule as his homestead is the home- stead of petitioner, and that he and his family reside thereupon, and it also appearing to the satisfaction of the court that the said property, together with the improvements thereon, is of less than the value of live thousand dollars, Kow, therefore, in consideration of the premises, it is ordered, adjudged and decreed, that the said real estate, together with the improvements, to wit : [here insert description] be separated and set apart unto the said Max and his family, as his and their homestead. It is further ordered, adjudged and decreed, that the wearing apparel and tools mentioned and described in said petitioner's scliedule, be set apart to the said petitioner and his family for his and their benefit and use. , John S. Hagee, Judge. Dated San Francisco, April 16th, 1859. HUSBAND AND "WIFE. 395 CHAPTEE XXI. HXrSBAND AND WIFE. The relation of husband and wife, though having its founda- tion in nature, as the primary and most important of the domes- tic relations, 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 consent of parties legally competent to contract is necessary ; a sufficient consideration is found in the mutuality of the contract. The chief peculiarity which distinguishes this from other con- tracts is, that it continues during the lives of the parties, and can- not be dissolved by mutual consent, but only for certain specific causes, defined by law. By the statutes of California, which follow the civil rather than the common law, the right is - conferred upon the wife to hold separate property, to carry on business as a feTrhme sole, to make conveyances in certain cases, and to exercise other powers, equally inconsistent with the common law theory of the nature and effect of the marriage relation^ as will appear from the fol- lowing summary of the statutory provisions upon the subject, to- gether with the adjudications of the courts thereon. The act of April 22d, 1850, regulating marriages," provides substantially as follows: 1. Marriage is considered in law as a civil contract, to which the consent of the parties is essential. 2. All marriages between persons within certain degrees of kindred are declared to be incestuous and void. 3. All marriages of white persons with negroes or mulattoes are declared to be illegal and void. 4. Whoever shall , contract marriage in fact, contrary to the two foregoing prohibitions, and whoever shall solemnize any such " Wood's Dig. p. 486. 396 Bancroft's califoenia lawyer. marriage, shall be deemed guilty of a misdemeanor, punishable by fine, imprisonment, or both. 5. All marriages contracted without this state, which would be valid by the laws of the country in which the same were con- tracted, shall be valid in all courts and places within this state. 6. Judges, j ustices of the peace, clergymen of all denominations, and licensed preachers, may perform the marriage ceremony. I. But no judge, &c., shall marry any male under twenty or female under eighteen years without the consent of the parent or guardian, or other person under whose care and government such minor maybe. The violation of this provision is a misdemeanor punishable by fine not exceeding one thousand dollars. 8. It is provided by statute, that a record of marriages shall be kept by the person solemnizing them, and certificates transmitted to the recorder of the county in which the marriage took place, with a penalty for non-compliance. 9. It is made the duty of the recorder to record all such returns of marriages in a book kept for that purpose, for which he is to be paid a fee of one dollar in each case, by the parties to the marriage. 10. The books of record of marriages are made legal evidence , also copies of the entries therein, certified by the recorder under his official seal. II. A punishment by fine and imprisonment is provided for making a false return of a marriage, or a return of a pretended marriage, to the recorder, or for a false record by him of any return of a marriage. 12. By the statute of April 26, 1858, as amended March 12, 1859,' it is provided, that the governor be authorized to appoint, by and with the advice and consent of the senate, a state registrar, who shall keep a record of all marriages, births, divorces, and deaths, certified to him by the recorders of the various counties of the state, and shall prepare from said record an annual report, and submit the same to the governor on the 15th December of each year. 13. By section 2 of said law (as amended), it is made the duty of all persons performing the ceremony of marriage, to file in the office of the recorder of the county in which such marriage takes > Laws of 1859, p. 108. HTJSBAN-D AND WIFE. 897 place, a certificate of tlie same, setting fortli particulars respecting time, place, and parties. The said section further provides, that all parents, heads of families, keepers, and superintendents of prisons, alms-houses, hospitals, houses of correction, and other public and private institutions, and the commanding officer of every ship or other vessel, shall file, in like manner, in the office of the recorder of the county wherein such birth occurs, a i-ecord of every birth taking place in their families, or the institution, or vessel under their charge or supervision, according to a form prescribed in said section. 14. It is further made the duty of the clerks of all courts wherein a divorce is granted, to file in the office of the recorder of the county in which said divorce occurs, a record of the same, in the manner particularly prescribed in said section, for which entry the clerk is entitled to receive two dollars from the party procuring the divorce. The same section provides, likewise, for a similar record of all inquests and burials. 16. It is further made the duty of the cl-erk of every court of probate in which letters testamentary or of administration may be granted, to file in the office of the recorder of the county wherein such court may be held, the names and residence of all executors and administrators upon the estates of deceased parties, with the title of the court, and the date when such letters testa- mentary or of administration were issued, and he shall be entitled to tax with the costs of issuing said letters the sum of two dollars for performing such service. 16. Section third of said act as amended, provides for the pay- ment of a fee of one dollar to the recorder on filing the record of any birth, marriage, &c., and makes the neglect to comply with the provisions of the act requiring such record, punishable by fine, imposing upon the district attorney of the county in which the case of neglect may occur, the duty of prosecuting the same to conviction. 17. Section fourth provides for the entry in suitable books of i-ecord, to be kept by the county recorder, every registry of a mar- riage, birth, &c., filed with him as aforesaid, and for the payment to him of a fee of one dollar and a half for each entry. It further provides, that at the end of every month, he shall certify and sign upon the face of the record, that the registrations for that 898 BANCROFT'S CALIFORNIA liAWYEE, period are correctly made up ; and that at the end of every three months, he shall regularly transmit a duplicate of all registra- tions made in his office, attested by his certificate and official seal, to the state registrar for record in his office. 18. Section five prescribes the duty of the county treasurer in regard to the moneys paid to him by the county recorder on ac- count of registration. 19. Section six repeals all other acts or parts of acts conflicting with this act. THE RIGHTS OF HUSBAND AND WIFE EBSPECTING PROPERTY. The act of April 17, 1850, " Defining the -Eights of Husband and Wife,'" provides substantially as follows : 1. All property both real and personal of the wife, owned by her before marriage and that acquired afterwards, by gift, be- quest, devise or descent, shall be her separate property ; and all property, both real and personal, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise or descent, shall be his separate property. 2. All property acquired after the marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property. 3. A full and complete inventory, of the separate property of the wife, shall be made out and signed by the wife, acknowledged or proved in the manner required by law for the acknowledg- ment or proof of a conveyance of land, and recorded in the office of the recorder of the county in which the parties reside. 4. If there be included in the inventory any real estate lying in other counties, the inventory shall also be recorded in such counties. . 5. The filing of the inventory in the recorder's office shall be notice of the title of the wife, and all property belonging to her, included in the inventory, shall be exempt from seizure or execu- tion for the debts of her husband. 6. By an act approved February 11, 1858, amending the sixth section of the act " Defining the Rights of Husband and Wife,"" it is provided as follows : The husband shall have the manage- 1 Wood's Dig. p. 4ST. ' Laws of 1858, p. 22. HUSBAND AND WIFE. 399 ment and control of the separate property of the wife during the continuance of the marriage; but no sale or other alienation of any part of such property can be made, nor any lien or incum- brance created thereon, unless by an instrument in writing, signed by the husband and wife, and acknowledged by her, upon an examination separate and apart from her husband, before any judge of a court of record or notary public ; or, if executed out of this state, then so acknowledged before some judge of a court of record, or before a commissioner appointed under the authori- ty of this state to take acknowledgments of deeds ; or before any minister, secretary of legation, or consul of the United States, appointed for and residing in the foreign country in which the said deed is to be acknowledged. 7. When any sale shall be made by the wife of any of her separate property, for the benefit of her husband, or when he shall have used the proceeds of such sale with her consent in writing, it shall be deemed a gift, and neither she nor those claiming under her shall have any right to recover the same. 8. If the wife has just cause to apprehend that her husband has mismanaged or wasted, or will mismanage or waste, her separate property, she, or any other person in her behalf, may apply to the District Court for the appointment of a trustee, to take charge of and manage her separate estate ; such trustee may, for good cause shown, be from time to time removed by the court, and another appointed in his place. Before entering upon the discharge of his trust, he shall execute a bond, with sufficient surety or sureties, to be approved by the coi^rt, for the proper performance' of his duties. In case of the appointment of a trustee for the wife, he shall account for and pay over to the husband and wife, or either of them, the income and profits of the wife's estate, in such manner and proportion as the court may direct. 9. The act of May 12, 1853,' amending section 9 of the act de- fining the rights of husband and wife, provides as follows : The husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate; and the rents and profits of the 1 "Wood's Dig. p. 488. 400 bajstoeoft's California lawyer. separate estate of either husband or wife shall be deemed com- mon property, unless in the case of the separate property of the wife, it shall be provided by the terms of the instrument whereby such property may have been bequeathed, devised, or given to her, that the rents and profits thereof shall be applied to her sole and separate use ; in which case, the entire management and dis- posal of the rents and profits of such property shall belong to the wife, and shall not be liable for the debts of the husband. 10. No estate shall be allowed to the husband as tenant by courtesy upon the decease of his wife, nor any estate in dower be allowed to the wife upon the decease of her husband. 11. Upon the dissolution of the community by the death of either husband or wife, one-half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased. If there be no descendants of the deceased hus- band or wife, the whole shall go to the survivor, subject to such payment. 12. The act of April 14, 1857,' amending the act defining the rights of husband and wife, provides as follows : In case of the dissolution of the marriage, by decree of any court of competent jurisdiction, the common property shall be equally divided be- tween the parties, and the court granting the decree shall make such order for the division of the common property, or the sale and equal distribution of the proceeds thereof, as the nature of the case may require ; pi'ovided, that when such decree of divorce is rendered on the ground of adultery, or extreme cruelty, the party found guilty thereof shall only be entitled to such portion of the common property as the court granting the decree, may, in its discretion, from the facts of the case, deem just, and allow ; and such allowance shall be subject to revision on appeal in all respects, including the exercise of discretion by the court below. 13. The separate property of the husband shall not be liable for the debts of the wife contracted before the marriage, but the separate property of the wife shall be and continue liable for all such debts. 14. In every marriage hereafter contracted in this state, the ' Wood's Dig. p. 488. HUSBAND AND WIFE. 401 rig'.i.sof husbandandwifeshallbe governed by this act, unless there is a marriage contract, containing stipulations contrary thereto. 15. The rights of husband and wife, married in this state prior to the passage of this act, or married out of this state, but who shall reside and acquire property herein, shall also be determined by the provisions of this act, with respect to such property as shall be hereafter acquired, unless so far as such provision may be in conflict with the stipulations of any marriage contract. 16. All marriage contracts shall be in writing, and executed and acknowledged or proved, in like manner as a conveyance of land is required to be executed and acknowledged or proved. 17. When a marriage contract shall be acknowledged or proved, it shall be recorded in the office of the recorder of the county in which the parties reside, and also in the office of the recorder of every county in which any real estate may be situated, which is conveyed or affected by such marriage contract. 18. When any marriage contract is deposited in the recorder's office for record, it shall, as to all property affected thereby, in the county where the same is deposited, impart full notice to all persons of the contents thereof. 19. No marriage contract shall be valid, or affect any prop- erty, except between the parties thereto, until it shall be deposited for record with the recorder of the county where the parties re- side, and, if it relates to real estate in other counties, with the recorder of the county wherein such property is situated. 20. A minor, capable of contracting matrimony, may enter into a marriage contract, and the same shall be as valid as if he was of full age ; provided, it be assented to, in writing, by the person or persons whose consent is necessary to his marriage, 21. A marriage contract may be altered at any time before the celebration of the marriage, but not afterward. 22. The parties to any marriage contract shall enter into no agreement, the object of which shall be to alter the legal order of descent, either with respect to themselves in what concerns the inheritance of their children or posterity, or with respect to their children between themselves, nor derogate from the rights given by law to the husband, as to the head of the family, or to the surviving husband or wife, as the guardian of their children. 23. IJo stipulation of any marriage contract shall be valid, 26 402 Bancroft's California lawtee. which shall derogate from the rights given by law to the hus- band, over the persons of his wife and children, or which be- long to the husband, as the head of the family, or to the surviving husband or wife, as the guardian of their children. THE EIGHT OF MARRIED WOMEN TO ACT AS SOLE TKADEES. By the act of April 12, 1852, " to authorize married women to transact business in their own name, as sole traders,'" it is provided as follows : 1. Married women shall have the right to carry on and trans- act business under their own name, and on their own account, by complying with the regulations prescribed in this act. 2. Any married woman residing within this state, desirous to avail herself of the benefit of this act, shall make a declaration before a notary public, or other person authorized to take ac- knowledgments of deeds, that she intends to carry on business in her own name, and on her own account, specifically setting forth in her declaration, the nature of the business, trade, profes- sion, or art ; and from that date she shall be individually respon- sible in her own name, for all debts contracted by her on account of her said trade, business, profession or art ; said declaration shall be recorded in the office of the county recorder, in the county where said business, trade, profession or art is to be car- ried on or practised, and also to be advertised in some public newspaper of general circulation in said county for three succes- sive weeks, and if any newspaper be published in said county, said publication shall be made in the paper so published in said county. 3. After the declaration has been duly made and recorded,, as provided in the second section of this act, the person so making her declaration as aforesaid, shall be entitled to carry on said business, trade, profession or art, in her own name, and the property, revenue, moneys, and debts and credits, so invested, shall belong exclusively to said married woman, and shall not be liable for any of the debts of her husband, and said married woman shall be allowed all the privileges, and be liable to all the legal processes now or hereafter provided by law against debtors and creditors. > Wood's Dig. p. 489. *<•, HUSBAND AJSTD WIFE. 403 4. Any married woman availing herself of the benefit of this act, shall be responsible for the maintenance of her children. 5. 1^0 married woman shall commence or carry on business on her own account, under the provisions of this act, when the amount originally invested in said business is more than five thousand dollars, unless the declaration provided for in section second, contain also a statement under oath, that the surplus of money above five thousand dollars, invested in said business, did not come from any funds belonging to her husband. 6. The husband of the wife availing herself of the benefit of this act, shall not be responsible for any debts contracted by her in the course of the said business, without the special consent of her husband, given in writing, nor shall his separate property be taken on execution, for any debts contracted by her. THE POWEK OF MJlREIED WOMEN TO CONVET EEAL ESTATE. By an act, passed February 14th, 1855, " to authorize married women to convey real estate held in their own right,'" it is pro- vided as follows : 1. That a married woman of legal age, shall have power to convey and transfer lands, or any estate or interest therein, vested in or held by her in her own right, as fully and perfectly as she might or could do if single or unmarried ; provided, the husband of such married woman be not, and for one year next preceding the execution of the instrument of conveyance by the wife, has not been bona fide residing in this state. 2. The execution of an instrument of conveyance by a married woman, independent of her husband, as -provided in the preced- ing section, shall be acknowledged before the district judge of the county in which the lands described in the conveyance are located, and the judge taking such acknowledgment, shall, be- fore he certify the same, be satisfied by the oaths of at least two credible disinterested citizens of this state, that the husband of such married woman does not, and for one year next preceding the day of acknowledgment, has not resided in this state, which fact, and the names of the witnesses by whom the same was proved, shall be recited in the certificate of acknowledgment. * ' — __^ "•^ " Wood's Dig. p. 490. 404 Bancroft's California lawyer. See chapter on Acknowiedgmentsu also, on Homestead. In reference to the power of married women to make wills, see chapter on Wills. nsrSTTEANCE OF LIVES FOE THE BEliTEFIT OF MABEIED WOMEN. By the act of May 11th, 1854, " in respect to insurance for lives for the benefit of married women,'" it is provided as fol- lows : 1. It shall be lawful for any married woman, by herself or in her name, or in the name of any third person, with his assent as her trustee, to cause to be insured for her sole use, the life of her husband, for any definite period, or for the term of his natural life ; and in case of her surviving her husband, the sum or net amount of the insurance becoming dae and payable by the terms of the insurance, shall be payable to her, to and for her own use, free from the claim of the representatives of her husband, or his creditors ; but such exemption shall not apply where the amount of the premium annually paid shall exceed three hundred dol- lars. 2. In case of the death of the wife before the decease of her husband, the amount of the insurance may be made payable to her children, and shall be received by them ; or, if under age, by their legal guardian, for their use. OF DIVOECES. By the act of March 25, 1851, "concerning divorces,'" it is provided as follows : 1. The several district courts of this state, within their respec- tive districts, shall have exclusive jurisdiction to grant a divorce from bed and board, and from the bonds of matrimony. 2. Divorces may be granted from bed and board, or from the bonds of matrimony. 3. No person shall be allowed to apply for a divorce under the provisions of this act, who has not been a resident of this state for a period of six months immediately preceding such application. 4. {Amend/ment of April Isf, 1853.) Divorces from bed and board, or from the bonds of matrimony, may be granted : 1. For ' Wood's Dig. p. 490. » d..p. 491. HUSBAND AND WIFE. 405 natural impotence existing at tlie time of marriage. 2. When tlie female, at the time of the alleged marriage, was under the age of fourteen years, and the alleged marriage was without the consent of her parents or guardian, or other person having the legal custody or charge of her person ; and when such marriage was not voluntarily ratified on her part, after she had attained the age of fourteen years. 3. By an act of adultery by either of the parties; but no divorce shall be granted upon the applica- tion of the party guilty of the act of adultery complained of, nor if it shall appear to the court that the adultery complained of was by collusion of the parties ; nor when it shall appear that the parties have lived and cohabited together as man and wife, after knowledge of the act of adultery complained of. 4. For extreme cruelty in either party, or for habitual intemperance, or for wilful desertion by either party for the period of two years ; or for wilful neglect on the part of the husband to provide for his wife the common necessaries of life, having the ability to provide the same, for the period of three years, 5. When the consent of either of the parties to the marriage was obtained by force or fraud, upon the application of the injured party. 6. In case of the conviction of either party for a felony after marriage, where the punishment is not less than imprisonment for two years. 5. No action for a divorce, on the ground of natural impotency existing at the time of the marriage, shall be allowed except by the injured party ; nor unless instituted within two years after the solemnization of the marriage. 6. When a divorce is granted on the ground of adultery on the part of the wife, the legitimacy of any children born or be- gotten of her before the act of adultery complained of, shall not be affected by the divorce. 7. In any action for a divorce, the court may, during the pen- dency of the action, or at the final hearing, 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 welfare of the children may require. 8. No divorce shall be granted in any action by default of the defendant, nor on the admission or statement of either party ; 406 BAKCEOPT'S CALIFORNIA LAWYEE. but in all cases the court shall require proof of the facts alleged as the grounds for a divorce. 9. By the supplementary act of April 24, 1857, it is provided, that 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, 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 suffi- ciency. ISTor 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. JUDICIAL DECISIONS, Living together as man and wife is not marriage, nor is an agreement so to live a contract of marriage.' Marriage is a civil contract, and no form is necessary for its solemnization. Where parties are able to contract, an open avowal of the intention, and an assumption of the relative duties which it imposes, are sufficient to render it valid and binding." Under the act defining the rights of husband and wife, prop- erty owned by the wife before marriage, and that acquired after- ward by gift, bequest, devise or descent, shall be her separate property.' The rents and profits of the separate property are declared to be common property.' The act governs, if there be no marriage contract containing stipulations contrary thereto.' The act confers on the parties, before marriage, an unlimited right to make whatever stipulations they may agree upon, in re- spect to property, and this is not confined to property in esse, but contemplates property to be acquired, and the rents and profits of the present estate." Our statute does not dispense with the interposition of trus- tees to protect the wife, except with respect to the property specified in the act. In all other respects the common law re- > Letters v. Oady, 10 Cal. 688. 3 gnyder v. Webb, 8 Gal. 88. 2 Graham v. Bonnet, 2 Oal. 608. HUSBAND AND WIFE. 407 mains unaltered, and the wife may resort to trustees for all pur- poses of security.' Where a wife claims property as her separate estate, it must have been conveyed to her before -marriage, or, if afterward, it must have been by gift, devise or descent.'' A. feme covert cannot contract under the laws of this state so as to render her liable in a suit at law.' The act of April 17, 1850, provides that the husband shall have the entire control of the common property, with absolute power to dispose of it, and upon the dissolution of the com- munity by death, one-half the property goes to the survivor. Held, that this power in the husband to dispose of the common property does not extend to a disposition by devise." The statute has done away with the common law right of dower, and substituted in place a half interest in the common property.* The husband and wife are jointly seized of the common prop- erty during coverture, with one-half interest remaining over to the wife, subject only to the husband's disposal during their joint lives." This interest in the wife is a present, definite and certain in- terest, which becomes absolute at the death of the husband." The statute gives no greater rights or privileges to wives re- siding in the state than to those who do not reside here." The mortgage note of a married woman for a portion of the purchase money of a tract of land cannot be enforced." All property acquired by either spouse during the existence of the community is presumed to belong to it, and this presumption can only be overcome by proof that it was acquired by the sep- arate funds of one of them. The burden of proof lies upon the party claiming the property as separate. The possession of prop- erty by either spouse during the existence of the community, acquired by purchase, creats a presumption that the property is common ; and this presumption can only be repelled by clear and decisive proof that it was either owned before marriage, or subsequently acquired in one of the modes designated by statute." 1 Snyder «. Webb, 8 Oal. 88. ' id. 457. ' 4 Cal. 200. ° Meyer «. Kinzer and wife, January Term, s id. 285. 1869 ; Smith v. Smitli. 4 S id 252. 408 Bancroft's California lawyer. The sale of separate property of the wife, whether real or per- sonal, must be in writing, signed and acknowledged in the man- ner pointed out by the statute : otherwise it is void.' The earnings of both husband and wife go into a common fund, and become common property, the control and disposition of which belong to the husband, and when applied by him, or with his assent, for her support, and are sufficient for that purpose, there is no basis for a decree." A provision made by the husband for the wife is not void as against subsequent creditors, provided the husband is solvent at the time.' Fraud by either party goes to the substance of the marriage contract, and vitiates it, ab initio. The concealment by the wife of the fact of her pregnancy by a stranger, at the time of her marriage, is such a fraud as will entitle the husband to a divorce.* Wilful desertion of the other, by either party, for the period of two years, is ground for divorce under the statute, and deser- tion for a less period is not sufficient to bar a decree.' Though desertion for a less period than two years is not suffi- cient, under the statute, to bar a decree where the adultery of the defendant is established, yet it furnishes a proper subject for consideration by the court in determining the character of the divorce to be granted. The statute does not intend that a divorce from bed and board, or from the bonds of matrimony, may be granted indifferently, according as the prayer of the applicant asks for one or the other modes of relief. A discretion should be exiercised by the courts, according to the special circumstances of each suit, acting upon the settled principles of the common law, as applicable to this class of cases.' The true rule which should govern the courts in the exercise of their discretion in this respect is this, that to entitle to a de- cree for an absolute divorce from the bonds of matrimony, the applicant must be an innocent party— one who has faithfully dis- charged the obligations of the mai'riage relation, and seeks relief because really aggrieved or injured by the misconduct of the other; and, on the other hand, where there are circumstances 1 T Cal. 266. * Baker v. Baker, April Term, 1859. 2 9 id. 475. s 10 Cal. 280. 3 id. 479. HUSBAND AND WIFJ3, 409 showing a disregard of those obligations, though not carried to such a degree as to constitute itself a ground for divorce, the de- cree should be only for a divorce from bed and board. To obtain a release a vinculo matn'monii, the applicant must be without reproach, and, however guilty the defendant, if the applicant is chargeable either with similar guilt, or an offence to which the law attaches similar consequences, the relief must be denied ; and if the applicant, though not thus guilty, is still not blame- less, the relief must be limited to a divorce a mensa et thoro^ In an application by a wife for a divorce on the ground of the wilful neglect of her husband, and his failure to provide her with the necessaries of life, for the period of three years, the resi- dence of the husband with the wife within the three years is no answer to the application, where it appears that they were not living together at the commencement of the suit." Wilful neglect, whether accompanied with desertion, or other- wise, is a distinct ground of divorce." 'Hie neglect must be such as leaves the wife destitute of the common necessaries of life, or such as would leave her destitute but for the charity of others. K those common necessaries are provided by the earnings of either, there is no such wilful neg- lect as is contemplated by the statute." OREGON. It is provided by statute (Statutes of Oregon, 1855, p. 536), 1. That 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. 2. Every male person who shall have attained the full age of eighteen years, and every female who shall have attained the full age of fifteen years, shall be capable in law of contracting marriage, if otherwise competent : provided, however, that noth- ing in this act shall be construed so as to make the issue of any marriage illegitimate, if the person shall not be of lawful age. 3. No marriage shall be contracted while either of the parties shall have a husband or wife living ; nor between parties who 1 10 Gal. 250. » 9 id. 475. 410 bajstceoft's oalifoenia lawyer, are nearer of kin than first cousins, computing by the rules of the civil law, whether the half or the whole blood. 4. Marriages may be solemnized by any justice of the peace in the county in which he is elected, 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 author- ized by any church. 5. 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 in this territory, shall be given to the person solemnizing the marriage before such marriage shall take place. 6. 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 magistrate, 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 per- son performing the ceremony. 1. Whenever a marriage shall have been solemnized, the per- son solemnizing the same shall give to each of the parties, if re- quired, 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 same was duly given. 8. The statute also provides for the filing and recording of cer- tificates of marriages, in a manner substantially similar to that prescribed by the California statute. 9. It is further provided by " An Act relating to Marriages and Divorces," at p. 537 of the Statutes of Oregon, 1855, 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 impediment to the proposed marriage, he sliall, on conviction, be fined in any sum not exceeding three hundred dollars. 10. No marriage solemnized before any person professing to be a judge, justice or minister, shall be deemed or adjudged to be HUSBAJSTD AND "WIFE. 411 void, nor shall the validity thereof be in any way aiteeted, on account of any want of jurisdiction or authority in such supposed judge, justice or minister, provided the marriage be consumma- ted with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. 11. Illegitimate children become legitimatized by the subse- quent marriage of their parents with each other. 12. Marriages contracted with the consent of the parties, when the residence of the parties is remote from any person duly authorized to solemnize such marriage, in any other manner than is herein prescribed, shall be valid : provided, that no legal im- pediment shall exist thereto ; such contracts shall be made in writing, duly attested, and shall be recorded in the office of the recorder of deeds of the proper county, within sixty days after the execution of the same. 13. All marriages solemnized among the people called "Friends" or " Quakers," in the form heretofore practised, and in use in their meetings, shall be good and valid. DIVOEOES. It is provided by chapter II. of the act relating to marriage and divorce (Statutes of Oregon, 1855, p. 538), that, 1. All marriages which are prohibited by law on account of consanguinity between the parties, or an account of either of them having a former husband or wife, then living, shall, if solemnized within this state, be absolutely void, without any de- cree of divorce, or other legal proceedings. 2. When either of the parties to a marriage, for want of age or understanding, 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 void from the time its nullity shall be declared by a court of competent au- thority. 3. In no case shall a marriage be adjudged a nullity, on the ground that one of the parties was under the age of legal con- sent, if it shall appear that the parties, after they had attained such age, had, for any time, freely cohabited together as husband and wife ; nor shall the marriage of any insane person be ad- 412 BANCEOFT S CALIFORNIA LAWYER. judged void, after his restoration to reason, if it shall appear that the parties freely cohabited together, as husband and wife, after such iusane person was restored to a sound mind. 4. 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 Dis- trict Court of the county where the parties, or one of them, re- side, for annulling the same ; and such complaint shall be filed, and proceedings shall be had thereon, as in the case of proceed- ings in said court for a divorce, and upon due proof of the nullity of the marriage, it shall be adj udged null and void. 5. Divorce from the bonds of matrimony may be obtained by complaint, 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 plaintifiF shall have resided for six months before suit be brought, for the following causes : 1st. Im- potency at the time of the marriage, continuing to the time of the divorce ; 2d. Adultery since the marriage, remaining unfor- given ; 3d. Wilful desertion of either party by the other, for the space of one year ; 4th. Conviction of felony, or infamous crime; 5th. Habitual gross drunkenness, contracted since marriage; 6th. Harsh and cruel treatment, or personal indignities, render- ing life burdensome ; Ith. Toluntary neglect of the husband to provide the wife with a home and the common necessaries of life for the space of one year. DOWBE. The common law right of dower is retained, and by the Statutes of Oregon of 1856, page 405, it is provided, that, 1. The widow of every deceased person shall be entitled to dower, or the use during her natural life, of one-third part of all the lands whereof her husband was seized of an estate of inheri- tance, at any time during the marriage, unless she is lawfully barred thereof. 2. The widow shall be entitled to dower out of lands of the husband, mortgaged before marriage, as against every person except the mortgagee and those claiming under him. HUSBAND AND WIFE. 413 3. A married woniaa may bar her right of dower, in any es- tate 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. 4. 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 be- fore 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. 5. 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. 6. It is further provided by the statute relating to marriage and divorce, that when the marriage 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 hus- band, 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. , T. Whenever an order of divorce from the bonds of matri- mony is granted in this state, by a court of competent authority, such order shall fully and completely dissolve the marriage con- tract 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 known and called by such name as the court shall, in its order or decree, appoint. WASHINGTON TERKITOEY. 1. By the statutes of the Territory of Washrngton, marriage is declared to be a civil contract. Ministers of the gospel, clergy- men and priests, and judges of the Supreme Court, are authorized to perform the marriage ceremony; also judges of the probate court and justices of the peace within their respective counties. 414 Bancroft's California lawyer. Parties may also be joined in marriage by the Society of Friends according to the rules of their society. But no marriage, legal in other respects, shall be void on account of the incapacity of the person joining parties in marriage; and no marriage shall be void or voidable for the want of any formality required by law, if either of the parties thereto believed it to be a legal marriage at the time. 2. It is further provided that every person' who shall join any parties in marriage, shall file a certificate thereof in the office of the clerk of the Probate Court of the county in which such per- sons were joined in marriage, which certificate shall be recorded by the clerk, and a certified copy thereof shall be evidence of such marriage. 3. A will by an unmarried woman shall be deemed revoked by her subsequent marriage. Section 8 of the act relating to wills. Statutes, page 314. 4. The marriage of an executrix extinguishes her powers, and the letters will thereupon be revoked. Section 29 of the act res- pecting executors, &c. Statutes, page 272. DIVOECES. 1. Divorces may be granted for the following causes: 1st- When the consent to the marriage of the party applying for the divorce was obtained by force or fraud, and there has been no sub- sequent voluntai-y 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 drunken- ness of either party, or the neglect or refusal of the husband to make suitable provisions for his family ; Yth. The imprisonment of either party in the penitentiary, if complaint is filed during the term of such imprisonment. And divorce may be granted on application of either party for any other cause deemed by the court BufBcient, or where the court shall be satisfied that the parties can no longer live together. 2. When there is any doubt as to the facts rendering a mar- riage void, either party may apply for, and on proof obtain, a decree of nullity of marriage. HUSBAND AND "WIFE, 415 3. Any person who has been a resident of the territory for one year, may file his or her complaint for a divorce or decree of nullity of marriage, under oath in the District Court of tlie county where he or she may reside, and like proceedings shall be had thereon as in civil cases. 4. "When the defendant does not answer, or answering, admits the allegations in the complaint, the court shall require proof be- fore granting a divorce or a decree of nullity. 6. In granting a divorce, the court shall also make 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 shall make provision for the guardianship, custody, and support and 3ducation of the minor children of such marriage. 6. 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. If . It is made the duty of the prosecuting attorney to resist all oetitions for divorce which are undefended. Act regulating divorces. Statutes, p. 40.5. FOEMS. Certificate of Ma/rriage. This certifies, that the rite of holy matrimony was celebrated between Henry Carf, of San Leandro, and Mary Pike, of San Francisco, on the first day of May, ] 859, at San Francisco, by Feancis Clark, May 2d, 1859. Minister of Church. Certifioate of Marriage. June 5th, 1859. This certifies, that I, "William H. Culver, justice of the peace, in and for the city and county of San Francisco, united in mar- riage, in the city and county of San Francisco, on the fifth day 416 Bancroft's califobnia lawyer. of June, one thousand eight hundred and, fifty -nine, Ah Ching and Min Tay. Residence, San FranciBCO. Age, twenty-nine. Color, Asiatic brown. Place of nativity, Hong Kong. Single or widowed, widowed. Eesidence, San Francisco. Age, twenty. Color, fair. Place of nativity. Canton. Single or widowed, single. In accordance with the laws of the state of California. "Witnesses, Wm. H. Culver, Hop Lee, Justice of the Peace. GoAur Haitg, C. Caetalho. Deed from Husband to Wife. This indenture, made this, &c. [date], between A. B., of [resi- dence'], of the first part, and C. B., the wife of said A. B., of the second part, witnesseth : That said party of the first, for and in consideration of the love and affection which he beareth toward his wife, the said C. B., and for the purpose of making her a gift [or, for the purpose of compensating certain advances and benefits of money and property which she brought to said partj^ of the first part by or since their marriage, or for other pwrpose, as may he], doth hereby give, grant, and convey [or, grant, bargain, and sell], unto his wife, said party of the second part, all that certain property being [here insert description'], to have and to hold the same unto tlie said party of the second part, her heirs and assigns, for her own sole and separate use, benefit, and be- hoof forever. And the said party of the first part doth hereby covenant and declare that, by this conveyance, he, for himself, his heirs, exec- utors, administrators, and assigns, doth give, transfer, convey, and relinquish to his wife, the said party of the second part, her heirs and assigns forever, all his right, title, and interest in and to the property above described, with all the rents, issues, and profits thereof, the incidents, tenements, hereditaments, and appurte- nances, to have, hold, use, and enjoy, all and singular the same, and every part and parcel thereof, as and for her separate estate, especially relinquishing for himself and his heirs all right or claim to the same or any part thereof, as community property, so that the same may be held by her as separate and not in any respect as community property. In witness whereof, said party of the first part hath hereto set his hand and seal the day and year first above written. Sealed and delivered in ) A. B. [l. s.j presence of M. N. j HUSBAJSTD AJSTD WIFE. 417 a 1 d 1 li n iS 1! § ■s«- s £ rh rf -s RM J' 1 a 11 s P4 ^ 00 'C -O 1 c ^ h-l 1 1 i 'g PM 'So P^ s o fl a ■s £^ ^ 03 e 'Ffl ■^ S tl! ^ 3 1 i lis <0 5 i- 1 g a > g h3 § ■E m .o <« fi § 2 a •g £§ "SO s 21 •3 1 1 8 g 1 o 5 3 r ^ 1 •15 iri ^ El 1 a 5' § ig ■si •gm S3 1 33,5 6 © O g i (S* ° ^- © *§§ III III 3 i § 03 i < ■? 0^ a g 1 1 ^ 3 o- 1 1 J "3 ! s l1 > 1 1 13 1 1 g u § 1 1 1^ o ■3) 1 g o ! a <] 02 -2 a i S 1 Si -S p '^ •a s a 'lii 1 M ? >■ fi gg 3 < PQ "h s 3 ffl 03 ^ ^ CO 1^ « p pi g < c n -e f M j» O fl F3 o .a 'S;7 p bDS Eh s> rf'S Californi roved Ap 1 5 ^ yrd ate of a, app •3 1 (D ■a m p o £ the ilifoi O & "SO o m 3 ^ <1 1-^ Oh g "4-1 S^i ;§ S Feeny v. Daly, 8 Cal. 84. ' Dana «. Stanfords, et al. 10 Cal. 269. 440 BANCKOFT'S CAIilFOENIA LAWYER. It was never intended to prevent an insolvent debtor from transferring his property directly to his creditor, either abso- lutely in payment of his debts, or as security by way of mort- gage.' A conveyance giving a preference, is not fraudulent, though the debtor be insolvent, and the creditor be aware at the time that it will have the eflfect of defeating the collection of other debts. To avoid the conveyance, there must be a real design on the part of the debtor to prevent the application of his property, in whole or in part, to the satisfaction of his debts. A creditor violates no rule of law, when he takes payment or security for his demand, though others are thereby deprived of all means of satisfaction of their own equally meritorious claims.' Where a debtor, who was at the time insolvent, executed a mortgage of all his property and effects to certain specified creditors, to secure his indebtedness to them, and to protect them from liabilities incurred by their endorsement of his paper: Held, that the mortgage was not an assignment either within the letter or spirit of the thirty-ninth section of the "Act for the Eelief of Insolvent Debtors and Protection of Creditors," and did not create a trust for the use of the mortgagor, prohibited by the statute of frauds.' On a petition for a discharge from the debts of the petitioner, under the Insolvent Act, it is unnecessary for the petitioner to allege that his debts were created in this state. The courts do not owe their jurisdiction, in insolvency cases, to an averment in the petition that the debts of the insolvent arose in this state." A defective statement in the schedule of an insolvent, of cer- tain promissory notes which constitute a portion of his debts and liabilities, does not invalidate the entire proceedings. If the statute, as to the particularity with which debts and liabilities are required to be set forth by the insolvent, is not substantially complied with, a creditor cannot be prejudiced by the decree of discharge in any suit which he may institute to enforce his ^ claim.' There is no rule of law which prevents a debtor, in insolvent > Dana v. Stanfoids, el aX. 10 Gal. 269. > Slade v. his nreditois, 10 Gal. 483. ^ Sharp V. hia croditors, 10 Gal. 418. INSOLVENCY. 441 circumstances, from tlie application of his property to the pay- ment of one debt rather than another.' Where it is shown that an insolvent, shortly before his appli- cation, made and caused to be recorded a deed of property, to withhold it from his schedule with a view to defraud his credi- tors, the proof of fraud is complete without proof of an actual delivery of the deed." FOEMS. Petition in Insol/vency. In the District Court of the Twelfth Judicial District, City and County of San Francisco. John Doe ) against \ his Creditors. ) To the Honorable Edward Norton, Judge of the District Court of the Twelfth Judicial District of the State of California : The petition of John Doe respectfully shows : That your peti- tioner is domiciled and now and usually a resident in the said city and county, and within the twelfth judicial district of the state of California, wherein your honor has original jurisdiction. That in consequence of losses in business, bad contracts, bad debts, in- terest paid, rents, clerk hire, expenses, Hres, shipments of mer- chandise and its depreciation, and as endorser, your petitioner has become and is insolvent, and utterly unable to pay his debts, and is an insolvent debtor within the true intent and meaning of the act entitled " An act for the Kelief of Insolvent Debtors and Protection of Creditors," passed May 4th, 1852, and being desirous of having the estate, property and effects of your petitioner ap- plied to the payment of his debts and liabilities proportionally and without preference to any, he, for that purpose, surrenders hisproperty in pursuance of the provisions of said act. The schedule annexed, marked "A," contains a summary state- ment of the aifairs of your petitioner, with a list of the losses he has sustained. The schedule hereunto annexed, marked " B," contains the names of his creditors, as near as he can now state them, and the amount due to each creditor, the cause and nature of said in- debtedness, and when it accrued, and a statement of any existing judgment, mortgage, collateral or other securities, for the pay- ment of any such debt. The schedule hereunto annexed, marked " C," contains a full, complete and perfect inventory of all the property, real, personal • Randall «. Bnflangton and wife, 10 Oal. 491. " Fislie ». his creditors, January Term, 1859. 442 bajstceoft's California lawyer. and mixed, estimated as nearly as possible at its true cash value, and all moneys on hand of, or belonging to your petitioner, and also a statement of all incumbrances existing upon said property, or any portion thereof. The schedule " D " contains a full statement and inventory of all the choses in action, debts due, or to become due to your pe- titioner, all of which are therein estimated as nearly as possible at their true cash value. Wherefore your petitioner prays to make a cession of his estate, and to be discharged from his debts in pursuance of the pro- visions of said act. Dated this 12th day of August, A. D. 1858. John Doe, By Williams & Beown, his Attorneys. Oath of Insol/oem. District Court of the Twelfth Judicial District, City and County of San Francisco. John Doe 1 against > his creditors. ) I, John Doe, do, in the presence of Almighty Grod, truly and solemnly swear, that the schedule now delivered by me doth con- tain a full, perfect and true discovery of all the estate, real, per- sonal and mixed goods and effects, to me in any way belonging ; all such debts as are to me owing or to any person or persons in trust for me, and all securities and contracts, whereby any money may hereafter become payable, or any benefit or advantage accrue to me or my use, or to any other person or persons in trust for me ; that I have no lands, money, stock or estate, reversion or expectancy, besides that set forth in my schedule ; that I have in no instance created or acknowledged a debt for a greater sum than I honestly and truly owed ; that I have not directly or indi- rectly sold or otherwise disposed of in trust, or concealed any part of my property, effects or contracts ; that I have not in any way compounded with my creditors, whereby to secure the same, or to receive or tO expect any profit or advantage therefrom, or to defraud or deceive any creditor to whom I am indebted, in any manner whatever. So help me God. John Doe. Subscribed and sworn to before me, this 12th day of August, 1858. Edward Norton, District Judge, Twelfth Judicial District. INSOLVBlSrCY. 443 SCHEDULE A. EEFBEEED TO IN THE FOEBGOING PETITION, AND FOEMINfi PART THBEBOP. A summary statement of petitioner's affairs, and a list of losses he has sustained : Capital stock commencing business as a merchant at San Francisco, A. D. 1867 Profits Total - Yalue of real' estate as per schedule 0, annexed .... $4,000 00 Value of merchandise on hand as per schedule ... 1^500 00 Amount of debts due to the petitioner as per schedule D - - - 800 00 Losses on depreciation on merchandise 6,000 00 Paid for interest as per balance of inter- est account ... Paid for rent and other expenses as per expense account - - - . Paid for personal and family expenses 3,500 00 Loss on - Loss by destruction of goods by fire 8,000 00 Loss by endorsing note for Wm. Cook 5,000 00 $10,000 00 16,000 00 $26,000 00 SCHEDULE B. Eeferred to in the annexed Petition and forming a part tliercof, giving the names of his creditors 60 far as Itnown, the amount due each creditor, and the cause and nature of sach indebtedness and when it accrued, and a statement of every existing judgment, mortgage, collateral or other security for the payment of any such debt. Names of Creditors. Amount. Cause of Indebt- edness. Nature of Indebt- edness. When it Accrued. Every existing judgment, mort- gage, collateral or other securi- ty, for the pay- ment of said debts. Wm. Brown. $1,000 00 Money borrowed. Promissory Note dated May 1,1868, for $10,000, paya- ble thirty days af- ter date, interest two and a half per cent, per month. May 1st, 1868. Price & Co. 500 00 Groceries pur- chased. Book Account. April I5th, 1858. Judgment ren- dered in the lath district court. May 20th, 1869, for S540 25 costs. Sam. See & Co. 5,000 00 Purchase of Eloe. « » May 10th, 1858. 444 Bancroft's caiifoenia lawtee. SCHEDULE C. KBPERBED TO IN THE POBBGOINGt PETITION, AND PORMINa PART THEREOP. A full, complete and perfect inventory of all the petitioner's property, real, personal and mixed, estimated as nearlj^ as possi- ble at tne true cash value. All money on hand, of said insolvent, ■with a full statement of all the incumbrances existing on the property of the insolvent. REAL ESTATE. A lot of land and tenement thereon, situated north- west corner of Brannan and Second streets, 25x80 feet, claimed as homestead, - - $4,000 00 MIXED ESTATE. Twelve himdred boxes of tea, 1,500 00 PERSONAL PROPERTY. Household furniture, 200 00 Petitioner's clothing and wearing apparel,' - - 50 00 "Wearing apparel of family, viz. : wife and one child, - 150 00 SCHEDULE D. Referred to in the annexed Petition and forming part thereof, containing a full statement and in- ventory of all the choses in action, debts due and to become due to Petitioners. Name of debtor. Amount Cause of indebt- edness. Nature of in- debtedness. When it accru- ed. Their cash val- ue. Collateral se- curity for the payment, and general re- marks. B. Jones. Wm. Pierce. Jno. Clark, $400 00 150 00 150 00 Goods sold. Money loaned. Goods sold. Book account. Note dated May 15th, 1859, payable sixty days after date, interest one and a half per cent, per month. Book account Feb. 1st, 1858. May 15th, 1859. Jan. 15th, 1859. $400 00 150 00 250 00 Oertificate to Schedule. In the District Court of the Twelfth Judicial District, in and for the City and County of San Francisco : John Doe ) against Y his Creditors. ) City and County of San Francisco, ss. The within and foregoing petition and schedule of John Doe, vs. his creditors hereto attached, having been now this day duly INSOLVENOY, 445 signed and sworn to before me, by the said insolvent, Jobn Doe, I nerebj certify the same as such, and order that they be filed in the office of the clerk of this court, in this county, there to re- main for the information of creditors. Dated, San Francisco, this twelfth ) day of August, 1858. J Edwaed Nokton, District Judge, Twelfth Judicial District. Ordev to show Comse a/nd Stay of Proceedings. In the District Court of the Twelfth Judicial District, of the State of California, in and for the City and County of San Francisco : John Doe ) against \ his Creditors. ) Upon reading and filing the petition, schedules and oath of the above-named insolvent, and on motion of Williams & Brown, of counsel for said petitioner, it is ordered that all the creditors of the said insolvent, John Doe, be and appear before the Hon- orable Edward N"orton, aforesaid judge of the District Court, of the twelfth judicial district, in open court, at the court-room of said court in the city and county of San Francisco, on the twenty- fifth day of September, A. D. 1858, at 10 o'clock, A. M., of that day, then and there to show cause, if any they can, why the prayer of said insolvent should not be granted, and an assign- ment of his estate be made, and he be discharged from his debts and liabilities, in pursuance of the statute in such case made and provided. And it is further ordered that in the mean time all proceedings against said insolvent be stayed. And it is further ordered that the clerk of this court issue a notice, calling the creditors to appear, at the time and place and for the purposes aforesaid ; that such notice be published at least thirty days in a newspaper published in the county aforesaid, if there be one, if there be none, then in a newspaper printed near- est to that county. Edwaed Norton, District Judge, Twelfth District. NoUcefrom Court to Creditors. In the District. Court of the Twelfth Judicial District, of the State of California : In the matter of the petition of \ John Doe, an Insolvent Debtor, j Pursuant to an order of the Honorable Edward N"orton, judge of the said District Court, notice is hereby given to all the' cred- 446 BAJS'CROFT'S' CALIFOKmA LAWYER. itors of the said insolvent, John Doe, to be and appear before the Honorable Edward Norton, aforesaid, in open court, at the court-room of said court, in the city and county of San Francisco, on the twenty-fifth day of September, A. D. 1858, at 10 o'clock, A. M., of that day, then and there to show cause, if any they can, why the prayer of said insolvent should not be granted, and an assignment of his estate be made, and he be discharged from his debts and liabilities, in pursuance of the statute in such case made and provided : and in the mean time all proceedings against said insolvent be stayed. I- , "Witness my hand and the seal of said court, this ( L^- ^•■1 twelfth day of August, A. D. 1858. f Wm. Duee, Clerk. Wm. E. Satteelee, Deputy Clerk. Affldamit of PubUoaUon offoregovng Notice. State of California, ) City and County of San Francisco, j ilobert White, book-keeper and principal clerk, in the office of the San Fra/noisco Herald — a daily and weekly newspaper, published in said city and county, being duly sworn, deposes and says, that the notice, of which the annexed printed notice is a copy, has been published in said paper at least thirty days, com- mencing on the thirteenth day of August, 1858, and endrng on the twenty-fifth day of Septembter, 1858. Subscribed and sworn before me this ) twenty-fifth day of September, 1858. j Joe Black, Notary Public. Assignment m Insolvency. This indenture, made this twenty-fifth day of September, A. D. 1858, between John Doe of San Francisco, an insolvent debtor, party of the first part, and Charles Doane of San Francisco, sheriff of the city and county of San Francisco, party of the second part, witnesseth, that whereas the said party of the first part, on the twelfth day of August, A. D. 1858, presented to the Hon. Ed- ward Norton, judge of the twelfth judicial district court [being the judge having original jurisdiction within the said district, of which me said party of the first part, was then, and still is a resident], his petition, briefly stating the circumstances which compelled him to stirrender his property to his creditors, and concluding with a prayer to make a cession of his estate, and to be discharged from his debts, in pursuance of the provisions of the " Act for the Kelief of Insolvent Debtors and Protection of Creditors," passed May 4, 1852, annexing to said petition the schedules, and making the oath required by said act : and such proceedings having been thereupon had in due form of law, that INSOLVENCY. 447 on the twenty-fifth day of September [the creditors, although duly summoned, not having attended on the day appointed for their meeting, and refusing to appoint one or more assignees,] the said judge did, by order then duly made, authorize the sheriff of the city and county of San Francisco to receive the surrender of property offered by the debtor, and to perform, in every respect, the functions of assignee-; and for the faithful performance of said trust, to be responsible on his official bond : Now, therefore, in consideration of the premises, and of the benefit of said act, and in pursuance of and in obedience to the above-recited order and the said act, the said party hereto, of the first part, hath assigned, transferred and set over, and by these presents doth assign, transfer, and set over, unto the said party of the second part, his successor, successors or assigns, all and all manner of goods, chattels, debts, moneys, and all other things, property, estate and effects of the said party of the first part, real, personal and mixed, of what kind, nature or quality soever, and wheresoever the same may be situated, and whether in posses- sion, reversion, remainder or in action, at the time of presenting his petition. To have and to hold the same and everj part and parcel there- of, unto the said party of the second part, his successor, succes- sors and assigns, forever, to and for the uses and purposes in the said act declared. In witness whereof, the said party of the first part hath hereto set his hand and seal, the day and year first above written. John Doe. [l. s.J Assignee's Certificate. In the District Court of the Twelfth Judicial District. State of California, ) City and County of San Francisco, f ®^ ' John Doe 1 against > his Creditors. ) I hereby certify that John Doe has duly executed, under his hand and seal, and duly acknowledged before an officer authorized to take acknowledgments of deeds, and delivered to me an assign- ment of all his estate, real, personal and mixed, for the benefit of his creditors, in pursuance of an order of the District Court of the twelfth Judicial District, made on the 25th day of September, A. D. 1858, and that he has delivered to me all the goods, claims, effects and estates, assets, choses in action, evidences of debt, accounts, notes, bills and muniments of title, declared by said insolvent in his schedule, or relating to the property and effects therein set forth. Dated September 25th, A. D. 1858. Ohaeles Doane, Assignee of said Insolvent. 448 BAifCROFT'S CALIFOKNIA LAWYER. Order of Discha/rgefor Insdboent. State of California. In the District Court of the Twelfth Judicial District. In the matter of the application of John Doe" for the benefit of the Act for tlie relief of insolvent debtors and protection of cred- itors, passed May 4th, 1852. City and County of San Francisco, ss: Whereas the said petitioner, domiciled and usually residing in the city of San Francisco, in the county of San Francisco, and within the twelfth judicial district, did on the twelfth day of August, A. D. 1858, petition the judge of the District Court of the twelfth judicial district, having original jurisdiction within the county aforesaid, briefly stating the circumstances which compelled him to surrender his property to his creditors and praying to make a cession of his estate, and to be discharged from his debts in pursuance of the provisions of an act entitled "An Act for the Kelief of Insolvent Debtors and Protection of Creditors," passed May 4th, 1852; and the said petitioner having annexed to and filed with his said petition a schedule of his affairs, as required by the 3d and 6th section of said act, by him signed and sworn to before the said judge, the said petition and sched- ule were thereupon certified by said judge and by him caused to be filed in the office of the clerk of said court, in the county aforesaid, there to remain for the information of the creditors, and upon receiving which said petition, schedule and affidavit, the judge thereupon, to wit : on the twelfth day of August, A. D. 1868, made an order requiring all the creditors of said insolv- ent to show cause, if they could, on Saturday, the twenty-fifth day of September, A. D. 1858, before the said judge, in open court, at the court-house thereof in said county, why an assign- ment of said insolvent's estate should not be made, and he be discharged from his debts, and did then and there direct the clerk of said court to issue a notice calling the creditors of said insolvent to be and appear within thirty days from the date of the publication of such notice, before said judge at chambers or in open court, to show cause why the prayer of said insolvent should not be granted ; in pursuance whereof the said clerk did issue a notice calling them to appear in the said court on the twenty-fifth day of September, A. I). 1858, on which day, it ap- pearing to the satisfaction of the court, upon affidavit filed, that the notice to the creditors of said insolvent had been regularly published in pursuance of said order, and no creditors of said in- solvent appearing, upon motion of the petitioner's counsel, it was ordered that the sheriff of the county be authorized to receive INSOLVENCY. 449 tlie surrender of property offered by t]ie said insolvent debtor, and to perform in every respect the functions of assignee. Now, at this day, to wit : on Saturday, the fifteenth day of November, A. D. 1858, it appearing . to . the satisfaction of the court that ten days have fully elapsed since the appointment or authorization of said sheriff to act as assignee, and that no writ- ten opposition by any of the creditors of said insolvent, to the appointment of said assignee or to the surrender of said peti- tioner's property, or the discharge of insolvent, has been filed or laid before the court, and that said surrender has been made ac- cording to the provisions of said act, and that the requirements of said act for the relief of insolvent debtors and protection of creditors, and all the orders of the court herein, have in every respect been fully complied with and performed by the said petitioner, TJpon application and motion of counsel, it is ordered, ad- judged and decreed that said insolvent debtor be and is hereby released and fully discharged from any and all such debts and liabilities as are set forth and named in his said schedule, which were contracted before the sun-ender of his estate under the pro- visions of the aforesaid act, and contracted after the passage of said act, and from every judicial proceeding relative to the same. Edward Norton, District Judge, Twelfth Judicial District. Deed in Bamhrv/ptcy. In the District Court Judicial District : State of California, ) County of . j A. B. ) agamst V his Creditors. ) This indenture, made this day of , 1857, be- tween C. D. sheriff of the county of , assignee of A. B., the above-named insolvent, of the first part, and M. N., of the second part : Whereas, by virtue of an order in the above cause, tested the first day of March, 1857, 1 was authorized to sell at public auction all the property of said insolvent of what- soever nature or kind, as by said order and papers on file, ref- erence being thereunto had, will more fully appear ; by virtue of said order I did on the fifteenth day of April, 1857, sell all the right, title and interest of the said insolvent in and to the prem- ises hereafter described, at public auction, according to the stat^ ute. in such case made and provided — at which sale the right, title and interest of said insolvent in and to the following prem- 29 450 bajstoboft's califgenia lawyer. ises were struck ofi and sold to O. P., for the sum of one thou- sand dollars, he, the said 0. P., being the highest bidder, and that being the highest sum bidden for the same. Now this indenture witnesseth, that I, C. D., sheriff as aforesaid, and assignee of said insolvent, by virtue of said order, and in pursuance of the statute in such case made and provided, for and in consideration of the sum of money, above mentioned, to me in hand paid, as aforesaid, the receipt whereof is hereby ac- knowledged, have granted, sold, conveyed, and by these presents do grant, bargain, sell, convey and confirm unto the said O. P., his heirs and assigns, all the estate, right, title and interest of A. B., the said insolvent, in and to the following described property, to wit: [Here insert description.] together with all and singular the hereditaments and appurte- nances thereunto belonging, or in anywise appertaining, to have and hold, the said above mentioned and described premises, with the appurtenances, unto the said O. P., his heirs and assigns, forever, as fully and absolutely as I, C. D., assignee as aforesaid, can, may or ought to, by virtue of the said order and of the statute in such cases made and provided, grant, bargain, sell, release, assign, convey and confirm the same. In witness whereof I, the said assignee, have hereunto set my hand and seal, the day and year first above written. C. D., [l. s.] Sealed and delivered in ) Assignee of A. B. presence of E^. L. j Order for Pa/yment of Dividend. District Court of , Judicial District, County of : John Short 1 against > his Creditors. ) William Pluck | against > his Creditors. ) The orders heretofore made, requiring the creditors of said in- solvents to show cause why the statements deposited by the as- signee in the clerk's office of this court should not be accepted, and distribution made, being returnable this day, and this being the day for showing cause as aforesaid, and it appearing to the court that fifteen days' notice had been given according to law, and no caTise being shown why a distribution should not be made, and it also appearing to the court that the sum of seven thou- INSOLVENCY, 451 sand thirty-three and 99-100 dollars mentioned in said statement to he dislrihuted, is the same money mentioned in the statements filed and deposited in each of said causes, and that the creditors and the sums and claims due each, are the same creditors and claims mentioned in each statement. It is therefore ordered that said assignee pay over to the creditors of said insolvents, John Shaw and William Pluck, eighteen per cent, of their several claims as set forth in the statements filed in the above causes ; that is to say : To A. B. the sum of $324 14 To 0. D. the sum of 352 38 &c., &c. For forms relating to homestead exemption, in favor of in- solvent, see title Homestead. 452 BANCE0FT'&/ OALITQBNIA LAWYEB. CHAPTER XXIV. JTJEOES. BTATUTOET PEOVISIONS. A PEEsoN shall not be competent to act as juror unless he be : 1. A citizen of the United States. 2. An elector of the county in which he is returned. 3. Over twenty-one and under sixty years of age ; and, 4. In the possession of his natural faculties. 5. ]^or shall any person be competent to act as juror who has been convicted of a felony or misdemeanor tuvolving moral turpitude.' Every white male citizen of the United States, and every white male citizen of Mexico who shall have elected to become a citizen of the United States under the treaty of peace exchanged and ratified at Queretaro, on the thirtieth day of May, one thou- sand eight hundred and forty-eight, of the age of twenty-one years, who shall have been a resident of the state six months next preceding the election, and the county or district in which he claims his vote, thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law." For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence, while employed in the service of the United States, nor while engaged in the navigation of the waters of this state or of the United States, or of the high seas ; nor while a student of any seminary of learning ; nor while kept at any almshouse or other asylum, nor while confined in any public prison." No idiot or insane person, or person convicted of any infa- mous crime, shall be entitled to the privileges of an elector." Absence from the state on business of the state, or of the I Wood's Dig. ait. 2699. " W. 2120-2124. JtTRORS. 453 United States, shall not affect tlie qnestion of residence of any person.' A crime shall be deemed infamous which is punishable. by death or by imprisonment in the state prison.' A person shall be exempt from liability to act as a juror, if he be : 1. A judicial officer. 2. Any other civil officer of this state, or of the United States, whose duties are at the time inconsist- ent with his attendance as a jiiror. 3. An attorney or counselor. 4. A minister of the gospel or a priest of any denomination. 6. A teacher in a college, academy or school. 6. A practising physician. 7. An officer, keeper, or attendant of an almshouse, hospital, asylum, or other charitable institution, created by or under the laws of this state. 8. Any person engaged in the per- formance of duty, as officer, keeper or attendant of any county jail, or of the state prison. 9. A captain, master or other offi- cer, or any person employed on board of a steamer, vessel, or boat, navigating the waters of this state, and keepers of public ferries.' Any person may be excused from acting as a juror, when for any reason, his interests,' or those of the public, will be materi- ally injured by his attendance, or when his own health or the death or sickness of a member of his family requires his absence." The officers and members of any fire company, regularly at- tached to the fire department of any city, town or village within the state, organized according to ordinance of such city, town or village, shall be exempt from militia service and jury duty, except as hereinafter provided.' The officers and members of any company in said fire depart- ment, shall be exempt from military duty, except in cases of war, invasion, or insurrection." It shall be the duty of each person claiming exemption from military or jury duty under the provisions of this act, to pro- duce, if required by the officer serving a jury or militia notice, a certificate of his active membership to the fire department or company to which he is attached, signed by the chief engineer, secretary of the board of delegates of the fire department, fore- > Wood's Dig. art. 212ft-2124. ' Id. 2517, 2518. » id. art 2700, 2701. 454 ban'ceoft's California lawyer. man of the company, or chief magistrate of the city, town or village.' The officer serving the jury summons or militia notice, may require the oath of the party summoned or notified, before any magistrate, that he has not resigned, been expelled, or forfeited his membership of the company or department, since the date of his certificate.' When fire companies are formed in unincorporated and unor- ganized towns and villages, the members thereof shall be enti- tled to all the rights and privileges of "An Act to exempt Fire- men from Militia Service and Jury Duty," passed March twenty^ fifth, one thousand eight hundred and fifty-three." All active members of uniformed volunteer companies of this state, mustered into service of the state, under the provisions of the laws thereof, shall be exempt from jury duty.' The grand jiiry is composed of sixteen members." A grand jury may be ordered by the presiding judge of the Court of Sessions, before the commencement of the term, when it shall appear to him necessary, or when petitioned to that effect by twenty or more electors of the county. The. jury so ordered is drawn by the county clerk, in presence of the county judge and the sheriff, out of thirty names, copied by them from the assessment-roll, a week's notice of the drawing having been given by the sheriff.* If, after the term of the court be commenced, it shall appear proper to the presiding judge that a grand jury should be sum- moned, he shall cause an order for the same to be entered upon the minutes, a copy of which is delivered to the sheriff, who pro- ceeds immediately to summon sixteen persons from the body of the county list — ^not from the bystanders.' When an assessment-roll has not been returned, so that a jury cannot be drawn, the court, on the first day of the term, may enter an order directing the sheriff to summon sixteen persons, from whom the jury shall be empanelled.' If an offence be committed during the sitting of the court, ' Wood's Dig. art. 2517, 2518. » Wood's Dig. art. 2T02 ; Laws 1859, p. 1S4 » Id. 2523. » -Wood's Dig. art. 2704; Laws 1859, p. 184. ' id. 2832. 7 Wood's Dig. art. 200-204; Laws 1SS9, p. 186. * Laws 1859, pp. 184 and 186. JUEOES. 455 after the discliarge of the grand jury, the court may, in its dis- cretion, order sixteen persons to be summoned, from a list of which, upon its return by the sheriff, the clerk shall draw a grand jury/ The mode of summoning juries is, by giving written notice to each of them personally, or by leaving such notice at his place of residence, with some person of suitable age and discretion." The sheriff makes his return on the day appointed, the persons summoned and the manner in which each was notified.' If the full number of competent persons be not thus obtained, the sheriff is' ordered to summon a sufficient number to complete the grand jury.* The provisions in reference to the challenge of grand jurors and their powers and duties are found in Wood's Digest, from page 284 to 287. ' A trial jury for every general term of the District Court, and of the Court of Sessions, is drawn and summoned in the same manner as a grand jury." The court may impose a fine not exceeding one hundred dol- lars (in city or justices' courts fifty dollars) for each day the juror shall, without cause, neglect to attend. If, however, the notice was not personally served, the juror shall first have an oppor- tunity, on an order to show cause, to be heard." A trial jury is summoned for a county court, recorder's court, mayor's court, or justice's court, when specially ordered by the court. For the county court the jurors are summoned from the county by the sheriff, for the recorder's or mayor's court from the city by the marshal, and for the justice's court from the city or township by the constable of the court.' For coroner's jury see chapter on Coeonees. The foregoing provisions in regard to the mode of drawing jurors do not apply to the city and county of San Francisco. By a special act relating to San Francisco couhty it is provided that the supervisors shall annually, between the first Monday of January and the first of April, apportion among their several > ■ Wood's Dig. art. 19T-I99; Laws 1859, p. 186. « Wood's Dig. ait. 2T05, 2706, and 200. 2 Wood's Dig. art. 2702, § 6. " id. 2703, 2708. = id. § 7. ' id. ^708, 2709. 1 id 2703; Laws 1859, p. 1S4 456 banceoft's California lawteb. difetricts from four hundred to five hundred persons to be re- turned as grand jurors, and from twelve hundred to fifteen hun- dred as trial jurors.' The names of a number of persons equal to the number so ap- portioned to each district for grand jurors and trial jurors are taken from the poll list of that year by the supervisor of the dis- trict, during the first week in April. And the whole list of grand jurors and the whole list of trial jurors are revised by the board and certified, and are filed with the county clerk." The names thus selected are written upon ballots, closely folded, and placed in two boxes, one for the grand jury, and one for the trial jury, from which the grand and trial juries, respect- ively, are drawn by lot, by the county clerk, in the presence of the sheriff, and at least two witnesses named by the court.^ If any of the persons who^e names are drawn, are excused by the court from serving, or are temporarily disqualified, their ballots are returned to the box ; but the ballots containing the names of those who serve and those permanently disqualified or exempt are destroyed.* It is further provided, however, that whenever a court or judge in San Francisco, upon ordering a jury, may be of opinion that a jury cannot be readily obtained under the special act, he may set forth such opinion in his order, and thereupon a jury may be obtained according to the general act.' FORMS. CerUficate of Drcmvng a Jwry. \ State of California, County of In pursuance of an order issued by the Hon. , County Judge of county, dated , A. D. , directed to, and ordering the sheriff of county to summon a trial jury for the term, A. D. , of the, Court of Sessions of said county, to be held on the &c., &c., said trial jury to be in attendance on said court on &c., &c. We, the undersigned, county judge, county clerk, and sheriff, > Laws 1857, p. 168. « Id. 1858, p. 170, ITl. = id. 190. » id. 1859, p. 191. > Id. 191; id. 1858, p. ITO. JUROES. 457 proceeded to copy from tlie assessment roll of the said county, the names of thirty persons, to wit : A., B., C, D., &c., &c. In witness whereof we have hereunto set our hands, this day of A. D. . M. E"., County Judge. O. P., County Clerk. E. S., Sheriff, &c. State of California, \ County of . j We, , county judge, , county clerk, and , sheriff of the county of state of CaUfomia, met at the chambers of the county judge, in on the day of , A. D. , at o'clock, in pursuance of the order of the county judge and notices given by said sheriff, pro- ceeded and placed in a box prepared by the county clerk, the names of the before-named thirty persons, each name being on a separate piece or slip of paper. The said county clerk, in the presence of the county judge, and the said sheriff, drew from the box the names of twenty-four persons, to serve as trial jurors, until discharged, in the said court, to wit : A., B., C, D., E., F., &c., &c. In testimony whereof we have hereunto affixed our names, this day of , A. D. . Coimty Judge. County Clerk. Sheritf. Order of Simmioning a Qrcmd Jury. Court of Sessions of the County 1 of , Term, A. D. . j Whereas the presiding judge of this court, before the present session of said court, did not deem it necessary that a grand jury should be summoned, and no petition signed by any of the electors of this county, asking that a grand jury should be sum- moned, was presented to said judge, and no grand jury was sum- moned for the present session of said court, either before or since the commencement of the said present session of said court, and no grand jury is now empanelled. And whereas, after the announcement of the session of said court, at the present term thereof, it now appears proper to the said judge of the said court, that a grand jury should be sum- moned, It is, therefore, ordered, by the direction of the presiding judge of this court, that a grand jury be summoned for the present term of said Court of Sessions, and that the sheriff of the county of , summon sixteen persons from the body of the county, and not from the bystanders, to appear before the 458 Bancroft's California lawyer. said Court of Sessions of the county of , at the court-room thereof, at &c. &c., on the day of , A. D. ^ , at o'clock of said day, to form such grand jury, according to the statute in such case made and proyided. Dated, . M. N., County Judge. [l. s.] Attest, A. B., Clerk. Order for Sum/moning a Trial Jwry. Court of Sessions of the ) Term County of , j Whereas no trial jury has been ordered or summoned for the present term of this court, and by reason of certain criminal cases being now at issue and undetermined in this court, which ought to be brought to trial without delay, it has become necessary during this term, that a trial jury should be enipanelled, It is, therefore, ordered by this court, that the sheriff of the county of , do summon from the citizens of the said county, but not from the bystanders, &c., &c. [same as above']. r ■, M.. 1^., County Judge. L^- ®--J Attest, A. B., Clerk. PeUtion for Summonmg a Orand Jury. To the Honorable , Presiding Judge of the Court of Sessions of the County of : A. B., district attorney of the county of , respectfully represents, that since the commencement of the present term of this court, certain indictments found in this court at the last term thereof, and transferred to the District Court of the judicial dis- trict, against divers persons, charging them with the crime of murder, have been set aside by said court for insufficiency, and the cases have been ordered to be resubmitted to a grand jury of this county ; That it is important that the cases should be speedily investi- gated, as parties are now in the county jail of said county, under a commitment for said offences, and that there are other persons now coniined in said jail upon charges of felony, whose cases require the immediate investigation of a grand jury. Wherefore your petitioner prays that a grand jury may be forthwith ordered to be summoned before this court for the pur- pose of transacting such business as may lawfully come before them. Dated April 19th, 1866. A. B., District Attorney. JTJE0E3. 459 State of California, , ' ^ ss. County of . j A. B., district attorney of said eonnty, being duly sworn, saith, that the facts stated in the foregoing petition are true. Sworn and subscribed before me this ) A. B. 19th day of April A. D. 1856. j M. N., County Clerk. Order for Trial Jwors for San Francisco County. In the District Court of the Twelfth Judicial District of the State of California, in and for the City and County of Sau Francisco. Present, Hon. Edward Norton, judge. Wednesday, June 1st, A. D. 1859. Ordered, That forty-eight (48) jurors be drawn and summoned according to law, to serve as trial jurors of this court for the July term, A. D. 1859 next ensuing, and that they be and ap- pear at the court-room of this court in the city-hall of tlie city and county of San Francisco, on Tuesday, the 5th day of July, A. D. 1859, at ten o'clock A. M. of that day. And it is further ordered, that William H. Tillinghast and Etting Mickle, citizens of said city and county, be and they are hereby appointed as witnesses to be present at the drawing of said jurors. I hereby certify the foregoing to be a true copy of the order for trial jurors for the July term, A. D. 1859, as entered in the minutes. P ' 1 Attest my hand and the seal of said District Court, this L^- ^--1 1st day of June, 1859. Wm. Duee, Clerk, By W. Baetlett, Deputy Clerk. GlerKs Certificate of Proceedings under foregoing Order. State of California, ) City and County of San Francisco, j ^^■' I, William Duer, county clerk of the city and county of ^an Francisco, do hereby certify, that in pursuance of section Y, of an act entitled '' An Act to prescribe the Mode of drawing Grand Jurors and Ti'ial Jurors, in the City and County of San Francisco," approved, April 2d, A. D. 1857, and in pursuance of an order of the District Court of the twelfth judicial district of the state of California, in and for the city and county of San Francisco, a copy of which is hereunto annexed, I did on the 2d day of June, A. D. 1859, request the attendance of Charles Doane, sheriff of the city and county of San Francisco, at my office, ir< 460 BANCEOFT'S CALIFOENIA LAWTEE. the city-hall of said city and county of San Francisco, on said 2d day of June, 1859, at two o'clock, P. M., and was on said day then and there attended by Kobert B. Wallace, a deputy sheriff, of said city and county, and William H. Tillinghast and Etting Mickle, the witnesses named in said order, and in the presence of said Eobert B. Wallace, deputy sheriff aforesaid, and the said William H. Tillinghast and Etting Miclde, witnesses, I then and there proceeded to draw by lot in the manner prescribed by law, the names of forty-eight persons, to serve as trial jurors dur- ing the July term, A. D. 1859, of said court, a list whereof is hereunto annexed. And I do further certify, that I delivered a list of the names of the persons so drawn, with their residences, to said sheriff, and returned a copy thereof to the said District Court. Attest my hand this 2d day of June, A. D. 1859. William Dtjee, County Clerk. BIST OF NAMES DRAWN. Name. Residence. 1. John Brown, 45 William street. 2. John Smith, 103 Third street. 3. Eichard Eoe, &c., &c. &c., &c. Order for Grand Jwry,made lefore Term, for same Cmmiy. Court of Sessions of the ) City and Count)/ of San Francisco, \ ^^ ' It appearing necessary to me, M. C. Blake, presiding judge of the Court of Sessions of said city and county, that a grand jury should be summoned for the June term of said court, in the year of our Lord 1858, being the next term thereof, I do therefore hereby order the sheriff of said city and county to summon such grand jury according to law, and that the same may be done, I do further order the county clerk of said city and county, to draw by lot, as by law required, the names of twenty-four persons qualified by law to serve as grand jurors, and to deliver a proper list of the persons so drawn, to the said sheriff, and I also name and appoint Milo Calkin and Charles R. Bond to be present as witnesses at such drawing ; and I also order that the persons summoned as grand jurors by virtue of this order, be in attend- ance on "said court at the court-room thereof, in the city-hall in the said city and county, on Monday the 14th day of June, A. D. 1858, at the hour of two of the clock in the afternoon of that day. Dated this fifth day of June, A. D. 1858. M. C. Blake, Presiding Judge of the Court of Sessions. JUEOES. 461 Sheriff ^s Meiwrn, as to Service of Notice wpon Jv/rors, drawn in obedience to the foregoing Orde/r. Office of the Sheriff of the City ) and County of San Francisco, j I hereby certify that I received the annexed order of the pre- siding judge of the Court of Sessions of the city and county of San Francisco, on the 7th day of June, 1868, and that I delivered said order on the same day, to the county clerk of said city and county of San Francisco, and that on the 9th day of June, 1858, William Duer, said county clerk, returned said order to me, with a list of twenty-four names thereunto annexed, together with his certificate that the names mentioned in said list were drawn in accordance with said order, and as prescribed by law ; and I further certify, that I personally summoned the following named persons mentioned in said list, which is hereunto annexed, to ap- pear and serve as grand jurors in accordance with said order, to wit: A., B., C, D., E., F., &c., and that I summoned the follow- ing named persons, mentioned in said list, to appear and serve as grand jurors in accordance with said order, by leaving a written notice at their places of business, not being able, after due search and inquiry, to find them or their residences, to wit : G., H., I., J., K., L., &c., &c., and that the following named per- sons, mentioned in said list, to wit : M., N., O., P., Q., E., ove form], the sheriff of said city and county is hereby ordered to summon from the body of the county, but not from the bystanders, fifteen duly qualified persons to complete such grand jury, and to require them to be in attendance, &c., &c. Same Gowniy — Order for Summoning Orand Jury, made iefore Term. In the Court of Sessions of the City and County of San Fran- cisco, on the 20th day of April, A. D. 1859, and after the commencement of the session of said court for the term which began on the fourth day of April, A. D. 1859. It not having appeared necessary to the presiding judge of said court, before the commencement of the session thereof, for the term aforesaid, that a grand jury should be summoned, and no petition of any kind, asking that a grand jury should be sum- moned, having been presented to said judge, and no grand jury having been summoned for the said term of said court ; and now, it appearing proper to the said judge, that a grand jury should be summoned for the term of said court before named, I, the said judge, do hereby order that a grand jury shall be sum- moned for this court for the present term thereof, to be in attend- ance thereon on Saturday, the 23d day of April, instant, at two of the clock, P. M., and the sheriff of said city and county is hereby directed to execute this order, in manner as by law re- quired. I am of the opinion, that the jury hereby ordered to be sum- moned, cannot be readily obtained under the provisions of an act entitled "An Act to prescribe the Mode of drawing Grand Jurors and Trial Jurors in the City and County of San Francisco," ap- proved April 2d, 1857. I direct that this order be entered upon the minutes of the said court, and a copy thereof be delivered to the said sheriff. M. C. Blake, Presiding Judge of the Court of Sessions of the City and County of San Francisco. Savie County — Order to Summon Trial Jury after Commence- ment of the Term — with Return of Officer. In the Court of Sessions of the City and County of San Francisco. Now on this eleventh day of April, A. D. 1859, during the term of said court, which commenced on the fourth day of April, A. D. 1859, a jury becoming and being necessary in said court, for and during the term aforesaid, and no jury having been in any man- JUEOES. 463 ner, or for any cause ordered therefor, and the court being of the opinion that the jury bo required cannot be readily obtained under the provisions of an act entitled " An Act to prescribe the Mode of drawing Grand Jurors and Trial Jurors in the City and County of San Francisco" — approved April 2, A. D. 1857, the sheriff of said city and county is hereby ordered by the court to summon from the citizens of the county, but not from the bystanders, forty-eight persons to form a trial jury for said court, on "Wednes- day next, the thirteenth day of April instant, at ten o'clock A. M. on that day. Jv/ror's Swmifrums. Sheriff's Office, San Francisco, April 1, 1859. To Mr. James Don : You are hereby commanded to be and appear before the Court of Sessions of the city and county of San Francisco, on Tuesday, the fifth day of April, 1859, at ten o'clock, A. M., at the court-room of said court, at the City Hall in the city and county of San Francisco, then and there to serve as a trial juror [or, grand juror.] Herein fail not, under the penalty of the law. Charles Doane, Sheriff. By D. W. 0. Thompson, Deputy Sheriff. Order for Special Jury m cm Insol/venoy Case. District Court, Fourth Judicial District, City and County of San Francisco. Edward Smith, an Insolvent Debtor, ) against > his Creditors. ) Ordered that six (6) jurors be drawn and summoned according to law, to serve as special jurors in this cause, and try the issues of fraud joined herein, and that they be and appear at the court- room of this court in &e., on &c. It is further ordered, that Milo Calkin and Charles E. Bond, citizens of said city and county, be and they are hereby appointed as witnesses, to be present at the drawing of said jurors. I hereby certify the foregoing to be a true and correct copy of the, order entered on the minutes of said fourth district court, in the above-entitled cause. Attest my hand and the seal of said district court, this [l. s.j twenty-first day of September, A. D. 1858. William Duee, Clerk. By Chas. S. Oapp, Deputy Clerk. 464 Bancroft's California lawyer. Betv/rn of Officer on the Foregoi/ng. Office of the Sheriff of the | City and County of San Francisco, ) ^^ " By virtue of and in accordance with the annexed order made by the Court of Sessions of the city and county of San Francisco, on the eleventh day of April, 1859, and received by me on the same day, I have personally summoned from the citizens of the county, but not from the bystanders, the following-named per- sons, to wit : A. B., 0. D., E. F., &c., by giving written notice to each of them personally in said city and county, to be in at- tendance on said court, on Wednesday, the thirteenth day of April, 1859, at ten o'clock A. M. of that day, to form a trial jury for said court during the present term thereof. Chaeles Doanb, Sheriff. By D. W. C. Thompsom", Deputy Sheriff. San Francisco, April 13, 1859. justices' courts. 465 CHAPTER XXV. justices' couets. Justices of the Peace, beside entertaining jurisdiction in cer- tain civil and criminal actions, have authority in a variety of other matters, under the provisions of different statutes. A portion of their statutory duties are enumerated in the suc- ceeding section, and their authority as committing magistrates "will be found in the chapter entitled Magistrate. They are authorized to take acknowledgments of the execution of deeds, and other instruments affecting property in the county of their jurisdiction,' to administer oaths and affirmations," to require hawkers and peddlers to take out license," to apprehend vagrants and dissolute persons,* to regulate the apprenticing and treatment of Indians,' to direct the disposition of estrays,' to review the de- cisions of judges of the plains,' to take Cognizance of violations of the game laws," and of the law forbidding barbarous and noisy amusements on the Sabbath," to require sureties of the peace from keepers of brothels and to punish for obscene publi- cations," to aid the sheriff in securing wrecks and lost property," to remove dams, or other obstructions to the run of salmon, and to take cognizance of offences against the law for the preservation of salmon," to consent to the apprenticing of minors in certain cases," to administer oaths of office," to receive fees to their own ixse," and to officiate as associate judges of the court of sessions." By the constitution, judicial power is vested in justices of the peace, and they are authorized to hold courts in the respective 1 See Acknowledgment. > Wood's Dig. art. 448, lOT. » id. 8067. i id. 8452. « id. 2648, 2649, and 2668. • id. 288T; Laws 1859, p. 147. ' Wood's Dig. art. 2695. ■ Id. 2540. 30 « id. 8IT9. i» id. 2593; Laws 1859, p. 297. " Wood's Dig. art. 8530. " id. 8195. " Laws 1858, p. 134. " Wood's Dig. art. 2869. '" Const, art vi. sec. 11. '• id. sec. 8. 466 Bancroft's oalifobnia lawteb. townships for which they are elected, which are denominated justices' courts.' The civil and criminal jurisdiction of justices' courts is defined by statute as follows :" Justices' courts shall have jurisdiction of the following actions and proceedings: 1. Of an action arising on contracts for the recovery of money only, if the sum claimed, exclusive of inter- est, does not exceed two hundred dollars. 2. Of an action for damages for injury to the person, or for taking or detaining personal property, if the damages claimed do not exceed two hundred dollars. 3. Of ah action for a fine, penalty or for- feiture, not exceeding two hundred dollars, given by statute or the ordinance of an incorporated city. 4. Of an action upon a bond conditioned for the payment of money not ex- ceeding two 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 instalments, an action may be brought for each instalment as it becomes due. 5. Of an action upon a surety bond or undertaking taken by them, though the penalty exceed, if the amount claimed does not ex- ceed two hundred dollars. 6. Of an action for the foreclosure of any mortgage, or the enforcement of any lien on real or per- sonal property, when the debt secured does not exceed, exclusive of interest, two hundred dollars. 7. Of an action to recover the possession of personal property, when the value of such prop- erty does not exceed two hundred dollars. 8. To take and enter judgment on the confession of a defendant, when the amount confessed does not exceed two hundred dollars. 9. Of an action for a forcible or unlawful entry upon, or a forcible or unlawful detention of lands, tenements, or other possession. 10. Of an action to determine the right to a mining claim, and for damages for injury to the same, when the damages claimed do not exceed two hundred dollars. 11. Of proceedings respecting vagrants and disorderly persons. The jurisdiction conferred by the last section shall not extend, however : 1. To a civil action in which the title to real property shall come in question. 2. Nor to an action or proceeding against ships, vessels or boats, or against the owners or masters ' Const, art, yi. sec. 1 and 4. " Wood's Dig. art. 678-680; andseoMAaiSTKATH justices' courts. 467 thereof, when the suit or proceeding is for the recovery of sea- men's wages for a voyage performed in whole or in part without the waters of this state. These courts shall also have jurisdiction, except within the limits of the city of San Francisco, of the following public of- fences committed within the respective counties in which such courts are established: 1. Petit larceny. 2. Assault and bat- tery, not charged to have been committed upon a public officer in the discharge of his duties, or with intent to kill. 3. Breaches of the peace, riots, affrays, committing a wilful injury to prop- erty ; and all misdemeanors, punishable by fine, not exceeding five hundred dollars, or imprisonment not exceeding six months, or by both such fine and imprisonment. See chapter entitled Magistrate. There shall be no terms in justices' courts ; these courts shall always be open. In the city and county of San Francisco, under the provisions of the Consolidation Act as amended April 18, 1857, the criminal jurisdiction of justices of the peace is invested in the police judge. A justice is required to keep a record or statement of every proceeding taken before him, with all the particulars, in a book, with an alphabetical index, which is called his docket. This docket is transmitted to his successor, together with any docket or dockets of his predecessors which may be in his custody, to be kept as public records. Should his office become vacant by death or otherwise, these records are deposited with the county clerk until there be a successor.' In this docket must be entered all the steps which occur in an action or proceeding, from the title of the suit to the notice of appeal, and the entry of each matter must be made at the time it occurs. Such entries, or a certified transcript thereof, are pri- mary evidence of the facts so stated." From such docket, execution or other process may be issued by the justice, or his successor in office ; a certified transcript of a judgment entered therein, may be recorded in the office of the county recorder of any county, and thereupon constitute a lien upon real estate. Or the same may be filed in the office of the > Practice Act, § 604-60T. = id. 605. 468 bakcroft's California lawyer. clerk of the county in which such justice has jurisdiction, upon which the judgment may be docketed by the county clerit, and execution may be issued to any other county of the state." A justice has power to punish for contempt, summarily, when committed in his presence, and upon a warrant of arrest when not committed in his immediate view. Such punishment cannot exceed, however, in any case, a fine of one hundred dollars, and imprisonment for one day.' A justice may in all cases require a deposit of money, or an imdertaking, as security for costs of court, before issuing a sum- mons. He must receive all moneys collected by any sheriff or constable on process from his court, and pay the same over to the parties entitled, without delay, on penalty of removal from office and conviction of misdemeanor." Except in certain cases, a civil action in a justice's court, should be brought in the town- ship where the defendant resides. In San Francisco, the de- fendant may be sued in any township of the county. A non-res- ident of the county may be sued whenever found. Parties may appear voluntarily and enter an action, or judgment by confes- sion may be entered before any justice.* By the law of California, actions are required to be prosecuted in the name of the real party in interest.' When a married woman is a party her husband must join with her, except when the action concerns her separate property. An infant can only appear by a guardian ad litem, who is appointed by the justice." The mode of commencing a civil action is by filing a copy of the accoimt, note, bill of exchange or evidence of indebtedness, bond or instrument, sued on, or a concise statement in writing of the cause of action, and the issuance of a summons thereon.' The summons may be accompanied, according to the nature of the action, by an order of arrest (if the defendant be not a fe- male), a writ of attachment, or an order for the delivery of per- sonal property. For each of these additional processes, special application must be made under the statute, and security given." » Practice Act, § 608 and 599. ' Id. 4 and 633. > id. 616-618. « Id. T, 9, and 688. » Id. 688, 634. ' id. 68S. « id. 636-587. « Id. 544-569. justices' couets, 469 The summons shall be addressed to the defendant by name, or if his name be unknown, by a fictitious name ; and shall sum- mon him to appear before the justice, at his office, naming its township or city, and, at a time specified therein, to answer the complaint of the plaintiff, for a cause of action therein described in general terms, sufficient to apprise the defendant of the nature of the claim against him ; and in action for money or damages, shall state the amount for which the plaintiff will take judg- ment, if the defendant fail to appear and answer. It shall be subscribed by the justice before whom it is returnable/ The summons, when accompanied with an order of arrest, is re- turnable immediately. When either party is a non-resident of the township or city, it is returnable, not more than two days from date, and must be served at least one day beforehand. In all other cases, not less than two nor more than ten days from date, and must be served at least two days before the time for appearance." It must be served by the sheriff, or a constable of the county, by delivering a copy personally to the defendant, or his, or its, legal representative. If he is a non-resident, or cannot be found, or secretes himself, service may be made by publication of the summons.' The legal statements by the parties, of the cause of action and the grounds of defence, are called pleadings, and are, 1st. The complaint by the plaintiff. 2d. The answer by the defendant.' "When the pleadings are oral, the justice must enter the sub- stance of them in his docket. "When they are in writing, he must file them in his office, and make a reference to them in the docket. They are not required to be in any particular form, but should be plain, direct statements, such as to enable a person of common understanding to know what is intended.' The pleadings shall be in writing, and verified by the oath of the party, his agent or attorney, when the action is : 1. For the foreclosure of any mortgage or the enforcement of any lien on personal property. 2. For a forcible or unlawful entry upon, or a forcible or unlawful detention of lands, tenements, or other pos- ' Practice Act, § MO. * Id. 570. » id. 541. » Id. 5T2. 3 id. 542, 548. 470 baitoeoet's califoenia lawter. Bessions. 3. To recover rpossession of a mining claim. In other cases the pleadings may be oral or in writing.' In addition to his denial of the complaint, or other ground of defence, the defendant may set up a counter-claim." AVhen,the cause of action or counter-claim, is an account or instrument for the payment of money only, no formal pleading is necessary ; the party may simply deliver a copy of the account or instrument to the court, stating the specified sum he claims to recover or set-oflF. The original must be produced and a copy furnished to the adverse party, if required." Where a copy of the note, bill of exchange, or other written ob- ligation for the payment of money sued on, is filed, the signatures of the makers, endorsers or assignors thereof, are admitted unless the defendant specifically deny them in his answer, under oath.' 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 defence, al- though 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.* * A variance between the proof on the trial and the allegations in a pleading, shall be disregarded as immaterial, unless the court be satisfied that the adverse party has been misled to his prejudice thereby.* Tlie pleadings may be amended at any time before the trial, to supply a deficiency or omission, when by such amendment substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the ad- verse party in consequence of such amendment, an adjournment shall be granted. The court may, also, in its discretion, require as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the court, not exceeding twenty dollars ; but such payment shall not be required unless an ad- journment is made necessary by the amendment ; nor shall an amendment be allowed, after a witness is sworn on the trial, when an adjournment will thereby be made necessary.' > Practice Act, § 5T1. > id. 577. ' id. 574, 6T6. « id. 578-580. 8 id. 576. justices' cotjets. 471 "When upon the trial of a cause, it shall appear from the show- ing of the plaintiffj or from the sworn answer of the defendant, that the determination of the action will necessarily involve the decision of a question of title to real property, the justice, not having jurisdiction of such questions, must suspend all further proceedings in the case, and certify it up to the District Court. Simply swearing to the fact, will not constitute sufficient ground for the justice to send up the case ; but the facts and circum- stances must appear on the trial, or must be set forth in the sworn answers, showing, legally and logically, that a necessity exists for raising , the question of title to real property. K the transfer is made on the application of the defendant, he must give security for costs." When the justice is a material witness for either .party, or when either party makes affidavit, that he cannot have a fair and impartial trial, by reason of the interest, prejudice and bias of the justice, or where a jury trial is demanded, by reason of the bias, &c., of the citizens of the township, the action may ' be transferred to another justice." On the return day of the summons, the case may be adjourned upon a proper showing being made, not to exceed ten days, ex- cept where a long adjournment be necessary, in order to obtain material evidence, in which case the adjournment may be made for a period not to exceed four months, the party being required to give security to pay any: judgment that may be obtained against him.' If the plaintiff fail to appear at the return day of the sum- mons, the action shall be dismissed. If the defehdant fail to ap- pear 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 pleadings and proofs.* When the defendant fails to appear and answer, judgment shall be given for the plaintiff, as follows ; 1. "When a copy of the ac- count, note, bill, or other obligation ixpon which the action is 1 Practice Act, § 581. ' id. 583-585. a Id. 582. « id. 536. 472 banchoft's California lawyee. brought, was filed witli the justice at the time the summons was issued, judgment shall be given without further evidence, for the sum specified in the summons. 2. 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." Judgment that the action be dismissed without prejudice to a new action, may be entei'ed, with costs, in the following cases : 1. When the plaintiff voluntarily dismisses the action before it is finally submitted. 2. "When he fails to appear at the time speci- fied in the summons, or upon adjournment, or within one hour thereafter. 3. When it is objected at the trial, and appears by the evidence, that the action is brought in the wrong county, or township, or city ; but if the objection be taken and overruled, it shall be cause only of 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." Upon issue joined, Jf a jury trial be not demanded, the justice shall hear the evidence, and decide all questions of fact and of law, and render judgment accordingly.' In actions respecting mining claims, proof shall be admit- ted of the customs, usages or regulations established and in force at the bar or diggings embracing such claim ; and such customs, usages or regulations, when not in conflict with the constitution and laws of this state, shall govern the decision of the action.* 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 adjournment, the time and place shall be determined by the justice, 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.' At the time appointed for the trial, the justice shall proceed to call, from the jurors summoned, the names of the persons to con- > Praotiee Act, § 592. t la. 62I. ' id. 591. » Id. 58T-590. s id. 598. justices' courts. 473 stitute the jury for the trial of the issue. The jury, by consent of the parties, may consist of any number not more than twelve, nor less than three.' If a sufficient number of competent and indifferent jurors do not attend, the justice shall direct others to be summoned from the vicinity, and not from the bystanders, sufficient to complete the jury.' Either party may challenge the jurors. The challenges shall be either peremptory or for cause. Each party shall be entitled to three peremptory challenges. Either party may challenge for, cause, on any grounds set forth in section one hundred and sixty- two. Challenges for cause shall be tried by the justice in a summary manner, who may examine the jury challenged, and witnesses.' 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 defend- ant has been arrested, and is still in custody ; in other cases it shall be entered within four days after the close of the trial. If the action be on contract against two or more defendants, and the summons is served on one or more, but not on all, the judg- ment shall be entered up only against those who were served, if the contract be a several or a joint and several contract; but if the contract be a joint contract only, the judgment shall be en- tered up against all the defendants, but shall only be enforced against the joint property of all, and the separate property of the defendants served." "When the amount found due to either party exceeds the sum for which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be rendered for the residue." "When a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it shall be so stated in the judgment, and entered in the docket.' When the prevailing party is entitled to costs by this chapter, the justice shall add their amount to the verdict : or, in case of a failure of the plaintiff to recover, or in case of a dismissal of the 1 Practice Act, § 68T-590. = Id. 597, 598. ' id. 594, 596. 474 BAJ^'CEOFT'S califoenia iawtek. action, shall enter up judgment in favor of the defendant for the amount of such costs.' If the defendant, at any time before the trial, offer, in writing, to allow judgment to be taken against him for a speciiied sum, the plaintiff may immediately haye 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 pro- vided." Justices of the peace may issue subpoenas in any action or proceeding in the courts held by them, and final process on any judgment recovered therein, to any part of the county.' Execution for the enforcement of a judgment in a justice's court may be issued on the application of the party entitled thereto, at any time within five years from the entry of judg- ment.' The execution, when issued by a justice, shall be directed to the sheriff, or to a constable of the county, and subscribed by the justice by whom the judgment was rendered, or by his suc- cessor in ofiice, and shall bear date the day of its delivery to the officer to be executed. It shall intelligibly refer to the judg- ment, by stating the names of the parties, and the name of the justice before whom, and of the county, and the township or city, where, and the time when, it was rendered ; the amount of judgment, if it be for money ; and if less than the whole is due, the true amount due thereon. It shall contain, in like cases, similar directions to the sheriff or constable as are required by the provisions of title seven* of this act, in an execution to the sheriff." The sheriff or constable to whom the execution is directed shall proceed to execute the same in the same manner as the sheriff is required by the provisions of title seven' of this act to proceed upon executions directed to him; and the constable, when the execution is directed to him, shall be vested for that 1 Practice Act, §§ 59T, 598. ' id. 619 and 600-1)03. 2 id. 596. * Id. 209-245; Laws 1859, pp 189, 140. justices' couets. 475 purpose with all the powers of the sheriff, and, after issuing an execution, and either before or after its return (if the same be returned unsatisfied either in whole or in part), the judgment creditor shall be entitled to an order from the justice requiring the judgment debtor to attend, at a time to be designated in the order, and answer concerning his property before such justice, and the attendance of such debtor may be enforced by the jus- tice ; on his attendance such debtor may be examined under oath concerning his property, and any person alleged to have in his hands property, moneys, effects or credits of the judgment debtor may also be required to attend and be examined, and the justice may order any property in the hands of the judgment debtor, or any other person not exempt from execution, belonging to such debtor, to be applied toward the satisfaction of the judgment ; and the justice may enforce such order by imprisonment until complied with, but no judgment debtor or other person shall be required to attend before the justice out of the county in which he resides.' The summons, execution and every other paper made or issued by a justice; except a subpoena, shall be filled up without a blank left to be filled by another, otherwise it shall be void.'' In case of sickness or other disability of the justice, another justice of the township or city may act in his stead.^ A discreet person may be deputized to serve process, in place of the constable, assuming his authority and obligations.* A constable, notwithstanding the expiration of his term of office, may proceed and complete the execution of all final pro- cess which he has begun to execute, in the same manner as if he still continued in office, and his sureties shall be liable to the same extent.' Commissions to take depositions of witnesses out of the state may be issued by justices, and the provisions of the statute con- cerning witnesses, and the manner of obtaining evidence in dis- trict courts are made applicable to justice's courts, so far as con- sistent with the jurisdiction and powers of justice's courts.' ' Practice Act, § 619 and 600-602. * id. 613, 614; 4 Cal. 1S8. « Practice Act, § 611. » Practice Act, § 615. » id. 612. « id. 620, 891-454. 476 BANCROFT'S CALIFORNIA LAWYER. Any party dissatisfied with the judgment may appeal to the county court within thirty days, on payment of the court fees ; by filing a notice of appeal with the justice, serving a copy on the opposite party, and filing an undertaking for costs in the sum of one hundred dollars. If he wishes to stay execution, the bond must be in twice the amount or value of the j udgment and costs ; and in every case the sureties must justify. In place of giving the bond, a deposit of money may be made.' The appeal may be taken from the whole, or part of the judg- ment ; and on questions of law, or fact, or both ; and the notice should specify the character and extent of the appeal. A notice of appeal " from the whole judgment," is considered a sufficient notice of appeal, on questions of both law and fact." "When the appeal is on questions of law alone, a statement must be prepared within ten days, of the grounds of appeal, and so much of the evidence as is applicable ; and if amendments be filed, the whole must be settled by the justice on notice. The statement must be made, even though the errors of law are ap- parent in the papers, and the same with a copy of the docket, all motions filed, the notice of appeal and the undertaking filed, must be sent up to the county court.' When a party appeals to the county court on questions of fact, or on questions of both law and fact, no statement need be made, but the action shall be tried anew in the county court.* It is the duty of the justice, within five days after the appeal is perfected, on payment of his fees, to send up all the papers to the county court, and he may be compelled to transmit them, by an order entered, on motion, by the county court, and may be fined for a neglect or refusal." There is some question as to whether, when the appeal is perfected immediately after judgment, the appellant has the whole period of the thirty days in which to pay the justice's costs and have the papers sent up. The county court of San Francisco has made a rule, that except in cases of error, mistake or oversight, the appeal may be dismissed on mo- tion for — 1st. The failure of the appellant to pay or tender to the justice 1 Practice Act, §§ 624, 628. * id. 626. ' id. 624. » id. 62t. ' id. 62i justices' courts. 477 his costs on appeal, and to pay or tender, either to the justice or clerk of this court, the fees of the county clerk for entering the cause in the county court, within such time after taking the appeal as will permit the cause to be entered on the general calendar of this court for the term next succeeding the taking the appeal, al- lowing to the justice five days after the taking the appeal, and hefore the commencement of the next term, in which to transmit the papers. 2d. The failure of the appellant to use due diligence to pro- cure the transmission of the papers to the county court, and to cause the case to be entered on the trial calendar, or other negli- gence in prosecuting the appeal. FOECIBLE ENTET AND UNLAWFUL DETAINEE. Forcible entry and unlawful detainer are the violent and un- lawful taking and keeping possession of lands, tenements, and other possessions, with threats, force and arms. The statute of California' declares : "1^0, person or persons shall hereafter make an entry into lands, tenements, or other possessions, but in cases where entry is given by law, and in such cases, not with strong hand, nor with multitude of people, but only in a peaceable manner ; and if any person from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by fine." This action may be maintained in three cases ; first, when the entry is forcible ; second, when the entry is simply unlawful and the detainer forcible ; third, when the entry was lawful, and the detainer or holding over forcible. But in all these cases there must be something of personal violence, either threatened or actual.'' The complainant must show an actual, peaceable, and exclusive possession of the property in himself at the time of the entry ; therefore it is that a landlord cannot maintain this action for an unlawful entry upon his tenant. The design of the statute is simply the protection of the possession, and it cannot be extended by implication to any other than the real occupant.' The action cannot be maintained where the defendant, or his ancestors, or those whose interest in the premises he claims, have > Wood's Dig. p. 467. ' 5 id. 118. : 9 Gal. B. 46. 478 bajstcroft's califoenia lawteb. "been in the quiet possession for the space of a year, next before the institution of the suit. Jurisdiction is given in all these cases to justices of the peace, without reference to the value of the premises, or the amount of damages claimed.' OREGON -AND WASHINGTON. In Oregon and Washmgton the civil jurisdiction is substantially the same, except that, 1. The jurisdiction is limited in amount to the sum of one hundred dollars. 2. Actions to foreclose mortgages and enforce liens on real estate, actions for false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction (and in Oregon on promises to marry,) and actions against an administrator or executor, as such, cannot be maintained. 3. The action for seamen's wages is not restricted. He has also jurisdiction in actions for fraud, in the sale, pur- chase, or exchange of personal property to one hundred dollars. The criminal jurisdiction of justices in Oregon is limited prin- cipally to actions for 1. Breaches of the peace, assaults, batteries, and affrays, not being cases of riot, unlawful assembly, or with intent to murder, kill, maim, rob, or rape. 2. Fines and forfeitures under the Gambling Act. 3. Disturbing religious meetings. 4. Injuring trees or fences, breaking glass, destroying or alter- ing monuments, guide-boards, or certain other property ; trespass- ing upon lands with intent to commit injury to the same. 6. Larceny under twenty dollars. 6. Buying, receiving, or aiding in the concealment of goods or property nnder twenty dollars. The criminal jurisdiction of justices in Washington Territory is, concurrent with that of the district court in affrays, assaults, assaults and batteries, violation of estray laws, obstructing of highways and bridges, neglect of roads by supervisors, public indecency, having obscene books and pamphlets for publication or otherwise ; forcible entry and detainer, malicious trespass, where the fine does 1 6 Oal. 63. ■ ■ JUSTICES' COUETS. 479 not exceed thirty dollars ; they also have cognizance of cases of breaches of the peace, and are authorized to suppress riots. JUDICIAL DECISIOBfS. "Where a judgment of a justice of the peace is for an amount exceeding his jurisdiction, the county court, on appeal, should dismiss the whole case.' Justices of the peace have no jurisdiction to try a cause wliere there is an alleged injury arising out of a diversion of water from the natural or artificial channel in which it is conducted." Justices of the peace have no jurisdiction in actions to recover damages for injury to a mining claim, or for its detention.' Where the complaint in an action to recover possession of a mining claim in a justice's court contains an allegation of injury done, and a prayer for damages, the latter should be disregarded or stricken out, and the plaintiff be allowed to try his right to the claim." The legislature cannot confer any jurisdiction upon justices of the peace over cases where the amount in dispute exceeds in value the sum of two hundred dollars, the statute giving them jurisdiction over cases of disputed mining claims, has been already construed by this court by this rule, to which there are no excep- tions.* The objection to the jurisdiction, on the ground of excess of value of the subject of controversy, is properly taken by answer, and when so taken, should be first determined before proceeding to hear the merits of the case.* The jurisdiction of justices of the peace ia forcible entry and detainer cases arises from the quasi criminal nature of those cases, which fall under the head of special cases, as that term is used in the constitution.* The jurisdiction of justices of the peace is limited by the con- stitution to cases in which the value of the thing in controversy does not exceed the sum of two hundred dollars, except in pro- ceeding under the statute concerning forcible entry ,and unlaw;ful detainer. ° 1 Ford V. Smith, 5 Cal. 881. « Small t). Gwinn. 6 Cal 44T. ^ Hill V. NewmaD, et, al. 5 Cal. 445. • Freeman ®. Powers, T Cal. 104. ' Van Etten v. Jilson, 6 CaL 19. 480 Bancroft's califoenia la-wtee. The fact that the thing in dispute, a mining claim, is worth more than two hundred dollars, ousts the justice of his jurisdic- tion.' Judgment by consent or confession, for over two hundred dol- lars, in a justice's court, is void. Consent of parties cannot give jurisdiction which the constitution denies." A notice of appeal from a justice's to a county court, stating that defendant appealed from the whole judgment, is a sufficient notice within the statute.' Notice, of appeal from the judgment of a justice of the peace may be served on the attorney of the adverse party.* The general law regulating appeals, which provides that notice may be served on the party or his attorney, must govern cases arising in justices' courts." A justice of the peace may refuse to send up the transcript of a cause tried before him until his fees are paid by the appellant ; but if he sends it up without receiving his fees, the fact that they are not paid is no ground for dismissing the appeal.' Where a party appealed from a justice's court to a county court, and the justice neglected to send up with the record the notice of appeal : hsld^ that it was error to refuse to allow appel- lant the opportunity of moving to compel the justice to send it up, by peremptorily dismissing the appeal." A defendant who has been properly served with process issued out of a justice's court, who allows judgment to be taken against him by default, admits the facts alleged in the complaint, and no appeal will lie from such judgment in reference to such facts, there being no issue of fact.' In such a case, where the defendant appeals on both questions of law and fact, he is not entitled to a trial de novo.'' Nor could he ask the county court to hear the appeal, on ques- tions of law, unless there was a statement filed of the grounds on which he intended to rely.' A justice of the peace has jurisdiction to grant appeals, and 1 Freeman v. Powers, T Cal. 104. ' Bray v. Eedman, 6 Gal. 28T. 2 relllett V Engles. 8 Cal. T6. « Sherman d. Eolberg, 9 Cal. IT. 3 McDermott «. Douglass, 5 Cal. 89. ^ The people &b rel. Jones v. the county court « Welton V. Garibardi, Cal. 345. of El Dorado County, 10 Cal. 19. justices' courts. 481 to stay proceedings thereupon, and his action cannot be reviewed on certiorari^ An execution can only he issued upon a judgment obtained before a justice of the peace, within five years after the entry of the judgment. In contemplation of the statute, there is no judg- ment after that time.' The loss of the docket of the justice will not prevent the statute from running." It is the duty of a justice of the peace, when an appeal bond is presented to him for his approval, to act promptly. If he re- ceives the bond without objection, it will be too late to disap- prove it the next day.° An offer to pay the justice his costs, on appeal, so soon as the appeal papers are ready to transmit to the county court, is not a sufBcient tender, under the statute. The fees must be tendered unconditionally.' The justice is not bound first to make out the papers, and then rely on his fees being afterward paid.' Where an alternative mandamus was issued to a justice of the peace to compel him to send up papers on appeal to the county court, to which he answered that his fees had not been paid or tendered " prior to the service of the alternate writ :" lield^ his answer is no defence to the writ being made peremptory, as the fees may have been paid since the service of the writ.' The constitution vests the legislature with power to confer such jurisdiction on justices' courts as are not exclusively vested in other courts. The act conferring criminal jurisdiction on justices' courts is constitutional.* A justice of the peace cannot take and certify the acknowledg- ment of a married woman. It must be done by a justice of the Supreme Court, judge of a District Court, county judge, or notary public.' Where a cause is heard on appeal in a county court, for the purpose of trying the same de novo, it is the duty of the court to proceed with the trial on the merits of the case.' A judgment of dismissal, therefore, upon the ground that it » Coulter ». Stark, 7 Cal. 244. * People v. Fowlor, 9 Cal. 85. » White «. Clark, 8 Cal. 512. ■' Kemlall «. Miller, 9 Cal. 691. ' People 60! rel. v. Harris 9' Cal. 571. « Coyle ii. Baldwin et al 5 Cal. 75 31 482 BANCROFT'S CALIFORNIA LAWYER. did not appear that the defendants had notice of the trial in the court below, is erroneous, and will be set aside.' An objection that a county court has no jurisdiction in cases on appeal, where no appeal bond is given as required by the statute, should be made in the court below. It is too late to raise the question in the county court." "Where such an objection is made within the proper time, it is the daty of the presiding judge to hear the excuse of the party failing to produce it, and if sufficient, to allow him to file a bond." Amendments should be readily allowed, whenever they will tend to the furtherance of jiistice, and the greatest liberality in this respect should be extended to pleadings in justices' courts." The county court has the sole appellate jurisdiction in all cases, civil and criminal, arising in justices' courts, subject to such restriction as the legislature may impose by making the decisions of the justice final in such cases as may be determined by law.' The Court of Sessions has no appellate jurisdiction in either civil or criminal eases. Their jurisdiction is original, not appel- late. In all cases where an appeal lies from a justice's court, it must be taken to the county court.* The failure of a justice of the peace to state in his docket that the summons was returned "served," will not vitiate the judg- ment on appeal. The fact of service may be shown by the return of the officer on the summons.' An appeal cannot be taken from the decision of the county court to the Supreme Court, upon a case appealed to the county court from a justice's court, where the amount in controversy does not exceed two hundred dollars exclusive of the costs.' 1 Coyle «. Baldwin, et al. 5 Cftl. 75. * People v. Fowler, 9 Oal. 85. ' Howard v. Harman, 5 Cal. 78. » Denmark v. Liening, 10 Oal. 93. » Butler «. King, 10 Cal. 842. « Hildreth ®. Gunidon, April Term, 1859. justices' courts. 483 F0EM8. Simimons. State of California. In the Justices' Conrt of the Second Township, in and for the City and County of San Francisco. The People of the State of California to C. D., greeting : You are hereby summoned to appear before me, at my oflBce in the second township, in the city and county of San Francisco, on the fifteenth day of June, A. I). 1859, at twelve o'clock M., to answer unto the complaint of A. B., upon a promissory note, &c. {describe it, stating the amount, c&c], when judgment will be taken against you for the said amount, together with costs and damages, if you fail 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 tenth day of June, A. D. 1859. Wm. Claek, [l. s.] Justice of the Peace of said Township. Order of Arrest. State of California, | City and County of San Francisco, j The People of the State of California to the Sheriff or any Con- stable of said county : Tou are hereby commanded to arrest the within-named de fendant and bring him before me forthwith (at my office in said township), to answer the plaintiff's complaint, filed. Given under my hand, this tenth day of June, A. D. 1859. Wm. Claek, Justice of the Peace. I hereby certify that I have served the above order, by arrest- ing and bringing into court the said C. D., this tenth day of June, A. D. 1859. Wm. Black, Constable. Endorsement Deputizing Special Oonstahle. At the request of the plaintiff, and on being satisfied that it is expedient, 1 hereby especially deputize A. H. Johns, a discreet person, and of suitable age, and not interested in the action, to serve and return the within writ, and the within attachment. June 10th, 1869. Wm. Clauk, Justice of the Peace. 484 Bancroft's California lawyer. Corwplaint on Written Instrwment. In the Justices' Court of the Seeoud Township. State of California, ) , City and County of San Francisco, j ^ ' A. B. I against > The above-named A. B., as plaintiff, commences this action in the justices' court of the second township, state of California, against the said C. D., a resident of said city and county, as de- fendant, and for cause of action complains and alleges as follows, to wit : That heretofore, to wit, on the first day of April, in the year of our Lord one thousand eight hundred and fifty-nine, at the said city and county, the said defendant made his certain instru- ment in writing, bearing 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 be- came and still 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 said 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 presented and payment thereof demanded, unjustly neglects and refuses to pay the same or any part thereof, and that said sum, in said instrument mentioned, 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 [amotmt of the note] dollars, with interest thereon, from the first day of April, A. D. 1859, at the rate of two per cent, per month, besides costs of suit. Dated San Francisco, this tenth day of June, A. D. 1859. John Brown, Plaintiff's Attorney. Affidoflntfor Order of Arrest. In the Justice's Court of the Second Township, State of California, ) City and County of San Francisco, \ ^^ ' A. B. j against \ CD. ) A. B., the plaintiff in this suit, being duly sworn, deposes and Bays, that the cause of action in this case arose after the passage JtJSTIOES' COUETS. . 485 of. tlie 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, J8.51 ; that it is an ac- tion 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 ccmse of arrest, as may Se.J And deponent further states and shows to the court the follow- ing facts and circumstances \or of other ground of arresi] in sup- port of the above allegations of fraud, that is to say : [here state the facts and circumstances jpa/rticularI/i/.~\ A. B. Sworn to before me, this tenth day of June, A. D. 1859. "Wm. Claek, Justice of the Peace. UndertaMng on Ord6r of Arrest. Justices' Court, Second Township. State of California, ) City and County of San Francisco, j ^^ " A.B. ) against > C. D. ) Whereas, an order to arrest the above-named defendant has been this day issued, now, therefore, we, the undersigned, do undertake on the part of the above-named plaintiff, that if the defendant recover judgment 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 arrest — not exceed- ing two hundred dollars. Witness our hands and seals in the city and county of San Francisco, on the tenth day of June, A. D. 1859. A. B. [l. s.] L. M. [l. s.] N. P. [l. s.] Approved, "Wm. Claek, Justice of the Peace. [Affida/vit of justification in usual form.\ Undertaking hy Defendant on Arrest. Justices' Court, Second Township. State of California, ) City and County of San Francisco, j ^^ ' A._B. 1 against > C. D. ) Whereas, the above-named defendant has been arrested at the suit of the above-named plaintiff, now, therefore, we, the under- 486 Bancroft's California LA-mrEB. signed, do undertake on the part of the above defendant, thathe 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 pay to the plaintiif the amount of any judgment which he may recover in this action, not exceeding two hundred dollars. Witness our hands and seals in the city and county of San Francisco, on the tenth day of June, A. D. 1 859. C. D. [l. s.] E. F. [l. s.] Approved, J- H. [l. b.] Wm. Clark, Justice of the Peace. Wm. Claek, Justice of the Peace. Yenire. Justices' Court, Second Township, before Wm. Clark, Esq., Jus- tice of the Peace. State of California, I . City and County of San Francisco, ) A.B. against > CD. j The People of the State of California, to the Sheriff or any con- stable of said county, greeting : You are hereby commanded to summon twelve good and law- ful men, citizens of the city of San Francisco, and not from bystanders, to act as jurors to try the issue in the above-entitled cause ; said jurors to meet at my office in said township, for said purpose, on the twentieth day of June, A. D. 1869, at 12 o'clock precisely. Make lawful return hereof. Given under my hand this fifteenth day of June, A. D. 1859. Wm. Claek, Justice of the Peace of said Township. Writ of Attachment. Justices' Court, Second Township, ) City and County of San Francisco, j A. B. ) against > The People of the State of California, to the Sheriff or any Con- stable of the City and County of San Francisco, greeting: You are hereby commanded to attach and safely keep all the property of the above-named defendant within this county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, to wit : fifty dollars, beside the costs ; unless the said defendant shall give you security by justices' coubts. 487 an undertaking in two sufficient sureties, for said amount and costs, in which case you will take such undertaking. Make due return hereof. Given under my hand, and dated at the second township, on the twentieth day of June, A. D. 1859. Wm. Clajek, Justice of the Peace of said Township. Notice of Attaohonent. City and County of San Francisco, June 15th, 1859. A.B. I against > To L. M. : By virtue of an attachment issued out of the justices' court, and to me directed, against above defendant, I attach all moneys, debts, effects and credits in your hands, or under your control, belonging to above defendant, or so much thereof as will satisfy the claim, to wit : fifty dollars, with cost and accruing cost. Witness my hand, this twentieth day of June, A. D. 1859. Wm. Black, Constable. Execution. United States of America. ) State of California, City and County of San Francisco, Justices' Court, Second Township. The People of the State of California, to the Sheriff or any Con- ss. stable of the County of JUDSMENT. AccEuiua Costs. Costs Execution and Filing Levy $50 00" 10 00 greetmg ; Whereas, a judgment was rendered before me, a jus- tice of the peace for the sec- ond township in said city and county of San Francisco, on the 15th day of June, A. D. 1859, against C. D., and in favor of A. B., for the $18 00] sum of fifty dollars, dama- ges ; and ten dollars, costs of suit. These are therefore to command you, that out of the personal property, and if suificient personal property cannot be found, then out of the real property of the said C. D., you levy and cause to be made, by distress and sale of the said amount of fifty dollars damages, and ten dollars costs of suit, together with the Advertisement - Keeping - 488 banceoft's California lawyer. cost that may accrne^and of this writ make legal service aud due return within sixty days from the date hereof. Given under my hand this sixteenth day of June. A. D. 1859. Wm. Clakk, [l. s.} Justice of the Peace of said Township. Undertaking a Release of Attachment. Know all men by these presents, that we, 0. D., as princi- pal, and E. F., and J. H., as sureties, all of the city and county of San Francisco, are held and firmly bound unto A. B., of the city and county aforesaid, in the sum of two hundred dollars, lawful money of the United States of America, to be paid to the said A. B., his heirs, executors, administrators or assigns ; for which pay- ment, well 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 twentieth day of June, 1869. Now the condition of this obligation is such, that, whereas a writ of attachment has issued against the above bounden C. I). at the suit of A. B., and certain of his goods and chattels have been attached under and by virtue thereof. Now, in considera- tion of the release of said goods and chattels from such attach- ment, if the said C. D. shall well and truly pay any judgment and costs that the said A. B. may recover against him, the said C. D., then this obligation to be null and void : otherwise to re- main in full force and effect. C. D. [l. E. F. [l. J. H. [l. s.; [Affidavit of justification in usual form.] Order on Oao'rdshee to Appea/r amd Answer. United States of America, Justices' Court, Second Township. State of California, ) City and County of San Francisco, ) A. B. I against > CD. ) The People of the State of California, to K. S., greeting : "Whereas it has been alleged and made to appear to the under- signed, one of the justices of the peace of said township, that an execution has been duly issued out of this court against the prop- erty of the above-named defendants and is still in force ; and that you have in your possession or under your control certain debts, justices' couets. 489 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 twenty-iifth day of July, A. D. 1859, at twelve 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 first day of July, A. D. 1859. Wm. Clark, [l. s.] Justice of the Peace of said Township. Constable's Jury Summons. Justices' Court, Second Township. To Mr. L. M. : You are hereby notified and required to attend before the justices' court of the second township, on the fifteenth day of June, at twelve o'clock M., in the court-room in the city and county of San Francisco, then and there to serve as a juror. Herein fail not, under the penalty of the law. Wm. Black, Constable. Attachment for Defaulters. Justices' Court, Township. State of California, ) City and County of San Francisco, j The People of the State of California, to the Sheriff or Constable of said County, greeting : You are hereby commanded forthwith to attach the body of L. M., a defaulting juror, and have him before our said court, on Saturday, the sixteenth day of June, 1859, then and there to show cause why he should not be pimished for contempt, in dis- obeying the mandate of said court. Wm. Clark, Justice of the Peace of said Township. Notice of Trcmsfer of Cause. Justices' Court, Second Township : State of California, ) City and County of San Francisco, j Edward T. Ludus, \ against \ E. J. Baldwin. ) To the Plaintiff and Defendant : Please take notice that the above-entitled case, transferred to this court from the fifth township, justices' court, is set for trial 490 Bancroft's California lawyer. before me at my court-room in said second townshipj June 29th, A. D. 1859, at two o'clock, P. M. Yours, &c. "Wm. H. CtJLVEE. Justice of the Peace. San Francisco, June 22d, A. D. 1859. Satisfaction of Judgment. Justices' Court of the Second Township. ^ State of California, ) Citj and County of San Francisco, f A. B. \ against \ Satisfaction is acknowledged between A. B. the plaintiff and C. D. the defendant, for the sura of fifty dollars, being the amount of a judgment entered in the judgment book of the justices' court, city and county of San Francisco, the sixteenth day of June, one thousand eight hundred and fifty-nine. A. B. [l. S.J State of California, ] City and County of San Francisco, j On this first day of September, A. D. one thousand eight hun- dred and fifty -nine, before me, Wm. Clark, a justice of the peace, in and for the said county, personally appeared A. B., to me per- sonally known to be the individual described in and who exe- cuted the annexed instrument, and acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. In wifeless whereof, I have hereunto set my hand and affixed my official seal, the day and year fi rst above written. Wm. Claek, Justice of the Peace. Notice of Appeal. City and County of San Francisco, ) justices' Court of the Second Dis- > trict Township. ) A. B. 1 against > You will please take notice, that the defendant in this actioi. above named, hereby appeals to the county court of the city ana county of San Francisco, from the judgment therein made and entered in the justices' court on the fifteenth day of June, A. D. 1859, in favor of said plaintiff, against defendant, and from the justices' courts. 491 whole thereof, this appeal is taken on questions of law and fact, [or, this appeal is taken on questions of law alone.] Dated, San Francisco, this fifteenth day of June, A. D. 1859. Tours, &c., James Lick, Attorney for Appellant. To the Justices of said Justices' Court, and John Beown, At- torney for Respondent. Affidavit to Prosecute Appeal. State of California, 1 „„ c„„„^j rp„„„„-i • City and County of San Francisco, [ ^'- ^^'^^^'^ Township. John Brown 1 against > Peter Jackson. ) Peter Jackson being duly sworn, deposes and says, that he is the appellant in the above-entitled action ; that the appeal is taken in good faith, and that he intends to perfect said appeal. Sworn and subscribed this 9th ) Petee Jackson. day of June, A. T). 1859, before me, j EoBEET Basset, Justice of the Peace, 2d Township. Undertaking an Appeal. State of California. In the Justices' Court of the Second Township, in and for the City and County of San Francisco. Know all men by these presents, that we, C. D., as principal, and E. F. and J. H. as sureties, are held and firmly bound unto A. B., his executors, administrators and assigns, in the full sum of two hundred dollars, to the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and adminis- trators, jointly and severally, firmly by these presents. Signed with our hands, and sealed with our seals, this sixteenth day of June, A. D. 1859. The condition of the above undertaking is this, that whereas the said A. B. obtained a judgment against the said C. D., before William Clark, Esq., justice of the peace of the second town- ship, city and coijnty aforesaid, on the fifteenth day of June, A. D. 1859, for fifty dollars costs, and whereas the above bounden C. D. is desirous of appealing from the decision of said justice, to the county court of tne city and county of San Francisco. 'Now, if the above bounden C. D. 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 withdrawn or dismissed ; or pay the amount of any judgment and all costs that may be recovered against the 492 bajstceoft's oalifoenia lawyer. said appellant, in the said county court, and obey any order the said court may make therein, then this obligation to' be null and void, otherwise in fuU force and virtue. C. D. Tl. s.] E. F. Tl.' s.] J. H. [l. s.] [Afida/vit of justification to he addedJ] Oonvplamit for Taking Personal Property. State of California, City and County of | San Francisco, in the Justices' Court >• of the Second Township. ) A. B. \ aqainst > C. D. ) City and County of San Francisco, ss : A. B., plaintiff in this action, by John Brown, his attorney, complains of C. D., resident of said city and county, defendant, and for cause of action shows : That heretofore, to wit : on the first day of May, in the year of our Lord one thousand eight hundred and fifty-nine, at the said city, the said defendant, with force and arms, 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 one 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 California, and to the damage of the said plaintiff, of one hundred dollars. And the said plaintiff further alleges, that the said defenda,nt refuses to return said property, although de- mand has been made therefor. "Wherefore he brings this suit, and prays judgment against the said defendant, for his damages aforesaid, to one 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. John Beown, Plaintiff's Attorney. City and County of San Francisco, ss : A. B., 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 belief, and as to those matters, that he believes it to be true. Sworn to before me, this ) A. B. first day of June, A. D. 1859. \ L. M., Justice, &c. justices' couets. 493 ' Complaint on Claim and Delivery of Personal Property. In the Justices' Court of the Second Township. State of California, ) . City and County of San Francisco, j A.B. I against > The above-named plaintiff complains of the above-named de- fendant, a resident of said city and county, and for cause of action respectfully shows to this honorable court, that heretofore, to wit : on the first day of June, A. D. 1859, at the city and county of San Francisco, the defendant has become possessed of, and wrongfully 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 one hundred dollars ; and^ the plaintiff farther 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 ad- judged to deliver forthwith to the plaintiff the said goods and chat- tels, and to pay to the plaintiff damages for the detention thereof, to the sum of one hundred dollars, or to pay to the plaintiff the sum of one hundred dollars, the value thereof, in case the delivery is not made, together with the costs of this action, or that such further or other relief in the premises may be given to the said plaintiff as may be just and equitable. John Bkown, Plaintiff's Attorney. [Affidavit as preceding.] Affidavit on Claim and DeU/oery of Personal Property. State of California, ) City and County of San Francisco, > ^^ ' Second Township, ) A.B. 1 against > A. B., 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 prop- erty, to wit : \here describe the property^ that the said property is in possession of, and wrongfully detained by the above-named de- fendant, and that the alleged cause of said detention, according to this deponent's best knowledge, information, and belief, is as fol- lows, to wit : [here state the cause,] that the said property, or any part thereof, has not been taken for a tax, assessment, or ifine, pur- suant to a statute, or seized under an execution, or an attachment 49 i BANCROri'S CALIFORNIA LAWYER. against the property of the said plaintiff, and that the actual value of said property is one hundred dollars. A. B. Subscribed and sworn to before me, this ) first day of June, A. D. 1859. j L. M., Justice of the Peace. Order to take the Property. State of California, ) City and County of San Francisco, >• Second Township. ) The People of the State of California, to the Sheriff or any constable of said county, greeting : You are hereby commanded to take the within-described prop- erty from the defendant, C. D., and deliver the same to the plaintiff, A. B., on his complying with the requirements of sec- tion 559 of the act entitled, "An Act to Kegulate Proceedings in Courts of Justice of this State." Witness my hand, this first day of June, A. D. 1859. Wm. Claek, Justice of the Peace. Undertaking on Glaim and Delivery of Personal Property. State of California, 1 City and County of San Francisco, >• Second Township. ) A.B. I against > C. D. ) Whereas, the above-named plaintiff has this day filed his com- plaint in this court against the said defendant, claiming the delivery of \here describe the property']. .Now, therefore, we, A. B., principal, and E. F. and I. H., sureties, do hereby agree and undertake, in consideration of said delivery, in the sum of two hundred dollars, for the prosecution of the action for the re- turn 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 ex- ceeding one hundred dollars. In witness whereof, we have hereunto set our hands and seals, this first day of June, A. D. 1859. A. B. [l. s.] E. F. [l. s.; Approved, Wm. Black, Constable. I. H. [l. s.' justices' courts. 495 Affidamit of JustifioaUon. State of California, ) City and County of San Francisco, f E. F. and I. H., 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 two hundred dollars, over and above all legal debts and liabilities, of property not exempt from execution, and is a resident and freeholder or householder of said county. E. F. Subscribed and sworn to before me, ) I. H. this first day of June, A. D. 1859. j "Wm. Claek, Justice of the Peace. Undertaking on Attachment. Justices' Court, Second Township, State of California, ) City and County of San Francisco, f A.B. I against > Q.J).) Whereas, an attachment against the property of the above- named defendant has been demanded and is about to issue. Now, therefore, we, the undersigned, 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 two hundred dollars. Witness our hands and seals in the city and county of San Francisco, on the first day of June, A. D. 1859. A. B. [l. s.] Approved, Wm. Claek, E. F. [l. s.] Justice of the Peace. I. H. [l. s.] \Affida/oit of justification as in other forms.] Affidavit for Attachm,ent. In the Justices' Court of the Second Township, in and for the City and County of San Francisco. against > C. D. ) City and County of San Francisco, ss : A. B., the plaintiff in the action above named, being duly sworn, deposes and says, that the defendant above named is in- debted to him, the said plaintiff, in a certain sura, that is to say. 496 Bancroft's cALifoEiiriA lawyer. in the snm of two hundred dollars, over and above all legal set- offs and counter-claims, npon an express contract for the direct payment of money, and that such contract was made and is pay- able in this state, and that the pajanent of the same has not been secured by any mortgage on real or personal property. And this deponent further says, that lie, this deponent, has good reason to believe, and does believe, that the following cause for issuing an attachment in this action actually exists at the time of making this affidavit, to wit: that the said defendant, the debtor above named, is a non-resident of this state {or state other ground of attaohment as per statute], that the facts upon which such be- lief is founded, are as follows : [Jie're state thefactsJ] A. B. Sworn and subscribed before me, this | first day of June, A. D. 1859. j Wm. Claek, Justice of the Pfeace. Bond of Indemnity. Know all men by these presents, that we, C. D., as principal, E. F. and I. H., as sureties, are held and firmly bound unto Wm. Black, constable of the second township of the city and county of San Francisco and state of California, in the snm of two hundred dollars, for the payment whereof well and truly to be made, we bind ourselves, our heirs, executors and administra- tors, jointly, severally and firmly by these presents. Witness our hands and seals, at said county, this 20th day of June, 1859. , The condition of the above obligation is such, that whereas in a certain suit at law lately pending before Wm. Clark, Esq., jus- tice of the peace of the second township of said city and county, wherein A. B. was plaintiff and C. D. was defendant, a writ of attachment bearing date the first day of June, 1859, has issued, directed to said constable to execute: and whereas the following property [here describe the property] has been seized and taken^ by virtue and under the authority of said writ, now if the said C._D. shall save and keep said Wm. Black, constable as afore- said, harmless in the matter, and well and truly pay all damages, costs and expenses which said constable may incur by reason of the retui-n of said property, or of the claimj estate or title of the said A. B., or any other person or persons to or in the same, then the above obligation to be void, otherwise to remain in full force and effect. _ 0. D. [l. s.] Executed in presence of ) E F Fl s 1 ) I.' H. [l! 8.'] [ With the usual affidoA^it of justif cation]. .,, . . justices' courts. 497 Complaint — Forcille Entry, die. lu tlie Justices' Court of the Second Township of the State of California, in and for the City and County of San Francisco. John Brown ) agamst > William Jones. ) City and County of San Francisco, ss : John Brown, the plaintiff in this suit, by "William Smart, his attorney, complains of William Jones, the defendant, a resident of said city and county, and, for cause of complaint, shows that at the time of the commencing of the wrongs hereinafter com- plained of, he was, and for a long time before that 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 city of San Francisco, and bounded and described as follows, to wit : [here describe thejproperty.'] 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, &c., 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 plain- tiff therefrom, and took possession of the same, and the said Wil- liam Jones has ever since illegally, forcibly and unlawfully de- tained possession of the same from plaintiff, to his great damage, to wit : the sum of one hundred dollars, and said plaintiff alleges that the monthly value of the rents and profits of said premises is fifty dollars. Plaintiff' therefore prays for judgment against the said defendant 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 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. John Daniel Rogees, Plaintiff's Attorney. City and County of San Francisco, ss : John Brown, 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 belief, and as to those matters that he believes it to be true. John Brown. Sworn to before me, this tenth day of April, A. D. 1859. Wm. Claek, Justice of the Peace. 498 Bancroft's California lawyer. Summons — ForoiMe Entry, <&c. In the Justices' Court of tlie Second Township, City and County of San Francisco. John Brown ) against > William Jones. ) The People of the State of California to the Sheriff or any con- stable of said county, greeting : Whereas, John Brown, of the city and county of San Fran- cisco, hath exhibited onto me, a justice of the peace of said city and county, a complaint against William Jones, of the said city and county, wherein he alleges that he has been in the peace- able 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 city of San Francisco, S,nd 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, &c., 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 pos- session of the same, and the said William Jones has ever since illegally, forcibly and unlawfully detained possession of the same from plaintiff, to his great damage, to wit : the sum of one \mn- dred dollars. And the plaintiff alleges that the monthly value of the rents and proiits of said premises is fifty dollars. Plain- tiff therefore prays for judgment against the said defendant for the restitution of the above-described premises, and for the daniages suffered by said plaintiff" by the said forcible and un- lawful entry upon, and forcible and illegal detention of the above- described premises, for the monthly rents and profits during the said unlawful detention, and that the 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. You are therefore commanded to summon the said William Jones, if he be found in your county, to be and appear before me at my court-room in said township, in said city and county of San Francisco, on the 25th day of May, 1859, at the hour of eleven A. M., then and there to make answer unto the complaint aforesaid. Given under my hand this 9th day of May, 1859. Wm. Claek, Justice of the Peace. I hereby certify the above to be a true and correct copy of the original summons by me issued in the above-entitled cause. Wm. Clabk, Justice of the Peace, Second Township. justices' courts. 499 Writ of Bestii/ation. State of California, _ ) Second Township. City and County of San 1 rancisco. ) ^ The People of the State of California to the Sheriff and constable of the county aforesaid : Whereas John Brown, of the citjr and county of San Fran- cisco, at a court of inquiry of a forcible entry and unlawful de- tainer held at my office in the county aforesaid, on the first day of May, A. D. 1859, before me, a justice of the peace for the county aforesaid, by the consideration of the court, hath recovered judgment against William Jones, to have restitution of all that \1iere insert description]. You are therefore commanded that, taking with you the force of the county, if necessary, you cause the said William Jones to be immediately removed from the aforesaid premises, and the said John Brown to have peaceable restitution of the same. And you are also commanded that of the goods and chattels of the said William Jones within said county, you cause to be made the sum of one hundred dollars for the said plaintiff, to- gether with the costs of suit endorsed thereon, and make return hereof within thirty days from this date. Given under my hand, this twelfth day of May, A. D. 1859. Wm. Claek, Justice of the Peace. Form of Transferr of Crimmal Eeamination. State of California, i City and County of San Francisco, f The within-nameid defendant having been brought before me, in compliance with the requirements of the within writ, and in consequence of my inability to hear and try him thereon, You are hereby required to take said defendant before the honorable police judges' court of the city and county of San Francisco [or, m other counties before A. B., another justice], as soon as possible, for hearing. Wm. H. Citlvee, Justice of the Peace. , Search Wa/rromt. State of California, ) County of . j The People of the State of California, to any Sheriff, Constable, Marshal, or Policeman, in the City and County of San Fran- cisco : Proof, by affidavit, having been this day made before me by A. B., that John Doe did on the first day of June, A. D. 1859 500 BANCEOPT'S CALIFORNIA LAWYEE. at the city and county of San Francisco, feloniously steal, take, and. carry away two dozen silver forks, You are therefore commanded, in the daytime, to make im- mediate search on the person of John Doe, or at his dwelling- house, in this county^ for the following property ; twenty-four sil- ver forks with the initials A. B. engraved thereon, and if you find the same or any part thereof, to oring it forthwith before me at the police judges' court. Given under my haad, and dated this first day of June, A. D. 1859. A. B., Justice of the Peace. For other criminal forms, see title Magistrate. justices' foems m oeegok. Form of a Certificate of Election. State of Oregon, ) County of ) I do hereby certify that at an election held on the day of A. D. 18 , in the presence of , in said coun- ty, J. P. was duly elected a justice of the peace. In testimony whereof, I have hereunto set my hand, with the seal of the board of county commissioners hereunto affixed this day of A.D. 18 . [l. S.J C. D., Clerk of the Board of County Commissioners. Oath of Office. State of Oregon, ) County of ' j I, J. P., do solemnly swear [or, affirm, as the case mm/ Je] that I will support the constitution of the United States, and the laws and constitution of this state; that I will administer justice with- out respect to persons, and faithfully and impartially dischai-ge and perform all duties incumbent upon me as a justice of the peace, according to the best of my ability. J. P. Subscribed and sworn to before me this day of A. D. 18 . CD. Clerk of the- District Court. OffixAal Bond. Know all men by these presents, that we, J. P., A. B. and C. D. are- held and firmly bound, unto the board of commissioners of the county of in the state of Oregon, in the sum of 501 five hundred dollars, for the payment of which we jointly and severally bind ourselves, our heirs, executors and administrators. Sealed with our seals, dated this day of A. D. 18 . Whereas, the said J. P. has been duly elected a justice of the peace in and for the precinct of i in the county of A. D. 18 . Now tne condition of the above obligation is such, that if the said J. P. shall faithfully pay over, according to law, all moneys which shall come into his hands by virtue of his oflace as justice of the peace, then this obligation shall be void, otherwise in full force. J. P. [l. s.] A. B. [l. s.] 0. D. [l. s.] Form of Deputizing a Special Officer. At the request and risk of the plaintiff [or, defendant, as the case may &e], I authorize A. B. to execute and return this writ. S. F., Justice of the Peace. Forra of a Surmnons. State of Oregon, ) County of . j ^^ • To the Sheriff, or any Constable of said County : In the name of the people of the state of Oregon, you are hereby commanded to summon C. D., if he be found in your county, to be and appear before the undersigned, a justice of the peace in and for the said county, on the day of , A. D. 18 , at o'clock in the noon, at his office in to answer to A. B. in a civil action ; and have you then and there this writ. Given under my hand this day of , A. D. 18 J. P., Justice of the Peace. F&rm of a Warram,t. State of Oregon, ) County of . j To the Sneriff, or any Constable of said County : In the name of the people of the state of Oregon, you are hereby commanded to take the body of C. D., if he be found within your county, and bring him forthwith before the under- signed, one of the justices of the peace in and for said county, at his office in , to answer A. B. in a civil action ; and you are_ hereby con)manded to give due notice thereof to the said plaintiff, his agent or attorney; and have you then and there this writ. Given under my hand, this day of , A. D. 18 . J. P., Justice of the Peace. 502 banceopt's califoenia lawyee. Form of a 8vhpos,na. State of Oregon, ) County of . j To the Sheriff, or any Constable of said County : In the name of the people of the state of Oregon, you are hereby required to appear before the undersigned, one of the justices of the peace in and for said county, on the day of ,18 , at o'clock in the noon, at his office in , to give evidence in a certain cause, then and there to be tried, between A. B., plaintiff, and C. D., defendant, on the part of the plaintiff {or defendant, as the case may he). Given under my hand, this day of , 18 . • J. P., Justice of the Peace. Form of a Venire for a Jwry. State of Oregon, ) County of . j To the Sheiiff, or any Constable in said County : In the name of the people of the state of Oregon, you are hereby commanded to summon six good and lawful men of your county, to be and appear before the undersigned, one of the justices of the peace in and for said county, for the day of ,18 , at o'clock in the noon of said day, at his office in . , to make a jury for the trial of a civil action between A. B., plaintiff, and C. D., defendant, and have you then and there this writ. Given under my hand, this day of , 18 . J. P., Justice of the Peace. Form of Execution. State of Oregon, ) County of . j ' To the Sheriff or any Constable of said County : Whereas judgment against C. D., for the sum of dol- lars, and for dollars, costs of suit, was recovered on the day of , 18 , before the undersigned, one of the justices of the peace in and for said county, at the suit of A. B. : These are therefore, in the name of the people of the state of Oregon, to command you to levy on the goods and chat- tels of the said C. D. (excepting such as the law exempts), and make sale thereof according to law, to the amount of the said sum, and the costs upon this writ, and the same return to me within thirty days, to be rendered to the said A. B. for his debt, interest and costs. Given under my hand, this day of , 18 . J. X*., Justice of the Peace. justices' couets. 508 Form of Mceoution against the Bod/if. State of Oregon, ) County of . j ' To the Sheriff, or any Constable of said County : : "Whereas judgment against C. D., for the sum of dol- lars, and for dollars, costs of suit, was recovered on the day of , 18 , before the undersigned, one of the justices of the peace in and for said county, at the suit of A. B., and an execution against his property, returned unsatisiied : These are therefore, in the name of the people of the state of Oregon, to command you to take the body of the said C. D., and him convey and deliver to the keeper of the jail of the said county, who is hereby commanded to receive and keep the said C. D. in safe custody in prison, until the aforesaid sum, and all legal expenses, be paid and satisfied, or until he be discharged therefrom by due course of law ; and of this writ make due re- turn within thirty days. Given under my hand, this day of , 18 . J. P., Justice of the Peace. Form of Execution against Prvncipal cmd 8v/rety, after Fxpwa- tion of Stay of Execution. State of Oregon, ) County of . f ^^■ To the Sheriff, or any Constable of said County : "Whereas judgment against C. D., for the sum of dol- lars, and for dollars, costs of suit, was recovered on the day of , 18 , before the undersigned, one of the justices of the peace, at the suit of A. B.; and whereas, on the day of , 18 , E. F. became surety to pay the said judgment and costs in month from the date of the judgment aforesaid, agreeably to law, in the payment of which the said B. D and E. F. have failed : These are therefore, in the name, &c., [as in the common form.'] Form of Order in R&plewvn. State of Oregon, ) County of . \ ^®- To the Sheriff, or any Constable of said County : In the name of the people of the state of Oregon, you are here- by commanded to take the personal property mentioned and de- scribed in the within affidavit, and deliver the same to. the plain- tiff, upon receiving a proper undertaking, unless before such de- 504 BANCROFT'S CALIFORNIA LAWYER. livery the defendant ente? into a sufficient undertating for the delivery thereof to the plaintiff, if delivery be adjudged. Given under my hand, this day of , 18 J. P., Justice of the Peace. Form of a Writ of Attachmemt. State of Oregon, ) County of . j ®^- To the Sheriff, or any Constable of said County : In the name of the people of the state of Oregon, you are commanded to attach and safely keep the goods and chattels, moneys, effects and credits of C. D. (excepting such as the law exempts), or so much thereof as shall satisfy the sum of dollars, with interest and costs of suit, in whosesoever hands or possession the same may be found in your county, and so pro- vide that the goods and chattels so attached may be subject to further pi-oceedings thereon, as the law requires; and of this writ make legal service and due return. Given under my hand, this day of , 18 . J. P., Justice of the Peace. Form of SuTn/mons in ForcMe, Entry cmd Detainer. State of Oregon, ) County of . ) ' To the Sheriff or Constaisle of said County : "Whereas A. B., of , hath exhibited unto the under- signed, one of. the justices of the peace in and for said county, a complaint against C. D., for a forcible entry and detainer of the following premises ; to wit : ; therefore in the name of the United States, you are hereby commanded to summon the said C. D., if he be found in your county, to appear before the undersigned, on the day of , 18 , at o'clock in the noon, at his office in , then and there to make answer to and defend against the complaint aforesaid;, and yoii are also hereby commanded to serve a copy of the said com- plaint on the said C. D., and of this writ make due return, with your doings thereon. Given under my hand, this day of , 18 . J. P., Justice of the Peace. Form of Writ of destitution in Forcible Eni/ry and Detainer. State of Oregon, V County of \ ^^■ To the Sheriff or any Constable of said County : Whereas, A. B. did make complaint in writing to the under- signed, a justice of the peace in and for said county, against justices' oouets. 505 C. D. of the said county, that he had been , guilty of a forci- ble entry and detainer of a certain tract of land [or, other possessions] of the said A. B., and -whereas a jury was em- panelled and sworn to inquire of said complaint, and did return their verdict that the said C. D. was guilty of a forcible entry and detainer of the following described tract of land, to wit : [here describe the premises of which the defendant is found guilty offorcilly entering and detaining il and whereas judgment was entered thereon by said justice, and that the said A. B. should have restitution of the premises ; therefore, in the name of the United States, you are hereby commanded to cause the said 0. D. to be forthwith removed from the premises aforesaid, and that the said A. B. have peaceable restitution of the same ; and also, that you levy of the goods and chattels of 0. D., found in your county, the sum of dollars, being the amount of costs, on the trial aforesaid, together with dollars, for this writ, and also your own fees, and make return of this writ within thirty days next after the date hereof. Given under my hand, this day of , 18 . J. P., Justice of the Peace. Form of TInde7'taTdng or an Arrest. Whereas, an application has been made by A. B., plaintiff, to J. P., one of the justices of the peace in and for county, for a warrant to arrest C. D., defendant, founded upon an affidavit of the said plaintiif, setting forth that, &c. ; [here state the cause for the arrest :] Now, therefore, we, A. B., plaintiff, and E. P., acknowledge ourselves bound to C. D. in the sum of dollars, to pay all costs that may be awarded to the said defend- ant, and all damages which he may sustain by reason of the arrest, not exceeding the sum of dollars. A . B. Dated this day of , 18 . E. P. Foi'm of Undertaking in Attachment. Wliereas, an application has been made by A. B., plaintiff, to J. P., one of the justices of the peace in and for county, for a writ of attachment against the personal property of C. D., defendant [a foreign corporation, a non-resident, or because he has assigned, secreted, &c.] : ISTow, therefore, we, A. B., plaintiff, and E. P., acknowledge ourselves bound to C. D. in the sum of dollars, that if the defendant recover judgnient in this action, the 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 exceeding the sum of dollars. Dated the day of , 18 . A. B. E. P. 506 Bancroft's oalifoenia lawyer. Form, of CFndertahing in Replevin. Whereas, A. B., plaintiff, has commenced an action before J. P., one of the justices of the peace in and for county, against C. D., defendant, for the recovery of certain personal prop- erty mentioned and described in the affidavit of the plaintiff, to wit: SJiere set forth the property claimed :'] Now, therefore, we, A. B., plaintiff, E. F. and G. H., acknowledge ourselves bound unto C. D. in the sum of dollars, for the prosecution of the action for the return of the property to the defendant, if re- turn thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against the p)laintiff. Dated the day of , 18 . A. B. E. F. G. H. Form, of Undertaking to Discha/rge Attachment. Whereas, a writ of attachment has been issued by J. P., one of the justices of the peace in and for county, against the personal property of C. D., defendant, in an action in which A. B. is plaintiff: Now, therefore, we, C. D., defendant, E. F. and G. H., acknowledge ourselves bound unto J. K., constable, in the sum of dollars (double the value of the property), engag- ing to redeliver the property attached, to wit : [here set forth a list of articles attached,'] or pay the value thereof to the sheriff or constable to whom execution upon a judgment obtained by the plaintiff in the aforesaid action, may be issued. Dated this day of , 18 . C. D. F. F. G. H. Form of Undertaking to Indemnify Constable on Claim of Prop- erty hy a Third Person. Whereas, L. M. claims to be the owner of, and have the right to the possession of certain personal property, to wit : \here desarihe it,] which has been taken by J. K., constable, in county, upon an execution issued by J. P., justice of the peace in and for the county of , upon a judgment obtained by A. B., plaintiff, against C. D., defendant : Now, therefore, we, A. B., plaintiff, E. F. and G. H., acknowledge ourselves bound unto the said J. K., constable, in the sum of dollars, to indemnify the said J. K. against such claim. A. B. E. F. G. H. justices' courts. 507 FOBMS OF PEOOEEDINGS IN CEDVIINAIi CASES. Form of Wa/rrant. State of Oregon, ) . County of , j " To the SneriflF, or any constable of said county : "Whereas, A. B. has this day complained in writing, under oath, to the undersigned, one of the justices of the peace in and for said county, that on the day of , 18 , at , in said county : \here insert the substance of the conmlavnt, what- ever it may he.'] Therefore, in the name of the people of the state of Oregon, you are commanded forthwith to apprehend the said C. D. and bring him before me to be dealt with according to law. Given under my hand, this day of , 18 . J. P., Justice of the Peace. JFbrm of cm Msecution. State of Oregon, ) . County of , j ' To the Sheriff, or any constable of said county ; Whereals, at a justice's court held at my office in said county, for the trial of C. D., for the offence hereinafter stated, the said C. D. was convicted of having, on the day of , 18 , in said county, committed [here state the offence], and upon conviction, the said court did adjudge and determine that the said C. D. should pay a fine of dollars, and dollars costs ; and whereas the said fine and costs have not been paid : These are, therefore, in the name of the people of the state of Oregon, to command you to levy on the goods and chattels, &c. [as vn execution in ci/vil oases.] Form of Certificate of Conviction. State of Oregon, ) County of ,j^^- At a justice's court held at my office in said county, before me, one of the justices of the peace in and for said county, for the trial of C. D. for the offence hereinafter stated, the said C. D. was convicted of having, on the day of , 18 , at , in said county of [here insert the offence], and upon conviction the said court did adjudge and determine that the said C. D. should pay a fine of dollars [or, be impris- oned, as the case may be], and the said fine has been paid to me. Given under my hand, this day of , 18 . J. P., Justice of the Peace. Bancroft's galifoenia lawyee. Form of Comrmt/memb wpon Sentence. ' State of Oregon, | County of , j ' • . . . To any constable, and the keeper of the common jail of said county : Whereas, at a justice's court, held at my office in said county, for the trial of C. D. for the offence hereinafter stated, the said C. D. was convicted of having, on the day of 18 , in said county, committed [here state the offence'], and upon con- viction, the said court did adjudge and determine that the said C. D. should be imprisoned in the common county jail of said county for days : Therefore you, the said constable, are com- manded, iji the name of the people of the state of Oregon, forth- with to convey and deliver the said C. D. to the said keeper ; and you, the said keeper, are hereby commanded to receive the said 0. D. into your custody in the said jail, and him there safely keep until the expiration of said days, or until he shall thence be discharged by due course of law. Given under my hand, this day of , 18 . J. P., Justice of the Peace. Form of Wwrrant to keep the Peace. State of Oregon, ) . County of , f ' To the sheriff, or any constable of said county : Whereas, A. B. has this day complained in writing, under oath, to the undersigned, one of the justices of the peace in and for said county, that he has just cause to fear, and does fear that C. D., late of said county, will \here state the threatened injury or violence, as sworn to] : Therefore, in the name of the people of the state of Oregon, you are commanded to apprehend the said C. D. and bring him forthwith before me, to show cause why he should not give surety' to keep the peace, and be of good behavior toward all the people of this state, and the said A. B. especially, and further to be dealt with according to law. Given under my hand, this day of , 18 . J. P., Justice of the Peace. Form of Commitment to answer m the District Court. Stalte of Oregon, ) Coimtyof ,r®' To any constable, and to the keeper of the common jail of said county : Whereas, on the day of 18 , A. B. made complaint in writing, and on oath, before the undersigned, one of the jus- • JUSTICiES' COURTS. 609 tices of ,tlie.peace in and fpr said, county, charging 0. D. with having, on the . day of , 18 , committed the crime of larceny l&r other crime, as the case may be], and the said 0. D. having been brought before and examined by me, and it being sufficiently proved to me that the said C. D. has, in said county, committed the crime of larceny [or other crime'], by stealing one bay horse, of the value of dollars, of the goods and chattels of the said A. B. ; aiid he, the said C. D., having failed to give bail for his appearance to answer at the next term of the District Court, in the sum of dollars, as required by me : Therefore, in the name of the people of the state of Oregon, you, the said constable, are commanded forthwith to convey and deliver the said C. D. to the said keeper ; and you, the said keeper, are hereby commanded to receive the said 0. D. into your custody, in the said jail, and him there sa,fely keep, until he be discharged by due course of law. Given under my hand, this day of , 18 . J. P. Justice of the Peace. Form of Sea/rch Warrant. State of Oregon, j County of , j ■ To the sheriii', or any constable of said county : Whereas, A. B., has this day made complaint on oath, to the undersigned, one of the justices of the peace in and for said county, that the following goods and chattels, to wit : \here de- scribe them,] the property of the said A. B. have within days past [or, were on the day of ], by some person or persons unknown, been, taken and carried away out of the pos- session of said A. B. in the county aforesaid ; and also that the said A. B. verily believes that the said goods or a part thereof are concealed in, or about the house of C. D., in said county [describing the premises to be searched:] Therefore, in the name of the people of the state of Oregon, you are commanded that, with the necessary and proper assistance, you enter the said house [describe thejpremises to be searched],- and there diligently search for the said goods and chattels, and if the same, or any part thereof be found on such search, bring the same, also the said C. D., forthwith before me, to be disposed of according to law. Given under my hand this day of A.D.I 8 J. P. Justice of the Peace. 510 BANCROFT'S CALIFORNIA LAWYER. Form of Commit/ment when Justice, on the Trial, shall find that he has no Jurisdiction of the Case. State of Oregon, ) County of , P®' To any constable, and to the keeper of the common jail of said county : Whereas 0. D., of &c., has been brought this day before the undersigned, one of the justices of the peace in and for said county, charged, on the oath of A. B., with having, on the day of ) 18 J in said county, committed the offence of [here state the offence charged in the toarrtJOT-^], and in the pro- gress of the trial of said charge, it appearing to the said justice that the said 0. D. has been guilty of the offence of [here state the new offence found on the trial, committed at the time and place oforesaid, of which offence the justice has not fi/nal jurisdi^c- tion\ ; and whereas the said C. D. has failed to give bail in the sum of dollars, for his appearance to answer at the next term of the District Court, as required by m.e : Therefore, in the name of the people of the state of Oregon, &c., [as in the last form.] LANDLOED AND TENAJSTT. 511' OHAPTEE XXYI. LABDLOED AND TENAJSTT. The term landlord is applied to one who furnishes the use and occupation of lands or tenements to another, who is called the tenant, 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 determined by the contract between them, which is named a lease or demise. When such contract is expressed in writing, the written instrument is itself called a lease, and the parties described therein, are respec- tively denominated lessor and lessee. 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 biijd the parties ; but if the term be fixed for any longer period than one year, the lease must be expressed in writing duly executed under seal.' If there be any agreement to make 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 period of time that it will not expire within one year from the time of the contract, it must be in writing." Tenancies are for life, for years, at will, and at sufferance. A transfer of lands or tenements, for the use of the tenant 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 1 Wood's Dig. art. 894, 896, 400. ' Statutes of Oregon, p. 526, §§ 6, 8. 512 BANCBOFT'S CALIPOENIl LAWYER. a number of years or less than a year, a half year, a month, or even a~ few days. The principal distinguishing feature between a tenancy for years, and a tenancy at will, or other tenancy, is, that it be for a time certain, prefixed, by agreement either ex- pressed or implied. Tenancy at sufferance is a mere wrongful 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. A tenancy at will takes place where the demise or lease is for no certain term, but is to continue during the joint will of both parties. It may arise by implication, as, where a party agrees to buy a piece of land, and entere upon it before his deed is exe cuted.' Its more important incident, however, is its capability of being extended into a tenancy from year to year, which is the condition of most of the tenancies of the present day, where there is no written lease, or where the term under the written lease has expired, and the tenant still continues to hold the premises with concurrence of the landlord. This tenancy derives its name from the circumstance, that in the more important leases, the rent is prescribed for the year ; and where the written lease has expired, or no written lease is made, and the tenant continues to occupy without any new lease, but with assent of the landlord, he is con- sidered as holding for another year. But the same designation, and the same rules of law apply to the tenancy, where the leasing is by the month or week, or other period. To terminate such tenancy, due notice must be given. For- merly, 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 en- titled to notice to quit before they can be ejected by process of law." This notice miist comply strictly with the rules of law. For a yearly tenancy, it should be a notice of six months ; and for any shorter tenancy it should be as long as the term. If a quar- terly tenancy, a quarter's notice ; if monthly, a month's notice ; if weekly, a week's notice. ' Smith's Lund, and Ton. in, 18. ' 4 Kent, 128. LANDLORD AND TENANT. 513 It should be in writing, and should express clearly the period of time of the tenancy, and that the tenant is required to quit on the last day thereof; aind should be served a full week, or month, or quarter, as the period of time may be, beforehand. To be safe, let it show the days of commencement and ending of the week, month or quarter, &c., and let it be served before the commencement of the week, month or quarter, &c., although if i3erved on the day of commencement, it would, in most cases, be sufScient. Where the tenant wishes to terminate the tenancy, he should give notice to the landlord with like strictness. 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 questionable, whether a restriction in a lease against as- signment, 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, he is still liable to the lessor for the rent, unless the lessor accept the assignee as his tenant, either expressly or impliedly ; as, by re- ceiving rent from him as a tenant, and giving him receipt in his name. But it seends, an assignee may assign over, even to an in- solvent person, and free himself from all future liability." A sub-tenant is liable to the original lessor for use and occupa- tion, or for rent, only for the time he actually occupied the premises.' An action -for use and occupation can only be maintained where the relation of landlord and tenant exists." All conveyances of land by lease or otherwise, 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, are declared by our statute, to be void.' 1 5 Cal. 49. « 8 id. 196. 3 Smith's Land, and Ten. 298. » Wood's Dig. art. 426. ' 1 Oal. 470. 33 514 BANCROFT'S CALIF0E2SriA LAWYER. A lease for a longer period than one year is considered a con- veyance, 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.' See chapter on Ac- knowledgments . Grants of rents, or of reversions or remainders, shall be good and effectual without attornments of the tenants ; but no tenant who before notice of the grant shall have paid rent to the grantor, shall suffer any damage thereby." The attornment of a tenant to a stranger shall be void, unless it be with the consent of the landlord of such tenant, or in pur- suance to, or in consequence of, a judgment or decree of some court of competent jurisdiction.' 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, &c., are determined very much by the character of the express 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. The chief rights of the landlord are, to have the stipulated compensation paid him for his property, 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 main- tained in the peaceable and quiet enjoyment of the property de- mised to him.* Forfeiture of the tenancy for non-payment of rent, did not exist anciently at common law; but this right has become gradu- ally established by enactment and adjudication, and is provided for in this state, under the statute in relation to forcible entry and unlawful detainer."* To create such forfeiture, it is necessary that demand be made for the exact sum, on the day it becom.es due, without reference to any arrears, about sunset of that day.' The demand should be made on the premises of the tenant, of the person in posses- ' ■Wood's Dig. art. 873. * Smith's Land, and Ten. 205. ' id. 885. » Wood's Dig. art. 2534. ' id. 886. » 3 Oal. 278, 884. ■LANDLORD AND TEKANT. 515 sion ; or iu case no one can be found in possession, in the next best manner, for instance, by making demand in a loud voice in front of the premises, or in the most conspicuous place thereon. Three days after such demand of rent, notice must be served in writing, making demand of the tenant that he or she shall de- liver possession of the premises. This notice must be absolute, and not in anyway conditional. On neglect for three days longer to pay the rent, an action for the possession accrues to the land- lord.' By failing to pay rent when demanded, the contract under the lease is forfeited, and possession held after that is tortious." A waiver of the demand will never be implied for the purpose of making a forfeiture, for, from its very nature, a forfeiture cannot take place by consent, and is not favored by the rules of law.' The acceptance of rent, which becomes due after a forfeiture, is a waiver of the forfeiture ; even when the lease' expresses that it shall become void upon breach of condition.* Under the statutes mentioned above, an action for restitution accrues in like manner, where a tenant or under-tenant holds over against the will of the landlord after the lease has expired, or holds possession contrary to the covenants or conditions of the lease.' But the action cannot be maintained under that act, against a tenant who has held over for one year after the expiration of the lease adversely or without payment of rent ; nor against any person who continues in possession three years quietly and peaceably. A person who enters into possession of land under another cannot question the title of him under whom he holds ;° and it has been held that where a person is in quiet possession of premises, and takes a lease, he cannot afterward deny the title of the landlord, unless false and fratidulent representations were made to him to induce him to execute the lease. Where a tenant finds there are adverse claimants to the prop- erty, he should file a bill of interpleader, making all the adverse > Wood's Dig. art. 2584 * Smith's Land, and Ten. 109, 114. ' 10 Cal, 802. 6 6 Cal. 189. s 8 id. 334. » 1 id. 4T0. 616 Bancroft's California lawyer. claimants parties thereto, and offer to pay the rents into court, to abide the ultimate decision of the case." Security for the payment of rent upon a lease may be given by the words, " I hereby agree to pay the rent stipulated above, when it shall become due, provided the said A. B. does not pay the same," written upon the lease at the time the lease is made ; it being held that such an agreement, though not expressly a consideration, is a part of the lease, and not within the statute of frauds." But it would be better to say, " For value received I hereby agree to pay," &c. "When the lease covenants to pay rent during the term, and to return the premises in good order and condition, natural wear and damages by the elements excepted, in case of destruction of the building by fire, the lessee is bound to pay rent for the whole term, but is not bound to restore the building, unless he has spe- cially so contracted. A covenant for a lease to be renewed indefinitely at the option of the lessee, is, in effect, the creation of a perpetuity, and is against the policy of the law." A covenant in a lease to the lessee, " his heirs and assigns," that, in the event of a sale by the lessor, the lessee is entitled to a refusal, is a covenant running with the land. Every cove- nant relating to the thjng demised attaches to the land and runs with it.* The valuable privilege of pre-emption attaches to the entire property, and is therefore assignable.* A description of premises in a lease is sufficiently certain if the boundaries can be ascertained with a reasonable degree of certainty, and the lessee has occupied them under the lease.' The landlord, in the absence of express agreement, is under an implied obligation to indemnify 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." Tenants have a right to remove buildings erected by them, at 1 8 Oal. 692. < 9 id. 662. » 5 Id. 285. » 1 id. 470. ' Id. 64. • Smitli's Land, and Ten. 211. LANDLORD AND TENANT. 517 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, &c., 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." When the owner of niortgaged 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 redemption, the purchaser is entitled to the rents." 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." The foregoing principles apply generally to Oregon and TFasA- ington. Their statutory provisions are as follows : OREGON. Actions for the recovery of real property may be against any person acting as owner, landlord, or tenant ; and if the tenant is sued the landlord may be substituted on notice. If the tenant defend, he must give the name and residence of his landlord in his answer.' When in case of a lease of real property, and the failure of the tenant to pay rent, the landlord has a right to re-enter for such failure, he may bring an action to recover possession of the prop- erty, but if, at any time before judgment in such action, the lessee or his successor in interest pay to the plaintiff, or bring into court, the amount of rent then in arrear, with interest, and the costs of the action, and perform the other covenants or agree- ments on the part of the lessee, he shall be entitled to the posses- sion, according to the terms of the lease.' The person entitled to any premises, may recover possession >8Cal.86. < 4 id. 245. " 9 id. 119. e Statutes 0. 149. 3 8 id. 5(i2. 6 id, 150, 518 BAKCEOFT'S CALIFORNIA LAWYEE. thereof in the manner hereinbefore provided in the following cases : 1. When any person shall hold over any lands or tenements, after the time for which they are demised or let to him, or to the person under whom he holds, or contrary to the conditions or cov- enants of any lease or agreement under which he holds. 2. When any rent shall have become due, or any such lease or agreement, and the tenant or person in possession shall have neglected or refused, for ten days after demand of the possession, made in writing, to deliver up possession of the premises, or pay the rent so due. 3. When any person shall continue in possession of any prem- ises, sold by virtue of any mortgage or execution after the expi- ration of the time limited by law, for the redemption of such premises. 4. When any tenant at will or by sufferance shall hold over after the determination of his estate by a notice to quit, as pro- vided by law.' When the action shall be brought to recover the possession of premises demised, or let, for the reason that the tenant, or person in possession, has refused or neglected to pay the rent due ; it shall be lawful for the defendant, at any tim.e before judgment, to pay to the justice for the plaintiff, the rent then in arrear, with interest, and the costs of the action, and thereupon no writ of res- titution shall be awarded.' Whenever the lessee of any dwelling-house shall be convicted of the offence mentioned in the next preceding section [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 tenant for holding over after the expiration of his term.' 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 action the amount which such person should have » statutes 0. p. 817. s a, a84. " id. 818. LANDLOED AND TENANT. 519 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.' WASHINGTON. From the statutes of this territory, it would seem necessary that all leases should be in writing, duly executed under seal before two witnesses, aad acknowledged. Upon levy and sale under execution, the sheriff may sell a seven years' lease of real estate. An action to recover possession of real estate may be main- tained against the tenant in possession ; or, if there is no such tenant, then against the person claiming the title, or some inter- est therein. The landlord may be substituted as defendant." FOEMS. Landlord & Agreement. This is to certify, that I, have, this first day of May, 1859, let and rented unto James Smith, the- house and premises known as No. 26 Clay street, in the city of San Fran- cisco, and the sole and uninterrupted use and occupation thereof, for six months, to commence on the tenth inst., at the monthly rent of two hundred dollars, payable monthly in advance. Given under my hand this 1st day of May, 1859. Geoege H. Ensign. Tenants Agreement. This is to certify, that I, have, this first day of May, 1859, hired and taken from George H. Ensign, the house and premises known as No. 26 Clay street, in the city of San Francisco, for six months, to commence on the tenth day of May, 1859, at the monthly rent of two hundred dollars, payable monthly, in advance. And I do hereby promise to make punc- tual payment of the rent in manner aforesaid. And I do further promise and agree to quit and surrender the premises at the expiration of the term in as good condition as reasonable use and wear thereof will permit, damages by the elements excepted. And I do hereby agree not to let or under-let the whole or any part of said premises, and that, in case of default in the pay- » statutes 0. 448. » Statutes W. Ter. 205. 620 banckoivt's California lawyer. ment of the rent above specified in manner aforesaid, or ujjon the expiration of the term above expressed, without requiring notice, or demand being made, it shall 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 former estate, any thing herein contrary notwithstanding. May 1st, 1859. James Smith. Short Form of Lease. This indenture, made the first day of May, in the year one thousand eight hundred and fifty, between Joseph Hoyt, of the city and county of San Francisco and state of California, of the first part, and Philip Horn, 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, &c. [here describe the premises intended to he let], with the appurtenances, for the term of one year from this date, at the yearly rent of twelve hundred dollars, to be paid monthly in advance. And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises, and tn 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 first 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 ele- ments excepted ; and the said party of the first part doth cove- nant that the said party of the second part, on 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. In witness whereof, we have hereunto set our hands and seals, this first day of May, one thousand eight hundred and fifty. Sealed and delivered ) Joseph Hott. [l. s.] in the presence of >■ Fmxxp Horn. [l. s.] John Jones. ) Indenture of Lease with Covenant to Build, <&c. This indenture made the first day of ISTovember, A. D. one thousand eight hundred and fifty-eight, witnessett, that Peter LANDLORD AND TENANT. 521 O. Minor, of San Jose, county of Santa Clara, state of California, of the first part, doth hereby lease, demise, and to farm let unto E. B. Mastick, of the city and county of San Francisco and state aforesaid of the second part, the following lot of land situate in the said city and county of San Francisco, and described as follows, to wit : commencing yhere, insert •description], together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, to have and to hold the above-mentioned premises unto the said party of the second part, his executors, administrators, and assigns, from and after the day of the date hereof, for and during and until the full end and term of ten years thence next ensuing. Yielding and paying therefor monthly at the end of every month during the continuance of the term hereby demised, unto the said party of the first part, his heirs and assigns, as rent, the sum of one hundred and fifty dollars, except as hereinafter stated. And it is mutually covenanted and agreed by and between the parties to these presents, for themselves and their respective heirs, executors, administrators, and assigns, as follows : That said party of the second part shall well and truly pay the rent herein reserved at the times and in the manner herein provided ; and also, that said party of the second part shall and will, at all times hereafter during the said term, pay and discharge all the taxes, assessments, charges and impositions whatever which may be laid, imposed or assessed upon the said premises, or any improve- ments made or to be made thereon ; and also, that said party of the second part shall and will, within two years from the date of this lease, to be then complete, build, or cause to be. built and erected, iipon said premises, a good and substantial building or buildings, to cover the whole of the front on Montgomery street, of brick or stone materials, and with or without iron fronts, at the option of the said party of the second part — the lower or first story of said building or buildings to be arranged for stores, and leaving the upper story or stories to be added at such time and for such uses, or to be entirely omitted, as may 'be determined by said party of the second part; and also, that at the expiration of five years from the date hereof, to wit : the first day of JSTovem- ber, one thousand eight hundred and sixty-three (1863), or at any time thereafter during the term, it shall be at the option of said party of the first part to require said lot to be appraised and a new valuation of the rent thereof to be determined for the re- mainder of the term, and if the same be required each party shall choose a disinterested person, who shall be an owner of real estate in fee simple in San Francisco, to estimate the value of said land, and assess the just and proper monthly rent of said lot without its improvements ; and in case said persons cannot agree upon 522 BANCROFTS CALIFOENIA LAWTEE. suet valuation and aBsessment^liey shall then choose an umpire, •whose decision shall fix and determine the same, and shall bind all parties ; and also, that said party of the second part shall not assign this lease to any person or persons whatever, except it be to some person of substantial and undoubted pecuniary responsi- bility, such assignee to succeed to and become held and bound by all the covenants hereof, and that in the event of an assign- ment the same shall not affect in any way the present liability of said party of the second part for and on accountof the covenants herein contained ; and also, that in case the said improvements shall be destroyed or materially damaged by fire or other casu- alty, it shall be at the option of said party of the first part to revoke, cancel and annul this lease, unless said party of the second part shall repair or rebuild like good and substantial buildings upon the premises ; and also, that upon the determination of this lease the said party of the first part shall pay to said party of the second part the reasonable value of the improvements by him erected in accordance with the terms of this lease, and which shall be then remaining upon said premises, such valuation to be as- certained and determined by arbitration, in the manner herein- before provided for the determining the revaluation of the rent of said premises, said arbitration in either case to be at the mu- tual expense of both parties ; and also, that if the said monthly payments of rent or any of them herein provided for should be behind-hand and remain unpaid for the period of fifteen days next after any of the days or times above mentioned for the pay- ment thereof, or if the said party of the second part shall not well and faithfully observe, faithfully perform, and keep all and sin- gular the covenants and agreements in these presents contained on the part and behalf of the party of the second part, to be ob- served, fulfilled, performed and kept according to the true intent and meaning thereof, then and from thenceforth it shall and may be lawful for said party of the first part to re-enter in and upon the said demised premises, or any part thereof, in the name of the whole, and to have again, repossess, and enjoy the same as in his first and former right and estate, and to expel from thence the said party of the second part, or any person or persons under^ by, through, or from him, claiming or holding the same; and also, that the said party of the second part paying the rent as afore- said, and performing all and singular the covenants and agree- ments herein contained by him to be paid and performed, shall quietly and peaceably have, use, occupy and enjoy all and singu- lar the premises hereby demised, without any let, suit, hindrance or denial of the said party of the first part, or any other person or persons whatsoever, by, from, or under him lawfully claiming ; and also, that at the expiration of said term the covenants herem contained being fully performed, said party of the second part LANDLORD AND TENANT. 523 shall deliver up to said party of the first part the said premises and every part and parcel thereof, and all and singular the tene- ments, hereditaments and appurtenances without fraud or delay. In witness whereof, the said parties have hereunto, and to an- other of like tenor and date, interchangeably set their hands and seals the day and year first above written. Lease with Covenants. This indenture, made this first day of June, in the year of our Lord one thousand eight hundred and fifty-nine, between Wil- liam R. Satterlee, of San Francisco, of the first part, and Charles S. Capp, of the same place, of the second part, witnesseth, that the said party of the first part, in consideration of the rents, cov- enants and agreements hereinafter reserved and contained, by the said party of the second part, to be paid, kept and performed, has demised and let, and by these presents does demise arid let, unto the said party of the second part, all that certain lot, piece or parcel of land [here insert description'], to have and to hold, unto the said party of the second part for and during and until the full end and term of five years, commencing on the first day of January, one thousand eight hundred and sixty, and then next ensuing ; yielding and paying therefor unto the said party of the first part, or his legal representatives, the yearly rent or sum of three thousand dollars, payable monthly in advance; that is to say, the sum of two hundred and fifty dollars to be paid on the first day of January next, and the like sum of two hundred and fifty dollars on the first day of each and every month thereafter, until the said term shall be fully complete and ended. And the said party of the second part, in consideration of the premises, and of one dollar to him paid by the said party of the first part, the receipt whereof is hereby acknowledged, hereby covenants, promises and agrees to and with the said party of the first part, his heirs, executors, administrators and assigns, to take the said premises for the term aforesaid, and pay the said rent therefor at the times and in the manner hereinbefore specified for the payment thereof, and at the expiration of the said term to quit, surrender and yield up the said premises to the said party of the first part, or his legal representatives, in as good order and con- dition as reasonable use and wear thereof will permit (damages by the elements only excepted); and further, that if default be made in the payment of the said rent, or in any of the terms, cove- nants and conditions herein contained, by the said party of the second part to be kept and performed, then it shall be lawful and competent for the said party of the first part, or his legal representatives, at his or their option, without any legal process or warrant other than is herein contained, to re-enter upon and 524 Bancroft's calipoenia lawyer. take possession of the said premises, and the same to have again, repossess and enjoy, as in his first and former estate, but without thereby excluding him or them from the right to recover any other or further damages sustained by reason of such default. And the said party of the second part further covenants and agrees as aforesaid, that he will not, during his occupancy of the said premises, place therein or thereon any property extr^ hazard- ous, so as to endanger the destruction of the said premises or any portion thereof, by fire ; that the said party of the first part shall at all times during the said term, have the right to enter into and upon the said premises, for the purpose of examining the condition thereof; and that the said party of the second part shall and will not assign this lease, without the written consent of the said party of the first part, or his legal representatives. In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written. "Wm. R. Sacteelee. [l. S.J Chas. S. Capp. [l. s.] Sealed and delivered in pres- 1 ence of John Hanna. j An Agreement for a Lease. Memorandum of an agreement entered into this twenty-third day of April, 1859, between Erwin Davis, of the city of San Francisco, and H. P. Coon, of said city, whereby the said Erwin Davis agrees, by indenture to be executed on or before the fifth day of June next, to demise and let to the said H. P. Coon, a certain house and lot in said city known as No. 151 Harrison street, to hold to the said H. P. Coon, his executors, administra- tors and assigns, from the fifth day of June aforesaid, for and during the term of twelve years, at the yearly rent of twelve hun- dred dollars, payable monthly one hundred dollars a month, in advance, clear of all taxes and deductions except the ground- rent. In which lease there shall be contained covenants on the part of the said H. P. Goon, 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 Er- win Davis), 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 or other business on the premises (except by written permission of said Erwin Davis) ; to deliver the same up at the end of the term in good repair (except dam- ages by fire, as aforesaid) ; with all other usual and reasonable covenant?, and a proviso for the re-entry of the said Erwin Davis, his heirs and assigns, in case of the non-payment of the rent for the space of three days after either of the said rent-days, LANDLORD AJSTD TENANT. 525 or the non-performance of any of the covenants. And there shall also be contained covenants on the part of the said Erwin Davis, his heirs and assigns, for quiet enjoyment ; to renew said lease at the expiration of said term, for a further period of twelve years, on terms to be agreed upon ; and that in case of an acci- dental fire at any time during the term, the said Erwin Davis will forthwith proceed to put the premises in as good repair as before such tire, the rent in the mean time to cease. And the said H. P. Coon hereby agrees to accept such lease on the terms aforesaid; And it is mutually agreed that the cost of this agree- ment, and of making and recording said lease and a counterpart thereof, shall be borne by the said parties equally. As witness our hands and seals, the day and year first above written. Eewin Davis, [l. s.] H. P. Coon. [l. s.] Sv/rrender of Lease. This indenture, made the fifth day of May, A. D. 1860, between Frank Miller, of the city of San Francisco, of first the part, and William Fox and George Penn, late of said city, of the second Sart. "Whereas the said-parties of the second part, and one W. [elvin did, by their indenture of lease, dated December 1, 1868, recorded in liber ]^o. 39 of leases, page 23, demise and to farm let unto the said party of the first part the lot therein described as follows [insert desoription], for the term of ten years from the date of said lease, with the privilege of an additional term of five years upon the conditions in said lease mentioned, and in an agreement dated August 9, A. D. 1859, and recorded in liber No. 20 of leases, page 129, contained and reserved, and with the privilege of purchase of the total at the end of the term ; and whereas the interest of said Melvin in and to said lease has been transferred to said parties of the second part, Now these prepents witness, that for and in consideration of the sum of ten dollars to the said party of the first part in hand paid at the sealing and delivery of these presents by the said parties of the second part, and to the intent and purpose that the said term in the said land and premises may be wholly ended and extinguished, and the said privilege of purchase wholly discharged, and the improvements erected on said premises become the ab- solute property of the said parties of the second part, he, tlie said party of the first part, hath given, granted, and surrendered, and by these presents doth give, grant, and surrender, unto the said parties of the second part and their heirs, all the said lands and premises in the said indenture of lease contained and demised as aforesaid, and all the buildings and improvements erected thereon, and all the estate, right, title, interest, term and terms of years, privilege of purchase of said lands, property, claim, and demand 52 6 banceoft's califoenia lawyee. whatsoever of him, the said party hereto, of the first part, of, in, to, or out of the name, or any part or parcel thereof, to have and to hold the said lands and premises, buildings, and erections, to the said parties hereto of the second part, their heirs and assigns, and to their own proper use and behoof. And the said party of the first part doth hereby covenant that the same are free and clear of all incumbrances of what kind soever, at any time by him or by his consent or procurement done, committed, or suffered. la witness whereof, the said party of the first part hath hereto set his hand and seal, the day and year first above written. Sealed and delivered in ) FEAifK Miixee. [l. s.] presence of M. N. j JVotiee to Qtdt, hy the Lamdlord. To Wm. Beales : Take notice, that you are hereby required to quit, and deliver up to me the possession of the premises now held and occupied by you, being the premises known as \or situated] {jHescr'lption], at the expiration of the month [or week, or year, as may Sd], of your monthly tenancy of said premises, commencing on the fifth day of April, 1859, and ending on the fifth day of May, 1869. This is intended as a month's notice to quit, for the purpose of terminating your tenancy aforesaid, Gbobge Jenkins. April 4th, 1859. D&mand for Possession v/nder 13th Section of Detainer Act. To Peter Hall : You are hereby notified and required, forthwith to deliver up to me the possession of the premises now occupied by you, under lease from me, situated [here follows descriptioru]. May 8th, 1859. Andrew "Wilkins. Demcmd of Possession. To A. B. : The sum of one hundred dollars rent of the premises occupied by you, under lease from the undersigned, C. I)., and known as the Pioneer Race-Course, due January 1st, 1850, having re- mained unpaid until this date, you are hereby required to de- liver possession to us of the said premises, within three days from this date. 0. D. San Francisco, A. D. LANDLORD AND TENANT. 527 Notice of Quitting Premises 'by Tenant. To George Jenkins, Landlord : Please take notice, that I shall quit possession, and deliver up the premises now held and occupied by me, being the premises \descirvption\.i at the end of the next month of my monthly tenancy of said premises, to wit : on the fifth day of May, 1859, as I intend to remove therefrom, and to terminate the said tenancy. April 4th, 1859. Yours, &c., "Wm. Beals. Summons m Detainer after Bent Due. (To le served hy sheriff or coiistcMe — hot iy deputised person!) In the Justices'*: Court of the Second Township, in and for the City and County of San Francisco. John Brown \ against > William Jones. ) The People of the State of California to the Sheriff, or any constable of the city and county aforesaid : "Whereas, John Brown, of the said city and county of San Francisco, hath exhibited unto me, a justice of the peace for said county, a complaint against "William Jones, of the city and county of San Francisco, for that, on or about the first day of March, A. D. 1859, John Brown, as landlord, leased and demised to "William Jones, as tenant, by virtue of a parol lease, made on the day above named, the following described premises, to wit : all that lot of, land situated in the city of San Francisco, and bounded and described \insert description]. To have and to hold, the said premises to the said tenant, &c., for the term of two months thence next ensuing, at the monthly rent of fifty dollars, payable monthly in advance ; that by virtue of said lease said tenant went into possession of said premises, and he and others under him still continue to hold the same : that, according to the terms of said lease, there became due on or about the first day of April, A. D. 1859, the sum of fifty dol- lars, rent ; that said sum still remains due and impaid ; that, on the day when the last instalment of said rent became due , demand was made therefor in due manner and form ; that said instalment remains still due and unpaid ; that three or more days after said instalment became due, and said demand was made , and three or more days before the com- mencing of this suit, , demand was duly made in writ- ing of the defendant, to deliver up the possession of said premises, which said defendant has hitherto wholly failed and refused to do : and the said John Brown claims the sum of fifty dollars for 528 Bancroft's califoenia lawyer. damage to said property, in tearing down a good board fence surrounding the yard. "Wherefore, the plaintiff prays judgment for fifty dollars for waste and injury; also fifty doUarsJ rent due, as aforesaid, and restitu- tion of the said premises. You are therefore commanded to summon the said William Jones, if he can be found in your county, to be and appear before me, at my office, in said township, on the twentieth day of April, A. D. 1859, at 11 o'clock, A. M., then and there to make answer unto the complaint aforesaid. Given under my hand and seal, this ninth day of April, A. D. 1869. Wm. Clark, [l. s.] Justice of the Peace. I certify the above to be a true copy of the original summons by me issued in the above-entitled cause. Wm. Claek, Justice of the Peace. Complaint in Detainer after Remb due. In the Justices' Court, Second Township, in and for the City and County of San Francisco. John Brown ) against \ William Jones. ) City and County of San Francisco : John Brown, the plaintiff in this suit, a resident of , by William Smart, his attorney, complains of William Jones, the defendant in this suit, a resident of , and for cause of complaint shows. That, on or about the first day of March, A. D. 1859, John Brown, as landlord, leased and demised to William Jones, as tenant, by virtue of a certain lease made on the day above- named, the following described premises, situate in the said city and county, to wit : [insert desGription.~\ To have and to hold the said premises to the said tenant, &c., for the term of two months thence next ensuing, at the monthlj'^ rent of fifty dollars, payable monthly in advance. That by virtue of said lease said tenant went into possession and occupation of said premises, and hath ever since held and occupied, and still doth continue to hold and occupy the same ; that according to the terms of said lease [here insert any covenant and the hreach thereof, instead of the non-payment of rent, as the case may 5e], there became due on the first day of April, A. D. 18 , the sum of fifty dollars, rent ; that said sum still remains due and un- paid ; that on that day when the said rent, to wit, $ , became due, to wit, demand was made by the said plaintiff of said defendant therefor in due manner and form upon the premises. LANDLORD AND TENANT. 529 but said defendant neglected and refused to pay the same, and said instalment remains still due and unpaid : that three or more days after said instalment became due and said demand was made, and three or more days before the commencing of this suit, to wit : on the ninth day of April, A. D. 1859, at said city and county, demand was duly made in writing of the defendant by the plaintiff, to deliver up the possession of said premises to the plaintiff, which said defendant refused to do, and has hitherto wholly failed and refused to do ; and still doth neg- lect to do, and forcibly, wrongfully and unlawfully detains the possession of the said premises from the said plaintiff, whereby the said plaintiff hath sustained damages by reason of the said wrongful and unlawful detention and holding over, to the amount of one hundred dollars. And the said plaintiff furtlier alleges that the said defendant has committed waste, in tearing down a good board fence surrounding the yard, to the damage of this plaintiff of fifty dollars. Wherefore, the plaintiff prays judgment for one hundred and fifty dollars damages, for waste and injury, and for the detention of said premises ; also fifty dollars, rent due, as aforesaid, and restitution of the said premises. "William Smaet, Plaintiff 's Attorney. City and County of San Francisco, ss : John Brown, the plaintiff" in the foregoing complaint named, being duly sworn, deposes and says, that he has read the fore- going complaint, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on his information and belief, and as to those mat- ters he believes it to be true. John^ Eeown. Sworn to before me, this ninth day of April, A. T>. 1859. Wm. Claek, Justice of the Peace. Writ of Hcstikition. State of California, ) -r^. . m , . City and County of San Francisco, j ^'^'^^^ lownslup. The People of the State of California to the Sheriff or any con- stable of the county aforesaid : Whereas B. C, of the city and county of San Francisco, at a court of inquiry of an unlawful detainer, held at my office in the county aforesaid, on the day of , A, D. 1859 before me, a justice of the peace for the county aforesaid, by the' consideration of the court, hath recovered judgment against Y. Z., to have restitution of certain ■ premises [here insert descrip- tion], and that the said B. C. do have and recover of said T. Z. 34 530 Bancroft's califoenia lawyer. the sum of damages, and the sum of costs of this action. You are therefore commanded that, taking with you the force of the county, if necessary, you cause the said Y. Z. to be imme- diately removed from the aforesaid premises, and the said B, 0. to have peaceable restitution of the same. And you are also commanded that of the goods and chattels of the said Y. Z., within said county, you cause to be made the sum of dollars for the sum of the said plaintiff, together with the costs of suit endorsed thereon ; and make return hereof, within thirty days from this date. Given under my hand, this day of , A. D. 1859. O. P., Justice of the Peace. mechanics' liens. 531 CHAPTEE XXVII. LIEN OF MECHANICS AND OTHEES. STATUTOET PEOVISIONS. In view of the general application of the law of lien, the act of 1856 as amended by the act of 1858, is here given almost en- tire; attention being first called to the supplementary act of 1857, which provides that the provisions of the act for " Securing Liens to Mechanics and others," is extended, so as to include in its provisions, bridges, ditches, flumes or aqueducts, to create hydraulic power, or for mining purposes ; and all master builders, mechanics, lumber merchants, contractors, journeymen or labor- ers, and all other persons performing labor, or furnishing ma- terials for, or employed in the construction or repair of any bridge, ditch, flume or aqueduct aforesaid, shall have the same lien, subject to the same provisions and regulations, as in and by said act are provided for liens upon buildings, wharves, and other superstructures. ACT OF APKIL 19, 1856, FOE SEOURINa MENS TO MECHANICS AND OTHEES. Section 1. All artisans, builders, mechanics, lumber mer- chants, and all other persons performing labor or furnishing ma- terials for the construction or repairing of any building, wharf or other superstructure, for the work and labor done or materials furnished by each respectively. Sec 2. Every person wishing to avail himself of the benefits of this act, shall file in the recorder's oflBce of the county in which such building, wharf or superstructure is situated, within sixty days after the completion of such building, wharf or su- perstructure, a just and true account of the demands due him, after deducting all proper credits and offsets, and shall verify said account by his own oath, or the oath of some other person, and shall also file, at the same time, a correct description of the 532 Bancroft's California lawyer. property to be charged witli said lien. If such lien is claimed Ijj a subcontractor, journeyman, or any other person except the contractor performing labor or furnishing materials, the account aforesaid shall be filed within thirty days after the work was done or the materials were furnished by him ; and within five days after the filing of said account as aforesaid, he shall serve a copy there- of on the owner or owners of such building, wharf or superstruc- ture, or the agent of such owners, if the latter reside out of the county in which such building, wharf or superstructure is situate, by delivering the same to him personally, or by leaving it at his usual place of residence, with a person of suitable age and dis- ■ cretion, or by depositing it in the post-office, directed to him at his usual place of business. K such owner do not reside within the county, and have no agent therein, service of the copy afore- said may be made by posting the same in a conspicuous place on the building, wharf or superstructure to be charged with such lien. Sec. 3. Every subcontractor, journeyman, laborer or other person, performing labor or furnishing materials, shall, under the provisions of this act, have a valid lien upon the building, wharf or superstructure on which such labor was performed; or for which such materials were furnished, regardless of the claims of the contractor against the owner of such building, wharf or su- perstructure ; but if any money be due, or is to become due, under the contract from said owner to said contractor, on being served with a notice by a subcontractor, as provided in the last preceding section, said owner may withhold, out of the first money due, or to become due under the contract, a sufficient sum to cover the lien claimed by -such subcontractor, journeyman, laborer, or other person performing labor or furnishing materials, until the validity thereof shall be ascertained by a proper legal proceeding, if the same be contested ; and if so established, the amount thereof shall be a valid offset to that extent in favor of the owner against the contractor. But no attachment served on the funds in the hands of the owner of such building, wharf or superstructure, for claims other than those expressed in this act, shall lie against the liens created by this act, nor shall such owner be held or legally bound to answer such attachment until all claims under the contract or liens by this act shall first be satisfied. mechanics' liens. 533 Sec. 4. The land upon which any building or superstructure shall be erected, together with a convenient space around the same, or so much as may be required for the convenient use and occupa- tion of the premises, shall also be subject to the lien created by this act, if, at the time the labor was commenced or the first of the materials were finished, the land belonged to the person who caused the said building, wharf, or superstructure to be erected, but if such person owned less than a fee-simple estate in such land, then only his interest therein shall be subject to such lien, and the liens created by this act shall be preferred to every other lien or incumbrance which shall have attached upon the said property subsequent to the time at which the work Was commenced or the materials furnished ; and also, to all mortgages and other incum- brances unrecorded at the time such work was commenced, or the first of such materials were furnished, but nothing herein con- tained shall be construed as impairing any valid incumbrance upon the said land duly made and recorded before such work was commenced, or the first of such materials were furnished. Sec. S. The amount required to be filed by the second section of this act, shall specify that it is the intention of the holder thereof to claim alien upon the premises sought to be charged therewith ; and it shall be the duty of the recorder to file and record such notice and account in a separate book provided for the purpose, and from the time of such filing, all persons shall be deemed to have notice thereof. Sec. 6. 'Eo such lien shall bind any building, wharf, or super- structure for a longer period than six months after filing the same, unless suit be brought in a proper court within that time to en- force the same ; or, if a credit be given, then within six months after the expiration of the credit ; but no lien shall be continued in force for a longer time than two years from the time the work is completed or the materials furnished, by any agreement to give credit. Sec. 7. Said liens may be enforced by suit in a court of com- petent jurisdiction, on setting forth in the complaint the partic- ulars of such demand, with a description of the premises sought to be charged with said lien ; and at the time of filing the com- plaint and issuing summons, the plaintiff shall cause a notice to be published for at least twenty days, in some newspaper pub- 534 Bancroft's California lawyer. lished in the county, if there be one, and if not, then in such mode as the court shall direct, notifying all persons holding or claiming liens, under the provisions of this act, on. said premises, to be and appear in said court on a day therein specified, and to exhibit then and there the proof of said liens. On the day appointed, the court shall proceed to hear and determine the said claims in a summary way, or may refer the same to a referee to ascertain and report upon said liens, and the amount justly due thereon ; and all liens not so exhibited and proved shall be deemed to be waived in favor of those which are so exhibited. On ascertaining the whole amount of said liens with which the said premises are justly chargeable as hereinbefore provided, the court shall cause said pi-emises to be sold in satisfaction of said liens, and the costs of suit ; and if the proceeds of such sale shall not be sufficient to satisfy the whole of such liens established as aforesaid, then the same shall be apportioned according to the respective rights of the several parties. Skc. 8. Nothing herein contained shall be construed to take away, or affect in any manner, any action which any such con- tractor, laborer, subcontractor, or other person performing labor or furnishing materials for such building, wharf, or superstructure would otherwise have against his employer. Sec. 9. The holder of such lien, filed as aforesaid, on payment thereof, shall enter satisfaction of the same of record, at the re- quest of any one interested in the property charged with the lien, within ten days after such request, on the payment of the costs of such entry; and, on failure to enter such satisfaction, shall forfeit and pay the party aggrieved the sum of fifty dollars per day until such satisfaction shall be entered, to be recovered in the same manner as other debts are recovered. Sec. 10. Any mechanic or artisan who shall make, alter, or repair any article of personal property, at the request of the owner or legal possessor of such property, shall liave a lien on such property so made, altered, or repaired, for his just and reasonable charges for his work done and materials furnished, and may hold and retain possession of the same until such just and reasonable charges shall be paid ; and if not paid for within the space of two months after the work shall be done, such mechanic or artisan niayproceedto sell the property by him so made, altered, mechanics' liens. 535 or repaired, at public auction, by giving three weeks' public notice of such sale, by advertisement in some newspaper published in the county in which the work may be done ; or, if there is no such newspaper, then by posting up notices of such sale in three of the most public places in the town where such work was done ; and the proceeds ^f said sale shall be applied, first, to the dis- charge of such lien and the costs and expenses of keeping and selling such property, and the remainder, if any, shall be paid over to the owner thereof. Sec. 11. Nothing contained in this act shall be deemed to ap- ply to or aifect any lien heretofore acqiiired, and an act entitled "An Act to provide for the Lien of Mechanics and others," passed April twelve, one thousand eight hundred and fifty, and all other acts inconsistent with the provisions of this act are hereby repealed. Sec. 12. When any person shall make an express contract in writing with the owner of any lot or lots, in any incorporated city or town, to grade or improve the same, or the street in front of and adjoining the same, and shall go on and complete the said grading or improving of said lot or street adjoining the same, it shall be considered as an improvement upon said lot or lots, and the same provisions of this act shall apply thereto as would apply if it were a building erected on the said lot or lots. Sec. 13. "When any person shall make an express contract, in writing, with the owner or owners of any lot or lots, in any incor- porated city or town, or with the person who was, at the time of such contract, and had been for more than one year the next pre- ceding, in the actual possession of such lot or lots, by himself or themselves, or tenant or tenants, under honafide claim of owner- ship, to grade, fill in, build upon, or otherwise improve the same, and shall go on and complete such grading, filling, building, or other useful improvement, he shall have a lien upon such lot or lots for the amount contracted to be paid ; and all the provisions of this act respecting the mode of recording, securing, and en- forcing mechanics' liens, shall apply thereto. When the amount of the debt sought to be secured by lien is hot over two hundred dollars, the action should be brought in a justice's court. If, how- ever, the amount of all the liens brought in should exceed two hundred dollars, the justice would lose jurisdiction. 536 Bancroft's California lawyer. JUDICIAL DECISIONS. The evident intention of the act in relation to mechanics' liens, was to give mechanics and artisans a lien for all work done by them, upon any description of property. The first section gives a lien upon the superstructure itself, as distinct from the land ; and the fourth section gives a lien also upon the land, when the same is owned by the person who caused the superstructure to be erected.' The object of the act was to give the mechanic a lien upon whatever interest the person who caused the superstructure had, and which could be sold under execution.' The lien of a subcontractor filed, and notice given to the owner of a building within thirty days after the completion of a work, under the act of 1855, attaches from the time the work was com- menced, and takes precedence over a garnishment served on the owner against the head contractor, after the work was com- menced, and before the filing and serving notice of lien.' Where a civil engineer's lien for work done for the defendants in the construction of a canal or ditch, was filed in the recorder's office of the county where the ditch is located, on the 6th day of May, 1856, and suit was not commenced to enforce the lien until the 26th day of January, 1857 : held, that the time fixed by statute for the enforcement of the lien had expired before the commencement of the suit, and that the plaintiff was not entitled to a judgment giving a lien upon the property.' A decree for the sale of premises in a suit to enforce a me- chanic's lien, has the same and no greater effect upon the rights of purchasers and incumbrancers, prior to tlie commencement of the suit, than a similar decree would have upon the foreclo- sure of a mortgage. If such purchasers or incumbrancers are not made parties, they are not bound by the decree or the pro- ceedings thereunder.* The liens, which by the act of April 19th, 1856, entitled " An Act for Securing Liens to Mechanics and Others," are required to be exhibited and proved, upon publication of notice in some l9C£il. 119. '1(1 id. 874. 2 7 id. 858. « id. 64T. LIENS. 53? newspaper of the county, or be deemed waived, are liens arising under that act, and do not apply to other liens.' OREGON. By the statute of Oregon, a lien is given where the amount exceeds twenty dollars for labor or materials, or machinery fur- nished in the construction or repair of a building, provided the claimant file notice of his intention to hold such lien in the county recorder's office, within three months after the comple- tion of such building or repairs, the notice to specifically set forth the amount due or to become due, and a description of the building." Such lien expires in one year, unless suit be brought in the District Court to establish the same. If there be several persons having liens upon the same building and lot of ground, they may all join in one action, stating their claims separately ; and upon a sale on execution, the proceeds are appropriated to pay pro rata all the liens of this character. Such execution may ex- tend to other property of the defendant, where that covered by the liens is insufficient. These liens have preference over any other liens created after the commencement of the work.' Any subcontractor, journeyman or laborer employed in con- structing, repairing or furnishing materials or machinery for a building, may hold the owner liable to the extent of his indebt- edness to the employer, by giving him written notice thereof, particularly setting forth the amount of his claim and the ser- vice rendered, which may be enforced by suit within one year.* Any person making, altering or repairing, or bestowing labor upon, or carrying, conveying or transporting, or keeping or storing, any article of personal property, or pasturing, feeding, or bestowing any labor, care or attention upon any live stock, at request of the owner or any lawful possessor thereof, has a lien upon the same for his just charges, and may retain possession until he is paid.' If he be not paid for three months, he may proceed to sell the property at public auction, or enough to pay his claim, with costs ' 10 Cnl. 54T. « id. ITO. a Laws Oreg. p. 169. * id. ITt .538 banceoft's caxifoenia lawyer. and expenses ; upon giving three weeks' previous notice, in some newspaper of the county, or, if there be no paper published, by posting the notice m three of the most public places in the city or township. This right to retain and sell cannot interfere with any special agreement of the parties. WASHINGTON. Lien is givea to the laborer or material-man, as in Oregon, upon the building, and the owner's interest in the land, when the claim exceeds fifty dollars. Notice of his intention to hold the lien must, in like manner, be recorded in the recorder's ofiice within sixty days. A subcontractor, journeyman or laborer may hold the owner responsible, by giving him notice, to the extent of his indebtedness. And any lien may be enforced by suit in the District Court, brought within a year.' Several claimants may unite in one action, or where there are several actions the court may order them to be consolidated. Upon sale of the property the proceeds apply to all the liens, and if insufficient, other property of the defendant may be levied upon. The defendant, on such suit or suits, may release the property from the lien or liens, by giving a bond, with surety duly approved." The lien upon personal property for making, repairing, or other labor, or for carrying, or for pasturing, keeping or attend- ing to live stock, is given and regulated the same as in Oregon, except that notice of sale is given by posting a written notice, for at least ten days, in three public places in the county, pre- cinct, town or city where the claimant resides, one of which shall be in some conspicuous part of his shop or place of business ; or, If the value of the article be fifty dollars or more, by publishing the notice for three weeks successively, in a newspaper in the county, if there be any, in addition to posting." » Laws Wash. 892. s Id 394. ' id. 398. mechanics' liens. 539 FOEMS. Notice of Mechanics' Iden/ Know all men by these presents, that under an agreement with , the owners of the premises hereinafter described, we, the undersigned, , have performed labor and furnished materials in and about a certain building on street, side, in the city of , situated on lot No. . That such materials were furnished and labor performed less than sixty days previous to the date of this instrument. That the amount due thereof, and for which the undersigned claim, a lien, is the sum of , over and above all payment and set-offs. We, the said , do hereby make known our intention to hold a lien upon the above-described premises, being the build- ing aforesaid, together with the land upon which the same is erected, and the space around the same not exceeding square feet clear of the building, for the said sum of , to- gether with the interest thereon, pursuant to the provisions of an act of the legislature of the state of California, entitled, "An Act, &c." A. B. Dated San Francisco, June 29th, 1859. C. D. &c. Another Form. State of California, State of California, ) City and County of San Francisco. ) A.B. against \ CD. ) Know all men by these presents, that I, A. B., of the city of San Francisco, in said county, have performed labor and fur- nished materials for the construction of the building erected, and now being upon the land and premises hereinafter more particu- larly described, as a contractor. That it is my desire to avail myself of the benefits of the act of the legislature of the state of California, entitled " An Act for securing Liens of Mechanics and others," passed April 27, 1856, and the act of the legislature of the state of California, entitled "An Act for securing Liens to Mechanics and others," passed April 19,1856; and the act to amend an act entitled "An Act for securing Liens to Mechanics and others," passed April 19, 1856 ; approved April 22, 1868 ; and that it is my intention to claim a lien upon the premises aforesaid and hereinafter de- scribed ; and that it is my intention to claim and hold such lien, not only upon the said buildings, erections and superstructures, 540 BANCROFT'S CALIFORNIA LAWYER. but also npon the land upon which the same are erected ; to- gether witli a convenient space aroiind the same, or so much as may be required for the convenient use and occupation of the premises; or upon such interest as the said C. D., who caused the said building or superstructure to be erected, bad on the first day of May, 1859, when the same was commenced, or at any time since hitherto. That sixty days have not elapsed since the completion of such building or superstructure. That the following is a correct description of the property to be charged with said lien: Sjiere give the descriptionJl That the following is a just and true account of the demand due; to the claimant, after deducting all proper credits and offsets : Contract price of building and materials - - $5,000 OO Extra materials ordered - - - 1,000 00 Total amount of debits, - $6,000 00 DEDTJOTIONS. Cash at sundry times - $4,000 00 Deduction for injury to marble man- tel piece 100 00 Total amount of deductions - 4,100 00 Balance now due . . . . $1,900 00 City and County of San Francisco, ss. A. B., the claimant in the within notice of intention to hold & lien named, and who subscribes the same, being duly sworn, says that he has read the same and knows the contents thereof, and that the same is in all respects just and true, and contains a just and true account of the demand due him, after deducting all proper credits and offsets. A. B. . Sworn to before me this 16th day ) of September, A. D. 1859. f [l. s.] Wd. W. Wiggins, Notary Public. mechanics' liens. 541 Notice of InUntion to Hold Lien, A.B. I agamst > City and County of San Francisco, ss : Notice is hereby given to all whom it may concern, that I have furnished certain materials and performed labor in and about the same, for and which were used in the construction and erection of a certain building erected on lands in the city and county of San Francisco, which lands are reported to belong to one C. D. \or, to one D., husband of said C. D., or, to the said C. D. and her husband jointly]. That such materials were furnished and labor performed at the instance and request of one E. F., the contractor of said building, or of some part or portion thereof. The said building is situated on the lot described as follows : {description.l And notice is also given, that I intend to hold a lien on said building, and the lot whereon the same is situated, and all the interest of the said reputed owners therein, for the amount which is hereunder written, and is for the value of the said material and labor, and amounts to the sum of fifty-seven dollars and forty-one cents, and that the said materials were furnished and labor performed within thirty days last past. The following is a copy of the account above referred to, &c., &e., [as in foregoing.'] Notice to Lien Men. Justices' Court, Second Township, State of California, ) City and County of San Francisco, f A. B. ) against V Notice is hereby given. to all persons holding or claiming liens on that certain lot of land, with the building thereon, situated in the city of San Francisco, and described as follows : \here insert description,'] to be and appear before me at my court-room, No. 101 Merchant street, on the 20th day of June, A. D. 1859, at ten o'clock in the forenoon of that day, and then and there exhibit the proof of said liens. Dated this 25th day of May, A. D. 1859. Jaaies Beadfoed, Justice of the Peace. 542 bajstceoft's California lawtee. Order of Reference to ascertavn and corrvpute lAens, <&a. Peter Don against M. W. Siff, John L. Brown, and District Coiirt, Twelfth Judicial District. E. P. Hawks, partners, &c. In the above-entitled cause, the plaintiff having proved to the satisfaction of the court that he had caused to be published for at least twenty days prior to the 12th day of March, 1859, in the San Framoisco Jaerald, a daily newspaper published in the city and county of San Francisco, a notice as required by law, noti- fying all persons holding or claiming liens under the provisions of the act of the legislature of the state of California, entitled "An Act for Securing Liens to Mechanics and others, passed April 19th, 1856," and an act amendatory thereof, approved April 22d, 1858, entitled "An Act to amend an Act entitled an Act for Securing Liens to Mechanics and others," passed April 19th, 1856, upon the premises described in the plaintiff's complaint, to be and ap- pear in this court on the twelfth day of March, 1859, at ten o'clock A. M. of the said day, and during the regular term of said court, and to exhibit then and there the proof of said liens ; and it ap- pearing to the court that the plaintiff hath in all things complied with the law and the provisions of the statute in respect to said notice ; and it further appearing that on the said 12th day of March, the following-named persons appeared in said court and claimed a lien on said premises, and offered to establish the same by proof, to wit : J. Johnson, Peter Williams, &c., &c. And no other persons than those last above-named having ap- peared in pursuance of said notice, and claimed or exhibited proofs of their liens on said premises or any part thereof, it is adjudged, ordered and decreed that all liens not so exhibited on the said 12th day of March, 1859, shall be and the same are hereby adjudged and deemed to be waived in favor of those which were so exhibited. And it is further ordered that this cause and the issues therein and the liens or claims of lien so exhibited on the said 12th day of March as aforesaid, be referred to John B. Harmon, to ascer- tain and report upon said liens and the amount justly due there- on, and upon the issues in this cause. JIAGISTEATE. 543 CHAPTER XXYIII. MAGISTRATE. STATTTTOET PEOVISIONS. A MAGiSTEATE 18 an officer having power to issue a warrant for the arrest of a person charged with a public offence. The following persons are magistrates : justices of the Supreme Court, district and coimty judges, justices of the peace, recorders of cities, and mayors of cities, upon whom are conferred by law the powers of justices of the peace.' A coroner may also issue a warrant into one or more counties, for the arrest of a person found by an inquisition to have caused the death of another by criminal means." A justice of the Supreme Court, a district judge, or county judge, may issue his warrant of arrest to any peace officer in the state. But any other magistrate can only issue his warrant to be served without the limits of his county, when his official charac- ter is certified by the county clerk of his county, or his hand- writing is proved by affidavit endorsed on or annexed to the warrant, and some magistrate of the other county shall endorse upon the warrant an order that the warrant be executed in such other county.' The warrant is issued upon the complaint of the prosecutor under oath, and the depositions of any witnesses he may produce.* Upon being arrested, the defendant must, in all cases, be taken before the proper magistrate without delay.' K a public offence be committed in the presence of a magis- trate, he may, by a verbal order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest." • Wood's Dig. art. 1446. * Id. 1447, 1448. a id. 43T. ' id. 1456, 1468, 1472. » id. 1451. • Id. 1469. 5M Bancroft's califokjtia lawyee. Arrest may also be made witliout a warrant by a peace officer* or by a private person : 1. For a public oflFence committed or attempted in his presence ; 2. When the person arrested has com- mitted a felony, although not in his presence ; 3. When a felony has been in fact committed, and he has reasonable cause for be- lieving the person arrested to have committed it ; and 4th. By a peace officer only, on a charge made upon a reasonable cause, of the commission of a felony by the party arrested. A peace officer may also at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony.' The person must be informed of the cause of the arrest and the authority of the officer, except when he is in the actual commis- sion of the offence, or is arrested on pursuit immediately after the act, or after an escape." When a defendant is arrested for a felony f he must be brought before the magistrate who issues the warrant, or in case of his absence or disability, the nearest or most accessible magis- trate of the same county ; except in the case when the warrant is issued in the county where the defendant is found, upon an offence triable in another county, the defendant must be taken to that county.* When arrested for a misdemeanor,f however, the defendant is entitled to be admitted to bail in the county where arrested." The proceedings to be had upon the examination of the de- fendant are fully contained in the following sections of the act in relation to proceedings in criminal cases quoted from Wood's Digest of California Laws, from section 146, page 281, to section 176, page 284. Sec. 146. When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offence, the magistrate shall immedi- ately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had. * Peace officers aie sheriffs of counties, and constables, marshals, and policemen of cities and towns respectively. t A felony is ti public offence, punishable with death or by imprisonment in a stnte prison. Every other public offence is a misdemeanor. ' Wood's Dig art. 1 ■64r-UU. " Id. 1452, 14-fUI4-S. 2 id. U07 and 147U. t jd. n^^ j^j, ,453 MASISTRATE. 545 Seo. 147. He eliall also allow the defendant a reasonable time to send for countel, and adjourn the examination for that pur- pose, and shall, upon the request of the defendant, require a peace officer to take a message to such counsel witMn the township or city as the defendant may name. The officers shall, without de- lay and without fee, perform that duty. Sec. 148. The magistrate shall immediately after the appear- ance of counsel, or if defendant require the aid of counsel after waiting a reasonable time therefor, proceed to examine the case. Sec. 149. The examination must be completed at one session, unless the magistrate for good cause shown adjourn it. The ad- journment cannot be for more than two days at each time, nor more than six days in all, unless by consent or on motion of the defendant. Sec. 150. If an adjournment be had for any cause, the magis- trate shall commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this act, as security for his appearance at the time to which the examination is adjourned. Sec. 151. The commitment for examination shall be by an en- dorsement signed by the magistrate on the warrant of arrest to the following effect: "The within-named, A. B., having been brought before me under this warrant, is committed for examina- tion to the sheriff of the county of ." If the sheriff be not present, the defendant may be committed to the custody of a peace officer. Sec. 152. At the examination the magistrate shall in the first place read to the defendant the depositions of the witnesses exam- ined on the taking of the information. He shall also issue sub- poenas for any witnesses required by tlie prosecutor or the defend- ant, as provided in section five, hundred and forty-eight. Sec. 153. The witnesses shall be examined in the presence of the defendant, and may be cross-examined in his behalf. Sec. 154. When the examination of witnesses on the part of the people is closed, the magistrate shall distinctly inform the defendant that it is his right to make a statement in relation to , the charge against him (stating to him the nature thereof), that the statement is designed to enable him, if he see fit, to answer the charge and to explain the facts alleged against him, that he 35 546 BANCROFTS CALIFOENIA LAWYEE. is at liberty to waive making a statement, and that his waiver cannot be used against him on the trial. Sec. 155. If the defendant waive his right to make a state- ment, the magistrate shall make a note thereof immediately following the depositions of the witnesses against the defendant, but the fact of his waiver shall not be used against the defendant on the trial. Sec. 156. If the defendant choose to make a statement, the magistrate shall proceed to take the same in writing without oath, and shall put to the defendant the following questions only : " What is your name and age ? Where were you born ? Where do you reside, and how long have you resided there ? What is your business or profession? Give any explanation you may think proper of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation." Sec. 157. The answer of the defendant to each of the ques- tions must be distinctly read to him as it is taken down. He may thereupon correct, or add to his answer, and it shall be corrected until it is made conformable to what he declares to be the truth. Sec. 158. The statement must be reduced to writing by tlie magistrate, or under his direction, and {authenticated in the fol- lowing form : 1. It must set forth in detail that the defendant was informed of his rights as provided by section one himdred and fifty-four, and that after being so informed he made the statement. 2. It must contain tlie questions put to him, and his answers thereto, as provided in sections one hundred and iifty- seven and one hundred and fifty-six. 3. It may be signed by the defendant, or he may refuse to sign it ; but if he refuse to sign it, his reason therefor must be stated as he gives it. 4. It must be signed and certified by the magistrate. Sec. 159. After the waiver of the defendant to make a state- ment, or after he has made it, his witnesses, if he produce any, shall be sworn and examined. Sec. 160. The witnesses produced on the part either of the people or of the defendant, shall not be present at the examina- tion of the defendant, and while a witness is under examination, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, MAGISTRATE. 547" and to be prevented from conversing with each other until they are all examined. Sec. 161. The magistrate shall also, upon the request of the defendant, exclude from the examination every person except ];ii8 clerk, the prosecutor and his counsel, the attorney-general, the district attorney of the county, the defendant and his counsel, and the officer having the defendant in custody. [Sec. 162, repealed by act of May 5, 1855.] Sec. 163. After hearing the proofs and the statement of the defendant, if he have made one, if it appear either that a public '■^offence has not been committed, or there is no sufficient cause to believe the , defendant guilty thereof, the magistrate shall order the defendant to be discharged, by an endorsement on the depo- sitions and statement signed by him, to the following effect : "There being no sufficient cause to believe the within-named A. B. guilty of the oflPence within mentioned, I order him to be discharged." Sec. 164. If, however, it appear from the ex;amination that a public offence has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate shall in like manner endorse on the depositions and statement an order signed by him, to the following effect: "It appearing to me by the within depositions [and statement if any] that the offence therein mentioned [or any other offence, according to the fact, stating generally the nature thereof] ha& been committed, and that there is sufficient cause to believe the within-named A. B. guilty thereof, I order that he be held to answer the same." Sec. 165. If the offence be not bailable, the following words, or words to the same effect, shall be added to the endorsement : * " And that he be committed to the sheriff of the county of ." Sec. 166. If the offence be bailable and bail be taken by the magistrate, the following words, or words to the same effect, shall be added to the endorsement : " And I have admitted him to bail to answer by the recognizance hereto annexed." Sec 167. If the offence be bailable and the defendant be ad- mitted to bail, but bail have not been taken, the following words, or words to the same effect, shall be added to the endorsement mentioned in section one hundred and sixty-four : " And that he be admitted to bail, in the sum of dollars, and be com- 548 Bancroft's California lawyee. mitted to the sheriff of the county of , until he gives such bail." Sec. 168. If the magistrate order the defendant to be commit- ted, as provided in sections one hundred and sixty-five and one hundred and sixty-seven, he shall make out a commitment, signed by him, with his name of oflBce, and deliver it, with the defend- ant, to the oflScer to whom he is committed, or, if that officer be not present, to a peace officer, who shall deliver the defendant into the proper custody, together with the commitment. Sec. 169. The commitment must be to the following effect : [^ Forms.'] Sec. lYO. On holding the defendant to answer, the magistrate shall take from each of the material witnesses examined before him, on the part of the people, a written recognizance, to the effect that he will appear and testify at the court to which the depositions and statements are to be sent, or that he will forfeit the sum of five hundred dollars. Sec. ITl. Whenever the magistrate shall be satisfied by proof, on oath, that there is reason to believe that any such witness will not fulfil his recognizance to appear and testify, unless security be required, he may order the witness to enter into a written re- cognizance, with such sureties and in such sum as he may deem meet, for his appearance, as specified in the last section. Sec. 172. Infants and married women, who are material wit- nesses against the defendant, may in like manner be required to procure sureties for their appearance, as provided in the last section. Sec. 173. If a witness, required to enter into recognizance to appear and testify, either with or without sureties, refuse com- pliance with the order for that purpose, the magistrate shall com- mit him to prison until he comply or be legally discharged. Sec. 174. "When, however, it shall satisfactorily appear by the examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith condi- tionally examined on behalf of the people ; such examination shall be by question and answer, and shall be conducted in the same manner as the examination before a committing magistrate is required by this act to be conducted, and the witness shall thereupon be discharged. MAGISTRATE, 549 Seo. 175. The last section shall not apply to the prosecutor or to an accomplice in the commission of the offence charged. Seo. 176. When a magistrate has discharged a defendant, or has held him to answer, as provided in sections one hundred and sixty-four and one hundred and sixty-five, he shall return with- out delay to the clerk of the court at which the defendant is re- quired to appear, the warrant, if any, the depositions, the state- ment of the defendant, if he have made one, and all recognizance of bail or for the appearance of witnesses, taken by him. Magistrates, including justices of the peace, are required to aid i^h preserving the public peace, and in suppressing riots.' If two or more persons assemble for the purpose of disturbing the public peace or committing any unlawful act, and do not dis- perse on being desired or commanded so to do by a judge, justice of the peace, sheriff, coroner, constable, or other public 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.' If a magistrate or ofiicer, having notice of an unlawful or riot- ous assembly, as provided in section forty, neglect to proceed to the place of assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for sup- pressing the same, and arresting the offenders, he shall be deemed guilty of a misdemeanor.' If the persons so assembled aiid commanded to disperse do not immediately disperse, any two of the magistrates or officers before mentioned may command the aid of a sufficient number of per- sons, and may proceed in siich manner as in their judgment is necessary, to disperse the assembly and arrest the offenders.' Every male person above eighteen years of age who shall neglect or refuse to join the posse comitatm, or power of the county, by neglecting or refusing to aid and assist in taking or arresting any person or persons against whom there may be issued any process, or by neglecting to aid and assist in retaking any person or persons who, after being arrested or confined, may have escaped «from such arrest or imprisonment, or by neglecting or refusing to aid and assist in preventing any breach of the peace, 1 Wood's Dig. art. 1404-1417. " id. 1411, 1412. » id. 19T4. •550 BANOBOFT'S CALIFORNIA LAWYER. » or the commission of an}' criminal offence, being thereto lawfully required by any sheriff, deputy sheriff, coroner, constable, judge, or justice of the peace, or other officer concerned in the adminis- tratiou of justice, shall, upon conviction, be fined in any sum not less than fifty nor more than one thousand dollars.' If any judge, justice of the peace, sheriff, or other officer, bound to preserve the public peace, shall have knowledge of an inten- tion on the part of any two persons to fight with any deadly weapon or weapons, and such officer shall not use and exert his official authority to arrest the parties and prevent the deed, every such officer shall be fined in a sum not exceeding one thousand dollars." If complaint under oath, in proper form, be made to a magis- trate, from which it appears that there is just reason to fear the commission of an offence threatened against the person or prop- erty of another, he shall cause such person to be arrested and brought before him, and a full examination had. If it appear that there is just reason to fear the commission of the offence al- leged, the party may be required to give bond not exceeding five thousand dollars, with one or more sufficient sureties, to keep the peace toward the people of the state of California, and par- ticularly toward the complainant, which bond shall be valid for six months, and may, upon removal of the complaint, be ex- tended for a longei- period, or a new bond may be required. If such bond be not given the magistrate shall commit the party to prison. The bond must be filed by the magistrate in the office of the clerk of the county.' The powers of a magistrate in a criminal matter may be exer- cised on Sundays and other non-judicial days." FOKMS. Complaint to obtain Sufety of the Peace. Cotnty of *^^^^^°™^^: I JiJstices' Court. Personally appeared before me, this 2d day of June, 1859, Hawkins Smith, who deposes and says, that on the 30th day of May, 1859, one Joaquin Alvarez, in said county, did threaten to 1 Wood's Dig. art. 1989. s id. 1891-1897. 'Id. 1980. < id. 704. MAGISTEATE. 551 beat, bruise and wound [or, kill, or commit other ofenoe, as the case may he], and that he has just cause to fear, and does fear that the said Joaquin Alvarez will beat, bruise and wound [or, dec] him, this deponent, 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 California. Wherefore deponent prays that a warrant may be issued for the arrest of said Joaquin Alvarez, and that he may be brought be- fore a magistrate, and dealt with acordiug to law. Hawkins Smith. Sworn and subscribed before me, this 2d day of June, 1859, A. B., Justice of the Peace. Peace Wa/rrant. CmTll ^^^'^''™''' [ ss : Justices' Court, 1st Township. The people of the state of California, to the sheriff of the county of , or any constable, marshal or policeman in this state : A complaint, upon oath, having been this day laid before me, by Hawkins Smith, that Joaquin Alvarez has threatened to beat, bruise and wound the said Hawkins Smith, you are therefore commanded forthwith to arrest the above-named Joaquin Alva- rez, and bring him before me, at , or in ease of my absence or inability to act, before the nearest or most acces- sible magistrate in this county. Dated at my office, this 2d day of June, A. D. 1859. A. B., Justice of the Peace. Commitment onforegomg Complaint. State of California, ) County of , f®^ • To the sheriff of said county, greeting : Whereas, H. S. this day made complaint to me in writing, on oath, that Joaquin Alvarez, on the 30th day of May last past, threatened to, &c. [as in the G07nplaim,i] : And whereas, it appear- ing to me, upon the examination of the said complainant, and E. F., and O. P., witnesses, duly made on oath, reduced to writing, and subscribed by them, that there was just reason to fear the com- mission of the said offence by the said Joaquin Alvarez ; and he being brought before me on my warrant, was required to enter into recognizance in the sum of $500, with sufficient surety to keep the peace toward the people of this state, and particu- larly toward the said complainant, for the period of six months. And the said Joaquin Alvarez haviug refused [or, neglected] to 552 bai^'ceoft's califoenia lawyee. find such security, you are therefoi*e commanded, in tJie name of the people of the state of California, forthwith to convey him to the common jail of the said county, and to deliver him to the keeper tliereof, who is hereby required to receive the said Joaquin Alvarez into his custody, and him safely keep in the said jail, until he shall find such security, or be discharged by due course of law. Witness, &c. Order to Discharge, Prisoner on Qi/oi/ng Peace Bonds. County, ss : To the sherifl" of the said county, greeting : These are to command you forthwith to discharge out of your custody Joaquin Alvarez, if detained by you in said common jail, for no other cause than what is specified in his warrant of commitment, made by A. B., justice of the peace, dated the 2d day of June, 1858, for not finding sureties of the peace ; he having since his said commitment, found such sureties, and duly given bond as required by law. Witness my hand, this 10th day of June, 1859. W. H. G, County Judge. Peace Bond. State of California, ) Justices' Court, A. B., Justice 1st Town- County of . j ship. Personally appeared in the justices' court of the 1st township in and for the county of , Joaquin Alvarez, Ignacio Soto and Carlos Blanco, and acknowledge themselves and each of them justly indebted to the people of the state of California, in the sum of five hundred dollars. Sealed with their seals, and dated this the tenth day of June, A. D. 1859._ The condition of the above obligation is such, that whereas the above-bounden Joaquin Alvarez has been held to keep the peace by order of A. B., justice of the peace of the county of JS^ow, if the said above-bounden Joaquin Alvarez shall well and truly keep the peace toward the people of the state of Cali- fornia, and particularly toward Hawkins Smith, of said county, for the space of six months from the date of said order, then this recognizance is to be null and void, otherwise to remain in full force and eff'ect. Signed and sealed the day and date above written. Witnessed and approved by me, I his this, the lOtli day of June, 1859, > Joaquin X Alvaeez. A. B., Justice. ) mark. Ignacio Soto. Caklos Blanco. MAGISTRATE, 558 State of Oalifomia, ] . Ci^ and County of San Francisco, l[ Carlos Blanco and Ignacio Soto being duly sworn, each for him- self deposes and says, that he is a freeholder in said state of Cali- fornia, and that he is worth the sum of five hundred dollars, ex- clusive of property exempt from execution, and over and above all debts and liabilities. Caelos Blanco. Ignacio Soto. Sworn and subscribed before me, this 10th day of June, 1859. A. B., Justice, &c. Complaint iefore a Magistrate. County ^fiolito, \ '' = •^"'*^'^^'' ^°"'''' ^^^'* Township. Personally appeared before me, this 1st day of April, 1869, William Hock, who deposes and says, that on the eighth day of March, 1859, in . said county, the crime of grand larceny was committed, to wit, by feloniously stealing, taking and carrying away forty-eight sovereigns, English coin, each sovereign of the value of four dollars and eighty-five cents, lawful money of the United States of America, and of the goods and chattels of Wil- liam Hock. AH of which is contrary to tlie form of the statute in such cases made and provided, and against the peace and dignity of the people of the state of California. And said de- ponent accuses Antoine Grape of having committed said crime, and prays that a warrant may be issued for the arrest of said An- toine Grape, and that he may be brought before a magistrate, and dealt with according to law. William Hock. Sworn and subscribed before me, this 1st day of April, 1859. Petek Dogbeeet, Justice, &c. Wam^am,t of Arrest. State of California, ) t i.- > /~i .. o- j. m i • County of Solano, \ '' '' J^'*^^<^^ ^°^^t' "^^^^^ Township. The people of the state of California to any sheriflF, constable, marshal or policeman, in this state, or the county of A complaint, upon oath, having been this day laid before me, by William Hock, that the crime of grand larceny has been com- mitted, and accusing Antoine Grape thereof, you are therefore commanded forthwith to arrest the above-named Antoine Grape and bring him before me, a justice of the peace, or, in case of my absence or inability to act, before the nearest or most accessible magistrate in this city and county. Dated at my office, this 1st day of April, A. D. 1859. Petee Dogbeeet, Justice of the Peace. 554 banceoft's califoenia lawyer. Certificate to he endorsed on, or annexed to, a Warrant mued to another County, hy an Inferior Magistrate. County of Solano, ss : I, W. J. Hooton, county clerk, do certify that Peter Dogberry, whose genuine signature is affixed to the within warrant, was, at the time of signing the same, a justice of the peace in and for the said co«inty, duly qualified and acting as such. -, Witness my hand and the seal of the county court of l-^- ^--J said county, April 1st, 1859. W. J. HooTON, County Clerk. Affidavit to he endorsed or annexed m Place of the above Cer- tificate. County of Solano, ss : Henry E. Bradford, of said county, being duly sworn, says, that he is well acquainted with Peter Dogberry, whose name is signed to the within [or, the annexed] warrant, and knows his handwriting, and believes that the signature thereto is the signa- ture and genuine handwriting of the said Peter Dogberry. Henet R. Beadfoed. Sworn before me, April 1st, 1859. Geoege Sceibee, Notary Public of Solano County. Endorsement on a Warrant issued hy a Magistrate inferior to a County Judge, to he served in another County. This warrant may be executed in the county of Contra Costa. Martinez, Contra Costa County, ) April 2d, 1859. j A. Deep, Justice of the Peace, County of Contra Costa. Order of Discharge to he endorsed on the Depositions and State- ment after the Defendant has been examined. County of , ss : There being no sufficient cause to believe the within-named A. B. guilty of the ofi'ence within mentioned, I order him to be discharged. June 1st, 1859. M. N., Justice. Order holding Defendant to answer, to he endorsed in like Manner. It appearing to me by the within depositions [and statement, if any'], that the offence therein mentioned [or any other offence, according to the fact, stating generally the natwre thereof ^ has MAGISTRATE. 555 been committed, and tliat there is sufficient cause to believe the ■within-named A. B. guilty thereof, I order that he be held to an- swer the same. [If the offence he not bailable add: and that he be committed to the sheritf of the county of ; or, if ba/il- able, 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 ad- mitted liim to bail to answer by the recognizance hereto annexed.] Dated, June 1, 1859. ' M. K, Justice of the Peace of the County of Application to enter a Person at the Indusl/rial School, San Francisco. Office of the President of the Boai-d of Supervisors of the City and Countv of San Francisco, May 1, 1859. To the Hon. il. P. Coon, Police Judge : Whereas, it has been represented to me that John Cox, a' boy under the age of eigliteen years, whose parents are dead, is lead- ing an idle and dissolute life, and that he is a proper person for the industrial school. Therefore, I pray your honor to cause the said John Cox to be brought before you,' to the end that he may be duly committed to the charge of the board of managers of the industrial school de- partment of said city and county. E. W. Btjee, President Board of Supervisors. Order of Arrest, to send a Boy to the Industrial School, Sam, Francisco. Chambers of the Police Judge. State of California, 1 City and County of San Francisco, j The people of the state of California, to any sheriff, constable, marshal, or policeman in the city and county of San Francisco : It appearing from an application laid before me by M. J. Burke, Esq., chief of police of the city and county aforesaid, that there is sufficient cause to believe that John Cox, a boy under the age of eighteen years, whose parents are dead, is leading an idle and dissolute life, you are commanded forthwith to arrest the said John Cox and bring him before me, at the chambers of the police judge, in the city and county aforesaid. Dated at my office, this first day of May, 1859. H. P. CooN, Police Judge of the City and County of San FrancisCo. ■ Served by arresting the said John Cox, this second day of May, 1859. B. S. Blitz, Policeman. 556 bajstceoft's califoenia lawyee. Bcdl Bond. Justices' Court. State of California, ) , County of , j * An order having been made on the first day of June, 185 , by M. N., justice of the peace of the county of , that A. B. be held to answer upon the charge of grand larceny, upon which he has been duly admitted to bail in the sum of one thou- and dollars, we, O. P. and Q. E., of the said county, hereby under- take that the above-named A. B. shall appear and answer the charge above mentioned, in whatever court it may be prosecuted, and shall at all times hold himself amenable to the orders and process 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 he will pay to the people of the state of California, the sum of one thousand dollars. O. P. Witnessed and approved by me, \ Q. K. this 2d day of June, 1859. j M. I^., Justice of the County of State of California, ) County of , P^ • O. P. and Q. E. being duly sworn, each for himself deposes and says, that he is a freeholder \or, householder] in said state of California, and that he is worth the sum of one thousand dollars, exclusive of property exempt from execution, and over and above all debts and liabilities. Sworn and subscribed before me, ) this 2d day of June, 1859. j M. IST., Justice, &c. Commit/ment. State of Califoi-nia, ) County of , j Justices' Court of the County of The people of the state of California to the sheriflF of the county of An order liaving been this day made by me, that John Cox be held to answer upon a charge of grand larceny committed in said county, on or about the day of May, 1859, you are commanded to receive him into your custody, and detain him until he be legally discharged. Dated at the county of , this tenth day of June, A. D. 1859. M. ]N ., Justice of the Peace of the county of MAGISTEATE. 557 Commitment to Inckistrial School San Frcmcisco. State of California, ) City and County of San Francisco, ) The people of the state of California, to the superintendent of the industrial school of the city and county of San Francisco : Whereas, an application has been made to me by M. J. Burke, Esq., chief of police, of said city and county, setting forth that John Cox, a boy under the age of eighteen years, whose parents are dead, is leading an idle and dissolute life, and praying for the arrest of said John Cox, and said John Cox having been brought before me, and the matter having been heard, and evidence hav- ing been given to my satisfaction, and an order having been made by me that he be committed to the industrial school of the city and county of San Francisco, Tou are commanded to receive the said John Cox into your custody, and him safely keep until he be legally discharged. Dated at the city and county of San Francisco, this third day of May, 1859. H. P. Coon, Police Judge of the city and county of San Francisco, 558 BAJ>rCEOFT'S CALIFOEFIA LAWiTEE. CHAPTEE XXIX. MINES, MINING, AND WATEE EIGHTS. I. — The Eight of the State in the Mines. By the English common law, mines of gold and silver were the exclusive property of the crown, and a royal grant of lands did not pass the title to the mines of the precious metals therein. Even the mines discovered upon private lands were claimed by the crown in virtue of its prerogative, together with the right to dig and carry away the minerals, and to do all things necessary to the exercise of that right.' In this country it seems to have been considered that the sev- eral states of the Union, and not the federal government, are, in virtue of their respective sovereignties, entitled to those " royal rights," including the right of eminent domain, and the title to the mines of gold and silver, wliich by the English common law pertained to the crown. According to this doctrine, the United States has no municipal sovereignty within the limits of the sev- eral states. In some of the states, as in ISTew York, this exclusive and sov- ereign right of the state has been expressly asserted and detined by statute. In others, where no positive law of the kind existed, the courts have declared it as a common law doctrine. The lat- ter is the case in California, the Supreme Court having laid down the doctrine that the state is entitled to all the rights in mines of gold and silver enjoyed by the crown under the common law ; that such mines upon the public lands within this state belong, not to the United States, but to the state of California ; and that the United States, in its ownership of the public lands, occupies the same position as a private proprietor, with the exception of an express exemption from state taxation ; that the state has the • Blackstonej vol. i. p. 295 ; Collier on Mines, p. 13. MINES, , MINING, AND WATEK EIGHTS. 559 exclusive right to authorize the mines to be worked, to pass laws for their regulation, to license miners, and to affix such terms and conditions as she may deem proper to the freedom of their use/ II. — The Rights of Miners. The legislation of the state and the adjudications of the courts bearing upon the subject of mining, and based upon the right thus claimed, have given and confirmed the privilege of working the mines of gold and silver upon the public lands to all who de- sire it, subject to certain conditions and regulations. With reference to mines of gold and silver found on the lands of private individuals, although the state claims to be the owner of such mines, it has not dedicated the right to work them to its citizens. The privilege conferred extends only to the public lands." The nature and extent of the rights enjoyed by those who avail themselves of the permission of the state to prosecute the search for the precious metals upon the public lands within this state, will now be treated of in detail. 1st. — The Right to Mine upon Lands occupied for Grazing or Agricultural Purposes. It has been the policy, both of the general and state govern- ment, to reserve mining lands from settlement for agricultural purposes. The person who settles upon such lands does so sub- ject to the rights of the miners, who may, notwithstanding such prior occupation and possession, proceed to extract the metals which may be found there, and may use all necessary means for that purpose, biit with the least injury and damage practicable to the occupying claimant ; the spirit and policy of the law being apparently to make the right of the' agriculturist to use and enjoy the public lands, subordinate to the right of the miner to search for gold.' Section first of the act of April, 1852, "presenting the mode of maintaining and defending possessory actions on public lands in this state," clearly gives permission to all persons to work the 1 Hicks v Bell, 8 Cal. E. 219 ; Stokes « Bar- » McClintock v. Biyden, 5 Gal. 97 ; Tartar v. ■ rett, 5 Cal. E. 36. Spring Creek Co., 5 Cal. 895; Bm-dge v. Under- 2 Stokes V. Barrett, 5 Cal. E. 8. wood, 6 Cal. 45. 560 Bancroft's califoenia lawyer. mineB upon public lands, althougli they may be in the posses- sion of another for agricultural purposes. The section reads as follows : " Any person now occupying and settled upon, or who may hereafter occupy or settle upon any of the public lands in this state, for the purpose of cultivating or grazing the same, may commence and maintain any action for interference with, or in- juries done to his or her possession of said land, against any per- son or persons so interfering with or injuring such land or pos- session : provided, that if the lands so occupied and possessed contain mines of any of the precious metals, the possession or claim of the person or persons occupying the same for the pur- poses aforesaid, shall not preclude the working of such mines by any person or persons desiring so to do, as fully and unreservedly as they might or could do had no possession or claim been made for gracing or agricultural purposes." And the right to mine for the precious metals carries with it as an incident the right to the use of wood and water upon the public land where gold has been discovered.' But neither the right to mine nor the incidental rights alluded to have been extended to any except the public lands ; and though the Supreme Court has laid down the docta-ine that the state is the legitimate owner, as well of the gold and silver found in the lands of private individuals as of that contained in the public do- main, it has not decided in favor of the right of the citizen to seek for gold upon private lands. On the contrary, it declared in the case of Stokes vs. Barrett that, " to authorize an inva- sion of private property, in order to enjoy a public franchise, would require more specific legislation than had yet been re- sorted to." Under the statutes and judicial decisions above cited, the oc- cupant of lands held and used for agricultural purposes would seem to be left without adequate protection against persons who might enter upon the premises so occupied, either with the hona fide intention of searching thereon for the precious metals, or upon the pretence of such intention. To obviate evils which might possibly grow out of this state of things, the act of April 25, 1 Tartar «. Spring Oreefc Mining Co. 5 Cal. 895. MINES, MINING, AND WATER BIGHTS. 561 1855, " to protect the owners of growing crops, buildings and other iiiipiovements, in the mining districts of this state," pro- vides as follows : 1. No person shall, for mining purposes, destroy or injure any growing crops of grain or garden vegetables, growing upon the mineral lands of this state, nor undermine or injure any house, building, improvement or fruit-trees standing upon mineral lands, and the property of another, except as hereinafter provided. 2. Whenever any person, for mining purposes, shall desire to occupy or use any mineral lands of this state, then occupied by such growing crops of grain, garden vegetables, fruit-trees, houses, buildings or other improvements, the property of another, such person shall first give bond to the owner of the growing crop, building, fruit-trees or other improvement, to be approved by a justice of the peace of the township, with two or more suf- ficient sureties, in a sum to be fixed by three disinterested citi- zens, householders of the township, one to be selected by the obligor, one by, the obligee, and one by a justice of the peace of the township. Conditioned that the obligor shall pay to the obligee any and all damages which the obligee may sustain in consequence of the destruction by the obligor, or those in his employ, of the growing crops, fruit-trees, improvements or build- ings of the obligee; provided, that the word improvements in this act, shall be construed to mean any superstructure on said farm, ranch or garden, and nothing more. 3. If any person or persons shall violate the provisions of the first and second sections of this act, he or they shall be deemed guilty of a misdemeanor ; and on conviction thereof, before any court of competent jurisdiction, shall be fined in a sum not ex- ceeding two hundred dollars, nor less than fifty dollars, or by imprisonment in the county jail of said county not exceeding three months, either or both, at the discretion of the court ; jpro- vided, nothing in this act shall prevent miners from working any mineral lands in the state, after the growing crops on the same are harvested. 36 562 banceoft's California lawyer, M.—The, Eight to Mine upon Zcmds already occupied for other than Grazing or Agricultural Purposes. The act of April 20, 1852, in regard to possessory actions, above cited, authorizes persons to prosecute the search for gold and silver upon public lands occupied by others for "grazing and agricultural purposes." This is, however the full extent of the statute, and the occupant of mineral lands for any other than strictly "grazing and agricultural purposes," may rely upon his possession against a trespasser, even though the latter enter upon the premises for mining purposes. The act in question being a departure from the policy of the state to permit persons in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner, and its effect being to legalize what would otherwise have been a trespass, it cannot be extended by impli- cation, so as to embrace any cases other than those specially pro- vided for.' Accordingly, persons settled in good faith upon lots in the mining towns, and carrying on business upon them, will be pro- tected in the possession and enjoyment of the premises so occu- pied, notwithstanding that gold may be discovered thereon, or that the use of said premises may be convenient and desirable to facilitate mining operations carried on in the vicinity. In the case of Fitzgerald vs. Urton, the plaintiff was in pos- session of a town lot, on which he had erected a house used as a hotel. The lot was enclosed by a substantial fence, and was tised as a poultry and wood yard, and for other purposes neces- sary in carrying on the business of hotel keeping. The plaintiff being in quiet use and possession of the premises, the defendants entered upon the lot for mining purposes, claiming that they had a right so to do as miners, in prosecuting the search for gold, and by digging and sluicing, damaged and inconvenienced the plain- tiff in his business, threatening, if their proceedings were not restrained, entirely to deprive him of the benefits of his posses- sion. The action was brought in the District Court, to restrain the defendants from the commission of a nuisance, in digging a ■ «-^ ' Fitzgerald v. Urton, 5 Cal. 808; Tartar v. Spring Creek Co. 9 Cal. 890; Burclge V, Underwood 6 Cal. 45. MINES, MINING, AND WATER BIGHTS. 563 ditcli and mining within tlic plaintiff's enclosure. At the trial, the court charged the jury that, "if tlie plaintiff had possession and use of the lot claimed and improved, before the location and possession of a mining claim by defendants on said premises, the plaintiff is entitled to hold the same, and the defendants have committed a trespass, and are liable in damages." Verdict for plaintiff. Upon appeal, the Supreme Court declared these instructions of the court below substantially correct, and affirmed the judgment. In their opinion in this case, the court hold the following lan- guage ; " "We do not think that the occupation of the lot by the present plaintiff for the purpose of hotel keeping, is inconsistent with the policy of the state with regard to mining claims. The interests and wants of the mining communities demand, that some facilities and accommodations should be afforded to the business of mining, and that persons settled in good faith upon lots in the mining towns, and carrying on business, should be rea- sonably protected, and not left at the mercy of any malicious or irresponsible party who may choose to invade their possession upon the specious pretext of mining." In the case of Tartar vs. The Spring Creek "Water and Mining Company, the action was commenced by a bill for an injunction to restrain the defendants from diverting the water-course of plaintiff's mill, to use it for mining purposes. Tartar, the plain- tiff, had succeeded to the rights of Chauncey & Co., the original proprietors of the mill. In June, 1852, Chauncey & Co. com- menced the construction of a saw-mill on lands of the United States, in Shasta county, at the mouth of a small stream, called Spring Creek, and completed it in November of the same year, at a cost of about ten thousand dollars. The lands were mineral lands of the United States, containing mines of gold. The length of the creek from its source to its mouth, was about sixteen miles, and ran entirely through lands of the United States, con- taining gold mines. As soon as the mill was completed, Chauncey & Co. occupied it, and continued to use it until the 15th day of January, 1854. The water of said creefewas the motive power . by which the machinery of the mill was propelled. The defendants, who were miners, and a corporation under the laws of this state, in June, ,564 banceoft's califoenia lawyer. 1853, commenced the construction of a dam, ditch and fliimes^ about five miles above the saw-mill, in order to divert the water of the creek to mining lands in the immediate vicinity, to be used for the purposes of mining. The water was necessary, to enable the defendants to extract the gold from the land where the same was conveyed ; and the ditch and flumes were constructed In 1853, to the extent of about five miles, and the dam across said creek was completed, by which the water was diverted, in Octo- ber of the same year, from its natural channel into the said ditch and flume, and conveyed to the mining lands in its vicinity, and there was used, and had since been used, by the defendants for mining purposes, up to the time of filing the complaint. The cost of the construction of the said flume, ditch and dam, was about eighteen thousand dollai's. For five months of the year, from June 1st to November Ist, the watei* of said creek is not sufficient for the said miners and the propelling of said mill at the same time ; but during the rest of the year the water of the stream is sufficient, both for the de- fendants and plain tifi". The plaintiff succeeded to the rights of ,Chauncey & Co. on January the 15th, 1854, with a full knowledge of the above facts, and continued to use the mill until July, 1854. The defendants, since the 15th of January, 1854, and before the commencement of this suit, extended their ditch and flume about a mile, at a cost of two thousand dollars, and the plaintiff sold and delivered lum- ber to them, amounting to several hundred dollars, to be used in such extension, and was paid for the same. By means of the di- version of the water during the time, the water was insufficient for both the plaintiff and defendants, the plaintiff, in the year 1854, and before the commencement of thfe suit, did not make as much by his mill as he otherwise would have done, to the amount of one thousand dollars. Upon the foregoing state of facts a perpetual injunction was granted, and damages decreed to plaintiff, which decision and de- cree were affirmed upon appeal to the Supreme Court. Heydenfeldt, J., in delivering the opinion of the court, says : "In Irwin vs. Phillips, we say, 'that however much the policy of the state, as indicated by her legislation, has conferred the privilege to work the mines, it has equally conferred the right to MINESy MINIirG, Xm) WATEE EIGHTS. 565 divert the streams from their natural channels.' And further we say, ' The miner who selects a piece of ground to work, must take it as he finds it, subject to prior rights which have an equal eq[uity, on account of an equal recognition by the sovereign power.' " It results from the consideration we have given the case, that the right to mine for the precious metals can only be exercised upon public lands ; that although it carries with it the incidents to the right, such as the use of wood and water, those incidents must also be of the public domain in like manner as the lands ; that a prior appropriation of either to steady individual purpose, establishes a qiiasi jDrivate proprietorship, which entitles the holder to be protected in its quiet enjoyment against all the world but the true owner, except in the single case provided to the contrary by the statute which I have already adverted to." In the case of Burdge vs. Underwood,' the plaintiff brought his action to abate a nuisance (which nuisance was alleged to con- sist in the digging of a ditch through plaintiff's enclosure), and for damages. The defence set up that the ditch was made to conduct water for mining purposes, and that the land is public land, only occupied by plaintiff for agricultural and grazing pur- poses. The facts of the case appearing before the court below were these: in 1852, the plaintiff took up a tract of public land, which he had since used for agricultural and grayling purposes. It further appeared, that within the time allowed by law, and before the commission of the acts complained of, the plaintiff had constructed a corral, dwelling and out-houses, and fences, greatly exceeding in value the sum of two hundred dollars. That while plaintiff was there residing upon, cultivating, and grazing said land, the defendants, for the purpose of conveying water to certain mining claims owned by them, and distant about one mile from plaintiff's premises, constructed the ditch mentioned in plaintift''s complaint, through a part of plaintiff's enclosure, and within twenty-five or thirty feet of plaintiff's cor- ral, at the time and afterward used by him for corralling his cattle, and to the depth, near said corral, of about six feet. That » 6 Oal. 45. 566 Bancroft's California lawyee. said ditcli was dug against the wishes and consent of plaintiff for the purpose aforesaid, and upon the most practicable route to convey the water to said claims from a ravine above the premises of the plaintiff. That it could have been constructed so as not to run through or interfere with the plaintiff's premises, but at a greatly increased cost. That a portion of said premises, some distance from said corral, had been prospected and found to contain gold. That said ditch prevents plaintiff from using his corral without endangering his animals. The court rendered judgment for plaintiff for damages, and for the abatement of the nuisance, which judgment was affirmed upon appeal to the Supreme Court. In the opinion delivered by Heydenfelt, J., that court reiterates the reasoning employed in the cases last cited, and in language substantially similar. It woxild seem from this decision that the miner, in prosecuting his legitimate business, has no right to dig or work within the enclos- ure surrounding a dwelling-house, corral, or other improvements of another. 3d — The Bights of Foreign Miners. The laws of this state prohibit foreigners from taking gold out of the mines, except upon obtaining a license. The act of March 30th, 1853, as subsequently amended, and omitting such portions as have been repealed, provides as fol- lows : Sec. 1. ~Eo person not a citizen of the United States, or who shall not have declared his intention to become siich pnor to the passage of this act, according to law (California Indians except- ed) shall be allowed to take gold from the mines of this state, or hold a mining claim therein, unless he shall first procure and pay a license therefor, as hereinafter provided. Sec. 2. It shall be the duty of the controller of state to procure a sufficient number of blank licenses, which shall be substantially in the following form, and numbered consecutively, and a record thereof be filed in his office : [See Forms, at the end of this chapter.] Every subsequent license after the first, shall be dated from the expiration of the former license, issued by the sheriff or his 56? deputy, to any foreign miner, who shall have been engaged in mining from the expiration of such former license. 'Sec. 3. The sheriff of each county shall be the collector of license tax, under the provisions of this act, who, before entering upon the duties herein provided for, shall enter into bond to the state, with two or more sureties, to be approved by the board of supervisors, if any such board exist in his county ; if there be no such board, then by the county judge, in the sum of fifteen thou- sand dollars, conditioned for the faithful performance of the duties required of him by this act, which bond shall be filed in the office of the clerk of said county. [Seo. 4, repealed April 7, 1857.] Sec. 5. The controller of state shall fill the blanks for the coun- ties, which have been left in the prilited form, and shall issue to the recorder of each mining county, such number of licenses as may be required for the use of said county, taking a receipt therefor, which receipt shall be recorded in a book provided for that purpose, and shall charge the same against said recorder ; and said recorder shall execute a bond to the state, conditioned for the faithful performance of all the duties required of him by this act, in the sum of ten thousand dollars, to be approved by the governor and controller, and filed in the office of the con- troller. Sec. 6. The amount to be paid for each license shall be at the rate of four dollars per month, and said license shall in no case be transferabla Sec. 7. The recorder shall deliver to the sheriff of his county such nui^TDer of licenses as said sheriff may require, charging him therewith, and taking his receipt therefor. The sheriff shall mfte monthly returns to the recorder of his county, of the num- ber of licenses issued, and to whom, and the amount of money received. The first returns shall be made to the recorder on the first Monday of May next, and thereafter a return shall be made on the first Monday of each succeeding month, as herein epecified. . Sec. 8. It is hereby made the duty of the treasurer of each county to which licenses have been issued, to report to the treas- urer of state on the first Monday of August next, and on the first Monday of every third month thereafter, the amount of money received by him on account of foreign miners' licenses. 068 BANCEOFT'S CAIiirOENIA LAWYER. Sec. 9. Fifty per cent, of the net proceeds of all moneys col- lected under the provisions of this act, shall be paid into the state treasury, and shall constitute a part of the general fund ; the re- maining fifty per cent, of the net proceeds shall be paid into the general fund of the county ; and it shall be the duty of the sheriff to pay over to the county treasurer, monthly, the amounts speci- fied in this section. Sec. 10. The collector may seize the property of any person liable to, and refusing to pay such tax, and sell at public auction on one hour's notice, by proclamation, and transfer the title thereof to the person paying the highest price therefor, and after deducting the tax and necessary expenses incurred by reason of such refusal and sale of property, the collector shall retiirn the surplus of the proceeds of the sale, if any, to the person or persons whose property was sold : jproroided^ that should any person liable to pay such tax in any county of this state, escape into any other county with the intent to evade the payment of such tax, then and in that event it shall be lawful for the collector to pursue such person and en- force the payment of such tax in the same manner as if no such escape had been made. Any foreigner representing himself to be a citizen of the United States, shall, in absence of his certificate to that effect, satisfy the collector of the correctness of his state- ment by affidavit, or otherwise, and that the collector be and is empowered to administer such oath or affirmation. All foreigners residing in the mining districts of this state shall be considered miners under the provisions of this act, unless they are directly engaged in some other lawful business avocation. Sec 11. Immediately preceding the time provided by law for the final settlement of the county treasurer with the treasurer of state, it shall be the duty of each recorder to whom licenses have been issued, to report to the controller of state the number of licenses on hand in his office, as also the number in the hands of the sheriff, who is hereby required to report to said recorder the number of licenses not disposed of, for which he has receipted to the said recorder. - Sec. 12. The controller of state shall, as soon as practicable, compare the returns of the sheriff with reports of the county re- corder ; and if there should be any discrepancy in the statements, it shall be the duty of the controller to immediately inform the prosecuting attorney of the county in which such delinquent MINES, MINING, AND WATER BIGHTS. 569 resides, who shall commence suit against such delinquent and his sureties forthwith. Sec. 13. Anj sheriff or his deputy who shall neglect or refuse to pay over the money collected by him or them, under the pro- visions of this act, or shall appropriate any part thereof to his or their use, other than the percentage they are entitled to retain by the provisions of this act, shall be deemed guilty of embezzle- ment, and upon conviction thereof, shall be punished by imprison- ment in the state prison, any time not less than one year nor more than ten years. Sec. 14. Any officer charged with the collection of the tax provided to be collected by this act, who shall give any receipt other than the receipt prescribed in this act, or receive money for such license without giving the necessary receipt, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in a sum not exceeding one thousand dollars, and be impris- oned in the county jail not exceeding six months. Sec. 16. It shall be the duty of the different sheriffs to return all unsold licenses to the county recorder, prior to the fifteenth day of December of each year, and receive new licenses, and the county recorder shall immediately transmit to the controller of state, said licenses ; such licenses so returned shall be placed to the credit of the different county recorders, 6n the books of the controller and the licenses destroyed. Sec. 16. Any sheriff, tax collector, or deputy collector, who shall sell or cause to be sold, any foreign miner's license, with the date of the sale left blank, or which shall not be dated or signed with ink, and any person who shall make any alteration, or cause the same to be made in any license, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in a sum not exceeding one thousand dollars, and imprisonment in the state prison not exceed- ing six months ; and the license so sold with blank date, or which shall not be signed and dated with ink, or which shall have been altered, shall be received in evidence in any court of competent jurisdiction. Sec. 17. Any person or company hiring foreigners to work in the mines of this state, shall be liable for the amount of the licenses for each person so employed. Sec. 18. The sheriff shall have power, and it is hereby made 570 BANCROFT'S CALIFOENIA LAWYER. his duty, to appoint a sufficient number of deputy collectors to assist him in the collection of the tax provided to be collected by this act, said deputy collectors to be paid not less than fifteen per cent, on all sums collected by them ; and the sheriff shall be re- sponsible for the acts of said deputy collectors, and may require from them such bond and surety as he may deem proper for his owa iudemnificatiou, and for such service he shall be entitled to receive three per cent, on all sums collected by them. Should the board of supervisors, or, in the event of there being no such board, then the county judge, deem the percentage to be paid to deputy col- lectors by the provisions of this section to be insufficient, an order may be entered by the board of supervisors or the county judge providing that an additional sum shall be paid such deputy col- lector, not to exceed in all twenty-five per cent., to be paid as herein provided. The county recorder of each county shall re- ceive three per cent, on all sums collected under the provisions of this act. Sec. 19. That the sheriff be required to receive good, clean gold- dust, when tendered, at seventeen dollars per ounce, in payment for licenses, and be required to pay the same into the treasury at the same rate. The supplementary act of April 7, 1857, provides for the transfer by the treasurer, to the controller of the state, of all books and papers in his office connected with the issuance of foreign miners' licenses, &c., and makes it the duty of the controller to make the necessary settlement with the different officers for licenses there- tofore issued. The said act also requires the treasurer of each county to which licenses have been issued, to make reports to the controller of the amounts of moneys received by him on account of foreign miners' licenses, on the first Monday of every third month, beginning on the first Monday of August, 1857. By the amendatory and supplementary act of April 26, 1858, it is provided as follows : " Any person or company hiring foreigners, or interested with them as partners, or renting, or on shares, or in any manner connected with any foreigner or foreigners, in working or in possession of any mining ground in this state, shall be held liable for the amount of license of each and every foreigner with whom such person, or company, is so connected or interested. All 571 mining ground, worked or possessed, all improvements, all tools and machinery used in working such ground, by said person, or company, shall be subject to sale for the payment of said license tax, in the manner provided in section seven of this act. The collector shall have power to require any person, or com- pany, believed to be indebted to, or to have money, gold-dust, or property of any kind, belonging to, or in which any such foreigner is interested, in his or their possession or under his or their control, to answer, as under oath, to such indebtedness, or the possession of such money, gold-dust, or other property. In case a party is in- debted, or has possession or control of any moneys, gold-dust or other property, as aforesaid, of such foreigner or foreigners, he may collect from such party the amount of such license, and may require the delivery of such money,, gold-dust, or property, as aforesaid ; and in all cases the receipt of the collector to said party shall be a complete bar to any demand made against sucli party, or his legal representative, for the amounts of money, gold-dust, or property, embraced therein. Any person or com- pany, hiring foreigners to work in the mines of this state, shall be liable for the amount of the licenses for each person so em- ployed." In the case of the People vs. JSTaglee,' the Supreme Court passed upon the constitutionality of the laws requiring foreigners to pay a license fee, in order to entitle them to the privilege of working the gold mines in this state, and decided that the act of the legislature prohibiting them from working the mines, except upon the condition of paying a certain sum monthly for the said privilege, was not repugnant to the constitution of the United States, or the constitution of this state, or the treaties of the United States with foreign powers. But the laws on this subject must be enforced by the state, through her appointed oflBcers, the mode of enforcing them being regulated by the provisions of the statute. Private parties can- not take upon themselves the execution of them, nor assume, upon the plea of the prohibitions of the law, to disturb the quiet pos- ^ session of others. The mere fact that the parties working a mining claim are foreigners who have obtained no license, will 1 1 Cal 232. 572 BANCROFT'S CALIFORNIA LAWYER. not justify third persons in ousting them without the interven- tion of the law ; and a foreign miner so ousted may recover pos- session in an action for that purpose.' Uh. — The Jv/risdiotion ofMmmg Actions, cmd the, Laws gov&rn- mg such Actions. No general mining laws to take effect throaghout the state have been enacted by the legislature ; but it has been provided by section 621 of the Practice Act, that, " in actions respecting mining claims, proof shall be admitted of the customs, usages or regulations established and in force at the bar or diggings em- bracing such claim ; and such customs, usages or regulations, when not in conflict with the constitution and laWs of the state, shall govern the decision of the action." Though this section occurs in that title of the Practice Act which treats of "proceedings in justices' courts," it has been construed as applicable to all actions respecting mining claims, in whatever court they may be brought. By the provisions of the act " concerning courts of justice" (section 67, subdivision 10, as amended), jurisdiction is conferred on justices' courts, of actions to determine the right to a mining claim, and for damages for injury to the same, when the damages claimed do not exceed two hundred dollars. Previous to the amendment of this section it had been held that justices' courts had no jurisdiction to try actions for damages for injuries to mining claims, snch jurisdiction not having been expressly conferred by the statute as it stood prior to the amend- ment. Though the language of the subdivision conferring upon jus- tices' courts jurisdiction to try actions to determine the right to a mining claim in general, and expresses no limitation as to the value of the claim and the consequent amount in controversy, it has been held that their jurisdiction is restricted to cases where the claim in dilute does not exceed $200." In the case of Small vs. Gwinn, last cited, the court held that the objection to the jurisdiction of the justice, on the ground of excess in the value of the subject of controversy, may be made 1 Mitchell «. Hagood, 6 OoL 148. » Zander v. Coe, 5 Cnl. 280; Van Etten ». Stedo, 6 Cal. 19; Small v. Gwinn, C Cal. 44T. MINES, MINING, AND WATEE EIGHTS. 573 by the answer, and should be decided before proceeding to hear the merits of the case. In actions respecting miners' claims in a justice's court, the justice may, upon application and one day's notice to the adverse party, appoint a receiver of the proceeds of the claim pending the action. If the parties agree upon a person, he shall be ap- pointed such receiver. If the parties do not agree, the justice shall appoint a receiver, who shall take an oath, which shall be filed with the justice, that he is not interested in the action be- tween the parties, and that he will honestly keep an account of all gold-dust or metals of any kind, the proceeds of the claim or claims in dispute. After the appointment of such receiver, the justice shall have power to issue a written order to any sheriff or constable, to put such receiver into possession of such claim ; which order said sheriff or constable shall execute, and the re- ceiver shall remain in possession of the claim or claims, so long as said action may remain undetermined in any court. The court in which the action may be pending, shall have authority upon application of either party, with two days' notice to the other, from time to time, to make such orders for the disposition of the proceeds of such claim or claims for the safety of the same, as may seem proper. The court in which the action may be pending shall also have power, upon g^plication of the receiver, based upon his affidavit, to punish as for contempt, all persons who have been guilty of disturbing the receiver in the possession of the claim.'" The receiver must keep an accurate account of all the proceeds of the claim pending the action, and of all amounts paid out for working the same, and shall retain the proceeds and pay the same over, pursuant to the order of the court. The receiver shall also be required, on demand of either party, to give secu- rity for the faithful performance of his trust, and shall be allowed for the same a reasonable compensation, to be paid out of the proceeds of the claim in his hands, but in no case exceeding ten per cent, upon such proceeds. Where the value of the claim in controversy exceeds two hun- dred dollars, a justice's court can exercise no jurisdiction, and ' Wood's Dig. art. 1374. 574 Bancroft's oalifoenia lawyer. that of the District Court, which is conferred and defined by the constitution, and cannot be interfered with bj statute, applies.' From the provisions of section 621 of the Practice Act above cited, it will be seen that the regulations and usages established by the miners of each particular camp, bar, or diggings, when not in conflict with the constitution or statutes of the state, consti- tute the law by which the rights of the parties within the limits of such camp, bar, or diggings, are to be determined. These rules and regulations, generally spoken of as " the mining laws" of the particular district where they have been adopted or are in force, though differing in many of their details, such as the extent of the claims allowed to be taken up, the mode of taking them up, &c., still have a substantial similarity in all their principal features throughout the mining region of this state. The " mining laws" of the Jacksonville and other districts, which will be found among the accompanying collection of forms, are furnished as examples of those which have been most generally adopted. The right to the use of water for mining purposes, and the ap- propriation of it by a diversion of the stream, is not, within the meaning of the law, " an injury to personal property," and ac- cordingly justices of the peace have no jurisdiction over an action for an injury to such right." The District Court has jurisdiction of an action brought by one of the partners of a mining company, against the company, to recover his share, which had been sold for an alleged non-pay- ment of an assessment, and to recover at the same time a sum of money claimed as his proportionate share of the gold taken out by the company." In an action by a company of miners to recover possession of a mining claim, a person who was a member of the company at the time of the alleged detention, and who, prior to the com- mencement of the suit, in consideration of unpaid assessments, sold his interest to his copartners in the claim without warranty, is not a competent witness, as he is interested in the damages sought to be recovered.* A misdescription in the notice of the claimant to a quartz-lead, I Hicks «. Boll, 3 Cal. 219. s Schueples «. Evans, 4 Cal. 212. - mil V. Newman, 5 Cal. K. 446. * Packer ® Heaton, 9 Cal. E. S68. MINES, MINING, AlTD "WATER RIGHTS. 575 posted up near the premises, in pnrsuance of the requirement of the mining laws" of the district in which the lead is situated and where the lead is underground and undeveloped, will not vitiate the claim/' Mh. — The Bights of Mmers with Respect to Each Other. As has been previously stated, the rights of miners in reference to the extent, possession and enjoyment of their claims, are mainly regulated by the rules or " mining laws" adopted at each partic- ular district, camp, bar, or diggings. But a number of general questions affecting such rights have become the subjects of litigar tion, and been passed upon by the courts of the state. To these adjudications we shall now make such reference as will suflBce to show what points of this character may be regarded as settled by authority. Actual possession of a portion of a mining claim, according to the custom of miners in a given locality, extends by construction to the limits of the claim held in accordance with such customs." Miners have, by the laws of this state, a species of property in their mining grounds, which they may rightfully protect by abating a nuisance to the same. And they have a right, where they have located their claims and appropriated the waters of a stream for mining purposes, to remove a dam (erected subse- quent to their occupation) which floods their claims and pre- vents an outlet for their tailings. Such a dam may be regarded as a nuisance, which they may lawfully abate, provided it be done in a peaceable manner, and without a breach of the peace.' In the absence of mining regulations, the fact that a party has located a claim bounded by another, raises no implication that the last located claim corresponds in size, or in the direction of its lines, with the former.* One who has been employed to work on a mining claim, to be paid out of the proceeds, and is in possession thereof, his con- tract being a verbal one, will have no other resort than against his employer, if the latter sells the claim while the employer is working it. The purchaser who takes, without notice of the 1 Johnson «, Parks, 10 Oal. 446. ' Sttles v- Laird, 6 Cal. E. 120. N > Hicks «. Bell, 3 Cal. E. 219. < live Yankee Co. «. Oregon Co. T Cal. 40. 57^ BANCEOFT's CALIFORNIA LAWYER. contract, holds the claim not subject or liable to the vendor's agreement with his employee." When a place of deposit for tailings is necessary for the work- ing of a mine, the miner has a right to appropriate such ground as may be necessary for that purpose, provided he does not in- terfere with pre-existing rights. But his intention to appropriate such ground must be clearly manifested by acts. Mere posting notices is not sufficient. He must claim the place of deposit as such, or as a mining claim.' To suffer the tailings to flow at random, without obstructions to confine or keep them, is conclusive evidence of abandonment, unless there is some peculiarity in the location which may con- stitute an exception to this rule ; as where no artificial obstruc- tion is required to confine the tailings within proper limits, in •which case none is necessary." Where one miner allows his tailings to flow upon the ground of another, the latter is entitled to them ; but the fact that he suff'ers them to mingle with the tailings of another mirier, will give no right to a stranger to appropriate the mixed mass." "Where the regulations of a mining locality required that every claim should be worked two days in eveiy ten, it was held that the efforts of the owners of a claim to procure machinery for working the claim are to be considered as work done on the claim. And work upon adjoining land, in constructing a drain to enable the owners to work their claim, is to be viewed in the same light.' One party may locate ground for fluming purposes, and an- other party may at the same or a different time, locate the same ground for mining purposes ; the two locations being for different purposes, will not conflict. So, alsoj a person may take up a claim for mining pui-poses, that has been, and still is, used as a place of deposit for tailings by another, but in such case, his mining rights will be subject to the prior right of deposit.* III. — Water Eights. At the common law every proprietor of lands on the banks of a running stream, was held to have an equal right to the use of ' Jenkins v. Eerldins, S Cal. 593. ' Packer et al. t. Henton, 9 Oal. E. 668. ' Jones V. .Jackson, 9 Cal. '287. * O'Keefe v. Cunningham, 9 Cal. 6S9. MINES, MINIKG, AND "WATER EIGHTS. 577; the water which flowed in the stream adjacent to his lands, as it was wont to run, witliout diminution or alteration ; and no one proprietor had a right to use the water to the prejudice of others above or below him, except in virtue of some prior title to its ex- clusive enjoyment. No one had any property in the water itself, but only a simple usufruct, or right to its use, as it flowed along. He might make use of it as it passed over his land, but could not detain or divert it. "While upon his own land he might, in- deed, turn it from its proper channel, and give it any direction he chose, during its passage across his premises and within their boundaries. But upon its departure from those limits, he was bound to restore it to its natural bed, so that it should enter upon his neighbor's land by the same channel, and at the same point as if it had not been used or disturbed. Neither could he, with- out the consent of the adjoining proprietors, so use the water as to diminish the quantity which would descend to those below, or throw it back upon the lands of the proprietors above him, un- less by virtue of a valid grant, or an uninterrupted enjoyment of twenty years, which was taken as evidence of such a grant. These principles are in accordance with, and seem to grow out ot the common law maxim : " "Water flows, and must be permitted to flow as it has been used to flow.'" They apply, however, only to natural watercourses, and not to artificial ones. And where a running stream is created, as it were, by the owner of the land, as where water is raised from a mine by a steam-pngine, or runs by a spout from the eaves of a row of houses, and is thus thrown upon, or flows beneficially into a neighbor's lands, and is used by him, no right to the continued use of the stream so created exists, for that would unreasonably compel the owner of the mine, or of the row of houses, to keep his engine in motion or his buildings unaltered, for the benefit of another." In this state the common law doctrines, in reference to watei rights, have been materially modified, the policy of our laws re quiring such modification, in the application of those doctrines to the use of water for mining purposes. And it has been held by 1 Aqua cunit et debet currere, ut ourrere ^ Kent's Commentaries, vol. iii. pp. 569, 570, BOlebat, 9tli edition ; Gale & Whatley on Easements, p. 182; Angell on "Watercourses, p. 86. 3T 578 b.4j^ceoft's California lawyer. our Supreme Court that the right to water exists without private ownership of the soil, upon the mere ground of prior location upon the land, or prior appropriation and use of the water.' A brief review of the adjudications upon this subject, so far as they bear upon the rights and interests of miners, will show what principles may be considered as settled in this state. In the case of Eddy and others against Simpson and others,' the action was brought to recover damages for interfering with the water right of the plaintiffs. The plaintiffs had prior occu- pancy of the waters of Shady Creek, by means of a dam and a ditch constructed by them, and used the same for mining pur- poses. The defendants, by like means, obtained the use for like purposes, of other neighboring streams, and after using the water thereof, it flowed by natural channels into Shady Creek, above plaintiffs' dam. Defendants then built a dam above plaintiffs' dam, on Shady Creek, and withdrew a portion thereof from plain- tiffs' works, so as to leave them deficient iu supply, and at times without water for their purposes. The defence was based upon the fact that defendants having by their works added to tlie quantity of water in Shady Creek, they had a right to withdraw a like quantity for their own use ; and this was the question at issue. The District Court sustained the defence set up, and held that defendants had an exclusive right to the water which they had caused to flow into Shady Creek, and could withdraw the same. Upon an appeal to the Supreme Court the judgment of the Dis- trict Court was reversed. The following language was employed in the opinion : " In considering the question presented, it is to be observed, that the foundation of the plaintiffs' right was their first posses- sion. Of all the waters running into Shady Creek they were in possession and use until defendants constructed their ditch above them, running into French Corral. There is no pretence of right in the defendants to carry off water from Shady Creek, except a claim of property in the water from Cherokee Corral. The owner of land through which a stream flows, merely trans- mits the water over its surface, having the right to its reasonable ' Hill V. Newmnn, 5 Cal. E. 445. ' 8 Cal. E. 249. MINES, MINING, AND WATER EIGHTS. 679 use during its passage. The right is not in the corpus of the water, and only continues with its possession. When the water of Grizzly Canon and Bloody Kuu left the defendants, at Cherokee Corral, all right to and interest in that water was lost by the defendants. It might be made the prop- erty of whomsoever chose to possess it. Without the agency of the defendants it found its way into Shady Creek, joining the waters then in the possession of the plaintiffs, and became a part of the body of water used and possessed by them. As defendants had lost all right to the water, they could have no right to withdraw it from the possession of the plaintiffs. The rule laid down by the court below, while it is a departure from all the rules governing this description of property, would be impracticable in its application, and we think it much safer to adhere to known principles and well-settled law, so far as they can be made applicable to the novel questions growing out of the peculiar enterprises in which many of the people of this state are embarked.' In the case of Irwin against Phillips,^ it was declared that the policy of this state, as indicated by her legislation, in conferring the privilege to work the mines, equally confers the right to di- vert the streams from their natural channels ; that these two rights stand upon an equal footing, and must, when they conflict, be decided by the fact of priority ; and that the miner who se- lects a piece of ground to work, must take it as he finds it at the time, subject to all previously acquired rights. The distinct question presented to the court to be passed upon in this case was, whether the proprietor of a ditch or canal in the mineral re- gion of this state, constructed for the purpose of supplying water to miners, has the right to divert the water of a stream from its natural channel, as against the claims of those who, subsequent to the diversion, take up lands along the banks of the stream for the pui'pose of mining ; the lauds through which both the stream and the ditch pass being public lands, and there being no claim of private proprietorship. In passing upon this question the court says in substance : It is insisted by the appellants that in this case the common law 1 See Butte Canal and Ditch Company «. '5 Cal. E. 140. Vaughan, October Term, 1859. 680. BAi^'CEOFT'S QALIFOENIA LAWYER. doctrine must be invoked, whicli prescribes that a watercourse must be allowed to flow in its natural channel. But upon an examination of the authorities which support that doctrine, it will be found to refet upon the fact of the individual rights of landed proprietoi-s upon the stream. In this case the lands are the property either of the state or of the United States. The appellants had the right to mine where they pleased, throughout an extensive region, and they selected the bank of a stream from which the water had been already turned, for the purpose of supplying the mines at another point. In this state the larger part of the territory consists of mineral lands, nearly the whole of which are the property of the public. A system has been permitted to grow up by the voluntary action and assent of the population, whose free and unrestrained occu- pation of the mineral region has been tacitly assented to by the general government, and heartily encouraged by the expressed legislative policy of the state. There are some things in this system which a universal sense of necessity and propriety have so firmly established that they have come to be looked upon as having the force and effect of " things adjudicated." Among these the most important are, the right of miners to be protected in the possession of their selected localities, and the rights of those who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have con- ducted them for miles over mountains and ravines, to supply the necessities of gold diggers, and without which the most important interests of the mineral region would remain without develop- ment. The miner who selects a piece of ground to work, must take it as he finds it, subject to prior rights, which have an equal equity, on account of an equal recognition from the sovereign power. If it is upon a stream the waters of which have not been taken from their bed, they cannot be taken to his prejudice ; but if they have been already diverted, and for as high, and legiti- mate a purpose as the one he seeks to accomplish, he has no right to complain, no right to interfere with the prior occupation of his neighbor, and must abide the disadvantage of his own selection. MINES, MINING,' AND . 'WATEE , EIGHTS. 581 A similar doctrine was laid down in the case of Kelly against the National "Water Co.,' in which the court says : " Possession, or actual appropriation, must be the test of priority in all claims to the use of water, whenever such claims are not dependent upon the ownership of the land through which the water flows." But where the owners of a ditch had commenced the same, and run their line, before the location and appropriation of a lot of land by the plaintifi^, through whose lot the line ran, the latter having sued the ditch owners for trespass, it was held, that in constructing canals or ditches under the license of the state, the survey of the ground, planting stakes along the line, giving public notice, and actually commencing and diligently pursuing the work, is as much possession as the nature of the subject will admit, and is conclusive of the right to run the ditch on tlie line thus indicated." The state, by her general legislation, has granted a license for the construction of ditches, canals, and flumes, for the purpose of conducting water to be used in mining. From the very nature of these works, time is necessary to complete them, and the license would be valueless if the right did not commence until their completion. The right must therefore be so construed, that it may be eff'ectual for the purposes for which it was granted.' And generally, where a ditch is made for the purpose of using the water, the right thereto as against others, dates from the commencement of the work in good faith. But in all cases there must be an appropriation, or an intention to appropriate, followed by due diligence and an actual appropriation within a reasonable time. What is a reasonable time must depend upon the facts of each particular case.' If, however, a ditch be cut for drainage merely, or for some other object than the appropriation and use of the water for mining, or some other useful purpose, and other parties in good faith commence a ditch with the intention of appropriating the water to the purposes last mentioned, the latter obtain a priority. And it .would seem that the cutting of a ditch for a drain can give no priority.' 1 6 Cal. E. p. 105; and see Kimball «. Gear- ' Maeris a. Biokncll, 7 Cal. 261 ; Park v. Kil- hart, January Term, 1859. lam, 8 Cal. 77. ' Conger i>. Weaver, 6 Cal. 548. * MaeriB v. Bioknell, 7 Cal. 261. 582 banceoft's California lawyer. Where a party suffers damage from the breaking of a cacal constrneted prior to the location of his claim, if there be no actual negligence on the part of the canal owners, or no other negligence than such as the law would presume from the mere breaking of the canal, the owners will not be responsible for such damage. The principle seems to be that one who chooses to locate his claim along the line of a ditch already established, does so at the risk of any accidental injury from the same, not caused by the actual neglect of the owners.' He who has first located his mining claim on the bank of a stream has tlie 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 neces- sary means or appliances, is an encroachment upon the rights of said first occupant, who is entitled to recover all damages conse- quent on such obstructions.'' The first appropriator of water for mining purposes is entitled to have the water fiow without material interruption in its natural channel. And he is entitled to the water so undiminished in quantity as to leave sufiicient to fill his ditch as it existed at the time of the subsequent appropriation of the stream above him. As to any deterioration in the quality of the water, by reason of being used for mining purposes, before it riches the ditch of the prior locator, it would not seem to be such a damage as any re- covery can be had for." And parties are not limited to the amount and quantity of water which they may have turned into their ditch in the first instance, unless, by its general size, plan, &c., it was incapable at the time of carrying more water tlian was at first appropriated. They may at any reasonable time afterward use moi-e 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 intended to appropriate no more, they would be limited to that quantity.' 1 Tenney ». Minors' Ditch Co. 7 Cal 835. = Bear Eiver W. and M. Company v. York » Blma V. Smith, T Cal. H. 148. Mining Company, 8 Cal. 827. < White v. Todd's Vall(;.v AVflter Co. 8 Cal. 443, MINES, MINING, AND WATEE EIGHTS. 583 IV. — Miscellaneous Matters connected with the General Subject. The sale and transfer of a mining claim, or water right, should be by deed under seal, the latter being a right running with the land, and, having none of the characteristics of a mere personality, must be conveyed with the same formalities as real estate. The question as to the sufficiency of a mere bill of sale to transfer a mining claim has been raised in several cases coming before the Supreme Court of this state, and though not specifically adjudi- cated, the opinion of the court seemed to be that a transfer by bill of sale was insufficient.' The interest of a miner in his claim is property, and may be taken and sold ujider execution." His pay dirt, and tailings, which are the productions of his labor, are in like manner his property.' It would seem that school law warrants may be located upon any of the mineral lands in the state, the act of May 3, 1853, appearing to make no exception or reservation of mineral lands.' To shut off a useful element from one's premises, is as much a nuisance as to turn upon them a destructive one ; and a ditch to carry off water rightfully flowing to a mining claim, is as much a nuisance as a drain to flood it.' Eights to the use of water become fixed, after five years' ad- verse enjoyment of the same.° The owner of a ditch is bound to use that degree of care in its construction and management to prevent injury to others, which oi'dinarily prudent men use in similar instances, when the risk is their own ; and the question of negligence must in a great meas- ure depend upon the facts and circumstances of each particular case.' In regard to the doctrine of fixtures upon public mineral lands, the Supreme Court held, in the case of Merritt vs. Judd, July term, 1859, that where machinery is erected upon a claim by a tenant, for the purpose of extracting the gold, and is necessary for that purpose, such machinery is considered as attached per- manently to the soil, to aid in effecting the object for which it is ' Hill «. Newman, 5 Cal. E. 446; McCarron * Nitna «. Johnson, 7 Oal. E. 110. V. O'Connell, " Cal. E. 162. = Parke •». Kilham, S Cal. TT. 5 McKeon v. Bisbee, 9 Cal. E. 187. " CraniJall l>. "Wood, S Cal. 186. s JoneB V. Jackson, 9 Cal. E. 23T. ' Wolf «. St Louis Water Co. 10 Cal. 541. 584 bab'croft's California lawyer. valuable, and passes to the landlord as a fixture annexed to tlie freehold, if the tenant fails to remove it during the term ; that thes McMillm e. Eichards, 9 Cal. 865. 600 Bancroft's California lawyer. execution of the conveyance thereunder, acquires a lien on the estate entitling him to redeem.' Possession by the mortgagee cannot abridge, enlarge, or other- wise affect his interest, nor convert that which was previously a security into a seizin- of the freehold." If the mortgage confers no right of possession, entry under it can give none. It does not change the relation of debtor and credi- tor, or impair the estate of the mortgagor, but leaves the parties exactly as they stood previous to such possession." The title of a purchaser under a sale on a decree of foreclosure cannot be impeached, in a collateral action, foi^ irregularity in the proceedings on the sale." A mortgagee who is also a trustee is as strictly bound to exe- cute his trust faithfully as he would be were he not a creditor, but acting for the benefit of another cestui que trust.' FOEMS. Mortgage — Shmt Form. Know all men that I, Horace Joke, being indebted to Milo Bluff in the sum of five hundred dollars, to be paid in three months from this date, with interest at two per cent, per month, for which he holds my promissory note, in consideration of one dollar paid to me by said Milo Bluff, and as security for the pay- ment of said note, do hereby grant, bargain, and sell to said Milo Bluff, his heirs and assigns forever, the following lot of land in the city and county of San Francisco : \heTe insert description,'] on condition that if the said debt be paid according to the terms of said promissory note, then these presents shall be void. Witness my hand and seal this tenth day of June, one thousand eight hundred and fifty-nine. Hokace Joke. [l. s.] I Sealed and delivered ) in presence of j Mortgage, without Bond, Note, or otTwr Accorrvpam/ing InsPntr ment. This indenture, made this first day of May, in the year of our Lord one thousand eight hundred and fifty-eight, between A. B. and 0. D., of , parties of the first part, and E. F., party of the second part, witnesseth, that the said parties of the first 1 McMilliui V. Bicharcls, 9 Cal. 869. * id. 648. > 9 Cal. 426. MORTGAGE. 601 part, for and in consideration of the sum of two thousand dollars to them in hand paid by the said party of the second part, do hereby grant, bargain, sell and confirm, unto the said party of the second part, and to his heirs and assigns forever, all [here insert desGTvpldon], together with all and singular the tenements, here- ditaments and appurtenances thereunto belongiag, or in anywise appertaining. To have and to hold, unto the said party of the second part, his heirs and assigns forever, by way of mortgage, to secure the payment of the sum of two thousand dollars, payable by said par- ties of the first part to said party of the second part in three months from this date, with interest thereon at two per cent, per month, and these presents shall be void if such payment be made. But in case default be made in the payment of either the princi- pal or any instalment of interest, as provided, then the whole sum of principal and interest shall be due at the option of the party of the second part, and suit may be immediately brought and a decree be had to sell the premises, above described, with all and every of the appurtenances, or any part thereof, in the manner prescribed by law, and out of the money arising from such sale to retain the said principal and interest, although the time for payment of said principal sum may not have expired, together with the costs and charges of making such sale, and of suit for foreclosure, including counsel fees at the rate of ten per cent, upon the amount which may be found to be due for princi- al and interest by the said decree, and the overplus, if any there e, shall be paid bv the party making such sale, on demand, to the parties of the first part, their heirs and assigns. In witness whereof, the said parties of the first part have here unto set their hands and seals the day and year first above written. A. B. CD. Signed, sealed and delivered ) m the presence of M. N. j Mortgage on Note, with full Conditions. This indenture, made the 3d day of June, one thousand eight hundred and fifty-nine, between George Happ, of the county of Alameda, party of the first part, and Loren Burke, of San Fran- cisco, party of the second part. Whereas the said George Sapp is justly indebted to the said party of the second part, in the sum of twenty thousand dollars, lawful money of the United States, secured to be paid by his certain promissory note, bearing even date with these presents, and which said note is in the words and figures following : I 602 Bancroft's CALiFaENiA lawyeb. $20,000. San Francisco, June 3d, 1859. For value received, I promise to pay to Loren Burke, or order, in twelve months from date, the sura of twenty thousand dollars, with interest thereon at the rate of one per cent, per month, payable monthly in advance, on that day of each and every month corresponding with the date of this obligation : all sums of principal and interest due and to grow due hereon, to be paid at the banking-house of John Sime & Co., in the city of San Francisco, without grace. And should the interest hereafter to grow due on this obligation, or any part thereof, be in arrearand unpaid for the space of fifteen days after the same should have been paid, as above provided, then it shall be lawful for the said payee, or for the holder hereof, to con- sider the whole amount of the said principal sum which shall then be unpaid, as immediately due and payable, with interest thereon as aforesaid, although the period above expressed for the payment thereof shall not have arrived, and to commence suit for the recovery of the same. And, if any part of the said interest shall not be paid when the same becomes due, then the holder hereof may add the same to the principal sum, and it shall there- upon become a part of said principal, and bear monthly interest at the same rate ; and so on from month to month, adding all in- terest in arrear to such principal, and compounding interest on interest, at the same rate, and making monthly rests on that day of each month corresponding to the date of this obligation. And, in case a cause of action shall accrue on this obligation, and the payee, or the holder hereof shall commence a suit to enforce the same, then it shall be lawful for the said payee, or for the holder hereof, to have and demand upon the same, five per cent, upon the amount then due, or which shall be recovered therebn, as a reasonable indemnity for the trouble, risk, delay, and extraordi- nary expenses of litigation, in addition to the taxed costs of suit ; and in case of judgment in decree, said percentage shall- be in- cluded therein, and bear interest at the same rate, and in the same manner as the principal debt. Geoege Happ, as by the said promissory note, reference being thereunto had, may more fully appear. Now, this indenture, witnesseth, that the said party of the first part, for the better securing the payment of the said sum of money secured to be paid by the said promissory npte, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to him in hand paid by th'p said party of the second part, at or before the ensealing and delivery of these presents, the receipt, whereof is hereby acknowledged, has granted, bargained, sold,, aliened, re- leased, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, release, convey and confirm unto the MOETGAGE. 603 said party of the second part, and to his heirs and assigns, for- ever, all those certain tracts of land &c. [here insert description], together with all and singular, the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof: and, also, all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law. as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances. To have and to hold, the above granted and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit 'and behoof, forever. Provided, always, and these presents are upon this express condition, tliat if the said party of the first part, his heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, his executors, admin inistrators or assigns, the said sum of money secured to be paid by the said promissory note, and the interest thereon, at the time and place, and in the manner mentioned in the promissoiT note, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, determine j and be void. And the said party of the first part, for himself, his heirs, executors and administrators, does covenant, promise and agree, to and with the said party of the second part, his heirs, executors, administratoi'S and assigns, that he has not made, done, committed, executed, or sufiiered any act or acts, thing or things, whatsoever, whereby, or by means thereof, the above mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be impeached, charged or encumbered in any way or manner whatsoever. And, the said party of the first part, for himself, his heirs, executors and administrators, does covenant and agree to pay unto the said party of the second part, his executors, admin- istrators or assigns, the said sum of money, and interest, as men- tioned above, and secured to be paid as aforesaid. And, if de- fault shall be madte in the payment of the said sum of money, above mentioned, or if the interest that may grow due thereon, or any part thereof, shall be behind and unpaid for the space of fif- teen days after the same should have been paid according to the terms of said promissory note, that then and from thenceforth it shall be lawful for the said party of the second part, his execu- tors, administrators and assigns, to consider the whole of said principal sum expressed in said note, as immediately due and payable, although the time expressed in said note for the pay- ment thereof shall not have arrived, and immediately to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all bene- 604 BANCROFT'S OALIFOEUIA LAWTEB. fit and equity of redemption of the said party of the first part, his heirs, executors, administrators or assigns, according to law : and in the mean time until such sale shall be made and become ab- solute, to enter into actual possession of the said mortgaged premises, applying to his own use the profits thereof, or to de- mand, collect and receive from any tenant in possession the rents of said mortgaged premises from them respectively due and pay- able, to which effect the said rents are hereby assigned to the said party of the second part ; and to demand, collect and receive the same as aforesaid, he is laereby constituted the true and lawful attorney in fact, irrevocable of the said party of the first part, and out of the moneys arising from such sale, or rents and profits collected or received, if any, to retain the principal and interest which shall then be due on the said promissory note, together with the costs and charges of foreclosure suit ; and also a per- centage at the rate of five per cent, upon the amount of judg- ment recovered, as an indemnity, as provided in said note, and also, the amount of all such payments of taxes, assessments or incumbrances, as may have been made by said party of the second part, his heirs, executors, administrators or assigns, by reason of the permission hereinafter given, with the interest on the same hereinafter allowed, rendering the overplus of the pur- chase-money (if any there shall be) unto the said party of the first part, his heirs, executors, administrators or assigns. And it is hereby agreed, that it shall be lawful for the said party of the second part, his heirs, executors, administrators or assigns, to pay and discharge at maturity, all such taxes or assessments, liens, or other incumbrances now subsisting or hereinafter to be laid or imposed upon said land and premises above described, and which may be in effect a prior charge thereupon to these presents, and for such payments shall be allowed interest at the rate of two per cent, per month, such payments and'interests shall be con- sidered as secured by these presents, and a charge upon the land and premises hereby conveyed or intended to be, and shall be re- payable on demand, and may be deducted from the proceeds of the sale above authorized. And the said party of the first part further covenants and agrees to and with the said party of the second part, to pay all ordinary taxes which shall or may be im- posed upon said land and premises, and upon this mortgage or the money hereby secured during its continuance, and in default thereof, the said party of the second part shall pay and discharge the same ; and the sum so paid shall bear interest at the rate of two per cent, per month, and shall be considered as secured by these presents, and be a lien upon said premises, and shall be de- ducted from the proceeds of the sale thereof, above mentioned, with interest as herein provided : and upon all sums which shall become due, or accrue to the said party of the second part, his MOBTGAGE. 605 heirs, executors, administrators, or assigns, by virtue of any of the covenant or provisions herein contained, interest shall be chargeable at the same monthly rate as upon the said principal debt, up to the next monthly date corresponding to the date of the said promissory note or obligation, and then be added, to the principal debt, and become a part thereof, and bear monthly interest at the same rate, and be compounded in the same man- ner, and subject to the recovery of the same percentage, and to be included in the judgment and decree in the same manner as the sums remaining due for principal or interest upon the said principal debt. In witness whereof, the party of the first part has hereunto set lais hand and seal the day and year first above written. Signed, sealed in presence of and delivered Geoege Happ. [l. S.J Satisfaction of Mortgage. Know all men by these presents, that I, A. B., resident of Bid- well city, do hereby certify and declare that a certain mortgage, bearing date the 4;tn day of Marcli, 1854, made and executed by C. D., the party of the first part therein, to L. M., the party of the second part therein, upon a lot on the corner of Broadway and Duke street, in said city, which mortgage is recorded in the ofiice of the county recorder of the county of Colusi, in book 3 of mortgages, on pages 24 and 25, on the sixth day of March, 1859, is fully paid, satisfied and discharged. In witness whereof I have hereunto set my hand and seal, the 10th day of June, A. D. 1859. A. B. In presence of P. Q. Mortgage ly Way of Indemnity. This indenture, made this day of , A. D. , between A., of the city and county of San Francisco, state of California, and B., of the city of Boston, state of Massachusetts, of the first part, and C, of the said city and county of San Fran- cisco, state of California, of tlie second part, witnesses : That the said A. and B., parties of the first part, as collateral security to said C. for our full performance of the covenant of indemnification hereinafter expressed, and according to the con dition of this deed, and in farther consideration of the sum of one dollar to us paid by said C, the receipt whereof is hereby acknow- ledged, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said C, his heirs and assigns, forever, all our right, title and interest (being the one undivided half thereof), of, in and to all those two certain lots, pieces or parcels of land, situated, lying and being 606 bajstcroft's califobnia lawyee. in said city of San Francisco, bounded and described as follows : [descrvption of parcel?] together with all and singular the tene- ments, hereditaments and appurtenances thereunto respeptively belonging, to have and to hold the same to the said C, his heirs and assigns forever : Provided always, nevertheless, whereas the said C, together with one D., on the day of , A. D. , did enter into and execute a certain stipulation in admiralty, in the suit of E. vs. the ship Star of the West, and of other libellants against the same ship, in the District Court of the United States, for the northern district of California, the total penalty whereof is the sum of % , and the said C, being bound in the sum or proportion of $ , for the release from the custody of the United States marshal, of said ship Star of the "West, and her delivery to F., the master and claimant thereof, conditioned that the said stipulators shall, at any time, upon the interlocutory and iinal order or decree of the said District Court, or of any appellate court to which the above-mentioned suits, or any of them, may proceed, and upon notice of such order or de- cree to said claimant, or to , his proctor, pay into court the full value of $ (the agreed value of said ship), in the several amounts specified in said stipulation, and abide by and pay, to the extent of said $ , in the several amounts in said stipulation mentioned, the money awarded by any Iinal de- cree rendered in said suits by said District Court or the appellate court, if any appeal intervene : Now these presents are on this condition, that if the said A. and E., their heirs, executors or administrators, shall indemnify and save harmless the said C, his heirs, executors or administra- tors, against said stipulation, and from all damages whatsoever that may happen or accrue to the said C, his heirs, executors or administrators, by reason of his having entered into and executed said stipulation, and of his or their being obliged, by compulsion of law, to pay, and in fact paying, any sum or sums of money by reason thereof, then this indenture and every thing herein con- tained, shall be wholly void, otherwise to remain in full force : And the said A. and B., for themselves, their heirs, executors and administrators, jointly hei'cby covenant with the said C. his heirs, executors and administrators, that they the said A, and B. shall and will indemnify and save harmless, the said. C, his heirs, executors and administrators, against said stipulation, and from all damages whatsoever, that may happen or accrue to the said C, his heirs, executors, or administrators, by reason of his hav- ing entered into and executed said stipulation, and of his or their being obliged to pay, and in fact paying, any sum or sums of money by reason thereof ; And the said C, for himself, his heirs, executors, adminietra- MORTGAGE. 607 tors and assigns, doth covenant, tliat whenever his liability, or said stipulation, shall cease and determine by a decree of the said District Court in favor of the said claimant, or in any other man- ner, the said C, his heirs, executors, administrators or assigns, shall and will deliver up this indenture to the said parties of the iirst part, to be cancelled, or shall and will execute and deliver to them a good and valid release thereof. In witness whereof, &c., &c., [as in foregoing form.] Belease of Part of Mortgaged Premises. This indenture made this nineteenth day of December, 1867, between Major Thomas Harper, of the city of New York, of the first part, and "Worthington S. Lyon, of the city of San Francisco, of the second part, witnesseth : that whereas the said party of the second part by his certain indenture of mortgage, bearing date the 15 ih day of September, 1856, and recorded in the coun- ty recorder's oflSce, of the county of San Francisco, in liber No. 22 of mortgages, at page 129, September 18th, 1866, did, for the consideration and for the purpose therein mentioned, convey to the party hereto of the first part, certain lands in the city and county of San Francisco, of which the lands hereinafter described are part and parcel. And whereas the said party of the second part, hath, on the day of the date of these presents, paid to the said party of the first part, the sum of eighteen hundred dollars, part of the moneys secured by the mortgage aforesaid, as therein specified, on which payment the said party of the first part hath agreed to release to the said party of the second part, his heirs and assigns, the lands hereinafter described, and take and accept the residue of the said mortgaged premises as his security for the payment of the moneys remaining unpaid on the said mort- gage. Kow, therefore, if the said Thomas Harper, party of the first part, in consideration of the premises and of the said sum of eighteen hundred dollars, so paid to me by said party of the second part, doth hereby grant, release, assign, and make over unto the said party of the second part, and to his heirs and as- signs, all that portion of said mortgaged lands, bounded and de- scribed as follows, viz. : \msert desorijption,']\ag&the:v with all and singular the tenements, hereditaments and appurtenances there- unto belonging or in anywise appertaining. To have and to hold the lands and premises hereby released^ and conveyed to the said party hereto of the second part, his heirs and assigns, to his and their only proper use and behoof forever, free, clear and discharged of and from the lien of the said mortgage. In witness whereof, the said party of the first part hath here- 608 Bancroft's califoenia lawyeb. unto set Ills hand and seal, the day and year first above written. Sealed and delivered in ) Thos IIaupke. [l. s.] presence of j Agreement to IriGrease Bate of Interest and Pay Taxes on Mortgage. Know all men by these presents, that we, Erwin Davis and Charles L. Weller, the obligors named iu a certain bond in the penal sum of dollars, bearing date the day of A. D. 1860, conditioned for the payment of the sum of dollars, with interest at the rate of per cent, per month, to Cutler McAllister, the obligee therein named, which bond is secured by the mortgage of the said Erwin Davis, bear- ing even date therewith, and recorded in the office of the county recorder of the county of San Francisco, in liber No. of mortgages, at page on the day of A. D. 1860, and which said bond and mortgage are now wholly due and payable, do hereby for ourselves, heirs, executors, adminis- trators and assigns, in consideration of the sum of five dollars, lawful money to us in hand paid by the said Cutler McAllister, the receipt whereof is hereby acknowledged, covenant, grant, promise and agree to and with the said Cutler McAllister, his executors, administrators and assigns, that the said principal sum of dollars, shall from and after the date of these presents, bear interest at the rate of one and one-half of one per cent, per month, and that we will pay such interest at the times and in the manner in said bond and mortgage provided, and further, that we will pay and discharge at maturity, all taxes and assessments which are or may be imposed upon the said bond and mortgage, or upon the moneys thereby secured until the said bond and mortgage shall be fully paid and satisfied, and in case of our de- fault in making such payment, that it shall be lawful for the said Cutler McAllister, his executors, administrators, or assigns, to pay and discharge the same, and such payment when made shall be taken and deemed to be a charge upon the lands and prem- ises in said mortgage described, shall be added to the principal moneys thereby secured, and shall bear interest thereafter at tlie same rate. And I the said Erwin Davis, for the consideration aforesaid, do hereby grant and convey unto the said Cutler McAllister, his heirs and assigns, the lands in said mortgage de- scribed, as security for the performance of this agreement, subject to the proviso in the said mortgage contained. In witness whereof, we have hereunto set our respective hands and seals this fii-st day of July, A. D. 1860. Sealed and delivered in ) Eewin Davis, [l. s.J the presence of j C. L. Wellee. [l. s.] MOETGAGE. 609 Agreement to Extend the Time for Payment of Mortgage. This agreement, made this ITth day of November, A. D. 1866, between Erwin Davis, of the city of San Francisco, administrator, &c., of the first part, and George L. Kenny and Albert L. Ban- croft, of the same place, of the second part, witnesseth, whereas the said party of the first part is the holder of a certain prom- issory note, made by GeOrge L. Kenny and Albert L. Bancroft, under their firm name of Kenny & Bancroft, for the sum of thirty thousand dollars, dated the seventeenth day of November, A. D. 1855, and payable one year after the date thereof, with interest thereon at the rate of one and one-half per cent, a month, monthly, in advance, with a provision that, in case of default in the payment of any instalment of said interest for the space of fifteen days after the same should become payable, it should be optional with said party of the first part, to consider said princi- pal sum, and all arrearages of interest thereon, immediately due and payable. And whereas, the said party of the first part holds a certain mortgage made by the said George L. Kenny and Albert L. Ban- croft, dated October 14th, A. D. 1854, and recorded in the county recorder's office of San Francisco county, in liber No. 48 of mortgages, at page 984, October 24, A. D. 1854, as security for the payment of said note and interest, under the terms of a certain agreement bearing date on said 17th day of November, 1855, and duly recorded in said office, in liber No. 23 of cove- nants, at page 365, November 25, 1856. And whereas, the said note has, by the terms thereof, become due and payable, and the said parties of the second part have applied to said party of the first part, to extend the time of the payment thereof twelve months from the date of these presents, and he has consented to do so upon the same terms and conditions as originally provided therein. Now, in consideration of the premises, it is mutually cove- nanted and agreed between the said parties, that the time of Eayment of the said promissory note shall be, and the same is ereby extended for the period of twelve months from the date of these presents; and the said parties of the second part do hereby covenant and agree to and with the said party of the first part, his successors and assigns, to pay him the said sum of thirty thousand dollars, at the expiration of one year from the date of these presents, and also to pay him the interest thereon at the rate, and at the times, and in the manner, and subject to the like conditions, as are expressed in said promissory note ; and they hereby grant, convey and mortgage to the said party of the first part, the said premises described in the mortgage herein above referred to, upon the terms and conditions in said mortgage 39 610 BANCEOFT'S CALIFORNIA LAWYER. contained, as additional security for the performance of this agreement. It is further mutually agreed between said parties, that recourse shall not be had to said mortgage until said period of twelve months shall have expired, unless, in case of default in the pay- ment of the interest on said note, the said party of the first part shall have sooner elected to consider said note and mortgage as due and payable. In witness whereof, the respective parties to these presents have hereunto, and to a duplicate hereof, interchangeably set their hands and seals, the day and year first above written. Sealed and delivered ) Erwin Davis, [l. s.J in presence of f George L. KEinrr. [l. s.] A1.BBET L. BAircEOFr. [l. s.] Assignment of Lease hy way of Mortgage. This indenture, made and entered into, this 26th day of July, A. D. 1858, between Cecil M. Derby, of the city of San Francisco, of the first part, and Emanuel B. Ketchum of the same place, of the second part. Whereas, Marion M. Bancroft and E. Martin Palmer did, by a certain indenture of lease, bearing date the fifth day of May, A. D. 1857, and to be recorded in the county recorder's office of the county of San Francisco, simultaneously herewith demise, lease, and to farm let unto the said party hereto of the first part, and to his executors, administrators, and assigns, all and singular the premises hereinafter mentioned and described, together with the appurtenances for, and during, and until the full end and term of five years, from the twentieth day of August, in the year 1856, and fully to be complete and ended with certain privileges of renewal therein contained, yielding and paying therefor to the said Marion M. Bancroft and E. Martin Palmer, and to their ex- ecutors and assigns, the monthly rent or sum of three hundred and fifty dollars ; and whereas, the said party of the first part is justly indebted to the said party of the second in the sum of five thousand seven hundred and seventy-five dollars, lawful money, secured to be paid by his certain promissory note, bear- ing even date with these presents, of which , the following is a $5,775 00. San Francisco, July 26, 1858. Six months after date, for value received, I promise to pay to the order of Emanuel B. Ketchum, five thousand seven hundred and seventy-five dollars, with interest thereon at the rate of two and one-half of one per cent, per month, payable monthly, in ad- vance. If any instalment of such interest shall become due and be unpaid for the space of fifteen days, then, and from thence- ' '• MORTGAGE. 611 forth the interest on the said sum of five thousand seven hundred and seventy-five dollars is to be compounded monthly. If any instalment of said interest shall become due before the maturity of said note, and be unpaid for the space of fifteen days, then it shall be optional with the payee, or his assigns, to consider this note as immediately due, and payable with compound interest as aforesaid, [Midorsed.'] [Signed.] as, by the said promissory note, reference being thereto had, may more fully appear. Now this indenture witnesseth : that the said party of the first part, for the better securing the payment of the said sum of money secured to be paid by the said promissory note, with interest thei;eon, according to the true intent and meaning there- of, and also for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivering of these presents, the receipt whereof is hereby acknowledged, hath granted, bar- gained, sold, assigned, transferred, and set over, and by these presents doth grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, and to his heirs and assigns forever, all that certain lot, piece, or parcel of land situ- ate, lying, and being in the city and county of San Francisco, bounded and described as follows, viz. : [here insert description,] together with the buildings thereon known as "the Chinese Amphi- theatre," with the appurtenances thereof, and all the machinery, scenery, fixtures, furniture, properties, wardrobe and decorations belonging and appertaining thereto, with all and singular, the rights and privileges thereunto belonging, or in anywise apper- taining, and also all the estate, right, title, interest, term and terms of years yet to come and unexpired, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in and to the said demised prem^ ises, and of, in and to the building or buildings erected thereon, and every part and parcel thereof with the appurtenances, and also the said indenture of lease,, and every clause, article, priv- ilege, condition and covenant therein contained. To have and to hold the said indenture of lease and other hereby granted premises, unto the said party of the second part, his executors, administrators and assigns, to his and their only proper use, ben- efit and behoof, for and during all the rest, residue and remainder of the said term and terms of years yet to come and unexpired, subject, nevertheless, to the rents, covenants, provisions and con- ; ditions in the indenture of lease mentioned ; provided, always, and these presents are upon this express condition, that if the said party of the first part, his executors or administrators, shall 612 Bancroft's California lawyer. well and truly pay unto the said party of the second part, his executors, administrators and assigns, the said sum ot'_ money secured to be paid by the said promissory note, and the interest thereon, at the time and in the manner mentioned in the said promissory note, according to the true intent and meaning thereof, and also pay the other moneys hereinafter agreed to be Eaid as herein provided, that then these presents and the estate ereby granted shall cease, determine, and be utterly void. And the said party of the first part, for himself, his heirs, executors and administrators, doth covenant and agree to pay unto the said party of the second part, his executors, administrators or assigns, the said sums of money and interest as mentioned above, and secured to be paid as aforesaid, and also to pay the said monthly rent so reserved and agreed to be paid on said indenture of lease as aforesaid. And if default shall be made in the pay- ment of the said sum of money above mentioned, or in the interest that may grow due thereon or in any part thereof, or in the said monthly rent so reserved and agreed to be paid in and by said indenture of lease as aforesaid, that then, and from thenceforth, it shall be lawful for the said party of the second part, his executors, administrators and assigns, and he and they are hereby empowered and authorized to consider the whole amount of said promissory note as immediately due and pay- able, and to enter into and take possession of, all and singular, the said demised premises, and to let or underlet the same, and to collect the rents due or to become due therefor, and apply the moneys thus received toward the payment of the said monthly rent agreed to be paid in and by said indenture of lease, and the balance toward the payment of the interest due and to become due upon said promissoiy note,^ and the balance thereof toward the principal of said promissory note until the same is fully paid, or to sell, transfer and set over all the rest, residue and remainder of the term and terms jof years then yet to come and unexpired of the said indenture of lease, and all the other the right, title and interest of the said party of the fi.rst part, his heirs, executors, administrators, or as- signs of, in, and to the same, and the hereby assigned premises, at public auction, according to law and under the direction of some court of competent j urisdiction. And as the attorney of the said party of the first part for that purpose by these presents, duly au- thorized, constituted, and appointed to make and deliver to the purchaser or purchasers thereof a good and sufficient assignment or transfer in the law for the same, and out of the moneys arising from such sale to retain the principal and interest which shall then be due on the said promissory note, together with the costs and charges of advertisement and sale of the same premises and MORTGAGE. 613 of suit for foreclosure, including counsel fees, at the rate of ten per cent, upon the amount which may be found to be due for principal and interest by the said decree, and also the amount of all such payment of taxes, assessments, rents or incumbrances as may have been made by said party of the second part, his heirs, executors, administrators or assigns, by reason of the permission hereinafter given, with the interest on the same hereinafter allowed, rendering the overplus of the purchase money, if any there shall be, unto the said party of the first part, his heirs, ex- ecutors, adnjinistrators or assigns, which sale so to be made shall forever be a perpetual bar, both in law and equity, against the said party of the first part, his heirs and assigns, and all other persons claiming, or to claim, the premises or any part thereof, by, from, or under him, them, or either of them. And it is hereby agreed that it shall be lawful for the said pai'ty of the second part, his heirs, executors, administrators, or assigns, to pay and discharge at maturity all such taxes, rents, or assessments, liens, or other incumbrances now subsisting or hereafter to be laid or imposed upon said demised premises, and which may be in effect a prior charge thereupon to these presents, including all rents and other charges reserved in said indenture of leasee, and for such payments shall be allowed interest at the rale of three per cent, per month. Such payment and interest shall be consid- ered as secured by these presents, and a charge upon said lots of land, lease and premises shall be repayable on demand, and may be deducted from the proceeds of the sale above authorized. And the said party of the first part, for himself, his executors, and administrators, doth hereby covenant and agree that he and they shall and will insure and keep the buildings erected and to be erected upon the said demised premises insured against loss by fire until each promissory note shall be fally paid, in a sum not less than seven thousand dollars, in some one or more insur- ance companies in good standing, to be approved by the party hereto of the second part, and assign the policy and certificates thereof to the said party of the second part, his executors, admin- istrators, and assigns, and in default thereof it shall be lawful for the said party of the second part, his executors, administrators, and assigns, to effect such insurance for periods of not less than six months, and the premium and premiums paid for effecting the same shall be a lieu on the said mortgaged premises added to the amount of said promissory note, and bear interest at the rate of three per cent, per month, and be secured by these presents and be repayable on demand. And the said party of the first part, for himself, his executors and administrators, doth hereby cove- nant to and with the said party of the second part, his executors, administrators, and assigns that the said premises hereby granted 614 banceoft's califoenia lawyee. are free and clear of and from all incumbrance of every name and, nature whatever. In witness ■whereof, the said party of the first part hath here- unto set his hand and seal, at the city of San Francisco, the day and year first above written. Cecil M. Dekbt. [l. s.] Sealed and delivered in presence ) of M. Nash. j NOTABY. 615 CHAPTEE XXXI. NOTAET. STATTJTOET PEOVI8ION8. Bt the statute of California, the governor is authorized to ap- point a certain number of notaries for each of the respective counties, to hold office for two years, and until their successors are appointed and qualified.' Each notaiy public, before entering upon the duties of his office, shall take the oath of office, which shall be endorsed on his commission, and shall enter into bond to the state in the sum of five thousand dollars, with sureties to be approved by the county judge of the county for which said notary may be ap- pointed. The bond, together with a certificate of the oath, shall be filed and recorded in the office of the county clerk of such county. See chapter on Official Bond and Oath. He is also required to provide a notarial seal, with a device of the coat of arms of the state, and the name of his county,' with which to authenticate all his official acts. The statute pro- vides, however, that all officers authorized to administer oaths and affirmations, may certify the same under their hands, without affixing their seals.' Notaries public shall have authority to demand acceptance and payment of foreign bills of exchange, and to protest the same for non-acceptance and non-payment, and to exercise such other powers and duties, as by the law of nations and according to commercial usages, or by the law of any other state, government, or country, may be performed by notaries public* They may also demand acceptance of inland bills of exchange and payment thereof, and of promissory notes, and may protest 1 Wood's Dig. art. 2843. ' id. 2896. ' id. 2846. * id. 2844. 616 BAJSTOBOFT'S CALIFORNIA LAWYER. the same for non-acceptance or non-payment, as the case may- require.' Each notary public shall have power to take and to certify the acknowledgment or proof of powers of attorney, mortgages, deeds, and other instruments of writing, the acknowledgment of conveyance, or other instrament of writing executed by any married woman, to take depositions, and to administer oaths and affirmations in all matters, incident or belonging to duties of his office, and to take affidavits to be used before any court, judge, or officer of this state.' He is required to keep a fair record of his official acts, except those mentioned in the preceding section, and to give, when re- quired, a certified copy of any record or paper in his office, whether his own or those of any predecessor, to any person, upon payment of the fees thereof." Upon expiration of his office, he must deliver his record and public papers to his successor. If he die, resign, be disqnaliiied, or remove from the county, they must be delivered within thirty days to the recorder of the county, who must deliver them to the successor of such notary, when qualified.' His seal, registers and official documents are exempt from execution ; and, in case of his death or removal, his register and official documents must be lodged in the office of the county re- corder for the use of his successor." For any misconduct or neglect of duty in any of the cases in which any notary public appointed under the authority of this state, is authorized to act, either by the law of this state, or of any other state, government, or country, or by the law of nations, or by commercial usage, he shall be liable on his official bond to the parties injured thereby, for all damages sustained. For any wilful violation or neglect of duty, any notary public shall be subject to criminal prosecution, and may be punished by fine not exceeding two hundred dollars and removal from office.' Any certificate or instrument, either printed or written, pur- porting to be the official act of a notary public of this state, and purporting to be under the seal and signature of such notary ' 'Wood's Dig. m-t. S844. * id. 2846. = Id. 2845-2850. id. 2849. ' id. 2S49. KOTAET. 617 public, shall be received as ^ima facie evidence of the official character of such instrument, and of the truth of the facts there- in set forth.' The original protest of a notary public, under his hand and official seal, of any bill of exchange or promissory note for non- acceptance or non-payment, stating the presentment by him of such bill of exchange or note for acceptance or payment, and the non-acceptance or non-payment thereof, and the service of notice on any or all of the parties to such bill of exchange or prpmissory note, and specifying the mode of giving such notice, and the re- puted place of residence of the party to such bill of exchange or promissory note, and specifying the mode of giving such notice, and the reputed place of residence of the party to wliom the same was given, and the post-office nearest thereto, shall be frima facie evidence of the facts contained therein. The certif- icate of a notary public drawn from his record, stating the protest and the facts therein contained, shall be evidence of the facts in like manner as the original protest.' FEES or NOTARY PUJSLIC." For drawing and copying every protest for the non-payment of a promissory note, or for the non-payment or non-acceptance of a bill of exchange, draft or check, two dollars. For drawing and serving every notice of non-payment of a promissory note, or of the non-payment or non-acceptance of a bill of exchange, order, draft or check, one dollar. For recording every protest, one dollar. For drawing an affidavit, deposition or other paper, for which provision is not herein made, for each folio, thirty cents. For taking an acknowledgment or proof of a deed or other instrument, to include the seal and the writing of the cer- tificate, for each signature one dollar. For administering an oath or affirmation, twenty-five cents. For every certificate, to include writing the same, and the seal, one dollar. In the counties of Sonoma, Santa Clara, San Mateo, Napa, San Joaquin, Los Angeles, Contra Costa, Sacramento, Alameda, Humboldt, Colusi, Santa Cruz, Santa Barbara, San Luis Obispo and Monterey, the following are fees of a notary public :" For drawing and cop;^ing every protest for the non-payment > Wood's Dig. art. 284T, 2849. « id. 2396, 2442. 618 Bancroft's califobnia lawyer. of a promissory note, or for the non-payment or non-acceptance of a bill of exchange, draft or check, one dollar and fifty cents. For drawing and serving every notice of non-payment of a prom- issory note, or of the non-payment or non-acceptance of a bill of exchange, order, draft or check, one dollar. For recording every protest, one dollar. For drawing an afl&davit, deposition, or other paper, for which provision is not herein named, for each folio, twenty cents. For taking an acknowledgment, or proof of a deed or other instrument, to include the seal and the writing of the certificate, for the first signature, oi^e dollar, and for each additional signature, twenty-five cents. For administering an oath or afiBrmation, twenty-five cents. For every certificate, to include writing the same, and the seal, one dollar. By act of Congress, Sept. 16th, 1850, it is enacted, that in all cases in which, under the laws of the United States, oaths or affirmations, or acknowledgments may now be taken or made before any justice or justices of the peace of any state or terri- tory, such oaths, affirmations, or acknowledgments may be here- after also taken or made by or before any notary public duly appointed in any state or territory, and, when certified under the hand and official seal of such notary, shall have the same force and effect as if taken or made by or before such justice or justices of the peace. And all laws and parts of laws for punishing per- jury, or subornation of perjury, committed in any such oaths or affirmations, when taken or made before any such justice of the peace, shall apply to any such offence committed in any oaths or affirmations which may be taken under this act before a notary public, or commissioner, as hereinafter named ; provided always, thsit on any trial for either of these offences, the seal and the signature of the notary shall not be deemed sufficient in themselves to establish the official character of such notary, but the same shall be shown by other and proper evidence. JUDICIAL DECISIONS. When the condition of the bond of a notary public is, that he will " well and truly perform and discharge the duties of a notary public, according to law," held, that the clause embraces every act which he is authorized by law to dd in virtue of his office.' 1 JO Oal. 289. NOTARY. 619 Where a notary public, in taking and certifying an acknowl- edgment to a mortgage, neglected to state in his certificate that the party acknowledging the same was known to him, or was identified by the testimony of a witness examined by him for that purpose, held-, that such notary was guilty of gross and culpable negligence, and is responsible to the party injured for the damages resulting from such negligence.' The purpose of a certificate of acknowledgment is, to entitle the deed to be recorded, and to be admitted in evidence, without further proof. Such certificate is utterly worthless for either purpose.' Such neglect on the part of the notary is not excused by the fact that the certificate (which- was a printed one with blanks) had been partially filled by the attorney of the grantee.' If the notary read the certificate before signing it, the omission must have been known to him ; if he did not read it, he is equally guilty of negligence.' A notary holds himself out to the world as a person competent to perform the business connected with the oflBce. By accepting the oflSce and entering upon the discharge of the duties, he con- tracts with those who employ him, that he will perform such duty with integrity, diligence and skill.' A party employing a notary is not obliged to determine upon the validity or legality of his actB.' When a mortgaged debt lias been lost by such negligence of the notary, the measure of damages is the amount of the debt and interest to be secured by the mortgage.' The governor of this state cannot remove from oflace a notary duly appointed, before his full term of ofiice has expired.' Where the law requires a joint and several bond, and the oflScer filed a bond which was in form joint, and not joint and several, held, that he and his sureties cannot complain that their obligation is less burdensome than the law required. The ab- sence of the statutory requirements does not invalidate the bond." DEMAND, PKOTEST AND NOTICE OF DISHONOR OF COMMERCIAL PAPER. The presentment and demand of commercial paper having days of grace, must be made within reasonable hours on the last 1 10 Cal. 289. ' 6 id 291. 620 banceoft's oalifoenia. lawyer. day of gi-ace. For the purpose of fixing the liability of endors- ers, the note or bill is payable on demand at any time within those hours.' What are reasonable hours, will depend upon the question, whether or not the bill or note is payable at a bank, or place where, by the established usage of trade, business transactions are limited to certain stated hours.' If there are such stated hours where the note or bill is payable, the presentment and demand must be made witiiin those hours. But if there are no stated hours, and no place of payment is designated in the note or bill, the presentment and demand may be made either at the place of business or residence of the maker or acceptor.' If at liis place of business, it must be within the usual busi- ness hours of the city or town ; if at his residence, then within those hours when the maker or acceptor may be presumed to be in a condition to attend to business.' Notice may be given to the endorser, or other parties entitled to notice, immediately after presentment to the maker or accept- or, 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 parties becomes fixed. If, however, the maker of the note chooses after this to seek out the holder, and pay his note, he can do so, and thus save himself from the liability to suit on the following day.'' For the purpose of fixing the liability of an endorser, the note is payable on detaand at any time, during reasonable hours, on the last day of grace ; but for the purpose of sustaining an action, the holder must wait until the following day, as the maker has the whole day to make payment.' A notarial certificate of presentment and demand, and of pro- test for non-payment of a promissory note, taken from the record of the notary, is admissible, and is prima facie evidence of the facts contained therein, in like manner as the original protest.' It is not necessary that the certificate should state the form of notice given ; any notice is suificient if it inform the party to whom it was given, either in express terms or by necessary im- 1 MoFaTland «. Pico, 8 Cal. 626, NOTARY. 621 plication, that the note has been duly presented at its maturity, and dishonored.' There is no necessity for protesting a promissory note ; a de- mand for payment, and upon neglect or refusal to pay, notice to the endorser, are all that is required. In all cases where, notice of non-acceptance or non-payment of a bill or note, or other negotiable instrument, may be given by mail, it will be sufiBcient if such notice be directed to the city or town where the person sought to be charged resided at the time of making, drawing, or endorsing the same, unless at the time of such making, drawing, or endorsing, he shall specify thereon the post-office to which he may require the notice to be addressed." 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 endorsed on the bill or note. 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. The certificate of the notary need not state by whom the ser- vice of notice and deposit in the post-office was made. In order to hold an endorser liable, a demand of payment on bills or notes must be made on thcv 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 acceptor, within business hours, or at the place of payment, where it is speciiied. If the party has absconded, no demand 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 endorsed note, payable on demand, must be presented within a reasonable time. Where a note, not payable at any particular place, is made and endorsed in California, and both the maker and endorser reside in a foreign country, it must be duly presented to the maker, if 1 McFarlnud v Pico, 8 Pal. 626. ' Wood's Dig. art. 194. 622 banceoft's California lawtee. the place of his residence he known, and notice given to the en- dorser, in order to charge the latter.' Notice may be dispensed with by express waiver, or by any act which will amount to a waiver.' 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 endorsers." If a note be endorsed after it is due, the endorser is entitled to demand and notice before he is liable to his endorser. ISTo time is expressly limited, as in case of notes or bills not due, for de- mand and notice to the endorser, but the law requires a demand to be made in a reasonable time, and notice of default seasonably given.' A notary or other officer authorized to take and certify acknowl- edgments, and the proof of the execution of deeds and other in- struments, cannot alter or ' correct his certificate, even to insert the statement of a fact inadvertently omitted, after some decisive act is done showing that he has exercised his authority over the subject. After taking the acknowledgment, and making and de- livering the return, his functions cease, and he is discharged from all further authority.* Tor further matter pertaining to the duties and office of notary see Acknowledgments, Bills and Notes, Conteacts, &c. OEEGOF. In Oregon, notaries are appointed, one or more for each county, by the governor, for two years, unless sooner removed by the governor, and have power to act, by virtue of their office, throughout the state." The notary must take the oath, give bond in five hundred dol- lars, and deposit an impression of his seal, together with his oath and bond, in the office of the secretary of state.' He has full power and authority to acknowledge deeds and ad- minister oaths, and to make protests, attestations, and other in- struments of publication.' It is his duty to protest bills, notes, and other instruments, and ' T Cal. 578. ^ Bours n. Zacliariah, October Term, 1858. s 6 id. 682. » Statutes 0. 4T4, 475. 3 Beebo v. Brooks, January Term, 1859. NOTAEY. 623 give, immediate notice to every malser, surety and endorser. He must serve the notice upon the person or persons protested against, provided he or they reside within two miles of the resi- dence of the notary ; if more than two miles the notice may be forwarded by mail or other safe conveyance.' He must keep a record of all such notices, and of the time and manner in which the same shall have been served ; and of the names of all the parties to whom the same were directed, and the description and amount of the instrument protested, which record shall at all times be competent evidence to prove such notices in any trial before any court in the state, whose proof of such notice may become requisite.' Upon vacating his oflSce all his records and papers must be de- posited with the clerk of the District Court of his county, and on his neglect, or that of his representative in case of his death, to so deposit his records and papers, for three months, the delin- quent is liable to a fine of from fifty to five hundred dollars. If any person knowingly destroy, deface or conceal any records or papers of a notary, he is liable to the like fine and damages to the party injured.' It is the duty of such clerk to safely keep such papers and records, and he has full authority to give attested copies of the same while in his possession.' "WASHINGTON. There shall be as many notaries public biennially appointed by the governor for the several pounties as he shall deem expedient, and they shall be severally commissioned and engaged according to law." Notaries public are hereby authorized within their respective counties to act, transact, do and furnish all matters and things relating to protests, and protesting bills of exchange and promis- sory notes, and all other matters within their office required by law ; to take depositions as prescribed by law, and acknowledg- ments of deeds and other instruments, and to administer oaths." On the death, resignation, or removal from office of any notary public, his records, together with all his official papers, shall be > statutes O^ili, 475. » Statutes Wash. T. p. 444. 624 BANCEOFT'S CALIFORNIA LAWYEK. deposited in the oflSce of the clerk of the District Court, for the county in which the said notary public resided.' If any notary public on his resignation or removal from office shall, for the space of three months, neglect to deposit his records and official papers in the clerk's office, he shall forfeit a sum not exceeding five hundred dollars.' Every notary public, before he enters upon the duties of his office, shall provide an official seal, and deposit an impression of the same (together with said oath and bond) in the office of the secretary of the territory.' FOEMS. Nota/ry's Bond. Know all men by these presents, that we, E. H. Sinton, as principal, and C. K. Garrison, Austin E. Smith and George H. Hossefross, as sureties, all of the city of San Francisco, state of California, the said Sinton in the sum of five thousand dollars, and the said sureties in the following named sums, viz. : C. K. Garrison for five thousand dollars, and A. E. Smith and George H. Hossefross for the sum of twenty-five hundred dollars eacli, making, in the aggregate, the whole penal sum of five thousand dollars, lawful money of the United States, to be paid to the said state of California, for which payment well and truly to be made, we bind ourselves, our heirs and administrators, firmly, by these presents, sealed with our seals, and dated this 26th day of March, A. D. 1859. The condition of the above obligation is such that, whereas, John B. Weller, governor of California, has commissioned the above-bounden E. II. Sinton a notary public in and for the city and county of San Francisco, by commission dated the 23d day of March, A. D. 1859 : ]S"ow, therefore, if the said B. H. Sinton shall well and truly perform the duties of a notary public, as aforesaid, during his incumbeucj' of said office under and by virtue of the commission aforesaid, according to law, and shall faithfully discharge all duties which may be required of him by any law enacted subsequently to the execution of this bond, then this obligation shall become void ; otherwise, to remain in full force and effect. Witness our hands and seals, this 26th day of March, 1869. (Signed) E. H. Sinton. [l. s.] C. K. Gaeeison. [l. s.] A. E. Smith. [l. s.] Geo. H. Hossefross. [l. s.] 1 statutes Wnsh. T. p. 444. NOTAET. 625 Justification, v/pon aiove Bond. State of California, ] City and County of San Francisco, j ' C. K. Garrison, Austin E. Smith and George II. Hossefross, sureties in the foregoing bond, being separately and duly sworn, each says for himself, that he is a resident and freeholder within the state and county aforesaid, and that he is worth double the sum for which he becomes liable as surety on the foregoing bond, over and above all 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) C. K. Gaebison. Austin E. Smith. Subscribed to and sworn before me, ) Geo. H. Hossefeoss. this 26th day of March, 1859. J Geo. F. Knox, Notary Public. Endorsement of Cowity Clerk on the same Bond. [Endorsed] Filed March 26th, 1859. William Dube, County Clerk. By D. P. Belknap, Deputy. Eecorded March 26th, 1859, in Kecord of Official Bonds, liber 1, page 123. William Dfee, County Clerk. By D. P. Belknap, Deputy. General Form of Notmy's Certificate. United States of America, \ State of California, > ss : City and County of San Francisco, ) I, Henry A. Cobb, a notary public in and for the city and county, of San Francisco, state aforesaid, duly commissioned, sworn and qualified, dwelling in the city of San Francisco, do hereby certify that {here state the matter certified]. In witness whereof I have hereto set my hand and af- [l. S.J fixed my notarial seal, this day of j A. D. 1869. Henet a. Cobb, Notary Public. Protest for Non-Acceptance: United States of America, 1 State of California, > ss : City and County of San Francisco, ) On the _ day of , 1859, I, E. P. Peckham, a notary public in and iov said city and county, duly commissioned and sworn, dwelling in the city of San Francisco, at the request 40 626 bajstceoft's califoenia lawtee. of A. B. [insert nanme of the holder^ or endorser^ or endorsee'], did present the original bill of exchange, hereunto annexed, to E. F., the drawee therein named, for acceptance, who refused to accept the same : whereupon I, the said notary, at the request afore- said, did protest, and by these presents do publicly and solemnly protest, as well against the drawee [add, and endorsers, ifneoes- sary] of said bill, as against all others whom it doth concern, for exchange, re-exchange, and all costs, damages, and interest, al- ready incurred, and to be hereafter incurred, for want of accept- ance of the same. Thus done and protested, in the city and county of [l. s.J San Francisco, the day and year first above written. E. P. Peokham, N^otary Public. Certificate of Approval of Cov/nty Judge, to he Endorsed wpon the Bond. City and County of San Francisco, ss : I, M. C. Blake, county Judge of said city and county, do hereby approve of the sufficiency of the within bond, and of the sureties thereto; and I hereby certify that R. H. Sinton within named, this day took and subscribed the oath of office as notary public, endorsed upon his commission before me, in words and figures following, viz. : State of California, ) City and County of San Francisco, j ^^' I, E. H. Sinton, of the city and county aforesaid, do solemnly swear, that I will support the constitution of the United States, and of the state of California, and that I will faithfully discharge the duties of the office of notary public, in and for said city and county, according to the best of my ability. (Signed) E. H. Sinton. Sworn and subscribed before me, this ) 26th day of March, A. JD. 1849. j (Signed) M. C. Blake, County Judge. Given under my hand, at the city-hall in said city and county of San Francisco, this 26th day of March, A. D. 1859. (Signed) M. C. Blake, County Judge, rampm Protest of Bill or Note for JSfon-Fayment, with Certificate of Service of Not%Ge. United States of America, ) State of California, > ss : City and County of San Francisco, ) _ On the day of , 1859, at the request of A. B. \vrhsert the name of the holder, endorser, endorsee, or hadker'], I, NOTARY. 627 F. J. Thibault, a notary public, duly commissioned and eworn, dwelling in the city of San Fraticisoo, in the state aforesaid, did present the original bill of exchange [or, note], hereunto an- nexed, to E. F., the acceptor [or^ maker] of the said bill [or, note], and demanded payment, who refused to pay the same : [or, did present the original note [or, check], hereunto annexed, at the banking-house of B.Davidson, where the same is made payable, [or, at the place of business of E. F., the acceptor [or, maker] of the said bill [or, note], he being absent therefrom, [or, at the dwelling house of E. F., &e., his place of business be- ing closed, and he being absent from his said dwelling-house], and demanded payment of the same, which was refused] : [or, did make diligent inquiry for the said E. F., and his place of business, or dwelling-house, in the said city of , where the said bill [or, note] was made payable [or, purported to be be drawn], but was unable to find the said E. F., or his place of business, or dwelling-house, in said city, in order to demand pay- ment of the said bill [or, note] : Whereupon I, the said notary public, at the request aforesaid, did protest, and by these presents do solemnly and publicly protest, as well against the drawer and endorsers of the said bill [or, note, or, check], as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages and interest, already incurred, and to be hereafter incurred, for want of payment of the same. Thus done and protested in the city and county aforesaid. And I do hereby certify, that on the day of , 1859, written notice of such demand, non-payment and protest, of the above-mentioned bill of exchange [or, note] was served by me upon C. D., the drawer of said bill, [or, J. K., L. M. and O. P., the several endorsers of the said note] personally : [or, by letters respectively addressed to them at their reputed places of residence, and the post-offices nearest thereto, and deposited in the post-office in the city and county of San Francisco. Witness my hand and notarial seal, this day [l. s.] of ,1859. F. J. Thibault, Notary Public. Notice of Protest for Non-Payment. Sir : Take notice, that your bill for $5,000, at thirty days from sight, dated May 1, 1869, drawn on and accepted by Henry Jones, has this day been, protested for non-payment : [or, that the bill of A. B. for $1,000, at thirty days from sight, dated May 1, 1859, endorsed by you [w, by B., E., F., G., &c., &c.], and drawn on and accepted by 0. D., has, &c., as above / or, that the note of Jos. Smith, for $2,000, dated May 1, 1859, payable at the banking-house of Wells, Fargo and Co., sixty days after date, 628 Bancroft's califoenia lawyee. and endorsed by E. F. and G. H., has, &c., as above]. Dated Aubum, July 3, 1859. Your obt. servant, To Chas. Cox. P. W. Thomas, Notary Public. JVotice of Protest for Non- Acceptance. Sir : Take notice, tbat your bill for $5,000, at thirty days from sight, dated May 1, 1859, drawn on Henry Jones, has this day been protested for non-acceptance. Dated Auburn, Placer county, May 5, 1859. Yours, «fcc. P. W. Thomas, Notary Public. To Chas. Cox. Certificate of Nota/ry Protest. ^ United States of America, ) State of California, >• ss : City and County of San Francisco, ) On the tenth day of January, A. D. 1859, before me, J. C. Bunham, a notary public, duly commissioned for the city and county aforesaid, personally appeared Paul Sampson, master of the bark " Unseen," of Stoneybrook, who sailed from New York, in and with said bark " Unseen," on the seventh day of October, A. D. 1858, with a cargo of assorted articles, bound for the port of Yictoria, and arrived at this port of San Francisco on the ninth day of January, 1859, 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 city and county of San Francisco, the day and year first above written. C. J. Bunham, Notary Public. Ma/rvne Protest. United States of America, 1 State of California, >• ss : City and County of San Francisco, ) To all people to whom these presents shall come or may concern, I, W. W . Wiggins, a public notary, in and for the city and county aforesaid, by letters patent, under the great seal of the said state, duly commissioned and sworn, dwelling in the city of San Francisco, send greeting : Know ye, that on the fifth day of May, in the year of our Lord one thousand eight hundred and fifty-nine, before me ap- peared William Folger, master of the ship called the Neptune, and noted in due form of law with me, the said W. W. Wiggins, notary, his protest, for the uses and purposes hereinafter men- tioned ; and now at this day, to wit, the day of the date hereof. NOTARY, 629 before me, the Baid notary, at the city and county aforesaid, again comes the said William Folger, and requires ine to extend his protest, and together with the said William Folger, also come Thomas W. Denison and James H. Eogers, seamen, belonging to the aforesaid ship, all of whom being by me duly sworn on the holy evangelists of the Almighty God, voluntarily, freely, and solemnly do declare, and depose as follows, that is to say, that he the said William Folger, set sail and departed in and with the said ship Ilfeptune as master thereof, from Hong Kong, China, having on board the said ship a cargo of silks and teas, and bound for the port of 'New York, that the said ship was then stout, stanch and strong; had her cargo well and sufficiently stowed and secured ; was well masted, manned, tackled, victual- led, apparelled, 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 ninth day of January, 1859, in latitude, &e. [here set forth jparticuLarl/y (dl the circum^ stances of the loss of the ship] and the said William Folger, further 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 cir- cumstances herein before stated, and cannot nor ought not to be attributed to any insufficiency of the said ship, or default 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 be of full force and value, as of right shall appertain. And thereupon the said William Folger, doth protest, and I, the said notary, at his special instance and re- quest, 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, here- after shall appear to have suffered or sustained damage or injury, for all losses, costs, charges, expenses, damages, and injury which the said William Folger, or the owner or owners of the said ship, or the owners, freighters, or shippers of her said cargo, or any other persdn 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 saidTship 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 William Sherman, his officers or crew. Thus done and protested, in the city of San Francisco, this fifth day of May, in the year of our Lord one thousand eight hundred and iifty-nine. 630 bancboft's califoenia lawyee. 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. W. W. Wiggins, [l. s.] Notary Public. FOItMS FOE ASSEETDSTG PEE-EMFnON CLAIMS, (rBOM wood's digest — APPENDIX.) Declaratory Statement for cases where the Land has not been ofiered at Public Sale. I, A. B., of , being the head of a family,[wwidow, or sinffle man over the age of twenty-one years, as the case i/nay he, a citizen of the United States, or, having tiled my declaration to become a citizen, as required by the naturalization laws, as the case may be], have, on the day of , A. D. 185 , settled and improved the quarter of section number , in township, number , of range numbef , in the district of lands subject to sale at the land office at , and containing acres, which land has not yet been offered at public sale atid 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 3, 1853. Given under my hand, this day of , A. D. 185 . A, B. Signed in the presence of C. D. Declaratory Statement for cases where the Land shall hawe been ojfered at Public Sale. I, A. B., of , being the head of a family, [ 632 Bancroft's califoenia lawyee. Certificate ofBegist&r. 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 laiid office in , his declaratory statement, wherem he claims to have settled and improved the following described fovernment lands, to wit : [hrn'e describe the land,~\ township num- er , range number , containing acres, which land has not yet been offered at public sale, and thus ren- dered 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. 185 . A. B., Register. SCH00L-LANI> WAKEANTS. Affidavit to he Subsanbed hy Parties Looaimq Land under School- Land Wa/rrants. Land Office, California. I, , of county, California, being duly sworn, do depose and say, that I did, on or about the day of ,185 , personally examine the following-described lands, viz. : [here describe tlie 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 swoni to before me,, this day of , 185 . A. B., Eegister. Mfrm of Location to he endorsed on Warrant. United States Land Office, State of I, , of county, having taken and subscribed the necessary affidavit, to the effect, that there is no settlement on or valid claim to the land 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 hundred thousand acres of land, made to the state of California by the eighth section of the act of Congress of September 4, 1841, NOTARY. 633 entitled " An Act to appropriate the Proceeds of the Sales of the Public Lands, and to grant Pre-emption Eights." Given under my hand and seal, this day of , A. D. 18 . Patent for School Lcmds. State of California, ) Executive Department, j Knov? all men by these presents, whereas, A. B. is the holder of school-land warrant number , issued under and by virtue of the act of the state of California, passed on the third day of May, one thousand eight hundred and fifty-two, 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 A. B. hath located the said warrant oi* war- rants [as the case ma/y he] upon the following-described lands, and accepts the same in full satisfaction for said warrant, to wit: [here insert the description of land as contained in register's cer- tificate^ Now, therefore, I, C. D., governor of the state of Cali- fornia, by virtue of authority in me vested, have given, granted, bargained and sold, and do by these presents give, grantj bargain and sell, unto the said A. B., all the above-described lands, to have and to hold unto him, the said A. B., 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 . \8eal of /Sifafo.] A. B., Governor. Attest : 0. D., Secretary of State. ' BOUNTY LAJTO WAEEANTS. FOEMS. As to Locations. There are three modes by which these locations may be made : 1. By the warrantee, or other legal owner of the warrant, in person. 2. By the warrantee, or other legal owner of the warrant, through the agency of this office. 3. By an agent or attorney of either of said parties. If the first or second mode is adopted, the application must be made in writing, specifying the tract, land district, or section of country in which the location is desired, and be accompanied by an affidavit according to form No. 1, hereto appended. Where the third mode is adopted, a power of attorney must be produced, executed by the owner of the warrant in the presence of a witness, according to form No. 2 ; which power of attorney 634 Bancroft's California lawyer. must be acknowledged, or proved, as the case may be, before some oflGicer authorized to take the acknowledgment of deeds, ac- cording to form No. 3 or No. 4. In aD. cases the patents will be transmitted to the , land oflSce where the location is made, unless special instructions to the con- trary be given ; in which last case the duplicate certificate of lo- cation must be previously transmitted to this office ; and in no case will the patent be delivered, either by this or the local land office, without the surrender of this duplicate certificate of loca- tion. As to Assignments and Powers of Attorney. Assignment No. 5 and the proper acknowledgment must be endorsed upon the warrant, and No. 6 and the proper acknowl- edgment upon the certificate of location, and must be attested by two witnesses, acknowledged before a register or receiver of a land office, a judge of a court of record, a clerk thereof when au- thorized to take acknowledgments, a justice of the peace, notary public, or a commissioner of deeds resident in the state frorii which he derives his appointment ; and in every instance where the acknowledgment is made before either of the officers above specified, except the register or receiver of a land office, or the clerk of a court of record, it must be accompanied by a certificate, under seal of the proper authority, of the bffieial character of the person before whom the acknowledgment was made, and also of the genuineness of his signature, according to form No. 8. Where warrants are disposed of under powers of attorney form No. 7 is prescribed for that purpose, which, however, must invar riably be endorsed on the warrant, or they will not be recognized. The acknowledgment of this power of attorney must be taken and certified in the same manner as the acknowledgments of the sales of the warrant or certificate of location hereinbefore de- scribed, and must also be endorsed on the warrant. Form No. 1. For the Location of the Wa/rrant. State of , County of Before me a justice of the peace, \or other officer authorized to tahe affidamits] personally appeared \here insert the name of the warrantee] who, being duly sworn, deposes and says that he is the identical [here insert the name of the warram,iee\ to whom warrant No. for acres under the act of March third, eighteen hundred and fifty-five, was issued on the day of ,18 , and who now applies to locate the same. \AffiAxn6s signaifwre.'] Sworn to and subscribed before me this day of , 18 . \_0 fleer's signature.'] NOTARY. 635 J'ORM No. 2. Know all men by these presents, that I, [here vnsert the name of warrantee] of the county- of and state of , do hereby constitute and appoint , of , my true and lawful attorney, for me and in my name, to locate land warrant No. for acres of land, which issued under the act of March third, eighteen hundred and fifty-five. [Powers of subsUUttion rna/y he mserted, if desi/red.'] \ Wa/rrantee^s signature.'] Signed in presence of Form No. 3. State of , County of On this day of , in the year , person- ally appeared \_7iere insert the name of the warrantee] and ac- knowledged the within power of attorney to be his act and deed ; and I certify that I well know the said [hffre insert the nam^ of warrantee], and that he is the same person who is described in the within power, and who executed the same. [Offieer's signatv/re.] Form No. 4. State of , County of I hereby certify, that on this day of , in the year , personally came before me [here insert the name *of witness], and [here insert the name of wa/rramtee], and the said [here insert the name of witness] being well known to me, was duly sworn by me, and on his oath declared and said that he well knew the said [here insert the name of wa/)'ra/ntee], and that he was the same person described in and who executed the within power of attorney, and his testimony was to mfe satisfac- tory evidence of that fact ; and the said [here insert the name of warrantee] thereupon acknowledged the said power to be his act and deed. [Ojftoer^s signature.] Form No. 5. ^ Fhr the Assignment of the Warrant. For value received, I, A. B., to whom the within warrant No. was issued [or, assigned, as the case may he], do hereby?^ sell and assign unto 0. D., of , and to his heirs and assigns forever, the said warrant, and authorize him to locate the same and receive a patent therefor. A. B. [l. s.] Witness my hand and seal, this day of , 18 . Attest, E. F., G. H. 636 bancsoft's California lawyer. Of Acknowledgnwiit, where the Vendor is hnown to the Officer takmg the same. State of , Ootmty of On this day of , in the year , before me personally came [here insert the name of the warrantee or as- signor], to me well known, and acknowledged the foregoing assignment to be his act and deed ; and I certify that the said [jfiere insert the name of warrantee or assignor] is the identical person to whom the within warrant issued [or, was assigned, as the case may he], and who executed the foregoing assignment thereof. [Officer's signature.] Of Acknowledgment wherre the Vendor is not hnown to the Officer, a/nd his Identity has to he proved. State of , County of On this day of , in the year , before me per- sonally came [here insert the na/me of the warrantee or assignor] and [here insert the namie and residence of a witness] and the said [here insert the name of the witness] being well known to me as a credible and disinterested person, was duly sworn by me, and on his oath declared and said that he well knew the said [here insert the na/me of the warrantee or assignor], and that he is the same person to whom the within warrant issued [or, was assigned], and who executed the foregoing assignment ; and his testimony being satisfactory evidence to me of that fact, the said [here insert the name of the warrantee or assignor] thereupon, acknowledged the said assignment to be his act and deed. [Officer'' s signature.] Form JSTo 6. For the Assignment of the location. For value received, I, A. B., to whom the within certificate of location was issued, do hereby sell and assign unto 0. D., and to his heirs and assigns forever, the said certificate of location, and the warrant and land therein described, and authorize him to receive the patent therefor. A. B. [l. s.] "Witness my hand and seal, this day of , 18 . Attest, E. F., G. H. — -.^ Of Acknowledgment, where the Vendor is personally known to the Officer taking the samie. State of , County of On this day of , in the year , before me personally came [here insert the name of the p&rson to whom the certificate of location issued], to me well known, and acknowl- NOTARY. 637 edged the foregoing assignment to be his act and deed ; and I certify that the said \Tiere msert the name of the person to whom the certMoate of location issued^ is the identical person to whom the within certificate of location issued, and who executed the foregoing assignment thereof. [Officer's signature.] Of Acknowledgment, where the Vendor is not personally hnown to the Officer, and where his Identic has to ie proved. State of , County of ' . On this day of , in the year , before me personally came [here insert the name of the person to whom the certificate of location issued] and [here insert the name and residence of a witness], and the said [here insert the name of the witness], being well known to me as a credible and disinterested person, was duly sworn by me, and on his oath declared and said that he well knows the said [here insert the name of the person to whom the certificate of location issued], and that he is the same person to whom the within certificate of location issued, and who executed the foregoing assignment ; and his testimony being satisfactory evidence to me ot that fact, the said [here insert the name of the person to whom the certificate of locaUon issued] thereupon acknowledged the said assignment to be his act and deed. Form No. 7. Of a Power of Attorney to sell a Warrant. Know all men by these presents, that I, [here insert the name of wa/rramtee], of the county of and state of , do hereby constitute and appoint , of , my true and lawful attorney, for me and in my name, to sell and convey the within land warrant, No. , for acres of land, which issued under the act of March 3, 1855. Signed in presence of [ Warrantee's signalmre.] The forms of acknowledgment of a power of attorney and certification to be like those above described for the sale of the warrant. Form No. 8. Of the G&rtificate of the Clerk of the Court, Judge, or other per- son who is authmized to certify under seal, to the official char- acter of the Offilcer who takes AcktKfwledgments or Assignments. State of , County of I, A. B. Clerk of the court of , in the county and state aforesaid, hereby certify, that John Jones, whose genuine signa- ture is affixed to the above acknowledgment, was, at the time of 638 Bancroft's California lawyer. signing the same, a justice of the peace [notary public of other officer], duly authorized by law to take such acknowledgment, and that full faith and credit are due to all his official acts as such. Given under my hand and the seal of said court, this day of ,18 ; [l. S.J A. B., Clerk of the Court of Where the acknowledgment is taken by a clerk of a court or judge using a seal, no certificate of his official character is required. • Necessa/ry Evidence for procv/ring MilMary Boimty Land Wa/rrcmU. State of , County of , ss : On this day of , A. D. one thousand eight himdred and , personally appeared before me, , a notary public, within and for the county aforesaid, , aged years, a resident of , in the state of , who being duly sworn according to law, declared that he is the identical , who was a commanded by , at , on or about the day of , A. D. , for the term of , and continued in actual service in said war for the term of fourteen days, and was honorably discharged at , on the day of A. D. He makes this declaration for the purpose of obtaining the bounty land to which he may be entitled under the act approved March 3, 1845. He also declares that he has "We, , residents of , in the state of , upon our oaths, declare that the foregoing declaration was signed and acknowledged by , in our presence, and that we believe, from the appearance and statements of the applicant, that he is the identical person he represents himself to be. Witnesses, A. B., C. D. The foregoing declaration and affidavits were sworn to and subscribed before me on the day and year above written, and I certify that I know the affiants to be credible persons, that the claimant is the person he represents himself to be, and that I have no interest in this claim. Witness my hand and official seal. Know all men by these presents, that I, aforesaid, do hereby constitute and appoint to be my true and lawful attorney, for me and in my name to demand and receive from the secretary of war of the United States, a warrant for the quan- tity of land due me as aforesaid ; and my said attorney is hereby fully authorized and empowered to constitute and appoint one or NOTARY. 639 more substitutes or attorneys under him for the special purposes above expressed. (Signed) Attest : Personally appeared the above-named , subscriber to the foregoing declaration, and made oath to the same, and in my presence acknowledged the power of attorney thereto subjoined to be free act a,nd deed, for the purposes therein mentioned. Witness ray hand and official seal. 0. D., Notary Public. Attest : In testimony that the above written was, a notary public autliorized to administer oaths and take acknowledg- ments, &c., in the state of , at the above date, and tliat his name there subscribed appears to me to be his usual signa- ture, I have hereunto affixed the county seal, and subscribed my name and quality, at , this day of , 18 . [L. S.] EXTRA PAT. Form for obtavning the Extra, Pay of Officers, Seamen and Ma/rines, serving in tjie United States Namy on the facifie Coast. State of , County of I, , do solemnly swear that I am the identical who served by that name as a on board the United States ship , in the Pacific, on the coast of California and Mexico, from to , and whose name is in the cer- tificate of discharge, dated , signed by , which is herewith presented and surrendered I also solemnly swear that I am now years of age ; am a native of ; that I enlisted at , on or about the , into the grade of ; that my ship's number was ; that my number on said ship was , and that I per- formed my duty on board of said I also solemnly swear that I have not made any previous or other application for extra pay due me , and I now make this application for extra pay that may be due me , and further, that I am now a resident of , and am employed as Sworn to and subscribed before me, a notary public in and for the state and county aforesaid, this day of A. D. 18 . And I hereby certify, that to my knowledge the state- ment of deponent in regard to his residence and employment, is true, my knowledge of deponent being derived from And I also certify that the abovernamed deponent appears to be about the age stated by him ; that he is about feet inches in hight ; of complexion, hair, and eyes. 640 banosoft's califoenia lawyer. State of , County of , On this, the day of ,18 , before me, a notary public in and for the state and county aforesaid, duly qualified to administer oaths, personally appeared , , re- siding at , and employed as , who are known to me as creditable witnesses, residing and employed asstated, and who being duly sworn, depose and say, that they reside and are employed as aforesaid; that they have a personal knowledge of who signed the foregoing in their presence ; and that he is the identical who served on board the United States ship as a , from to , and who is named in the discharge dated , signed by , which he affixed in their presence to this application, &c., of identity ; that their knowledge of him was obtained And they further depose that they have no interest in the claim of the said for extra pay. Sworn to and subscribed, the day and year above written. Given under my hand and seal of ofiBce. , Notary Public. State of , County of , ss : Know all men by these presents, that I, , being enti- tled to extra pay under the act of Congress, entitled " An Act making Appropriation for the I^aval Service for the year ending June 30, 18 ," approved ,18 , amounting to dollars and cents, as a from ,18 , to ,18 , on board the United States ship , which served in the Pacific Ocean, on the coast of California and Mexico, since May 13, 1846, for and in consideration of the sum of dollars and cents, to me in hand paid, do hereby appoint my attorney, for me and in my name to demand and receive from the navy agent, at Washington, D. C, or other proper officer of the United States, the amount of extra pay hereinbefore recited, and to receipt therefor, hereby confirming all that my said attorney may lawfully do in the premises, as fully as if done by myself — with full power of substitution and revocation. Signed and sealed in the presence of the undersigned, this day of , A. D. 18 . PAETNERSHIP. 641 OHAPTEE XXXII. PAETSTEESHIP. The relation of partnership is one of the most important that occurs in business life. " It is a connection, than which none more close can exist among men. It places in the power of him with whom you form it, your pi'operty and your reputation. His virtues and his skill, in unison with your own, may raise you to the highest pinnacle of prosperity. His folly, or his crimes, may strip you of every flourishing branch and leaf, and leave you, a naked, withered and dishonored trunk. It should be formed, therefore, with little less care than the marriage tie, to which it has been, by a late chancellor, not inaptly compared.'" Its introduction in this work, where each title is so briefly con- sidered, can hardly prove of much practical benefit, and with but a remark or two upon its principal features, and the intro- duction of the statute regulating limited partnerships, the reader is referred for guidance to the excellent treatises of Story, Gow, and others, upon the law of partnership, and such professional advice as may be requisite. Partnership has been defined to be the result of a contract whereby two or more persons agree to combine property or labor for the purpose of a common iindertaking, and the acquisition of a common profit. There may be a partnership in one transac- tion as well as in a continuing business, and between persons out of trade as well as persons in trade.' The community of profit is the criterion whereby to ascertain whether a contract be one of partnership ; for one partner may stipulate to be free from loss, and the stipulation will hold good, as between himself and his companions, though it will not di- minish his liability to strangers." To establish a partnership, other than the statutory limited ; ' Law Journal, Tol. 1. ' Smith's Merc. Law, 43. 41 642 Bancroft's California lawyer. partnership, no particular mode of proceeding is necessary. It may be formed by a verbal agreement, or by written contract; and, except in some especial cases, where real estate is involved, it is not necessary that the agreement should be under seal. If the parties agree to unite their means and skill in the common undertaking, and proceed to act upon such agreement, their lia- bility and authority as partners begin, without other formality. If no particular terms are mentioned and established, the law presumes that they are equal partners, in every respect, and that the interests, advantages, benefits, profits, losses and labors are equal. A secret partner is one who is actually a partner by participa- tion of profit, but is not avowed or known to be such ; and a dormant partner is one who takes no share in the conduct or control of the business of the firm. Both of these are liable to creditors, even if the creditors did not know them to be members of the firm, on the ground of their interest and participation in the profits, which constitute, with the property of the firm, the funds to which creditors may look for payment. A nominal partner is one who holds himself out to the world as such, but is not so in fact. He is liable to creditors of the firm, on the ground that he justifies them in trusting the firm on his credit, and in- deed, invites them to do so, by declaring himself to be a partner. The liability of each member of the firm for its just debts created after he became a partner, extends not only to his in- terest in the property of the partnership, but also to his indi- vidual property. And such liability may be created not only by the joint act of the firm, but by that of either member. A partnership may be dissolved at the will of any member, unless 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. On the death of one of the parties the firm is dissolved, and the surviving partners have the right to close out the interest of the deceased member, and they are held accountable to the rep- resentatives of the deceased for the proceeds.' I Woo'rs Dig. art. 2817; Statutes 0. p. 861 ; Statutes Wash. Ter. 2T4. ' PAETNEBSHIP. ' 643 A partnership may also be dissolved, by the transfer by one or more partners, of his interest, or by decree of a competent court. Until a dissolution of the partnership, one member cannot bring an action at law against the others. He may, however, file a bill in equity, praying a dissolution of the partnership, and that an accounting be had, and his just rights and claims be secured to him. After the dissolution of a partnership, neither party can make any disposition of the partnership effects, inconsistent with the primary duty of paying the partnership debts ; though either party may receive payment of debts due the firm, and apply the amount received on the partnership liabilities. In case of the failure of a firm, if an assignment become necessary, such assignment can only be made under the mode laid down by our state law ^' for the relief of insolvent debtors, and the protection of creditors," which is treated of in the chap- ter entitled Insolvency. Where a firm is sued, the action may describe them by the common firm name, and the process may be served on otie or more of the associates, but the judgment in such case shall bind only the joint property of the associates.' LnOTED PAETNEESHIP. ACT OF APRIL 4, 1850, TO AUTHOEIZE THE FOKMATIOIT OP LIMITED PARTNERSHIPS. Section 1. Limited partnerships for the transaction of mercan- tile, mechanical, mining or manufacturing business within this state, may be formed by two or more persons, upon the terms, and subject to the conditions and liabilities prescribed in this act ; but nothing contained in this act shall authorize such part- nerships for the purpose of banking or insurance. Sec. 2. The said partnerships may consist of one or more per- sons, who shall be called general partners, who shall be jointly and severally responsible as general partners are by law, and of one or more persons who shall contribute to the common stock a specific sum in actual cash payment as capital, who shall be called special partners, and who shall not be personally liable for any debts of the partnership, except in the cases hereinafter mentioned. — [Amended May 3, 1854.] 1 Wood's Dig. art. 806. 644 BANOEOFT'S OALIFOEliriA LAWTEE. Seo. 3. The persons forming sneli partnerships shall make and severally sign a certificate, which shall contain the name or firm nnder which said partnership is to be conducted, the names and respective places of residence of all the general and special part- ners, distinguishing who are general, and who are special part- ners, the amount of capital which each special partner has con- tributed to the common stock, the general nature of the business to be transacted, and the time when the partnership is to com- mence and when it is to terminate. Seo. 4. No such partnership shall be deemed to have been formed, until a certificate, made as aforesaid, shall be acknowl- edged by all the partners, before some officer authorized to take acknowledgment of deeds, and recorded in the office of the re- corder 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 shall have places of business situated in dififerent counties, a copy of the certificate, certified by the recorder in whose office it shall be re- corded, shall be filed and recorded in like manner, in the office of the recorder in every such county. If any false statement shall be made in any such certificate, all the persons interested in the partnership shall be liable as general partners for all the en- gagements thereof; Sec. 5. The partners shall, for three successive weeks imme- diately after such registry, publish a copy of the certificate above mentioned, in a newspaper printed in the county where their principal place of business is situated, and if no such paper be there printed, then in a newspaper in the state nearest thereto ; and in case such publication be not so made, the partnership shall be deemed general. Sec. 6. Upon every renewal or continuation of a limited part- nership, beyond the time originally agreed upon for its duration, a certificate thereof shall be made, acknowledged, recorded and published, in like manner as is provided in this act for the origi- nal formation of limited partnerships ; and every such partner- ship which shall not be renewed in conformity with the pro- visions of this section, shall be deemed a general partner- ship. Seo. 7. The business of the partnership shall be conducted PAETNEESHIP. 645 under a firm, in which the names of the general partners only shall be inserted, and the general partners only shall transact tlic hiisiness. If the name of any special partner shall be used in such firm, with his consent or privity, or if he shall personally make any contract respecting the concerns of the partnership, with any persoi^except the general partners, he shall be deemed and treated as a general partner. Sec. 8. During the continuance of any partnership under the provisions of this act, no part of the capital stock thereof shall be withdrawn, nor any division of interests or profits be made so as to reduce such capital stock below the sum stated in the cer- tificate before mentioned. If at any time during the continuance, or at the termination of the partnership, the property or assets shall not be sufficient to pay the partnership debts, the special partners shall severally be held responsible for all sums by them in any way received, withdrawn, or divided, with interest thereon, from the time when they were so withdrawn respectively. Sec. 11. All suits respecting the business of such partnership shall be prosecuted by and against the genei-al partners only, ex- cept in those cases in which provision is made in this act, that tlie special partners shall be deemed general partners, and that special partnerships shall be deemed general partnerships, in which cases all the partners deemed general partners may join or be joined in such suits, and excepting also those cases where special partners shall be held severally responsible on account of any sum by them received or withdrawn from the common stock, as before provided. Sec. 12. No dissolution of a limited partnership shall take place, except by operation of law, before the time specified in the certificate before mentioned, unless a notice of such dissolu- tion shall be recorded in the recorder's office in which the original certificate, or the certificate of renewal or continuation of the partnership, was recorded, and unless such notice shall also be published for three successive weeks in some newspaper printed in the county where the certificates of the formation of such part- nerships were published, according to the provisions of this act ; and if no newspaper shall, at the time of such dissolution, be printed in such county, then the notice of such dissolution shall be published in some newspaper in this state nearest thereto. 646 BANCROFT'S eAMFOENlA LAWYER. Sec. 13. In all cases not otherwise provided for in this act, the members of limited partnerships shall be subject to all the liabili- ties, and entitled to all the rights of general partners. No statute in regard to limited partnership exists in Oregon and Washington. JUDICIAL DECISIONS. Where a private creditor has execution against one of several copartners, his interest in the property of the firm may be seized and sold by the officer, and the purchaser at the sale will become a tenant in common with the other partner or partners : but the right which such purchaser may acquire will be subject to the adjustment of the partnership concerns, and the debts of the firm must be first satisfied out of the partnership effects.' To affect the rights of one dealing with a partnership firm, actual notice of its dissolution must be brought home to him.' Where a foreign miner, subject to a license, was employed by one of a partnership to work in the mines which were partnership property, the employer is Liable for the license tax, and not the partnership.' One partner cannot bind his copartner by a submission of partnership matters to arbitration ; but such submission is good against the partner agreeing to it.* A partnership may be dissolved by the wrongful acts of one of the parties.' When a partner makes a note in the name of the partnership, it will render all the partners liable to a honafids holder, although it has no relation to the partnership business, and the other part- ners were wholly ignorant of the transaction, and were even intentionally defrauded by their partner." Where a mining company, not incorporate, forms a trading partnership, with an individual under a firm name, each member of the mining company is a member of the firm.' Where one of the mining company acted as salesman of the firm, it cannot be pretended that he was a dormant partner, whose acts would not bind the firm.' ' Jones « Thompson, Janaary Term, 1859. ' T id. 146. 5 8 Col. 348. • 4 id. 22. ' id. 403. ' 6 id. 163. * 5 id. 84S. - ' PABTNEESHIP. 647 The filing of a bill by one partner against his copartners for a dis- solution and account, and praying for an injunction and receiver, and an appointment of a receiver by the court, does not pre- vent a creditor from proceeding by attachment and gaining a priority over other creditors, until a final decree of dissolution and order of distribution.' It is only in cases of insolvency that the equitable rule for a fro rata distribution will apply, and then as of necessity. If the firm be solvent, a creditor whose claim is due cannot be placed on a par with others whose claims are not yet due, or who have been less diligent in securing claims already due.' Funds in the hands of a receiver in a suit for dissolution, are therefore subject to attachment at any time before a final decree of dissolution and distribution.' A partnership may exist in the purchase and sale of lands, but such a partnership can only exist where the contract is reduced to wi'iting. It is not necessary that the partners should be jointly concerned in the original purchase, where the interests of the partners are afterward mingled ; but they must be jointly con- cerned in the future sale." It does not matter in whose name the real estate is held ; he is only a trustee for the partnership ; and for the purpose of dis- posal and distribution it is to be treated as personal estate.' Parties may form a universal partnership, but the same would not be held to exist, unless the intention was clearly expressed. The evidence to establish such a partnership, after the death of one of the alleged partners, should be clear and full and not sub- ject to doubt." When one of two holders of the leasehold, holding in partner- ship, purchases the fee in his own name and with his own money, it inures equally to the benefit of the other, to which he becomes entitled on payment of his proportion of the purchase money." Where there is nothing in the constitution of a joint-stock company which regulates the remedies of the shareholders, as between themselves, the general law of partnership must govern them.' > 9 Cal. 24 » id. 062. a id. 616. * 10 id. 60. 648 Bancroft's califobnia lawybe. FORMS. Pwrtmership Articles. These articles of agreement made this day of , 1859, between John Jones and Smith Johns show : Ist. That said Jones and said Johns do this day form a part- nership on mutual and equal terms, under the name, style and firm of Jones and Johns. 2d. Said partnership shall exist for two years \or, at the will of the parties]. 3d. The business of said firm shall be the fruit-selling business, to be conducted in the city of San Francisco at as many stands as may be established. dth. Each party contributes the sum of ten thousand dollars ; the said Jones in cash, and said Johns furnishing for the use of the firm his rancho in Alameda county, with all the improve- ments, furniture and facilities thereof, to be considered as a con- tribution of ten thousand dollars in cash on his part. 5th. Said Jones is to oversee the sale of the fruit, and manage the business at the various fruit-stands in San Francisco, and said Johns is to attend to the cultivation and gathering of the fruit at the rancho, and to send it to San Francisco. 6th. Neither party is to draw more profits or monthly allow ance from the concern than the other, and, in a word, all rights, privileges and advantages are to be mutual and equal. Signed on the day above written. John Jones. Smith Johns. Commercial Partnership Agreement. Memorandum of agreement made and entered into at the city of San Francisco, this first day of January, A. D. eighteen hun- dred and sixty, between Abraham Bolt, Benjamin B. Brewster and Charles C. Coleman, all of the city of San Francisco, wit- nesseth : that said parties have this day and do hereby associate themselves together as copartners in trade, in said city of San Francisco, under the firm name and style of Bolt, Brewster and, Coleman, and do make and adopt the following covenants, provi- sions and articles of agreement with each other, respecting their said copartnership and the business to be conducted by them, viz. : Ist. The said copartnership shall continue for the space of three years from the date hereof, but after the expiration of one year from the date hereof, either partner shall be at liberty to termi- nate the said copartnership by giving to his copartners three months' pi-evious notice in writing of his intention so to do. PAETNEESHIP. 649 2d. The. said copartners shall contribute to the capital stock of said copartnership as follows : the said Bolt and Coleman, at least ten thousand dollars each, and the said Brewster, at least live thousand dollars in casli. The parties contributing the largest amount of capital shall be allowed an interest thereon to the extent of the excess over that contributed by the other part- ner or partners, which interest shall be at a rate equivalent to the average of the rates that shall have been paid by the firm in the course of their business, during the three months preced- ing the time when such interest is credited and allowed ; an interest account shall be made up and allowed once in every three months, and shall be paid as one of the expenses of the 'business. And if said firm shall have paid no interest within the three months preceding the time when such account shall be ma^e up, then the rate to be allowed shall be the average of the usual Kates charged at bank, upon discount of the most approved mercantile paper during that period. SdfjThe partners shall share the profits of their said business equaly. 4th. The said copartnership engaged in the general grocery provision and liquor business, and the character of the business shall not be changed without the consent of all the partners thereto in writing. 5th. ISTo partner shall sign or use the firm name for any pur- pose not connected with their legitimate business, and shall not sign or endorse any promissory note, bond, obligation or agree- ment, nor become surety for the benefit or accommodation of any person whatever, without the consent, in writing, of his co- partners. 6th. Each partner shall devote his exclusive attention to the business of the firm, and shall engage in no other business or transaction whatever, but this shall not be held to prevent either partner from employing his privatq 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. Tth. Each partner shall consult his copartners in reference to all transactions connected with the business, as often as practic- able, and if practicable to advise and consult with his copart- ners, neither party shall make any purchase exceeding twenty thousand dollars, without the consent of such partners, nor any sale and delivery on credit exceeding two thousand dollars, with- out the like consent. 8th. The said Bolt and Coleman shall be allowed to draw from the profits of the concern an amount not to exceed six hundred dollars a month, and the said Brewster not to exceed four hun- dred dollars a month, for theii- personal expenses. 650 bajstceoft's oalifoenia lawtee. 9th. The profits of the concern shall be suffered to remain in the business, and no part of the same shall be withdrawn except the allowance and personal expenses as aforesaid, except by con- sent 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 three 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 thgse presents have signed hereto, and to two others of like tenor and date, thei^ay and year first mentioned. Abraham Bolt. B. B. Beewstee. Chas. C. CoLiirAm TON^.a Pa/rtnership Agre&ment in Theatre Matters. This agreement, made this first day of January, in the year one thousand eight hundred and fifty-nine, between A., of the one part, and B., of the other part, both of the city and county of San Francisco, in the state of California, witnesses : That the said parties, in consideration of their mutual trust and confidence in each other, and of the covenants and conditions hereinafter contained, have agreed each with the other to form, and they do hereby form, a copartnership, for the purpose of car- rying on in the said state the business of , and the public performances and amusements generally known and designated by that name, upon the following terms and conditions : 1. Said copartnership shall commence , and will con- tinue for the period of years. 2. Each party shall contribute to the capital stock of said co- partnership equally. 3. The said B. shall, during the months of April or May, 1859, proceed to the Atlantic states, and there select and employ, on behalf of the said copartnership, according to his best judgment and discretion, a company of suitable pei'sons as performers in said business, with whom he will return to this state as speedily as possible. 4. The style and firm of said copartnership shall be A. and Co., and their company of performers shall be known as A. and Co.'s Minstrels. 6. The interests of said parties in said copartnership shall be PAETNEESHIP. 651 equal. The profits shall be divided equally between them, and the losses, if any, shall be borne in the same proportion. 6. The said B. shall receive and disburse all the moneys of the concern, and shall well and truly keep the accounts thereof. Both parties shall have at all times free access to all the books and papers of the copartnership. 1. JS^either of the said parties hereto will, without the consent in writing of the other, employ any of the moneys or effects of the said copartnership, or engage the credit thereof, except upon the account, in the business, and for the benefit of the said copart- nership. Nor will either employ (except as in article 3, herein- before provided) or dismiss any person, for the purposes or busi- ness of said copartnership, without the written consent of the other. 8. The said copartnership shall have the right to play at least three engagements, or series of performances of a week each in duration, at the public concert room or theatre in the city of San Francisco, known as the Yerba Buena Theatre. And the said. A. (party to this agreement) shall, as the proprietor of said theatre, be bound to, and he thereby covenants that he is such proprietor, and that he will let and hire to the said copartner- ship, the use of said theatre during said periods, upon receiving from said copartnersbip a notice of at least five days previous to the commencement of every such engagement, at a rent not to exceed ten dollars ($10) per night, to be paid to said A. out of the receipts of such copartnership before dividing any profits. 9. A settlement shall be had monthly, at which all the ac- counts shall be made up, and the net profits remaining after pay- ing all expenses shall be divided. 10. Either partner violating this agreement or any of the cove- nants therein contained, shall thereby become liable to the other in the full sum of ten thousand dollars ($10,000) as fixed and liquidated damages, without deduction or diminution. In witness whereof, the • said parties have hereunto set their hands and seals the day and year first above written. [l. s.] [L.S.] General Copartnership. YY Articles of agreement, made this first day of May, one thou- sand eight hundred and fifty-nine, between James Hunt, of the one part, and Charles Hunter, 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 Hunt and Hunter, in the business of groceries and provisions, and in buying, selling and vending all sorts of goods, wares and merchandise, to the said business belonging, and to occupy the 652 banoeoft's California lawtee. store No. 213 Battery street, in the city of San Francisco, their copartnership to commence on the first day of June, 1859, and to continue for the term of ten years from thence next ensuing, fully to be complete and ended ; and to that end and purpose, the said Jam.es Hunt and Charles Hunter, have delivered in, as capital stock, the sum of fifty thousand 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. And it is agreed, by and between the parties to these presents, that'; at all times during the continuance of their copartnership, they and each of them, will give their attendance, and do their and each of their best endeavors, and to the utmost of their skill and power exert themselves, for their joint interest, profit, benefit and 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 ill connnoditiesj 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 copartnership, perfect, just and true books of accounts wherein each of the. said copartners shall enter and set down, as well all money by them, or either of them, received, paid, laid out and expended, in and about the said business, as also all the goods, wares, commodities and merchandise, by them, or either of them, bought or sold, by reason or on account of the said business, and all other matters and things whatsoever, to the said business and management thereof, in anywise belonging ; which said books shall be used in common between the said copartners, so that either of them may have access thereto. And also, the said copartners, once in each year, during the continuance of the said copartnership, as aforesaid (to wit : — on the first day of June, in each year), or oftener if necessary, shall make, yield and render, each to the other, a true, just and perfect inventory and account, of all the profits and increase by them, or either of them made, and of all loss by them, or either of them, sustained : and also, of all the payments, receipts and disbursements, and of all other things by them made, received, disbursed, acted or suflfered, 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 ^ PAETNEE3HIP. 653 other, at the time, their just share of the profits so made as afore- said, and the said parties hereby mutually covenant and agree, to and with each other, that during the continuance of the said co- partnership, neither of them shall or will, endorse 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 determination of their copartnership, the said copartners, each to the other, shall and will make a true, just and final account, of all things relating to their said busi- ness, 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, fix- tures, 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. James Hunt. [l. s.] Signed and sealed in presence of | Charles Huntee. [l. s.J Hbnet Jackson. ) Fa/rrwmg Partnershvp Contract. Memorandum of an agreemeent made and entered into at the city of San Francisco, the day of April, A. D. eighteen hundred and fifty-nine, between Mark Hillyer, of Contra Costa county, and George Hubert Kenny, and Albert L. Bancroft, of said city of San Francisco, witnesseth, that said Mark Hillyer, having this day conveyed to the other parties above named, the two-thirds part of a tract of land in said Contra Costa coxinty, described as follows, viz. : \in8eTt description^ The said Mark Hillyer and the said other parties above named, have become and now are the owners of the same, and of the stock, personal prop- erty, 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 associ- ation, 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, upon the land aforesaid, for the period of five years from the date hereof, and they shall be equally entitled to the increase and profits arising from the same. The dwelling-house and its appurtenances, now occupied by the said Mark Hillyer, shall not be deemed to be the common property of the said parties, but shall belong exclusively to said Hillyer, and either of the other parties is at liberty to erect a dwelling-house upon the said tract of land for his own use, which shall, in like manner, belong to the party so erecting the same, and not be deemed the common property of , the parties hereto. 654 ' Bancroft's caufoenia lawyer. All business transacted by any of said parties respecting their common aifairs, shall be done with the knowledge and consent of the other associates ; all sales shall be made for cash, and no purchases whatever shall be made, except for cash. No promis- sory note, or other obligation, shall be signed or endorsed by any of the associates, in reference to matters affecting their common interest, except by the unanimous consent of all. Each 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 equiv- alent therefor. A suitable garden spot may be selected and fenced in by either of the parties, and attached to his residence, which, however, shall not exceed acres in extent, and the product thereof shall not be deemed or taken to be comm.on stock, so far as the same may be used or employed in the main- tenance or support of such person or his family ; but the proceeds of all crops or produce sold, shall belong to the associates. Neither of the associates shall draw from the funds of the asso- ciation more than fifty 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 the person who shall have taken the same. In witness whereof, &c. Agreement to tnake a Pa/rtnership at a future day. This agreement made the day of January, one thou- sand eight hundred and fifty-nine, by and between A. B., of the first part, and C. D., of the second part, both of the city and county of San Francisco, state of California, witnesses : The said parties mutually covenant, promise and agree, to and with each other, that at any time from and after the expiration of four months from the date of this agreement, they, the said parties, shall and will, upon five (5) days^ notice in writing from either to the other, enter into and execute written articles of co- partnership (under seal) to carry on the business of at the city of Chicago, in the state of Illinois, and in the western states of 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 five (5) nor more than ten (10) years from the date of said articles, fully to be complete and ended ; That the firm name of said copartnership shall be A. B. & Co., the profits to be divided equally, and any losses, if such there be, to be borne by said parties equally ; tlmt at all times during the continuance of their said copartnership, the said parties, and each PAETNEESHIP. 655 of them, shall and will give tlieir attendance, and do their and each of their best endeavors, and to the ntmost of their skill and power, exert themselves for their joint interest, profit, benefit, and advantage in the business aforesaid, that the said A. B. shall have the charge, direction, and control of the business depiartment 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 five 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, now this day executed and delivered, each to the other, bonds in the sum of $ , as fixed and settled damages to be paid by the failing party, which said bonds are hereto annexed and form part of this agree- ment. A. B. [l. s.] C. D. [l. s.] - Agreement to deterrrdne Partnership Disputes iy Arbitration. This agreement, made and entered into this day of February, A. D. one thousand eight hundred and sixty, between Amos Lawrence of the first part. Freeman Hunt of the second part, and Cyrus W. Field of the third part, all of the city and county of San Francisco. "Whereas, the said parties hereto, of the first and second parts, were, for a long time prior to the day of , 1856, engaged and concerned together as copartners, which partnership was dissolved. And, whereas, for the purpose of compromising, finally ending, and absolutely determining, all differences, controversies, actions, suits, debts, accounts, and demands whatsoever, had, made, moved, depending, arising, or accruing, or which at any time or times may be had, or by, or between said parties of the first and second parts, to these presents, for or by reason or means of the accounts of said copartnership, or of any matter or thing relating thereto, resulting therefrom, or otherwise howsoever, it hath been cove- nanted by said parties to refer all such differences of accounts to the party hereto of the third part for arbitration and adjustment, and the said party of the third part has consented to become such arbitrator. Now this agreement witnesseth, that the said parties of the first and second parts to these presents do hereby mutually cove- nant and agree, to and with each other, that the said party of the third part shall arbitrate, award, order, jiidge and determine of and concerning all, and all manner of actions, cause and causes of actions, suits, controversies, claims and demands what- soever, relating to, or growing out of their copartnership accounts prior to the day of , 1854, and shall conclude 656 Bancroft's CALiFOKmA lawybe. such arbitration, and make award and deliver the same to either of said parties of the first or second part in three months from this day, and said parties of the first and_ second part mutually agree to abide by the said award in all things. Dated, &c. (Signed) &c. Agreement to Renew Parim.ership, to be Endorsed on Original Article. Whereas, the partnership formed by, and mentioned in, the within article of agreement, has this day expired [w^, 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 provisions and restrictions in said agreement mentioned, for the further term of years from this date, [cr, from the day of next.] Witness our hands and seals, this day of 18 In presence of ) A. B, G. H. I C. D L. S.] L. S.] Agreement of Dissolution, to he Endorsed on the Original Articles. By mutual consent of the undersigned, the parties to the within agreement, the partnership thereby formed is wholly dissolved, except so far as it may be necessary to contimie the same for the final liquidation and settlement of the business thereof; and said agreement is to continue in force until such final liquidation and settlement be made, and no longer. Witness, &e. Agreement to rrmke Changes in a Copartnership. This agreement, made this day of , A. D. , between A. B., of the one part, and C. D., of the other part, witnesseth : Whereas, on , the said A. B. and C. D. entered into and made by agreement in writing, a copartnership, under the style and firm of A. B. & Co., for the purpose of carrying on a gen- eral fancy dry goods business in , which partnership was, by the terms of such agreement, to expire on ; And whereas, it is thought best by said A. B. & 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 C. D. is desirous of making with the said A. B. an agreement for the selling out, at at a future period, to said A. B., he, said C. D., of all his right, PARTNERSHIP. 657 title, interest and share in the said copartnership, and in the stock, assets and property of every kind thereto belonging, as hereinafter set forth ; Now, therefore, the said A. B. and 0. D. mutually agree with and to each other, as follows : I. On , the sum of dollars shall be placed to the credit of said C. D., upon the books of A. B. & Co., which sum shall be paid out of the concern to him at any time within two years from that date, in amounts of not less than one thousand dollars at a time, together with interest at one and a half of one per cent, per month, until paid. II. There shall also be paid to said C. D. from and after said , the sum of dollars per month, payable monthly, so long as the said sum of dollars, with interest as afore- said, shall remain unpaid. in. Upon the payment to said C. D. of the sum of money as in article I. and II. 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 A. B. & 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 A. B., and all interest, right and title of the said C. D. shall then and thereby wholly cease and determine, and the said co- partnership of the said A. B. and the said 0. D. shall then and thereby expire and be dissolved. IV. That in the mean time, and until the contingency as pro- vided and set forth in article III. shall have taken place, the said C. D. shall continue to give his whole time and attention to the said copartnership of A. B. & Co., and to the business and affairs thereof, under and subject to the control and management of the said A. B., so long as he shall be present and able to act. At all tim.es during said period, the said C. D. shall have full and free access to the book accounts and papers of said copart- nership. V. The payment to the said C. D. of the sum of money in articles I. and II. mentioned, shall be in lieu and in full to him, of all his share or interest of and in the profits of the said copart- nership, A. B. & Co. VI. In the event of the death of said C. D. before , A. D. , the said sum of dollars, witlr interest as aforesaid, or so much thereof, as shall at the time of his death be unpaid, shall be paid on or before , as aforesaid, to the heirs, executors, administrators or legal representatives of said C. D., and when paid, shall be in lieu and in full to the said heirs, executors, administrators and legal representatives, of all 42 658 Bancroft's califoenia lawyer. their and any of their right, title and interest of, in and to, as in article III. But in the event of such death, the payment of the sum of dollars per month, as in article 11. provided, shall cease, and the heirs, executors, administrators or legal representatives shall have no control, right, interest or title of any kind, of, in or to the said copartnership or its affairs, business, property or interests, of whatever kind, except the right of access, at reason- able times, to the books, accounts and papers of the copartner- ship, and of , and examining the same ; and the said A. B. shall give to the heirs, &c., of said C. D., good and sufficient security for the performance of the agreement and conditions in this article VI. contained, or else the same shall be of no effect or force. YII. In the event of the death of said A. B. before , leaving the said 0. D. him surviving, then, and in that case, the said C. D. shall pay to the heirs, executors, administrators or legal representatives of said A. B., within the period of from the date of stieh death, the sum of dollars, together with per month, until paid, in sums of not less than dollars. And upon payment by the said C. D. of said sum of money, as aforesaid, the same shall be in lieu and in full to the heirs, executors, administrators or legal represent- atives, of all their or any of their right, title and interest of, in and to the said copartnership of A. B. & Co., &c., &c. And the heirs, executors, &c., of the said A. B., shall have no right, &c., [copy as in article VI., omitti/ng any refereince to the dollars per month J] And the said 0. D. shall give to the heirs, &c., good and suffi- cient security, &c., \_as in a/rticle FZ] In witness whereof, the parties hereto have signed and sealed this agreement, the day above named. A. B. C. D. Agreement of Lirmted Copartnership,^ in accordance with the Act of the Legislature of California of April 4:th, 1850. Articles of agreement made and concluded this first day of January, A. D. one thousand eight hundred and fifty-nine, be- tween William Eichards, of the city of San Francisco, of the first part, John Dean, of said city, of the second part, and James Brown, of the city of Sacramento, of the third part. The said parties to these presents do hereby agree to associate themselves together, in a limited partnership, for the purpose of carrying on, in the city of San Franci-sco, the art and trade of manufacturing, purchasing and selling native California wines, under the name and style of Eichards and Dean ; the said Wil. PABTNERSHIP. 659 liam Richards and John Dean being general parlners, and the said Jauics Brown a special partner; that said copartnership shall commence at and on the date of these presents, and termi- nate on the thirty-first day of December, A. D. one thousand eight hundred and sixty-two ; that the said William Richards, as a general partner, has contributed in cash [or otherwise, as the case •may he] the sum of twenty thousand dollars : that the said John Dean also, as a general partner, has contributed the sum of twenty thousand dollars : and the said James Brown, as a special part- ner, has contributed also the sum of twenty thousand dollars to the capital stock of the said firm. It is further agreed by and between the parties to this agree- ment, 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 be- tween the parties hereto, that if any one of the respective parties desire the portion of the annual profits to which he may be en- titled to remain with said firm, for the mutual use and benefit of all the parties to this agreement, then and in that case, the por- tion of the profits so remaining shall draw interest at the rate of fifteen per cent, per annum, which said interest shall be paid to the party entitled thereto, on the first day of July 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 "William Richards and John Dean 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 William Richai-ds and John Dean shall each be allowed a salary of one hundred and fifty dollars per month, to be diawn frohi the profits of said business, on the first day of each and 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 thirty-first day of December, 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 tlie expiration of the term hereof, a copy of said account shall be furnished to each of the. parties to this agreement, his executors, administrators, or assigns ; and, at the same time, all the capital stock, together 660 banceoft's California lawyer. with the profits thereof, shall be divided between the said parties, their executors, administrators, and assigns, in the proportions first above mentioned, to wit : one-third to each and every one of the parties hereto. ^ And it is further agreed, by and between the parties to this 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, '4he parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered [ William Kichaeds. [l. s.^ m presence, of j Jomr Dean. [l. s.^ James Beowk. [l. s.] Certificate of Lmuited Partnership, m accordance with the saAd Act. This is to certify, to all to whom these presents shall come, that we, whose names are hereunto severally subscribed, have entered into a limited partnership, within the state of California, under, and by virtue of an act of the legislature of said state (and the supplements thereto), passed the fourth day of April, A. D. 1860, entitled, " An Act to authorize the formation of Limited Part- nerships," upon the terms and liabilities hereinafter set forth, to wit: 1. The said partnership is to be conducted imder the name and style of Richards & Dean. 2. The names of the general partners in the said firm are William Kichards and John Dean, both residents of the city of San Francisco, state of California, and the special partner is James Brown, of the city of Sacramento, state aforesaid. 3. The said special partner, James Brown, has contributed to the capital stocE of said firm the sum of twenty thousand dollars. 4. The general nature of the business to be transacted by the said firm is the manufacturing, purchasing, and selling native California wines. 5. The said partnership is to commence immediately at and after the signing of this certificate, and is to terminate on the thirty-first day of December, A. D. one thousand eight hundred and sixty-two. Made and severally signed by the said partners, at the city of San Francisco, the first day of January, A. D. one thousand eight hundred and fifty-nine. William Eichaeds. John Dean. James Beown. \_Achn,owledged hy all the partners in dueform.'\ PAKTNEESHIP. 661 Affidavit of PvhUoaUon on Foregoing C&rt/ificate. City and County of San Francisco, ss : John Pope, being duly sworn, says, that he is a prinjter [or, publisher, or, clerk, &c.], of the San Francisco Builder — a daily newspaper, printed and published in the city and county of San Francisco — and that, the annexed certificate has been published in said paper daily for three successive weeks, commencing on the 2d day of January, 1869, and ending this 23d day of Jan- uary, 1869. John Pope. Sworn before me, January 23, 1859, ) Chas. Halset, Notary Public. J 662 bakceoft's califoenu lawyeb. CHAPTER XXXIII. POWEE OF ATTOENET. A POWER of attorney, or as it is sometimes called, a letter of attorney, is an instrument in writing, by one person who is called the principal, authorizing another who is called his attor- ney-in-fact, to perform some act for or instead, and in the name of the principal. When it authorizes any act affecting real estate or any act which if done by the principal would require seal, the power should be under seal. The authority may be general, to transact all the busiaess of the principal, or special, to do some particular act. If the attorney exceeds his authority the principal is not bound by his act ; but the authority delegated to him is sup- posed to include all the necessary means of carrying it into effect. 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 principal by the attorney. A power of attorney to convey real estate, or to execute any conveyance affecting real estate, must be acknowledged or proved, certified and recorded, the same as a deed. See chapter on Deeds and Acknowledgments. To revoke such a power of attorney, the deed of revocation must be deposited for record in the same office in which the power of attorney is recorded.' 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. Under the statutes of California regulating the execution of instruments by married women, it is questionable whether they 1 Wood's Dig. art. 864, 366, 2998. POWER OF ATTORNEY. 663 can authorize an attorney to convey their separate estate. See Deed, Acknowledgments, and Husband and Wife. 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. JUDICIAL DECISIONS. General words in powers of attorney are limited and controlled by particular terms and designations.' A deed not executed in pursuance of a power, does not pass any title to the grantee, and as between the attorney and the grantee is a nullity. A power to "sell and convey" property is special, and must be strictly pursued ; no presumption of a rati- fication of an alleged sale under a power can be indulged, unless knowledge of the alleged sale, with its attendant circumstances, is brought home to the grantee of the power.' A general ratification of all the acts of an attorney does not include acts not within the scope of his power. The principal who ratifies, must know the character of the acts to be ratified : otherwise the ratification is void. The principal is not bound to notice recorded conveyances executed in his name by his attorney, not authorized by the power." Where authority to perform specific acts is given by a power of attorney, and general words are also employed, such words are limited to the particular acts authorized. A power to sell real estate must be so expressly stated.' OKEGON AND WASHINGTON. In Oregon the statute provides for recording powers of attorney and revocations, in the same tei-ms as the California statute. There seems td be no statutory provisions in Washington Terri- tory upon the subject of powers of attorney. 1 seal 463. »Tld.lTl. ' 10 id. 854. 664 Bancroft's California lawyer. FOEMS. Power of Attorney — short Form. I, A. B., hereby appoint and constitute C. D. my attorney in fact, in my name^ place and stead, to [here state what the attorney is OMthorised to do] with full power to said C. D., as my attorney to do every thing I could in the premises, if personally present. Witness my hand and seal this Ist day of May, 1859. A. B. [l. s.] Another Form. I hereby authorize A. B. as my attorney in fact, to sell and transfer for me and in my name, my interest in the grist-mill in Santa Clara county, located on the Guadalupe River, with the lease of the land, to whom, and on such terms as he deems best ; and by such instrument or means, as may be agreed on between him and any other parties. Geoege Buee. August 6th, 1858. , Fewer to GoUect. Know all men by these presents : That I, A. B.; of the county of Fresno, state of California, have made, constituted, and ap- pointed, and by these presents do make, constitute, and appoint C. D. of Sacramento, true and lawful attorney, for me and in my name, place and stead, to demand, ask for, receive, and recover, all and singular, such sum or sums of money, goods, wares, merchan- dise 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 authority to sue therefor, in part or in whole, and pur- sue unto hnal 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 sufiBcient 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 compound the same, and to execute good and sufficient receipts and acquittances therefor, and the same to con- tinue in force unless otherwise revoked. 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 prem- ises, 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 confirming all that my said attorney, or his substitute, shall lawfully do or cause to be done by virtue hereof. POWER OF ATTORNEY, 665 In witness whereof, I have hereunto set my hand and seal, the day of , one thousand eight hundred and sixty. Signed, sealed, and delivered ) A. B. [l. s.] in presence of j Power of Attorney to Sell and Manage Heal Estate. Know all men by these presents : That I, Frank W. Gross, of the city and couuty of San Francisco, state of California, have made, constituted, and aj)pointed, and by these presents do make, constitute, and appoint tfames F. Garvey, 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 California, and to lease the same, from time to time, upon such terms and con- ditions, 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 siich terms and credits as he may deem expedient, and also to borrow money for my use upon sUeh 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 instruments under seal or otherwise, giving and granting unto ray 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 Bubstitution and revocation, 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, the tenth day of June, in the year of our Lord one thousand eight hundred and fifty-nine. Feank W. Geoss, [l. s.] Full Oom.meroial Pow&r, with Authority to Sell, <&g., Peal Estate. Know all men by these presents, that I, A. B., of , have made, constituted and appointed, and by these presents do ' make, constitute and appoint C. D., 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 Taoney, debts, dues, merchandise or effects, due, payable, coming or belonging, or which may at any time be due, payable or 666 BANOEOFT'S CALIFORNIA LAWYER. belonging 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 suelx prices as he may deem meet ; to purchase any goods, mer- chandise, specie or other commodities on my account, for such prices and to such amount as he may deem meet, and the same to sell again for my benefit and on my account, for any prices whatsoever, to ship or transport the same, or any part thereof, on my behalf and account, to any post or posts, place 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 any such goods, merchandise, specie or other commodities, or of any part thereof, at such premiums and for such risks as he may deem meet ; to except any bill or bills of exchange or orders, make and execute any nbte 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 person or persons, for any price or in any manner what- soever, and for these purposes to execute and acknowledge any deed or deeds, lease or leases, or other assurance or assurances, with general covenants of warranty against all persons, or any other covenants whatsoever, as he may deem expedient ; to pur- chase any real estate on my account, in fee simple or otherwise, at any price or any exchange whatsoever, and for these purposes to receive, confirm, make and execute any contracts, deeds, con- veyances or other instruments whatsoever; to settle and adjust all partnership accounts and demands, and all other accounts or demands now subsisting, or which may hereafter subsist between me and any person or persons whatsoever, and submit the same to and decide them by arbitration; to compound for any debts, dues or demands owing, or which may hereafter be owing to me, and to take less than the whole, or otherwise to agree for the same, in such manner and on such terms as he, in his discretion, may deem proper ; and for all or any of these purposes, to make and execute any releases, compromises, compositions, agreements or contracts, by deed or otherwise, in his opinion necessary and expedient in the premises ; to pay and discharge all debts and demands due and payable, or which may hereafter become due and payable by me unto any person or persons whatsoever ; to enter into any lands or other real estate to which I am or may be entitled, and recover the possession thereof, and damages for any injury done thereto, and to distrain for rent due thereon, and also to commence and prosecute unto final judgment and execu- tion, any suit or suits, action or actions, real, personal or mixed, POWER OP ATTOENEY. 667 which he shall deem proper for the recovery, possession or enjoy- ment of any matter or thing which is or which may hereafter be due, payable, 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 stipula- tions, undertakings, recognizances, and other requisites in any suits or actions, and any question arising on the same, by arbitra- tion 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 pei'form all matters and things, transact all business, make, execute and acknowledge all contracts, orders, deeds, writings, assurances and instruments which may be requisite or proper to effectuate all or any of the premises, 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 concern- ing 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 of , in the year of our Lord one thousand eight hundred and . A. B. [l. s.] Signed, sealed and delivered ) m the presence of j James Beowu. Petee Stiles. Autlioriiy to receive Legacy &c. Know all men by these presents, that I, A. B., of , have made, constituted and appointed, and by these presents do make, constitute and appoint C. D., 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 all other property of every nature and kind whatsoever, both real and personal (with power to enter into and take possession of all lands, tenements, heredita ments 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 A. B., late of New York in said state of New York, deceased, ray late father, and to give all necessary receipts, acquittances, re- leases and discharges in the law, with or without seal, for the same, and to appear for me in all courts and places, and before 668 BANCROFT'S CALIFOEBTIA LAWYER. all officers, tribunals and magistrates, to prosecute, defend, settle and compromise all suits, actions and proceedings of every nature and kind in relation thereto, giving and granting unto my said ' attorney full power and authority, to do and perform all and every act and thing whatsoever, necessary and requisite to bie done in and on the premises, as fully to all intents and purposes as I could or might do. Stock Powe/rs of Attornm/. Know all men by these presents, that I, A. B., of the city and county of San Francisco and state of California, for value re- ceived, have and do hereby grant, bargain, sell, assign, transfer and set over unto C. D., of Grass valley, Nevada county, fifty shares in the capital stock of the Empire Mining Company of Grass Yalley, belonging to me, and standing in my name on the books of the said company, and I do hereby constitute and appoint If. N. my true and lawful attorney irrevocable, to assign, and in due form of law transfer, the said stock unto the said C. D., 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 , one thousand eight hundred and fifty-nine. Sealed and delivered in ) A. B. [l. s.] presence of J Hmocation of Power of Attorney. ' Know all men by these presents, that I, A. B., of San Fran- cisco, in and by my letter, warrant or power of attorney, bear- ing date on the day of A. D. 1859, did make, constitute and appoint C. D. of the same place my true and law- ful attorney, for the purposes and with the powers therein set forth ; as will iriore fully and at large appear by reference thereto, or to the record thereof, made on the day of A. D. 1859, in liber of Powers of Attorney, page in the county recorder's office, of county. Now know ye, that I the said A. B., for divers good causes and considerations me hereunto moving, have revoked, counter- manded, annulled and made void, and by these presents do re- voke, countermand, annul, and make void, the said letter, war- rant or power of attorney, and all power and authority thereby given, or intended to be given to the said 0. D. 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 sixty. A. B. [l. S.J PUBLIC OFFICEES. CHAPTEE XXXIY. PtTBLIO 0FFI0EE8. STAT0TOET PEOTISIONS. All public officers, exc6pt the secretary of state, notaries public, and some few officers of a special character, are chosen to office by popular election. When township or county officers are elected, it is the duty of the county clerk, after the election returns are complete, to fur- nish to each officer, elected, a certificate of election under his hand and the seal of the county court. In the case of the election of county clerk, the county judge examines the returns and issues a certificate of election.' When district officers are elected, the returns are made to the county clerk of that county of the district standing first in alpha- betical arrangement, who issues the certificates of election, and transmits a certified copy of the returns to the secretary of state." When state officers are elected, the returns are made by the respective coiinty clerks to the secretary of state, who transmits a statement of the vote to the governor, upon which the commis- sioners issue.' When representatives to Congress are elected, the governor furnishes the certificate of election, sealed with the seal of the state, and attested by the secretary of state.* The returns of election for governor and lieutenant-governor are made to the speaker of the Assembly, who opens and pub- lishes the same during the first week of the session, in presence of both houses.' All commissions of officers shall be in the name and by tlie authority of the people of the state of California, sealed with the » Wood's Dig. art. 2144, 2145. * id. 21B2. 2 Id. 2146, 214T. « id. 21S8, 2154. » Id. 2148. 670 bancboft's California lawyer. great seal of the state, signed by the governor and countersigned'^ by the secretary of state.' 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, (see Forms^ which may be taken and subscribed before any judge of the Supreme or District Court, or clerk thereof, county judge or clerk, notary public or justice of the peace: and, ex- cept in case of members of the legislature, the governor or heu- tenant-govemor must be endorsed upon the commission or cer- tificate, within ten days after the reception of his commission or certificate, or within ten days after the commencement of his term of office, if he has received his commission or certificate. Deputies must take the same oath as the principal.^ No certificate shall be withheld on account of any defect or informality in the return of any election, if it can with reasonable certainty be ascertained from such return what office is intended, and who is entitled to such certificate ; nor shall any commission be withheld by the governor on account of any such defect or informality of any returns made to the office of the secretary of state.' Every officer of this state, civil and military, 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.* All official bonds, required by law, of officers, shall be in form, joint and several, and made payable to the state of Cali- fornia, in such penalty, and with such conditions as shall be re- qidred by law.' The official bonds of officers shall be approved and filed as follows, to wit : the official bond of the secretary of state shall be approved by the governor, and filed and recorded in the office of the county clerk of the county in which the seat of govern- ment is fixed ; the official bond of the attorney-general, surveyor- general, controller, treasurer, state printer and clerk of the Supreme Court, shall be approved by the governor, filed and ' Wood's Dig. art. 2865. * id. 2791. = ' id. 2866-2870. » id. 210. » id. 2150. PUBLIC OFFICERS. G71 recorded in the ofBce of the secretary of state ; the official bond of each district attorney shall be approved by the judge of the dis- trict, filed and recorded in the office of the county clerk of any one of the counties in the district which may be designated by said judge ; the official bonds of sheriffs, coroners, justices of the peace, and all other county officers, shall be approved by the county judge, filed and recorded in the office of the county clerk of their respective counties ; the official bonds of county clerks shall be approved by the county judge and filed and recorded in the office of the county recorder.' In the city and county of San Francisco, the bonds of the public officers of the county must be filed and kept in the office of the auditor. The auditor's bond must be filed and kept in the office of the county clerk. When the amount of any bond is not fixed by law, it must be fixed by the board of supervisors. The bonds and sureties must be approved by the county j ndge, the auditor and the president of the board of supervisors. The sure- ties may be examined under oath. Their requisite qualifications are fully set forth in the oath to be taken by them, for which see the forms at the end of this chapter.'' In all cases where official bonds are required, or may be here- after required from state or county officers, the officer or officers whose duty it is, or may be, to approve such bonds, shall not accept or approve any such bond unless, in addition to the pres- ent requirements of the law, the sureties shall severally justify before an officer authorized to administer oaths as follows : 1. On a bond given by a state officer, that he is a resident and free- holder or householder within this state ; and on a bond given by a county officer, that he is a resident and freeholder or house- holder within such county, or within an adjoining county. 2. That he is worth double the amount for which he becomes surety, over and above all 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. And by the amendment of 1869, the county judge is authorized at any time afterward, to call upon any county officer for a further justification of his sureties.' 1 Wood's Dig. art. 205. » Wood's Dig. art. 234; Laws 1859, p. Tl. » Laws 1866, p. 150; id. 1859, p. 141. 672 Bancroft's California lawyer. Unless otherwise provided, there shall be at least two sureties, upon the official bond of every officer.' When the penal sum of any bond hereafter to be given, amounts to more than one thousand dollars, the sureties may become severally liable for portions not less than five hundred dollars of such penal sum, making in the aggregate at least two sureties, for the whole penal sum. And if any such bond shall become forfeited, an action may be brought thereon,, against all or any number of the obligors, and judgment be entered agains* the obligors, either jointly or severally, as they may be liable ; frovided, that judgment shall not be entered against a surety severally bound for a greater sum than that for which he is specifically liable, by the terms of said bond. Each surety shall be liable to contribution to his co-sureties, in proportion to the amount for which he is liable.'' The approval of every official bond shall be endorsed thereon, and signed by the court or officer approving the same.' No officer with whom any official bond is required to be filed, shall file and take charge of such bond until approved as pre- scribed by law.' 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.' Every official bond executed 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 duties which may be required of such officer by any law enacted subsequently to the execution of such bond, and such condition shall be ex- pressed therein ; to and for the state of California, and to and for thelise and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capa- 1 Wood's Dig. art. 328. " id. 206-214 « id. 286. PUBLIC OFFICEKS. 673 city ; and any person, so injured or aggrieved, may bring suit on such bond, in his own name, without an assignment thereof.' Any such bond shall not be void on the first recovery of a judgment thereon ; but suit or suits may be afterward brought on said bonds, from time to time, and judgment recovered there- on by the state of California, or by any person to whom a right of action may have accrued against such officer and his sureties on said bond, until the whole penalty of such bond shall be ex- hausted." Whenever any such official bond shall not contain the substan- tial matter, or condition or conditions required by law, or there shall be any defects in the approval or filing thereof, such bond shall not be void so as to discharge such officer and his sureties, biit they shall be equitably bound to the state or party interest- ed ; and suit may be brought, the defect being suggested and the parties held responsible." All bonds or undertakings given by trustees, receivers, as- signees, or officers of a court, in an action or proceeding, for the faithful discharge of their duties, where it is not otherwise pro- vided by law, shall be in the name of, and payable to, the people of the state of California ; and upon the order of the court where such action or proceeding is pending, may be prosecuted for the benefit of any and all persons interested therein.' New or additional bonds may be required, whenever sureties become insolvent or remove from the state, or from other caiise 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.* All public officers are prohibited from dealing directly or indi- rectly in scrip-warrants, and all other evidences of indebtedness (except the same be funded) against the state, or any county, city or town, unless it be such warrants, scrip, &c., as they may have received for their services. This prohibition however appHes to state officers, only as to state indebtedness ; and to county and city officers, only as to the indebtednes of the respective counties 1 Wood's Dig. art. 206-214. s a, 236. 2 id. 215. * id. 218-2S8. 43 674 bakcroft's California lawyer. or cities they represent. The offence is made a misdemeanor, punishable by fine and imprisonment, forfeiture of office, and dis- qualification for any other office.' Provision is also made for the punishment of officers for extor- tion, or for refusing or neglecting to perform any lawful official act.' The statute also forbids officers from being directly or indi- rectly 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 ap- pointed to serve.' FOEMS. Official Oath. I do solemnly swear \or affirm], that I will support the con- stitution of the United States, and the constitution of the state of California, and that I will faithfully discharge the duties of [gwe the title of the office'] according to the best of my ability. A. B. Sworn and subscribed, this first day of January, 1859, before me, M. 0. Blake, County Judge of the City and County of San Francisco. General Form of an Official Bond. Know all men by these presents, that we, A. B., as principal, and C. D., and E. F., of, &c. as sureties, are held and firmly bound unto the state of California [or, the officer, or officers, to whom the bond is to ie gwen\, 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 administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of A. D. 1859. Whereas, the above bounden A. B. has been appointed [or, elected] to the office of [give the title of the office'] : Now, there- fore, the condition of the above obligation is such, that if the said A. B. 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 here- 1 Wood's Dig. art. 2885-2889. » Id. 2894, 2S95. ' Id. 2890, 2891. PUBLIC OFFICERS. 675 after enacted, then the above obligation to be void ; else to re- main in full force. Signed and sealed in ] A. B. [l. s.J j presence of Gr. H. j C. D. [l. s.] ' E. F. [i. s.] Official Bond for Cownty of Sa/n Frcmcisoo. Whereas, A. B., at the general election held on the first day of September, 1858, was elected to the office of public adminis- trator, in and for the city and county of San Francisco, state of California, and whereas the said A. B. is required by law to file an official bond previous to entering upon the duties of said office, and whereas the amount of such bond has been fixed at fifty thousand dollars. Now, therefore, know all men by these presents, that we, A. B., of the city and county of San Francisco, as principal^ and C. D. and E. F., residents and freeholders of the said city and county, as sureties, are jointly and severally bound and indebted unto the state of California, in the sum of thirty thousand dol- lars, a portion of the said sum of fifty thousand dollars. And we,. the said A. B., of the said city and county, as princi- pal, and G. H. and J. K., residents and householders of the said city and county, as sureties, are jointly and severally held, and bound, and indebted unto the state of California in the sum of ten thousand dollars, a portion of the said sum of fifty thousand dollars. And we, the said A. B-, of the said city and county, as princi- pal, and L. M., resident and freeholder, and N. O., resident and householder of the said city and county, as sureties, are jointly and severally held, and bound, and indebted unto the state of California, in the sum of five thousand dollars, a portion of the said sum of fifty thousand dollars. And we, the said A. B., of the said city and county, as princi- pal, and P. Q., resident and householder, and E. S., resident and freeholder of the said city and county, as sureties, are jointly and severally held, and bound, and indebted unto the state of Cali- fornia, in the sum of five thousand dollars, a portion of the said sum of fifty thousand doUai-s, lawful money of the United States of America, for the payment of which several sums of money well and truly to be made, the parties jointly and severally in- debted herein as aforesaid, jointly and severally bind themselves, their heirs, executors and administrators, firmly by these presents, sealed with our seals, and dated this fifteenth day of September, ; in the year of our Lord one thousand eight hundred and fifty- nine. The condition of this obligation is such, that if the above 676 BANCROFT'S CALIFORNIA LAWYER. bounden A. B. shall well, truly and faithfully perform and exe- cute the duties of public administrator of the city and county of San Francisco, as required by law, as well those which may be required of him by any law now existing, as those which may be required by any law enacted subsequently to the execution of this bond, then this obligation to be void, otherwise to be and re- main in full force and effect. Signed and sealed in presence of E. "W". Buee. A. B. [l. s.] L. M. [l. s. G. D. [l. s.] N. O. [l. s. E. F. [l. S.J P. Q. [l. s. G. H. [l. 8.] E. S. [l. s. I. K. [l. s.] Afflda/oit of JusUfioation upon the foregomg Bond. State of California, ) City and County of San Francisco. ) 0. D., E. F., G. H., J. K, L. M., IST. O., P. Q., and K. S., be- ing duly sworn, each for himself, doth depose and say, that he is a resident and freeholder or householder in the said city and county of San Francisco, and ^at he is worth the amount for which he becomes liable as surety on the foregoing bond, over and above all 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, and above all sums for which he is already liable, or in any manner bound, whether as principal, or endorser, or surety, or whether such prior obligation or liability be conditional or absolute, liquidated or unliquidated, certain or contingent, due or to become due, in fixed property, including mortgages, situate in said city and county, and that he is not a banker doing business in said city and county, nor any such banker's partner, clerk, employee, agent, attorney, father, son or brother, Subscribed and sworn to, before me, this fifteenth day of September, 1859, by C. D., E. F., G. H. and P. Q. M. C. Blake, County Judge. Subscribed and sworn to before me, this sixteenth day of September, 1859, by I. K., L. M., N. 0. and E. S. "William Dder, County Clerk. A. C. E. G. I. L. N. P. K. B. D. F. H. K. M. 0. Q. S. PUBLIC OFFICERS. 677 Endorsements wpon the sarrte Bond. — Official Bond. A. B., Public Administrator. City and County of San Francisco. Penalty, $50,000. Dated, September 15tb, 1859. Approved this 16th day of September, 1859. E. W. Btjek, Pres. Board Supervisors. Etting Mickle, City and County Auditor, M. C. Blake, County Judge. Filed this 16th day of September, 1859. Etting Mickle, City and County Auditor. CommAssion. The People of the State of California to all to whom these pres- ents shall come, greeting : Know ye, that whereas Thomas "W. Freelon, on the seventh day of September, in the year of our Lord eighteen hundred and fifty-three, was duly elected judge of the county of San Fran- cisco, for the full term, as appears from the returns of election on file in the oflBce of the secretary of state ; Now, therefore, I, John Bigler, governor of the state of California, do by these presents commission the said Thomas W. Freelon as judge of said county as aforesaid, to enter upon the duties of the office on the first Monday of April A. D. 1854, to have and to hold said office, with all the powers, privileges and emoluments to the same of right .appertaining, unto him the said Thomas W. Freelon, for the term prescribed by law. In testimony whereof, I have caused the great seal of the state of California to be hereunto affixed. Given under my hand at Benicia the twenty-sixth day of Sep- tember in the year of our Lord eighteen hundred and fifty-three. John Biglee. [l. S.J Attest : J. W. Denvee, Secretary of State. Certificate of Election. United States of America, 1 State of California, > City and County of San Francisco. ) ( Office of the County Clerk of the City I and County of San Francisco. I, "William Duer, county clerk of said city and county, do hereby certify, that at an election held in said city and county of San Francisco, on Wednesday, the first day of September, Anno Domini one thousand eight hundred and fifty-eight,, was elected. 678 BANCROFT'S CAXIFORNIA LAWYEB. Witness my hand and the seal of the county court of the city and county of San Francisco, this day of , A. D. 185 . County Clerk. State of California, ) City and County of San Francisco, j I, do solemnly swear that I will support the constitu- tion of the United States of America, and the constitution of the state of California: and that I will faithfully discharge the duties of to the hest of my ability. So help me God. Subscribed and sworn to before me, this day of , A. D. 1858. SCHOOLS, 679 OHAPTEE XXXV. SCHOOLS. TJndee the conBtitution of California, the subject of education is treated with great liberality and importance, and provision is made for the encouragement of a state university, and a system of common schools. A general outline of the system of school education adopted by our statutes, is all that can be given within the limits of the present work. By the law of 1855, passed for the establishment and regula- tion of comm.on schools, the whole state is divided into districts, called school districts ; it being provided that each town or town- ship shall constitute one district, until otherwise determined and established by the proper authorities ; that the board of super- visors of a county may, upon petition, establish and regulate the boundaries of districts in their own county; and that incorpo- rated cities and towns may, within their respective limits, estab- lish their own districts.' For the regulation of each district, a board of three trustees is annually elected ; except where, in cities, a board of education is established. To the trustees are assigned the duties of locating and erecting school-houses, of examining and appointing teachers, of fixing the salaries of teachers, of suspending or expelling pupils, of visiting the schools, of appointing a common school marshal, and of making the division of primary, grammar and high schools." They are also required to observe the instructions of the state board of education, and of the superintendent of public instruc- tion ; to distribute blank forms, laws and instructions ; to keep open records of their acts and decisions, and money accounts ; and to report annually in relation to their expenditures, the 1 Wood's Dig. art. 3213-8215. " id. 3210-321T. 680 BANCROFT'S CALIFORNIA LAWYER. teachers, the moneys received, the number, attendance and prog- ress of pupils, and such other statistics as may be directed. They may also, under certain circumstances, call an election, and submit to the qualified voters of the district, whether they shall be taxed for an additional term of school, and may also call an election upon the question of a tax for building a school- house.' The county superintendent has a supervision over the interests of the schools in his county ; and it is his duty to visit, person- ally, each school, at least once a year ; to give aid and counsel to the trustees, marshals and teachers ; to aid the trustees in their examination of teachers ; to distribute promptly the blank re- ports, forms, laws and instructions; to file the reports of the trustees, marshals and teachers ; to keep a record of his acts, and to report annually to the superintendent of public instruction.' Such report should include abstracts of the annual reports of trustees, marshals and teachers, required by the act of 1858 to be made.* He is also required to make the apportionment of the common school moneys in the county treasury, among the several school districts, in proportion to the number of white children residing therein between the ages of four and eighteen years ; and to draw warrants on the county treasurer for the payment of such moneys.' The state board of education is composed of the governor, the superintendent of public instruction, and the surveyor-general of the state. The superintendent of public instruction has the general super- vision and management of the school interests of the state. His duties, in the words of the statute, are as follows : It shall be the duty of the superintendent of public instruction, by and with the advice, and subject to the supervision of the state board of education : 1. To prepare and publish, in connec- tion with this act, instructions and forms for the direction of the superintendents, boards, trustees, marshals, and teachers of the common schools, and to distribute to each county superintendent a sufiicient number of copies of this act, and of the said instruc- 1 Wood's Dig. art. 8210. « Laws 1868, p. 884. a Laws 1858, p. 884, 885, = Wood's Dig. art. 8206, § 11, 820T, 8S0S, 8217; ' Wood's Dig. art. 3206 Laws 1868, p. 884, SCHOOLS. 681 tions and forms, for the supply of the common school officers in the county. 2. By all proper means in his power to disseminate intelligence among the people in relation to the method and value of education. 3. To exercise a general supervision over such normal schools and teachers' institutes as may by law be estab- lished. 4. Immediately after the state controller has made his semi-annual report, as herein required, to apportion to the several counties the amount of school moneys in the state treasury, to which each shall be entitled under the provisions of this act, in proportion to the number of children residing therein, be- tween the ages of four and eighteen, as shown by the last previous reports of the county superintendents and school marshals, or other officers charged therewith, and make a record thereof in the book of records, to be kept by the state board of education, and furnish to the controller of state, to each county treasurer, and to each county superintendent, an abstract of such apportionment ; and with each apportionment, to furnish to each county treasurer his order on the controller of state, under the seal of the state board of education, for the amount of school moneys in the state treasury to which such county shall be entitled, and to take such county treasurer's receipt for the same. 5. To present to the legislature annually, on or before the tenth day of each session, a full report of the condition of public instruction in the state ; the number and grade of schools in each county; the number of white children in each county, between the ages of four and eighteen years ; the number of such attending common schools established under the provisions of this act : the amount of com- mon school moneys apportioned to each county ; the amount of moneys raised and expended by any county, town, city, or school district for the support of common schools therein ; to- gether with such suggestions as he may deem it expedient to make in relation to the construction of school-houses, the im- provement and better management of common schools, the quali- fication of teachers, the ways and means for raising funds for the support of common schools, and providing suitable school-houses, and for the promotion of the general interests of education throughout the state.' ' Wood's Dig. art. 8201. 682 Bancroft's California lawyer. 'So special provision of the statute determines wHo are entitled to attend the schools as pupils, but they are considered as open to all children, subject to proper regulations; except that the provision of the statute requiring the census reports to return the number of white children to determine the apportionment of school moneys is construed as excluding colored children. The rules of the board of education of the city of San Francisco pro- vide, that no pupil shall be received under the age of five years. When the public appropriation for the payment of teachers falls short, the deficiency is made up by a rate bill, made out by the trustees against those sending to school ; excepting however, such indigent inhabitants, as may in their judgment be entitled to such exemption.' The duty of the common school marshal is, to take an annual census of all the white children within his precinct, between the ages of four and eighteen years, and report to the county super- intendent, that he may apportion the school moneys received into the county treasury, among the several school districts, towns and cities in the county." In addition to the officers already mentioned, the statute pro- vides for the establishment of a board of education and a super- intendent of common schools, for cities and towns as follows : The common council of each and every incorporated city in this state, shall be, and hereby is, authorized and empowered: 1. To raise annually by tax upon the real estate and personal prop- erty within the city, as estimated by the city assessors, such amount of money not exceeding one-fourth of one per cent, on the valuation on the assessment roll, as shall be requisite for the support of free common schools therein, and providing and far- nishing suitable houses therefor^ and purchasing lots on which to build school-houses, and paying contingent expeiises. 2. To pro- vide, by ordinance, for the collection, custody and disbursement of the moneys thus raised by city tax for school purposes. 3. To provide, by ordinance, for the drawing from the county treas- ury on the warrant of the county superintendent of common schools, the moneys to which said city shall be entitled under the provisions of this act, and for the custody and disbursement by ' Wood's Dig. art 8218. > Id. 8218, 8207. SCHOOLS. 683 the city treasurer of the same, in accordance with the provisions of this act. 4. To provide, by ordinance, for constituting and establishing school districts, and for the examination of common school teachers; the regulation of common schools within the city ; the census, or enumeration of the children, and for making the annual and other reports to the county superintendent. 5. To provide, by ordinance, for the election or appointment of a city board of education and superintendent of common schools, and prescribe their powers and duties; and, 6. To ordain all such rules and regulations as they may deem expedient and ne- cessary for the promotion of the interests, prosperity and useful- ness of common schools within the city : provided, that the common council shall not make any oi'dinance, nor do any act which shall be in conflict with the pripciple or provisions of the constitution of the state or of any act of the legislature. 7. Pro- vided, that the common council, on the petition of iifty heads of white families, citizens of the district, shall establish a school or schools in said district, and shall award said school or schools, a pro rata of the school fund ; provided, no sectarian doctrines are taught in said school or schools, and said schools so established, shall in all particulars be under the supervision and control of the common council, as are all other common schools within their jurisdiction, under the provisions of this act.' Ko trustees or marshals elected or appointed under the fore- going provisions of this act, shall have any jurisdiction or control within the limits of any city which shall have provided for the support, regulation and management of common schools therein under the provisions of the next preceding section of this act.' The state school fund is derived, partly from the interest col- lected from the state, on certain bonds of the civil funded debt of the state, purchased with the proceeds of the sales of the lands granted to the state by Congress, and with the proceeds of escheated estates, and deposited with the state treasurer to the credit of the " school fund ;" and partly from the proceeds of unclaimed property descended to aliens ; which moneys are dis- tributed to the various counties, in proportion to the juvenile 1 Wood's Dig. art. 8214, 8215. 684 Bancroft's California lawyer. population ; to be applied solely to the payment of teachers, duly qualified under the statute.' The county fund is raised by tax, and by contribution levied upon those able to pay ; to which are added portions of the poll- tax, certaiu penalties for the violation of the game laws, and for allowing hogs to trespass upon property ; and by sales of certain school lands. Cities and towns, and districts may also be author- ized to levy a school-tax.'' Seo. 32. 1^0 common school shall receive any moneys, benefits or immunities, under the provisions of this act, unless such school shall be instructed by a teacher or teachers duly examined, ap- proved and employed by competent and legal authority, as here- inbefore provided. Sec. 33. No books, tracts or papers of a sectarian or denomi national character, shall be used or introduced in a.nj school established under the provisions of this act; nor shall sectarian or denominational doctrines be taught therein ; nor shall any school whatever receive any of the public school funds, which has not been taught in accordance with the principles of this act. Seo. 34. No teacher shall be entitled to any portion of the public common-school moneys as compensation or salary for services rendered, unless such teacher shall have been duly em- ployed by competent authority, nor unless such teacher shall have had, during the whole time of such service, such certificate of competency and approval as required by this act in full force and effect, and bearing date within one year next before the services aforesaid shall have been rendered; nor unless such teacher shall have made report in manner and in form as shall be prescribed by the superintendent of public instruction. Sec. 36. The common school year shall commence on the first day of November, and shall end on the last day of October. Seo. 36. Any printing required under this act, shall be execu- ted in the form and manner and at the prices of other state print- ing, and shall be paid for in like manner out of the general fund, upon the bill for the same being certified by the state board of education.' » Wood's Dlg.art. 2365, 2866, 2711,8316; Lows ' Wood's Dig. art. 2539, 2577, 8214-8218 ; Laws 1858, p. 250. • 1858, p. 818, 888 ; Laws 1857, p. 848. 3 Wood's Dig. art. 8219. SCHOOLS. 681 The very excellent work of tlie present superintendent of public instruction, entitled " Commentaries upon the School Law,'' embraces a full exposition of the subject of our common schools, and issues for uniform use in the state, the forms which conclude this chapter. OREGON AND WASHINGTON. The school systems for Oregon and "Washington are alike — the statute of the territory of Washington upon the subject being almost a literal copy of that of Oregon. Their system, in its general features, resembles very much that of California, excepting in the absence of any provision for the state board of education, and a superintendent of public instruc- tion. There are some other differences. The county superin- tendent makes the division of his county into districts. Instead of trustees, they have directors. Each district has a clerk, who performs, among other duties, the service of our marshal, of taking the school census. The following provisions of the statute determines who are entitled to attend the schools. "Whenever a school is kept in any district, the teacher of which shall be supported out of the general county school fund, or by tax on the district as aforesaid, such school shall be open and free to all children between the ages of four and twenty-one years, in such district. The directors may permit scholars living out of the district to attend school, with or without charge, as they may deem proper. FOEMS. The following forms have been drawn to assist the school offi- cers in carrying out the provisions of the law, and to secure uniformity : Apjpoiniment of District School Trustees. In accordance with section 15 of an act in relation to common schools, passed May 3, 1855, you are hereby appointed a trustee I statutes 0. 466 ; Statutes W. T. 828. Bancroft's cAiiFOENiA lawtee. of common schools for district of township, of the county of You will qualify according to law, and then enter upon the discharge of your duties. A. B., Superintendent of Common Schools To . for county. OATH OF OFFICE. I do solemnly swear [or, affirm] that I will support the consti- tution of the United States, and the constitution of the state of California, and that I will faithfully discharge the duties of com- mon school tnistee, for the school district of township, in the county of , and state of California, according to the best of my ability. Sworn and subscribed to before me, a of the county of , and state of California, this day of , Anno Domini 185 . Note. — ^This oath may be taken before any officer in the state, authorized by law to administer oaths. Certificate of Election of a Trustee of Oommpn Schools. To , of , greeting : This certifies that you, the said , were, at an election held on the day of April, Anno Domini 185 , chosen to the office of trustee of common schools of [the district, town or city, as the case may 5e,] and you are, by virtue of said election and qualification, fully authorized and empowered to discharge all the duties of said office, and to exercise all the powers thereto belonging, according to law, for one year from and including the second Monday of April, 185 A. B., County Clerk. Note. — ^The oath of office must be taken in form as appended to No. 1, and should be attached to the certificate, and both filed immediately in the office of the county superintendent. Appointment of a Common School Ma/rshal. "We, the imdersigned, trustees of common schools for district , in the county of , appoint a common school marshal, to take the census of the children between the ages of four and eighteen years, and, separately, the census of children under four years of age, in said district. A. B., CD., E. F., [Date.^ Trustees of Common Schools. SCHOOLS. 687 Certificate of Qucdifioation to Ke&p a School. "We, the undersigned, trustees of common schools, hereby certify that, after due examination, we are satisfied that is of good moral character, and possesses sufficient learning and ability to teach, and impart knowledge, and govern a school ; we therefore grant to this our certificate, which shall remain in force during one year from date, unless sooner revoked. A. B., CD., E. F., \I)ate.\ Trustees of Common Schools. Note. — ^Wherever desirable, the aid of others can be called in to make a thorough examination of the teacher. Let the teacher name his conduct of a school from the opening to the close, after you have tested his literary acquirements. Form of a Receipt of the Oownly Su/perintendemt of Common Schools. Received of , county superintendent of common schools, all documents, books and papers belonging to his office as such superintendent. A. B., [I)at6.'\ County Superintendent Common Schools. Note. — ^The law requires this receipt to be filed in the office of the county treasurer. Form of Receipt of the Trustees of Common Schools, tmder sec- tion 16, clause 11. Heceived of , trustees of common schools for , the books of record, and all papers, books, blanks and docu- ments, remaining in their hands as such trustees. A. B., CD., \I>ate.\ Trustees Common Schools. Form, of Cov/nty Superintendent's Wam-ant upon the County Treasurer. No. 185 The treasurer of the county of , will pay from the school fund, to , or order, dollars, on account of . A. B. $ . County Superintendent Common Schools. 688 bajstceoft's California lawyer. Form of Armullmg a Certificate. Whereas, the trustees of common schools for the of , did, on the day of Anno Domini, 185 , issue to a certificate of qualification as a teacher in said ; Now, know ye, that upon further investigation and trial, the said has been found deficient and unqualified \or, has re- fused to conform to the regulations made by law.] "We do there- fore declare the said certificate to be annulled and void from this date, of which all persons whose duty it is to employ teachers of common schools, are hereby requested to take notice. A. B., CD., E. R, Trustees of Common Schools. To the Superintendent of Common Schools for the county of ,185 . Note. — It will be proper that notice of the annulling should be given to the county and state superintendents. Form of Poster , gwing otice of a District Flection for Addi- tional Taxation to Maintain Schools. To the electors of school district : Notice is hereby given, that an election will be held on the day of , at which will be submitted the ques- tion, whether you will authorize a tax to pay the expense of maintaining school for an additional term of months. It will be necessary to raise, for this purpose, the sum of $ and the rate of taxation necessary to be levied, will be cents upon the one hundred dollars of valuation of taxable property in the district. The polls will be opened at , between the hours of and . A full attendance is requested. A. B. CD. E. F. A. D. 185 . District School Trustees. Note. — The date must be twenty days prior to the time fixed for the election. The posters should be put up in a dozen con- spicuous places in the district. SCHOOLS. 689 Form of Poster, gwmg Notice of a District Election for Addi- tional Taxation, to Build SohoolSouse. To the electors of school district : Notice is hereby given, that an election will be held on the day of , at which will be submitted the question, whether yon will authorize a tax for the purpose of building a school- house in this district. It will be necessary to raise, for this purpose, the sum of $ and the rate of taxation necessary to be levied will be cents on the one hundred dollars of valuation of taxable property in the district. The plans and specifications of the proposed build- ing may be seen at The polls will be opened at , between the hours of and A. full attendance is requested. A. B., CD., E. F., , 185 . District School Trustees. Note. — ^The date, as before, must be twenty days prior to the election, and the posters should be put up in a dozen or more conspicuous places. Form of A^pomtment of Collector of Tax. To all whom it may concern : The electors of school district having, at an election held on the day of , A. D. 185 , authorized the levying of a tax, amounting to cents on the one hun- dred dollars of valuation of taxable property in the district, for the purpose of maintaining school for an additional term of months [or, building a school-house, as the case may ie], the trustees of the district hereby appoint to collect said tax, with all the powers to enforce the collection which are given to sheriffs and tax collectors in the collection of state and county taxes. A. B. CD. E. F. [Date.] Trustees of District. 44 690 Bancroft's califqenia lawyer. Census Hebu/ms. Eeport of the Common School Marshal to the County Superin- tendent, School Trustees and State Superintendent, for school year ending October 31, 185 , .1. f4 -« Q ,fl 1 :« o ^-■'- s § 13 1 i! "S ' goo 11 1 i "S n §13 it IS Bi II 1 1 5 ■3 -g ■3 ,11 1 a 9 B ft !2i !Z! ^ » H El EH !25 &< ^ 1 .^brm of Affidavit to le amended to the Census Betwrns. County of } SB I On this day of , A. D. 185 , personally appeared before me, the undersigned, a justice of the peace for the county and aforesaid, a duly appointed common school marshal, whose signatui-e is hereunto subscribed, and being sworn according to law, made oath that the facts set forth in the above report are just and true, according to the best of his knowledge and belief. A. B., Justice of the Peace. (Signed) Common School Marshal for Note. — ^This report must be made out in triplicate ; one for trustees, one sent to the county superintendent, and the third to the superintendent of public instruction. SCHOOLS. 691 District School Trtisfees' Report. Jieport of the Trustees of Cojnmon School of District, to the County Superintendent for the District of and County of , from , 185" , to 186 . s e es Zi li 1 II 1 i o l- a !2i Total number of .(;hUdren between the ages of four and eighteen, entitled by residence to enter the School within the School Boundary. 1 "i. c ei % B 1 Q S o s 1 .s 1 g. Know all men by these presents, that we, , the above-named plaintiffs, for and in consideration of , to us in hand paid by , the receipt whereof is hereby ac- knowledged, hereby release and discharge from the lien or liens of any attachment or attachments heretofore issued and levied in the above-entitled action, the following-described premises, situ- ated in the city of San Francisco, namely, all that &c., &c., so that the said property shall stand free and clear of the lien or all or any of aforesaid attachments, and be as if the same or any of the same had never issued ; but it is distinctly understood, that this release and discharge is only as to the property herein particularly described, and is in no way to affect, release or dis- charge property embraced in said attachment, or any of them, other than that herein set forth — and further, is in no way to af- fect or discharge plaintiff's cause of action in aforesaid suit. Dated, &c. [Signed Iry the Attorneys.] Bancroft's califoenia lawtee. Sheriff^s Bail Bond. State of California, ) . County of Santa Clara, j Whereas, in a certain action in the District Court of the third 1'udicial district in and for the county of Santa Clara, in which 'eter Smith is plaintiff, and Brigham Young is defendant, an order was duly made and delivered to the sheriff of the county of Santa Clara, requiring him forthwith to arrest the said defend- ant and hold him to bail, in the sum of ten thousand dollars ; and the said sheriff having arrested the said defendant and taken him into custody by virtue of the said order. ITow, therefore, we, Heniy Flint, residing at San Jos6, in the county of Santa Clara, by occupation a gunsmith, and Charles Steele, residing at Milpitos, in the said county, by occupation a farmer, are jointly, and severally bound in the sum of ten thou- sand 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 plaintiff the amount of any judgment which may be recovered in the said action. Dated the tenth day of November, 1869. Henet Flint. Witness, L. P. Peck. Chas. Steele. Bond of Indenmity to SJierif. Know all men by these presents, that we, Peter Hart, as prin- cipal, and John Bond and William Doad as sureties, are held and firmly bound unto John M. Murphy, sheriff of the county of Santa Clara, in the sum of one thousand 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 administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated {he tenth day of September, A. D. 1859. Whereas, under and by virtue of a writ of attachment issued out of the third District Court, in the action of Henry Cox, plaintiff, against Joseph Park, defendant, directed and delivered to said John M. Murphy, sheriff of the county of Santa Clara, 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 sufficient to satisfy the plaintiff's demand ; and the said sheriff did thereupon attach the following described goods and chattels : \here, insert statement.'] SHEEIFF. 699 And whereas, upon the taking of the said goods and chattels by virtue of the said writj the said Peter Hart claimed the said goods and chattels as his own property, and thereupon a jury was summoned by the said sheriff to try such claim, which said jury have by their flndiiig decided in favor of said claim. And whereas, the said plaintiff notwithstanding such finding, requires of said sheriff that he shall retain said property under such at- tachment, and in his custody. '. Now, therefore, the condition of this obligation is such, that if the said Peter Hart, John Bond and William Doad, their heirs, executors and administrators, shall well and truly indemnify and save harmless him the said sheriff, his heirs, executors and ad- ministrators, of and from all damages, expenses, costs and charges, and against all loss and liability which he, the said sheriff, his heirs, executors and administrators, shall sustain or in anywise be put to, for or by reason of the retention by him, the said sheriff, in his custody, under said attachment, of the prop- erty claimed as aforesaid, then the above obligation to be void, otherwise to remain in full force and virtue. Sealed and delivered ) Peter Haet. [l. s.J in presence of James Ceaig. f JoHiir Bond. [l. s.] William Doad. [l. s.] Sheriff'' s Becevpt of Execution. Third District Court. Peter 0. Minor | against > County Sheriff's Office. Henri Douillet. ) Received from A. L. Rhodes, attorney for plaintiff in the above action, for collection and execution therein, endorsed, Iqyj, and collect $500, with interest from the fourth day of June, 1859, besides fees, &c., and returnable in sixty days to Santa Clara county clerk's office. Dated June 30, 1859. J. M. MuEPHT, Sheriff of Santa Clara County. By JoHir K. Wilson, Deputy. Certijicate and Transfer of Sheriff on Sale of Personal Property — an Interest in a Contract. State of California. In the District Court of the Twelfth Judicial District, in and for the County of San Mateo. - Henry Haws ) against > William Jones and Charles Brown, ) I, John W. Aekerson, sheriff of the said county of San Mateo, do hereby certify that, by virtue of an execution in the above 700 BANCEOFT'S CALIFORNIA LAWYER. cause, tested the 31st day of October, A. D. 1858, by whicb I was commanded to make the amount of $ , to satisfy the judgment in this action, with costs and interest thereon, out of the personal property of "William Jones, one of the above defendants, and if sufficient personal property could not be found, then out of the real property belonging to the said defendant, "William Jones, on the 17th day of August, A. T>. 1858, or at any time thereafter, as by the same writ, reference being thereunto had, more fully appears ; I have levied on, and this day sold at public auction, according to the statute in such case made and provided, to the above-named plaintiff, Henry Haws, who was the highest bidder, for the sum of five (5) dollars, which was the whole price paid by him for the same, the following-described personal prop- erty, to wit : all the interest of said defendant, William Jones, in a certain written contract in the Spanish language, entered into between, and signed by, Messrs. Jones & Parker, lawyers, of the one part, and Pedro Castillo of the other part, which contract is dated June 20, 1852, and is subscribed by James Church as a witness thereto, the original whereof is hereunto annexed. That said personal property is not subject to redemption, there- fore I, "W. John Ackerson, sheriff, as aforesaid, in consideration of the premises, and of the said sum of live dollars, so bidden, and to me in hand paid by the said Henry Haws, do hereby sell, assign, transfer, and set over uiito the said Henry Haws,, his heirs, ex- ecutors, administrators, and assigns, all the right, title, and interest of said defendant, "William Jones, in and to the above-mentioned and described contract in the Spanish language, and hereto an- nexed, with all the benefits, rights, and remedies thereunto belonging, as fully and effectually as I, as such sheriff, may, can, or ought to sell, assign, transfer, and set over the same under and by virtue of the aforesaid execution. ^ In witness whereof, I, the said John "W. Ackerson, sheriff, have hereunto set my hand and seal this second (2d) day of January, A. D. 1859. John W. Ackeeson. [l. s.J Sealed and delivered ) Sheriff, &c. in presence of j Qertifioate of Sale of Ileal Estate on Exeffation. In the District Court of the Twelfth Judicial District, in and for the city and county of San Francisco, of the state of Calffornia: Hubert H. Bancroft, \ against >■ Nahum Brown. ) _ I, Charles Doane, sheriff of the city and county of San Fran- cisco, do hereby certify, that by virtue of an execution in the above cause, tested the tenth day of May, A. D. 1859, by which SHERIFF. 701 I was commanded to make the amount of twenty-flve thousand dollars, to satisfy the judgment in this action, with costs and interest thereon, out of the personal property of the above defendant, and if suflScient personal property could not be found, then out of the real property belonging to the said defendant, on the eighth day of May, 1859, 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 George L. Kenny, who was the highest bidder, for the sum of ten thousand 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 No. 1, five thousand dollars ; parcel No. 2, five thousand 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 thirtieth day of May, A. D. 1859. Chas. Doanb, Sheriff. Certificate of Sale under an Order of Sale. I, Charles Doane, sheriff of the city and county of San Fran- cisco, in the state of California, do hereby certify, that under and by virtue of an order of state issued out of the District Court of the fourth judicial district, in and for the city and county of San Francisco, of the said state, in the action of Benjamin Lawrence against John Gudgeon, duly attested the tenth day of January, A. D. 1859, and to me, as such sheriff, duly directed and deliv- ered, whereby I was commanded to sell the property hereinafter described, according to law, and to apply the proceeds of such sale toward the satisfaction of the judgment in said action, amounting to the sum of one thousand dollars, with interest and costs of suit, I duly levied on, and on the sixth day of January, A. D. 1859, at 12 o'clock, noon, at the court-house doors, in the city and county of San Francisco, I duly sold at public auction, according to law, and after due legal notice, to Beverly 0. Duer, who made the highest bid therefor at such sale, for the sum of eight hundred dollars, which was the whole price paid, the real estate in said order of sale, described as follows, to wit: \_de- scrmtion.] And I do hereby further certify, that the said property was sold in one parcel, that the said sum of eight hiindred 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 sixth day of January, A. D. 1859. Chas. Doanb, Sheriff, &c. 702 banceoft's oalifobnia lawyer. Sh&riff's Deed on Sale under Execution. This indenture, made this third day of August, A. D. 1859, between Charles Doane, sheriff of the city and county of San Francisco, of the first part, and Thomas Cole, Jr., of the city and county of San Francisco and state of California, of the second part : Whereas, by virtue of a writ of execution issued out of and under the seal of the District Court of the twelfth judical district, of the state of California, in and for the said city and county, tested the fourth day of January, A. D. 1859, upon a judgment recovered in said court on the second day of January, A. D. 1859, in favor of George Wyckoff and against John Cook, to the said sheriff directed and delivered, commanding him that of the personal property of the said judgment debtor in his baili-- wick, he should cause to be made certain moneys in the said writ specified, and if sufficient personal 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 second day of January, A. I). 1859, 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 obe- dience 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 here- inafter particularly set forth and described, with the appurte- nances, and did, on the thirtieth day of January, A. D. 1859, sell the said premises at public vendue, in front of the city-hall, in the city of San Francisco, in said county, between the hours of nine in the morning and five 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 advertising the same according to law : at which sale the said premises were struck off and sold to Thomas Cole, Jr., for the sura of ten thousand dollars, he, the said Thomas Cole, Jr., being the highest bidder, and that being the highest sum bidden, and the whole price 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 certificate as is by law directed to be given, and filed in the office of the recorder of the county of San Francisco a du- plicate of such certificate: and whereas, six months after such sale have expired, without any redemption of the said premises having been made : Now this indenture witnesseth, that Charles Doane, the sheriff aforesaid, and party hereto of the first part, by virtue of the said writ, and in pursuance of the statute in such case made and pro- ' ' SHEEIFF. 703 vided, for and in consideration of the sum of money above men- tioned, to him in hand paid as aforesaid, by the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, conveyed and confirmed, and by these presents doth grant, bargain, sell, convey and confirm unto the said Thomas Cole, Jr., his heirs and assigns, all the estate, right, title and interest of the said John Cook, which he had on the said second day of January, A. D. 1859, or at any time afterward, or now has of, in and to all the following described premises, viz. : [descrijption,'] together with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise apper- taining, to have and to hold the said above mentioned and described premises with the appurtenances, unto the said Thomas Cole, Jr., his heirs and assigns forever, as fully and absolutely as he, the sheriff aforesaid, can, may or ought to, by virtue of the said writ and of the statute in such case made and provided, grant, bargain, sell, release, 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, the day and year first above written. ChaS. Doaije, [l. s.J Sealed and delivered in the ) Sheriff, &c. presence of . j State of California, | City and County of San Francisco, j ' On this day of , A. D. one thousand eight hun- dred and , before me , a notary public in and for said city and county, personally appeared Charles Doane, sheriff of the city and county of San Irancisco, to me personally known to be the individual described in and who executed the fore- going instrument, and acknowledged to me 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 afliixed my official seal, the day and year first above written. A. B., Notary Public. Sheriff ^s Deed of Property on Mortgage. This indenture, made this second day of August, A. D. 1859, between Charles Doane, sheriff of the city and county of San Francisco, of the first part, and Samuel S. Seward, of the city of San Francisco, of the second part, witnesseth : Whereas, in and by a certain judgment or decree, made and entered by the District Court of the fourth judicial district of the state of California, in and for the city and county of San Francisco, on the tenth day of January, A. D. 1859, in a certain 704 Bancroft's califoenia lawteb. action then pending in said court, wherein Joseph Jones was plaintiff, and Paul Sampson and A. B., C. D., E.T., &c., 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 city and county of San Francisco, in the manner required by law, and according to the course and practice of said court, that such sale be made in front of the city-hall, in the city and county of San Francisco, between the hours of nine o'clock in the forenoon and five o'clock in the 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 iisual certi- ficates and deeds to the purchaser or purchasers, as required bylaw. And whereas, the said sheriff did, at the hour of twelve o'clock atnoouj on the tenth day of February, A. D. 1859, after due pub- lic notice had been given, as required by the laws of this state, and the course and practice of said court, duly sell at public auc- tion in the city of San Francisco, 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 judgment or decree, and hereinafter described, were fairly struck off to Samuel S. Seward, the party hereto of the second part, for the sum of five thousand 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 the said sheriff the said sum of money so bidden by him ; and whereas the said sheriff thereupon made and issued the usual certificate in duplicate of the said sale in due form of law, and delivered one thereof to the said purchaser, and caused the other to be filed in the county recorder's office of San Francisco 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 judg- ment debtor, the said , or by or on behalf of any other person. Ifow 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 aforesaid, in pursuance of said judgment or decree, and in conformity to the statute in such case made and provided, and also, in consideration of the premises and of the said snm of five thousand 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 city and county of San Fran- cisco [here insert description], together with all and singular the SHEEIPF, 705 tenements, hereditaments, and appurtenances thereunto belong- ing, or in anywise appertaining, and the reversion and reversions, remainder 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, Paul Sampson, of, in, and to the above-described premises, and every part and parcel thereof. • To have and to hold, all and singular, the premises above men- tioned and described, and hereby conveyed, or intended so to be, together with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, bene- fit 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. Chakles Doaj^e. [l. s.] Sealed and delivered in the presence ) of Wm. Meeeiam. j Sheriff's Deed, for Zand sold on Execution to saUrfy Balomce due after Mortgage Sale. This indenture, made this day of , A. D. One thousand eight hundred and fifty-eight, between John W. Acker- son, sheriff of the county of San Mateo and state of California, acting in his official capacity as such, party of the first part, and Horace Hawes, of the city and county of San Francisco, and state aforesaid, party of the second part, witnesseth : "Whereas, by a certain writ of execution issued out of the Dis- trict Court of the twelfth, judicial district in and for San Mateo county in said state, directed and delivered to the said party of the first part, sheriff' as aforesaid, tested the sixth day of March, A. D. one thousand eight hundred and fifty-eight, he, the said sheriff, was commanded to satisfy the deficiency or balance due on a cer- tain judgment rendered and docketed in the above-named court, in the action of said Horace Hawes vs. Ephraim Bland, which said deficiency was the sum of fifty-five thousand eight hundred and eighty-eight ,^°„ dollars ($55,8S8fo''o), 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 San Mateo, Or at any time thereafter : and whereas the said John W. Ackerson, sheriff as aforesaid, and party of the first part hereto, after receiving said writ, and before the return day thereof, did, by virtue ot the same, levy or seize and take the lands hereinafter described, for want of sufficient personal property to satisfy the said deti- 45 706 bajs-ceoft's California lawyer. ciency or balance due on said judgment, and did, in pursuance of, and in all respects conformably with the above-recited execu- tion and of the statute in such case made and provided, on the twenty-seventh day of March, A. T>. one thousand eight hundred and fifty-eight, in front of the court-house door in Kedwood city, in said county of San Mateo, sell at public auction, all and sin- gular the premises hereinafter described, in separate and dis- tinct tracts or parcels, as the same are hereinafter described, hav- ing first given 'due public 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 said Horace Hawes, party of the second part hereto, for the aggregate amount of two hundred and fifty dol- lars, namely : the tract of land firstly hereinafter described, for the sum of one hundred dollars ($100) ; the tract of land secondly hereinafter described, for the sum of one hundred (100) dollars, and the tract of land thirdly hereinafter described, for the sum of fifty (50) dollars, the said Horace Hawes, 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 whole price paid therefor, making in the aggregate the said sum of two hundred and fifty dollars. And whereas, after receiving from the said purchaser the said sum of money by him so bidden as aforesaid, the said John W. Acker- son, sheriff as aforesaid, gave to him, the said Horace Hawes^, purchaser as aforesaid, a 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 San Mateo, the said premises sold beiiig 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 wit- nesseth, that the said John W. Ackerson, sheriff of the said county of San Mateo, and party of the first part to these presents, in order to carry into effect the said sale, made in pursuance of the execution aforesaid, and by virtue of the statute in such ease made and provided, in consideration of the premises and of the sum of two hundred and fifty dollars so bidden and paid at the time of the sale, by the said party of the second part to the said John "W. Ackerson, sheiiff as aforesaid, the receipt whereof he doth hereby acknowledge, hath granted, bargained, sold, aliened, re- leased, 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 forever, the real estate described as follows, to wit : [here insert ckscription,] and also all the estate, right, title, interest, trust property, claim and demand which the said Ephraim Bland had in the said several tracts or parcels of land, or any part thereof, on the 17th SHERIFF. 707 day of August, A. D. 1857, being the day when the said judg- ment was docketed in the aforesaid county of San Mateo, or upon the day when the aforesaid levy was made, under and by virtue of the hereinbefore mentioned execution, or had at any time since or now hath : to have and to hold the said above-granted ajid described tracts of land and premises, and every part and parcel thereof, with the rights, privileges, hereditaments and ap- purtenances 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 here- unto set his hand and seal, the day and year fii'st hereinbefore written. Jokn "W". Aoejeeson, Sheriff, id. 185T, p. 829. » id. 1857, pp. 326, 82T. TAXES. 711 first day of March and the first Monday of Angust. If not paid before the first Monday of August, it shall be four dollars.' STAMP DUTY. The following duty or stamp tax is hereby imposed on every sheet or piece of paper, parchment, or other material upon which may be written, printed, engraved, or lithographed, or other means of designation, on either of the following-described instru- ments, to wit : Any bill of lading, contract, agreement, or obligation for the transportation or conveyance from any point or place in this state, to any point or place without the limits of this state, of any sum, amount, or quantity of gold or silver coin, in whole or in part, gold-dust, or gold, or silver, in bars or other form, by or between any person or persons, firm or firms, corporation or corporations, or other associations, either as principal or agent, or attorney, or consignee, or consignor, to wit : for one hundred dollars, thirty cents ; and all sums over one hundred dollars a stamp tax or duty of one-fifth of one per cent, upon the amount or value thereof, the payment whereof to be included in the bill of lading, con- tract, or agreement, or obligation for the transportation or con- veyance thereof, as in this section provided, having attached thereto, or stamped thereon, a stamp or stamps, expressing, in value, the amount of such tax duty. Any license to practise, or certificate of admission of any attorney at law, granted by any court in this state, ten dollars. Any policy of insurance, contract, or instrument in the nature thereof, upon any house, factory, machinery, ship, steamer, or vessel of any description, any goods, wares, or merchandise, or furniture, or any life insurance, if to run for one year or more, one-half of the duty levied on bills of lading, as herein provided ; if for nine months and not more than twelve months, three- fourths of the rates last above established ; if for six months and not over nine months, one-half of the above established rates ; if for three months and not over six months, one-fourth of the above established rates. Any receipt for the payment for, or any contract, certificate, or 1 Laws 1857, p. 343. 712 bajjcboft's calipoenia lawyer. memorandnm or reimineration relative to the purchase of passage from this state to another place out of the limits thereof, upon any vessel or steamship— if for a first-class passage six dollars, and if for a second class passage four dollars, and if for a steerage passage two dollars. ' Provided, that nothing in this act shall be construed to affect, in any way, the official drafts or shipments of treasure at the offices of the United States or of this state.' No instrument or writing whatever, charged with the pay- ment of duty as aforesaid, shall be pleaded, or set up, or given in evidence in any court, or admitted to be available, in law or equity, but shall be and remain absolutely void, unless the same shall be stamped or marked as aforesaid." LICENSES. There shall be levied and collected a quarterly yearly license tax, as follows : 1. From each proprietor or keeper of a billiard table, not kept for the exclusive iise of the owner or his family, for each table, ten dollars per quarter. For a nine or ten-pin or bowling alley, ten dollars for each alley ; license to be granted for a term not less than three months, to be paid to the county treasurer. 2. From the manager or lessee of every theatre, five dollars per day, if granted for a less time than one month. If granted for one month, one hundred dollars shall be paid. If granted for three months, two hundred dollars. If granted for one year, six hundred dollars. And for each exhibition of sere- naders, or opera or concert singers, the same pay for license as is required for theatrical performances, to be paid to the county treasurer. 3. For each caravan, menagerie, exhibition for pay of bull and bear, or any collection of animals for public amuse- ment, twenty dollars for each exhibition ; and for each show of any figures, and for each circus, rope or wire dancing, or sleight of hand exhibition for reward, ten dollars per day, to be paid to the county treasurer ; provided, that any collections of animals and fowls, natives of California and the Sierra and Rocky Mountains be excluded from the provisions of this act. 4. From each and every insurance company, incorporated by laws of this state and 1 laws 1858, p. 306. " Wood's Dig. art. 3095. TAXES. Y13 transacting an insurance business therein, twenty-flve dollars per quarter year. 5. From each and every insurer or insurance company, foreign or otherwise, not chartered by this state, and transacting an insurance business therein, or agent or agents thereof, one hundred dollars per quarter.' <■ < Licenses shall be obtained by the person or persons, private association or corporation doing business in this state, engaged in one or all of the following occupations, tO' wit : in buying or sell- ing foreign or inland bills of exchange, or in loaning money at interest, or in buying or selling notes, bonds or other evidences of indebtedness of private persons, or state, county or city stocks, or stocks of incorporated companies, or in buying or selling gold dust, gold or silver bullion, gold or silver coin, keepers of savings banks or engaged as common carriers in transmitting or convey- ing gold-dust, gold or silver coin or bullion, from any place in this state to any place without this state, or from one to another place within this state, for profit, or engaged in receiving general or specific special deposits of gold-dust, gold or silver coin^or bullion, for profit ; ^ovided, that checks used in the transaction of business between parties within this state, shall not be included as being liable to the provisions of this act.' Brokers, such as deal in stocks, state, city or county securities, and dealei's in gold-dust, shall be divided into five classes, as fol- lows : those doing business to the amount of two hundred and fifty thousand dollars per quarter, and over, shall constitute the first class ; those doing business to the amount of two hundred thousand dollars, and less than two hundred and fifty thousand dollars per quarter, shall constitute the second class ; those doing business to the amount of one hundred thousand dollars, and less than two hundred thousand dollars per quarter, shall consti- tute the third class; those doing business to the amount of fifty thousand dollars, and less than one hundred thousand dollars per quarter, shall constitute the fourth class ; those doing business in any amount under fifty thousand dollars per quarter, shall con- stitute the fifth class. The license shall be obtained from the county auditor; and shall be given for the first class upon the payment of one hundred dollars per quarter; for the second 1 Wood's Dig. art. 8051-8058. 714 banceoft's califoenia lawtee. class, eighty dollars per quarter ; for the third class, forty dollars per quarter ; for the fourth class, twenty dollars per quarter; for the fifth class, fifteen dollars per quarter. Said amounts to be paid to the county treasurer, or collector of taxes of the county in which the party applying therefor desires to or does transact any one or all of the occupations specified in section one, and a separate license shall be obtained for each branch establishment, or separate house of such business located in the same county.' Bankers and dealers in exchange shall be divided into five classes, as follows : those drawing bills of exchange or drafts to the amount of five hundred thousand dollars or over, per month, shall constitute the first class ; those drawing bills of exchange or drafts to the amount of three hundred thousand dollars, and less than five hundred thousand dollars per month, shall consti- tute the second class ; those drawing bills of exchange or drafts to the amount of two hundred thousand dollars, and less than three hundred thousand dollars per month, shall constitute the third class; those drawing bills of exchange or drafts to the amount of one hundred thousand dollars per month, and less than two hundred thousand dollars per month, shall constitute the fourth class ; those drawing bills of exchange or drafts in any amounts less than one hundred thousand dollars per month, shaU constitute the fifth class. The license for the first class shall be given upon the payment of one hundred dollars per month ; for the second class, upon the payment of sixty dollars per month ; for the third class, upon the paj'ment of forty dollars per month • for the fourth class, upon the payment of twenty dollars per month ; for the fifth class, upon the payment of fifteen dollars per month. On the party paying the county treasurer or the collector of taxes an amount of money for license in proportion to the esti- mated amount of business specified in this article, and designa- ting the town, city or particular locality of the business estab- lishment, or branch thereof, for which the license is desired, the treasurer shall thereupon execute and deliver to such party a receipt therefor, in which he shall specify the amount of money paid, by whom paid, and the town, city or particular locality : » Wood's Dig. nrt. 30S1-8058. TAXES. 715 1. Upon the presentation of said receipt, the county auditor ehall issue and deliver a license to the party, under the seal of his office, in which license shall be stated the kind of business author- ized to be transacted, and the town, city or particular locality of such business establishment or branch. The auditor shall there- Tipon charge the county treasurer with the amount of money spec- ified in said receipt, in a book kept for that pui-pose, and shall file said receipt as a voucher in his office. The auditor shall be enti- tled to demand and receive one dollar, one-half of which shall be for the use and benefit of the county treasurer, for each license issued by him under this act, to be collected from the person receiving such license, and in no case shall any other fee be allowed to auditors for any service connected with the issuance of licenses. 2. The license thus obtained shall authorize the party to transact any or all the kinds of business or occupation therein specified, at or within the town, city or particular locality speci- fied in the same, within the limits of the county where obtained, during the term of three months from the date thereof, and no longer ; but may be renewed at the expiration of the term of three months, subject to change by the auditor's estimate, or by the affidavit of the party desiring removal, if no new estimate be made by the auditor.' , 3. Persons engaged in carrying letters, papers or documents from one part of this state to another, shall not be liable to obtain licenses for that purpose. 4. Licenses may be procured by the party in person, by agent or attorney, or by any one partner in the name of all the copartners; and in cases of corpo- rations, by application by the president, secretary or attorney of such corporation ; and the party in every instance making the application, shall make and subscribe an affidavit or affirmation before the county treasurer, who is hereby empowered to admin- ister the same, that he verily believes that the amount of busi- ness to be done by the business establishment, or branch thereof, within the next succeeding three months, will not exceed the estimate under which he applies for license; and in all cases where an under estimate has been made, the party having made such under estimate shall be required to pay the amount neces- i Wootl's Dig. art. 8051-8062. 716 Bancroft's California lawyer. saiy to make up the deficit before a new license shall issue. Licenses shall be procured immediately before the commence- ment of any business or occupation liable to license under this article, and shall be renewed quarterly thereafter.' 6. If any person or persons, corporation or corporations, or their agents, or the agent or agents of any banker or other per- son or persons, pursuing or commencing any of the occupations required by this article first to be licensed, neglect to take out or procure his or their license or licenses, in the manner pro- vided by this article, within ten days from the time of commen- cing the business required by this article first to be licensed, one hundred per cent, shall be added to the amount which such person or persons, or corporations, would have been liable to pay ; and it shall be the duty of the sheriff of the county to proceed immediately to the seizure and sale of the goods, wares, rights and chattels of any person or persons, corporation or corporations, so neglecting to pay the amount of their licenses in the manner provided by this article, in order to pay the amount of the license (with the addition of one hundred per cent, thereto), together with the costs of the seizure and sale; and in all such cases of neglect, it is hereby made the duty of the auditor to furnish the sheriff with an estimate of the amount due from the party so neglecting to procure license, but the sheriff shall proceed upon any other information ; and upon any wilful neglect on the part of the sheriff, it shall be the duty of the dis- trict attorney to proceed against hito upon his bond, and he shall be liable to pay double the amount of the license so neglected to be collected. Every person who may deal in goods, wares and merchandise, wines or distilled liquors, except the agricultural productions of this state, and except such as are sold by auctioneers or commis- sion merchants under license, or permission according to law, shall quarterly pay an amount of money for license as required by the class in which such person is placed by the auditor of the connty under tlie provisions of the succeeding section ; provided, always, that nothing herein shall be construed to extend to physi- cians, surgeons, apothecaries or chemists, as to any wines or 1 Wood's Dig. art. 8051-3052. TAXES. 717 spirituous liquors wliich they may use in the preparation or com- pounding of medicines for sick persons.' Every person who shall sell or vend any goods, wares or mer- chandise, wines or distilled liquors, drugs or medicines, jewelry, or wares of precious metals, and persons who keep horses or carriages for rent or hire, except mules, horses or animals used in transportation of goods, shall obtain from the treasurer of the county in which such business may be transacted, for any or all the branches of business herein enumerated, a license for the transaction of such business, at the following rates, to wit : all persons dealiug as aforesaid, shall be classed according to the amount of average monthly sales or of rents effected, in the follow- ing manner, that is to say : those who are estimated to make average monthly sales to the amount of one hxmdred thousand dollars or more, shall constitute the first class ; of seventy-five thousand dollars, and less than one hundred thousand dollars, shall constitute the second class ; of fifty thousand dollars, and less than seventy -five thousand dollars, shall constitute the third class; of forty thousand, and less than fifty thousand dollars, shall constitute the fourth class ; of thirty thousand and less than forty thousand dollars, shall constitute the fifth class ; of twenty thousand, and less than thirty thousand dollars, shall constitute the sixth class; of ten thousand, and less than twenty thousand dollars, shall constitute the seventh class ; of five thousand, and less than ten thousand dollars, the eighth class ; of one thousand, and less than five thousand dollars, the ninth class; of all amounts under that sum, the tenth class. The license for the first class shall be given upon the payment of fifty dollars per month ; for the second class, thirty-seven dollars and fifty cents per month ; for the third class, twenty-five dollars per month ; for [the] fourth class, twenty dollars per month; for the fifth class, fifteen dollars per month ; for the sixth class, ten dollars per month ; for [the] seventh class, seven dollars and fifty cents per month ; for [the] eighth class, five dollars per month ; for the ninth class, three dollars seventy-five cents per month ; for [the] tenth class, two dollars and fifty cents per month ; provided, that the sale of liquors or wines, by persons licensed under this sec- 1 Wood's Dig. art. 3051-30o2. 718 Bancroft's California lawyer. tion, shall not be in less quantity than one quart measiire. The moneys collected for licenses provided to be granted by this and the preceding section of this article, shall be paid to the county treasurer for state purposes, except classes ninth and tenth, which shall be paid into the county treasury for county purposes. The auditor shall furnish the treasurer with blank licenses for each class, for which he shall take a receipt, and the treasurer shall settle such accounts with the- auditor as often as once in each month; provided, that in the counties of Klamath and Hum- boldt, the treasurer may deliver to the sheriff blank licenses; provided, the treasurer shall be responsible for the same, and the -sheriff shall make no extra charge for collection.' All tavern or inn keepers, and all persons who may sell or dis- pose of any spirituous, malt or fermented liquors or wines, in less quantities than one quart, shall, before the transaction of any such business, take out a license or licenses from the county treasurer, as prescribed in this act, and make therefor the follow- ing payment, to wit: those making sales to the amount of ten thousand dollars or more, as a monthly average, shall constitute the first class; sales to the extent of five thousand, and not exceeding ten' thousand dollars as a monthly average, shall con- stitute the second class ; and all sales less than five thousand dol- lars, shall constitute the third class ; the license to be paid by the venders of the first class, shall be forty dollars per month ; of the second class, shall be twenty dollars per month ; of the third class, shall be five dollars per month.' Each travelling merchant, hawker or peddler, who shall carry a pack and vend wares, goods or merchandise of any kind, shall pay for each license ten dollars per month, and every such trav- elling merchant, hawker or peddler, who shall use a wagon for the purpose of vending any wares or merchandise of any kind, or wines or spirituous liquors, shall pay for each license or licenses, thirty dollars per month ; provided, that nothing herein con- tained shall be so construed as to apply to the productions of this state. Any county auditor in the state shall be authorized to issue the license contemplated in this section, which license so issued shall authorize the holder of the same to vend goods, 1 Wood's Dig. art. 8251-3258. TAXES. 719 wares and mercliandise, as set forth in such license, in any county in this state, and it is hereby made the duty of every justice of the peace and constable, to demand the license of any such ped- dler or hawker ; and if such person be found not to have a license as directed by law, the person so offering any goods or wares for sale shall be fined by any justice of the peace, in any sum not less than fifty dollars, nor more than one hundred dollars.' The licenses provided to be granted by this article, shall be granted for three, six and twelve months, at the option of the party applying for such licenses. Every person who shall trans- act or carry on any business specified in this article, without first procuring the license required, for each and every offence shall be liable to an action in the name of the county or of the state, as the case may be, in any court of competent jurisdiction, for double the amount of [the] required license, with cost of prose- cution ; and it is hereby made the duty of the district attorney to prosecute the suits provided for in the articles two, thi-ee and four of this act, and violations of the provisions of article two ; and in case judgment shall be obtained against the party prose- cuted, the court shall tax, as cost, against the defendant, the sum of fifteen dollars as' district attorney's fees, and include the same in the judgment; and the moneys, less attorney's fees, when received, shall be paid to the county treasurer, for state or county purposes, as the case may be.' Every passenger broker shall apply monthly to the county auditor for a license to pursue his said business, accompanying his application with a sworn statement, specifying the aggregate amount of the gross proceeds of sales, if any there be, arising out of his business for the previous month, and an estimate of the amount of the gross proceeds of sales for the next ensuing month, and further designating the city or county in which said business will be followed ; and the county auditor, upon receiv- ing said application, is hereby required to give to the applicant his written direction to the county treasurer to issue a license to the said passenger broker, upon the receipt of a sum of money to ' Wooil's Dig. art. 8051-8058. 720 Bancroft's California lawyer. be designated in said written- direction, which sum shall be equal to one per centum on the estimated amount of the gross proceeds of sales, as set out in the sworn statement, and thereupon the said county auditor shall charge the county treasurer with the amount due on said license ; but upon its appearing that the said license was not issued, the latter shall then be discharged. Upon the receipt of said written direction, and payment of the sum of money therein speciiied, for the use of the general fund of the state, the county treasurer shall make out and deliver a license to the party applying to pursue the business of a passenger broker for one month from date.' Upon any application for a license as aforesaid, the county auditor is required to examine the sworn statement of the appli- cant, showing the gross proceeds of sales in his business for the last month, and if the aggregate of these sales exceed by ten per cent, the estimate upon which the license for the preceding month was issued, then the county auditor is required to add to the amount of the license for the ensuing month, a sum 'equal to one per centum upon the excess of the receipts of the last month over the said estimate, and to express this amount in his written direction to the county treasurer, who shall only issue the license as aforesaid upon the payment of the entire sum specified by the said auditor.' The county treasurer shall be authorised to demand and re- ceive, before issuing the license, the additional sum of one dol- lar, for his own use, and one dollar for the services rendered by the county auditor.' Any person pursuing the business of passenger broker in this state, without previously having a license therefor, as herein pro- vided, shall be liable for each and every day he may pursu.e the said business without the said license, to a fine of five hundred dollars, to be recovered in any court of competent jurisdiction, in the name of the people of the state, on the relation of any citizen thereof, one-half of which said fine shall be for the use of the state, and the other half for the use of the relator.' > Wood's Dig. art. 312.6-8129. TAXES. 721 No person, not being a citizen of the United States, or wlio Bhall not have declared his intention to become such, prior to March 30, 1853 (California Indians excepted), shall be allowed to take gold from the mines of this state, or hold a mining claim thefein, unless he shall have a license therefor, as hereinafter provided/ The tax to be paid for each license shall be four dollars per month, and said license shall in no case be transferable." The collector may seize the property of any person liable to, and refusing to pay such tax, and sell at public auction at one hour's notice, by proclamation, and transfer the title thereof to the person paying the highest price therefor, and after deducting the tax and necessary expenses incurred by reason of such re- fusal and sale of property, the collector shall return the surplus of the proceeds of the sale, if any, to the person or persons whose property was sold ; provided, that should any person liable to to pay such tax in any county of this state, escape into any other county with the intent to evade the payment of such tax, then and in that event it shall be lawful, foa the collector to pursue such person, and enforce the payment of such tax in the same manner as if no such escape had been made. Any foreigner representing himself to be a citizen of the United States, shall, in absence of his certificate to that effect, satisfy the collector of the correctness of his statement by affidavit or otherwise, and that the collector be and is empowered to administer such oath or affirmation. All foreigners residing in the mining districts of this state shall be considered miners under the provisions of this act, unless they are directly engaged in some other lawful busi- ness avocation.^ Any person or company hiring foreigners to work in the mines of this state, shall be liable for the amount of the licenses for each person so employed." JUDICIAL DECISIONS. The act of May, 1853, does not violate that clause of the fed- eral constitution which guarantees to the citizens of each state 1 Wood's Dig. art. 810T. ' id. 8114 » Id. 8110. * id- 8121. 46 722 BANCROFT'S OAI/IFOENIA LAWYER. the same privileges and immunities which they are entitled to in their own states. The tax is not levied on the foreign owner of consigned goods in the hands of the consignee, but only upon their sale. All other consigned goods are taxed by the system of licenses, as part of the general property of the state.' The fact that the title of land is in dispute between the claim- ants and the United States, and that the claimants under a Mexican grant are not in possession, affords no ground for ex- empting the land from taxation.'' The claimants are either the owners or they are not ; if they are, they must pay the taxes on the land ; if they are not, they have nothing to do with the matter, and cannot enjoin the col- lection of taxes, having no authority to sue or defend for the United States." A. and Co. having on general deposit with B. and Co., of Marysville, seventy-five thousand dollars, a tax for county pur- poses was levied thereon, and payment demanded, both of B. and Co. and A. and Co. : held, that the tax was legal.' The levy of the tax created a judgment and lien on the prop- erty, having the force and effect of an execution, and could be enforced in the same manner.' The listing and valuation of real estate, for the purpose of taxa- tion, is an essential prerequisite to the validity of all subsequent proceedings. The assessment must be made by the assessor.' If no valuation was iplaced by the assessor upon the property, none can be placed upon it by the board of equalization. The board may alter the valuation, in order to equalize it, but cannot place the valuation in the first instance.* The board of equalization has no such arbitrary power as would authorize it, without notice, or evidence, or opportunity to the taxpayer to be heard, to increase his taxes indefinitely with- out right of appeal.' The legislature has a right to authorize a local tax for the pur- pose of internal improvements ; that it may authorize the local authorities to impose the tax ; this may be done upon petition or > 4 Cal. 46. 4 10 id. 6S9. ' 6 Id. 278. 5 Patten v. Green, A;■ Eesidence, 1859, . ) Place of business, , City and County Assessor. TAXES. 725 Assessed to Beoeipt gvoen on Payment of Taases. STATE, OITT AND COUNTY TAXES, 1858-59. Block. DesGription of Property. Amount of Assessments. Total Taxes. $3,081. Personal property, stock in trade Keal Estate. Fifty vara lot, No. 217, and im- ) provements \ $10,00000 10,000 00 $30 85 30 85 $61 70 Be particular to examine the above, and to have errors, if any, corrected. PAID m Cash, Coupons, Audited de- mand, Premium, Total. $61 70 San Francisco, let day of Sept., 1859. Keceived from A. B., the sum of sixty- one MO dollars, being the amount of state - and city and county taxes, on the above property, for the year ending 30th June, 1859. JoNATHAir Hunt, City and County Tax CoUector. Heoevptfor Moneys jpaid at Tax Sale. N"o. Sales Book Page Assessed to SAN FRANCISCO TAX SALE, 1868-59. Eeceived from , the sum of i^ dollars, being the taxes and costs, including the $2 for the certificate, on a lot on the line of street, commencing feet from the corner of street, thence feet, by feet in depth. The certificates of sale to be delivered on the surrender of this receipt. Block Page Dated this day of December, 1858. A. B., City and County Tax Collector. The certificates should be applied for within two weeks from this date. /26 bab'croft's califoenia lawyer. ■ , Certificate of Sale of Real Estate, for Won-Payment of State, and, San Frcmcisoo City and County Taxes, for the Fiscal Tear 1858-59. No. . Block . Page State of California, ) . City and County of San Francisco, ) I, Jonathan Hunt, tax collector of the city and county of San Francisco, do hereby certify that, by virtue of an act of the legislature of the state of California, entitled " An Act to provide Revenue for the Support of the Government of this State," ap- proved April 29th, 1857 ; and " An Act to amend the same," approved April 24:th, 1858 ; and also an act, entitled " An Act to provide for the Funding and Payment of the outstanding un- funded Claims against the City of San Francisco and against the County of San Francisco, as they existed prior to the first day of July, A. D. one thousand eight hundred and fifty-six," approved April 20th, 1858 ; I, as tax collector of the city and county afore- said, did, on the i8th day of October, 1858, levy upon the pTop- erty of which description is first hereafter given in this certificate, for taxes due to the state of California, and to the city ^d county of San Francisco, together with the costs and charges due there- upon ; that the said property was assessed for the fiscal year 1858- 1859 to and to all owners and claimants known or unknown : that said taxes were levied upon it according to law : that said taxes were not and had not been paid, and at the time of the sale hereinafter spoken of still remained due and unpaid : that publi- cation of the intention to seU for the taxes, including said prop- erty for said taxes, was made as provided by law : that said pub- lication was made by one insertion one time per week for three successive weeks in a supplement to the San Francisco Baily Times, a public newspaper published in the city and county of San Francisco ; that said insertions were made and published, one on the 20th day of November, A. D. 1858, one on the 27th day of November, A. D. 1858, and one on the 4th day of December, A. D. 1858. That said publication did designate the time and place of commencing the sale, which time was not less than twenty-one days nor more than twenty-eight days from the first appearance of the publication. That the property assessed, de- scribed thus : situated, located, lying and being within the city and county of San Francisco, was, on the day of December, A. D. 1858, in accordance with law, offered at public auction, in front of the said city and county court-house : that at said auction was the bidder who was willing to take the least quantity or smallest portion of said property, and pay the taxes and costs thereon, which taxes and costs, including the $2 for this certificate, were ,„o dollars : that the TAXES. 727 said smallest quantity of the above land was as is hereinafter described which was stricken off to , the said . That paid the full amount of said taxes and costs, and that therefore became the purchaser of the last described tract or lot of land. Said real estate was sold subject to redemption, pursuant to the statute in such cases made and provided. Given under my hand, this day of December, 1858. Tax Collector of the City and County of San Francisco. Tam Deed — Scm Francisco. No. Block . Page NON-PAYMENT OF STATE AND CITY AND COUNTY TAXES, FOR THE FISCAL YEAE 1858-59. This indenture, made and entered into this day of in the year of our Lord [A. D.18 ] one thousand eight hundred and , between Jonathan Hunt, tax collector of the city and county of San Francisco, party hereto of the first part, and ^ of of the second part. Witnesseth, that whereas, the tax collector of the city and county of San Francisco, by virtue and in pursuance of an act of the legislature of the state of California, entitled " An Act to provide E.evenue for the Support of the Government of this State," approved April 29th, 1857; and' "An Act to amend the same," approved . April 24th, 1858; and also an act entitled " An Act to provide for the Funding and Payment of the out- standing unfunded Claims against the City of San Francisco and against the County of San Francisco, as they existed prior to the first day of July, A. D. one thousand eiglit hundred and fifty- six," approved April 20th, 1858, did on the 18th day of October, 1858, levy upon the property of which description is first here- after given in this deed, for taxes due thereon to the state of California, and to the city and county of San Francisco, together with the costs due upon the same ; that the said property was assessed for the fiscal year ending the 30th day of June, 1859, to and to all owners and claimants known or unknown : that said taxes were levied upon it according to law ; that said taxes were not and had not been paid, and at the time of the sale hereinafter spoken of still remained due and unpaid ; that publi- cation of the intention to sell for the taxes, including said prop- erty for said taxes, was made as provided by law; that said publication was made by one insertion one time per week for mree successive weeks in a supplement to the San Frcmdsco Dcdly Times, a public newspaper published in the city and county of San Francisco ; that said insertions were made and 728 Bancroft's califoenia lawyee. published, one on the 20th day of November, A, D. 1858, one on the 27th day of November, A. D. 1858, and one on the Ath'day of December, A. D. 1858. That said publication did designate the time and place of commencing the sale, which time was not less than twenty-one days, nor more than twenty-eight days from the first appearance of the publication. That the property assessed, situated, lying and being within the city and county of San Francisco, and described thus : \des8mc6 from State, of Governor, duties to devolve on lieutenant- governor 6 17 on business of state, not to affect residence 11 19 Adimssion mio the VMori^ senators and representatives to request .Schedijle 12 ^firrww/Zfwe, to be encouraged. .... 9 2 Apportionment^ of senators and as- semblymen 4 29 same Schedule 14 Ass&mbVy^ members of, when and how chosen 4 3 term of office 4 3 to be qualified electors 4 4 must be citizens of the state one year, and of the county six months 4 5 Assembly, shall have solo power of 4 IS impeachment, number of 4 29 districts, how formed 4 80 Assodationa, for deposit of gold and silver may be formed 4 34 not to issue paper to circulate as money 4 84 to be prohibited by law from banking, etc 4 85 Atta4nd&r,mH of, prohibited 1 16 AUorney-General, liable to im- peachment 4 19 how chosen, term and eligibility. 5 IS how chosen .' 5 20 Bail, excessive, not to be required. . 1 6 all persons entitled tO—exception, 1 7 Ballot, all elections to be by 2 6 Banks, no charter to be gi-anted. ... 4 84 associations may be formed for de- posit, etc 4 84 such association not to issue paper to pass as money 4 84 Boimdary, of state 12 Bribery, person convicted, disquali- fied for office 11 17 laws shall be made disqualifying such persons 11 IS disqualifications of persons con- victed of 11 18 Census, to be t^lien in 1852 and 1855, and evo^ ten years thereafter, 4 28 OiUes a/nd Villages, provision to be made for incorporating, and re- stricting taxation, debts, etc 4 37 OUrks, of supreme court, election oi^ to be provided for 6 7 county clerk, election to be pro- . vided for 6 7 county clerk ex officio clerk of district court. 6 7 Cofmnissions, form of 5 15 Controller of State, liable to im- peachment 4 19 how chosen, term of office, and eligibility 5 18 how chosep an d elected 5 20 compensation of 5 21 Conciliation, tvibMhsls for 6 18 Congressional Districts^ how formed 4 80 Co/M^itt^io™, mode of amending 10 1 mode of revising and changing... 10 2 effect of Schedule ft. 754 INDEX. CONSTITUTION of California— Akt. Seo. Constitution, who entitled to vote on adoption of . '. Schedule 5 ■when and how submitted to peo- ple Bchedule 6 copy to be forwarded to the presi- aent of the United States, Sched- ule 7 certified copy to be filrniBhed sen- ators and representatives in Con- gress Schedule 12 Chntracts, obligation of, not to be impaired 1 1ft existing, not to be affected, Sched- ule 1 Coroner, election of, to be provided fbr 6 7 Corporations, how formed 4 31 laws creating, may be altered or repealed 4 31 dues from, how secared 4 82 definition of 4 88 right to sue, etc 4 88 banking prohibited 4 84 to be prohibited by law from banking and issuing paper money 4 35 liability of stockholders 4 36 nvunicipal. to be restricted in the Sower or taxation, contracting ebts, etc 4 87 state shall not be stockholder in.. 11 10 Ootmty Court, election of judge of, term of office, duties, etc 6 8 jurisdiction 6 9 compensation of jud^e not to be increased or diminished during term 6 15 Cowity Go7}&)^mn&rht8, system ol^ to be established 11 4 CoMT^q/'/S'e^fiictms, how composed... 6 8 juiTsdiction, duties, etc 6 8 Cowts, causes to be removed to courts created Schedule 2 Credit of State, not to be loaned, etc. 11 10 Crhne, rights of persons charged with ." 1 8 disqualifications of persons con- victed of certain 11 18 existing prosecutions not -affect- ed Schedule 1 Debts, state, limitation to creation of 8 not to extend to first legislature, ■- .Schedule 16 statement of receipts and expendi- tures to be published annually with laws 4 28 Defalcation. See Emb^zl&nent. Distriot Attorney, election of, to be provided for 6 1 District Court, judges of, liable to impeachment '. 4 19 judges, how elected and term 6 5 jurisdiction of (original) 6 6 in criminal cases and issues of fact from probate courtj unlimited. . 6 6 county clerk ex qfflcto clerk of . . . 6 7 time and place of holding to be providedfor 6 10 compensation of judge not to be increased or diminished during term 6 15 judge ineligible to any other office during term 6 16 District, congressional, senatorial, etc., how formed 4 30 Di/vorce, shall not be granted by the legislature 4 26 Education 9 ,£7ec^on, who entitled to vote at.. . 2 1 CONSTITUTION of California— Abt. Sbo. SlecMon, voter privileged from arrest 2 2 exempt from military duty on day of election 2 8 residence not to be affected by presence or absence in employ of government - 2 4 wlio not entitled to vote at 2 & tobebvballot 2 6 ty legtslaifwre, to be moa 'voce and entered on journal 4 88 free suffi-age, to be BupporJ;ed by laws regulating 11 18 laws shall be passed prohibiting bribery,tuihult,undu6 Infiuence, etc., at II 18 pluralityto elect 11 20 who entitled to vote at first Schedule 5 for adoption of the constitution, how conducted Schedule 6 officers to be elected at first. Do. 8 Electors, qualification of 2 1 privileged from arrest 2 2 exempt from militia duty on day of election 2 8 who disqualified from being 2 5 Mnbe^l&ment, to be punished as a felony 4 22 person guilty o^ incapacitated from holding office 4 22 Mcecutl^e Department, supreme executive power vested in the governor t 5 1 Sx post facto law, forbidden 1 IS JF'ees, not to be received by certain officers to their own use 5 21 not to be received by judicial offi- cers, except justices of the peace 6 11 Fvnes, excessive^ not to be im- posed 1 6 Fiscal Year, to commence July first 11 8 Foreigners, rights of property of, secured. 1 17 Forgery, disqualifications of persons convicted of 11 18 Governor, may convene legislature by proclamation 4 3 to issue writs of election to fill vacancies in legislature 4 13 to approve all laws 4 17 liable to impeachment 4 19 supreme executive power vested in 5 1 how and when elected, and term ofoffice 5 2 qualifications of 6 8 returns of election for, how made and published 5 4 pluralityto elect 5 4 in case of tie, legislature to elect 5 4 shall be commander-in-chief. 5 5 shall transact all executive busi- ness with the officers of govern- ment, etc , 5 6 may require information, in writ- ing, from the officers, on any suDJect relating to their duties. 5 6 shall see that the laws are faith- fnlly executed 5 7 shall have power to fill vacancies in office 5 3 may convene the legislature by proclamation 5 9 shall communicate, by message, to the legislature annually, the con- dition of the state, etc 5 '10 may adjourn the legislature in case of disagreement between the two houses... f ,..,.... 5 11 INDEX. 755 CONSTITUTIOM' of Californisr- Art. Seo. Governor, no person holding office under the United States or this state to exercise the office of. . . 5 12 shall have power to grant reprieves and pardons 5 18 may suspend execution ojf sen- tence for treason 6 13 shall report to legislature the re- prieves and pardons granted ... 5 18 lieutenant-governor to perform duties of, in certain contingency 5 17 compensation of , 9 21 shall have power to call out mili- tia, etc 7 8 GrwnU, form of 5 15 Sabeaa Corpus 1 6 may be issued by judges of su- preme, district, and county courts 6 4 ^omeaiea-f^ shall be protected 11 15 Sxtshand and WifL property o£ . howbeld 11 14 laws shall be passed^ clearly de- fining the rights of the wife, etc. 11 14 registration of wife^s property to be provided for. See Marriage 11 14 Ivrvpeach/nwnt^ how tried. 4 18 who liable to 4 19 Judgment on ' 4 19 iTifvpnaomn&nt for Debt, forbidden, unless in cases of fraud, ., 1 15 ZncLictment, person not to be held to answer for capital offence, unless on 1 8 prosecutions, in what name to be conducted 6 18 JntellecULal Xnvprovement, to be en- couraged 9 2 Judiciall>&pa/rUnm.t, power, where vested 6 1 tribunals for conciliation may be established, powers, etc ....... 6 18 causes to be reflioved . . . Schedule 2 JuMcial Decision^, provision to be made for their publication 6 12 free for publication to any person, 6 12 fudges, not to receive fees to their own use 6 11 compensation of, not to be in- creased or diminished daring term 6 15 ineligible to other office during the term for which elected 6 16 not to charge Juries relative to matters of fact 6 17 Jury, right of trial by, secured 1 8 no person to be held to answer for capital crime unless on present- ment, etc 1 8 charge to, how to be made 6 17 persons convicted of certain crimes disqualified from 11 18 Jvstices of the Peace, number, pow- ers, duties, etc., to be fixed by law 6 14 appeals from, to be fixed by law.. 6 14 Zcwos, to have uniform operation... 1 11 «c post facto, forbidden 1 16 impairing obligations of contracts forbidden , . .- 1 16 bill of attainder, forbidden 1 16 enacting clause of 4 1 must be approved by governor. . .4 17 how passed!^ over governor's veto, 4 17 how Dill may become a law with- out approval of governor , 4 17 statement of receipts and expend- itures of public moneys to be published annually with 4 23 CONSTITUTION of California^ Aet. Sbo- Loms, every law to embrace but one object, etc 4 25 no law to be revised or amended by reference to the title 4 25 provision to be made for speedy publication of 6 12 free to be published by any per- son ... 6 12 existing, not in conflict with con- stitution, not affected Schedule 1 to be published in English and Spanish 11 21 Leg^latme Department, vested in senate and assembly 4 1 sessions to be annual 4 2 may be convened by governor. ... 4 2 each house to choose its own offi- cers and judge of the election of its members 4 8 quorum to do busine&s 4 9 each house to determine the rules of its proceedings 4 10 howmember may be expelled.... 4 10 each house to. keep and publish a journal 4 11 apportionment of members of. . . . 4 29 shall prohibit banking, by law — 4 85 In all elections by vote, to be loma voce 4 38 may be convened by governor... . 5 9 shall establish a system of county and town governments 11 4 power to provide for board of su- pervisors 11 5 when and where first to assemble and organize Schedule 9 returns of first election to be laid before each house Schedule 10 to elect officers Do. 11 to elect United States senators.Do. 11 appointment of Do. 14 pay of members Do. 15 limitation of powers as to creation of debts 8 such limitation not to apply to first legislature Schedule 16 members privileged from arrest. . 4 12 exemption from civil process 4 12 vacancies, how filled , 4 18 doors of each house to be open, ex- cept when secrecy is required . . 4 14 neither house shall adjourn with- out consent of the other, for more than three days, etc 4 15 nor to any other place 4 15 any bill may originate in either house, etc 4 16 no bill to become a law till ap- proved by the governor 4 17 bill not returned by governor with- in ten days to become a law .... 4 17 assembly to; have sole power of im- peachment 4 18 senate to try all impeachments. . . 4 18 member not to be appointed to office created during his term. . 4 20 members to receive a fixed com- pensation, not to be increased during their term 2 24 every law to embrace but one ob- ject 4 25 no law to be amended by refer- ence to the title. ., 4 25 basis of representation in 4 28 Zibel, evidence on indictment for... 1 9 Xdeutenant-GoverTwr, liable to im- peachment 4 19 when and how elected 5 16 756 INDEX. CONSTITUTION of California^ Akt. Sbo. Ideutena/nt'Gov&morjtQTm.ot of&tiQ 5 16 powers and duties 6 16 qualificationB 6 16 m case of incapacity to perform duties or absence IVom state, president of senate to act. .:... . 5 16 compensation of, not to beincreas- ed or diminished during term. . 5 21 Lottery^ shall not be authorized, nor the sale of tickets 4 27 Ma/rriage^ contract o^ not to be in- validated for want of conformity to any religious sect. 11 13 proper^ of wife at, to be her sep- arate property, 11 14 laws shall be passed clearly defin- ing the rights of wife, etc. See Ilmba/nd and Wi/e. 11 14 Military, to be subordinate to civil power ; 1 12 standing aimy not to be kept in time of peace.....! 1 13 appropriation ibr standing army not to be for longer than two years, in time of war 1 13 Mihta/ry, s61dier,not to be quarter- ed in house without consent of owner.. 1 18 governor to be commander-in- chief 5 5 provision to be made for organiz- ing and disciplining militia 7 1 officers to be appointed as legisla- ture may d&ect,^ and commis- sioned by governor ^7 2 governor to have power to call out, for certain purposes 7 8 Moneys, FtibVio, statement of re- ceipts and expenditures to be published annually with laws. . 4 23 Moral vnvproveTn&rU, to be encour- aged 9 2 Oath of Office, form of 11 3 Office, member of legislature not to be appointed to any civil office of profit created during his term 4 20 person holding lucrative office un- der the United States, etc. to be ineligible to 4 21 person convicted of embezzlement, etc. to be ineligible to 4 22 vacancies in, to be filled by gover- nor 5 8 oath of 11 8 duration of. 11 7 person convicted of giving or offer- ing bribe, disqualffled from 11 17 laws shall be made disqualifying persons convicted of certain crimes : 11 18 QMcers, who impeachable 4 19 now tried for misdemeanors 4 19 certain, not to receive fees for offi- cial duties :..., 6 21 how elected or appointed. 11 6 to be supported by county, city, town, etc 11 9 existing, when superseded,. Bchi Schedule term of residence not to apply to certain Schedule 3 4 to be elected at first election . . Do. 8 when to be installed Bo. 18 Pa/rdov^, may be granted by gover- nor 6 18 P&r^v/ry, disqualifications of persons convicted 11 18 Pe/rpetndUes, not allowed— excep- "tion 11 16 CONSTITUTION of California— ' Aet. Sec. PeUUoTi, riffht of, secured 1 10 Pov}&r, pomical, inherent In, the people 1 2 Powei'8 of Government, distribu- tion of 3 1 President of Senate, to perform du- ties of governor in certain con- tingency 5 16 Press, liberty of, secured 1 9 Process, style of 6 18 Property, private, not to be taken for pitblic'use, without just com- pensation '. : 1 3 ProsecaUons^ existing, not affected Schedule 1 PwiMlvmemt, cruel or unusual, for- bidden.... 1 6 Seligion, freedom of secured 1 4 - not to render witness incompetent 1 4 licentiousness, not allowed 1 4 Eepr4SentaMon, to be apportioned according to population 1 14 Residence, for the purpose of voting, what not to effect 2 4 absence from state on business of state, not to effect 11 19 term of, not to apply to certain officers ' Schedule 4 Sights natural . . 1 1 enumeration of, not to impair otliers retained 1 21 existing, not to be affected. Sched- ule.... 1 SaUfriee, of governor and lieutenant- governor r . . . Schedule 15 pay of members of the legislature Schedule 15 of certain officers, to be fixed by legislature Schedule 15 Schools, fund for support of 9 2 provision to be made for system of common 9 B SdenUJic improvement, to be en- couraged 9 3 Searches, etc. security against, pro- vided for 1 19 warrant for, when to issue 1 19 Seat of Gov&rnment, where located. 11 1 Seoretary of State, liable to im- peachment 4 19 how chosen, term and eligibility. 5 18 appointed by the governor, by and with the' advice, etc. of the senate 5 19 Secreta4^ of State, Antiea of 6 19 compensation of, not to be increas- ed or diminished, etc 5 21 Senators, to be qualified electors ... 4 4 chosen for two years 4 5 must be a citizen of the state one year, and of the district six months.. 4 6 number of 4 6 to be divided by lot into two classes 4 6 one-half chosen annually 4 6 the two classes to be kept as nearly equal as possible 4 7 to try all impeachments 4 18 number of 4 29 districts, how formed - 4 30 in Congress^ when first to be elected. Schedule 11 to be furnished with copies of the constitution Schedule 13 ^terij^election of, to be provided for 6 7 Sla/o&ry, forbidden— exception 1 18 Spa/rvUh La/nguage, laws, etc., to be published tn. 11 21 INDEX, 757.. CONSTITUTION of California— Abt. Seo. '' iSpeecA, liberty of, secured 1 9 Sufrage^ free^ to be supported by law 11 IS right of, who entitled to 2 1 persona convicted of certain crimes disqualified from 11 18 Svdta agad)isi State, how hrought.. U ll Superint&itdmt of PuMio Instrtic- Hon, election, term, duties, and compensation. 9 i Supervisors^ board of, may be cre- ated 11 5 duties to be prescribed by law ..11 5 JSupreme Court, justices of, liable to impeachment 4 19 how composed 6 2 <[uorum, for business 6 2 justices^ how and when elected, . . 6 3. same, term of office of 6 8 same, to be classified 6 3 same, senior to be chief-justice... 6 3 appellate jurisdiction 6 4 power to issue certain writs 6 4 shall bo conservators of the peace, 6 4 clerk o^ election of 6 7 time and place of holding, to be provided for. , 6 10 compensation of justices not to be increased or diminished during term . . 6 15 justices ineligible to any other office during term for which elected 6 16 TaxaUpn^ to be equal and uniform, 11 13 on property, to be according to value, 11 13 assessors and collectoi-s, how elect-, ed 11 13 Tbion Govern/ttients, to be establish- ed as nearly uniform as possible > throughout the state 11 4 Treasurer of 8hU, liable to im- peachment 4 19 how chosen, term and eligibility. . ,5 18 tow chosen and elected 6 20 compensation of, not to be increas- ed or diminished during term. . 6 21 Treasivry^ no money to be drawn from, but by appropriations ... 4 23 an accurate statement of receipts and expenditures to be publish- ed annually with the laws 4 23 naembers of legislature to bo paid out of 4 24 7Ha2, rights of accused i 8 no person to be twice tried for the same offence 1 8 nor compelled to be witness against himself 1 8 nor deprived of life, liberty, etc., without due process of law 1 8 TTn^firsitUj fund for support of 9 4 VoUff"^ qualifications of. 2 1 residence ofi what not to affect... 2 4 who not entitled to be 2 5 in all elections by legislature, vote to be viva voce and entered on journal 4 38 person convicted of certain crimes disqualified as 11 18 Veto^ of governor 4 17 Witness^ not to be unreasonably de- tained 1 6 Yeas andl^ays, when to be entered on journal 4 11 CONSTITUTIONAL construction 43 GEETlFlCATE of acknowledgments and proof of instruments for recording, see ApKHOWLED&llISNTS. CONTRACTS— page seal, aasent, consideration subject matter, 201 married women, infants 202 fraud, lease, agent, to marry 208 auctioneers 126 prohibition of public officers to 204, 216 - punishment of fraudulent 205 time of actions upon 206 maiTiage , 401 verbal and written 215 of corporations 278 grading streets 535 statutory provisions 208 Btatate of limitations 206 hours of labor 213 age of majority 218 erasures and alterations 218 writing and signature 218 interest of money. 214 judicial decisions 214 Forms. contract of sala 217 agreement of sale '. . . . 21S agreement of barter 218 ^-eement to sell stock in a store 219 agreement with a clerk or workman .... 220 agreement to sell and deliver cord-wood, &c 220 builder's contract 220 agreement for building house, 222 agreement with a mason 223 party- wall agreement. . j ' 228 same, shorter form . . 226 agreement to sell shares of stock, &c . . . 227 agreement, or subscription, to raise mo- ney for benevolent purpose, &c 22S agi'eement to cultivate land on shares,. . 22& cancielling agi-eement 228 to extend mortgage, &c 609 to increase rat6 of interest, &c. 60S ,C0NVETANCES-7 ' see Deed, Assignment, Moetgage, Coh- TBAOTS. COEONEE— statutory provisions 23C bonds, fees, duties 230,283 jui'ors, subpcenas, witnesses 231 warrant, arrest, inquest 23S ForTThS. subpoena for jurors 284 subpoena for witness 234 subpoena for surgeon or physician 234 oath to coroner's jury 235 oath to witness .\ 285 inquisition 235 certificate of death. 236 warrant 236 COEPORATIONS— constitutional provisions 237 powers of 238 capital, meeting of 289 holding stock as executor 247, 261 married women 258 contracts of 278 officers, members, shares 240 liabilities of, dissolution 245 churches 251,248 general statute concerning 238 statutory provisitfns concerning corpora- tions for manufactming, mining, com- mercial, and other purposes 246 statute concerning religious and benevo- lent associations. 248 statute concerning orphan and certain relief societies 252 statutory jjrovisions concerning railroad companies , .\. . 258 same, plank-road companies 257 act concerning telegraph companies. ... 261 758 INDEX. COlfcPOEATIONS— JV>rms. page act concerning steam navigation com- panies 265 act concerning water companies 269 statutory provisions concerning insur- ance companies 272 statutory provisions concerning mutual insurance companies 2T8 act concerning agricultural societies 2T4 Oregon^ constitutional provisions 276 statutory provisions 277 act concerning religious societies. . . 277 WasMngton^ statutory provisions 277 JTidicial decisions 278 election of directors railroad company. . 281 certificate, incorporation of telegraph company 281 certificate, dock and wharf company 282 certificate, quartz mining company 383 certificate, water company 284 certificate, savings ana loan company... 285 certificate, vineyard company 285 certificate, benevolent society 286 certificate, seamen's friend society 286 certificate, orphan asylum 287 certificate, benevolent association 288 certificate, segar makers' association 289 certificate, lodge 289 certificate, Chinese mission 290 report of trustees 290 incorporation of a church 290 report of trustees of a church 291 petition by trustees of a church for leave to mortgage, and proceedings on same 292 petition for disincorporation 296 notice for publication 297 order of disincorporation 297 CRIMINAL F0KM8— see Magistrate and Justices' CotrETS. DEBTOR AND CREDITOR— see Insolvenot. DECISIONS upon constitution 48 DEEDS— acknowledging and recording 51 infants, married women, legal age 298 consideration, fraud, erasures, seal 299 delivery 800 <»fsift 301 recording 302 Oregon 808 Washington 303 Forms. deed of bargain and sale 804 by attorney in fact 305 quit-claim 805 quit-claim of interest 805 covenants to be inserted 805,806 gift of personal estate 307 gift of real estate 807 gift to married woman 308 trust deed for wife 808,809 release of property from attachment. . . 810 deed of confirmation 810, 811 coi-poration deed 811 exchange of lands 812 partition 812 of executoT or administrator 853 of and between husband: and wife 416 in bankruptcy 449 ^ sheriff's deeds 702 taxdeeds ..'..727 729 E8TRAYS, LAWFUL FENCES, AND ANIMALS TRESPASSING UPON PROPERTY— ' statutes concerning estrays 814 duties of justice , 815, 820 duties of persons 816 auctioneer must record sale of 821 ESTRAYS, ETC.- page statutes concerning lawful fences 821 . statutes concerning animals trespassing upon private property 828 Forms. estray notice 829 affidavit to be made 829 appointment of appraisers for estray .... 830 appraisement of estray 830 order for restoring estray 830 notice of sale 831 notice to show cause 831 ERASURES AND ALTERATION&- in deeds 299 in contracts 218 in instruments 56 notary > 56 EXECUTORS AND ADSJINISTRATORS— holding stock in corporations 247, 261 right of administration, qualification..,. 382 duties of, claims against, limitations 383 appraisement, sale, inventory 834 debts, accounts 335 surplud commissions 886 ForTTis. petition for probate of will 887, 338 letters testamentary 389 petition for letters of administration 339 bond of 340 order for letters. .841, 842 letters of administration 842 order revoking letters 848 order for special letters 843 appointment of appraisers 844 inventory, with affidavits, etc 844 petition for allowance 346 order setting apart property 347 order for allowance to family r. 348 order of publication of notice to creditors 348 notice to creditors, with affidavit of pub- lication 848 creditor's claim 849 petition for sale of personalty 850 order of sale of personalty 850 report of sale of personalty 351 order confirming same 851 deed of executor or administrator 852 exhibit to be made at third term 854 order to show cause on appUcation to sell real estate 855 order of sale of real estate 855 return of proceedings on sale 357 order confirming sale of real estate 853 petition to compel account 860 order for settlement of account 860 appointment of guardian, etc., on settle- ment of account 860 exceptions to account of administrator.. 361 order settling account 361 decree confiiming final account and closing estate 868 decree of distribxition 365 petition for a decree of partition 868 order closing estate 368 petition for appointment of gnardlan. . 369 guardian's bond 871 petition for sale of real estate by guardian 872 order of publication 878 order of sale by guardian 874 order allowing account of guardian 374 bond by guardian on sale of real estate. . S75 FENCES, LAWFUL— see EsTBAYB, etc. FOREIGNERS- rights of as to property and naturalization 877 naturalization 378 declaration of intention, how made 3T9 married women 860 foreign miners' license, see Minks, Min- ing, etc. INDEX. 759 FOREIGNERS— J?'(wms. p>.qb declaration of Intention 880 oath 881 proof of residence, etc 381 certificate of citizenship 381 declaration of intention for three years. 882 affidavit of alien minor 883 FEES— justice's, "when coroner 238 coroners' i... 280 clerks' 169 notaries' 61T executors and administrators 836 recording marriages, etc. 896 FRAUD— in contracts 203, 205 in assignments 101, 102 in deeds ,. 299 in marriage jcontracts 408 GVARBlAW—rorTm. Eetition for appointment 869 ond of 3T1 petition for sale of real estate 8T2 order of publication 873 order of sale. 874 order allowing account 874 boQd on sale of real estate 875 of insane person* 433 HOMESTEAD— not to exceed $5,000, mechanic's lien, husband and wife , 384^389, 390 taxes, property exempt from execution, 386 Oregon , and Washington 887 judicial decisions. .- ; 889 , , Forms. petition for homestead by insolvent 892 order of reference 893- order of homestead 394 order of allowance to family 348 HUSBAND AND WIFE— homestead rights 884-892 marriage contract ., 401-406 interests in property ^ . 407 fraud, desertion , 408 remarks T 895 marriage 395 registry of marriages, deaths, and births, &c..., :. 896 respective rights as to property 898 right of maiTied women as sole traders. . 402 power of married women to convey real estate 403 thBi;c power to n?ake wills, see Wilis. insurance of lives, for benefit of married women 404 divorce 404 judicial decisions 406 Oregon 409 dower 412 Washington Ten-itory 418 execution of instruments, see Aokstowl- ZDOUENTS. Forma. certificate of marriage 415 certificate of maniage in Oregon 418 form of marriage service 418 record of marriage 417 record of birth ., 41 7 record of death 417 record of divorce .• 417 deed from husband to wife 416 deed from husband to trustee 418 deed from trustee to wife 419 inventory of separate property of wife . . 430 deed from husband to trustee for use of wife 421 appointment of new trustee 423 articles of separation.j 423 settlement of a wife's estate in contem- plation of marriage 424 HUSBAND AND ^IV^— Forms. page deed of trast for benefit of wife. 425 declaration by married woman as sole trader 426 INDIANS— apprenticing of 72 to hire , r 75 vagrancy 76 INDUSTRIAL SCHOOL— see San" Franoisoo. INSANE, INDIGENT, SICK, POOR, AND VAGRANTS— insane patients 428 insane convicts 429 estate of insane persons 480 indigent sick 480 poor ; 480 vagrants : 431 Oregon and Washington 481 Forms. petition to appoint guardian for insane person .^ 432 order to bring up such person 482 appointment of guardian for. 482 bond of such guardian 433 iapplication to send a lunatic to the asy- lum , 434 certificate of county judge 435 INFANTS— binding by contract 202 conveying deeds 298 INTEREST— of money 214 rate of, in notes 146, 147 INSTRUMENTS- •- recording 51 erasures and interlineations 56 mistake in words 201 INSOLVENCY— remarkSi 436 assignments in 103, 486 liens, mortgages, and notes in . . , 438 petition in 439 for Oregon, see Assignment. judicial decisions. 437 Forms. petition in insolvency 441 oath of insolvent 442 schedule of estate and losses 448 schedule of debts owing. 443 schedule of property 444 schedule of debts due 444 certificate to schedule 444 order to show cause, and stay of pro- ceedings 445 notice from court to creditors 445 affidavit of publication. 446 assignment in insolvency 446 assignee's certificate 447 order of discharge for insolvent 448 deed in bankruptcy 449 order for payment of dividend , 450 general assignment for Oregon Ill JURORS- statutory provisions 462 coroner's jury 231 grand jury 454 who competent to act^ 452 who exempt 454 city and county of San Francisco 435 Forms. certificate of drawing a jury. 456 order for summoning a grand jury 457 order for summoning a trial jury 458 petition for summoning a grand jiiry.. .. 458 San Francisco Comity. order for trial jurors 459 certificate of drawing 459 order for grand jury, made before term. 460 officer's return on same 461 760 INDEX. JUE0E8— J'orww. page order for additional grand juries 461 order for summoning grand jury, made before term 462 order to summon trial jury after com- mencement.of term 462 officer's return 464 summons to juror. 463 order for special jury.......... 463 coroner's jury, see CToeoneb. JUSTICES' OOUETS— authority of justices 465 see Magistrate. ' jurisdiction of 466 . docket of.. 467 proceedings in 467 parties to actions 468 processes on commencing^ an action .... 468 the summons.. 469 the pleadings 469 rules of pleading 469 course of proceedings where the title to real estate is involved, 469 transfer of cause 471 proceedings on return of sumipons 472 judgnient Dy default or dismissal 4"2 trial. 472 verdict 473 execution 474 process and service thereof 475 commission to take testimony 475 appeal 476 forcible entryand unlawful detainer.... 477 Oregon and/Washington. 478 judicial decisions 479 summons * 488 complaint on written instrument 484 affidavit for order of arrest 484 undertaking on order of arrest 485 undertaking %y defendant oil order of arrest 485 venire 486 execution 487 attachment 486 notice of attachment 4S7 undertaking on release of attachment... 488 order on garnisher to appear and answer 488 constable s j ury summoljs ...* 489 attachment 489 notice of transfer to cause 489 satisfaction of judgment 490 notice of appeal 490 affidavit to prosecute appeal 491 appeal bond , . . . , 491 complaint for taking personal property, 492 complaint on claim and delivery of per- sonal property 493 affidavit on claim and delivery of per- sonal property 493 undertaking on same 494 affidavit for attachment 495 undertaking on attachment 495 bond of indemnity 496 complaint, forcible entry, etc 497 Bumm'oijs, forcible entry, eta 498 wilt of restitution ... ; 499 see Landloed and Tenant. transfer of criminal cause . 499 search-warrant 499 see Magistaatb. Forma i/n Oreg&ii. certificate of election 600 oath of office 500 official bond 500 deputation of special officer 601 summons 601 wan-ant 601 subpcena 602 venire , . 602 JXTS^OES' COURTS— ^wmJ. pagb execution - 502 ex,ecution against the body 503 execution against principal and surety, . 608 order in replevin 503 attachment 504 forcible. entry summons 604 writ of restitution 504 undertaking on arrest 505 undertaking in replevin. ^06 undertaking in attachment .• ... 505 undertaking to. discharge attachment. . . 506 indemnity bond * , 506 , Grrnmial Forma, Oregon. warrant 507 execution 50T certificate of conviction 507 commitment on sentence 508 peace warrant..,, 508 commitment to answer in District Court 508 commitment, when justice has not juris- diction 510 search-warrant 509 LANDLORD AHI> TENANT— remarks 511 tenancy for life 511 tenancy for yearfl ■ 511 tenancy at sufferance 512 tenancy at will 512 tenancy from year to year. 512 notice to teraiinate tenancy 512 assignment and underlease 51S forfeiture , 514 restitution. 515 judicial decisions . *• — 516 statutes of Oregon 517 statutes of Washington 519 Forma. landlord's agreement.. i 519 tenaht^s agreement 519 lease 520 lease, with covenant to build, etc 620 lease, with convenants 523 assignment of lease, by way of mort- gage,, 528 agreement for a lease 524 suiTcndet of lease 525 notice to quit liy landlord 52ti demand of possession 526 notice of q^uitting.by tenant -52T summons m detainer for rent due 627 complaint in detainer, after rent due. . . 528 writ of restitution 529 LAND WAERANT— see NoTABT — Fotttis. LAWFUL FENCES, &o. see EsTBATS, &c. LIMITATIONS— statute of 206 of actiou upon contracts 210-212 LEASE— see Deeds, Contracts, Lakdlobd and Tenant, &c. LICENSES— see Tax^s. LIEN OF MECHANICS AND 0THEE8— statutory provisions 631 in insolvency. 438 recording of. 581 on homesteads 884 contracts gi-ading streets 535 judicial decisions.. 536 statute Oregon 53T statute Wadiington 688 FovTiia. notice of mechanics' lien. 539 notice of intention to hold lien 641 notice to Jien men 541 order of reference to compute liens 643 INDEX. 761 LUNATICS— le PAGE see liSSANE-pERSONB, &c. MAKEIED , WOMEN-- aeknowledgments of. 52, 64 . incapacity to contract : . 202 may be incorporatorB 253 deeds .....,., 298 may .be natutallzed 880 homestead rights '. .884-893 rights as sole traders 402 life ii.suranc6. for benefit of 404 power to convey real estate 403 injusticesVcourta 468 MABEIA^E AND DIVOECE— contract to 203 homestead affected by 892 actions for divorce....... 404 in Oregon 411 in Washington 414 MAGISTRATE— statutory provisions. 543 wari'ant and arrest 548 proceedings in arrest 544 proceedings on examination. 544 preserving the peace 549 see Sheriff. proceedlngs.to keep the peace... 549 JP'orms. complaint to obtain surety of the peace. 550 peace warrant * 551 peace bond 552 complaint — larceny 558 warrant of arrest 553 certificate of co-clerk, to be endorsed. . . 554 affidavit to bo endorsed 554 order to serve warrant in another coun- ty endorsed 554 order of discharge 654 order holding defendant to answer 554 bail-bond , 556 commitment. 556 San Francisco county 555 application to enter person at the indus- trial school.... 555 order .of , arrest, to send to industrial . school 555 commitment to industrial school.. ...... 55T MECHANICS' XIEN— . see XoEK, etc. MINES, MINING-, & WATER EIGHTS— I.— The Eight ofijie State in the Mi/nes— the common law in reference to the title to mines 558 the doctrine recognized in the United States 558 the rights of the state 558 II. — The Eights ofMi/ners — ^ the dedication of the right to mine on public lands 659 Ist, The right to mine upon lands oc- cupied for grazing or agricultural purposes ■ 559 the policy of government in regard to miniug lands 559 the right to search for gold in lands already occupied for agricultural purposes •" 559 this right extends only to public lands 560 the " act to protect the owners of grow- ing crops,^' etc 561 2d, The right to mine upon lands al- ready, occupied for other than graz- ing or agricultural purposes 562 cases in reference to the rights of miners as against the occupants of land fo? other thAD agricultural and mining purposes 562-566 8d. The rights of foreign miners 566 atatutes i^, reference to foreign min- ers , , , ^ .,...,. . .566-570 MINES, MINING, & WATER EIGHTB-pagb decisions in reference to the rights of ibreign miners 571 4th. The jurisdiction of mining actions . and the laws governing such actions 572 the customs and usages Ln force at each particular camp, diggings, etc., to have the. force of law 572 jurisdiction of mining actions 573 jurisdiction of justices' courts 572 receivers in mining actions 578 .jurisdiction of District Courts 574 6th. The rights of miners with respect to each other.. 575 miners' right to remove nuisance 575 right to.plape for deposit of tailings. .. 576 right to tailings 578 work upon claim— what shall be so construed 576 location or taking up of claim 576 lll.— Wat&r Eiglvta— water rightsat common law 576 doctrine in regard to artificial water- courses 677 doctrine in this state in regard to , water rights 57T cases in reference to water rights 578 policy of the state in regard to the construction of ditches, etc 579 appropriation of water 680 rule of priority 580 damage from breaking of canal or ditch ^ 682 rule in regard to negligence 582 priority of appropriation 582 IT. — Miscella/neo'us matters comiected idWi the general subject — sale of mining claim or water right should be by deed 683 * mineral lands not reserved fi-om loca- tion of school-land warrants 588 to carry off or divert water flowing to a mining claim, a nuisance , 588 when rights to the use of water be-. come fixed 588 the rule of care in construction and management of ditch 563 the doctrine of fixtures on mineral lands 583 ^ovTns. notice of claim of mining land 564 renewal of notice 584 transfer of mining claim 584 assignment of mining claim 585 surety bond to perform miniog contract, 586 agreement of indemnity 586 foreign miner's license 587 forms ,of mining laws and regulations . . . 588 chattel mortgage by a water-right com- .pany. 592 MORTGAGE— judicial decisions... 596 satisfaction of 56 joint 803 upon homestead 596 in insolvency 438 foreclosure 597 statutory provisions 59T see Debds, Comtracts, etc. ^onns. short form of mortgage 600 without bond >or note, etc 600 with full covenants. 601 satisfaction of 605 byway of indemnity 605 release of part of mortgaged premises... 607 agreement to increase rate of interest, etc. 603 agreement to extend the time for pay- ment of mortgage 609 assignment of lease, hj way of mortgage 610 762 INDEX. NATURALIZATION— page see FOKBIGNERS. statutory provisionB 615 NOTAET- may iasne subpoena 56 cannot alter his certificate 56 seal, bond..^ 615 acknowledgment, record 616 Srotest, fees 617 emand, protest, and notice 619 judicial decisions 618 Oregon 622 Washington 628 Forms. notary's bond 624 justification of same 625 certificate of approval 626 endorsement of county clert on same. . 625 \ general form of notary"'s certificate 626 protest for non-acceptance 625 protest for non-payment 626 notice of protest for non-acceptance .... 628 notice of protest for non-payment 627 certificate of notary protest 628 marine protest 628 pre-emption forms 680 school-land warrant fonns 632 bounty-land warrant forms 638 forms as to assignment and location of same 684-540 NOTES— see BiLis or Exchange, &c. OFFICE, OFFICIAL BOND, &o. see Public Officers. PEOOF OF INSTRUMENTS to be re- corded, see Acknowledgments. PEE-EMPTION— see NoTAEY — Fovms. PAETNEESHIP— v remarks 641 statute concerning limited partnership, 643 judicial decisions 646 F(^m%: partnership articles 648 commercial partnership 648 theatrical partnership 650 Eeneral copartnership 651 irming partnership 658 agreement to enter into a partnership. . 654 agreement to determine disputes by ar- biti'ation 655 agreement to make changes in a partner- ship 656 agreement of limited partnership 658 certificate of limited partnership 660 affidavit of publication of same 661 POWEE OF ATTOENET— remarks , 662 judicial decisions '.^ 663 Oregon and "Washington 663 F&rms. short form of power. 664 power to collect 664 power to sell and manage real estate. . , 665 full commercial po^er 665 power to receive legacy 667 stock power of attorney. 668 revocation of power of attorney 668 POOB- see Insane, Indigent, Sick, &o. PEOMISSOET NOTES— see Bills of Exchange. PUBLIC OFFICEES— statutory provisions 669 bonds of 168, 670 cannot contract 204 liability in contracts 316 election of , 669 oflQcIal oath 674 PUBLIC OFFICEES— ^0*^8. page general form of official bond 674 San Francisco official bond 675 affidavit of justification on a San Fran- cisco bond 676 endorsements upon same 677 commission 677 certificate of election 677 EECOEDS— of chattel mortgages, .l 156 of deeds and instruments 302, 51 sealing and certifying 169 copy of a 170 of marriages, births, deaths, divorces . . . 896 of married women to trade 402 of mechanics^ liens 531 of notaries 617 SAN FEANCISCO- criminal jurisdiction 467 jurors , 455 industrial school 555 official bonds 675 SCHOOLS- district, trustees 679 superintendents 680 state school fund. 683 pupils, marshal « 682 Oregon and Washington 685 Forms. appointment of trustees 685 certificate of election of 686 appointment of marshal 686 certificate of qualification 687 form of annulling a certificate 6S3 receipt of a superintendent 637 receipt of trustees 687 county superintendent's warrant 687 notice of Section for taxation 688 notice of election for taxation to build school-house 689 appointment of collector 689 census returns 690 trustee's report 691 county treasurer's report 692 county superintendent's report 693 public school teacher's report 694 SEAXS- deeds 299 in bonds 131 in contracts and agreements. 201 in chattel mortgage '. 129 of a court 171 of corporations 278 of notaries 615 SHEEIFF— remarks ; 695 Forms. return as to garnishments 695 release of property ftom attachments . . . 697 sheriff's bail-bond 698 bond of indemnity 698 receipt of execution 699 certificate and transfer of, on sale of per- soual property 699 certificgite of sale of real estate on execu- tion 700 certificate of sale under order of sale .... 701 deed on sale under execution 703 deed on mortgage sale 708 deed for land sold, to satisfy unpaid bal- ance 705 STAMP DUTY 711 SUBPCENA— to witness on proving deed 56 coroner's 281 notary's 66 TAXES— statutory provisions 708 what exempt from 708 stamp duty 711 INDEX. 763 TAXES— PAOK licenses 712 Ban Francisco. 709 other counties 710 poll tax 710 passenger broker^s license 719 foreign miner^s license , 721 judicial decisions 721 Forma, statement of property given In for taxa- tion 728 affidavit to be made 724 tax receipt 725 receipt for moneys paid at tax sale 725 , certificate of tax sale 726 tax deed for Ban Francisco 727 taxdeed 729 tax deed by succession in office 731 declaration and assignment of tax certi- ficate 788 foreign miner's license 784 TAXES— i'omw. PAai state and county license 784 state and county license — ^liquors 785 municipal license 735 application for a state license 78G order for passenger broker's license 787 passenger broker's license 786 ■WILLS— remarks 738 judicial decisions 741 Oregon and "Washington 741 Forma. simple form 741 another form 742 short form 743 another form 744 another form 746 another form 748 short form 748 another form 749 „'sa;iUBin§ajji „ lagsui „qDns „ isyB 3u;i q^g 'gSi, 3Si3Z V^'« '\H 'IZI a^^d „'!)0V aoijO'BJd ,) P^aJ „18agia s.poo^ „ joj— moiioqtu 06 o? 88 S3gB£ ■qd^jSujed ^sbj aq? ?no 93[;j?g — fl ag^j .(■sq^cBO ja!(SimnipB „ p^aj „'BJaq?o jajsintrapB ,, Joj— inoMoq raojj 9nii, pg 'n aSv^ „-p9gp9iMon3[OB „ PB9J „'aSp9iAion3[0'B „ joa:— 9a!i pg 'qd^jg'EJBd pg '^g ag^j „-pai3 M'Ei ut „ spjoAi aqt ?no ajfuig — f 9m\ 'n aScj; ■y ji yaa a 762 INDEX. NATURALIZATION— page see FOBEIGNERS. statutory provisions 615 NOTAET— may issue subpoena 56 cannot alter Ms certificate 56 seal, bond. .,. 615 acknowledgment, record 616 protest, fees 617 aemana, protest, and notice 619 judicial decisions 618 Oregon 622 "Washington 628 Forme. notary's bond 624 justification of same 625 certificate of approval 626 endorsement of county clerk on same. . 625 \- general form of notary s certificate 625 protest for non-acceptance 625 protest for non-payment 626 notice of protest for non-acceptance 628 notice of protest for non-payment 627 certificate of notary protest 628 inarine protest 628 pre-emption forms i**.^as^' ^^^ schoolrland wlSfSht forma .TTr. 682 bodnty-land warrant forms 638 fmima an iri. -Dacirrnraiinl- anil Irtoat-J/VTl nf PUBLIC OFFICERS— jP'orms. pagb general ftirm of official bond 674 Ban Francisco official bond 675 affidavit of justification on a San Fran- cisco bond 676 endorsements upon same 677 commission 677 certificate of election 677 EEOOKDa— of chattel mortgages, .i 156 of deeds and instruments 802, 51 sealing and certifying 169 copy of a 170 of marriages, births, deaths, divorces . . . 396 of married women to trade 402 of mechanics' liens 531 of notaries 617 BAN FRANCISCO— criminal jurisdiction 467 jurors 455 industrial school 555 official bonds 675 SCHOOLS— district, trustees 679 superintendents 680 state school fund. 683 pupils, marshal « 683 Oregon and Washington ^85 INDEX, 763 TAXES— PAGE licenses 712 San Francisco 709 other counties 710 poll tax 710 passenger broker^s license 719 foreign miner's license ^ 721 judicial decisions 721 statement of property giren in for taxa- tion 728 affidavit to be made 724 tax receipt 725 receipt for moneys paid at tax sale 725 -- certificate of tax sale 726 tax deed for Ban Francisco 727 tax deed 729 tax deed by succession in office 731 declaration and assignment of tax certi- ficate 788 foreign miner's license 784 TAXES— ^OTflM. PAGK state and county license ,. 784 state and county license — ^liquors 735 municipal license 735 application for a state license 786 order for passenger broker's license 787 passenger broker's license 786 WILLS— remarks 738 judicial decisions 741 Oregon and "Washington 741 FOTTIiS. simple form 741 another form 742 short form 743 another form 744 another form 746 another form 748 short form 748 another form 749 H. H. Bancroft & Co., Importers, Jobbers, and Retailers OF BOOKS AND STATIONERY, SAN FRANCISCO, Have sole agencies and special arrangements for books, blank books, paper and stationery with nearly all of the principal publishers and rnanufacturers in the United States. These facilities and the immense stock constantly on hand, bought for the country trade upon this coast, enables them to offer inducements far superior to buying east. Their business is conducted upon the most solid basis, with the smallest living profits, and having but one uniform price at wholesale, their customers have the advantage of every dollar made in the way of close buying. Their assortment of books in every depart- ment will be found to be one of the most complete in the United States. Orders from the trade, the professions, school teachers, and gentlemen who are forming or replenishing libraries, are respectfully solicited. (I) Law Catalogue. H. H. BANCROFT & CO., Montgomery St., near Merchant, SAN FRANCISCO. ' i860. The Profession will please take notice that the annexed San Francisco List — with a few exceptions, from which there is not the usual discount — are at the eastern pub- lishers' CATALOGUE PRICES. Any One can get a discount, by the quantity, for cash, east ; but after paying cost of trans- portation — ^to say nothing about time — the cost of the books will be MORE than if bought here. We keep a very large, fresh stock, the largest ever upon this coast, and country or- ders may rely upon the strictest attention, and never any but the latest editions. Abbott on Shipping. $7 ^o Abbott's Practice Reports, 9 vols 31 50 Abbott's Admiralty Reports , 5 ro Abbott's Forms of Pleadings a cq Adams on Ejectment c 00 Addison on Contracts 6 cq Adams' Equity r 50 Allen on Sheriffs « 00 American Leading Cases, 2 vols 12 50 American Chancery Digest, 3 vols 15 00 Amos and Ferrard on Fixtures 3 00 Angell on Common Carriers , 5 ro Angell on Limitations r rg Angell on Tide Waters 4 co Angell on Water Courses r 00 (2. List of Law Books. 3 Angell Qn Highways. $4 oo Angell and Ames on Corporations 5 50 Andrew's Digest Opinions of Attorney/s General '3 00 Andrew's Digest Revenue Laws U. S 3 50 Anthon's Nisi Prius ^ 00 Anthon's Law Student 4 00 Appleton's Law of Lien, (in press) Archbold's Civil Pleading 4 00 Archbold's Pleading and Evidence, 3 vols 16 50 Archbold's Practice, 2 vols 6 00 Archbold's Nisi Prius, 2 vols 7 50 Bancroft's California Lawyer and Form Book Barbour's Criminal Treatise 5 06 Barbour's Law of Set-off. 2 00 Bacon's Abridgement, 10 vols. 50 00 Bett's Admiralty Practice 2 50 Bett's Admiralty Decisions, 2 vols 10 00 Beck's Medical Jurisprudence, 2 vols 15 00 Bennett and Heard's Leading Criminal Cases, 2 vols 10 00 Bishop on Criminal Law, 2 vols 11 00 Bishop on Marriage and Divorce 5 50 Bishop on Criminal Procedure, 2 ypls., (in press) Bingham on Infancy. 4 50 Bisset on Partnership. I 50 Blatchford and Olcott's Reports, 2 vols 10 00 Blackburn on Sales 2 25 Bouvier's Law Dictionary, 2 vols i o 00 Bouvier's Institutes, 4 vols 18 00 Browne on Frauds 5 00 Browne's Civil and Admiralty Law, 2 vols 10 00 Bright's Husband and Wife, 2 vols i o 00 Bradford's New York Surrogate Reports, 3 vols 13 50 Brightley's U. S. Digest 6 00 Broom's Legal Maxims 4 00 Blydenburgh on Usury , 3 00 Burrill's Law Dictionary, 2 vols. New edition 10 00 Burrill's Practice, 3 vols 15 00 Burrill on Assignments 5 00 Burrill's Circumstantial Evidence 5 50 Burge on Suretyship 4 00 Byles on Bills 4 50 Chitty on Bills 5 50 Chitty on Contracts 5 50 Chitty on Pleading, 3 vols 1 2 -00 Chitty's Blackstone, 2 vols 5 00 Chitty's Equity Digest, 4 vols 25 00 Chitty's General Practice, 4 vols 16 00 Chitty's Criminal Law, 3 vols 12 00 Caine's Cases 6 00 Cowen's Treatise 5 00 List of Law Books. CoUyer on Partnership $ 5 50 Connecticut Reports, z6 vols 130 00 Connecticut Digest ., 8 00 Collier on Mines , 3 00 Cooper's Justinian 5 5° Coke upon Littleton, 2 vols 11 00 Conklin's Treatise 7 00 Coventry & Hughes' Digest, 2 vols 9 00 Cleveland's Banking Laws ' 4 00 Clinton's New York Digest, 4 vols, in 3 26 00 Cranch's U. S. Reports, 8 vols 25 00 Cranch's Circuit Court Reports, 6 vols 33 00 Crocker on Sheriffs. 5 00 Curtis's American Conveyancer I 00 Curtis on Copyright 3 50 Curtis on Patents . . . 5 00 Curtis's "Precedents in Equity 5 00 Curtis's U. S. Circuit Court Reports, 2 vols 11 00 Curtis's U. S. Supreme Court Decisions, 22 vols , 82 50 Curtis's Digest U. S. S. C. Decisions , 5 50 Curtis's Commentaries 5 50 Daniell's Chancery Practice, 3 vols 12 00 Dart on Vendors of Real Estate 5 50 Dayton's Surrogates .- 5 50 Davis's Treatise 5 00 Dean's Medical Jurisprudence 4 50 Domat's Civil Law, 2 vols 11 00 Drake on Attachment, new edition 5 50 Dunlap's Admiralty Practice 3 50 Dunlap's Paley's Agency 5 00 Duer on Insurance, 2 vols 10 00 De Hart on Courts Martial 4 00 East's Reports, 8 vols 25 00 Eden on Injunctions, 2 vols 10 00 Edwards on Bills 5 50 Edwards on Receivers 5 50 Edwards on Bailments 4 50 Elliot's Diplomatic Code, 2 vols j 2 00 Equity Draftsman 5 50 English Admiralty Reports, 9 vols 31 50 English Law and Equity Reports, 40 vols 100 00 English Reports Digest 5 50 English Common Law Reports, 90 vols 332 00 English Common Law Index, 2 vols , . 9 00 English Chancery Reports, 43 vols 175 00 English Exchequer Reports, 3 8 vols 115 00 English Exchequer Digest 5 00 Fearne on Remainders, 2 vols.. 7 00 Flanders on Maritime Law 3 50 Flanders on Shipping ^ jo List of Law Books. 5 Gale & Whately on Easements $3 00 Gibb's Forms 2 50 Gow on Partnerships a 00 Gordon's Digest U. S. Laws y cq Gresley's Equity i ro Graydon's Forms 2 50 Graham's Practice .- qq Graham on New Trials, 3 vols 1 6 00 GreenleaPs Overruled Cases 3 50 Greenleaf's Cruise on Real Property, 3 vols 16 50 Greenleaf on Evidence, 3 vols 16 50 Halsted's Law of Evidence, z vols 8 00 Hale's Pleas of the Crown, 2 vols 10 00 Hare on Discovery 3 00 Harrison's Digest, 7 vols ^z 00 Hilliard on Mortgages, z vols 10 00 Hilliard on Vehdors, 2 vols, in 1 6 00 Hilliard on Torts, (in press) Hilliard on Real Estate, z vols 1 1 00 Hilliard on Sales 3 00 Hilliard on Marine Insurance i 50 Hilliard's American Jurisprudence 3 50 Hill on Trustees 5 50 Hindmann on Patents i 50 Howard's U. S. Supreme Court Reports, zo vols 1 10 00 Howard's N. Y. Practice Reports, 16 vols 6l 00 Howard's Code 6 00 Hoffman's Legal Study, 2 vols 5 00 Hoffman's Legal Outlines 3 50 Hoffman's Chancery Practice, 3 vols I z 00 Roman's Cyclopedia of Commerce, z vols 12 00 Holcombe's Leading Cases 4 00 Holcombe's Law of Dr. and Cr 4 00 Hull's Treatise 450 Humphrey's Precedents, z vols 8 00 Hurd on Habeas Corpus 6 50 Indiana Reports, 8 vols 45 00 Jarman on Wills, z vols 10 00 Johnson's Cases, 3 vols i z 00 Jones' Land Office Titles i 50 Juryman's Guide 2 00 Kent's Commentaries, 4 vols 18 75 Kent's Commentaries, Abridged 3 00 Kaufmann's Mackeldey 5 0° Kentucky Reports, 40 vols 270 00 Lambert on Dower i 00 Laws U. S. Courts ? 5° Law Library, 27 vols , 81 00 Leading Cases in Equity, 3 vols 13 50 49 6 List of Law Books. Lockwood's Reversed Cases $4 oo Louisiana Reports, 4; vols 323 00 Louisiana Digest 9 °° Marvin on Wreck and Salvage 3 00 Massachusetts Reports : Massachusetts Reports, 1 7 vols $51 Pickering's Reports, 24 vols I zo Metcalf 's Reports, 1 3 vols 65 Cushing's Reports, 1 2 vols 60 Gray's Reports, 5 vols 25 Minot's Digest, I vol 7 50 Minot's Digest Supplement, i vol 3 73 vols 331 50 McCall's Forms 3 00 Matthew's Presumptive Evidence 4 00 Mitford's Chancery Pleading 5 00 Mississippi Reports, zi vols 105 00 Mississippi Digest 5 00 Monell's Practice, z vols 8 00 Modern Probate of Wills 5 00 Morris on Replevin z 00 New York Supreme Court Reports : Barbour's Reports, z8 vols 108 00 Caine's Reports, 3 vols I z 00 Cowen's Reports, 9 vols 45 00 Denio's Reports, 5 vols zo 00 . Hill's Reports, 7 vols z8 00 Johnson's Reports, zo vols 60 00 Wendell's Reports, z6 vols 130 00 Hill arid Denio's Reports Supplement 6 00 New York Chancery Reports : Barbour's Chancery Reports, 3 vols 15 00 Clarke's Chancery Reports, i vol 6 00 Edward's Chancery Reports, 4 vols zo 00 Hoffman's Chancery Reports, i vol 5 00 Hopkins' Chancery Reports, i vol 5 00 Johnson's Chancery Reports, 7 vols 3Z 00 Paige's Chancery Reports, 1 1 vols 61 00 Sanford's Chancery Reports, 4 vols zo 00 New York Superior Court Reports : Duer's Reports, 6 vols 36 00 Sanford's Reports, 5 vols 27 50 Bosworth's Reports, z vols 1 z 00 New York Court of Appeals Reports : Comstock's Reports, 4 vols 16 00 Kernan's Reports, 4 vols 16 00 Selden's Reports, 6 vols 24 00 Smith's Reports, 4 vols 16 00 New York Code Reporter, 3 vols 7 50 New York Code Reports, i vol 2 50 List of Law Books. 7 00 New York Digest, 4 vols $16 Nott's Mechanic's Lien Law 3 Oliver's Forms and Precedents 5 00 Olcott's Admiralty Reports ^50 Owen on Bankruptcy , tq Parsons on Contracts, 2 vols 11 00 Parsons on Mercantile Law 5 50 Paine's C. C. Reports, 2 vols 11 00 Parker's Criminal Reports, 3 vols 14 00 Phillips on Evidence, 3 vols 18 00 Phillips and Amos on Evidence, 2 vols 7 00 Piatt on Leases, 2 vols 11 00 Pothier on Partnership i 00 Pothier on Obligations, 2 vols 8 00 Peters' Federal Digest,. ? vols 10 00 Peters' Condensed Reports, 6 vols 33 00 Pierce's American Railroad Law 5 50 Ray on Insanity 2 50 Redfield on Railways 5 50 Rawle on Covenants for Title 5 50 Reeve's Domestic Relations 3 50 Robb's Patent Cases, 2 vols 10 00 Rockwell's Spanish and Mexican Law 7 50 Roscoc on Criminal Evidence 5 50 Roper on Legacies, 2 vols 10 00 Roper on Remainders, 2 vols 8 00 Russell on Crimes, 2 vols 12 00 Saunders' Reports, 3 vols 12 00 Sanders on Uses and Trusts 4 50 Sanders on Pleading and Evidence, 3 vols 16 50 Selwyn's Nisi Prius, 2 vols 11 00 Sedgwick on Statutes 5 5° Seaton's Forms of Decrees 2 50 Smith's Mercantile Law 4 50 Smith's Chancery Practice, 2 vols 6 00 Smith's Real and Personal Property 4 50 Smith's Leading Cases, 2 vols 12 50 Smith's Landlord and Tenant 3 00 Smith's E. D. N. Y. C. P. Reports, 4 vols 25 00 Smith's Constitutional Law 5 00 Sugden on Vendors, 2 vols 10 00 Sugden on Powers, 2 vols 7 00 Stephens' New Commentaries, 4 vols 1 2 00 Spence's Equity Jurisprudence, 2 vols 9 00 Story on Contracts, 2 vols 1 1 00 Story on Sales 4 50 Story on Agency . 5 00 Story on Bailments 5 00 Story on Bills of Exchange 5 50 8 List of Law Books. Story on Conflict of Laws $6 50 Story on the Constitution, z vols 7 5° Story on Equity Jurisprudence, z vols 1 1 0° Story on Equity Pleading 6 00 Story on Partnerships 5 5° Story on Promissory Notes 5 5° Taylor's Landlord and Tenant * 4 5° Taylo^ on Wills, z vols S 00 Taylor on Executors i 00 Taylor's Law Glossary 4 5° Tapping on Mandamus 4 °° Tidd's Practice, z vols 11 00 Tinlason's Leading Cases i 00 Tillinghast on Limitations 3 °° Train and Heard's Indictments 4 00 Troubat on Partnership 5 00 Texas Reports, zo vols 1 80 00 Texas Digest 12 00 Thornton on Conveyancing 4 5° United States Statutes at Large, iz vols 55 00 United States Digest, 1 8 vols 103 00 United States Equity Digest, z vols I z 00 United States Criminal Digest 5 50 Voorhies' New York Code, sixth edition, 1859 6 00 Vattcl's Law of Nations 4 00 Van Santvoord's Pleading 5 50 Van .Santvoord's Appendix 5 00 Walker's American Law 5 50 Walker's Theory Common Law i Z5 Wigram on Discovery 3 00 Wilford's Equity Pleading 3 00 WiDiams on Executors, 2 vols 11 00 Williams on Personal Property 4 00 Williams on Real Property 4 00 Willard's Equity Jurisprudence 5 50 Willard on Executors 5 50 Wisconsin Reports, 5 vols 25 00 Wheaton's International Law 6 00 Wheaton's Law of Nations 5 50 Will's Circumstantial Evidence I 50 White's Land Laws, z vols 10 00 Woolrych on Waters 3 00 Wharton's State Trials 6 00 Wharton's Homicide 4 5° Wharton's Precedents 6 00 Wheeler's Criminal Trials, 3 vols 12 00 Wharton's Criminal Law 7 50 Wharton & Stiles' Medical Jurisprudence ; . . 6 50 Wendell's Blackstone's Commentaries 7 00