5. When the defendant has removed or disposed of his property or is about to do so with the intent to defraud his creditors. But no female shall be arrested in any action except for wilful injury to person, character or property. i Oregon, § 260. No person shall be arrested in an action at law, except as provided in this section. The defendant may be arrested in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising out of contract, when the defendant is not a resident of the state, or is about to remove therefrom, or when the action is for an injury to person or character, or for injuring or wrongfully taking, detaining, or converting property. 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or by an attorney, or by an officer or agent of a corporation in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. Subs. 3, 4, 5 and final paragraph, same as Alaska C. C. P. § 99. or 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or for property embezzled fraudulently misapplied, by a public officer, or by an attorney, solicitor, or counselor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. [Remainder same as North Dakota 6890, from and including sub. 3 to the end.] (Re-enacted Feb. 26, 1907, Sess. Laws 1907, pp. 165, 178.) k Utah, § 3010. No person shall be arrested in a civil action except an absconding debtor. 1 Washington, § 749. The defendant may be arrested in the following cases: 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is a non-resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property; 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or by an attorney, or by an officer or agent of a corporation in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office or in a professional employment; 3. 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, and with intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof; 4. When the defendant has been guilty of a 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; 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; 6. When the action is to prevent threatened injury to or destruction of property, in which the party bringing the action has some right, interest, or title, which will be impaired or destroyed by such injury or destruction, and the danger is imminent that such property will be destroyed or its value impaired, to the injury of the plaintiff; 7. On the final judgment or order of any court in this state, while the same remains in force, when the defendant, having no property subject to execution, or not sufficient to satisfy such judgment, has money which he ought to apply in payment upon such judgment, which he refuses to apply, with intent to defraud the plaintiff, or when he refuses to comply with a legal order of the court, with intent to defraud the plaintiff; or when any one or more of the causes exist for which an arrest is allowed in the first class of cases mentioned in this section. m Wisconsin, § 2689. The defendant may be arrested as hereinafter prescribed in the following cases: 1. In an action for the recovery of damages on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for seduction, or for criminal conversation, or for injuring, or for wrongfully taking, detaining or converting property, and in actions to recover damages for the value of property obtained by the defendant under false pretenses or false tokens. 2. In an action for fine or penalty, or for money received, or for property embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counsel, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker or any person in a fiduciary capacity, or for any misconduct or neglect in office or in a professional employment. 3. In an action to recover possession of personal property unjustly detained where the property or any part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff. But no female shall be arrested in any action except for a wilful injury to person, character or property. n Wyoming, § 3959. An order for the arrest of the defendant shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, made before a judge or clerk of any court of the state, or a justice of the peace, stating the nature of the plaintiff's claim, that it is just, and the amount thereof, as nearly as may be, and establishing one or more of the following particulars: 1. That the defendant has removed, or begun to remove, any of his property out of the jurisdiction of the court with intent to defraud his creditors. 2. That he has begun to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. 3. That he has property, or rights of action, which he fraudulently conceals. 4. That he has assigned, removed, disposed of, or begun to dispose of, his property, or a part thereof, with intent to defraud his creditors. 5. That he fraudulently contracted the debt, or incurred the obligation, for which suit is about to be or has been brought. 6. That the money, or other valuable thing, for which a recovery is sought in the action, was lost by playing any game, or by means of a bet or wager. The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of such particulars. Proceedings against bail in civil arrest. California, § 490. 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. (Kerr's Cyc. Code Civ. Proc.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: с ■ Alaska, Ann. Codes 1907, C. C. P. (Carter), § 105. b Arkansas, Dig. of Stats. 1904 (Kirby), § 327. Idaho, Rev. Codes 1909, § 4252. Kansas, Gen. Stats. 1905 (Dassler), § 5049. Montana, Rev. Codes 1907, § 6607. Nevada. Jury's Pl.-103. Comp. Laws Ann. 1900 (Cutting), § 3179. d North Dakota, Rev. Codes 1905, § 6901. • Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot.), § 266. South Dakota, Rev. Codes 1903, C. C. P. § 168. Utah, Comp. Laws 1907, § 3021. & Washington, Code 1910 (Rem. & Bal.), § 761. Wisconsin, Stats. 1898 (San. & Ber. Ann.), § 2710. 1 Wyoming, Rev. Stats. 1899, § 3978. a Alaska, C. C. P. § 105. In case of the failure to comply with the undertaking, the bail may be proceeded against by action only. b Arkansas, § 327. The bail can be proceeded against in a separate action only. c Kansas, § 5049. The liability of the bail shall be fixed in the manner provided in section 165, for fixing the liability of the sheriff as bail, and the bail can be proceeded against in an action only. (Re-enacted Mch. 12, 1909, Laws 1909, p. 329, C. C. P. § 167.) § 416. REFERENCES TO FORMS. d North Dakota, § 6901, same as Alaska C. C. P. § 105. e Oregon, § 266, same as Alaska, C. C. P. § 105. f South Dakota, C. C. P. § 168, same as Alaska C. C. P. § 105. (Re-enacted Feb. 26, 1907, Sess. Laws 1907, pp. 165, 180.) g Washington, § 761, substantially same as Alaska C. C. P. § 105. h Wisconsin, § 2710, substantially same as Alaska C. C. P. § 105. i Wyoming, § 3978, substantially same as Kansas § 5049. Affidavit to obtain order of arrest, ch. XXIII, form No. 217. Undertaking and security by plaintiff before order of arrest is made, ch. XXIII, form No. 218. Justification of sureties on undertaking, ch. XXIII, form No. 218. Order for arrest, ch. XXIII, form No. 219. Sheriff's return to order of arrest, ch. XXIII, form No. 220. For defense of justification of arrest under civil process in action for false imprisonment, see ch. XXIII, form No. 210, and exhibits thereto, forms Nos. 211-220. For actions upon bonds and undertakings, see ch. C, forms 822-833. § 417. ANNOTATIONS. Constitutionality of provisions.-Provisions of the statute providing for arrest in civil cases are not violative of the constitution: University of California v. Bernard, 57 Cal. 212; Dusy v. Helm, 59 Cal. 188, 191. Right governed by law of place of action. The right to arrest a defendant in a civil action is a part of the remedy afforded the plaintiff, and the right exists according to the law of the place where the action is instituted, without any regard to the domicile of the parties, the origin of the right, or the country of the act: Ex parte Howitz, 2 Cal. App. 752, 753, 84 Pac. 229. Issue of fraud essential.-No judgment of imprisonment can be rendered in proceedings for civil arrest, unless the issue of fraud is presented by the pleadings: Matoon v. Eder, 6 Cal. 57, 58, (upon bail bond given by the defendant who had been arrested on mesne process in an action for debt where no fraud was alleged in the complaint); Davis v. Robinson, 10 Cal. 411, 412, (for civil arrest on order issued where the affidavit alone charged fraud). It has ever been held that the complaint must charge fraud before mesne process for arrest may be issued: Ex parte Howitz, 2 Cal. App. 752, 757, 84 Pac. 229, (proceeding for civil arrest-affidavit referring to and adopting averments in the complaint). Complaint as aider of affidavit.-Where a copy of a complaint is annexed to the affidavit, and the affiant makes oath that the allegations contained therein are true, this is held to be in sufficient compliance with the requirements of the law that it must appear from the affidavit that the cause exists: Ex parte Howitz, 2 Cal. App. 752, 756, 84 Pac. 229, (proceedings for civil arrest.) CHAPTER CXXII. Claim and Delivery of Personal Property.-Replevin. Page § 418. Code provisions 1624 ..... § 419. Affidavits, undertakings, etc. Form No. 985. Affidavit for claim and delivery.. 1633 1633 1633 1633 .... Form No. 988. Approval of undertaking by sheriff... 1634 1634 Form No. 990. Undertaking on behalf of plaintiff, given on 1634 § 421. Complaints [or petitions] .... signor Form No. 991. Undertaking to indemnify sheriff. § 420. Verdicts, judgments, and executions.... Form No. 992. Verdict for the plaintiff. (In general.).. Form No. 997. For claim and delivery of personal property... Form No. 999. To recover property severed from realty.... Form No. 1002. Defense that title is in another than plaintiff.. Form No. 1005. Defense by common carrier, claiming lien for services. In replevin, by the United States Form No. 1006. Defense of lien for services for manufacturing 1644 Form No. 1007. Defense by sheriff.-Justification of taking ...... Form No. 1008. Defenses-(1) that foreign corporation plaint- 1644 1646 1648 § 418. CODE PROVISIONS. Claim and delivery--Time of making claim. California, § 509. 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 chapter. (Kerr's Cyc. Code Civ. Proc.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Alaska, Ann. Codes 1907, C. C. P. (Carter), § 123. b Arizona, Rev. Stats. 1901, ¶ 3812. c Arkansas, Dig. of Stats. 1904 (Kirby), § 6853. & Colorado, Rev. Stats. 1908, C. C. P. § 85. e Hawaii, Rev. Laws 1905, § 2101. Idaho, Rev. Codes 1909, § 4271. flowa, Ann. Code 1897, § 4163. & Kansas, Gen. Stats. 1905 (Dassler), § 5058. h Minnesota, Rev. Laws 1905, § 4204. 1 Missouri, Ann. Stats. 1906, § 4463. Montana, Rev. Codes 1907, § 6622. 1 Nebraska, Comp. Stats. Ann. 1909, § 6723; Ann. Stats. 1909 (Cobbey), § 1152. Nevada, Comp. Laws Ann. 1900 (Cutting), § 3194. k New Mexico, Comp. Laws 1897, § 2685, sub-sec. 228. 1 North Dakota, Rev. Codes 1905, § 6917. m Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), § 4351; Comp. Laws 1909 (Snyder), § 5687. n Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot.), § 284. • South Dakota, Rev. Codes 1903, C. C. P. § 184. p Texas, Civ. Stats. 1897 (Sayles), Art. 4864. Utah, Comp. Laws 1907, § 3045. a Washington, Code 1910 (Rem. & Bal.), § 707. r Wisconsin, Stats. 1898 (San. & Ber. Ann.), § 2717. • Wyoming, Rev. Stats. 1899, § 4145. a Alaska, C. C. P. § 123. In an action to recover possession of personal property, the plaintiff, at any time after the action is commenced, and before judgment, may claim the immediate delivery of such property, as provided in this chapter. b Arizona, 3812. If the plaintiff claim in his complaint the possession of specific personal property, he may at the time of filing his complaint or at any other time afterwards, before the rendi tion of judgment in the cause, file his affidavit, or the affidavit of some other person in his behalf, showing: 1. That the plaintiff is the owner of the property claimed, sufficiently describing it, or is lawfully entitled to the possession thereof. 2. That it is wrongfully detained by the defendant. 3. The actual value thereof. 4. That the same has not been seized under any process, execution or attach |