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 Č. 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. City and County of San Francisco, ss: E. F. and G. H., whose names are subscribed as sureties to the above undertaking, being severally duly sworn, each for himself deposes and says, that he is worth two hundred and fifty dollars, the sum in the said undertaking specified as the penalty thereof, over and above all his debts and liabilities, exclusive of property exempt from execution. E. F. G. H. Subscribed and sworn to before me, this fifth day of May, A. D. 1859. JOHN HANNA, Deputy Clerk. Endorsement on the above Undertaking. Approved and filed this fifth day of May, A. D. 1859. WILLIAM DUER, Clerk. By D. P. BELKNAP, Deputy Clerk. Writ of Attachment. In the District Court of the 12th Judicial District,} City and of Francisco, A. B. against C. D. The People of the State of California to the Sheriff of the City and County of San Francisco, greeting: Whereas, the above-entitled action was commenced in the District Court of the 12th judicial district of the state of California, by the above-named plaintiff, to recover from the said defendant the sum of five hundred dollars or thereabouts, besides interest and costs of suit; and the necessary affidavit and undertaking herein having been filed, as required by law: Now we do therefore command you, the said sheriff, that you attach and safely keep all the property of the said defendant within your said county (not exempt from execution), or so much thereof as may be sufficient to satisfy the said plaintiff's demand, as above mentioned, unless the said defendant gives you security, by the undertaking of at least two sufficient sureties, in amount sufficient to satisfy such demand, besides costs; in which case you will take such undertaking, and hereof make due and legal service and return. Witness, the HoN. EDWARD NORTON, Judge of the said District Court of the 12th Judicial District, this fifth day of May, A. D. 1859. Attest my hand and seal of the said court, the day and year last above written. WILLIAM DUER, Clerk. Affidavit for Order of Arrest. State of California, In the District Court of the 4th Judicial District, M. N. et al. against O. P. M. N., one of the plaintiffs in this suit, being duly sworn, deposes and says, that the cause of action in this case arose after the passage of the act of the legislature of the state of California, entitled, "An Act to regulate proceedings in civil cases in the Courts of Justice of this State," passed April 29, 1851. That it is an action for the recovery of money or damages, in a cause of action arising upon an express contract, and that the defendant is about to depart from this state with the intent to defraud his creditors [or set out other ground of arrest as prescribed by the statute]. And deponent further states and shows to the court the following facts and circumstances in support of the above allegations of fraud, that is to say: [Here set out the facts, &c.] M. N. Sworn to before me, this tenth day of September, A. D. 1859. B. C. DUER, Deputy Clerk. 4th District Court, M. N. et al. Undertaking on Arrest. Whereas, the above-named plaintiffs have commenced, or are about to commence an action in the District Court of the fourth judicial district, against the above-named defendant, and are about to apply for an order for the arrest of the said defendant in said action: Now, therefore, we the undersigned, residents of San Francisco, in consideration of the premises, and of the issuing of said order of arrest, do undertake, in the sum of five hundred dollars, and promise, to the effect that, if the said defendant recovers judgment, the said plaintiffs will pay all costs and charges that may be awarded to the said defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum of five hundred dollars. Dated, this tenth day of September, A. D. 1859. County of San Francisco, ss: W.X. W. X., one of the sureties, whose name is subscribed to the above undertaking, being duly sworn, deposes and says, that he |
