Page images
PDF
EPUB

residence and occupations, to the effect that they are bound in the amount mentioned in the order of arrest; that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action.

Art. 816, Sec. 82. At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested.

ART. 817, Sec. 83. For the purpose of surrendering the defendant, the bail at any time or place before they are finally charged, may themselves arrest him; or by a written authority, indorsed on a certified copy of the undertaking, may empower the sheriff to do so. Upon the arrest of the defendant by the sheriff, or upon his delivery to the sheriff by the bail, or upon his own surrender, the bail shall be exonerated; provided, such arrest, delivery, or surrender, take place before the expiration of ten days after judgment; but if such arrest, delivery, or surrender, be not made within ten days after judgment, the bail shall be finally charged on their undertaking, and be bound to pay the amount of the judgment within ten days thereafter.(1)

ART. 818, Sec. 84. If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of such original judgment.-[Am. May 15, 1854; R. S. St. 1851, 63; St. 1850, 436; C. L. 532.

ART. 819, Sec. 85. The bail shall also be exonerated by the death of the defendant, or his imprisonment in a state prison; or by his legal discharge from the obligation to render himself amenable to the process.

Art. 820, Sec. 86. Within the time limited for that purpose, the sheriff shall file the order of arrest in the office of the clerk of the court in which the action is pending, with his return indorsed thereon; together with a copy of the undertaking of the bail. The original undertaking he shall retain in his possession until filed, as herein provided. The plaintiff

, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted them, and the sheriff shall be exonerated from liability. If no notice be served within ten days, the original undertaking shall be filed with the clerk of the court.

Art. 821, Sec. 87. Within five days after the receipt of notice, the sheriff or defendant may give to the plaintiff, or his attorney, notice of the justification of the same, or other bail, (specifying the place of residence and occupations of the latter) before a judge of the court, or county judge, or county clerk, at a specified time and place; the time to be not less than five, nor more than ten days thereafter, except by consent of parties. In case other bail be given, there shall be a new undertaking:

Art. 822, Sec. 88. The qualifications of bail shall be as follows: 1. Each of them shall be a resident, and householder, or freeholder, within the county. 2. Each shall be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this chapter, over and above all his debts and liabilities, exclusive of property exempt from execution ; but the judge, or county clerk, on justification, may allow more than two sureties to justify severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

Art. 823, Sec. 89. For the purpose of justification, each of the bail shall attend before the judge, or county clerk, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or county clerk, in his discretion, may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff.

(1) Matoon v. Eder, Jan. T. 1856.

[graphic]
[ocr errors][merged small][merged small][ocr errors][merged small]

Art. 824, Sec. 90. If the judge, or clerk, find the bail sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the sheriff shall thereupon be exonerated from liability.

ART. 825, Sec. 91. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this chapter, the defendant may deposit such amount instead of giving bail. In either case, the sheriff shall give the defendant a certificate of the deposit made, and the defendant shall be discharged out of custody.

Art. 826, Sec. 92. The sheriff shall immediately after the deposit pay the same into court, and take from the clerk receiving the same, two certificates of such payment; the one of which he shall deliver or transmit to the plaintiff, or his attorney, and the other to the defendant. For any default in making such payment the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited, as in other cases of delinquency.

Art. 827, Sec. 93. If money be deposited, as provided in the last two sections, bail may be given, and may justify upon notice, at any time before judgment; and on the filing of the undertaking and justification with the clerk, the money deposited shall be refunded by such clerk to the defendant.

ART. 828, Sec. 94. Where money shall have been deposited, if it remain on deposit at the time of the recovery of a judgment in favor of the plaintiff, the clerk shall, under the direction of the court, apply the same in satisfaction thereof; and, after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall

, under like direction of the court, refund to him the whole sum deposited and remaining unapplied.

ART. 829, Sec. 95. If, after being arrested, the defendant escape or be rescued, the sheriff shall himself be liable as bail; but he may discharge himself from such liability by the giving and justification of bail

, at any time before judgment. Art. 830, Sec. 96. If a judgment be recovered against the sheriff, upon

his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the same proceedings may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency.

Art. 831, Sec. 97. A defendant arrested may, at any time before the justification of bail, apply to the judge who made the order, or the court in which the action is pending, upon reasonable notice to the plaintiff to vacate the order of arrest, or to reduce the amount of bail. If the application be made upon

affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order or arrest was made. (1)

Art. 832, Sec. 98. If, upon such application, it shall satisfactorily appear that there was not sufficient cause for the arrest, the order shall be vacated; or, if it satisfactorily appear that the bail was fixed too high, the amount shall be reduced.

ART. 833, Sec. 99. The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him, as provided in this chapter.(2)

Art. 834, Sec. 100. Where a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf

, showing: 1. That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the possession thereof. 2. That the property is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief. 4. That the same has not been taken for a tax, assessment or fine, pursuant to a statute; or seized under an execution, or (1) McGilvery , Morehead, 2 Cal. 607.

Dauriel v. Gorham, Jan. T. 1856; Taylor v Seymour & Barry, Oct. T. 1856. Arts. 833—844.

T

[graphic]

ART. 842, Sec. 108. When the sheriff shall have taken property, as in this chapter(1) provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same.

Art. 843, Sec. 109. If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the sheriff, the sheriff shall not be bound to keep the property, or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the sheriff against such claim, by an undertaking, by two sufficient sureties, accompanied by their affidavits, that they are each worth double the value of the property as specified in the affidavit of the plaintiff, over and above their debts and liabilities, exclusive of property exempt from execution, and are freeholders or householders of the county; and no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff, unless so made.

Art. 844, Sec. 110. The sheriff shall file the notice, undertaking and affidavit, with his proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property mentioned therein.-[Am. May 15, 1854; R. S. St. 1851, 67; St. 1850, 439 ; C. L. 537.

ÅRT. 845, Sec. 111. An injunction is a writ or order, requiring a person to refrain from a particular act. The order or writ may be granted by the court in which the action is brought, or by a judge thereof, or by a county judge; and when made by a judge, may be enforced as the order of the court. (2)

Art. 846, Sec. 112. An injunction may be granted in the following cases : 1. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. 2. When it shall appear by the complaint or affidavit that the commission or continuance of some act during the litigation would produce great or irreparable (injury] to the plaintiff

. 3. When it shall appear during the litigation that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffeetual.(3)

ART. 847, Sec. 113. The injunction may be granted at the time of issuing the summons upon the complaint; and at any time afterwards, before judgment, upon affidavits. The complaint in the one case, and the affidavits in the other, shall show satisfactorily that sufficient grounds exist therefor. No injunction shall be granted on the complaint, unless it be verified by the oath of the plaintiff, or some one in his behalf, that he, the person making the oath, has read the complaint, or heard the complaint read, and knows the contents thereof, and the same is true of his own knowledge, except the matters therein stated on information and belief, and that as to those matters he believes it to be true. When granted on the complaint, a copy of the complaint and verification attached shall be served with the injunction; when granted upon affidavit, a copy of the affidavit shall be served with the injunction.(4)

Art. 848, Sec. 114. An injunction shall not be allowed after the defendant has answered, unless upon notice, or upon an order to show cause ; but in such case the defendant may be restrained until the decision of the court or judge granting or refusing the injunction.

ART. 849, Sec. 115. On granting an injunction, the court or judge shall require, except where the people of the State are a party plaintiff, a written undertaking (1) Arts. 833-844. (2) Engels v. Lubeck, 4 Cal. 31; Hicks v. Davis, 4 Cal. 67 ; Robinson v. Killum, Oct. T. 1856. (3) Dewitt v. Hays, 2 Cal. 463; Minturn v. Hays, id. 590; Ramsay v. Chandler, 3 Cal. 90; Waldron v. Marsh,

(4) Elliot v. Osborne, 1 Cal. 396.

5 Cal. 119.

on the part of the plaintiff, with sufficient sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto. (1)

ART. 850, Sec. 116. If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted ; and the defendant may, in the meantime, be restrained.

Art. 851, Sec. 117. An injunction to suspend the general and ordinary business of a corporation, shall not be granted except by the court; nor shall it be granted without due notice of the application therefor to the proper officers of the corporation, except when the people of this state are a party to the proceeding.

ART. 852, Sec. 118. If an injunction be granted without notice, the defendant at any time before the trial may apply upon reasonable notice to the judge who granted the injunction, or to the court in which the action is brought, to dissolve or modify the

same. The application may be made upon the complaint and the affidavit on which the injunction was granted, or upon affidavit on the part of the defendant, with or without the answer. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other evidence, in addition to those on which the injunction was granted.

Art. 853, Sec. 119. If upon such application it satisfactorily appear that there is not sufficient ground for the injunction, it shall be dissolved; or if it satisfactorily appear that the extent of the injunction is too great, it shall be modified.

Art. 854, Sec. 120. The plaintiff at the time of issuing the summons or at any time afterwards may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided in the following cases : 1. In an action upon a contract express or implied, for the direct payment of money, which contract is made or is payable in this state, and is not secured by a mortgage upon real or personal property. 2. In an action upon a contract, express or implied, against a defendant not residing in this state. (2)—[Am. May 18, 1853 ; R. S. St. 1851, 68.

Art. 855, Sec. 121. The clerk of the court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, showing : 1. That the defendant is indebted to the plaintiff, (specifying the amount of such indebtedness, over and above all legal set-offs or counter claims,) upon a contract express or implied, for the direct payment of money, and that such contract was made or is payable in this state, and that the payment of the same has not been secured by any mortgage on real or personal property; or, 2. That the defendant is indebted to the plaintiff, (specifying the amount of such indebtedness as near as may be, over and above all legal set-offs or counter claims,) and that the defendant is a non-resident of the state. (3)-[Am. May 18, 1853 ; R. S. St. 1851, 68.

Art. 856, Sec. 122. Before issuing the writ, the clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, not exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that

may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. (4)

(1) Elliot v. Osborne, 1 Cal. 396; Morgan v. Thrift, 2 Cal. 562; Cunningham v. Breed, 4 Cal. 384; Gelston v. Whitesides, 3. Cal. 309; Ah Thaie v. Quan Wan, 3 Cal. 216; Russell v. Elliot, 2 Cal. 245. (2) Griswold v. Sharp, 2 Cal. 17; Dulton v. Shelton, 3 Cal. 206. (3) Hawley v. Delmas, 4 Cal. 195.

(4) Heath v. Lent, 1 Cal. 410; Benedict v. Bray, 2 Cal. 251; Ah Thaie v. Quan Wan, 3 Cal. 216; Low et al. v. Adams, July T. 1856.

« PreviousContinue »