TITLE VII. Provisional Remedies in Civil Actions. Chapter I. Arrest and Bail. II. Claim and Delivery of Personal Property. 479. Cases in which defendant may 493. Notice of justification. New be arrested. undertaking, if other bail. 480. Order for arrest, by whom 494. Qualifications of bail. 478. No person can be arrested in a civil action, except as prescribed in this code. 479. The defendant may be arrested, as hereinafter prescribed, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon 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 willful 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 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.-1873-304. 480. An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought.-1880-3. 481.-The order may be made whenever it 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 four hundred and seventy-nine. 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 court. -1873-305. 482. Before making the order, the judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be 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. The undertaking must be filed with the clerk of the court.-1873-305. 483. 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 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. 484. The order of arrest, with a copy of the affidavit upon which it is made, must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. 485. The sheriff must execute the order by arresting the defendant and keeping him in custody until discharged by law. 486. The defendant, at any time before execution, must be discharged from the arrest, either upon giving baiĺ or upon depositing the amount mentioned in the order of arrest. 487. The defendant may give bail by 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. 488. 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. 489. 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 ecrtified 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. 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. 491. The bail are 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. 492. Within the time limited for that purpose, the sheriff must 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 wtih a copy of the undertaking of the bail. The original undertaking he must 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 is deemed to have accepted them, and the sheriff is exonerated from liability. If no notice be served within ten days, the original undertaking must be filed with the clerk of the court. 493. 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 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 must be a new undertaking.-1880-3. 494. The qualifications of bail are as follows: 1. Each of them must be a resident and householder, or freeholder, within the state. 2. Each must be worth the amount specified in the order of the 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 than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.-1873-306. 495. For the purpose of justification, each of the bail must attend before the judge or county 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 must be reduced to writing, and subscribed by the bail, if required by the plaintiff. 496. If the judge or clerk find the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the sheriff is thereupon exonerated from liability. 497. 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 must give the defendant a certificate of the deposit made, and the defendant must be discharged from custody. 498. The sheriff must, 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 deliver to the plaintiff's 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. 499. If money is deposited, as provided in the two last sections, bail may be given and may justify upon notice, at any time before udgment; and on the filing of the undertaking and justification with the clerk, the money deposited must be refunded to the defendant. 500. Where money has been deposited, if it remain on deposit at the time of the recovery of a judgment in favor of the plaintiff, the clerk must, under the direction of the court, apply the same in satisfaction thereof; and after satisfying the judgment, refund the surplus, if any, to the defendant. If the judgment is in favor of the defendant, the clerk must, under like direction of the court, refund to him the whole sum deposited and remaining unapplied. 501. If, after being arrested, the defendant escape or is rescued, the sheriff is liable as bail; but he may discharge himself from such liability by the giving of bail at any time before judgment. 502. If a judgment is recovered against the sheriff upon his liability as bail, and an execution thereon is returned unsatisfied in whole or in part, the same proceedings may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency. 503. A defendant arrested may, at any time before the trial of the action, or if there be no trial, before the entry of jud ment, apply to the judge who made the order, or the court in which the action is pending, upon reasonable notice, 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.-1873-306. 504. If, upon such 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. Section CHAPTER II. Claim and Delivery of Personal Property. Section sureties. 516. Qualification of sureties. 509. Delivery of personal proper- 515. Justification of defendant's ty, when it may be claimed. 510. Affidavit and its requisites. 511. Requisition to sheriff to take and deliver the property. 512. Security on the part of the plaintiff, and proceedings in serving the order. 518. Property, how kept. 520. Notice and affidavit, when 514. Defendant, when entitled to 521. Protection of plaintiff in redelivery. possession of property. or at 509. The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, any time before answer, claim the delivery of such property to him as provided in this chapter. 510. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing: 1. That the plaintiff is the owner of the property claimed (particularly describing it), or is entitled to the possession thereof; 2. That the property is wrongfully detained by the defendant; 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 property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure; 5. The actual value of the property. 511. The plaintiff or his attorney may, thereupon, by an idorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant. 512. Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, approved by |