Actions against sheriff. Notice to indemnity.

§ 645. If an action be brought against a sheriff for an act done by virtue of his office, and he give written notice thereon to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be conclusive evidence of his right to recover against such sureties; and the court or judge in vacation may, on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs.

[21 Cal. 438; 28 Cal. 101.]

Where Spanish language may be used.

§ 646. In the Counties of Monterey, San Luis Obispo, Santa Barbara, Los Angeles, and San Diego, it shall be the duty of the officer to give the defendant in a civil action, if said defendant shall require it, a copy of the summons, or other process, in the Spanish language; and in the Counties of Santa Barbara, San Luis Obispo, Los Angeles, San Diego, and Monterey, it shall be lawful, with the consent of both parties, to have the process, pleadings, and other proceedings, in a cause, in the Spanish language (a) [Amendment, approved May 15, 1862, 567; took effect from passage.

(a) The original section required that the officer making service should explain the summons or other process served upon a party unable to read, or who did not understand English. The officer was to give a copy of the summons or other process in Spanish, if required. Besides the counties mentioned in the text, the process might also be in Spanish in the Counties of Santa Clara, Santa Cruz, and Contra Costa. The proceedings might be in Spanish in the same counties mentioned in the text, except Monterey.

It was amended February 20, 1857, 29, so as to read like the text, except that it had Santa Clara, Santa Cruz, and Contra Costa in the first list of counties, and Santa Cruz in the last.

Construction of words used.

§ 647. Words used in this act in the present tense shall be deemed to include the future as well as the present; words used in the singular number shall be deemed to include the plural, and the plural the singular; writing shall be deemed to include printing or printed paper; oath to include affirmation or declaration; signature or subscription, to include mark when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness.

Repeal of former acts.

66

$648. The following statutes, namely: the act entitled "An Act to regulate proceedings in civil cases in the district court, the superior court of the City of San Francisco, and the supreme court," passed April 22d, 1850; the act entitled "An Act to regulate proceedings against debtors by attachment," passed April 22d, 1850; the act entitled An Act providing for the collection of demands against vessels and boats," passed April 10th, 1850; the act entitled "An Act to regulate proceedings in courts of justices of the peace in civil cases," passed April 10th, 1850; and the act entitled "An Act to regulate proceedings in the county courts in cases of appeal from the courts of justices of the peace,” passed April 11th, 1850; the act entitled "An Act respecting set-offs," passed [April] 22d, 1850, are hereby repealed; but such repeal shall not invalidate any judgment rendered, or order made, or any proceeding already taken by virtue of said statutes.

[The repealed acts, if reference thereto is desired, will be found in the statutes of 1850, 179, 189, 203, 412, 423, and 428.]

$649. This act shall take effect on the first day of July of the present year.

SUPPLEMENTAL ACT.

An Act amendatory of and supplementary to the act entitled "An Act to regulate proceedings in civil cases in the courts of justice in this State."

Passed May 15, 1854, 84.

[§§ 1 to 61, inclusive, contain amendments to various sections of the foregoing act of April 29, 1851, therein inserted or referred to in the notes.]

Affidavits of sureties. More than two sureties, when.

650. § 62. In all cases where an undertaking with sureties is required by the provisions of said act, the judge, justice, clerk or other officer taking the same, shall require the sureties to accompany the same, with an affidavit that they are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; provided, that when the amount specified in the undertaking exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties. [7 Cal. 518; 28 Cal. 21.]

Receiver in action for miners' claims.

651. § 63. In actions respecting miners' claims in a justice's court, the justice shall have power upon application of the party out of possession of the claim or claims, after notice of one day to the adverse party, to appoint a receiver of the proceeds of the claim, pending the action. If the parties agree upon a person, he shall be appointed such

receiver. If the parties do not agree, the justice shall appoint a receiver, who shall take an oath, which shall be filed with the justice, that he is not interested in the action between the parties, and that he will honestly keep an account of all gold dust or metals of any kind, the proceeds of the claim or claims in dispute. After the appointment of such receiver, the justice shall have power to issue a written order to any sheriff or constable to put such receiver into possession of such claim; which order said sheriff or constable shall execute, and the receiver shall remain in possession of the claim or claims, so long as said action may remain undetermined in any court. The court in which the action may be pending, shall have authority upon application of either party with two days' notice to the other, from time to time, to make such orders for the disposition of the proceeds of such claim or claims for the safety of the same, as may seem proper. The court in which the action may be pending shall also have power, upon application of the receiver, based upon his affidavit, to punish as for contempt, all persons who have been guilty of disturbing the receiver in the possession of the claim. (a) [Amendment, approved April 28, 1855, 196.

Duties of receiver.

652.64. The receiver mentioned in the last section shall keep an accurate account of all the proceeds of the claim pending action, and of all amounts paid out for working

(a) The original section provided that a receiver might be appointed upon the application of the plaintiff after notice to the adverse party. If the parties agreed upon a person, he was to be appointed receiver; if they could not agree, the justice was to appoint some suitable and disinterested person.

the same, and shall retain the proceeds and pay the same over, pursuant to the order of the court. The receiver shall also be required, on demand of either party, to give security for the faithful performance of his trust, and shall be allowed for the same a reasonable compensation, to be paid out of the proceeds of the claim in his hands, but in no case exceeding ten per cent. upon such proceeds.

Certiorari and mandamus in vacation.

653.

65. Writs of certiorari and mandamus may be issued in the cases prescribed by said act by a judge of the supreme court, district court or county court, in vacation, and may, in the discretion of the judge issuing the writ, be made returnable, and a hearing may be had on the return thereof in vacation.

Sale of attached property.

654. 66. Whenever property has been taken by an officer under a writ of attachment, in pursuance of the provisions of said act, and it shall be made to appear satisfactorily to the court, or a judge thereof, or a county judge, that the interest of the parties to the action will be subserved by a sale thereof, the court or judge may order such property to be sold, in the same manner as property is sold under an execution, and the proceeds to be deposited in court, to abide the judgment in the action. Such order shall be made only upon notice to the adverse party, or his attorney, in case such party has been personally served with a summons in the action.

Certified copies of records, documents, and papers, etc.

655. § 67. A copy of any record, document or paper in the custody of a public officer of this State, or of the United