as to the custody of the person arrested. SEC. 492. Whenever by the provisions of this chapter an officer is Duty of officer required to keep a person arrested on a warrant of attachment in custody, and to bring him before a court or judge, the inability from illness or otherwise of the person to attend shall be a sufficient excuse for not bringing him up; and the officer shall not confine a person arrested upon the warrant in a prison, or otherwise restrain him of personal liberty, except so far as may be necessary to secure his personal attendance. cases of contempt SEC. 493. The judgment and orders of the court or judge made in Judgment in cases of contempt, shall be final and conclusive. The punishment to be final. shall be by fine or by imprisonment, but no fine shall exceed the sum of five hundred dollars, and no imprisonment shall exceed the period of five days, except as provided in section 489. TITLE XIV. OF COSTS. attorneys, etc. prevailing party. SECTION 494. The measure and mode of compensation of attorneys Compensation of and counsellors shall be left to the agreement, express or implied, of the parties. But there shall be allowed to the prevailing party in Costs to any action in the supreme court, district courts, or superior court of the city of San Francisco, and in all actions originally instituted in the county courts, certain sums by way of indemnity for his expenses in the action, or special proceeding in the nature of an action, which allowances are in this act termed costs. (1) SEC. 495. Costs shall be allowed of course to the plaintiff upon a Costs to be judgment in his favor, in the following cases: First. In an action for the recovery of real property: Second. In an action to recover the possession of personal property, when the value of the property amounts to two hundred dollars or over. Such value shall be determined by the jury, court, or referee by whom the action is tried: Third. In an action for the recovery of money or damages where plaintiff recovers two hundred dollars or over: allowed to the plaintiff on a judgment in his favor in certain cases. Costs where several actions against parties who might have Fourth. In a special proceeding in the nature of an action. (2) SEC. 496. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action, against been joined in several parties who might have been joined as defendants in the same action, no costs shall be allowed to the plaintiff in more than one of (1) Amendment inserted from Stat. 1853, p. 277. one action. When costs allowed of course to defendant. When the costs are in the discretion of the court. Costs to defendants such actions, which may be at his election, if the party proceeded against in the other actions were at the commencement of the previous action openly within this state; but the disbursements of the plaintiff shall be allowed to him in each section [action.] SEC. 497. Costs shall be allowed of course to the defendant upon a judgment in his favor in the actions mentioned in sections 495, and in a special proceeding in the nature of an action. SEC. 498. In other actions than those mentioned in section 495, costs may be allowed or not; and if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court; but no costs shall be allowed in an action for the recovery of money or damages when the plaintiff recovers less than two hundred dollars, nor in an action to recover the possession of personal property, when the value of the property is less than two hundred dollars. SEC. 499. When there are several defendants in the actions menhaving judgment tioned in section 495, not united in interest, and making separate de in their favor. When costs of appeal in the fences by separate answers, and the plaintiff fails to recover judgment against all, the court shall award costs to such of the defendants as have judgment in their favor. SEC. 500. In the following cases the costs of an appeal shall be in discretion of the the discretion of the court: court. Amount of costs in certain cases. Additional allowance. 1st. When a new trial is ordered: 2d. When a judgment is modified. SEC. 501. When allowed, costs shall be as follows: 1st. For all proceedings previous to the issue, twenty dollars. 2d. For the trial of every issue of fact, and the argument of every issue of law in an action, or special proceeding in the nature of an action, thirty dollars. 3d. For the argument of every contested motion in the progress of an action, or special proceeding in the nature of an action, ten dollars. 4th. For proceedings subsequent to trial or argument, until judg ment or appeal, ten dollars. 5th. For the argument of every appeal, thirty dollars. 6th. For proceedings subsequent to the argument of the appeal, until judgment is entered thereon, twenty dollars. (1) SEC. 502. In actions for the recovery of money or damages, or the possession of personal property, or for the recovery of real property, the plaintiff shall be entitled to the additional allowance of five per (1) Amendment inserted from Stat, 1853, p. 278. cent. on the first one thousand dollars, and two per cent. on all over that sum, upon the amount of the verdict, or the value of the property recovered; such value to be determined at the trial, or at the time the judgment is applied for, in case no answer shall have been. put in. In the actions specified in this section, the defendant, in case. of judgment for the defendant, shall be entitled to a similar per centage on the amount or the value of the property claimed by the plaintiff. But such allowance shall in no case exceed five hundred dollars: Provided, that in any action or special proceeding in the nature of Percentage shall an action, which may be dismissed or discontinued at the instance of cases dismissed either party, no per centage shall be allowed as herein provided. (1) SEC. 503. When recovery is had upon failure of the defendant to Costs on failure answer, the plaintiff shall be entitled to recover as follows: 1st. In actions for the recovery of real property, and in actions in which the taking of an account, or the examination of a long account, or the proof of any fact, shall be necessary to enable the court to carry the judgment into effect, and a reference be ordered to take or examine the account, or determine the fact; and in actions in which a jury shall be called to determine a fact necessary to carry the judgment into effect, or to assess damages, the same costs as in actions in which issues are joined. 2d. In other actions, thirty dollars. not be allowed in or discontinued. to answer. SEC. 504. The fees of referees shall be five dollars to each for every r....refereos. day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation, and thereupon such rate shall be allowed. postponing trial. SEC. 505. When an application is made to a court or referee to Costs of postpone a trial, the payment to the adverse party of a sum not exceeding twenty dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement. tender and payment into court. SEC. 506. When, in an action for the recovery of money only, the Costs after defendant alleges in his answer that before the commencement of the action he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court for the plaintiff the amount so tendered, and the allegation be found to be true, the plaintiff shall not recover costs, but shall pay costs to the defendant. SEC. 507. In an action prosecuted or defended by an executor, ad- Costs in actions ministrator, trustee of express trust, or a person expressly authorized by statute, costs may be recovered, as in action by and against a (1) Amendment inserted from Stat., 1853, p. 278. by and against executors, etc. Costs on review otherwise than by appeal. Fees for judges' salaries. Memorandum of costs to clerk. person prosecuting or defending in his own right; but such costs shall, by the judgment, be made chargeable only upon the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in the action or defence. SEC. 508. When the decision of a court of inferior jurisdiction in a special proceeding, is brought before a court of higher jurisdiction for a review in any other way than by appeal, the same costs shall be allowed as in cases on appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case. SEC. 509. On the commencement of an action, the plaintiff, and on the filing of notice of appeal from a final judgment, the appellant shall pay to the clerk three dollars, to be applied to the payment of the salary of the judge or judges of the court in which the payment is made. Each clerk shall keep an account of money so received, and shall pay over the same at the end of each month to the judge or judges of the court, taking duplicate receipts of each payment, one of which shall be filed by the clerk in his own court. On the first day of each month the clerk of each county court shall deliver to the treasurer of his county, and the clerk of the superior court of the city of San Francisco to the treasurer of said city, an account of all pums received, specifying the vasts lu which received, and of all sums paid out, with the receipts of the judge or judges therefor; at the same time a like account shall be forwarded by the clerks of the district courts to the comptroller of the state, of the sums paid into their respective courts, and of the sums paid out, with the receipts of the judges therefor. In paying the salary of any district judge, the comptroller, and in paying the salary of the judge or judges of the superior court of the city of San Francisco, the city treasurer, and in paying the salary of any county judge, the county treasurer, shall deduct the amount paid to such judge or judges, under the provisions of this section, as shown by the receipts of the judge or judges in their respective offices. SEC. 510. The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the court a memorandum of the items of the costs to which he is entitled. He may include in the costs all the necessary disbursements in the action or proceeding, including the fees of officers allowed by law, the fees of witnesses, the necessary expenses, taking depositions by commission or otherwise, the compensation of referees, and the fees paid on the commencement of the action, or on filing the notice of appeal. The memorandum shall be accompanied by the affidavit of the party, that the items are correct to the best of his knowledge and belief, and that the disbursements have been necessarily incurred in the action. The memorandum and affidavit shall be delivered to the clerk within twenty-four hours after the rendition of the verdict, or the costs shall be deemed waived. included in SEC. 511. The clerk shall include in the judgment entered up by Costs, etc., to be him the costs, the per centage allowed, and any interest on the ver- judgment. dict from the time it was rendered. costs. SEC. 512. When the plaintiff in an action resides out of the state, Security for or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the court or judge upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking be executed and filed. SEC. 513. Each of the sureties on the undertaking mentioned in The like. the last section shall annex to the same an affidavit that he is a resident and householder or freeholder within the county, and is worth double the amount specified in the undertaking, over and above all his just debts and liabilities, exclusive of property exempt from execution. SEC. 514. After the lapse of thirty days from the service of no- The like tice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the court or judge may order the action to be dismissed. TITLE XV. OF MOTIONS, ORDERS, NOTICES, SERVICE OF PAPERS, AND MISCELLANEOUS PROVISIONS. motion defined. SECTION 515. Every direction of a court or judge made or entered Order and in writing, and not included in a judgment, is denominated an order. An application for an order is a motion. to be made. SEC. 516. Motions shall be made in the county in which the action Motions, where is brought, or in an adjoining county in the same district. |