2. Excessive damages, appearing to have been given under the influence of passion; or, 3. Insufficiency of the evidence to justify the verdict or other decision. 4. Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the time.

ART. 1350, Sec. 623. The application shall be made upon affidavit and notice. The affidavit shall be filed with the justice, with a statement of the grounds upon which the party intends to rely. The adverse party may use counter affidavits on the motion, provided they be filed one day previous to the hearing of the

motion.

ART. 1351, Sec. 624. Any party dissatisfied with a judgment rendered in a justice's court may appeal therefrom to the county court of the county, at any time within thirty days after the rendition of the judgment. The appeal shall be taken by filing a notice of appeal with the justice, and serving a copy on the adverse party. The notice shall state whether the appeal is taken from the whole or a part of the judgment, and if from a part, what part, and whether the appeal is taken on questions of law or fact, or both.(1)-[Am. May 15, 1854; R. S. St. 1853, 280; St. 1851, 150; St. 1850, 186; C. L. 632.

ART. 1352, Sec. 625. When a party appeals to the county court on questions of law alone he shall, within ten days from the rendition of judgment, prepare a statement of the case and file the same with the justice. The statement shall contain the grounds upon which the party intends to rely on the appeal, and so much of the evidence as may be necessary to explain the grounds, and no more. Within ten days after he receives notice that the statement is filed, the adverse party, if dissatisfied with the same, may file amendments; the proposed statement and amendments shall be settled by the justice, and if no amendments be filed, the original statement shall be adopted. The statement thus adopted or as settled by the justice, with a copy of the docket of the justice, and all motions filed with him by the parties during the trial, and the notice of appeal, shall be used on the hearing of the appeal before the county court.-[Am. April 28, 1855; R. S. St. 1854, 70; St. 1853, 280; St. 1851, 150; C. L. 632.

ART. 1353, Sec. 626. 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.(2)-[Am. May 15, 1854; R. S. St. 1853, 280; St. 1851, 150; St. 1850, 186; C. L. 632.

ART. 1354, Sec. 627. Upon receiving the notice of appeal and on payment of the fees of the justice and filing an undertaking as required in the next section, the justice shall, within five days, transmit to the clerk of the county court, if the appeal be on question of law alone, a certified copy of his docket, the statement as admitted or as settled, the notice of appeal and the undertaking filed; or, if the appeal be on questions of fact, or both law and fact, a certified copy of his docket, the pleadings, all notices, motions and other papers filed in the cause, the notice of appeal and the undertaking filed; and the justice may be compelled by the county court, by an order entered upon motion, to transmit such papers, and may be fined for neglect or refusal to transmit the same; a certified copy of such order may be served on the justice by the party or his attorney. In the county court either party shall have the benefit of all legal objections made in the justice's court.(3)-[Am. April 28, 1855; R. S. St. 1854, 70; St. 1853, 280; St. 1851, 150; C. L. 632.

ART. 1355, Sec. 628. An appeal from a justice's court shall not be effectual for any purpose, unless an undertaking be filed with two or more sureties in the sum of one hundred dollars for the payment of the costs on the appeal; or if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money, or twice the (1) Bray v. Redman, July T. 1856.

(2) See Art. 1072.

(3) McDermott v. Douglass, 5 Cal. 89.

value of the property, including costs, when the judgment is for the recovery of specific personal property; and shall be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgments and all costs that may be recovered against him in said action in the county court; where the action is for the recovery of specific personal property, the undertaking shall be conditioned that the appellant will pay the judgment and costs appealed from, and obey the order of the court made therein, if the appeal be withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the county court, and will obey any order made by the court therein. The undertaking shall be accompanied by the affidavit of the sureties that they are residents of the county, and are each worth the amount specified in the undertaking over and above all their just debts and liabilities, exclusive of property exempt from execution, or the bond shall be executed by a sufficient number of sureties, who can justify in the aggregate to an amount equal to double the amount specified in the bond; or a deposit of the amount of the judgment including all costs appealed from, or of the value of the property, including all costs in actions for the recovery of specific personal property, with the justice; and such deposit shall be equivalent to the filing of the undertaking in this act mentioned, and in such cases the justice shall transmit the money to the clerk of the county court, to be by him paid out upon the order of the court.-[Am. April 28, 1855; R. S. St. 1854, 70; St. 1853, 280; St. 1851, 150; C. L. 632.

ART. 1356, Sec. 629. If an execution be issued on the filing of the undertaking, staying all proceedings, the justice shall, by order, direct the officer to stay all proceedings on the same. Such officer shall, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property, or proceeds thereof, as may be necessary to pay the same.

[Sec. 630, repealed May 15, 1854. St. 1854, 71.]

ART. 1357, Sec. 631. Costs shall be allowed to the prevailing party in a justice's court.-[Am. May 4, 1855; R. S. St. 1854, 71; St. 1851, 151; St. 1850, 185; C. L. 633.

[Sec. 632, repealed by act of May 4, 1855. St. 1855, 250.]

ART. 1358, Sec. 633. Justices of the peace shall receive from the sheriff or constables of their county, all moneys collected on any process or order issued by their courts respectively, and all moneys paid to them in their official capacity, and shall pay the same over to the parties entitled or authorized to receive them without delay. For a violation of this section they may be removed from their office, and shall be deemed guilty of a misdemeanor.

ART. 1359, Sec. 634. Justices of the peace may, in all cases, require a deposit of money, or an undertaking, as security for costs of court, before issuing a

summons.

ART. 1360, Sec. 635. The provisions of sections five hundred and nineteen, five hundred and twenty, five hundred and twenty-three, five hundred and twentyfive, five hundred and twenty-six, five hundred and twenty-seven, five hundred and thirty-one, and five hundred and thirty-two, shall be applicable to justices' courts and actions therein.

17. Proceedings in Civil Cases in Recorders' and Mayors' Courts.

ART. 1361, Sec. 636. Civil actions in recorders' and mayors' courts shall be commenced by filing a complaint, setting forth the violation of the ordinance complained of, with such particulars of time, place and manner of violation, as to enable the defendant to understand distinctly the character of the violation

complained of, and to answer the complaint. The ordinance may be referred to by its title. The complaint shall be verified by the oath of the party complaining, or of his attorney or agent.(1)

ART. 1362, Sec. 637. Immediately after filing the complaint, a summons shall be issued, directed to the defendant, and returnable either immediately, or at a time designated therein, not exceeding four days from the date of its issuance.

ART. 1363, Sec. 638. On the return of the summons the defendant may plead to the complaint, or he may answer or deny the same. Such plea, answer or denial, may be oral or in writing, and immediately thereafter the case shall be tried, unless for good cause shown an adjournment be granted.

ART. 1364, Sec. 639. In all actions for violation of an ordinance where the fine, forfeiture, or penalty imposed by the ordinance is less than fifty dollars, the trial shall be by the court. În actions where the fine, forfeiture, or penalty imposed by the ordinance is over fifty dollars, the defendant may be entitled, if demanded by him, to a jury of six persons.

ART. 1365, Sec. 640. From a judgment in a civil action in a recorder's or mayor's court, an appeal may be taken to the county court. The appeal shall be taken and the proceedings thereon conducted in the same manner as appeals are taken from a judgment in a civil action in a justice's court, and as the proceedings

thereon are conducted.

ART. 1366, Sec. 641. All proceedings in civil actions, in recorders' and mayors' courts, except as herein otherwise provided, shall be conducted in the same manner as in civil actions in justices' courts.

ART. 1367, Sec. 642. The provisions of this title (2) shall be applicable to civil actions in recorders' and mayors' courts already established, or which may hereafter be established in any incorporated city of this state.

18. Miscellaneous Proceedings.

ART. 1368, Sec. 643. The supreme court may make rules not inconsistent with the constitution and laws of the state, for its own government, and the government of the district courts, and the superior court of the city of San Francisco(3); but such rules shall not be in force until thirty days after their adoption and publi

eation.

ART. 1369, Sec. 644. The county clerk shall be the clerk of the county court, the court of sessions, and the probate court of his county. Until otherwise provided by law, the clerk of the superior court of the city of San Francisco shall be appointed by the said court.

ART. 1370, Sec. 645. If an action be brought against a sheriff for an act done by virtue of his office, and he give written notice thereon to his sureties on any bond of indemnity received by him, the judgment recovered therein shall be conclusive evidence of his right to recover against such sureties; and the court or judge in vacation may, on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs.

ART. 1371, Sec. 646. In the counties of Santa Clara, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Contra Costa, Los Angeles and San Diego, it shall be the duty of the officer to give the defendant in a civil action, if said defendant shall require it, a copy of the summons, or other process, in the Spanish language; and in the counties of Santa Barbara, San Luis Obispo, Los Angeles, San Diego, Monterey and Santa Cruz, it shall be lawful, with the consent of both parties, to have the process, pleadings, and other proceedings in a cause, in the Spanish language.-[Am. Feb. 20, 1857; R. S. St. 1851, 152; C. L. 635. ART. 1372, Sec. 647. Words used in this act in the present tense shall be deemed to include the future as well as the present; words used in the singular number shall be deemed to include the plural, and the plural the singular; writing shall be deemed to include printing or printed paper; oath to include affir(1) Cronise v. Carghill, 4 Cal. 120.

(2) Arts. 1361-1367.

(3) Superior Court abolished.

mation or declaration; signature or subscription, to include mark when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness.

ART. 1373, Sec. 648. In all cases where an undertaking with sureties is required by the provisions of said act(1), the judge, justice, clerk, or other officer taking the same, shall require the sureties to accompany the same, with an affidavit that they are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; provided, that when the amount specified in the undertaking exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking if the whole amount be equivalent to that of two sufficient sureties.-[A. S. May 15, 1854; St. 1854, 71.

ART. 1374, Sec. 649. In actions respecting miners' claims in a justice's court, the justice shall have power upon application of the party out of possession of the claim or claims after notice of one day to the adverse party, to appoint a receiver of the proceeds of the claim, pending the action. If the parties agree upon a person, he shall be appointed such receiver. If the parties do not agree the justice shall appoint a receiver, who shall take an oath, which shall be filed with the justice, that he is not interested in the action between the parties, and that he will honestly keep an account of all gold dust or metals of any kind, the proceeds of the claim or claims in dispute. After the 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 receiver shall remain in possession of the claim or claims, so long as said action may remain undetermined in any court. The court in which the action may be pending, shall have authority upon appli cation 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 application of the receiver, based upon his affidavit, to punish as for contempt, all persons who have been guilty of dis turbing the receiver in the possession of the claim.-[A. S. May 15, 1854; Am. April 28, 1855.(2)

ART. 1375, Sec. 650. The receiver mentioned in the last section shall keep an accurate account of all the proceeds of the claim pending the action, and of all amounts paid out for working the same, and shall retain the proceeds and par the same over, pursuant to the order of the court. The receiver shall also be required, on demand of either party, to give security for the faithful performance of his trust, and shall be allowed for the same a reasonable compensation, to be paid out of the proceeds of the claim in his hands, but in no case exceeding ten per cent. upon such proceeds.-[A. S. May 15, 1854.

All persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally, bring or defend, any civil action for the enforcement or protection of the rights of such party. [Act March 6, 1857.

Act of April 29, 1857, concerning Certified Copies of certain Instruments in Writing.

ART. 1376, Sec. 1. Copies of all papers lately belonging to the United States board of commissioners for the settlement of private land claims in California, and on file in the office of the surveyor-general of the United States for the state of California, and all copies of documents and papers belonging to the said surveyor's office, which copies shall have been duly certified to be true copies by said surveyor, shall be received and read in evidence in the same manner and with like effect as the originals.

(1) Civil Practice Act of 1851.

(2) Grass Valley Q. M. Co. v. Stackhouse, Oct. T. 1856.

Sec. 2. Duly certified copies of deeds, regularly recorded, upon the acknowledgment or proof of execution by the party or parties thereto-subject, however, to all legal exceptions that might be taken to the original, if produced-shall be received in evidence in all the courts of this state, without any further or other proof of the execution thereof, in the same manner and with like effect as if the originals were produced and proven; provided, it be shown that the said originals are not under the control of the party offering the said copies, or are lost.

Sec. 3. Any person wishing, in order to obtain the benefit of this act, to establish the genuineness of any patent for land issued by the United States or by this state, may apply for that purpose to the district court of the judicial district in which the patented lands, or any part thereof, are situated, after giving public notice of the time of his making said application, at least five days previous to the hearing thereof, either by one insertion in a newspaper, where there is one published in the county wherein the lands or parcels of land in said district may be situated, or in default thereof, by posting said notice on the court-house door of said county; provided, that notice shall not be required to be given in more than one county. Upon proof being made that the said notice was duly given, the district court shall proceed to inspect the patent, and upon being satisfied that it is genuine, may indorse thereupon or annex thereto an order, under the seal of the court, declaring said patent to be genuine; and if the court be not satisfied that the said patent is genuine, then no other [order] shall be entered or made relative thereto.

Sec. 4. It shall be the duty of the county recorder of each county in this state to provide a separate book, to be called "the record of patents," wherein shall be recorded all patents of lands or parcels of land situate in their county, whether issued by the United States or the state of California which may be offered for record, authenticated as in the foregoing section mentioned; and a duly certified Copy of any patent, recorded as aforesaid, may be offered in evidence in any proceeding or action in this state with the same effect and force as the original, duly exhibited and proven.

Act of May 11, 1854, prescribing the Manner of Commencing and Maintaining Suits by or against Counties. ART. 1377, Sec. 1. Suits against a county may be commenced in any court of that county, or in a district court of the judicial district in which such county is situated, in the same manner as suits against private persons; provided, that suits between counties shall be commenced in a court of competent jurisdiction in any county not a party to such action.

Sec. 2. In counties where there is a board of supervisors, having an acting chairman or president of such board, the original process and papers shall be served on such chairman or president in the same manner as upon private persons. When there is no such chairman or president, they shall in like manner be served on the county judge of the county.

Sec. 3. Immediately on the service of such process, it shall be the duty of the officers so served to deliver such process and all papers accompanying the same to the district attorney for such county, whose duty it shall be to defend such cause or proceeding on the part of such county, until final judgment or compromise of such suit or proceeding.

Sec. 4. Suits brought for or against a county shall be by or in the name of such county.(1)

Act of May 6, 1854, relative to Transferring Causes from one Court to another.

ART. 1378, Sec. 1. If an action or proceeding is commenced or pending in a court, as is hereinafter mentioned, and the judge or justice thereof is by law disqualified from acting as such, or if for any cause the court orders the place of

(1) Price & Proctor r. The County of Sacramento, July T. 1856; Gillman v. Contra Costa, Oct. T. 1856; McCaun e. Sierra County, Jan. T. 1857. See Supervisors.