The probate judge and court have the same control over him and the estates in his hands, as in other cases. Four per cent. upon the amount of the estate administered are all the fees to be charged and recovered by them; no additional allowance to them can be made by the court for extra services.(a)

APPEALS.

In cases where the appellant is an executor, administrator, trustee, or a person acting for and on behalf of another right, the court from which the appeal is taken can, in its discretion, dispense with or limit the security of the appellant.

The securities to an undertaking are to verify by affidavit that they are each worth double the amount named therein, over and above all their just debts and liabilities, exclusive of property exempt from execution. The respondent, in case he is not satisfied with the sufficiency of the sureties, may, within five days after the undertaking is filed, except to the same, and file his exceptions in writing, and give notice thereof to the appellant, and then the appellant is to give notice to the respondent in writing, that the sureties or others will appear before the court below or the county judge or clerk, within five days from the day of filing the exceptions.. The appellant is then to take his sureties at the time and place and to the court, judge or clerk named in his notice for justification, and there the sureties or others are to justify to the acceptance of such court, judge or clerk, who is to certify the same on the undertaking; then on the filing the undertaking verified, accepted and certified, the stay of the execution of the judgment or order appealed from is effected; when the judgment or order appealed from directs the sale of perishable property, the court below may order the property sold and the proceeds brought into court and placed on deposite, to abide the event of the suit before the appellate court, after the appeal has been perfected and undertaking given to stay execution.

(a) 2 California Statutes, 206, 318, 488, 525.

From trial judgments of these courts in actions commenced in them or finally entered by them in special proceedings commenced in them, appeals can be taken at any time within one year.

From final judgments rendered by these courts on appeal from an inferior court, appeals to be taken within ninety days after rendition of the judgment.

From order made by these courts at a special term, appeals to be taken within sixty days after the order is made and entered into the minutes of the clerk.(a)

(a) 2 California Statutes, 106, 107, 108.

CHAPTER IV.

PRACTICE IN CIVIL CASES IN JUSTICES' COURTS.

THE PLAINTIFF.

THE action must be prosecuted by the real party in interest, except in cases of an executor or administrator, a trus tee of an express trust, or a person expressly authorized by statute to sue: the father or mother of a child that has been injured or killed; the guardian of his ward who has been injured or killed, and those who are united in interest in the matter of the suit, should be joined as plaintiffs; but, in case there are some who refuse, the rest can sue, and those who refuse to become party plaintiffs along with them, may be made party defendants with those who are the proper de fendants, by charging the fact in the complaint. Where there is a question of common or general interest to many persons, or the parties are numerous, and it is impracticable to bring them all into court, the action can be brought by one for the benefit of all. In case of the death or other disability of the plaintiff, after the action has been commenced, the court is to allow the representative or successor in interest to prosecute the action. In case of the transfer of the plaintiff's interest in the subject matter of the action, after the same has been commenced, the court, on motion, may continue the action in the name of the original party, or allow the assignee to be substituted in his place.(a)

DEFENDANT.

Any person who claims an interest in the subject matter

(a) 2 California Statutes, 134.

of the controversy, adverse to the plaintiff, may be made a party by the plaintiff; but, till persons who have an interest in the controversy, adverse to the plaintiff, and who are necessarily parties to a complete determination or settlement of the question involved in the action, must be made parties, except where the question is one of a common or general interest to many persons, and the parties defendants are numerous, and it is impracticable to bring them all before court, one or more may defend for the benefit of all; and in cases where persons are severally liable upon the same obligation or instrument, the plaintiff may sue one or all, as he shall determine; and in case of the transfer of the interest in the subject matter of the action by one or all of the defendants, after the action is commenced, the action is to be continued in the name of the original party, or the court will substitute the assignee, and in case of the death or other disability of the defendant or defendants, the court, on motion, is to allow the representative or successor in the interest to defend in place of the original party.(a)

AS TO MAKING NEW PARTIES.

The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but, in case a full and complete judgment of the court cannot be pronounced in the action without the presence of the parties, it is the duty of the court to order them to be brought in.()

OF THE COMMENCEMENT OF ACTIONS.

In actions to foreclose a mortgage or other lien on personal property, for forcible or unlawful entry upon, or forcible or unlawful detention of lands, tenements, or other possessions, or to recover possession of mining claims, the complaint is to be in writing, stating the cause of action, and verified by the oath of the plaintiff. In other actions, the complaint (b) 2 California Statutes, 35, 134.

(a) 2 California Statutes, 134.

may, at the option of the plaintiff, be oral or in writing; when oral, the justice is to take down in his docket the substance of the complaint; but if in writing, the justice is to file it, and note the filing in his docket. The complaint is to state, in a plain and direct manner, the facts constituting the cause of action, so that a person of common understanding will know what is intended. After the complaint has been made or filed, the justice is to issue a summons against the defendant.

The summons is to require the defendant to appear before the justice at his office, naming the township or city, at a time specified therein, to answer the complaint of the plaintiff for the cause of action, describing the cause of action in such manner as to apprise the defendant of the nature of the claim against him; and in case the action is for money or damages, the amount thereof is to be stated in the summons for which judgment will be taken, in case the defendant shall not appear and answer.

Before the summons is issued, the justice may require an undertaking as security for costs, as he shall determine.(a)

SERVICE OF SUMMONS.

If the plaintiff or defendant resides out of the city or township, the summons is to be returned within two days from its date, and served one day before the time limited for the appearance of the defendant.

In all other cases, it is to be returnable in not less than two, nor more than ten days from its date, and is to be served at least two days before the time for the defendant's appearance.(b)

Service is to be by the sheriff, or a constable of the county.

HOW SERVED.

The service is to be by delivery of a copy of the summons to the defendant, except where the defendant is a corpora

(a) 2 California Statutes, 135.

(b) 2 California Statutes, 135, ch. 2.