Order of Reference to ascertain and compute Liens, déc.

Peter Don
against District Court,

M. W. Sig, John L. Brown, and s Twelfth Judicial District.

E. P. Hawks, partners, &c.

In the above-entitled cause, the plaintiff having proved to the satisfaction of the court that he ...} caused to be published for at least twenty days prior to the 12th day of March, 1859, in the San Francisco IIerald, a daily newspaper published in the ci and county of San Francisco, a notice as required by law, notifying all persons holding or claiming liens under the provisions of the act of the legislature of the state of California, entitled “An Act for Securing Liens to Mechanics and others, ". April 19th, 1856,” and an act amendatory thereof, approved April 22d, 1858, entitled “An Act to amend an Act entitled an Act for Securing Liens to Mechanics and others,” passed April 19th, 1856, upon the premises described in the plaintiff’s complaint, to be and a pearin this court on the twelfth day of March, 1859, atten o'cloc A. M. of the said day, and during the regular term of said court, and to exhibit then and there the proof of said liens; and it appearing to the court that the plaintiff hath in all things complied with the law and the provisions of the statute in respect to said notice; and it further appearing that on the said 12th day of March, the following-named persons appeared in said court and claimed a lien on said premises, and offered to establish the same by proof, to wit:

jo Johnson, Peter Williams, &c., &c.

And no other persons than those last above-named ho appeared in pursuance of said notice, and claimed or exhibited proofs of their liens on said premises or any part thereof, it is adjudged, ordered and decreed that all liens not so exhibited on the said 12th day of March, 1859, shall be and the same are hereby adjudged and deemed to be waived in favor of those which were so exhibited.

And it is further ordered that this cause and the issues therein and the liens or claims of lien so exhibited on the said 12th day of March as aforesaid, be referred to John B. Harmon, to ascertain and report upon said liens and the amount justly due thereon, and upon the issues in this cause.


A MAGISTRATE is an officer having power to issue a warrant for the arrest of a person charged with a public offence. The following persons are magistrates: justices of the Supreme Court, district and county judges, justices of the peace, recorders of cities, and mayors of cities, upon whom are conferred by law the powers of justices of the peace." A coroner may also issue a warrant into one or more counties, for the arrest of a person found by an inquisition to have caused the death of another by criminal means.” A justice of the Supreme Court, a district judge, or county judge, may issue his warrant of arrest to any peace officer in the state. But any other magistrate can only issue his warrant to be served without the limits of his county, when his official character is certified by the county clerk of his county, or his handwriting is proved by affidavit endorsed on or annexed to the warrant, and some magistrate of the other county shall endorse upon the warrant an order that the warrant be executed in such other county.” The warrant is issued upon the complaint of the prosecutor under oath, and the depositions of any witnesses he may produce." Upon being arrested, the defendant must, in all cases, be taken before the proper magistrate without delay." If a public offence be committed in the presence of a magistrate, he may, by a verbal order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest."

* Wood's Dig. art. 1446. 4 id. 1447, 1448. 2 id. 437. " *id. 1455, 1468, 1472. 3 id. 1451. 6 id. 1469.

Arrest may also be made without a warrant by a peace officer" or by a private person: 1. For a public offence committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it; and 4th. By a peace officer only, on a charge made upon a reasonable cause, of the commission of a felony by the party arrested. A peace officer may also at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony." The person must be informed of the cause of the arrest and the authority of the officer, except when he is in the actual commission of the offence, or is arrested on pursuit immediately after the act, or after an escape.” When a defendant is arrested for a felonyt he must be brought before the magistrate who issues the warrant, or in case of his absence or disability, the nearest or most accessible magistrate of the same county; except in the case when the warrant is issued in the county where the defendant is found, upon an offence triable in another county, the defendant must be taken to that county.” When arrested for a misdemeanor,t however, the defendant is entitled to be admitted to bail in the county where arrested." The proceedings to be had upon the examination of the defendant are fully contained in the following sections of the act in relation to proceedings in criminal cases quoted from Wood's Digest of California Laws, from section 146, page 281, to section 176, page 284. SEC. 146. When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offence, the magistrate shall immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had.

* Peace officers are sheriffs of counties, and constables, marshals, and policemen of cities and towns respectively.

+ A felony is a public offence, punishable with death or by imprisonment in a state prison. Every other public offence is a misdemeanor.

1 Wood's Dig, art. 1464–1474. * id. 1452, 1455–1458.

2 id. 1467 and 1470. *id. 1453, 1454, 1458.

SEc. 147. He shall also allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose, and shall, upon the request of the defendant, require a peace officer to take a message to such counsel within the township or city as the defendant may name. The officers shall, without delay and without fee, perform that duty. SEC. 148. The magistrate shall immediately after the appearance of counsel, or if defendant require the aid of counsel after waiting a reasonable time therefor, proceed to examine the case. SEc. 149. The examination must be completed at one session, unless the magistrate for good cause shown adjourn it. The adjournment cannot be for more than two days at each time, nor more than six days in all, unless by consent or on motion of the defendant. SEC. 150. If an adjournment be had for any cause, the magistrate shall commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this act, as security for his appearance at the time to which the examination is adjourned. SEc. 151. The commitment for examination shall be by an endorsement signed by the magistrate on the warrant of arrest to the following effect: “The within-named, A. B., having been brought before me under this warrant, is committed for examination to the sheriff of the county of .” If the sheriff be not present, the defendant may be committed to the custody of a peace officer. SEc. 152. At the examination the magistrate shall in the first place read to the defendant the depositions of the witnesses examined on the taking of the information. He shall also issue subpoenas for any witnesses required by the prosecutor or the defendant, as provided in section five hundred and forty-eight. SEc. 153. The witnesses shall be examined in the presence of the defendant, and may be cross-examined in his behalf. SEc. 154. When the examination of witnesses on the part of the people is closed, the magistrate shall distinctly inform the defendant that it is his right to make a statement in relation to the charge against him (stating to him the nature thereof), that the statement is designed to enable him, if he see fit, to answer

the charge and to explain the facts. alleged against him, that he

is at liberty to waive making a statement, and that his waiver
cannot be used against him on the trial.
SEc. 155. If the defendant waive his right to make a state-
ment, the magistrate shall make a note thereof immediately
following the depositions of the witnesses against the defendant,
but the fact of his waiver shall not be used against the defendant
on the trial.
SEC. 156. If the defendant choose to make a statement, the
magistrate shall proceed to take the same in writing without
oath, and shall put to the defendant the following questions only:
“What is your name and age? Where were you born ? Where
do you reside, and how long have you resided there : What is
your business or profession ? Give any explanation you may
think proper of the circumstances appearing in the testimony
against you, and state any facts which you think will tend to
your exculpation.”
SEC. 157. The answer of the defendant to each of the ques-
tions must be distinctly read to him as it is taken down. He may
thereupon correct, or add to his answer, and it shall be corrected
until it is made conformable to what he declares to be the truth.
SEc. 158. The statement must be reduced to writing by the
magistrate, or under his direction, and authenticated in the fol-
lowing form: 1. It must set forth in detail that the defendant
was informed of his rights as provided by section one hundred
and fifty-four, and that after being so informed he made the
statement. 2. It must contain the questions put to him, and his
answers thereto, as provided in sections one hundred and fifty-
seven and one hundred and fifty-six. 3. It may be signed by
the defendant, or he may refuse to sign it; but if he refuse to
sign it, his reason therefor must be stated as he gives it. 4. It
must be signed and certified by the magistrate.
SEc. 159. After the waiver of the defendant to make a state-
ment, or after he has made it, his witnesses, if he produce any,
shall be sworn and examined.
Sec. 160. The witnesses produced on the part either of the
people or of the defendant, shall not be present at the examina-
tion of the defendant, and while a witness is under examination,
the magistrate may exclude all witnesses who have not been
examined. He may also cause the witnesses to be kept separate,

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