sureties, upon notice to the plaintiff of not less than two, nor more than five days, must justify before the judge, or the clerk, in the same manner as upon bail on arrest; and upon such justification, the sheriff must deliver the property to the defendant. The sheriff is responsible for defendant's sureties until they justify, or until the justification is completed or waived, and may retain the property until that time. If they, or others in their place, fail to justify at the time and place appointed, he must deliver the property to the plaintiff. [C. L. § 3293. Cal. C. Civ. P. 2 515.

3052. Qualifications of sureties and manner of justification. The qualifications of sureties and their justification must be such as are prescribed by this code in respect to bail upon an order of arrest. [C. L. § 3294. Qualifications of bail on arrest, ? 3025.

Cal. C. Civ. P. ? 516*.

3053. Concealed property may be taken by force after demand. If the property, or any part thereof, be concealed in a building or inclosure, the sheriff must publicly demand its delivery. If it be not delivered, he must cause the building or inclosure to be broken open, and take the property into his possession, and if necessary, he may call to his aid the power of the county. [C. L. § 3295.

Cal. C. Civ. P. 2 517.

3054. Delivery of property on payment of fees, etc. When the sheriff has taken the property as in this chapter provided, he shall keep it in a secure place and deliver it to the party entitled thereto, upon receiving his fees for taking, and necessary expenses for keeping the same. [C. L. § 3296.

Cal. C. Civ. P. 2 518.

3055. Claim by third person. Plaintiff to indemnify officer. If the property taken be claimed by another 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, such officer is not bound to keep the property, or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the officer against such claim by an undertaking, by two sufficient sureties. [C. L. § 3297. Cal. C. Civ. P. ? 519*.

3056. Return to be made within twenty days. The sheriff must 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. [C. L. § 3298.

Cal. C. Civ. P. 2 520.

CHAPTER 21.

INJUNCTION.

3057. Injunction defined. Granted by court or judge. An injunction is a writ or order requiring a person to refrain from a particular act. The writ or order may be granted by the court in which the action is brought, or by a judge thereof, and when made by a judge may be enforced as the order of the [C. L. § 3299.

court.

Cal. C. Civ. P. 525.

When judge may hear ex parte applications from another district, 680. Power of judge at chambers, ?? 682, 712. Original jurisdiction in district court, Con. art. 8, sec. 7; 670. May be issued and served on legal holiday, 701.

The supreme court of Utah territory possessed the power to make an order of injunction preserving

the status quo until decision made in the supreme court of the United States. Bullion-B. & Champion Mining Co. v. Eureka Hill Mining Co., 5 U. 182; 12 P. 660.

Injunction may be mandatory. Henderson v. Ogden City Ry. Co., 7 U. 199; 26 P. 286. Paragoonah F. & C. Co. v. Edwards, 9 U. 477; 35 P. 487.

When the court, in allowing an appeal and super

INJUNCTION.

sedeas, has expressly refused to suspend the injunction appealed from, it may punish a breach of said injunction pending appeal. In re Whitmore, 9 U. 441; 35 P. 524.

An order restraining certain officers of a corporation from selling treasury stock was in force when the stock was sold on a judgment obtained by a third person. The defendants were elected

3058. In what cases granted. following cases:

675

1. When it appears 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 appears 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 appears 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 ineffectual.

4. An injunction may also be granted on the motion of the defendant, upon filing an answer praying for affirmative relief upon any of the grounds mentioned in this section, subject to the rules and provisions provided for the issuance of injunctions on behalf of the plaintiff. [C. L. § 3300.

Cal. C. Civ. P. § 526*.

Injunction to restrain waste during period of redemption, ? 3266. Restraining order when trial postponed to permit further development of mining claim, 3134. Injunction to restrain waste during foreclosure, 3518. Injunction to restrain foreclosure of chattel mortgage by advertisement and sale, 153. Injunction not to be granted to restrain collection of taxes, etc., exception, 26842686.

Mere statement hereunder is insufficient. Facts must be shown. Leitham v. Cusick, 1 U. 242. Restraining order that goes beyond the prayer of the complaint is improper. Id.

Under facts, defendant was held to be entitled to affirmative relief by way of injunction. Smith v. Richardson, 1 U. 245.

One tenant in common of a mine will not be enjoined from working the same at suit of his co-tenant, he being pecuniarily able to respond in damages. Kahn v. Old Tel. Mining Co., 2 Ú. 13.

An injunction is a preventive remedy only and cannot be invoked to restrain a party from doing an act which he has already done. Id.

Under section 113 C. L. 1876, the allegations of a complaint praying for an injunction may be made on information and belief. Flagstaff S. M. Co. v. Patrick, 2 U. 304.

Where there is a well grounded fear that a discharged agent of a corporation will use force to repossess the property in charge of its duly appointed agent, a court of equity will protect such possession by injunction. Id.

It is waste in a tenant for life of real property to tear down a building thereon, although it is done with the intention of erecting a better one; and such an action may be prevented by injunction. Dooly v. Stringham, 4 U. 107; 7 P. 405.

Injunction will be granted to restrain collection of a void tax. Kerr v. Woolley, 3 U. 456; 24 P. Arm831. Pettit v. Duke, 10 U. 311; 37 P. 568. strong v. Ogden City, 9 U. 255; 34 P. 53. Armstrong v. Ogden City, 12 U. 476; 43 P. 119.

But not to restrain an alleged trespass where plaintiff's title is disputed and no action has been brought to establish it at law. Old Tel. Mining Co., v. Central S. Co., 1 U. 331.

In

Appellants owned the alternate sections of land through a district forty miles long and thirty-six miles wide, which were unfenced, and remaining sections of which belonged to the government. an action brought for an injunction to restrain defendants from crossing over said alternate sections and from pasturing their sheep thereon; held, that the facts stated in the complaint were not sufficient to warrant the granting of the injunction. Buford v. Houtz, 5 U. 591; 18 P. 633.

An injunction at the suit of abutting owners will be issued against a street railway which, pursuant to a franchise, is proceeding to construct a railway upon a street already incumbered by two tracks and numerous poles, where the tracks already on the street are sufficient for the public uses and the new track will seriously injure the use of the street for ordinary purposes. Dooly Block v. S. L. Rapid Transit Co., 9 U. 31; 33 P. 229.

The owner of land who makes no objection to the construction of a railway track thereon does not by his mere silence and inaction lose the right to obtain an injunction restraining the operation of such railway, unless damages are paid for the land. Coombs v. Salt Lake and Ft. Douglas Co., 9 U. 322; 34 P. 248.

The court will not ordinarily exercise the summary and extraordinary remedy of injunction, except where there is probability of irreparable injury, inadequacy of pecuniary compensation, or to prevent a multiplicity of suits, where there is reason to fear substantial, serious, and irreparable damage, for which a court of law would furnish no adequate relief. McGregor v. Silver King Mining Co., 14 U. 47; 45 P. 1091.

An injunction to restrain a trespass will not issue unless the property trespassed upon has some peculiar value that could not admit of due recompense, or unless the property would be destroyed by repeated acts of trespass. Id.

Where acts of trespass are repeated, continuing, and ruinous, or the damage irreparable, and the remedy at law is inadequate, injunction will lie. Strawberry Valley C. Co. v. Chipman, 13 U. 454; 45 P. 348.

3059. Notice. Restraining order. Application, how made. Evidence on hearing. An injunction shall not be granted, except upon notice, or upon an order to show cause; but, in the meantime, the defendant may be restrained until the decision of the court or judge, granting or refusing the injunction is rendered. When an order to show cause is granted without notice, a copy of the pleadings and affidavits upon which it was allowed must be served with the order. An application for an injunction or order to show cause, may be made on verified pleadings, or on verified pleadings and affidavits, and the application for the injunction may be heard upon the pleadings, affidavits, and other evidence. Satisfactory cause must be shown for the issuance of the injunction or restraining order. [C. L. § 3302*; '90, pp. 16–17.

Cal. C. Civ. P. 2 528*.

3060. Undertaking, when required. Justification of sureties. Failure. On granting a restraining order or an injunction, the court or judge must require, except when the state, a county, or a municipal or other public corporation, or a married woman in a suit against her husband, is 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. Within five days after the service of the restraining order or injunction, the defendant may except to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When excepted to, the plaintiff's sureties, upon notice to the defendant of not less than two nor more than five days, must justify before a judge or clerk of the court in the same manner as upon bail on arrest, and upon failure to justify, or if others in their place fail to justify at the time and place appointed, the order granting a restraining order or an injunction shall be dissolved. [C. L. § 3303*; '90, p. 17.

Cal. C. Civ. P. ? 529*.

If action dismissed undertaking delivered to defendant, 3181. Justification of bail on arrest,

?? 3025, 3026. Qualifications of sureties generally, 23493.

3061. Business of corporation suspended only upon notice. Exception. An injunction to suspend the general and ordinary business of a corporation cannot be granted without due notice of the application therefor to the proper officer or agent of the corporation, except when the state is a party to the proceeding. [C. L. § 3305.

Cal. C. Civ. P. 2 531*.

affi

3062. Motion to dissolve or modify. Notice. Hearing. 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 pending, or a judge thereof, to dissolve or modify the same. The application may be made upon the complaint and the affidavit or affidavits on which the injunction was granted, if any were used, or upon davits or other testimony on the part of the defendant, with or without the answer. If the application be made upon affidavits, or other evidence 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, and the defendant may then, in proper cases, introduce rebutting affidavits or other evidence; provided, that for the purpose of allowing the plaintiff to introduce further evidence, the answer or verification thereto attached shall be deemed an affidavit. [C. L. § 3306.

Cal. C. Civ. P. 532. See Sup. 1889, p. 369.

3063. Id. Order dissolving or modifying. If upon such application it satisfactorily appear that there is not sufficient ground for the injunction, it

must be dissolved; or if it satisfactorily appear that the extent of the injunction is too great, it must be modified. [C. L. § 3307.

Cal. C. Civ. P. 2 533.

Where defendants were deprived of possession of mining ground under a restraining order improperly issued, the judge who granted the same cannot, without notice, restore defendants to possession. Leitham v. Cusick, 1 U. 242.

A restraining order made without jurisdiction is void, and may be set aside though made at the term preceding the making of the motion to set aside. Bullion-B. & Champion Mining Co. v. Eureka Hill Mining Co., 5 U. 182; 12 P. 660.

Where the allegations of the complaint and affidavits supporting it are substantially denied and the respective rights of the parties are uncertain and indefinite, and it appears that the continuance of a restraining order until the hearing will work great injury to one of the parties without corresponding benefit to the other; held, that the restraining order should not continue, if the parties in the

meantime can be protected by means of an indemnity bond. Crescent Mining Co. v. Silver King Mining Co., 14 U. 47; 45 P. 1093.

The digging of a trench across plaintiff's lots, alleged to be barren and comparatively valueless, when it appears that defendant is solvent, that plaintiff's title is in dispute, and that no appreciable damage will be done, is not such an irreparable injury as to justify injunction. Where a continuance in such case of a restraining order to the date of hearing may work great injury to one party without corresponding benefit to the other, it should be set aside. McGregor v. Silver King Mining Co., 14 U. 47; 45 P. 1091.

For effect of appeal on injunctiou, see Ex parte Whitmore, 9 U. 441; 35 P. 524. Bullion-Beck & Champion M. Co. v. Eureka Hill M. Co., 5 U. 151; 13 P. 174.

CHAPTER 22.

ATTACHMENT.

3064. When and in what cases issued. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant, not exempt from execution, attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as in this chapter provided, in the following cases: in an action upon a judgment or upon a contract express or implied, which is not secured by any mortgage or lien upon real or personal property situate or being in this state, or, if originally so secured, when such security has, without any act of the plaintiff, or of the person to whom the security was given, become valueless; against a defendant who

1. Is not residing in this state; or,

2. Stands in defiance of an officer, or conceals himself so that process cannot be served upon him; or,

3.

Has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, any of his property with intent to defraud his creditors; or,

4. Has departed or is about to depart from the state to the injury of his creditors; or,

5. Fraudulently contracted the debt, or incurred the obligation respecting which the action is brought. [C. L. § 3308.

Cal. C. Civ. P. 2 537*.

Writ of garnishment may be issued when attachment issued or thereafter, 23090. Attachment of property of lessee by landlord, 22 1409-1413. Fraudulent concealment or disposal of property a misdemeanor, 22 4146, 4147.

Under the facts stated; held, that the right of stoppage in transitu prevailed over the attempted levy by an attachment. Kiesel v. U. P. Ry. Co., 6 U. 128: 21 P. 499.

Where cause of action alleged to have accrued under sub. 5, the complaint must allege the fraud

ulent acts. Selz, Schwab & Co. v. Tucker, 10 U. 132; 37 P. 249.

It is harmless error to charge that if plaintiff departed from the territory and left no suitable person of at least fourteen years of age at his usual place of abode therein, so that service of summons could not be made on hima, defendant could have a writ of attachment issued against him, where the court qualified the charge by adding “provided he departed from the territory to the injury of his creditors, or defendant had probable cause to believe he so left." Hamer v. First Nat. Bank of Ogden, 9 U. 215; 33 P. 941.

A

3065. Attachment before maturity of claim. Judgment. creditor may bring an action on his claim before it is due and have an attachment against the property of the debtor in the cases mentioned in subdivisions three, four, and five of the next preceding section, and the property attached, or its proceeds, after its disposition as provided in sections three thousand and seventy-eight and three thousand and seventy-nine, may be held subject to the

judgment thereafter to be rendered; but no judgment shall be rendered thereon until such obligation shall, by its terms, become due. [C. L. § 3308*.

3066. Affidavit required. Contents. 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, setting forth:

1. That the defendant is indebted to the plaintiff, specifying the amount of such indebtedness as near as may be over and above all legal counterclaims, and whether upon a judgment or an express or implied contract, 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, situate or being in this state; 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; and that the same is an actual bona fide existing demand due and owing from the defendant to the plaintiff.

2. And in all cases that the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant, and also specifying one or more of the causes set forth in section three thousand and sixty-four as the ground of the attachment.

Cal. C. Civ. P. 2 538*.

Causes for attachment not to be stated in alternative, 3088.

Affidavit showing an express contract for direct payment of money in the general statement of how the debt accrued, and that it is the same demand sued for, is sufficient. Bowers v. London Bank of Utah, 3 U. 417; 4 P. 225.

Plaintiff brought suit on a note not asking for a foreclosure of the mortgage, and obtained a writ of attachment on defendant's property on an affidavit that the mortgage had become nugatory by the act of the defendant; an attachment when the debt

[C. L. § 3309.

claimed is secured by a mortgage, being only obtainable on the filing of such an affidavit under section 1348, C. L. 1876 (section 3309, C. L. 1888); held, that such action was a waiver of the mortgage lien. Bacon v. Raybould, 4 U. 357; 10 P. 481, 11 P. 510.

When letters "ss" are omitted, county being stated, affidavit is not defective. McCord & Nave Mer. Co. v. Glenn, 6 U. 139; 21 P. 500.

Affidavit that "defendant has disposed of and concealed, and is about to assign, dispose of, and conceal" his property, etc., is good. McCord & Nave Mer. Co. v. Glenn, 6 U. 139; 21 P. 500. Deseret Bank v. Little, Roundy & Co., 13 U. 265; 44 P. 930.

3067. Id. Undertaking required. Before issuing the writ, the clerk must require a written undertaking on the part of the plaintiff, with sufficient sureties, in a sum not less than the amount claimed by the plaintiff, but in no case shall an undertaking be required exceeding ten thousand dollars nor less than two hundred dollars in amount. The condition of such undertaking shall be to the effect that if the defendant recover judgment, or if the attachment be wrongfully issued, 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.

Cal. C. Civ. P. 7 539*.

If action dismissed undertaking delivered to defendant, ? 3181. Qualifications of sureties generally, 3493.

[C. L. § 3310*.

Undertaking may be amended. McCord & Nave Mer. Co. v. Glenn, 6 U. 139; 21 P. 500.

Amount of undertaking within limits prescribed is in discretion of the clerk. Bowers v. London Bank of Utah, 3 U. 417; 4 P. 225.

3068. Exception to sureties. Justification. Within five days after the levy of the attachment, the defendant may except to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When excepted to, the plaintiff's sureties, upon notice of the defendant of not less than two nor more than five days, must justify before a judge of the district court or before the clerk thereof, and upon failure to justify, or if others in their places fail to justify, at the time and place appointed, the clerk or judge shall issue an order vacating the writ of attachment. Cal. C. Civ. P. 2 539.

Justification of sureties on civil arrest, ¿3026. 3069. Writ directed to sheriff. Contents. To different counties. The writ must be directed to the sheriff of any county in which property of such defendant may be, and must require him to attach and safely keep all the property of such defendant within his jurisdiction 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 conformity with the complaint, unless the defendant give him security by the undertaking, of at least two sufficient sureties, in an