charged from the arrest, upon executing and delivering to the officer, at any time before the return day of the warrant, a written undertaking, with two sufficient sureties, to the effect that the person arrested will appear on the return of the warrant and abide the order of the Court or Judge thereupon; or they will pay as may be directed, the sum specified in the warrant.

§ 486. Officer shall return warrant and bail bond, if any.

The officer shall return the warrant of arrest and undertaking, if any, received by him from the person arrested, by the return day specified therein.

§ 487. Hearing.

When the person arrested has been brought up or appeared, the Court or Judge shall proceed to investigate the charge, and shall hear any answer which the make to the same, arrested person and may examine witnesses for or against him, for which an adjournment may be had from time to time, if necessary.

§ 488. Judgment and penalty if guilty.

may

Upon the answer and evidence taken, the Court or Judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding five hundred dollars; or he may be imprisoned not exceeding five days, or both.

§ 489. If the contempt is the omission to perform any act, the person may be imprisoned until performance.

When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he have performed it, and in that case the act shall be specified in the warrant of commitment.

§ 490: Persons in contempt may also be indicted, if an indictable offense.

Persons proceeded against according to the provisions of this chapter shall also be liable to indictment for the same misconduct, if it be an indictable offense; but the Court before which a con

viction is had on the indictment, in passing sentence, shall take into consideration the punishment before inflicted.

§ 491. If a party fail to appear, proceedings.

When the warrant of arrest has been returned served, if the person arrested do not appear on the return day, the Court or Judge may issue another warrant of arrest, or may order the undertaking to be prosecuted, or both. If the undertaking be prosecuted, the measure of damages in the action shall be the extent of the loss or injury sustained by the aggrieved party, by reason of the miscon duct for which the warrant was issued, and the costs of the proceeding.

§ 492. Illness sufficient excuse for nonappearance of party arrested. Confinement under arrests for contempt.

Whenever, by the provisions of this chapter, an officer is required to keep a person, arrested on a warrant of attachment, in custody, and to bring him before a Court or Judge, the inability, from illness or otherwise, of the person to attend shall be a sufficient excuse for not bringing him up; and the officer shall not confine a person arrested upon the warrant in a prison, or otherwise restrain him of personal liberty, except so far as may be necessary to secure his personal attendance.

§ 493. Judgments and orders in such cases final. Extent of punishment.

The judgment and orders of the Court or Judge, made in cases of contempt, shall be final and conclusive. The punishment shall be by fine or imprisonment; but no fine shall exceed the sum of five hundred dollars, and no imprisonment shall exceed the period of five days, except as provided in section four hundred and eighty-nine.

1. The judgments and orders of Courts or Judges on the subject of contempts, are by our statutes declared to be final and conclusive. Under the writ of habeas corpus, this Court cannot review the orders of another Court in such cases. E1 parte Cohen et al., 5 Cal. 494.

2. The law regards the substance more than the form, and where the proceeding, though in form a case of contempt, is in substance a private right, the Appellate Court will compel the Court below to issue an attachment to punish a contempt. Merced Min. Co. v. Fremont, 7 Cal. 130.

3. Per BURNETT, J. Every Court empowered to punish for contempt, is not the sole and final Judge in all cases of alleged contempt. Ex parte Rowe, 7 Cal

175.

TITLE XIV.

OF COSTS.

SEC. 494. Compensation of attorneys. Prevailing party shall be allowed costs.

495. Plaintiff's costs shall be allowed, of course, upon judgment in his favor, in certain cases.

496. Several actions, brought on a single cause of action, shall carry costs in but one.

497. Defendant's costs shall be allowed, of course, in cer

tain cases.

498. Costs in actions not mentioned in section four hundred and ninety-five. Costs not allowed when

recovery

is less than two hundred dollars. 499. When the several defendants are not united in interest, costs may be reversed.

500. Costs discretionary with the Court in certain cases. 501. Repealed.

502. Repealed.

503. Repealed.

504. Referee's fees.

505. Continuance; costs may be imposed as a condition of.
506. Costs when a tender is made before suit is brought.
507. Costs in actions by, or against an administrator, etc.
508. Costs in a review, other than by appeal.

509. Costs paid on the commencement of an action.
510. Filing of an affidavit to bills of costs.

511. Interest and costs shall be included by the Clerk in
the judgment.

512. Where plaintiff is a nonresident, or foreign corporation, defendant may require security for costs.

513. Justification of sureties on undertaking for costs. 514. If such security be not given, the action may be dis

missed.

§ 494. Compensation of attorneys. Prevailing party shall be allowed costs.

[1853, 1855.] The measure and mode of compensation of

atttorneys and counselors shall be left to the agreement, express or implied, of the parties. But there shall be allowed to the prevailing party in any action in the Supreme Court, District Courts and County Courts, his costs and necessary disbursements in the action, or special proceeding in the nature of an action.

N. Y. Code, § 303.

1. Generally. An attorney has no lien upon a judgment recovered by him in favor of his client for a quantum meruit compensation for his services. Such lien extends only to costs given by statute. Ex parte Kyle, 1 Cal. 331.

2. It being for the interest of all parties concerned, that the Company should be legally dissolved: Held, that the costs and a counsel fee, on each side, should be paid out of the fund. Von Schmidt v. Huntington, 1 Cal. 55.

3. A mortgage contained a stipulation for all the costs of foreclosure, including counsel fees not exceeding five per cent. of the amount due: Held, that the limita tion of five per cent. is intended to apply to counsel fees alone, and that the complainant would be entitled to recover the whole of his costs by operation of the statute, and independent of any stipulation. Grontier v. Minturn et al., 5 Cal. 492. 4. Where costs are imposed as a condition for reopening a case after the adjournment of the term, the acceptance of the costs of the opposite party will not be construed into a consent to have the cause reinstated. Carpenter v. Hurt, 5 Cal. 406. 5. Costs by way of indemnity ought not to be taxed. Rice v. Leonard et al., 5 Cal. 61.

6. Whether a Sheriff, under the Fee Bill of 1855 (Stat. 1855, § 85) providing that "he shall also be allowed such further compensation for his trouble and expense in taking possession of property under attachment or execution, or other process, and of preserving the same, as the Court from which the writ or order may issue shall certify to be just and reasonable," is entitled to the expenses of pasturing, herding and keeping cattle attached, without obtaining a certificate from the Court that such expenses are reasonable, not decided in this case, because it was held that such certificate was virtually given by the Court in allowing the expenses, as taxed in a bill of costs. Smith v. Richmond, 476.

7. A person claiming an interest in mortgaged premises subsequent to the mortgage, is a proper party to the foreclosure suit, but cannot be subjected to the costs of the foreclosure beyond those occasioned by his own separate defense. Luning v. Brady, 10 Cal. 267.

8. A mandamus is not the proper remedy, when an inferior Court refuses to enter a judgment for costs. The party should appeal or sue for his costs. Peruita v. Adams, 2 Cal. 595.

9. A mistake in the computation of interest or taxation of costs cannot be attacked for the first time in an Appellate Court. The party complaining must move in a Court below to correct the computation, or retax the costs, and thus obtain the judgment of the Court of original jurisdiction upon the disputed items, before resort can be had to a higher tribunal. Guy v. Franklin, 5 Cal. 417.

10. The judgment of the Supreme Court on appeal, and costs consequent thereon, is final, and the District Court has no authority to prevent immediate execution of the judgment of this Court so remitted. City of Marysville v. Buchanan, 3 Cal. 23.

11. The Clerk of the Supreme Court, in entering up the judgment, adds the words "with costs," and annexes to the remittitur a copy of the bill of costs filed; these words are a sufficient awarding of costs for the Clerk below to issue an execution. Id.

12. Where a judgment is against two, one only of whom appeals, and the appeal is dismissed with twenty per cent. damages, the damages with the costs do not become part of the original judgment, and the redempuoner is not bound to pay them when he redeems from a sale under the judgment. The Clerk below can issue execution for these damages and costs. McMillan v. Visher, 14 Cal. 241.

13. The notices and affidavits filed on an application to retax costs were not embodied in a bill of exceptions or statement: Held, that the judgment must be affirmed, upon the presumption that the Court below decided properly upon all the evidence before it. Gates v. Buckingham, 4 Cal. 286.

14. Allowance of costs in many cases discretionary. The allowance of costs rests in the discretion of the Court of original jurisdiction. And where on sustaining a demurrer to a complaint, on the ground that the complaint did not state facts sufficient to constitute a cause of action, the Court gave judg ment for the defendant for full costs, including a jury fee: Held, no such abuse of discretion as to warrant interference by the Supreme Court. Harvey v. Chilton, 11 Cal. 120.

15. The Supreme Court will only review the ruling of an matter of costs upon an appeal from the judgment in the case. 20 Cal.; Votan v. Reese et al., Id.

16. Nonsuit.-Plaintiff subject to. See ante, § 148.

inferior Court in the Todd v. Marshall,

§ 495. Plaintiff's costs shall be allowed, of course, upon judg

Sec. 495. Costs shall be allowed of course to the! plaintiff upon a judgment in his favor, in the following!

cases: First-In an action for the recovery of real of course, to the plaintiff upon a

property. Second-In an action to recover the possession of personal property, when the value of the property amounts to three hundred dollars or over; such value be determined by the jury, Court or

referee by whom the action is tried.

ag cases:

Third-In an ac y of real property; tion for the recovery of money or damages wherepossession of personal property, plaintiff recovers three hundred dollars or over. Fourth-In a special proceeding in the nature of an when we value

over.

ounts to two hundred dollars or

Such value shall be determined by the jury, Court or referee, by whom the action is tried;

3d. In an action for the recovery of money or damages, where plaintiff recovers two hundred dollars or over.

4th. In a special proceeding in the nature of an action.*

See 255. N. Y. Code, § 304.

1. First subdivision.-In an action to try the right to the use of water, and for damages for diverting it, where the amount for which judgment is given is less than two hundred dollars, it will carry costs. Marius v. Bicknell, 10 Cal. 217.

2. Second subdivision.-A defendant in replevin who recovers judgment, the jury failing to find the value of the property to exceed two hundred dollars, is nevertheless entitled to his costs, where the plaintiff's complaint states its value at a sum exceeding that amount. Edgar v. Gray, 5 Cal. 267.

3. Third subdivision.-The plaintiff can only be allowed costs when he recovers two hundred dollars in an action for money or damages. Costs are incident to the judgment, and cannot be given by the jury by way of damages. Shay v. Tuol. Water Co., 6 Cal. 286.

4. Costs of a suit form no part of the matter in dispute, and an appeal does not lie to the Supreme Court, where the amount involved is less than two hundred dollars, although the costs added thereto may increase it beyond that sum. Dumphey v. Guindon, 13 Cal. 30, overruling Gordon v. Koss, 2 Cal. 157.

* STATUTES OF 1858, PAGE 232, § 7—Applicable to the City and County of San Francisco only.

SECTION 7.-The prevailing party shall be allowed five per cent, on the amount recovered, together with any sum by him so paid in a cause as costs and disbursements, to be included in the judgment against the adverse party; provided, said five per cent, shall be allowed only in litigated cases; and provided, further, that said per centage shall not be allowed to exceed the sum of one hundred dollars on any one judgment.