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CHAPTER VII.-The Probate Court.

Sec. 61. Probate Court shall be in each county.

62. Judge of Probate Court.
63. Jurisdiction of Probate Court.
64. Powers of County Judge as Judge of Probate Court in

vacation,

$ 61. Probate Court shall be in each county.

There shall be in each county a Probate Court, with the jurisdiction conferred by this chapter.

1. The jurisdiction of the Probate Court over testamentary and probate matters is not exclusive. Most of its general powers belong peculiarly and originally to the Court of Chancery, which still retains its jurisdiction. Deck et al. v. Gerke et al., 12 Cal. 433.

See Belknap's Probate Practice, pp. 21–24.

§ 62. Judge of the Probate Court.

The County Judge of each county shall be the Judge of the Probate Court.

§ 63. Jurisdiction of Probate Court.

The Probate Court shall have power to open and receive the proof of last wills and testaments, and to admit them to probate; to grant letters testamentary, of administration and of guardianship, and to revoke the same for cause shown according to law; to compel executors, administrators and guardians to render an account when required, or at the period fixed by law; to order the sale of property of estates or belonging to minors; to order the payment of debts due by estates; to order and regulate all partitions of property or estate of deceased persons; to compel the attendance of witnesess; to appoint appraisers or arbitrators; to compel the production of title deeds, papers, or other property of an estate or of a minor; and to make such other orders as may be necessary and proper, in the exercise of the jurisdiction conferred upon the Probate Court.

$ 64. Powers of County Judge as Judge of Probate Court in vacation.

The County Judge shall have power in vacation to appoint appraisers to receive inventories and accounts to be filed in his Court; to suspend the powers of executors, administrators, or guar

, dians in the cases allowed by law; to grant special letters of administration or guardianship; to approve claims and bonds, and to direct the issuance, from his Court, of all writs and process necessary in the exercise of his powers as Probate Judge.

§ 65. Repealed.*

CHAPTER VIII.-Justices' Courts.

SEC. 66. Denomination of Courts held by Justices of the Peace.

67. Jurisdiction of Justices' Courts.
68. Exceptions to jurisdiction.
69. Shall also have jurisdiction of certain public offenses.
70. Justices' Courts shall be always open.
71. Term, election and qualification of Justices.

§ 66. Denomination of Courts held by Justices of the Peace.

The Courts held by Justices of the Peace in this State shall be denominated Justices' Courts, and shall have the jurisdiction conferred by this chapter; but nothing contained in this chapter shall affect their jurisdiction in actions or proceedings now pending therein, nor shall it affect any judgment or order already made, or proceedings already taken.

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* CHAPTER CCCCLII.
An Act in relation to the Prohale Court in the City and County of San Francisco.

(Approved May 18th, 1861.]
SECTION 1. The County Judge of the County of San Francisco, acting as Probate Judge.
shall hold a term of the Probate Court in the City and County of San Francisco, on the first
Monday of January, March, May, July, September and November, of cach year; poride
that each term of said Court shall, either with or without intermediate adjournments, cob
tinue to the commeucement of the next term.

SECTION 2. Monday in each week is hereby set apart for the special transaction of business in said Court, which day shall be known as the general probate day of said Court. But nothing herein shall prevent the transaction of business in said Court upon other days.

SECTION 3. In case of the absence of the said Judge from said Court, upon any day upon
which any order, notice, process, matter, or business whatever, shall be made returnable to
said Court, or may come on, or be set for hearing, examination, or determination thenoa,
or be pending on said Court, no such order, notice, process, matter, or business, shall fail bs
reason of such absence, but the same shall be continued to the next geueral probate der of
haid Court; and in case of the further continuation of such absence, shall be continued from
one general probate day to another, until the said Judge shall be present in said Court upa
a general probate day. The Clerk of said Court shall make an entry in the minutes of said
Court of overy such absence, and such entry shall be conclusive evidence of the fact of such
absence, and of any and every continuance provided for by this section.

SECTION 4. All acts and parts of acts, so far as the same conflict with this Act, åre hereby
repealed.
SECTION 5. This Act shall take effect from and after its passage.

$ 67. Jurisdiction of Justices' Courts.

[1856.] Justices' Courts shall have jurisdiction of the following actions and proceedings :

1st. Of an action arising on contracts for the recovery of money only, if the sum claimed, exclusive of interest, does not exceed two hundred dollars;

2d. Of an action for damages for injury to the person, or for taking or detaining personal property, or for injuring real or personal property, if the damages claimed do not exceed two hundred dollars;

3d. Of an action for a fine, penalty or forfeiture, not exceeding two hundred dollars, given by statute or the ordinance of an incorporated city;

4th. Of an action upon a bond conditioned for the payment of money not exceeding 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 installments, an action may be brought for each installment as it becomes due;

5th. Of an action upon a surety, bond or undertaking taken by them, though the penalty exceed, if the amount claimed does not exceed two hundred dollars;

6th. Of an action for the foreclosure of any mortgage, or the enforcement of any lien on real or personal property, when the debt secured does not exceed, exclusive of interest, two hundred dollars;

7th. Of an action to recover the possession of personal property, when the value of such property does not exceed two hundred dollars;

8th. To take and enter judgment on the confession of a defendant, when the amount confessed does not exceed two hundred dollars;

9th. Of an action for a forcible or unlawful entry upon, or a forcible or unlawful detention of lands, tenements or other possession;

10th. Of an action to determine the right to a mining claim, and for damages for injury to the same, when the damages claimed do not exceed two hundred dollars;

11th. Of proceedings respecting vagrants and disorderly persons. 1. Justices of the Peace alone have power to try and commit deserted seamen, under the Acts of Congress; and Commissioners under the United States Courts can only arrest and commit for trial. Ex parte Crandall, 2 Cal. 144.

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2. The law presumes nothing in favor of the jurisdiction of Justices' Courts: and a party who asserts a right under the judgment of a Justice, must afirmative's show every fact necessary to show such jurisdiction. Swain v. Chase, 12 Cal. 985.

3. All cases in law and in equity, when the amount in dispute does not exceed two hundred dollars, exclusive of interest, are left undisposed of by the Constit. tion, for the Legislature to confer on County Courts as "special cases," or on Justices' Courts; and any Act conferring jurisdiction on Justices' Courts over two hundred dollars is unconstitutional and void, except in proceedings under the statute concerning forcible entry and unlawful detainer. Zander v. Cof, 5 Cal. 234; Ford v. Smith, Id. 331; Hart v. Moore, 6 Id. 162; Small v. Grcina, Id. 449; Freeman v. Powers, 7 Id. 106; People v. Fowler, 9 Id. 86.

4. Judgment by consent or confession for over two hundred dollars in a Justice's Court is void. Consent of parties cannot give jurisdiction prohibited by the Cust stitution. Feillett v. Engler, 8 Cal. 77.

5. The fact that the thing in dispute, a mining claim, is worth more than to hundred dollars, ousts the Justice of his jurisdiction. Freeman v. Powers, 7 Cal. 104.

$ 68. Exceptions to jurisdiction.

[1856.] The jurisdiction conferred by the last section shall not extend, however:

1st. To a civil action in which the title to real property shall come in question;

2d. Nor to an action or proceeding against ships, vessels or boats, or against the owners or masters thereof, when the suit or proceeding is for the recovery of seamen's wages for a voyage performed in whole or in part without the waters of this State.

1. A Justice, instead of trying a case for forcible entry and unlawful detainer, certified it to the District Court. The transfer was illegal, and cannot defeat the plaintiff's rights by operating as a discontinuance. He should have tried the case as if no transfer were made. Larue v. Gaskins, 5 Cal. 509.

$ 69. Shall also have jurisdiction of certain public offenses.

[1855.] These Courts shall also have jurisdiction, except within the limits of the City of San Francisco, of the following publie offenses committed within the respective counties in which such Courts are established:

1st. Petit larceny;

2d. Assault and battery, not charged to have been committed upon a public officer in the discharge of his duties, or with intent to

kill ;

3d. Breaches of the peace, riots, affrays, committing a willful injury to property; and all misdemeanors, punishable by fine, not exceeding five hundred dollars, or imprisonment not exceeding six months, or by both such fine and imprisonment.

1. The Act conferring criminal jurisdiction is constitutional. People v. Fonet.

9 Cal. 85.

$ 70. Justices' Courts shall be always open.

There shall be no terms in Justices' Courts; these Courts shall always be open.

§ 71. Term, election and qualification of Justices.

Justices of the Peace shall hold their offices for one year, and until their successors are elected and qualified.* They shall be chosen by the electors of their respective townships or cities at the general election in the year one thousand eight hundred and fifty-three, and at the general election every year thereafter, and shall enter upon their duties on the first Monday of the month subsequent to their election. Whenever a vacancy shall occur in the office of a Justice, by death, resignation or otherwise, a special election may be ordered by the County Judge to supply such vacancy. The Justice elected to supply a vacancy shall hold his office only for the unexpired term of his immediate predecessor. Each Justice, before entering upon the discharge of his duties, shall take the constitutional oath of office, and shall execute a bond to the State in the sum of five thousand dollars, conditioned for the faithful performance of his duties, and file the same with the County Clerk.

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CHAPTER IX.- Recorders' Courts.

Sec. 72. Jurisdiction of Recorders' Courts.

73. Also of certain offenses.
74. Judge of Recorder's Court. Place of holding the Court.
75. Electim and qualification.
76. Compensation of Recorders.
77. Recorders shall be committing magistrates.
78. May issue all necessary process.
79. These Courts to be always open.

§ 72. Jurisdiction of Recorders' Courts. † The Recorders' Courts which are already established, or which

Except in the City and County of San Francisco, where Justices of the Peace are elected for two years. (See Statutes of 1861, 214, and 1862, 475.) 1 CONSOLIDATION ACT OF THE CITY AND COUNTY OF SAN FRANCISCO.

(As amended April 18th, 1857.) SECTION 19. The Police Judge throughout the city and county shall have the same powers

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