taking and the order of the judge, had no further claim on it. Nor does it matter whether the property was subject to attachment or not. That matter cannot be tried in this collateral way. It is enough that the plaintiff had this property levied on as subject to his debt, and that these sureties procured its release upon the stipulation that, in consideration of such release, they would pay the amount of the judgment to be recovered by the plaintiff in the attachment suit. Nor was any proof necessary of the preliminary proceedings connected with or preceding the levy, for these defendants admit the levy of the attachment on this property, and this is enough.

On petition for a rehearing, the supreme court say: 1st. The expressions of the opinion are to be limited to the case before the court. When we spoke of the effect of an undertaking as similar to that of a bond, we spoke, of course, of an undertaking taken in pursuance of the statute -for it was of a statutory undertaking that the observations were made. The record presented the question upon the complaint, which averred that the undertaking was made after an attachment, upon the order of the judge.

Whether a mere formal variation from the regular statutory course would make any difference in the rule, it is not necessary to determine, for no point was made or fact alleged as to such variation.

2d. We think that it does not rest with the defendant to say that the property attached, if any was, was not subject to levy, for the condition is to answer the judgment; and no collateral inquiry can be made as to the fact of the levy or the property being subject to it. This has been often decided in the case of forthcoming bonds in several states of the union. It is not uncommon in Kentucky, Virginia and Alabama, to give bonds for the delivery of property merely fictitious in order to stop the execution of a fi. fa.; but it has been held that the parties executing the bond were estopped to deny that the property was levied on and subject to levy. The condition here is, that the obligors will pay the judgment in consideration of the discharge of the attachment; and if the undertaking be regular it is not at all important whether the property be leviable or not,

for by the contract the parties have bound themselves to pay in an event independent of all considerations of this sort.

3d. What we said in reference to the conclusive effect of the recitals, was upon the hypothesis that this was a statutory undertaking; and to that opinion we adhere. The question fairly arose upon the pleadings, and our judgment upon that matter remains unaltered. 18 Cal. 346-349.

Form of Undertaking on such Discharge.

SEC. 115. For form of undertaking on such discharge, see section thirty-five.

Discharge of Attachment for being Improperly or Irregularly Issued.

SEC. 116. The defendant may, also, at any time before the time for answering expires, apply, on motion, upon reasonable notice to the plaintiff, to the justice in whose court the action is brought or to a county judge, that the attachment be discharged, on the ground that the writ was improperly or irregularly issued. Gen. Laws, 5078, 5486.

SEC. 117. The notice of motion to discharge a writ of attachment, stated that the motion would be made because the said writ was improperly issued: Held, that the notice should have specified the grounds of the motion, and wherein it would be urged that the writ was improperly issued. The notice gave no information to the adverse party as to the character of the objections which would be taken. 10 Cal. 338.

Section one hundred and thirty-eight does not obviate the necessity of specifying the particular points of irregularity upon which the motion will be made. It is only a provision that whenever the writ is improperly issued, that fact will authorize the application for its discharge. It is like a great variety of provisions indicating the general ground or reason upon which parties may proceed or the action of the court may be based, and which are never held to obviate the necessity of specifying the points of objection upon which the moving party will rely. If the point be stated, it may be possible for the opposite party to

answer it, and the object of the rule is to give him a fair opportunity to do so. 10 Cal. 338, 339.

SEC. 118. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the attachment was made. Gen. Laws, 5079, 5486.

SEC. 119. If, upon such application, it shall satisfactorily appear that the writ of attachment was improperly or irregularly issued, it shall be discharged. Gen. Laws, 5080,

5486.

Suits against Plaintiff in Attachment.

SEC. 120. If a person having a good cause of action against another, willfully sue for a much greater amount than is due, and attach the property of the other, and put him to charges, he is liable. In cases of this nature there is no settled rule as to the amount of damages to be recovered. are not confined to the actual pecuniary loss sus

The jury

tained by the plaintiff, but may take into consideration the character and position of the parties, and all the circumstances attending the transaction. 6 Cal. 685.

NOTE. For further information, see EXECUTION, Chap. XLVIII, and SHERIFFS, Chap. LXXXI.

CHAPTER XXXI.

ATTORNEYS AT LAW.

SECTION 1. The authority of an attorney at law to appear for parties for whom he enters an appearance in an action, will be presumed, where nothing to the contrary appears.

21 Cal. 51.

SEC. 2. Attorneys are officers of the court, and it is its highest duty to see that its own officers conduct themselves properly. 8 Cal. 322.

SEC. 3. An attorney, by virtue of his retainer and general control over a cause in court, has the power to bind his client, by consenting to an order of the court; and in case

of such consent being given by the attorney, it cannot, after the order has been made, be revoked by the client. 1 Cal. 214.

SEC. 4. Where a party changes his attorneys in an action, and there is no regular substitution of attorneys as pointed out by statute, notices may be served on the attorney of record. 6 Cal. 55.

SEC. 5. An attorney has no lien upon a judgment recovered in favor of his client as a compensation for his services; and where the plaintiff enters satisfaction of a judgment, the attorney has no right to disturb it. 2 Cal. 509.

SEC. 6. An attorney at law, appointed by the court of sessions to defend a pauper prisoner arraigned before it upon an indictment for felony, cannot charge the county for his professional services; the appointment being made upon the expression of a desire of the prisoner to have counsel. 17 Cal. 61.

CHAPTER XXXII.

PROMISSORY NOTES, BILLS OF EXCHANGE, ORDERS, CHECKS, DRAFTS, CERTIFICATES OF

DEPOSIT.

SECTION 1. A promissory note is a direct engagement by the payor to pay his own debt. 16 Cal. 153.

SEC. 2. An instrument, to be regarded either as a bill of or promissory note, must be payable absolutely;

exchange

its payment cannot be made to depend upon a contingency. Therefore, warrants drawn by the mayor and controller upon the treasurer of a city, upon a particular fund, upon the sufficiency of which their payment is made to depend, are not analogous in legal effect to bills of exchange drawn by an