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5. A person once arrested and discharged, cannot be re-arrested in the same action. McGilvery v. Morehead, 2 Cal. 607.
6. The judgment should find the facts of the fraud upon which the defendant can only be imprisoned on final process, or his bail become forfeit. Matoon v. Eder, 6 ib. 57; Davis v. Robinson, 10 ib. 411.
7. The provision of arrest for willful injury to person or character, is in conflict with the constitution. Er parte Prader, 6 ib. 239.
8. 2d. An allegation that the money was collected and received by the defendant, as the agent or attorney in fact of the plaintiff, is in the alternative form, and cannot be permitted. The character or capacity must be averred in direct and positive terms, or the charge must fall. Porter v. Hermann, 8 ib. 619.
9. 4th. Fraud may consist in the misrepresentation or concealment of material facts, and may be inferred from the circumstances and conditions of the parties contracting. Belden v. Henriquez, ib. 87.
10. The word “ obligation ” is here used equivalent to “ legal liability or legal duty.” Crandall v. Ryan, 15 How. Pr. 48; 5 Abbott, 162.
11. A person who purchases goods upon credit obtained upon the faith of his representations that he is solvent, when in fact he is not solvent, is not liable to arrest in an action therefor, if he believed his representations were true at the time he made them. Birchell v. Straus, 8 Abbott, 53.
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 county judge.
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 information 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 county.
1. The affidavit must contain sufficient facts, and must not refer to the complaint for the matter, without setting forth sufficient of itself. McGilvery v. Morehead, 2 Cal. 607.
2. It is sufficient if the circumstances set forth in the affidavit would induce a reasonable belief that fraud was committed. Southworth v. Resing, 3 ib. 377.
3. An affidavit on information and belief, followed by an averment of the facts on which the belief is founded, also stated on information and belief, is sufficient. Matoon v. Eder, 6 Cal. 57.
4. Until the complaint is filed, and suit thereby commenced, no order of arrest can issue. Ex parte Cohen, ib. 318.
5. When the circumstances authorizing an arrest, occur subsequently to the filing of the complaint, application should be made to the court either to amend the original, or to file a supplemental complaint, so as to set forth the facts upon which execution against the person of the defendant will be asked, in the enforcement of the judgment sought. Davis v. Robinson, 10 Cal. 411.
6. Putting in and perfecting bail is a waiver of all defects in the affidavit. Stewart v. Howard, 15 Barb. 26.
7. In the affidavit upon which an order of arrest is to be founded, two things must be made to appear ; that a sufficient cause of action exists, and that it is among those specified in section seventy-three. It is not sufficient for a party to state that "his case is one of those mentioned in section seventy-three.” He must state the facts. Pindar v. Black, 4 How. Pr. 95.
8. In an affidavit for the arrest of the defendant for fraudulently obtaining goods, the facts within the knowledge of the plaintiff must be stated positively. What is stated on information, should be set out particularly, and good reasons given why a positive statement cannot be procured. Whitlock v. Roth, 5 ib. 143.
9. It is not necessary to state in the affidavit for an arrest, that a summons has been issued. Conklin v. Dutcher, 5 ib. 386.
10. The affidavit must state the facts and circumstances to establish the grounds of the application for the arrest; stating the single fact that the defendant intends to depart from the state with intent to defraud his creditors, is not sufficient legal evidence. Furman v. Walter, 13 ib. 348.
11. The affidavits presented must make out a prima facie case, for the arrest. An affidavit upon information and belief is clearly insufficient, unless the quality and means of the information are set forth, to enable the judge to decide whether the belief is well founded. Crandall v. Bryan, 15 ib. 48.
12. Where the right to arrest the defendant is derived from the nature of the action, e. g., in an action for embezzlement, the defendant will not be allowed upon a motion to discharge from arrest, affidavits to show that there is no cause of action. Geller v. Seiras, 4 Abbott, 103.
13. Where an order of arrest is granted on plaintiff's own affidavit, and a discharge is moved for solely on the original papers, the affidavit of plaintiff being uncontradicted is to be taken as true ; but it is to be strictly construed against plaintiff. The defendant was discharged from arrest on the ground that the allegations of the plaintiff's affidavit on which alone the arrest was ordered, were insufficient to establish an intent on the part of the defendant to defraud his creditors. Hathorne v. Hall, ib. 227.
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 to 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 and householder, or freeholder, within the state, 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.
See section 650.
1. When a foreign state is a plaintiff, an undertaking accompanying an order of arrest, signed and acknowledged by its resident minister on the part of the plaintiff, is a valid undertaking within the provisions of the code. Republic of Mexico v. Arrangoiz, 5 Duer, 634.
2. A defective undertaking may be allowed to be amended, on motion to discharge from arrest. Bellinger v. Gardner, 2 Abbott, 441.
3. The undertaking for an arrest need not be executed by the plaintiff personally. Askins v. Hearns, 3 ib. 184.
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, forth with 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
See section 210, 3d.
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 the copy of the affidavit; and also, if desired, a copy of the order of arrest.
79. The sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged by law.
1. The arrest before judgment is only intended to secure the presence of the defend. ant until final judgment. Davis v. Robinson, 10 Cal. 411.
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.
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.
See section 650.
1. The sheriff is bound to take bail provided they are sufficient. If he refuses, he is liable. Richards v. Porter, 7 John. 137; Dash v. Van Kleeck, ib. 477.
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.
1. Where a party offered to surrender himself in discharge of his sureties, held to be a good surrender, and a discharge of the sureties from all liability. Babb v. Oakley, 5 Cal. 93.
2. The 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 against him, unless the plaintiff takes such measures as would authorize the officer to hold defendant in custody. A surrender within ten days after execution, is a sufficient compliance with the statute. Allen v. Breslauer, 8 ib. 552.
3. A judgment by default will not authorize the entry of a judgment on the allegations of fraud, if the summons fail to apprise the defendant of this fact. Porter v. Hermann, ib. 619.
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, endorsed 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 their undertaking, and be bound to pay the amount of the judgment within ten days thereafter.
1. The authority to arrest need not be signed by all the bail. The authority of some is good. Ex parte Taylor, 7 How. Pr. 212.
84. (1854.*] If the bail neglect or refuse to pay the judgment
Statutes of 1854, 84.
within ten days after they are finally charged, an action may be commenced against such bail for the amount of such original judgment.
1. Sections 83 and 84 fully discussed. Matoon v. Eder, 6 Cal. 57.
2. Bail are estopped from controverting the right of plaintiff to arrest. Gregory v. Levy, 12 Barb. 610; 7 How. Pr. 37.
85. The bail shall also be exonerated by the death of the defendant, or his imprisonment in a state prison ; or by his legal discharge from the obligation to render himself amenable to the process.
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 endorsed 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.
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 places of residence and occupations of the latter) before a judge of the court or county judge, or county clerk, at a specified time and place; the time to be not less than five, nor more than ten days thereafter, except by consent of parties. In case other bail be given, there shall be a new undertaking
88. The qualifications of bail shall be as follows:
1st. Each of them shall be a resident, and householder, or freeholder, within the county.
2d. 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