TITLE V.

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS.

CHAPTER I.

ARREST AND BAIL.

Sec. 80. No person to be arrested except as prescribed by this act. Sec. 81. Cases in which defendant may be arrested.

Sec. 82. Order for arrest-by whom made.

Sec. 83. Affidavit to obtain order—what to contain.

Sec. 84. Security by plaintiff before order of arrest.
Sec. 85. Order-when made and its form.

Sec. 86. Affidavit and order to be delivered to the sheriff and copy to defendant.

Sec. 87. Arrest-how made.

Sec. 88. Defendant to be discharged on bail or deposit.

Sec. 89. Bail-how given.

Sec. 90-91. Surrender of defendant.

Sec. 92. Bail-how proceeded against.

Sec. 93. Bail—how exonerated.

Sec. 94. Delivery of undertaking to plaintiff, and its acceptance

or rejection by him.

Sec. 95. Notice of justification,
Sec. 96. Qualifications of bail.
Sec. 97. Justification of bail.
Sec. 98. Allowance of bail.

new undertaking, if other bail.

Sec. 99. Deposit of money with the sheriff.

Sec. 100. Payment of money in court by sheriff.

Sec. 101. Substituting bail for deposit.

Sec. 102. Money deposited-how applied or disposed of.
Sec. 103. Sheriff-when liable as bail, and his discharge from

liability.

Sec. 104. Proceedings on judgment against sheriff.

Sec. 105. Motion to vacate order of arrest or reduce bail; affi

davits on motion.

Sec. 106. When the order vacated or bail reduced.

Sec. 107. Person confined in jail to be discharged.

Sec. 108. Notice of application for discharge to be given to plaintiff

Sec. 109. Notice-when served.

Sec. 110. Person to be brought before the judge.

Sec. 111. Oath to be administered by judge.

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Sec. 112. Judge to issue order for discharge.

Sec. 113. Prisoner not discharged may apply again.
Sec. 114. Person exempt from second arrest, on same debt.
Sec. 115. Plaintiff may order prisoner discharged.

Sec. 80. No person shall be arrested in a civil action, except as prescribed in this act.

Sec. 81. 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 rising 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 wilful injury to person, to character, or to property, knowing the property to belong to another. Second. În an action for a fine or penalty, 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, or for a wilful violation of duty. Third. In an action to recover possession of personal property, unjustly obtained, 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.

Sec. 82. 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. 83. The order shall 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 eighty-one. Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with at least two sufficient sureties, to the effect that if the defendant recover judgment, or if the court shall finally decide that the plaintiff was not entitled to an order of arrest, 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 wrongful suing out of the order of arrest, not exceeding the sum specified in the undertaking, which shall be at least five hundred dollars.

Sec. 84. Each of the sureties shall annex to the undertaking

an affidavit that he is a resident and householder, or freeholder 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. 85. The order may be made to accompany the summons, or at 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. 86. 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. 87. The sheriff shall execute the order by arresting the defendant, and keeping him in custody until discharged by law: Provided, That the sheriff shall not be bound to keep such person under arrest more than twenty-four hours, unless the plaintiff advance each day the expense of keeping such person; which expense shall be taxed as costs in the action, and in no case shall be a charge against the county.

Sec. 88. 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. 89. 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. 90. 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. 91. 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;

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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.

Sec. 92. 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 judgment.

Sec. 93. The bail shall also 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. 94. 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.

Sec. 95. Within five days after 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 clerk thereof, or probate judge, 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.

Sec. 96. The qualifications of bail shall be as follows: First. Each of them shall be a resident and householder, or freeholder 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 clerk, on justification, may allow more than two sureties to justify severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

Sec. 97. For the purpose of justification, each of the bail shall attend before the judge or 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 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. 98. If the judge or clerk shall 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. 99. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this chapter, 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. 100. 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 de liver 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. 101. 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. 102. Where money shall have been deposited, if it remain on deposit at the time of 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 judg ment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall, under the direction of the court, refund to him the whole sum deposited and remaining unapplied.

Sec. 103. 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. 104. 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 proceeding may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency.

Sec. 105. 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.