the undertaking to make the appeal effectual, and the undertaking to stay the execution of a money judgment or order, may be in one instrument; which is executed by the sureties, but the undertakings to make the appeal effectual and to stay the execution of the judgment or order in the cases mentioned in sections 943 and 945 of that code, should be in separate instruments, since the undertaking to make the appeal effectual, need not be executed by the appellant, and the undertakings mentioned in said sections-943 and 945-must be executed by the appellant and by the sureties.

If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order cannot be stayed by the appeal until the instrument is executed and deposited with the clerk with whom the judgment or order is entered, to abide the judgment of the appellate court. Code of Civil Procedure, section 944.

FORMS UNDER APPLICATIONS FOR WRITS OF REVIEW, WRITS OF MANDATE AND WRITS OF

PROHIBITION.

FORM NO. 238.

PETITION FOR WRIT OF REVIEW.

Name of Court.]

A B, petitioner, v. The Justice's Court of

in the county of

respondent.

Township,

and C D, the justice of said court,

A B, the petitioner herein, petitions this honorable court, and alleges and shows:

I. That on the day of

your petitioner commenced an action in the justice's court of C D, a justice of the peace in township, in the county of, in the state of California, who was then, and ever since has been, such justice of the peace, against one E F. by filing a complaint in, that action against said E F to recover judgment against him for one hundred and fifty dollars for services rendered for him at his request by your petitioner, and for costs of the action;

II. That said E F was at the commencement of the action, and ever since has been a resident of said township of in said county of ; and after the filing of said complaint a summons was issued in the action and was served on said E F, the defendant therein, who afterwards answered in the action; and notice of the time of the trial was signed and issued by said justice of the peace, and was served on the parties to the action, and the action came on to be tried in said justice's court in said township on the day of - the time designated in said notice, and your petitioner and said E F both personally appeared on said day for such trial and both waived a trial by jury, and said action was tried by said justice of the peace, and witnesses were sworn and examined. and evidence was introduced on such trial, and the cause was submitted to said justice's court for decision; and thereafter, and on the day of, said justice's court rendered and entered judgment in the action in favor of your petitioner,

that he have and recover from the defendant E F one hundred and fifty dollars; and dollars, costs in that action.

III. That thereafter, and on the day of, said justice's court, said C D, acting as the justice of said justice's court, on motion of said defendant E F, made and entered in his docket an order in said action purporting to vacate and set aside said judgment in said justice's court in favor of your petitioner, and to grant defendant a new trial in the action;

IV. That said justice's court had no jurisdiction to make said order and your petitioner has no appeal from said order, and has no plain, speedy and adequate remedy, other than by a writ of review, and your petitioner is the party beneficially interested in this proceeding.

WHEREFORE your petitioner makes application to this honorable court to grant your petitioner a writ of review, requiring C D, said justice of the peace, to certify fully to this honorable court at a specified time and place, a transcript of the record and proceedings in said justice's court in said action therein of your petitioner against said E F, to the end that said order be reviewed by this honorable court, and that such order be annulled, and be adjudged void and of no effect.

And your petitioner will ever pray, etc.

GH.

Attorney for the Petitioner.

[Duly verified.]

A B, Petitioner.

If the writ of review be granted, the justice of the peace must certify fully to the court granting the writ, a transcript of the records and proceedings in the case mentioned in the writ and the matter will be heard on the transcript so returned, unless a further return be ordered.

FORM NO. 239.

PETITION FOR A WRIT OF MANDATE.

[Name of Court.]

A B, petitioner, v. C D, as sheriff of the county of respondent.

A B, your petitioner, respectfully petitions this honorable court and shows:

day of

I. That on the judgment, which was duly given court of township, in

-, Esq.. the justice of the against one E F for the sum of costs of suit;

this petitioner recovered. and made, in the justice's county, in this state, held by peace of said justice's court, dollars, and dollars

II. That said judgment has never been appealed from, vacated or set aside, and it is wholly unpaid and unsatisfied;

III. That on the day of ——, an execution was issued out of said justice's court to enforce said judgment, and was directed and was delivered to said C D as sheriff of the said county of in this state, and who then was, and ever since

has been the sheriff of said county of

IV. That E F, the defendant in that action, has no personal property in said county of ——— which is not exempt from execution, but he has and owns real property in said county, namely, [describe said property] not exempt from execution, and which is sufficient to satisfy said judgment;

V. That this petitioner has pointed out said real estate to C D, said sheriff, and has requested him to levy on and sell under said execution said real estate or so much thereof as may be necessary for that purpose, to satisfy said judgment;

VI. That notwithstanding this request, said C D, as such sheriff, refused, and ever since has refused, as such sheriff, to levy on, under said execution, and to sell thereunder, said real estate, or any part thereof, or any interest of the said E F therein, for the purpose of satisfying said judgment, or any part thereof;

VII. That your petitioner is beneficially interested in having such writ of mandate issued by this honorable court, and he has no plain, speedy or adequate remedy in the ordinary course of law.

WHEREFORE your petitioner prays that a writ of mandate issue out of this honorable court directed to said C D as sheriff of said county of, in the state of California, commanding him to execute the writ of execution mentioned in this petition,

or show cause before this court, at a specified time and place, why he has not done so.

GH,

Attorney for Petitioner.

[Duly verified.]

A B, Petitioner.

FORM NO. 240.

PETITION FOR A WRIT OF PROHIBITION.

[Name of Court.]

A B, petitioner, v. Hon. C D, judge of the Superior Court of the state of California, in the county of, respondent. Your petitioner respectfully petitions this honorable court, and shows:

I.

That an action is pending in the Superior Court of the state of California, in the county of, in which action your petitioner is plaintiff and one E F is defendant; and that Hon. CD is the judge of said Superior Court, and that G H is one of the attorneys for the defendant in that action;

II. That said G H, said attorney of the defendant in that action, is related to the Hon. C D, said judge of said court, by affinity in the third degree, computed according to the rules of law:

III. That the disqualification of the Hon. C D, judge of said Superior Court, to sit and act as judge on the trial of said action of your petitioner against said E F, has been brought to the attention of said C D, said judge, but notwithstanding this he has set said action for trial in said Superior Court to be tried before himself, presiding as judge, and he proposes to have the same tried before himself presiding as such judge;

IV. That your petitioner is beneficially interested in this proceeding, and has no plain, speedy or adequate remedy in the ordinary course of law.

WHEREFORE your petitioner prays that a writ of prohibition be issued out of this honorable court, directed to Hon. C D, judge of said Superior Court, commanding him to refrain from

BUDD--39