Amended 15778-41. Order for arrest, by whom made. Affidavit to obtain order, what 8. FRAUDULENT INTENT.-Subd. 5.-Proof of an actual intent to defraud is necessary.-Pacific Mutual Ins. Co. vs. Machado, 16 Abb., p. 451; Caldwell's Case, 13 Abb., p. 405; Krauth vs. Vail, 10 Abb., p. 139. 480. (§ 74.) An order for the arrest of the defendant must be obtained from a Judge of the Court in which the action is brought, or from a County Judge. NOTE.-Granting an order of arrest is discretionary with the Judge.-Knickerbocker L. Ins. Co. vs. Ecclesine, 6 Abb. (N. S.), p. 9; Davis vs. Scott, 15 Abb., p. 127; Lapeons vs. Hart, 9 How. Pr., p. 541. 481. (§ 75.) The order may be made whenever it to contain appears 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 479. The affidavit must be either positive or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit must be filed with the Clerk of the county. NOTE.-1. AFFIDAVIT.-The affidavit must show the facts relied upon by positive averment; and it is not sufficient to refer to the complaint, or to any other paper, to show what the affidavit ought itself to disclose. McGilvery vs. Moorhead, 2 Cal., p. 607. To entitle a party to the remedy of arrest, it is not necessary to show positively the commission of a fraud. It is sufficient if the circumstances detailed would induce a reasonable belief that a fraud was intended.—Southworth vs. Resing, 3 Cal., p. 377. An affidavit for arrest made on information and belief that the defendant has been guilty of fraud in contracting the debt, or in endeavoring to prevent its collection, in the terms required by statute, and followed by an averment of the facts on which the belief is founded, also stated on information and belief, is sufficient.-Matoon vs. Eder, 6 Cal., p. 57; City Bank vs. Lumley, 28 How., p. 397; Blason vs. Bruno, 21 How., p. 112; 12 Abb., p. 265; 33 Barb., p. 520; Cook vs. Roach, 21 How., p. 152; Peel vs. Elliott, 16 How., p. 481. Insufficiency of the affidavit on which the writ of arrest issues cannot be set up in defense by third parties, nor by the defendant Amended 1873-4. himself after judgment.-Matoon vs. Eder, 6 Cal., p. 57. 2. ORDER OF ARREST.-The order of arrest is only an intermediate remedy or process to secure the presence of the party until final judgment, and the facts on which it is based must be affirmatively found, and the fraud stated in the judgment, in order to authorize an arrest on final process.-Matoon vs. Eder, 6 Cal., p. 57. It is best to award an arrest even in cases of doubt, for the defendant is protected by his bond from abuse by the process, without which process the plaintiff may be remediless.-Southworth vs. Resing, 3 Cal., p. 377; see, also, Davis vs. Robinson, 10 Cal., p. 411. 482. (§ 76.) Before making the order, the Judge must 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 to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least five hundred dollars. The undertaking must be filed with the Clerk of the Court. Bosw., p. NOTE. The form of affidavit of the sureties is 483. (§ 77.) The order may be made at the time of the issuing of the summons, or any time afterwards before judgment. It must require the Sheriff of the county where the defendant may be found, forthwith Security by plaintiff be- Order, when its form. Affidavit and order ered to the 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 pend ing. NOTE.-1. "BEFORE JUDGMENT."-These terms mean "the final determination of the rights of the parties in the action." Although a judgment by default has been taken, founded upon allegations of fraud, and the defendant let in to defend the judgment standing as security, yet he may be arrested and held to bail in the action.--Union Bank vs. Mott, 8 Abb., p. 150; Mott vs. Union Bank, 35 How., p. 332; 38 N. Y., p. 18; 4 Abb. (N. S.), p. 270. 2. FORM OF ORDER.-There is but one form under the Code, and every order must require the officer to arrest the defendant and hold him to bail in a specificd sum.-Tracy vs. Veeder, 35 How., p. 209; 5 Barb., p. 70; but see Elston vs. Potter, 9 Bosw., p. 635; Sherlock vs. Sherlock, 7 Abb. (N. S.), p. 22. 3. RETURN.-If the order direct the return within "five days after the arrest of the defendant," it is sufficient. Continental Bank vs. De Mott, Bosw., p. 696. If the order is made returnable on Sunday, the irregularity may be remedied either by waiver, as the putting in of bail (Wright vs. Jeffrey, 5 Cow., p. 15), or by amendment.-Stone vs. Martin, 2 Denio, p. 185. 484. ($ 78.) The order of arrest, with a copy of to be deliv- the affidavit upon which it is made, must be delivered Sheriff, and to the Sheriff, who, upon arresting the defendant, must defendant. deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. copy to Arrest, how made. NOTE.-If the copies are not delivered by the Sheriff, upon making the arrest, it is an irregularity only, and will not entitle the defendant to a discharge.--Barker vs. Cook, 25 How., p. 190; 16 Abb., p. 83; Courter vs. McNamara, 9 How., p. 255; Keeler vs. Belts, 3 Code R., p. 183. An omission in the copy of the affidavit served, of the jurat and signature of the party, does not affect the validity of the order.-Barker vs. Cook, 25 How., p. 190; 16 Abb., p. 83; 40 Barb., p. 254. 485. (§ 79.) The Sheriff must execute the order by arresting the defendant and keeping him in custody until discharged by law. to be on bail or 486. (§ 80.) The defendant, at any time before Defendant execution, must be discharged from the arrest, either discharged upon giving bail or upon depositing the amount men- deposit. tioned in the order of arrest. NOTE.-1. RELEASE.-The attorney for plaintiff may consent to the release of the defendant; but such a release will not discharge the order, and the defendant may thereafter be arrested on final process.-Meech vs. Loomis, 28 How., p. 209; 14 Abb., p. 228. 2. SHERIFF MUST ACCEPT BAIL.-The defendant is entitled to his discharge upon tendering bond, with sufficient sureties. A refusal to accept such bond renders the Sheriff liable to an action.-Richards vs. Porter, 7 Johns., p. 137; Posterne vs. Hanson, 2 Saund., p. 59; Smith vs. Hull, 2 Mod., p. 32. given. 487. (§ 81.) The defendant may give bail by Bail, how causing a written undertaking to be executed by two or more sufficient sureties, to the effect that they are bound in the amount mentioned in the order of arrest, that the defendant will 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. NOTE.-An officer making the arrest can only take the security prescribed by statute; but the party at whose suit the arrest is made may take any security he pleases.-Winter vs. Kinney, 1 N. Y., p. 365; Decker vs. Judson, 16 N. Y., p. 439. of 488. (§ 82.) At any time before judgment, or Surrender within ten days thereafter, the bail may surrender the defendant. defendant in their exoneration; or he may surrender himself to the Sheriff of the county where he was arrested. NOTE.-Sureties on the bail bond of a defendant, arrested in a civil action, are not bound to surrender the defendant within ten days after judgment, unless the plaintiff takes such measures as would authorize the officer to hold defendant in custody.-Allen vs. Breslauer, 8 Cal., p. 552. A surrender, within ten Same. Bail, how proceeded against. days after execution, is a compliance with the statute. Id. A portion of the bail may make the surrender.Matter of Taylor, 7 How., p. 212. The offer of a party to surrender himself in discharge of his sureties, was held to be a good surrender.-Babb vs. Oakley, 5 Cal., p. 93. Where the judgment will not warrant a writ of ca. sa. to be issued under it, the bail will not be charged for neglecting to surrender the judgment debtor.-Matoon vs. Eder, 6 Cal., p. 57. 489. ($83.) For the purpose of surrendering the defendant, the bail, at any time or place before they are finally charged, may themselves arrest, or, by a written authority indorsed on a certified copy of the undertaking, may empower the Sheriff to do so. Upon the arrest of defendant by the Sheriff, or upon his delivery to the Sheriff by the bail, or upon his own. surrender, the bail are exonerated, if 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 are finally charged on their undertaking, and bound to pay the amount of the judgment within ten days thereafter. NOTE. It was in Seaver vs. Genner, 10 Abb., p. 256, held, that where the sureties failed to justify, but the defendant had been released, the Sheriff became bail, and might surrender the defendant by rearresting him. See, also, Sartos vs. Merceques, 9 How., p. 188. 490. ($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 the original judgment. NOTE.-Matoon vs. Eder, 6 Cal., p. 57; Otis vs. Wakeman, 1 Hill, p. 604. In an action against bail whose liability is fixed, they cannot show either in bar or mitigation that before the recovery of judgment against their principal he was and since has been insolvent.-Levy vs. Nicholas, 19 Abb., p. 282; 1 Rob., p. 614; Metcalf vs. Stryker, 10 Abb., p. 12; 31 Barb., p. 62. |