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New bond.

Guardian's bonds to be tiled.

Limitation of actions on

3400. SEC. 39. The probate judge may require a new bond to be given by any guardian whenever he shall deem it necessary, and may discharge the existing sureties from further liability, after due notice given as such court may direct, when it shall appear that no injury can result therefrom to those interested in the estate.

3401. SEO. 40. Every bond given by a guardian, shall be filed and preserved in the office of the clerk of the probate court of the county; and in case of the breach of any condition thereof, may be prosecuted in the name of the ward, for the use and benefit of such ward, or of any person interested in the estate.

3402. SEO. 41. No action shall be maintained against the sureties in any bond given guardian's bonds. by a guardian, unless it be commenced within three years from the time when the guardian shall have been discharged; provided, that if at the time of such discharge, the person entitled to bring such action shall be under any legal disability to sue, the action may be commenced at any time within three years after such disability be removed,

Examination of persons suspect

wards.

3403. SEC. 42. Upon complaint made to the probate judge by any guardian, or by ed of defrauding the ward, or by any creditor, or by any other person interested in the estate, or by any person having any prospective interest therein as heir, or otherwise, against any one suspected of having concealed, embezzled, or conveyed away any of the money, goods or effects, or any instrument in writing belonging to the ward, the judge may cite and examine such suspected person, and proceed with him as to such charge, in the same manner as is provided with respect to persons suspected of concealing or embezzling the effects of a deceased testator, or intestate.

Guardians of non-resident persons.

Powers and duties of guardians

section 43.

3404. SEC. 43. When any minor or other person, liable to be put under guardianship according to the provisions of this act, shall reside without this State, and shall have any estate therein, any friend of such person, or any one interested in his estate, in expectancy, or otherwise, may apply to the probate judge of any county, in which there may be any estate of such absent person, and after notice given to all interested, in such manner as the judge shall order, by publication, or otherwise, and after a full hearing and examination, if it shall appear to him proper, he may appoint a guardian for such absent person.(") [Amendment, approved May 20, 1861, 603.

3405. SEC. 44. Every guardian appointed under the provisions of the preceding appointed under section, shall have the same powers, and perform the same duties, with respect to any estate of the ward that shall be found within this State, and also with respect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed under this act.

Such guardians to give bonds.

To what

guardianship shall extend.

Expenses and compensation of guardians.

More than one guardian of one person may be appointed.

Allowance of accounts of joint guardians.

Conditions of

sales of real

heirs.

3406. SEC. 45. Every such guardian shall give bond to the ward, in the manner, and with the like condition, as herein before provided with respect to other guardians, excepting that the provisions respecting the inventory, the disposal of the estate and effects, and the account to be rendered by the guardian, shall be confined to such estate and such effects as shall come to his hands in this State.

3407. SEC. 46. The guardianship which shall be first lawfully granted, of any person residing without this State, shall extend to all the estate of the ward within the saine; and shall exclude the jurisdiction of the probate court of every other county. 3408. SEC. 47. Every guardian shall be allowed the amount of his reasonable expenses, incurred in the execution of his trust, and he shall also have such compensation for his services, as the court in which his accounts are settled, shall deem to be just and reasonable.

3409. SEC. 48. The court in its discretion, whenever the same shall appear necessary, may appoint more than one guardian of any person subject to guardianship, who shall give bond, and be governed and liable in all respects as is provided respecting a sole guardian.

3410. SEO. 49. When an account is rendered by two or more joint guardians, the probate judge may, in his discretion, allow the same upon the oath of any of them. 3411. SEC. 50. All sales of real estate of minor heirs, made for the benefit of said estate of minor minor heirs, in accordance with the provisions of this act, shall be for cash, or for part cash and part deferred payments, not to exceed three years, bearing date from date of sale as in the discretion of the probate judge may be most beneficial to said minor Bond and mort- heirs. Guardians making the sales aforesaid, shall demand and receive from the purgage to be given for deferred paychasers bond and mortgage on the real estate so sold, with such additional security as the judge may deem necessary and sufficient to secure the faithful payment of the deferred payments and the interest thereon. [Supplementary section, ipproved April 30, 1853, 129.

ments.

(") The original section did not contain the words "by publication or otherwise."

An Act supplementary to the foregoing act of April 19, 1850.

Approved March 27, 1857, 120.

3412. SECTION 1. All the provisions of sections seventy-eight, seventy-nine, eighty, Application of eighty-one, eighty-two, eighty-three, eighty-four, eighty-five, eighty-six, and eighty- Probate act to seven, of the act entitled "An Act to regulate the settlement of the estates of deceased persons," passed May first, eighteen hundred and fifty-one, are hereby declared to apply to guardians appointed in pursuance of the act entitled "An Act to provide for the appointment, and prescribe the duties of guardians," passed April nineteenth, eighteen hundred and fifty, and to the bonds taken, or to be taken, from such guardians, in Bonds. pursuance of said last-mentioned act, and to the sureties on such bonds.

An Act to amend the act of April 19 1850.

Approved May 20, 1861, 603.

[SECTION 1 to Sec. 14, inclusive, contain the amendments to Secs. 1, 8, 10, 19, 20, 21, 25, 26, 27, 28, 30, 33, 36, and 43, of the act of April 19, 1850, therein inserted.]

3413. SEO. 15. All letters of guardianship hereafter issued, and all guardians' bonds Record of letters of guardianship hereafter executed, under the provisions of this act, with the affidavits and certifi- and bonds. cates thereon, shall be forthwith recorded by the clerk of the probate court having jurisdiction of the persons and estates of said wards, respectively, in a book kept by him in his office for that purpose, and said records and duly certified copies thereof, shall have the same force and effect in all cases whatsoever as the originals thereof would have.

chambers.

3414. SEC. 16. All matters which, under the provisions of this act, may be per- Power of probate formed by the probate judge, may be performed by him at chambers, or as the act of judge at the probate court, when holding such court; and any order, appointing a guardian, shall be entered as, and become a decree of, the court. The provisions of the act in relation to the estates of deceased persons, so far as they relate to the practice in the probate court, or the district court, shall also apply to proceedings under this act, where they do not conflict with any of the provisions of this act.

An Act to authorize guardians of minors, idiots, and lunatics, to receive and remove from this State any property to which said ward may be entitled.

Approved March 13, 1858, 59.

non-resident

3415. SECTION 1. When the guardian and ward are both non-residents, and the ward Removal of is entitled to property in this State which may be removed to another state without ward's property conflict to any restriction or limitation thereupon, or impairing the right of the ward thereto, such property may be removed to the state of the residence of the ward upon the application of the guardian to the judge of probate of the county in which the estate of the ward, or the principal part thereof, may be, in the manner following.

3416. SEC. 2. The guardian must produce a transcript from the records of a court Proceedings. of competent jurisdiction, certified according to the laws of this State, showing that he has been appointed guardian of the ward in the state in which he and the ward reside, and has qualified as such, according to the laws thereof, and gave bond, with sureties, for the performance of his trust; and must also give thirty days' notice to the resident executor, administrator, or guardian, if there be such, of the intended application; thereupon, if good cause be not shown to the contrary, the probate judge shall make an order granting such guardian leave to remove the property of his ward to the state or place of his residence, which shall be an authority to him to sue for and receive the same in his own name, for the use and benefit of his ward.

3417. SEC. 3. Such order shall be a discharge of the executor, administrator, guard- Discharge of ian, or other person in whose possession such property may be at the time the order person in possession. is made.

An Act conferring certain powers upon guardians of insane persons.

Passed March 27, 1858, 98,

can land claims.

3418. SECTION 1. Whenever any minor or insane person shall have any claim for Guardian may lands derived from Spanish or Mexican authorities, and such claim shall have been re- certain cases of sell property in jected by the commissioners to ascertain and settle private land claims in the State of Spanish or Mexi California, the guardian of such minor or insane person, appointed or to be appointed by the probate court or judge, shall have power to employ counsel on behalf of such minor or insane person, and on such terms as he may deem to the best interest of his ward, to prosecute such claim on appeal before the district court, or the supreme court of the United States; and for that purpose he may sell and convey such portion of the

Proviso.

Proviso

Who may prosecute writ of

habeas corpus.

1 Cal. 9. 1 Cal.

157. 2 Cal. 424.

⚫ 5 Cal. 237. 22 Cal. 178.

Application for

writ, how made.

Who may grant writ.

11 Cal. 222.

Writ to be grant

ed without delay.

To whom writ is to be directed.

When directed to sheriff.

When directed to any other person.

Service of writ,

Refusing to obey writ.

land so claimed as may be necessary therefor, and to meet any necessary expenses that may be incurred in the prosecution of such claim. The deed of conveyance by the guardian shall be approved by the county judge of the county in which the land is situated, by his approval, in writing, indorsed thereon, and shall be effectual to pass the estate of the said minor or insane person in and to the land so conveyed; provided, that any contract so made with counsel for the prosecution of any such appeal shall be first approved by the judge of the county court of the county in which the land lies, upon petition duly presented for that purpose by the guardian; and provided further, no sale of land for the purpose aforesaid shall take place without a similar approval by the county judge aforesaid, upon a like petition of the guardian.(*) [Amendment, approved April 27, 1863, 735.

Habeas Corpus.

An Act concerning the writ of habeas corpus.

Passed April 20, 1850, 334.

3419. SECTION 1. Every person unlawfully committed, detained, confined, or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.

3420. SEC. 2. Application for such writ shall be made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf, and shall specify:

First. That the person in whose behalf the writ is applied for, is imprisoned or restrained of his liberty; the officer or person by whom he is so confined or restrained; and the place where, naming all the parties, if they are known, or describing them, if they are not known.

Second. If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality consists.

Third. The petition must be verified by the oath or affirmation of the party making the application.

3421. SEC. 3. Such writ of habeas corpus may be granted by the supreme court, or any judge thereof, or any district or county court in term time, or by any judge of such courts at any time, whether in term or vacation.

3422. SEC. 4. Any court or judge empowered to grant any writ applied for under this act, to whom such petition might be presented, if it appear that the writ ought to issue, shall grant the same without delay.

3423. SEC. 5. Such writ shall be directed to the officer or party having such person in custody or under restraint, commanding him to have the body of such person so imprisoned or detained, as it is alleged by petition before the court or judge, as the case may be, at such time as the court or judge shall direct, specifying in such writ the place where the petition will be heard, to do and receive what shall then and there be considered concerning such person, together with the time and cause of his detention, and have then there such writ.

3424. SEC. 6. If such writ be directed to the sheriff or other ministerial officer of the court out of which said writ is issued, it shall be delivered by the clerk to such officer without delay, as other writs are delivered for service.

3425. SEC. 7. If such writ be delivered to any officer or person other than is specified in the last preceding section, the same shall be delivered to the sheriff or his deputy, or the coroner, as the case may require, and shall be by him served upon such officer or person, by delivering the same to him without delay.

3426. SEC. 8. If the officer or person to whom such writ is directed cannot be found, or shall refuse admittance to the officer or person serving or delivering such writ, the same may be served or delivered, by leaving it at the residence of the officer or person to whom it is directed, or by affixing the same on some conspicuous place on the outside either of his dwelling-house, or of the place where the party is confined or under restraint.

3427. SEC. 9. If the officer or person to whom such writ is directed refuse, after due service as aforesaid, to obey the same, it shall be the duty of the court or judge,

() The original section did not provide for "minors," and the words "district judge of the district" were used instead of "county judge of the county."

upon affidavit, to issue an attachment against such person, directed to the sheriff or coroner, as the case may require, commanding him forthwith to apprehend such person, and bring him immediately before such court or judge; and upon being so brought, he shall be committed to the jail of the county until he make due return to such writ, or be otherwise legally discharged.

3428. SEO. 10. The officer upon whom such writ shall be duly served, shall state in What to be his return, plainly and unequivocally:

First. Whether he have or have not the party in his custody, or under his power or restraint.

Second. If he have the party in his custody or power, or under his restraint, he shall state the authority and cause of such imprisonment or restraint, setting forth the same at large.

Third. If the party be detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced and exhibited to the court or judge on the hearing of such return.

Fourth. If the officer or person upon whom such writ shall have been served, shall have had the party in his power or custody, or under his restraint, any time prior or subsequent to the date of the writ of habeas corpus, but such officer or person has transferred such custody or restraint to another, the return shall state particularly at what time and place, for what cause, and by what authority, such transfer took place. Fifth. The return must be signed by the person making the same, and, except when such person shall be a sworn public officer, and shall make such return in his official capacity, it shall be verified by his oath or affirmation.

stated in return to writ

3429. SEC. 11. If the writ of habeas corpus be served, the person or officer to whom Party in custody the same is directed shall also bring the body of the party in his custody, or under his to be brought up. restraint, according to the command of the writ, except in the cases specified in the next two sections.

3430. SEC. 12. Whenever, from sickness or infirmity of the person directed to be Exceptions. produced by any writ of habeas corpus, such person cannot, without danger, be brought before the court or judge, the officer or person in whose custody or power he is, may state that fact in his return to the writ, verifying the same by affidavit.

proceed in ab

3431. SEO. 13. If the court or judge be satisfied of the truth of such allegation of When court may sickness or infirmity, and the return to the writ is otherwise sufficient, such court or sence of the judge may proceed to decide on such return, and to dispose of the matter, as if such party. party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced.

3432. SEO. 14. The court or judge before whom a writ of habeas corpus shall be Hearing to take returned, shall, immediately after the return thereof, proceed to hear and examine the place immediately after return, and such other matters as may be properly submitted to their hearing and con- return. sideration.

the return may

3433. SEC. 15. The party brought before the court or judge, on the return of the Facts stated in writ, may deny or controvert any of the material facts or matters set forth in the re- be controverted. turn, or except to the sufficiency thereof, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge.

3434. SEC. 16. Such court or judge shall thereupon proceed in a summary way to Court to hear hear such allegation and proof as may be produced against such imprisonment or de- proofs. tention, or in favor of the same, and to dispose of such party as the justice of the case may require.

attendance of

3435. SEC. 17. Such court or judge shall have full power and authority to require May compel and compel the attendance of witnesses, by process of subpoena and attachment; and witnesses. to do and perform all other acts and things necessary to a full and fair hearing and determination of the case.

3436. SEC. 18. If no legal cause be shown for such imprisonment or restraint, or When court may for the continuation thereof, such court or judge shall discharge such party from the discharge the custody or restraint under which he is held.

party.

be remanded.

3437. SEC. 19. It shall be the duty of such court or judge, if the time during which When party to such party may be legally detained in custody has not expired, to remand such party, if it shall appear that he is detained in custody:

First. By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or

Second. By virtue of the final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such judgment or decree.

3438. SEO. 20. If it appear on the return of the writ of habeas corpus, that the

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Discharge.
grounds of
7 Cal. 175.

7 Cal. 181.

Party not to be
discharged for
defect of form in

warrant.

Court may ex-
amine witnesses
and discharge or
hold to bail

19 Cal. 189.

Habeas corpus

for the purpose
of giving bail.

Recognizance

from person
brought up on
habeas corpus.

Person not enti

tled to discharge
or not giving
bail, to be
remanded.

Party in illegal
custody may be
committed to
legal custody.

Disposition of
party pending
proceedings on
the return.

Habeas corpus
not to be dis-

prisoner is in custody by virtue of process from any court of this State, or judge or officer thereof, such prisoner may be discharged in any one of the following cases, subject, however, to the restrictions of the last preceding section:

First. When the jurisdiction of such court or officer has been exceeded.

Second. When the imprisonment was at first lawful, yet by some act, omission, or event which has taken place afterwards, the party has become entitled to be discharged.

Third. When the process is defective in some matter of substance required by law, rendering such process void.

Fourth. When the process, though proper in form, has been issued in a case not allowed by law.

Fifth. When the person having the custody of the prisoner is not the person allowed by law to detain him.

Sixth. Where the process is not authorized by any judgment, order, or decree of any court, nor by any provision of law.

Seventh. Where a party has been committed on a criminal charge without reasonable or probable cause.

3439. SEC. 21. If any person shall be committed to prison, or be in custody of any officer on any criminal charge, by virtue of any warrant or commitment of a justice of the peace, such person shall not be discharged from such imprisonment or custody on the ground of any mere defect of form in such warrant or commitment.

3440. SEC. 22. If it shall appear to the court or judge, by affidavit, or upon hearing of the matter, or otherwise, or upon the inspection of the process or warrant of commitment, and such other papers in the proceedings as may be shown to such court or judge, that the party is guilty of a criminal offense, or ought not to be discharged, such court or judge, although the charge be defectively or unsubstantially set forth in such process or warrant of commitment, shall cause the complainant, or other necessary witnesses, to be subpoenaed to attend at such time as shall be ordered, to testify before such court or judge; and upon the examination, he shall discharge such prisoner, let him to bail if the offense be bailable, or recommit him to custody, as may be just and legal.

3441. SEC. 23. Whenever any person may be imprisoned or detained in custody on any criminal charge for want of bail, such person shall be entitled to a writ of habeas corpus for the purpose of giving bail, upon averring that fact in his petition, without alleging that he is illegally confined.

3442. SEC. 24. Any judge before whom any person who has been committed on a criminal charge may be brought on a writ of habeas corpus, if the same be bailable, may take a recognizance from such person, as in other cases; and shall file the same in the proper court without delay.

3443. SEO. 25. If any party brought before the court or judge, on the return of the writ, be not entitled to his discharge, and be not bailed, where such bail is allowable, such court or judge shall remand him to custody, or place him under the restraint from which he was taken, if the person under whose custody or restraint he was, be legally entitled thereto.

3444. SEC. 26. In cases where any party is held under illegal restraint or custody, or any other person is entitled to the restraint or custody of such party, such judge or court may order such party to be committed to the restraint or custody of such person as is by law entitled thereto.

3445. SEC. 27. Until judgment be given on the return, the court or judge before whom any party may be brought on such writ, may commit him or her to the custody of the sheriff of the county; or place him or her in such case, or under such custody, as his or her age or circumstances may require.

3446. SEC. 28. No writ of habeas corpus shall be dissolved for defect of form, if it solved for defect sufficiently appear therefrom in whose custody or under whose restraint the party imprisoned or restrained is, the officer or person detaining him, and the court or judge before whom he is to be brought.

of form.

Imprisonment
after discharge.

3447. SEC. 29. No person who has been discharged by the order of the court or judge upon habeas corpus, issued pursuant to the provisions of this act, shall be again imprisoned, restrained or kept in custody for the same cause except in the following

cases:

First. If he shall have been discharged from custody on a criminal charge, and be afterwards committed for the same offense, by legal order or process.

Second. If after a discharge for defect of proof, or for any defect of the process,

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