perty to the plaintiff, unless claimed by some third party.(a) If the defendant does not give an undertaking, justify sureties, and take the possession of the property again, nor shall not, within two days, except to the sureties of the plaintiff, and no third party lays claim to the property, the constable, upon receiving his fees and expenses for keeping the property, is to deliver the same to the plaintiff.(b) HOW THE PROPERTY TAKEN BY CONSTABLE MAY BE CLAIMED BY A THIRD PARTY. After property has been taken by a constable, in pursuance of an order made by a justice, any person having a claim to the same, other than the plaintiff or defendant, or defendant's agent, such person must make affidavit of his title to such property or right to the possession, and therein state the grounds of such title or right, and serve the same upon the constable; upon that being done, the constable is to give notice to the plaintiff of such claim being made. The plaintiff, on demand being made for that purpose, must indemnify the constable against such claim, by giving to him an undertaking, with two or more sureties, in double the value of the property named in the affidavit of the plaintiff, accompanied with the affidavit of such sureties that they are each worth double the value of the property, as specified, over and above their debts and liabilities, inclusive of property exempt from execution, and are freeholders or householders of the county.(c) Upon that being done, the constable will proceed and deliver the property to the party entitled thereto, as if such claim had never been made; and any person, other than the plaintiff or defendant, and defendant's agent, having claim to property taken by the constable, unless they make it in that way, shall not be valid as against the constable. The constable is to return the order and affidavit, with his proceedings thereon, to the justice, within five days after taking the property. (a) 2 California Statutes, 140. (b) 2 California Statutes, 140. (c) 2 California Statutes, 140, 141. WHO CAN BE SURETY. Any person who is a resident and house-holder or freeholder of the county, and worth double the amount named in the undertaking, over and above all his debts and liabili ties, exclusive of property exempt from execution. HOW TO JUSTIFY. Each of the sureties to an undertaking must attend before the justice, at the time named in the notice, and be examined by the adverse party, touching their sufficiency, in such manner as the justice may think it proper; and if required, the examination of each surety is to be reduced to writing, and subscribed by him. If, on the examination, the justice find the sureties sufficient, he must annex the examination to the undertaking, and indorse his allowance thereon, and file the same. Upon that being done the constable is exonerated from all liability on account thereof.(a) WHO CAN BE A WITNESS. Any person may be summoned before a justice's court as a witness residing in the county. A person of unsound mind at the time he is called to testify, is not a good witness; nor is a child under ten years of age, who appears incapable of receiving just impressions of facts respecting which it is examined, or of relating them truly. In an action where a white person is a party, an Indian, or person having one-fourth or more of Indian blood, is not a good witness, and cannot be examined. In an action where a white person is a party, a negro, or person having one-half or more negro blood, is not a good witness. A husband or wife cannot be examined as witness for or against each other; nor after the marriage contract has been (a) 2 California Statutes, 140, 141. dissolved, can either testify as to communications made durThey can ing marriage, without the consent of the other. be witnesses in a case where one sues the other. A counsellor or attorney cannot, without the consent of his client, be examined touching any communication made to him by his client, and his advice thereon in the course of professional employment. A priest or clergyman cannot be examined touching any confession made him in his professional character, in the course of discipline enjoined by the church to which he belongs, unless by the consent of the person who made the confession. A licensed physician or surgeon cannot testify to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient, unless the patient consents to the same. A public officer cannot be examined as a witness, touching communications made to him in official confidence, when the public interest would suffer by the disclosure. The justice or any juror may be called as a witness by either party; but then, if he is a witness, the court can exer. cise a discretion whether he will allow the trial to proceed before him or not. And if a juror is called as a witness, the court is to determine whether the trial shall suspend or not. If the justice is a witness, he can direct the trial to be postponed and tried defore another justice. If a juror is a witness, he can dismiss the jury and try it before another jury, as may seem fair and just to him. If a witness does not understand how to speak the English language, an interpreter must be sworn, who is to interpret for him.(a) (a) 2 California Statutes, 113 to 120. CHAPTER V. CONTRACTS, DUE BILLS, BILLS OF EXCHANGE, &C. A contract, to be valid, must be between parties able to put themselves under legal obligation.(a) A person of age, under no restraint, not an idiot, insane, lunatic, or drunk, and a woman not married, can enter into a contract. A contract entered into between two such persons, at the instance of each, and founded upon a valuable consideration, is a binding contract.(b) A married woman is precluded from contracting unless she is a sole trader. A minor's contracts with adults are binding on the adult who contracted with him; but the legal obligation of the contract on his part is suspended until he arrives at age, and either affirms or rejects it.(c) A minor who enters into a contract with an adult says to him, I hold you bound by the contract, and before I bind myself to it I will consider of it until after I am of age, and then I will tell you whether I will hold you or release you from it. It is a binding proposition on the part of the adult, giving the minor until his majority to accept or reject it.(d) A minor is not allowed to shield himself behind the plea of minorship, and to cheat adults out of their property. Where goods are sold to a minor, if he repudiates the contract, he must return the goods, and the title vests in the seller again. If he leased land while a minor, and occupied it after coming of age, he is liable for the rent for the time he occupied after majority. If he received rent for property, or interest for use of money, while a minor, he cannot repudiate the contract, (a) 2 Kent's Com. p. 563. (b) 3 California Statutes, 101. |