1st. If the action be against a corporation, by a delivery of a copy to the President or other head of the corporation, or to the Secretary, Cashier or Managing Agent thereof; or, when no such officer resides in the county, to a Director resident therein;

2d. If against a minor under the age of fourteen years, by deliv ery of a copy to such minor, and also to his father, mother, or guardian; or, if there be none within the county, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is;

3d. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, by delivery of a copy to such guardian ;

4th. In all other cases, by delivery of a copy to the defendant personally.

See § 604.

1. A summons issued from a Justice of the Peace at the suit of plaintiff against Adams & Co., which was returned served by "leaving a copy thereof with Captain Charles D. Macy:" Held, that a judgment by default would not bind Adams & Co., and there is nothing in the record to connect Macy with them. Adams V. Town, 3 Cal. 248.

2. Constables may appoint deputies. Taylor v. Brown, 4 Cal. 188.

§ 543. Service by publication.

[1854.] When the person upon whom the service is to be made resides out of the State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself to avoid the service of summons, and the fact shall appear, by affidavit, to the satisfaction of the Justice, and it shall, in like manner, appear that a cause of action exists against the defendant in respect to whom the service is to be made, the Justice shall grant an order that service be made by the publication of the summons. The order shall direct the publication to be made in a newspaper, to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least one week: provided, that publication against a defendant residing out of the State, or absent therefrom, shall not be less than three months. The service of summons shall be deemed complete at the expiration of the time prescribed by the order of publication; the Justice shall also direct a copy of the summons to be forthwith deposited in the post-office, directed to the person to be served, at his place of residence.

See ante, §§ 30, 31.

§ 544. Order of arrest, and arrest of defendant.

An order to arrest the defendant may be endorsed on a summons issued by the Justice, and the defendant may be arrested thereon by the Sheriff or Constable, at the time of serving the summons, and brought before the Justice, and there detained until duly discharged, in the following cases, arising after the passage of this Act:

1st. In an action for the recovery of money or damages, on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors; or where the action is for a willful injury to the person, or for taking, detaining or injuring personal property;

*

2d. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use by an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity;

3d. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought;

4th. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditBut no female shall be arrested in any action.

ors.

§ 545. Affidavit and undertaking for order of arrest.

Before an order for an arrest shall be made, the party applying shall prove to the satisfaction of the Justice, by the affidavit of himself or some other person, the facts on which the application is founded. The plaintiff shall also execute and deliver to the Justice a written undertaking, with two or more sureties, to the effect that if the defendant recover judgment, the plaintiff will pay to him all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least two hundred dollars. § 546. A defendant arrested shall be taken before the Justice immediately.

The defendant, immediately upon being arrested, shall be taken to the office of the Justice who made the order, and if he be absent

*See ante, p. 130, No. 3.

or unable to try the action, or if it be made to appear to him by the affidavit of the defendant, that he is a material witness in the action, the officer shall immediately take the defendant before the 'next Justice of the city or township, who shall take cognizance of the action, and proceed thereon, as if the summons had been issued and the order of arrest made by him.

See § 582.

547. The officer shall give notice to the plaintiff of the arrest. The officer making an arrest shall immediately give notice thereof to the plaintiff, or his attorney or agent, and endorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff.

§ 548. The officer shall detain the defendant until duly discharged.

The officer making the arrest shall keep the defendant in custody until duly discharged by order of the Justice.

§ 549. Defendant may demand trial immediately.

The defendant under arrest, on his appearance with the officer, may demand a trial immediately; and upon such demand being made, the trial shall not be delayed beyond three hours, except by the trial of another action pending at the time; or he may have an adjournment, and be discharged on giving bail, as provided in the next section. An adjournment at the request of the plaintiff, beyond three hours, shall discharge the defendant from arrest; but the action may proceed, notwithstanding, and the defendant shall be subject to arrest on the execution, in the same manner as if he had not been so discharged.

See § 582,

§ 550. Adjournment on motion of defendant shall be granted on filing undertaking.

If the defendant on his appearance demand an adjournment, the same shall be granted, on condition that he execute and file with the Justice an undertaking, with two or more sufficient sureties, to be approved by the Justice, to the effect that he will render himself amenable to the process of the Court during the pendency of the

action, and such as may be issued to enforce the judgment therein; or that the sureties will pay to the plaintiff the amount of any judg ment which he may recover in the action. On filing the undertaking specified in this section, the Justice shall order the defendant to be discharged from custody.

§ 551. Attachment against property of defendant may be made in certain cases.

[1858, 1860.] In an action upon a contract, express or implied, made after the passage of this Act, for the direct payment of money, which contract is made or is payable in this State, and is not secured by mortgage, lien or pledge upon real or personal property, the plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided.

§ 552. Writ of attachment shall issue upon affidavit.

[1858.] A writ to attach the property of the defendant shall be issued by the Justice, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts as are required to be shown by the affidavit specified in section one hundred and twenty-one of this Act.

1. This section was not amended so as to authorize an attachment upon a contract made prior to the passage of this Act, or against nonresidents, as in section one hundred and twenty.

§ 553. Undertaking on attachment shall be required.

[1858, 1860.] Before issuing the writ, the Justice shall require a written undertaking on the part of the plaintiff, with two or more sufficient sureties, to the effect that if the defendant recover judg ment, 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.

1. If a Justice issue an attachment, and take bond in a suit for a sum exceeding his jurisdiction, the proceedings are void, and no action lies on the bond. Benedict v. Brag, 2 Cal. 251.

§ 554. Writ of attachment, substance of. Officer may take an undertaking instead of levying.

The writ may be directed to the Sheriff or any Constable of the county, and shall require him 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 shall be stated in conformity with the complaint, unless the defendant give him security by the undertaking of two sufficient sureties, in an amount sufficient to satisfy such demand besides costs; in which case, to take such undertaking.

$555. Certain preceding provisions shall apply to attachments in Justices' Courts.

The sections of this act, from section one hundred and twentyfour to section one hundred and forty-one, both inclusive, shall be applicable to attachments issued in Justices' Courts; the word "Constable" being substituted for the word "Sheriff," whenever the writ is directed to a Constable, and the word "Justice" being substituted for the word "Judge."

§ 556. Plaintiff may replevy personal property.

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.

See ante, § 200.

§ 557. Affidavit in replevin.

When a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing:

1st. That the plaintiff is the owner of the property claimed, (particularly describing it) or is lawfully entitled to the possession thereof;

2d. That the property is wrongfully detained by the defendant; 3d. The alleged cause of the detention thereof, according to his best knowledge, information and belief;

4th. That the same has not been taken for a tax, assessment or fine, pursuant to statute, or seized under an execution, or an attach