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tiff, on demand on him or his agent, indemnify the sheriff against such claim, by an undertaking with two sufficient sureties; and no claim to such property by any person other than the defendant or his agent, is valid against the sheriff, unless so made.

In case the defendant excepts to the sureties to the undertaking executed on behalf of the plaintiff, such sureties must justify on notice to the defendant, in like manner as upon bail on arrest; and the defendant's sureties to the undertaking given on requiring a return of the property, must justify before a judge or county clerk, upon notice to plaintiff of not less than two nor more than five days in the same manner as upon bail on arrest, and upon such justification, the sheriff must deliver the property to the defendant.

If the sureties to the undertaking on behalf of the plaintiff fail to justify, or if the plaintiff fail to indemnify the sheriff against the claim of a third person making an affidavit showing his title or right to the property, the sheriff should deliver the property to the defendant; but if such sureties do so justify, and the sheriff is indemnified against the claim of such third person, if made, and a return of the property be not required and the proper undertaking given by the defendant within five days after service on defendant of a copy of the affidavit and undertaking on behalf of the plaintiff, the sheriff should deliver the property to the plaintiff.

The party who is entitled to the delivery to him of the prop'erty, must pay to the sheriff his fees for taking the property, and his necessary expenses for keeping the same.4

ATTACHMENT.

In California, the statute has provided a provisional remedy by attachment: First, in an action upon a contract express or implied for the direct payment of money when the contract is made, or is payable in that state, and is not secured by any mortgage or lien upon real or personal property, or pledge of personal property or, if originally so secured, when such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; and second, in an action upon a contract express or implied, against a defendant not residing in this state.

4. Code of Civil Procedure, Secs. 509-520.

Such attachment may be issued at the time of issuing the summons in the action, or at any time thereafter.

To obtain such attachment, the plaintiff or some one in his behalf must, if the action be against a defendant who is residing in this state, make and deliver to the clerk of the court, an affidavit, showing that the defendant is indebted to the plaintiff (specifiying the amount of such indebtedness over and above all legal set-off and counter claims) upon a contract (stating it, to be express or to be implied as the fact may be) 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 or lien upon real or personal property, or any pledge of personal property, or, showing that if originally so secured, that such security has, without any act of the plaintiff, or of the person to whom the security was given, become valueless.

In an action against a non-resident of the state, the affidavit should show that the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs and counter claims) and that the defendant is not residing in the state. The affidavit must in all cases show that the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant.5

In drafting this affidavit, care must be taken not to state in the alternative that the contract was express or implied, and not to state in the alternative that the contract has not been secured by any mortgage or lien upon real or personal property, or pledge of personal property, or if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given become valueless."

Upon receiving the proper affidavit, the clerk of the court in which the action is pending, must require a written undertaking on the part of the plaintiff in the action, in a sum of not less than two hundred dollars, and 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

5. Code of Civil Procedure, Sec. 538.

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Hawley v. Delmas, 4 Cal. 195; Wilke v. Cohn, 54 Cal. 212.

sustain by reason of the attachment, not exceeding the sum specified in the undertaking.

Within five days after the service of the summons in the action, the defendant may except to the sufficiency of the sureties. When excepted to, they or others in their place, must, upon notice to the defendant of not less than two days nor more than five days, justify before a judge or county clerk, in the same manner as upon bail on arrest, and unless there be such justification, the judge must issue an order, vacating the writ of attachment.7

The statute states that the judge or clerk shall issue such order, but a clerk cannot exercise judicial functions. (An order is a direction of a court or judge.)

The writ of attachment may be directed to the sheriff of any county in which property of the defendant may be, and must require such sheriff to attach and safely keep all the property of the defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in the writ in conformity with the complaint, unless the defendant give him security by the undertaking of at least two sufficient sureties in an amount sufficient to satisfy such demand besides costs, or in an amount equal to the value of the property, which has been, or is about to be attached, in which case to take such undertaking. Several writs may be issued at the same time to the sheriffs of different counties.9

After appearing in the action, the defendant may, upon reasonable notice to the plaintiff, apply to the court in which the action is pending, or to a judge thereof, for an order discharging the attachment, in whole or in part, upon the giving of an undertaking on behalf of the defendant by at least two sufficient sureties in an amount fixed by the court or judge to the effect that in case the plaintiff recover judgment in the action, the defendant will on demand re-deliver the attached property so released, to the proper officer to be applied to the payment of the judgment, or in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released; and on the jus

7. Code of Civil Procedure, Sec. 539.
8. Code of Civil Procedure, Sec. 1003.
9. Code of Civil Procedure, Sec. 540.

tification by said sureties before the court or judge, if such justification be required, an order will be made, releasing from the attachment any or all the property attached.10

The defendant may also upon reasonable notice to the plaintiff, apply to the court in which the action is brought or to a judge thereof, for an order that the writ of attachment be discharged, on the ground that the same was improperly. or irregularly issued.11

If the application be made.on affidavits, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the writ of attachment was issued; and if upon such application, it satisfactorily appear that the writ of attachment was irregularly or improperly issued, it must be discharged.1

12

The death of a defendant, after judgment, if no execution has been issued and levied on property which had been attached, dissolves an attachment levied on the property of the defendant.13

The sureties on an undertaking given on behalf of a defendant in attachment proceedings to release property from attachment, are discharged from liability, on a tender by the defendant to the plaintiff of the full amount due, and costs, and a refusal of such tender; and the money, so tendered need not be kept good nor paid into the court in order to release the sureties on such undertakings.14

An action, in which a writ of attachment is issued, and under the writ property of a defendant is seized, is, so far as such attached property is affected thereby, in the nature of a proceeding in rem, and the property so attached may be sold under an execution issued to enforce a judgment in the action, and the purchaser at such sale will acquire a valid title thereto in case there was a service of the summons in the action as authorized by the laws of the state in which the action was pending, although there was no personal service on such defendant of the summons issued in the action.15

10. Code of Civil Procedure, Sec. 555.
11. Code of Civil Procedure, Sec. 556.

12. Code of Civil Procedure, Sec. 537 et seq.

13. Ham v. Cunningham, 50 Cal. 366; Myers v. Mott, 29 Cal. 359.

14. Curiac v. Packard, 29 Cal. 194.

15. Pennoyer v. Neff, 95 U. S. 714.

Attachment proceedings are special and statutory, and the provisions of the statute must be strictly followed or no rights. will be acquired thereunder.16

These provisional remedies which I have mentioned are wholly statutory. I have stated only the principal statutory provisions, relating to such remedies, since a fuller statement would be a mere repetition of such provisions.

law.

These provisional remedies are given by statute in actions at

There are also provisional remedies in actions in equity, and the first of these which I will mention is that of

INJUNCTION.

It was always within the power of a court of equity to grant a restraining order or a preliminary injunction against threatened acts of a defendant in an action, in the following cases, namely: When it appears by the complaint in the action 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 in the complaint, either for a limited period or perpetually.

When it appears by such complaint, or by affidavit that the commission or continuance of some act during litigation would produce waste, or great or irreparable injury to the plaintiff.

3. When it appears during litigation that the defendant is doing, threatens, or is about to do, or is procuring to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render a judgment rendered in the action ineffectual.

In most of the states the issuance of a preliminary injunction as a provisional remedy is regulated by the statute law.

In California under the provisions of the statutes of, that state, a preliminary injunction may be granted by the court in which an action is pending or by a judge thereof, at the time of issuing the summons upon a verified complaint, and at any time thereafter, before judgment, upon affidavits, when the complaint in the one case, and the affidavits in the other show satisfactor

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