FORM No. 814-For an accounting concerning pledged goods, and for an injunction restraining the sale of goods where the amount due is in dispute. (In Castoriano v. Dupe, 145 N. Y. 250; 39 N. E. 1065.) day of [Title of court and cause.] That on the 19 , plaintiff executed a bill of sale absolute on its face of certain embroideries and delivered it to defendant as collateral security for a debt owing to him; that the amount of the debt was by agreement to have been determined at the date of the transfer, but was left, and still remains, undetermined; that the defendant claims to hold the goods as absolute owner, and asserts a liability on the part of plaintiff for sums not in truth due and owing; that an accounting is needed to ascertain the true amount of the debt which plaintiff must pay in order to redeem his property; that said embroideries are of a peculiar character, whose value can only be reached by private sales to a narrow range of purchasers, and which would be sacrificed by a sale at public auction; that plaintiff has tendered to defendant the sum of $1,800 to redeem the pledged goods, which the defendant has refused, and has advertised the property for sale; that the plaintiff is ready and willing to pay whatever sum may be adjudged to be due from him in order to redeem the pledged goods. Plaintiff prays judgment: That said bill of sale be declared to be collateral to the debt due to the defendant; that an accounting be had to settle the amount of that debt; that upon its payment the defendant be required to restore the goods; and that an injunction issue in the meantime restraining the sale [etc.]. A. B., Attorney for plaintiff. § 351. JUDGMENT [OR DECREE]. FORM No. 815-On foreclosure of chattel mortgage and order of sale, and appointing commissioner. (In John Breuner Co. v. King, 9 Cal. App. 271; 98 Pac. 1077.) [Title of court and cause.] [After recitals as to appearance of parties, hearing, submission and filing of findings, and enumeration of certain of the findings showing plaintiff's right:] Now, therefore, it is hereby ordered, adjudged, and decreed, that William J. Ferguson, of the city and county of San Francisco, furni ture-salesman, be and he is hereby appointed a commissioner to sell the encumbered property; and it is further ordered, that before entering upon his duties as such commissioner he shall take the oath and given an undertaking in the sum of $1,000, as required by law. The sum of $10 is hereby fixed as the compensation of such commissioner. It is adjudged and decreed, that all and singular the mortgaged property mentioned in the said complaint, and hereinafter described, or so much thereof as may be sufficient to raise the amount due to the plaintiff for the principal and interest and costs of this suit, and expenses of sale, be sold by the said commissioner in the manner prescribed by law for the sale of like property by the sheriff upon execution, and according to the course and practice of this court, and the plaintiff may become the purchaser at such sale of any of said property; that the said commissioner, out of the proceeds of said sale, retain his fees, disbursements, and commissions on said sale, and pay to the plaintiff or to its attorneys out of said proceeds the sum of $8.50 and $250, costs and counsel fees of this suit; also, pay to the plaintiff the further sum of $18,616, the amount so found due as aforesaid, together with interest thereon at the rate of six per cent per annum from the date of this decree, or so much thereof as the said proceeds of sale will pay of the same; that the defendant, and all persons claiming or to claim from or under her, and all persons having liens subsequent to said mortgage upon the property described in said mortgage, and their personal representatives, be forever barred and foreclosed of and from all equity of redemption and claim of, in, and to said mortgaged property and every part and parcel thereof. And it is further adjudged and decreed, that if the moneys arising from the said sale shall be insufficient to pay the amount so found due the plaintiff as above stated, with interest and costs and expenses of sale as aforesaid, the said commissioner shall specify the amount of such deficiency and balance due to plaintiff in his return of said sale; and that on the coming in and filing of said return the clerk of this court docket a judgment for such balance against the defendant, and that the defendant pay to the plaintiff the amount of such deficiency and judgment, with interest thereon at the rate of six per cent per annum from the date of said last-mentioned return and judgment, and that the plaintiff have execution therefor. The property directed to be sold by this decree is all the furniture, upholstery, carpets, draperies, chinaware, and other household goods of every kind, located and contained, on the 31st day of August, 1903, in and about that certain building in said city and county of San Francisco known as the Haddon Hall Apartment House, and also known as No. 951 Eddy Street, said building being situated on a lot on the south side of said Eddy Street [here particularly described]. Done in open court, this 3d day of October, 1904. § 352. ANNOTATIONS.-Liens and pledges. 1. Action by assignee of lien. John Hunt, Judge of Superior Court. 2. Assignee of debt.-Right of, to foreclose lien. 3. Action by pledgeor in nature of specific performance. 5. Continuance of lien. 6. When lien is lost. 1. Action by assignee of lien.-An assignee of a lien may maintain an action to enforce the same: Duncan v. Hawn, 104 Cal. 10, 12, 37 Pac. 626; McCrea v. Johnson, 104 Cal. 224, 225, 37 Pac. 902; Clark v. Brown, 141 Cal. 93, 95, 74 Pac. 548. See Falconio v. Larsen, 31 Ore. 137, 147, 48 Pac. 703, 37 L. R. A. 254. 2. Assignee of debt.-Right of, to foreclose lien.-The assignee of a chose in action may maintain an action thereon, and where the right assigned carries a lien may foreclosure the latter: Duncan v. Hawn, 104 Cal. 10, 12, 37 Pac. 626, distinguishing Mills v. La Verne L. Co., 97 Cal. 254, 32 Pac. 169, 33 Am. St. Rep. 168; McCrea v. Johnson, 104 Cal. 224, 225, 37 Pac. 902. See Tuttle v. Howe, 14 Minn. 145, 150, 100 Am. Dec. 205; Rogers v. Omaha Hotel Co., 4 Neb. 54, 57; Skyrme v. Occidental M. etc. Co., 8 Nev. 219; Falconio v. Larsen, 21 Ore. 137, 147, 48 Pac. 703, 37 L. R. A. 254; Iage v. Bossieux, 15 Grat. (Va.) 83, 76 Am. Dec. 189; Davis v. Bilsland, 85 U. S. (18 Wall.) 659, 21 L. ed. 969. 3. Action by pledgeor in nature of specific performance.-A pledgeor of stock may maintain action in the nature of specific performance to compel pledgee to return stock when it is of uncertain value and has no known or fixed market value: Krouse v. Woodward, 110 Cal. 638, 643, 42 Pac. 1084. 4. Plea of tender of money due on a pledge is sufficient without bringing the money into court: Loughborough v. McNevin, 74 Cal. 250, 255, 14 Pac. 369, 15 Pac. 773, 5 Am. St. Rep 435. See Kortright v. Cady, 21 N. Y. 343, 354, 366, 78 Am. Dec. 145. 5. Continuance of lien.-A lien is not extinguished so long as the indebtedness is kept alive, or so long as an action can be brought to recover the debt: Henderson v. Grammar, 66 Cal. 332, 336, 5 Pac. 488; London etc. Bank v. Bandmann, 120 Cal. 220, 222, 52 Pac. 583, 65 Am. St. Rep. 179; Mutual L. Ins. Co. v. Pacific F. Co., 142 Cal. 477, 76 Pac. 67, 70. See London etc. Bank v. Dexter H. & Co., 126 Fed. 593, 603, 61 C. C. A. 515. 6. When lien is lost.-A lien is absolutely lost where, on having such lien, a party is sued in replevin and answers claiming absolute ownership: Williams v. Ashe, 111 Cal. 180, 185, 43 Pac. 595. See Mexal v. Dearborn, 78 Mass. (12 Gray) 336; Ballard v. Burgett, 40 N. Y. 314; Maynard v. Anderson, 54 N. Y. 642; Tuthill v. Skidmore, 124 N. Y. 148, 155, 26 N. E. 348; Everett v. Saltus, 15 Wend. 474. CHAPTER C. Bonds and Undertakings, and Actions Thereon. Page § 353. Form of bonds, endorsements, etc....... 1418 1418 1419 1420 1420 1420 bond 354. Forms of procedure where leave to sue an officer of the court 1421 1421 Form No. 822. Petition for permission to bring an action upon 1422 § 355. Complaints [or petitions]...... 1422 Form No. 824. On bond for the unconditional payment of 1422 Form No. 825. By surviving obligee on joint bond. Form No. 830. On appeal bond given in forcible entry and de- Form No. 833. Defense of failure of consideration. § 357. Annotations 1430 1430 § 353. FORMS OF BONDS, ENDORSEMENTS, ETC. FORM No. 816-Official bond. (Common form.) Know all men by these presents, that we, and as principal, and as sureties, are held and firmly bound unto the in the following penal sums, to wit, the said princisurety, in the penal state of and the said sum of $ and the said , surety, in the penal sum of $ lawful moneys of the United States of America, for the payment of which well and truly to be made we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. The condition of the above obligation is such that whereas the above bounden principal was, by His Excellency the Governor of the state of duly appointed notary public [etc., giving date thereof,] in and for the county of in said state. Now, therefore, if the said bounden shall well and faithfully perform all the duties of his office as required by law, and shall pay over all moneys that may come into his hands, in pursuance of the requirements of the statutes of said state, and shall faithfully execute and perform all the duties of such office required by any law to be enacted subsequently to the execution of this bond, then this obligation is to be void and of no effect; otherwise, to be and remain in full force and virtue. [Followed by oath of sureties as in form No. 1028.] FORM No. 817-Official bond of city clerk. (In Lowe v. City of Guthrie, 4 Okla. 287; 44 Pac. 198.) Territory of Oklahoma, County of Logan. SS. Know all men by these presents, that E. G. Millikan, as principal, and John F. Stone, Lowe & Huston, and O. R. Fegan, as sureties, are held and firmly bound unto the city of Guthrie and territory of Oklahoma in the sum of $1,000, for the payment of which we bind ourselves, our heirs, executors, and administrators. The condition of the above obligation is that whereas the abovenamed E. G. Millikan has been elected city clerk in and for the city of Guthrie: Now, if the said E. G. Millikan shall render a true account of his office and of his duties therein to the proper authority, when required thereby or by law, and shall promptly pay over to the person or officer entitled thereto all moneys which may come into his hands by virtue of his said office, and faithfully account for all the |