§ 654. Property attached may be sold as under execution, if the interests of the parties require.

[SEC. 66, 1854.] Whenever property has been taken by an officer under a writ of attachment, in pursuance of the provisions of said act, and it shall be made to appear satisfactorily to the Court, or a Judge thereof, or a County Judge, that the interest of the parties to the action will be subserved by a sale thereof, the Court or Judge may order such property to be sold in the same manner as property is sold under an execution, and the proceeds to be deposited in the Court, to abide the judgment in the action. Such order shall be made only upon notice to the adverse party or his attorney, in case such party have been personally served with a summons in the action.

See 130, 221.

§ 655. Certified copies of certain papers may be admitted as evidence.

[SEC. 67, 1854.] A copy of any record, document, or paper in custody of a 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 an action or proceeding in the Courts of this State, in the like manner and with the like effect, as the original could be if produced.

Sec§§ 448, 449.

1. A sworn copy or exemplification of instruments in the archives of the Government is evidence, and the originals ought not to be removed from the Government offices. Gregory v. McPherson, 13 Cal. 574.

2. A certified copy of a deed from the County Recorder's office, contained in the margin of the acknowledgment taken before a Notary, and in the place where his seal is usually found, the words "[No Seal] "-the conclusion of the acknowledgment being, "In witness whereof I have hereunto set my hand and affixed my official seal," etc. The Court below ruled out the copy of the deed as evidence, on the ground that the acknowledgment did not have the Notary's seal: Held, that the Court erred; that the words "[No Seal] instead of implying that there was no seal affixed, were a mere note by the Recorder of the place of the Notarial seal, which he probably had no means of copying. Jones v. Martin, 16 Cal. 166.

"

§ 656. Partners may be sued by their common name.

[SEC. 68, 1854.] When two or more persons associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being

served on one or more of the associates, but the judgment in such case shall bind only the joint property of the associates.

§ 657. Decisions on appeal shall be given in writing.

[SEC. 69, 1854.] All decisions given upon an appeal, in any Appellate Court of this State, shall be given in writing, with the reason therefor, and filed with the Clerk of the Court, but this section shall not apply to actions tried with a jury anew in the County Court, or on appeal from a Justice's Court.

1. A decision of the Court is its judgment; the opinion is the reasons given for that judgment. The former being entered on record immediately, can only be changed upon a petition for rehearing or a modification. The latter is the property of the Judges, subject to their revision, correction and modification, until it is transcribed on the record with the consent of the writer, when it ceases to be subject of change, except through regular proceedings before the Court by petition. Houston v. Williams, 13 Cal. 24.

2. The practice of giving the reasons in writing for judgments is of modern origin. And it is discretionary with the Court whether it give an opinion upon pronouncing judgment, and if given, whether it be oral or in writing. Id.

3. The Legislature cannot require the Supreme Court to give the reasons of its decisions in writing. The constitutional duty of the Court is discharged by the rendition of its decisions. ld.

§ 658. Of disclaimer before answer and interpleader.

[SEC. 70, 1854.] A defendant against whom an action is pending upon a contract, or for specific personal property, may at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon the same contract, or for the same property, upon due notice to such person, and the adverse party, apply to the Court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in Court the amount claimed on the contract, or delivering the property or its value to such person as the Court may direct, and the Court may, in its discretion, make the order.

1. Where a tenant finds that there are claimants to the property, he should file a bill of interpleader, making all the adverse claimants parties thereto, and offer to pay the rents into Court, to abide the ultimate decision of the case. McDevitt v. Sullivan, 8 Cal. 592.

2. This order can only be made when it is certain that the only question is, whether the plaintiff or a third person is the true owner of the debt, fund or other property for which judgment is demanded. Sherman v. Partridge, 4 Duer, 646.

§ 659. Intervention, who may make. Definition of.

[SEC. 71, 1854.] Any person shall be entitled to intervene in an

action who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant.

1. The sixteenth and seventeenth sections of the Practice Act, and the seventysecond, seventy-third and seventy-fourth sections of the amendments of 1834 to the Practice Act, give a party the right to intervene in an action in case of the transfer of any interest during the pendency thereof, or when he is directly interested in the subject matter in litigation, and this can be done either before or after issue has been joined in the case. Brooks v. Hager, 5 Cal. 281.

2. The interest which entitles a person to intervene in a suit between other parties must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. It must be that created by a claim to the demand, or some part thereof, in suit or a claim to, or lien upon the property, or some part thereof, which is the subject of litigation. Horn v. The Volcano Water Company,

13 Cal. 62.

3. A simple contract creditor of a common debtor cannot intervene in a foreclosure suit. But judgment creditors, being as such subsequent incumbrancers, may intervene; and a Court may order them to be made parties, probably by an amendment of the complaint as the better course, or on petition of intervention. Id.

4. In suit on a note and mortgage, where creditors of the defendant intervened, alleging the note and mortgage to be fraudulent as against them, the intervenors cannot prevent a judgment for plaintiff against defendant. The most they can claim is protection against the enforcement of the judgment to their prejudice. Id. 5. In an action to foreclose a mortgage upon property claimed as a homestead, the wife should be allowed to intervene. Sargent v. Wilson, 5 Cal. 504; Moses v. Warner, 10 Id. 296; Dillon v. Byrne, 5 Id. 456.

6. In an attachment suit, judgment creditors of defendant may intervene to set aside the attachment because void as to them. Davis v. Eppinger, 18 Cal. 378. 7. Subsequent attachment creditors may intervene in a suit of the prior attachment creditor and the common debtor, when they allege that there is nothing due to said first creditor, and that his object is to hinder, delay and defraud his creditors. M. Speyer v. Ihmels & Co., Jan. 1862.

8. The intervenors become defendants, and as they allege that the plaintiff is not entitled to recover, it amounts to a denial of the facts set forth in the complaint, and consequently the onus probandi is on the plaintiff'; and if he fails to prove his case, even though the real defendants have made default, judgment will be given in favor of the intervenors against him, and in his favor against the real defendants. Id.

9. A. & Co. having on general deposit with B. & Co. $75,000, a tax for county purposes was levied thereon, and payment demanded of both A. & Co. and B. & Co.: Held, that the tax was legal, and that the county might intervene in an action concerning the money, to recover said tax. Yuba Co. v. Adams, 7 Cal. 37.

10. The petition of an intervenor must be treated as a declaration or complaint. People v. Talmage, 6 Cal. 256.

11. On intervention, if the proceedings between the debtor and a prior creditor are not void, but voidable, the defendant can alone object. Dixey v. Pollock, 8 Cal. 570.

12. In a suit to enforce a mechanic's lien on a ditch, a mortgagor of the ditch subsequent to the lien has no absolute right of intervention. And, when the suit had been pending some time, and the application to intervene was made just as

plaintiff was taking judgment, the application was properly refused. Hocker v. Kelley, 14 Cal. 164.

13. The filing of an intervention in an action to foreclose a mechanic's lien within the prescribed statutory time, and becoming parties to the suit, during the existence of the lien, is the same as commencing an original action. Marz v. McKay, 14 Cal. 127.

14. It is too late on appeal to object that certain parties could not intervene in a suit pending in the inferior Court. McKenty v. Gladwin, 10 Cal. 227.

§ 660. Intervention may be before or after issue joined.

[SEC. 72, 1854.] A third person may intervene, either before or after issue has been joined in the cause.

§ 661. Intervention, pleadings and proceedings upon.

[SEC. 73, 1854.] The intervention shall be by petition or complaint, filed in the Court in which the action is pending, and it must set forth the grounds on which the intervention rests. A copy of the petition or complaint shall be served upon the party or parties to the action against whom anything is demanded, who shall answer it as if it were an original complaint in the action.

§ 662. Intervention, determination upon.

[SEC. 74, 1854.] The Court shall determine upon the intervention at the same time that the action is decided; if the claim of the party intervening is not sustained, he shall pay all costs incurred by the intervention.

§ 663. Testimony to be taken by the Clerk on request.

[SEC. 75, 1854.] On the trial of any action in a Court of Record, either party may require the Clerk to take down the testimony in writing.

1. A transcript of the testimony, if agreed to as correct, certified by the Clerk, is a substitute for a bill of exceptions or statement of facts in their absence. Ingraham v. Gildemeester, 2 Cal. 161; Castro v. Amesti, 14 Id. 38.

§ 664. In case of an adjournment, a party may have the testimony of any witness taken.

[SEC. 76, 1854.] The party obtaining a postponement of a trial in any Court of Record, shall also, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, be then taken by deposition before a Judge or Clerk of the Court in which the case is pending, or before such

Notary Public as the Court may indicate, which shall accordingly be done, and the testimony so taken may be read on the trial with the same effect, and subject to the same objections, as if the witnesses were produced.

$665. Executions for costs may issue on filing remittitur, or when costs are allowed by order of Court.

[SEC. 77, 1854.] Whenever costs are awarded to a party by an Appellate Court, such party may have an execution for the same, on filing a remittitur with the Clerk of the Court below, and it shall be the duty of such Clerk, whenever the remittitur is filed, to issue the execution upon application therefor; and whenever costs are awarded to a party by an order of any Court, such party may have an execution therefor in like manner as upon a judgment.

1. When a remittitur is sent down, the Clerk of the District Court may issue execution for costs. Mayor of Marysville v. Buchanan, 3 Cal. 212.

2. Where a judgment is against two, one only of whom appeals, and the appeal is dismissed with twenty per cent. damages, the damages with the costs do not become part of the original judgment, and the redemptioner is not bound to pay them when he redeems from a sale under the judgment. The Clerk below can issue execution for the damages and costs. McMillan v. Vischer, 14 Cal. 241.

§ 666. Repealing certain laws and revising others.

[SEC. 78, 1854.] Sections five, six, seven, fifteen, sixteen, seventeen, eighteen, nineteen and twenty, of the Act entitled: "An Act Amendatory of and Supplementary to the Act entitled 'An Act to Regulate Proceedings in Civil Cases in the Courts of Justice in this State,"" passed May eighteenth, one thousand eight hundred and fifty-three, are hereby repealed, and the sections amended by said Amendatory Act shall stand revived as amended by this Act.

§ 667. When supplementary Act to take effect.

[SEC. 79, 1854.] This Act shall take effect on the first day of July, one thousand eight hundred and fifty-four.