his estate and property and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed; and such judge may also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor. En. March 11, 1872.

§ 1147. Interrogatories may be in writing. The plaintiff in the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry, and they must, if required by him, be proposed and answered in writing, and the answer must be signed and sworn to by the prisoner. En. March 11, 1872.

§ 1148. Oath to be administered. If, upon the examination, the judge is satisfied that the prisoner is entitled to his discharge, he must administer to him the following oath, to-wit: "I, —, do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars, except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to hinder, delay, or defraud my creditors, so help me God." En. March 11, 1872. Cal.Rep.Cit. 96, 234.

§ 1149.

Order of discharge. After administering the oath, the judge must issue an order that the prisoner be discharged from custody, and the officer, upon the service of such order, must discharge the prisoner forthwith, if he be imprisoned for no other cause. En. March 11, 1872.

1150. If not discharged, prisoner may again apply, when. 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 be had. En. March 11, 1872.

1151. Discharge final. The prisoner, after being so discharged, is forever exempted from arrest or imprisonment for the same debt, unless he be convicted of having willfully sworn falsely upon his examination before the

judge, or in taking the oath before prescribed. En. March 11, 1872.

Cal.Rep. Cit. 96, 234.

§ 1152. Judgment remains in force. 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 estate of the prisoner, in like manner as if he had never been committed. En. March 11, 1872.

§ 1153. Plaintiff may order discharge of the prisoner, who shall not thereafter be liable to imprisonment for the same cause of action. 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. En. March 11, 1872.

1154. Plaintiff to advance funds for support of prisoner. Whenever a person is committed to jail on an execution issued on a judgment recovered 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 failure to do so, the jailer must forthwith discharge such prisoner from custody, and such discharge has the same effect as if made by order of the creditor. En. March 11, 1872.

Cal.Rep.Cit. 50, 307.

Code Civ. Proc.-37.

CHAPTER IV.

SUMMARY PROCEEDINGS FOR OBTAINING POSSESSION OF REAL PROPERTY IN CERTAIN CASES.

§ 1172.

Judgment by default.

Defendant may appear, etc.

Trial by jury.

Showing required of plaintiff in forcible entry or detainer.

Of defendant.

Complaint must be amended in certain cases.

Verdict and judgment.

Verification of complaint and answer.

Effect of an appeal upon the judgment.
Rules of practice.

Appeals, how taken, etc.

Relief against forfeiture of lease.

§ 1159. Forcible entry defined. Every person is guilty of a forcible entry who either:

1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror, enters upon or into any real property; or,

2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession. En. March 11, 1872.

Cal.Rep.Cit. 49, 273;

71, 133;

53, 674; 60, 574;

62, 68; 69, 563; 76, 133; 83, 100; 107, 301; 135, 661; 138, 420.

Proof required: Post, sec. 1172.

Parties defendant: Post, secs. 1164, 1165.

1160. Forcible detainer defined. Every person is guilty of a forcible detainer who either:

1. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or,

2. Who, in the night time, or during the absence of the

occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days refuses to surrender the same to such former occupant.

The occupant of real property, within the meaning of this subdivision, is one who within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands. En. March 11, 1872. Cal.Rep.Cit. 50, 317; 51, 543; 53, 674; 77, 256; 83, 97; 107, 301; 137, 605; 51, 533; 76, 133; 83, 100; 114, 346;

60, 574; 76, 627; 138, 420. Subd. 2114, 347.

A tenant of real

1161. Unlawful detainer defined. property, for a term less than life, is guilty of unlawful detainer:

1. When he continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him, without the permission of his landlord, or the successor in estate of his landlord, if any there be; but in case of a tenancy at will, it must first be terminated by notice, as prescribed in the Civil Code.

2. Where he continues in possession, in person or by subtenant, without permission of his landlord, or the successor in estate of his landlord, if any there be, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, in writing, requiring its payment, stating the amount which is due, or possession of the property, shall have been served upon him, and if there be a subtenant in actual occupation of the premises, also upon such subtenant. Such notice may be served at any time within one year after the rent becomes due. In all cases of tenancy upon agricultural lands, where the tenant has held over and retained possession for more than sixty days after the expiration of his term without any demand of possession or notice to quit by the landlord, or the successor in estate of his landlord, if any there be, he shall be deemed to be holding by permission of the landlord, or the successor in estate of his landlord, if any there be, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during said year, and such holding over for the period

aforesaid shall be taken and construed as a consent on the part of a tenant to hold for another year.

3. When he continues in possession, in person or by sub. tenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than the one for the payment of rent, and three days' notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him, and if there be a subtenant in actual occupation of the premises, also upon such subtenant. Within three days after the service of the notice, the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture. A tenant may take proceedings, similar to those prescribed in this chapter, to obtain possession of the premises let to an under-tenant, in case of his unlawful detention of the premises underlet to him.

4. Any tenant or subtenant assigning or subletting or committing waste upon the demised premises, contrary to the covenants of his lease, thereby terminates the lease, and the landlord, or his successor in estate, shall, upon service of three days' notice to quit, upon the person or persons in possession, be entitled to restitution of possession of such demised premises under the provisions of this act. En. March 11, 1872. Am'd. 1873-4, 346; 1875-6, 101; 1877-8, 104. On the same day that the foregoing amendment of section 1161 was approved, another amendment of the same section was approved, as follows:

1161. Unlawful detainer defined. A tenant of real property, for a term less than life, is guilty of an unlawful detainer:

1. When he continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him, without permission of his landlord; but in case of tenancy at will, it must first be terminated by notice, as prescribed in the Civil Code.