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. [C. L. § 3269.

Cal. C. Civ. P. 2487.

Qualifications of bail, 3025.

3019. Bail may surrender defendant. Voluntary surrender. 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. [C. L. § 3270*.

Cal. C. Civ. P. 2 488.

Execution against the person, ?? 3233, 3236.

3020. Id. Bail may arrest defendant. When exonerated. 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 written authority indorsed on a certified copy of the undertaking, may empower an officer to do so. Upon the arrest of the defendant by said officer or upon his delivery to him by the bail, or upon his own surrender, the bail are exonerated, if 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 are finally charged on their undertaking, and bound to pay the amount of the judgment within ten days thereafter. [C. L. § 3271.

Cal. C. Civ. P. 489.

3021. Action against bail. 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 the original judgment. [C. L. § 3272.

Cal. C. Civ. P. 2 490.

3022. Bail exonerated by death, etc., of defendant. The bail are exonerated by the death of the defendant, by his imprisonment in the state prison, or by his legal discharge from the obligation to render himself amenable to the process. [C. L. § 3273.

Cal. C. Civ. P. ? 491.

3023. Return of officer. Plaintiff may except to bail. Within the time limited for that purpose, the sheriff must 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. The original undertaking, he must retain in his possession until filed, as herein provided. The plaintiff, within ten days thereafter, may serve upon the sheriff notice that he does not accept the bail, or he is deemed to have accepted them, and the officer is exonerated from liability. If no notice be served within ten days, the original undertaking must be filed with the clerk of the court. [C. L. § 3274.

Cal. C. Civ. P. 492.

3024. Notice of qualification of bail. 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 places of residence and occupations of the latter), before the judge of the court, or 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 must be a new undertaking. [C. L. § 3275.

Cal. C. Civ. P. 2 493.

3025. Qualifications of bail. The qualifications of bail are as follows: 1. Each of them shall be a resident and householder or freeholder within the state.

2. Each must 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 clerk, on justification, may allow more than two sureties to justify sev

erally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail. [C. L. § 3276.

Cal. C. Civ. P. 2 494.

Qualifications of sureties generally, ? 3493.

3026. Justification of bail, how conducted. For the purpose of justification, each of the bail must attend before the judge or 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 clerk in his discretion may think proper. The examination must be reduced to writing, and subscribed by the bail, if required by the plaintiff. [C. L. § 3277.

Cal. C. Civ. P. 2 495.

3027. Allowance of bail exonerates officer. If the judge or clerk find the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the officer is thereupon exonerated from liability. [C. L. § 3278.

Cal. C. Civ. P. 496.

3028. Deposit in lieu of bail. Certificate. Discharge. 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 must give the defendant a certificate of the deposit made, and the defendant must be discharged from custody. [C. L. $ 3279.

Cal. C. Civ. P. 2 497.

3029. Sheriff must pay deposit into court. The sheriff must, immediately after the deposit, pay the same into court, and take from the clerk receiving the same, two certificates of such payment, one of which he must 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. [C. L. § 3280.

Cal. C. Civ. P. 2 498.

3030. Undertaking may be substituted for deposit. 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 must be refunded to the defendant. [C. L. § 3281.

Cal. C. Civ. P. 2499.

3031. How deposit disposed of. Where money has been deposited, if it remain on deposit at the time of the recovery of a judgment in favor of the plaintiff, the clerk must, under the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment must refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk must, under the direction of the court, refund to him the whole sum deposited and remaining unapplied. [C. L. § 3282.

Cal. C. Civ. P. 500.

3032. When sheriff liable as bail. Discharge. If after being arrested, the defendant escape, or be rescued, or bail be not taken, or be adjudged insufficient, the sheriff is liable as bail; but he may discharge himself from such liability by giving bail at any time before judgment. [C. L. § 3283*.

Cal. C. Civ. P. ? 501*.

Escape, liability of sheriff, 2588. Limitation of action against sheriff, one year, ? 2879.

3033. Id. Recovery on sheriff's official bond. If a judgment be recovered against the sheriff upon his liability as bail, and an execution thereon is 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. [C. L. § 3284.

Cal. C. Civ. P. 502.

3034. Defendant may move to vacate arrest or reduce bail. Hearing. A defendant arrested, may, at any time before the trial of the action, or, if there be no trial, before the entry of judgment, apply to the judge who made the order, or the court in which the action is pending, upon reasonable notice, 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 of arrest was made. [C. L. § 3285.

Cal. C. Civ. P. 503.

Motion to obtain discharge from arrest, ?? 3037-3041. Effect of discharge from arrest, 2 3041.

3035. Id. Order. If upon application it appears that there was not sufficient cause for the arrest, the order must be vacated; or if it appears that the bail was fixed too high, the amount must be reduced. [C. L. § 3286. Cal. C. Civ. P. 2 504.

CHAPTER 19.

DISCHARGE FROM ARREST.

3036. Discharge from arrest as provided in this chapter. Any person confined in jail on an execution issued on a judgment recovered in a civil action, must be discharged therefrom upon the conditions in this chapter specified. [C. L. § 3774.

Cal. C. Civ. P. 1143.

Execution against the person, ?? 3233, 3236.

3037. Notice of application to court. Such person must cause a notice in writing to be given to the plaintiff, his agent, or attorney when and where he will apply to the district judge of the county in which he may be confined for the purpose of obtaining a discharge from his imprisonment. § 3775.

Cal. C. Civ. P. 2 1144.

[C. L.

Application to vacate order of arrest, ? 3034.

3038. Id. Service, upon whom and when made. Such notice must be served upon the plaintiff, his agent or attorney, one day at least before the hearing of the application. But if the plaintiff be not a resident of the county, and have no agent or attorney in the county, no such notice will be served. [C. L. § 3776*.

Mont. Civ. P. 2062. Cal. C. Civ. P. ? 1145*.

3039. Hearing. Creditor may have evidence written. At the time and place specified in the notice, such person must be taken under the custody of the sheriff before the district judge and examined on oath concerning his property and effects and the disposal thereof and his ability to pay the judgment for which he is committed. The district judge shall also hear any other legal and pertinent evidence that may be produced by the debtor or creditor. Such examination must at the election of the creditor be reduced to writing and subscribed and sworn to by the debtor and other witnesses. [C. L. § 3777*. N. Dak. (1895) 6139. Cal. C. Civ. P. 1146*.

3040. If not discharged, may apply again at end of every ten days. If, upon the examination, the judge is satisfied that the prisoner is entitled to his discharge, he must so order. If such judge does not discharge the prisoner, he may apply for his discharge at the end of every succeeding ten days

in the same manner as above provided, and the same proceedings must thereupon [C. L. §§ 3779*, 3781.

be had.

Cal. C. Civ. P. ?? 1148-1150*.

3041. Discharge final for same debt. Exception. The prisoner, after being so discharged, shall be forever exempt from arrest or imprisonment for the same debt, unless he shall be convicted of having wilfully sworn falsely upon his examination or in taking the oath before prescribed. [C. L. § 3782.

Cal. C. Civ. P. ? 1151.

3042. Judgment remains in force though defendant discharged. The judgment against any prisoner who is discharged remains in full force against any estate which may then or at any time afterward belong to him, and the plaintiff may take out a new execution against the goods and the estate of the debtor, in like manner and with like effect as if he had never been committed. [C. L. § 3783.

Cal. C. Civ. P. 2 1152.

3043. Plaintiff may order discharge. Effect. The plaintiff in the action may at any time order the prisoner to be discharged, and he is not thereafter liable to imprisonment for the same cause of action. [C. L. § 3784. Cal. C. Civ. P. ? 1153.

3044. Plaintiff must advance jailer's costs. Whenever a debtor is committed to jail on execution in a civil action, the creditor, his agent, or attorney, must advance to the jailer, on such commitment, sufficient money for the support of the prisoner for one week, and must make the like advance for every successive week of his imprisonment, and in case of a failure to do so, the jailer must forthwith discharge such prisoner from custody; and such discharge shall have the same effect as if made by order of the creditor. [C. L. § 3785.

Cal. C. Civ. P. 1154.

Payment of cost of keeping person committed on civil process, ? 582.

CHAPTER 20.

CLAIM AND DELIVERY.

3045. Delivery may be claimed before answer. 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. [C. L. § 3287.

Cal. C. Civ. P. 509.

Limitation on action for personal property, three years, 2877.

In replevin, the rule that a party to an action

who relies upon fraud, must allege and prove it, does not always apply. Munns v. Loveland, — U. -; 49 P. 743.

3046. Requirements of affidavit. By whom made. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by someone on his behalf, showing:

1. A description of the property claimed.

2. That the plaintiff is the owner of the property claimed or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the possession thereof.

3.

That the property is wrongfully detained by the defendant.

4. The alleged cause of the detention thereof, according to his best knowledge, information, and belief.

5. That it has not been taken for a tax, assessment, or fine, pursuant to a

statute, or seized under an execution or an attachment against the property of the plaintiff; or if so seized, that it is by statute exempt from such seizure; and,

6. The actual value of the property.

Kansas (1889) 4260*. Cal. C. Civ. P. 2 510*.
In action to recover personal property taken by

[C. L. § 3288*.

an officer under protest, the officer is not bound by the value stated in the affidavit, 3006.

3047. Order to sheriff indorsed on affidavit. The plaintiff or his attorney may, thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant. [C. L. § 3289.

Cal. C. Civ. P. ? 511.

To excuse omission of sheriff, directions by party or attorney must be in writing,

591.

In an action of replevin where after judgment against plaintiffs, they denied that the attorney who brought the suit was authorized to bring such

action, but the evidence showed that they had taken possession of the goods through their agent; held, that by accepting the goods they ratified the attorney's acts in bringing the suit. Brown v. Parsons, 10 U. 322; 37 P. 346.

3048. Undertaking. Sheriff to take property and serve papers. Upon receipt of the affidavit and notice with a written undertaking, executed by two or more sufficient sureties, approved by the sheriff, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit, for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, the officer must forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He must without delay, serve on the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose possession the property is taken; or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion, or if neither have any known place of abode, by putting them in the nearest postoffice postpaid directed to the defendant. [C. L. § 3290.

Cal. C. Civ. P. 512.

affidavit, ? 3056. Qualifications of sureties hereIf action dismissed, undertaking delivered to under, 3052. Verdict in action to recover perdefendant, ? 3181. Qualifications of sureties gen- sonal property, 3165; judgment, 3194; execuerally, 23493. Return of notice, undertaking, and tion, 3233, 3236.

Notice. Justifica

3049. Defendant may except to sureties. tion. Waiver. The defendant may, within two days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When the defendant excepts, the sureties must justify on notice in like manner as upon bail on arrest; and the sheriff is responsible for the sufficiency of the sureties until the objection to them is either waived, as above provided, or until they justify. If the defendant except to the sureties, he cannot reclaim the property, as provided in the next section. [C. L. $3291.

Cal. C. Civ. P. 513.

3050. Redelivery to defendant on giving bond. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within two days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, except as provided in section three thousand and fifty-five. [C. L. § 3292*.

Cal. C. Civ. P. 2 514*.

3051. Plaintiff may except to sureties. Notice. The defendant's