indorsed on a certified copy of the undertaking, may empower the sheriff to do so. Upon the arrest of the defendant by the sheriff, or upon his delivery to the sheriff 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.165 ... hereby certify I, S. T., sheriff of the county of that C. D., the principal mentioned in the [within] undertaking [or, if not indorsed, refer to the undertaking so as to identify it], was surrendered to me by L. M. and N. O., his sureties, this mained in custody. day of .... 18.., and re 4075. Notice of motion for enlargement of time to surrender. [TITLE.] Form No. 992. [ADDRESS.] Please to take notice that on the affidavit, a copy of which is herewith served, the undersigned will move this honorable court, on the ... o'clock, A. M., at day of next, at ... or as soon thereafter as counsel can be heard, that the undersigned, bail of the defendant C. D. in this action, have days further time to surrender the defendant to the sheriff in exoneration of the bail herein, and for such other or further order as may be just. [SIGNATURE.] [DATE.] § 4076. Affidavit to support motion for enlargement of time for surrender. [TITLE.] Form No. 993. L. M., being duly sworn, deposes and says: I. I am one of the bail of the defendant C. D., in this action; 165 Cal. Code Civ. Pro., § 489; N. Y. Code, § 593. that said C. D. was arrested on the ........ day of ... 18.., by virtue of an order of arrest, on the ground that [state the ground of arrest], and that on the .... day of 18.., the deponent [and N. O.] became bail for said defendant by giving an undertaking, of which a copy is hereto annexed. II. [State excuse for not having surrendered in season, and what means the bail took to ascertain where the principal was, and to effect his surrender.] III. [State facts showing that a surrender is possible.] IV. That no action has been commenced against the bail, as deponent is informed and believes. [JURAT.] [SIGNATURE.] § 4077. Diligence. A general statement that the bail used the utmost exertions to effect the surrender is not enough.166 8 4078. Exonerated by death. The bail are exonerated by the death of the defendant, or his imprisonment in a state prison, or by his legal discharge from the obligation to render himself amenable to the process." 167 166 Baker v. Curtis, 10 Abb. Pr. 279. 167 Cal. Code Civ. Pro., § 491; N. Y. Code, § 601; Merritt v. Thompson, 1 Hilt. 550. Vol. II 123 4079. In general. CHAPTER II. ATTACHMENT. 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, in the manner provided by statute in the following cases: 1. In an action upon a contract, express or implied, for the direct payment of money, where the contract is made or is payable in this state, and is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally so secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; 2. In an action upon a contract, express or implied, against a defendant not residing in this state. The process of attachment is a creature of statute, and is a remedy only given in cases of indebtedness arising upon contract.2 It is not a distinct proceeding in the nature of an action in rem, but is a proceeding auxiliary to an action at law, designed to secure the payment of any judgment the plaintiff may obtain.3 It has been held that where property in the hands of a third person is arrested on a claim to a specific lien upon it, that constitutes the suit a suit in rem; it is not a foreign attachment, whether the third person holds the property as owner of it in his own right or as trustee of the debtor.* A judgment in rem binds the thing itself as against all the world, but in a case in which the law requires that parties shall be brought before the court, the sentence binds those only who are parties. The decisions here referred to were made under 1 Cal. Code Civ. Pro., § 537; and see Kohler v. Agassiz, 99 Cal. 12, 13. In California, a writ of attachment issued in an action not based upon a contract, express or implied, is void, and may be collaterally attacked. Mudge v. Steinhart, 78 Cal. 34. 2 Griswold v. Sharpe, 2 Cal. 17; Suksdorff v. Bingham, 13 Oreg. 369. 8 Low v. Adams, 6 Cal. 277. 4 Reed v. Hussey, 1 Blatch. & H. 525. Mankin v. Chandler, 2 Brock. Marsh. 125. the peculiar statutes of the states where rendered. It is well settled that such proceedings are statutory and special, and must be strictly pursued, and when a party relies upon his attachment lien as a remedy, he must strictly follow the provisions of the Attachment Law.6 § 4080. When to issue. An attachment issued before the issuance of the summons in the suit is void, and the subsequent issuance of the summons can not cure it. Although under the California Code a writ of attachment can not properly issue until after the commencement of the suit to which it is only auxiliary, still there seems to be no valid objection to a complete preparation of all the papers requisite to the writ before or at the same time the complaint is prepared, so that the affidavit and undertaking in attachment be not filed in advance of the original complaint, and the writ not issued in advance of the summons to which it is incident.8 An attachment issued before the maturity of the debt is prima facie void as against a subsequent attachment. But where goods were fraudulently purchased by an insolvent, the creditor may attach before the maturity of the debt, and other creditors subsequently attaching can not complain that the suit was prematurely brought.10 The decision in this case goes upon the ground that the debt on which the attachment issued was equitably due, and hence does not conflict 6 Roberts v. Landecker, 9 Cal. 262; compare Fisher v. Consequa, 2 Wash. C. C. 382; Picquet v. Swan, 4 Mason, 443; James v. Jenkins, Hempst. 189; Gow v. Marshall, 90 Cal. 565; Rudolph v. Saunders, 111 id. 233; Murphy v. Jack, 76 Hun, 356; Jaffray v. Wolf, 1 Okl. 312. Attachment proceedings are incidental to the main case, and form no part of the pleadings proper. Jordan v. Frank, 1 N. Dak. 206. And an attachment can only operate upon the right of a debtor existing at the time of the levy. McMillen v. Gerstla, 19 Col. 99. Washington Code of Procedure, § 171, providing for the commencement of a civil action by the filing of a complaint, has not been repealed, in so far as the issuance of writs of attachment is concerned, by the passage of the Practice Act of 1893, declaring that civil actions in the Superior Courts shall be commenced by the service of a summons. Cosh-Murray Co. v. Tuttich, 10 Wash. St. 449. An attachment being merely a creature of statute, its existence and operation in any case can continue no longer than the statute provides it may. Loveland v. Mining Co., 76 Cal. 562. 7 Low v. Henry, 9 Cal. 538. 8 Wheeler v. Farmer, 38 Cal. 203. 9 Patrick v. Montader, 13 Cal. 434. with the rule laid down here.11 An attachment issued upon a debt not legally or equitably due is void, as against creditors whose rights are injuriously affected by it.12 And a subsequent attaching creditor can not, by intervention, postpone the lien of the first attachment to his own, unless the plaintiffs in the first action fraudulently commenced their action.13 An officer attached property claimed by A. under a sale from the defendant in an attachment suit. Judgment was recovered by the plaintiff in the attachment suit, and A. sued the officer; it was held that the officer might show that the sale to A. was in fraud of creditors.1 An express contract is one the terms of which are stated in words. 15 An implied contract is one the existence and terms of which are manifested by conduct.16 Implied contracts are such as reason and justice dictate, and which, therefore, the law presumes every man undertakes to perform.17 If I employ a person to do any business for me, or perform any work, the law implies that I contracted to pay the real value of the services.18 There must be a debt.19 "Direct" does not mean the opposite of "collateral." That would exempt sureties, guarantors, etc. It means that the debt must be liquidated.20 A bail bond in a criminal case is a contract for the direct payment of money." 21 So is the official bond of a county treasurer. 11 Davis v. Eppinger, 18 Cal. 378; 79 Am. Dec. 184. 12 Id.; compare Staab v. Hersch, 3 N. Mex. 153. In Colorado practice, a writ of attachment may, under certain circumstances, issue upon a debt or liability not due as well as upon claims that are due. But where neither the complaint nor the affidavit of attachment states that the action includes a claim not due, the recovery may properly be restricted to such claims as are due. Kimball v. Lyon, 19 Col. 266; and see Woods v. Tanquary, 3 Col. App. 515; Miller v. Godfrey, 1 id. 177. So, in South Dakota. Deering v. Warren, 1 S. Dak. 35. 13 Coghill v. Marks, 29 Cal. 673. 14 Pease v. Anderson, 44 Ill. 218. 15 Cal. Code Civ. Pro., § 1620. 16 Id., § 1621. 17 Bouv. Law Dict. 18 2 Bl. Com. 443. 19 Cal. Code Civ. Pro., § 538. 20 Hathaway v. Davis, 33 Cal. 165. An action against a stockholder of a corporation to recover his proportion of a debt of the corporation is an action upon a contract, within the meaning of section 537, California Code of Civil Procedure, relative to attachment. Kennedy v. Cal. Sav. Bk., 97 Cal. 93. 21 San Francisco v. Brader, 50 Cal. 506. 22 Monterey Co. v. McKee, 51 Cal. 255. |