in Pleadings as a general court takes notice judicially. It is not necessary to state a pleading what the law will presume. rule should not be hypothetical, or in the alternative; and allegations in a pleading should not be by way of recital, but they should be positive in their form. It is a general rule that if there be an exception in the general clause of a written instrument, the party pleading must show that his adversary is not within the exception, but a proviso in the instrument need not be noticed by such pleader, but it must be pleaded by the opposite party. A contract or instrument in writing may be set out in the words of the contract or instrument, or pleaded according to its legal effect. When the right to recover judgment depends on the non-performance of an act by the opposite party, such non-performance must be alleged; when the performance of a contract, or the full performance thereof, is prevented by the acts of the opposite party, such prevention should be alleged; and when the performance or the full performance of a contract is prevented by acts over which the party had no control, and it be material in an action that such prevention be shown in evidence, it should be alleged. A party to an action is not required to state matters which would more properly come from the other side." In California, actions for the recovery of, quieting title to, or for the enforcement of liens upon real estate, must be commenced in the county in which the real estate or some part thereof, affected by such actions, is situated; and in such actions, an allegation showing the counties or county in which such real estate is situated, is material. 4. Stephens' Pleadings 346. 6. Stephens' Pleadings 387, 388. 7. Stephens' Pleadings 443. 8. Gould Pleadings Sec. 138. 9. Stephens' Pleadings 350. CHAPTER XII. OF PROVISIONAL REMEDIES. There are actions in which at or after the commencement of the action, the plaintiff is entitled by statute to what are called provisional remedies. ARREST AND BAIL. In California the plaintiff is entitled to the provisional remedy of arrest and bail, in the following cases, namely: I. In an action for the recovery of money or damages in a cause of action arising upon a contract, express or implied, when the defendant is about to depart from the state with intent to defraud his creditors; 2. In 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; 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, to prevent its being found or taken by the sheriff; 4. When the defendant has been guilty of a fraud in contracting the debt, or in 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 moved or disposed of his property, or is about to do so, with intent to defraud his creditors.1 1. Code of Civil Procedure, Sec. 479. The order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought, and can only be obtained on an affidavit, showing that a sufficient cause of action exists, and that the case is one of the cases above mentioned. This affidavit must be positive, or upon information and belief, and when on information and belief, it must state the facts upon which the information and belief are founded, and if the order of arrest be made, this affidavit must be filed with the clerk of the court. But before making the order, the judge must require a written undertaking on the part of the plaintiff with sureties in an amount fixed by the judge, which must be at least five hundred dollars, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking, and the undertaking must be filed with the clerk of the court. Such order of arrest may be made at the time of the issuance of the summons or at any time afterwards before judgment, and it must require the sheriff of the county where the defendant may be found, forthwith to arrest him and hold him to bail in a sum specified in the order, and to return the order at the time therein mentioned to the clerk of the court in which the action is pending.2 The defendant after his arrest and at any time before execution, must be discharged from the arrest, either upon giving bail or upon depositing the amount mentioned in the order of arrest. If bail be given, the sheriff, must within the time limited for that purpose, 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 plaintiff within ten days thereafter, may serve on the sheriff, a notice that he does not accept the bail, and within five days after the receipt of the notice, the sheriff, or the defendant, may give notice of the justification of the sureties to the same, or other bail (specifying the places of residence and occupations of the latter) before a judge of the court, or county clerk, at a spe 2. Code of Civil Procedure, Secs. 480-83. cified time and place, which must not be less than five nor more than ten days thereafter, except by consent of parties. The defendant after he is arrested, may, at any time, before the trial of the action, or if there be no trial, before judgment, apply to the judge who made the order of arrest, or the court in which the action is pending, upon reasonable notice, to vacate the order of arrest or to reduce the amount of the 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; and if on the hearing of the application it appears that there was not sufficient cause for the arrest, the order must be vacated, or if it appears that the bail was fixed too high, the amount must be reduced.3 CLAIM AND DELIVERY. In California, the provisional remedy of claim and delivery is allowed by statute in an action to recover the possession of personal property. At the time of issuing the summons in an action for the recovery of personal property, or at any time thereafter, before answer, the plaintiff may avail himself of this provisional remedy. In order to avail himself of such remedy an affidavit must be made by the plaintiff or by some one in his behalf, showing: I That the plaintiff is the owner of the property claimed (particularly describing it) or is entitled to the possession thereof. That the property is wrongfully detained by the defend ant; 2. 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief. 4. That it has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or an attachment against the plaintiff, or if so seized, that it is by statute exempt from such seizure; 5. The actual value of the property. By an indorsement, in writing, upon this affidavit, the plaintiff or the attorney for the plaintiff, may require the sheriff of the county where the property claimed may be, to take the same from the defendant. 3. Code of Civil Procedure, Sec. 484 et seq. Upon the receipt of the affidavit, and the notice or requirement indorsed thereon, with a written undertaking 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 a return of the property to the defendant, if the return thereof be adjudged, and for the payment to him of such sum as may for any cause be recoverd against the plaintiff, the sheriff must forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. The sheriff must, without delay, serve on the defendant or his agent, from whose possession the property is taken, if they can be found, a copy of the affidavit, notice or requirement, and undertaking; if they cannot be found, then, by leaving them at the usual place of abode of either, with a person of suitable age and discretion, or if they have no usual place of abode, then by putting them in the nearest postoffice, directed to the defendant. The defendant may, within two days after service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties to the undertaking; and if he does not so except, he may at any time before the delivery of the property to the defendant require a return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property as stated in the affidavit of plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged and for the payment to him of such sum as may for any cause be recovered against the defendant; such return must be so required within five days after the taking of the property and the service of the affidavit and notice or requirement endorsed thereon, upon the defendant. If the defendant excepts to the sureties to the undertaking, given on behalf of the plaintiff, he is not entitled to give an undertaking for the return of the property. Should any person other than the defendant or his agent claim the property and make affidavit of his title thereto or right of possession thereof stating the grounds of such title or right, and serve the same upon the sheriff, the sheriff is not bound to keep the property, or deliver it to the plaintiff unless the plain |