3. An injunction can only be granted or sustained upon affidavit. Either the complaint must be verified, or upon complaint with an affidavit filed.-Smith v. Reno, 6 -How. Pr., 124; Minor v. Terry, ib., 208.

4. The original injunction order must be shown to a party. Service of a copy only with a notice that it is a copy of the original, is not sufficient.-Watson v. Fuller, 9 ib.,

425.

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.

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, 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.

See Sec. 650.

1. An injunction order is inoperative unless the undertaking be given.—Elliott v. Osborne, 1 Cal., 396,

2. The court may order a reference to ascertain the damages sustained by an injunction issued without cause.-Russell v. Elliott, 2 Cal., 245; Sullivan v. Judah, 4 Paige, 444.

3. A party filing an undertaking to obtain an injunction, is deemed to have waived the right to insist on a trial by jury; and consented that the damages may be ascertained in the mode prescribed by the statute; and an order of reference is no violation of the constitutional right to trial by jury.-Russell v. Elliott, 2 Cal., 245.

4. For suits on undertakings, see Morgan v. Thrift, 2 Cal., 562; Gelston v. Whitesides, 3 Cal., 309; Cunningham v. Breed, 4 Cal., 384.

5. In suit on undertaking, counsel fees in having injunction dissolved, allowed.-Ah Thaie v. Quan Wan, 3 Cal., 216: Coates v. Coates, 1 Duer, 664.

6. An action on the case will not lie for improperly suing out an injunction, unless it is charged in the declaration as abuse, or without probable cause. The remedy is on the appeal bond.-Robinson v. Kellum, 6 Cal., 399.

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 mean time, be restrained.

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.

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.

1. When an injunction is granted on a verified complaint, and defendant moves on a verified answer to dissolve the injunction, the plaintiff is entitled, on the motion, to read additional affidavits in support of the complaint, if the defendant by his answer sets up new matter in avoidance.-Jaques v. Areson, 4 Abbott, 282; Powell v. Clark, 5 ib., 70.

2. A motion to vacate an injunction once denied, cannot be renewed unless leave be reserved or some new ground in vacating arise.—Hoffman v. Livingston, 1 John. Ch. R., 211.

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.

1. No appeal is allowed from an order refusing to dissolve an injunction.-Martin v. Travers, 7 Cal., Jan. T.

2. The court may modify the injunction on a motion ex parte, if it were granted ex parte.-Fremont v. Merced Mining Co., 8 Cal., Jan. T.

Plaintiff may have property attached.

SEC. 13. Section one hundred and twenty of said act is amended so as to read as follows:

Sec. 120. The plaintiff, at the time of issuing his summons, or at any time afterwards, may have the property of the defend ant attached as security for the satisfaction of any judgment .aat" may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided, in the following cases:

First-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, lien, or pledge, upon real or personal property, or, if so secured, that such security has been rendered nugatory by the act of the defendant.

Second

In an action upon a contract, express or implied, against a defendent not residing in this State.

SEC. 14. Section one hundred and twenty-one of said act is amended so as to read as follows:

issue wilt of

Sec. 121. The Clerk of the court shall issue the writ of at- Clerk to tachment upon receiving an affidavit by, or on behalf of, the attachment. plaintiff, which shall be filed, showing:

First-That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, over and above all legal set-offs and 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, lien, or pledge, upon real or personal property; or,

Second-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; and,

Third-That the sum for which the attachment is asked is an actual, bona fide existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud, any creditor or creditors of the defendant.

SEC. 15. Section one hundred and twenty-two of said act is 'amended so as to read as follows:

give written

Sec. 122. Before issuing the writ, the Clerk shall require a written undertaking on the part of the plaintiff, in a sum not Plaintiff to less than two hundred dollars, not exceeding the amount claimed undertaking. by the plaintiff, with sufficient sureties, to the effect that if tho 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.

SEC. 16. Section one hundred and thirty-eight of said act is amended so as to read as follows:

to have

Sec. 138. The defendant may also, any time before the time Defendant for answering expires, apply, on motion, upon reasonable notice may apply to the plaintiff, to the court in which the action is brought, or to attachment the Judge thereof, or to a County Judge, that the attachment be discharged, on the ground that the writ was improperly or irregularly issued.

discharged.