on a contract for the direct payment of money in this state, and is not secured by mortgage on real or personal property, the right to have his debtor's property attached for the security and collection of his debt.

The attachment may be issued and served at the time of issuing the summons, or at any time thereafter.(a)

ATTACHMENT.

The attachment is to be issued by the clerk, on an affidavit being filed, showing that the debt was contracted after the twentieth day of April, 1851, payable in the state, and in money not secured by mortgage on real or personal property, specifying the amount of the debt, over and above any set-off or counter claims. In addition to the affidavit, the plaintiff is to deliver to the clerk an undertaking, with sufficient sureties, in a sum not less than two hundred dollars, nor more than the amount claimed by the plaintiff, to the effect that the plaintiff will pay all costs that may be awarded against him, and all damages which the defendant may sustain by reason of the attachment, not exceeding the sum named in the undertaking. After the affidavit and undertaking have been delivered to the sheriff, he is to call on the defendant, and execute the attachment, unless he gives to the sheriff an undertaking, with at least two good and sufficient sureties, in an amount sufficient to satisfy such demand and costs.

In case the defendant does not give to the sheriff the undertaking named for the security of the claim, then the sheriff is to proceed and attach the property of the defendant not exempt from execution.(b)

PROPERTY EXEMPT FROM ATTACHMENT AND EXECUTION.

Chairs, books, tables, and desk, to the value of one hundred dollars.

Necessary household articles, table and kitchen furniture belonging to the defendant or debtor, including stove, stove(a) 2 Cal. Stat, ch. 5, p. 51. (b) 2 Cal. Stat., p. 51.

pipe, and stove furniture, wearing apparel, beds, bedding, and bedsteads, and provisions actually provided for individual or family use, sufficient for one month.

The farming utensils, or implements of husbandry of the defendant or debtor; also two oxen, or two horses, or two mules, and their harness; one cart or wagon, and food for such oxen, horses, or mules, for one month.

The tools and implements of a mechanic, necessary to carry on his trade; the instruments and chests of a surgeon, physician, surveyor, and dentist, necessary to the exercise of their professions, with their professional library, and the law library of an attorney or counsellor.

The tent and furniture, including a table, camp stools, bed and bedding of a miner; also his rocker, shovels, spade, wheelbarrows, pumps, and other instruments used in mining, with provisions necessary for his support for one month.

Two oxen, or two horses, or two mules and their harness, and one cart or wagon, by the use of which a cartman, teamster, or other laborer habitually earns his living; and food for such oxen, horses, or mules, for one month; and a horse, harness, and vehicle used by a physician or surgeon in making his professional visits.

All arms and accoutrements required by law to be kept by any persons.

The homestead of the defendant or debtor, consisting of a quantity of land, together with the dwelling-house thereon, not exceeding in value the sum of five thousand dollars, to be selected by the defendant or debtor.(a)

HOW EXECUTED.

The attachment is executed on real property by leaving a copy of the writ with the occupant thereof, if there be any; if not, then by putting a copy in a conspicuous place, and also filing a copy, together with a description of the property attached, with the recorder of the county where the land is situated.

(a) 2 California Statutes, 51.

It is executed on personal property by taking the same into possession, if capable of manual delivery. On stocks or shares, or interest in stocks or shares, of any corporation or company, by leaving with the president, or other head of the same, or the secretary, cashier, or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ.

The attachment is executed on debts and credits, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control such credits or other personal property, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits, or other personal property in his possession, or under his control, belonging to the defendant, are attached, in pursuance to such writ.

The plaintiff or his attorney may notify the sheriff of any person who has credits or personal property belonging to the defendant, or under his control, or who is indebted to the defendant; upon receiving which the sheriff is to execute the writ on such person.

Any person on whom the writ has been executed, having credits or property under his control, at the time of such service, belonging to the defendant, or being indebted to him at the time, is liable to the plaintiff to the amount of such credits, property, or debts, until the attachment is discharged, or the judgment that may be rendered in favor of the plaintiff is satisfied.

The defendant, and any person on whom the writ has been served, may be required, to attend before the court or judge thereof, and be examined under oath, touching the credit, property, or debts belonging to the defendant.

The court or judge may, after such examination, order the personal property capable of manual delivery to be delivered to the sheriff upon such terms as may be just, having reference to any liens thereon, or claims against the same, and a

memorandum to be executed of all other personal property, with the amount and description thereof.(a)

RETURN OF THE WRIT.

The sheriff is to make a full inventory of the property attached, and return the same with the writ; and, to enable him to make such inventory, he is to request, at the time of service, the party owing the debt or having the credit, to give him a memorandum of the amount and description of each. If such memorandum is refused, the sheriff is to return the fact of such refusal, and such party so refusing must pay the costs of the proceeding against him, to obtain information. on the amounts and description of such debt or credits.

If any property attached is perishable, the same is to be sold by the sheriff, by posting notices of the time and place of sale, in three public places of the township or city where the sale is to take place, for such time as may appear reasonable to the sheriff, considering the character and condition of the property.

The proceeds of the sale, if any made, and the other property attached by the sheriff, are to be retained to answer any judgment that may be recovered in the action, unless the same shall be sooner subjected to sale on an execution upon a judgment rendered previous to the attachment. The sheriff may collect all debts and credits attached, if the same can be done without suit, and his receipt is a full discharge for the amount paid.

If any personal property attached be claimed by a third. person as his property, the sheriff is to summon six persons, qualified as jurors, to try the validity of such claim, and at the same time shall give notice to the plaintiff of the claim and time of trial. The plaintiff has the right to appear in person or by attorney and contest the claim before the jury. The sheriff is to swear the jury and witnesses. The claimant and defendant, if the plaintiff shall require it, are to be examined as witnesses. If the jury give their verdict in favor

(a) 2 California Statutes, 51.

of the claimant, the sheriff may deliver to the claimant the property claimed, unless the plaintiff gives to the sheriff a sufficient indemnity for proceeding upon the property as belonging to the defendant. In case the verdict is against the claimant, he is to pay the fees of the jury, sheriff and witnesses; but if in his favor, the plaintiff is to pay them.

If the writ was issued at the time the summons was, then it is to be returned with the summons; but if it was not so issued, then it is to be returned within twenty days after its receipt. The sheriff, at the time he makes return of the writ, is to certify his proceedings thereon, or attach the same to it.

After the attachment has been served, and the defendant has appeared in the court, the defendant may, upon reasonable notice to the plaintiff, make application to the judge who issued the attachment, or to the court, for an order to discharge the same; to obtain which, the defendant is to give an undertaking, with at least two sureties, residents and freeholders in the county, to the effect that the sureties will, on demand, pay to the plaintiff the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified. If it is required by the plaintiff that the sureties justify before the judge or court, they are to do so, and, upon that being done, the attachment is to be discharged, by order of the judge or court, and the proceeds of the sale of perishable personal property, if any made, the money collected by the sheriff, and property attached remaining on hand, is to be delivered to the defendant.

If the plaintiff recovers judgment against the defendant, the sheriff is to satisfy the same out of the proceeds of sales of perishable personal property, and the money arising from the collection of debts and credits, if there shall be so much in his hands; if not, then, to satisfy the balance of the judg ment, the plaintiff is to have his execution issued and placed in the hands of the sheriff, directing the sale of so much of the property, personal or real, as will satisfy the judgment and costs; and, upon receiving the execution, the sheriff is to proceed, and sell so much of the attached property as will pay the judgment and costs—if there is that amount of property in his hands. If, however, there is not enough money