property or effects, with the intent to hinder, delay, or defraud his creditors. 7. Where the debtor fraudulently contracted the debt or incurred the obligation, respecting which the suit is brought.

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, showing: 1. That the defendant is indebted to the plaintiff in a certain sum (specifying the amount of such indebtedness), over and above all legal set-offs or counter-claims, upon a contract, express or implied, for the direct payment of money, and that such contract was made, or is payable, in this state, and that the payment of the same has not been secured by any mortgage on real or personal property. 2. That the deponent has good reason to believe, and does believe, that one or more of the causes set forth in the several subdivisions of the next preceding section actually exists at the time of making the affidavit, reciting the facts upon which such belief is founded.

Before issuing the writ, the clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, nor exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that, if the defendant recover judgment, or if the attachment should be dismissed, the plaintiff will pay all costs that may be awarded to the defendant, and all damage which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking.

An order of arrest against the defendant may be obtained in the following cases: 1. 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 when the action is for wilful injury to person, to character, or to property, knowing the property to belong to another. 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such; or by any other person in a fiduciary capacity, or for misconduct or neglect in office or in a professional employment, or for a wilful violation of

1 Wood's Dig. art. 808, et seq.

duty. 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff. 4. When the defendant has been guilty of fraud in contracting the debt or incurring the obligation for which the action is brought, or in concealing or dispos ing of the property, for the taking, detention, or conversion of which the action is brought. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.'

An order for the arrest of the defendant shall be obtained from a judge of the court in which the action is brought, or from a county judge.

The order may be made whenever it shall appear to the judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in this chapter, above. The affidavit shall be either positive or upon information and belief; and, when upon information and belief, it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the clerk of the county.

Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with sureties, to the effect that, if the defendant recover judgment, the plaintiff will pay all costs and charges 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 five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder, or freeholder within the state, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the court.

When the debt sought to be secured is not over two hundred dollars, the remedy by attachment or arrest must be prosecuted in the Justices' Court, and under the statute provided for such proceedings in that court.

1 Wood's Dig. art. 808, et seq.

ACT OF APRIL 22, 1850, FOR RELIEF OF PERSONS IMPRISONED ON CIVIL PROCESS.

SECTION 1. Every person confined in jail on an execution issued on a judgment rendered in a civil action, shall be discharged therefrom upon the conditions hereinafter specified.

SEC. 2. Such person shall cause a notice in writing to be given to the plaintiff, his agent or attorney, that at a certain time and place he will apply to the judge of the district court of the county in which such person may be confined; or, in case of his absence or inability to act, to the judge of the county court of the county in which such person may be imprisoned, for the purpose of obtaining a discharge from his imprisonment. In the county of San Francisco, the application may be made to a judge of the superior court of the city of San Francisco.

SEC. 3. Such notice shall be served upon the plaintiff, his agent or attorney, one day at least before the hearing of the application, in cases where the plaintiff, his agent or attorney, lives within twenty miles of the place of hearing; and one day shall be added for every additional twenty miles that such person may reside from the place of hearing.

SEC. 4. At the time and place specified in the notice, such person shall be taken before such judge, who shall examine him under oath concerning 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 shall also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor.

SEC. 5. The plaintiff in the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry; and they shall, if required by him, be proposed and answered in writing; and the answer shall be signed and sworn to by the prisoner.

SEC. 6. If upon the examination, the judge shall be satisfied that the prisoner is entitled to his discharge, such judge shall administer to him the following oath, to wit: (See Forms.)

SEC. 7. After administering the oath, the judge shall issue an order that the prisoner be discharged from custody, if he be imprisoned for no other cause; and the officer, upon the service of such order, shall discharge the prisoner forthwith, if he be imprisoned for no other cause.

SEC. 8. If such judge should 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 shall thereupon be had.

SEC. 9. The prisoner, after being so discharged, shall be forever exempted from arrest or imprisonment for the same debt, unless he shall be convicted of having wilfully sworn falsely upon his examination before the judge, or in taking the oath before prescribed.

SEC. 10. The judgment against any prisoner who is discharged as aforesaid, shall remain 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.

SEC. 11. The plaintiff in the action may at any time order the prisoner to be discharged, and he shall not thereafter be liable to imprisonment for the same cause of action.

SEC. 12. 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, shall advance to the jailor, within twenty-four hours after such commitment, sufficient money to pay for the support of said prisoner during the time for which he may be imprisoned, and in case the money should not be so advanced, or if, during the time the prisoner may be in confinement, the money should be expended in the support of such prisoner, and the creditor should neglect for twenty-four hours to advance such further sum as might be necessary for his support, the jailor shall forthwith discharge such prisoner from custody; and such discharge shall have the same effect as a discharge by order of the creditor.

12th District Court,

A. B.

against

C. D.

FORMS.

Affidavit for Attachment.

City and County of San Francisco, ss:

A. B., the plaintiff in the action above named, being duly sworn, deposes and says, that the defendant above named is in

debted to him, the said plaintiff, in a certain sum, that is to say, in the sum of five hundred dollars, over and above all legal setoffs and counter-claims, upon an express [or, implied] contract for the direct payment of money, and that such contract was made and is payable in this state, and that the payment of the same has not been secured by any mortgage on real or personal property.

And this deponent further says that he, this deponent, has good reason to believe, and does believe, that the following cause for issuing an attachment in this action actually exists at the time of making this affidavit, to wit: That the said defendant, the debtor above named, is a non-resident of this state [or, that the debtor above named has absconded, &c., &c., or other cause of attachment, as prescribed in the act], that the facts upon which such belief is founded are as follows: [here set forth the facts.]

A. B. Sworn and subscribed before me, this fifth day of May, 1859. JOHN HANNA, Deputy Clerk.

Undertaking on Attachment.

12th District Court,

A. B. against Č. D.

Whereas, the above-named plaintiff has commenced, or is about to commence an action in the District Court of the twelfth judicial district of the state of California, against the above-named defendant, upon a contract for the direct payment of money, claiming that there is due to said plaintiff from said defendant the sum of five hundred dollars, or thereabouts, and he is about to apply for an attachment against the property of said defendant, as security for the satisfaction of any judgment that may be recovered therein :

Now, therefore, we, the undersigned, residents of the city and county of San Francisco, in consideration of the premises, and of the issuing of said attachment, do jointly and severally undertake, in the sum of two hundred and fifty dollars, and promise, to the effect that, if defendant recover judgment, or if the attachment should be dismissed, in said action, said plaintiff will pay all the costs that may be awarded to the said defendant, and all damages which he may sustain by reason of the said attachment, not exceeding the sum specified in said undertaking of two hundred and fifty dollars.

Dated at San Francisco, this fifth day of May, A. D. 1859.

E. F. G. H.