to pay you the debt," "or dollars." The amount must be actually produced by the hand of the tenderer, unless he be expressly told by the tenderee not to produce it. The conduct of the tenderee may, however, dispense with the necessity of its actual production, as when for some reason which he assigns, says: "You need not produce it; I will not accept the amount." It is always, however, safest to produce the money and offer it, and do it in such manner as to be able to prove the act and the amount.

SEC. 8. On the subject of a tender by the vendee to obtain specific performance of contract, it is held in Duff vs. Fisher (15 Cal. 375), that the tender must be stated with particularity as to time. It is not only necessary to aver a tender, but the pleader must aver his then and continuing willingness to pay the amount tendered, and he must bring the money into court. 28 Cal. 238; 25 Cal. 502; 34 Cal. 616; 30 Cal. 486; 26 Cal. 420.

CHAPTER LXXXVI.

TIME.

SECTION 1. Perhaps no class of questions has given rise to so much verbal criticism as cases regarding the mode of computing time. The day of the date is now excluded in the computation of time on notes and bills of exchange. Of late, the general rule of construction seems to have been to exclude the first day. It would be impracticable to lay down any rule in advance applicable to every case that may arise. When the entire validity of an instrument or a title must fail and the true intention of the parties be defeated unless the first day be included, then it should be done. But when a certain time for deliberation is given, the exclusive rule should be adopted. There is no uniform rule for the computation of time, whether we reckon from an event or a date; the courts generally including or excluding the first day, as it was necessary to give effect to contracts and carry out the intention of the parties. 8 Cal. 415, 417. SEC. 2. It is a general rule that where a statute specifies

the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered directory merely, unless the nature of the act to be performed or the language of the legislature shows that the designation of the time was intended as a limitation of the power of the officer; thus, where an act requires a sheriff to file a certificate of sale within ten days, his omission or neglect to do so within the specified time does not affect the validity of the sale, and where a statute requires an act to be done by an officer within a certain time for a public purpose, though he neglect his duty by allowing the precise time to go by, if he afterwards perform, the public shall not suffer by the delay. But it is otherwise where the delay does not affect the rights of third parties, but the party's own right, as where a party elected to an office fails to qualify by taking the oath and filing the bond at the time and in the manner required by law. 3 Cal. 126, 127.

SEC. 3. A day is not to be considered a unit to the prejudice of the rights of a party, and an examination should be had of the very point of time when an act was done. Most of the fiction about time and the computation of time is not now recognized as law, and especially by the supreme court of California. 1 Cal. 416.

SEC. 4. Whenever time becomes important courts will inquire into a day or even a fractional portion of a day. 14 Cal. 571.

Transfer of Action to District Court.

SECTION 1. The parties shall not be at liberty to give evidence upon any question which involves the title or possession of real property, or the legality of any tax, impost,

assessment, toll or municipal fine, nor shall any issue presenting such question be tried by said justice; and if it appear from the plaintiff's own showing on the trial or from the answer of the defendant verified by his oath, that the determination of the action will necessarily involve the question of title or possession to real property or the legality of any tax, impost, assessment, toll or municipal fine, the justice shall suspend all further proceedings in the action and certify the pleadings, or if the pleadings be oral a transcript of the same, from his docket to the district court of the county, and from the time of filing such pleadings or transcript with the county clerk the district court shall have over the action the same jurisdiction as if it were commenced therein. Gen. Laws, 5512.

SEC. 2. When the determination of an action involves the question of title or possession to real property, the justice cannot exercise jurisdiction. Whether this appears from the plaintiff's own showing or from the answer of the defendant, verified by his oath, the justice must certify the pleadings to the district court for trial. The amount involved has no effect upon the question of jurisdiction; it is the fact that the title to real property is involved that determines it. In opening jurisdiction the district court must be governed by the whole record, and all the presumptions are in favor of the validity of the proceedings, and no objection growing out of the amount involved can affect the jurisdiction. Cullen vs. Langridge et al., 17 Cal. 68; Holman vs. Taylor, 31 Cal. 338; Larue vs. Gaskin, 5 Cal. 507; Doherty vs. Thayer, 31 Cal. 140. The granting or refusing a change of venue cannot be received in an application for a mandamus. By this writ the justice may, in case of his refusal, be compelled to act, but his erroneous action cannot be thus corrected. The remedy is by appeal. Flagley vs. Hubbard, 22 Cal. 34.

Transfer of Action to other Justice.

SEC. 3. If at any time before the trial it appear to the satisfaction of the justice before whom the action is brought, by affidavit of either party, that such justice is a material witness for either party, or if either party make affidavit that he has reason to believe and does believe that he can

not have a fair and impartial trial before such justice, by reason of the interest, prejudice or bias of the justice, the action may be transferred to some other justice of the same or neighboring township; and in case a jury be demanded and affidavit of either party is made that he cannot have a fair and impartial trial, on account of the bias or prejudice of the citizens of the township against him, the action may be transferred to some other justice of the peace in the county; but only one transfer shall be allowed to either party. The justice to whom an action may be transferred by the provisions of this section shall have and exercise the same jurisdiction over the action as if it had been originally commenced before him. The justice ordering the transfer of the action to another justice shall immediately transmit to the latter, on payment by the party applying of all the costs that have accrued, all the papers in the action together with a certified transcript from his docket of the proceedings therein. The justice to whom the case is transferred shall issue a notice stating the time and place when and where the trial will take place, which notice shall be served upon the parties by any officer authorized to serve process in justice's court or by any person specially deputied by the justice for that purpose, at least one day before the trial. Gen. Laws, 5513.

Affidavit for Transfer.

SEC. 4. The affidavit for a change of venue should state

facts in such a manner as to enable the court to draw its own inference whether an impartial trial can be had in the particular case, admitting that a prejudice does exist in the community against the defendant. 3 Cal. 413.

Form of Affidavit.

SEC. 5. The following is a form of affidavit for transfer of action:

of said county, being duly sworn, says: That he is the defend

ant in the above entitled action; that he has reason to believe and does believe, that he cannot have a fair and impartial trial before the justice before whom this action is brought, by reason of the interest, prejudice and bias, of the said justice [or, "that said justice is a material witness for the said defendant," or, "the plaintiff in said action," or in case a jury has been demanded, "that said affiant cannot have a fair and impartial trial on account of the bias and prejudice of the citizens of the above-named township against him "].

Subscribed and sworn to before me this day of A.D. 18...

....

.....

SEC. 6. The following is a form of notice of time and place of transferred action:

In the justice's court of.... township, in the county of ...., state of ....

plaintiff,

against

defendant.

To........, the plaintiff in the above-entitled action, and

defendant in said action:

the

You will please take notice, that the said action, transferred to the aboveentitled court from the justice's court of.... township, in the county of...., is set for trial before me, at my court-room in said.... township, in said ... county, on ...., the A.D. 18.., at .... oclock, . . M.

Dated....

day of

.....

SECTION 1. In considering injuries referred to in this chapter, it must be remembered that the rules and laws which will be invoked, have not a less binding force upon courts of the most limited than upon those courts of the most extended jurisdiction. Under the ancient system of pleading, cases embraced in the classification "trespass" found remedies in actions known by that system, as trespass, trespass on the case, detinue and replevin. With the abolition of the ancient forms of action, under and by which the remedies furnished by each were sought,