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Cases in Which dependant may be arrested.

§ 179. (Sec. 154.] The defendant may be arrested, as hereinafter prescribed, in the following cases:

1. In an action for the recovery of damages, on a cause Amended, of action not arising out of contract, where the defendant

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is not a resident of the state, or is about to remove there-
from, or where the action is for an injury to person or
character, or for injuring, or for wrongfully taking, de-
taining, 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, by a public officer or by an attorney, solicitor or counsellor, 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:

3. In an action to recover the 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, and with the intent that it should not be so found, or taken, or with the intent to deprive the pluin tiff 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.

But no female shall be arrested, in any action except for a wilful injury to person, character or property.

It is sufficient to show under sub. 3, that the property has been concealed, without showing fraud or bad faith. Van Neste and others agt. Conover, 5 How. 148; Manley vs. Patterson, 3 Code Rep. 89. Contra; Roberts agt. Randall, 5 How. 327. Martin vs. Vanderlip, 3 How: 265.

Order for

made.

obtain or

or of

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actions this

The affidavit on an application under sub. 4, must state facts positively, not on information and belief. Whitlock agt. Roth, 5 How. 143.

An attachment will not be issued against an attorney for money collected for his client without a previous demand of payment, Cottrell vs. Finlay. son, 4 How. 242.

A female can be arrested only for wilfully, wantonly, or maliciously inju. ring property; but not for a detention or conversion of it. Tracy vs. Leland, 2 Sand. 729; S. C., 3 Code Rep. 47; S. C., 8 Leg. Ob. 234. Contra, Starr v. Kent, 2 Code Rep. 30. See sections 205 and 288, infra, and notes. § 180. Sec. 155.) An order for the arrest of the defend

arrest, by ant, must be obtained from a judge of the court in which whom the action is brought, or from a county judge.

§ 181. [Sec. 156.] The order may be made, where it Affidavit to shall appear to the judge by the affidavit of the plaintiff, der any other person, that a sufficient cause of action ex

Amended ists, and that the case is one of those mentioned in section 179.

The provisions of this chapter shall apply to all actions To what included within the provisions of section 179, which shall chapter ap

plicable. have been commenced since the thirtieth day of June, one thousand eight hundred and forty-eight, and in which judgment shall not have been obtained.

In regard to what facts necessary to be set forth in the affidavit, see Pindar v.

Black, 4 How. 95; Martin v. Vanderlip, 3 How. 265; Adams v. Mills, id. 219; Brophy v. Rodgers, 7 Leg. ob. 152.

Affidavit to hold to bail may be taken before the attorney for plaintiff; Adams v. Mills, 3 How. 219. See also Vary agt. Godfrey, 6 Cow. 587, and cases there cited.

$ 182. (Sec. 157.] Before making the order, the judge Security shall require a written undertaking on the part of the plain-before ortiff, with or without sureties, to the effect, that if the defend-rest. ant recoverjudgment, the plaintiff'will pay all costs that may Amended 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 one hundred dollars. If the undertaking be executed by the plaintiff, without sureties, he shall annex thereto an a ffidavit that he is a resident and householder or free

der of ar

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[graphic]

when

Amended 1849.

Affidavit and order

vered to

fendant.

made.

Defendant to be dis

holder within the state, and worth double the sum speci

fied in the undertaking, over all his debts and liabilities. Order, $ 183. [Sec. 158.] The order may be made, to accompany made, and 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 and place therein mentioned, to the plaintiff or attorney by whom it shall be subscribed or endorsed.

$ 184. [Sec. 159.] The affidavit and order of arrest shall o be deli- be delivered to the sheriff, who, upon arresting the desheriff, and copy to defendant, shall deliver to him a copy thereof. Arrest,how

§ 185. [Sec. 160.] The sheriff shall execute the order, by arresting the defendant and keeping him in custody, until discharged by law; and may call the power of the country to his aid, in the execution of the arrest as in case of process.

$ 186. [Sec. 161.] The defendant at any time before execharged on cution, 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.

§ 187. [Sec. 162.] The defendant may give bail, by caus

ing a written undertaking to be executed by two or more Amended sufficient bail, stating their places of residence and occupa

tions, to the effect 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 if he be arrested for the cause mentioned in the third subdivision of section 179, and undertaking to the same effect as that provided by section 211.

§ 188. [Sec. 163.] At any time before a failure to comply

with the undertaking, the bail may surrender the defendant in Amended their exoneration, or he may surrender himself to the sheriff of

the county where he was arrested, in the following manner:

bail or de posit.

Bail, how given.

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Surrender of defendant.

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1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknowledge the surrender;

2. Upon the production of a copy of the undertaking and sheriff's certificate, a judge of the court, or county judge, may upon a notice to the plaintiff, of eight days, with a copy of the certificate, order that the bail be exonerated; and on filing the order and the papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in subdivision 3, of section 179 so as to discharge the bail from an undertaking given to the effect provided by section 211.

$ 189. [Sec. 164.] For the purpose of surrendering the de- The same fendant, 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 any person of suitable age and discretion to

do so.

proceeded

exonerated

Amended

§ 190. [Sec. 165.] In case of failure to comply with the Bail, how undertaking the bail may be proceeded against by action against. only.

§ 191. (Sec. 166.] The bail may be exonerated, either by Bail, how the death of the defendant or his imprisonment in a state prison, or by his legal discharge from the obligation to ren- 1849. der himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court.

§ 192. [Sec. 167.) Within the time limited for that pur- Delivery of pose the sheriff shall deliver the order of arrest to the plain-king to

plaintiff, tiff or attorney by whom it is subscribed, with his return en- and its rer dorsed, and a certified copy of the undertaking of the bail. The plaintiff, within ten days thereafter, may serve upon

rejection

by him.

Amended 1849.

Notice of justification

Amended

New un

if other bail.

Qualifications of bail

Amended 1849.

the sheriff, a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability.

$ 193. [Sec. 168.] On the receipt of such notice, the sheriff

or defendant may, within ten days thereafter, give to the plain1849, 1851 tiff or attorney by whom the order of arrest is subscribed, notice

of the justification of the same, or other bail, (specifying the places of residence and occupation of the latter,) before a judge of the court, or county judge, at a specified time and

place ; the time to be not less than five nor more than ten days dertaking thereafter. In case other bail be given, there shall be a new

undertaking, in the form prescribed in section one hundred and eighty-seven.

§ 194. [Sec. 169.] The qualifications of bail must be as follows:

1. Each of them must be a resident and householder or freeholder, within the state.

2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution, but the judge, or a justice of the peace on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

§ 195. [Sec. 170.] For the purpose of justification, each of the bail shall attend before the judge, or a justice of the peace, 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 justice of the peace, in his discretion, may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff. See Supreme Court rule, 89. § 196. [Sec. 171.] If the judge or justice of the peace

find the bail sufficient, he shall annex the examination to the unAmended dertaking, endorse his allowance thereon, and cause them to

Justifieation of bail.

Amended 1849.

Allowance of bai).

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