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CHAPTER II.

TITLE V.

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. ARRESTS AND BAIL.

SEC. 72. No person shall be arrested in a civil action, except as prescribed by this act.

SEC. 73. The defendant may be arrested, as hereinafter prescribed, in the following cases, arising after the passage of this act: First: In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the territory, with intent to defraud his creditors, or when the action is for willful injury to person, to character, or to property, knowing the property to belong to another. Second. In an action for a fine or penalty, or on a promise to marry, or for money or property embezzled, or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such; or by any other person in a fiduciary capacity, or for misconduct or neglect in office or in a professional employment. Third. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff. Fourth. When the defendant has been guilty of fraud in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention or conversion of which the action is brought. Fifth. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; but no female shall be arrested in any action, except for an injury to person, character, or property.

SEC. 74. An order for the arrest of the defendant shall be obtained from a judge of the court in which the action is brought, or from a probate judge.

SEC. 75. The order may be made whenever it shall appear to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section seventy-three. The affidavit shall be either positive or upon information and belief; and, when upon in

formation and belief, it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the clerk of the court in which such suit is pending.

SEC. 76. Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs and charges that may be awarded the defendant, and all damages which he may sustain by reason of the arrest-not exceeding the sum specified in the undertaking, which shall be at least five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident within the territory, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the

court.

SEC. 77. The order may be made to accompany the summons, or any time afterwards before judgment. It shall require the sheriff of the county where the defendant may be found forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time therein mentioned, to the clerk of the court in which the action is pending.

SEC. 78. The order of arrest, with a copy of the affidavit upon which it is made, shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy of the affidavit, and, also, if desired, a copy of the order of arrest.

SEC. 79. The sheriff shall execute the order by arresting the defendant, and keeping him in custody until discharged by law.

SEC. 80. The defendant, at any time before execution, shall be discharged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest, as provided in this chapter.

SEC. 81. The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient sureties, stating their places of residence and occupations, to the effect that they are bound in the amount mentioned in the order of arrest, that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action.

SEC. 82. At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration; or he may surrender himself to the sheriff of the county where he was arrested.

SEC. 83. For the purpose of surrendering the defendant, the

bail at any time or place before they are finally charged, may themselves arrest him; or by a written authority, indorsed on a certified copy of the undertaking, may empower the sheriff to do so. Upon the arrest of the defendant by the sheriff, or upon his delivery to the sheriff by the bail, or upon his own surrender, the bail shall be exonerated; provided, such arrest, delivery, or surrender, take place before the expiration of ten days after judgment; but if such arrest, delivery, or surrender, be not made within ten days after judgment, the bail shall be finally charged on the undertaking, and be bound to pay the amount of judgment within ten days thereafter.

SEC. 84. If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of such original judg

ment.

SEC. 85. The bail shall be exonerated by the death of the defendant, or his imprisonment in a territorial prison; or by his legal discharge from the obligation to render himself amenable to the process.

SEC. 86. Within the time limited for that purpose, the sheriff shall file the order of arrest in the office of the clerk of the court in which the action is pending, with his return indorsed thereon; together with a copy of the undertaking of the bail. The original undertaking he shall retain in his possession until filed, as herein provided. The plaintiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted them, and the sheriff shall be exonerated from liability. If no notice be served within ten days, the original undertaking shall be filed with the clerk of the court.

SEC. 87. Within five days after the receipt of notice, the sheriff or defendant may give to the plaintiff, or his attorney, notice of the justification of the same, or other bail, (specifying the place of residence and occupation of the latter) before a judge of the court, or probate judge, or county clerk, at a specified time and place; the time to be not less than five, nor more than ten days thereafter, cept by consent of parties. In case other bail be given, there shall be a new undertaking. But no attorney or counsellor at law, sheriff, clerk of any court, or other officer of any court, shall be permitted to become bail in any action.

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SEC. 88. The qualifications of bail shall be as follows: First. Each of them shall be a resident within the county. Second. Each shall be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this chapter, over and above all his debts and liabilities, exclusive of property exempt from execution; but the judge, or county clerk, on justification, may allow more than two sureties to justify severally, in.

amounts less than that expressed in the order, if the whole justifica tion be equivalent to that of two sufficient bail.

SEC. 89. For the purpose of justification, each of the bail shall attend before the judge, or county clerk, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or county clerk, in his discretion, may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff.

SEC. 90. If the judge, or clerk, find the bail sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the sheriff shall thereupon be exonerated from liability.

SEC. 91. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned. In case the amount of the bail be reduced, as provided in this act, the defendant may deposit such amount instead of giving bail. In either case, the sheriff shall give the defendant a certificate of the deposit made, and the defendant shall be discharged out of custody.

SEC. 92. The sheriff shall, immediately after the deposit, pay the same into court, and take from the clerk receiving the same two certificates of such payment-the one of which he shall deliver or transmit to the plaintiff, or his attorney, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited, as in other cases of delinquency.

SEC. 93. If money be deposited, as provided in the last two sections, bail may be given, and may justify upon notice, at any time before judgment; and on the filing of the undertaking and justification with the clerk, the money deposited shall be refunded by such clerk to the defendant.

SEC. 94. Where money shall have been deposited, if it remain on deposit at the time of the recovery of a judgment in favor of the plaintiff, the clerk shall, under the direction of the court, apply the same in satisfaction thereof, and, after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall, under like direction of the court, refund to him the whole sum deposited and remaining unapplied.

SEC. 95. If, after being arrested, the defendant escape or be rescued, the sheriff shall himself be liable as bail; but he may discharge himself from such liability by the giving and justification of bail, at any time before judgment.

SEC. 96. If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the same proceedings may be had on his official

bond, for the recovery of the whole or any deficiency, as in other cases of delinquency.

SEC. 97. A defendant arrested may, at any time before justification of bail, apply to the judge who made the order, or the court in which the action is pending, upon reasonable notice to the plaintiff, to vacate the order of arrest, or to reduce the amount of bail. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made.

SEC. 98. If, upon such application, it shall satisfactorily appear that there was not sufficient cause for arrest, the order shall be vacated; or, if it satisfactorily appear that the bail was fixed too high, the amount shall be reduced.

CHAPTER II.

CLAIMS FOR DELIVERY OF PERSONAL PROPERTY.

SEC. 99. The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him, as provided in this act.

SEC. 100. Where a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing: First. That the plaintiff is the owner of the property claimed, (particularly describing it) or is lawfully entitled to the possession thereof. Second. That the property is wrongfully detained by the defendant. Third. The alleged cause for the detention thereof, according to his best knowledge, information, and belief. Fourth. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution, or an attachment against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure. Fifth. The actual value of the property.

SEC. 101. The plaintiff or his attorney may thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant.

SEC. 102. Upon a receipt of the affidavit and notice, with a written uudertaking executed by two or more sufficient sureties, approved by the sheriff, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for

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