should be made to the court either to amend the original or to file a supplemental complaint, so as to set forth the facts upon which execution against the person of the defendant will be asked in the enforcement of the judgment sought.13

14

§ 3987. Privilege from arrest, who entitled to. Under the Constitution and laws of California, certain persons are privileged from arrest except for certain specified offenses. 1. Members of the legislature shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest, and shall not be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.1 2. Electors shall in all cases except treason, felony, or breach of the peace be privileged from arrest on the days of election during their attendance at such election, going to and returning therefrom.15 By section 1069, Political Code of California, electors are privileged from arrest, except for an indictable offense, during their attendance on an election, and in going to and returning therefrom. 3. No person under military orders for parade, drill, or other military service is subject to arrest on civil process while going to, returning from, or on such parade.16 4. No female can be arrested in any action.17 5. Witnesses who have been in good faith served with a subpoena to attend before a court, judge, commissioner, referee, or other person, in a case where disobedience may be punished as a contempt, are exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning therefrom.18 At common law the privilege extends also to jurors, parties, officers, and judges, and protects them while in attendance upon their public duties from arrest, summons, or any other civil process. 19

13 Davis v. Robinson, 10 Cal. 411.

14 Const. Cal., art. 1, § 15.

15 Id., art. 2, § 2.

16 Cal. Pol. Code, § 2021.

17 Cal. Code Civ. Pro., § 861.

18 Id., § 2067. The penalty for making an arrest of a witness is prescribed by section 2068.

19 Cassidy v. Steuart, 40 Eng. Com. L. 464: Hurst's Case, 4 Dall. 388; Geyer v. Irwin, id. 107; Bolton v. Martin, 1 id. 296; Miles v. McCullough, 1 Binn. 77; Behncke v. King, 9 Serg. & R. 150; 1 Miles, 237: Cole v. Andrews, Andrews, 275; Ex parte M'Neil, 6 Mass. 245, 264: Traev v. Whipple, 8 Johns. 330; Lyell v. Goodwin, 4 McLean, 29: Page r. Pandall, 6 Cal. 32.

Though the common-law privilege of the officers of courts of justice can not be taken away by the general words, yet they may be by the manifest intent of the statute.20

The privilege of a suitor or witness extends to exemption from arrest, and no further.21 So with an applicant for the benefit of the Bankrupt Law. The privilege of a witness protects him while at his lodgings as well as in the street, going to or from the court;23 but it does not extend after he is discharged from the obligation of the subpoena.24 The mode of redress for a person privileged from arrest, when arrested, is by a motion to the court from which the process was issued to set aside the service and discharge the party; or in other words, to abate the writ.25 It is erroneous to vacate an order of arrest on the ground that the defendant is exempt from arrest by virtue of his office. The plaintiff is entitled to retain his order, for the purpose of making the arrest when the exemption expires.26

§ 3988. Grounds for arrest. 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 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 possession of personal property unjustly detained, when the property, or

20 Case of Bliss, 9 Johns. 347.

21 Blight v. Fisher, Pet. C. C. 41; McFerran v. Wherry, 5 Cranch C. C. 677.

22 Anonymous, 6 Hunt's Merch. Mag. 355.

23 Ex parte Hurst, 1 Wash. C. C. 186.

24 Smythe v. Banks, 4 Dall. 329. As to extent of an elector's privilege also as to waiver of privilege generally, by giving ball or appearance: Petrie v. Fitzgerald, 1 Daly, 401. As to extent of privilege of a policeman - being confined to the period when on actual duty: Hart v. Kennedy, 39 Barb. 186; S. C., 24 How. Pr. 425; S. C., 15 Abb. Pr. 290; reversing S. C., 23 How, Pr. 417.

25 Lyell v. Goodwin, 4 McLean, 29.

26 Hart v. Kennedy, 15 Abb. Pr. 290; S. C., 24 How. 425.

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. There are also special cases in which the statute authorizes an order of arrest to be made in civil proceedings; as in forcible entry or detainer cases, where the complaint establishes to the satisfaction of the judge, fraud, force, or violence in the entry or detainer, and that the possession held is unlawful;28 or for refusing to produce a will;29 and in other proceedings in the Probate Court; in actions for usurpation of office;30 in proceedings supplementary to execution;31 and in many other cases technically denominated contempts.32

3989. Affidavit for arrest. It must appear to the judge by the affidavit that a sufficient cause of action exists, and that the case is one of those mentioned in the statute.33 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.34 Under a former statute substantially like the present, it was said to be well settled that the facts necessary to be shown must appear in the affidavit itself, and that it was not sufficient to refer to the complaint or to any other paper to show what ought to be disclosed by the affidavit, although it is positively averred that such paper or complaint is true.35 A sworn complaint is available as

27 Cal. Code Civ. Pro., § 479.

28 Id., § 1168.

29 Id., § 1302.

80 Id., § 804.

31 Cal. Code Civ. Pro., § 715.

32 For the cases in which an order of arrest may be issued by a justice of the peace, see Cal. Code Civ. Pro., § 861; In re Binich, 86 Cal. 70.

33 Cal. Code Civ. Pro., § 481.

34 Id.

35 McGilvery v. Moorhead, 2 Cal. 609. But see Brady v. Bissell, 1 Abb. Pr. 76; Turner v. Thompson, 2 id. 444, where it is held that if the complaint is before the judge when the order is granted, it may

an affidavit with others to sustain an order of arrest.36 Fraud, as a ground of arrest, must be clearly proved. If there is a serious doubt as to the fraud, an order of arrest is not allowable. The plaintiff's affidavit must specify and establish the particular fraud relied upon as the foundation of the order. He can not, upon a motion to vacate the order, set up a ground for retaining it which was not put forth as the original ground of the order.38 Documents relied on must be presented, or copies furnished.39 Where some of the material allegations of the affidavit are upon information and belief, the sources and nature of the information must be particularly set out, and a good reason given why a positive statement can not be procured.40 The rule that one shall not resort to inferior evidence when he has it in his power to produce evidence affording greater certainty of the fact in question, applies to an affidavit to obtain an order of arrest.41 An affidavit grounded entirely on information and belief as to all the facts constituting the fraud is insufficient.42 The amount claimed by the plaintiff should be stated positively. "About four thousand nine hundred and thirty dollars" has been held insufficient." 43

C. D., being duly sworn, deposes and says as follows:

I am an agent of the above-named plaintiff A. B., at

[state the nature of the agency, and continue as in succeeding forms].44

be looked to to aid a defective affidavit, and that the order should then recite that it appeared by affidavit and the complaint duly sworn to that a cause of action existed, etc.

36 Palmer v. Hussey, 59 N. Y. 647; affirming, 65 Barb. 278.

37 Claflin v. Frank, 8 Abb. Pr. 412.

38 Cady v. Edmonds, 12 How. Pr. 197.

39 De Weerth v. Feldner, 16 Abb. Pr. 295; De Nierth v. Snider, 25 How. Pr. 419.

40 De Weerth v. Feldner, supra.

41 Id. As to distinction between stating the sources of information" and "setting them forth," see Id.

42 Satow v. Reisenberger, 25 How. Pr. 164; see In re Vinich, 86 Cal. 70.

43 Tipton's Lessee v. Ross, 10 Ohio, 263.

44 It is not absolutely necessary that deponent should show any

§ 3991. Affidavit for order of arrest-departing out of the state with intent to defraud creditors.

the plaintiff in the above-entitled action; that a sufficient cause of action exists in favor of plaintiff against said defendant as fully appears from the verified complaint herein, a copy of which complaint is hereto annexed and made a part of this affidavit; that it is an action for the recovery of money on a cause of action arising upon an ... contract, and that the defendant in said action is about to depart from this state with intent to defraud his creditors.

And affiant further states and shows the following facts and circumstances in support of the above allegations of fraud, towit [state facts].

[JURAT.]

[SIGNATURE.]

45

§ 3992. What affidavit must state. In an action for the recovery of money or damages, on a cause of action arising upon contracts express or implied, when the defendant is about to depart from the state with intent to defraud his creditors, the affidavit must state the facts and circumstances which justify the conclusion that the defendant has removed or disposed of his property, so that the court may be able to draw it from the evidence detailed in the affidavit.46

§ 3993. Fraudulent intent. Evidence of a fraudulent intent must depend upon the particular circumstances of each case. The declarations of the debtor are often sufficient, at least if coupled with acts of a suspicious character.47 The mere fact that defendant is about to depart, although he owes debts to a

connection between him and the plaintiff: Cal. Code Civ. Pro., § 481; but where there is a connection, it is better to state it.

45 California Code Civ. Pro., § 479, subd. 1; N. Y. Code, § 550, subd. 2.

46 See Smith v. Luce, 14 Wend. 237, and cases there cited in note a; Ex parte Robinson, 21 id. 672; Frost v. Willard, 9 Barb. 440; Castellanos v. Jones, 5 N. Y. 164; compare Donnelly v. Corbett, 7 id. 500; Van Alstyne v. Erwin, 11 id. 331.

47 Compare Courter v. McNamara, 9 How. Pr. 255; and Hathorn v. Hall, 4 Abb. Pr. 227.