which are now pending or which may be hereafter brought, shall proceed to try the case anew, and shall issue all necessary writs and process to carry out the provisions of this act. All laws or parts of laws which require a statement of the case or evidence, or exceptions to be taken before a justice of the peace, on the trial of a case for forcible entry and unlawful detainer, in order to perfect an appeal, are hereby repealed, and the same shall be tried in the appellate court, on the evidence introduced before said appellate court.

1. The authority of the court to try these cases anew, on appeal, is the exercise of appellate and not original jurisdiction.-Townsend v. Brooks, 5 Cal., 52.

2. The power of the county court to treble the damages by way of penalty in actions of forcible entry, results by necessary implication from its power to try the case, anew.-O'Callaghan v. Booth, 6 Cal., 63.

18. If a writ of restitution shall have been issued previous to the taking of the appeal, the justice shall give the appellant a certificate of the allowance of such appeal, and upon the serving of such certificate upon the officer having such writ of restitution, said officer shall cease all further proceedings by virtue of such writ, and if such writ shall not have been completely executed, the parties in possession shall remain in possession of the premises until the appeal shall be determined.

19. In all cases of appeal under this act, the appellate court shall not dismiss or quash the proceedings for want of form, only provided the proceedings have been conducted substantially according to the provisions of this act.

20. Amendments to the complaint, answer, or summons, in matters of form only, may be allowed by the court at any time before final judgment, upon such terms as may be just, and all matters of excuse, justification, or avoidance of the allegations in the complaint, may be given in evidence under the answer.

21. The following, or equivalent forms, may be used in proceedings under this act, to wit:

SUMMONS.

The people of the state of California

To the sheriff or any constable of the county aforesaid:

Whereas, A. B., of the county of

hath exhibited to me, a

justice of the peace for said county, a complaint against C. D., of the for that the said C. D., of the county of

county of the

day of A. D.,

at the county of

on

(here insert the substance of the complaint with sufficient certainty.) You are therefore commanded to summon the said C. D., if he be found in your county, to be and appear before me at my office, (or stating the place) on the day of to make answer unto the complaint aforesaid. Given under my hand and seal, this

A. D.,

day of

then and there

A. D.,

E. F., Justice of the Peace.

WRIT OF RESTITUTION.

The people of the state of California

To the sheriff, or any constable of the county aforesaid: Whereas, A. B., of the county of at a court of inquiry of an unlawful or forcible entry, or unlawful detainer, (as the case may be) held at my office (or state the place) in the county aforesaid, on the

A. D.,

day of before me, a justice, of the peace for the county aforesaid, by the consideration of the court, hath recovered judgment against C. D., to have restitution of (here describe the premises, as in the complaint). You are therefore commanded that, taking with you the force of the county, if necessary, you cause the said C. D. to be immediately removed from the aforesaid premises, and the said A. B. to have peaceable restitution of the same; and you are also commanded that, of the goods and chattels of the said C. D., within said county, you cause to be made the sum of dollars, for the said plaintiff, together with the costs of suit endorsed hereon, and make return hereof within thirty days from this date. Given under my hand, this

day of

A. D.,

E. F., Justice of the Peace.

1. This writ does not determine either the right to the property or the right of possession, and constitutes no defense to an action of ejectment.-Mitchell v. Hagood, 6 Cal., 148.

RULES OF THE SUPREME COURT

OF CALIFORNIA.

I. Applicants for license to practice as attorneys and counselors of this court may be examined on the first day of each term.

II. In all cases where an appeal is perfected, and the statement settled, if there be one, twenty days before the commencement of the next succeeding term of this court, the transcript of the record shall be filed on or before the first day of such term. 4/5

III. If the transcript is not filed within the time prescribed, the appeal may be dismissed, on motion, during the first week of the term without notice, upon satisfactory evidence of the omission. A cause so dismissed may be restored during the same term, upon good cause shown, on notice to the opposite party; and unless so restored, the dismissal shall be final; and a bar to any other appeal in the same

cause.

IV. Satisfactory evidence of the omission to file the transcript shall be deemed to be the certificate of the clerk below, under the seal of the court, certifying the amount or character of the judgment, the date of its rendition, and that no appeal has been taken; or, if an appeal has been taken, the time when perfected, and also that the appel

lant has received the transcript, or that he has not directed a transcript to be made out; or, if he has given such direction, that he has not tendered the fees therefor.

V. When the appellant fails to file his transcript of the record within the time prescribed, the respondent, instead of moving for a dismissal, may himself file the transcript and require the appellant to file his statement of points. In default whereof, on the part of the appellant, the court will, (if there be no error,) affirm the judgment of the court below. If the appellant file his statement, the cause shall proceed as in other cases.

VI. All transcripts of records hereafter sent to this court shall be on paper of uniform size, according to a sample to be furnished by the clerk of the court, with a blank margin, one and a half inches wide, at the top, bottom, and sides of each page.

VII. The pages of the transcript shall be numbered, and shall be written only upon one side of the leaves.

VIII. Each transcript shall be prefaced with an alphabetical index to its contents, specifying the page of each separate paper, order, or proceeding, and of the testimony of each witness, and shall have at least one blank or fly-sheet cover.

IX. Marginal notes of each separate paper, order or proceeding, and of the testimony of each witness, shall be made throughout the transcript.

X. The transcript shall be fastened together on the left side of the pages, by ribbon or tape, so that the same may be secured and every part conveniently read.

XI. The transcript shall be written in a fair, legible hand, and each paper or order shall be separately stated.

XII. No record which fails to conform to these rules shall be received, or docketed, by the clerk of this court.

XIII. For the purpose of correcting any error or defect in the

transcript from the court below, either party may suggest the same, in writing, to this court, and, upon good cause shown, obtain an order that the proper clerk certify to this court the whole or part of the record, as may be required. If the attorney of the adverse party be absent, or the fact of the alleged error be disputed, the suggestion must be accompanied by an affidavit proving the existence of the error alleged.

XIV. Upon the death, or other disability of a party, pending an appeal, his representative shall be substituted in the suit by suggestion, in writing, to the court, on the part of such representative, or of any party on the record. Upon the entry of such suggestion, an order of substitution will be made, and the cause shall proceed as in other

cases.

XV. The calendar of each term shall contain only those causes in which the transcript shall have been filed five days before the commencement of the term, except by the order of the court or by the written consent of the parties. See Rail

.

XVI. To entitle the appellant to bring the cause to a hearing at any term, the statement of his points and authorities shall be filed five days before the hearing; and unless so filed, the appeal will be dismissed. Additional points may be filed at any time, by leave of the court or the consent of the parties. The argument before the court shall be confined to the points on file.

XVII. The clerk shall set down not more than ten causes for one day, aud no cause shall be set for Fridays and Saturdays. All causes from the same judicial district shall be set together, and in the order of the number of the district, commencing with the first, except the calendar shall end with the Sacramento causes, preceded by those from San Francisco.

XVIII. Causes in which the people of the state are a party, and a citizen is confined in prison, may be called, on motion of the attorney general, at any time, upon due notice to the opposite party; and for this purpose, all such causes shall have precedence on the calendar.

XIX. Upon a suggestion in writing, to the court, and upon cause

S