to the law, which becomes a part of their contract, and the whole statute must be examined to determine their liability.103

4017. Qualification. Under an order upon the plaintiff to file security for costs, and an undertaking executed by two sureties is filed, the qualification of one of the sureties upon exceptions is sufficient.104

4018. State, etc., exempt. In any civil action or proceeding wherein the state, or the people of the state, is a party plaintiff, or any state officer, in his official capacity or on behalf of the state, or any county, city, or town, is a party plaintiff or defendant, no bond, written undertaking, or security can be required of the state, or the people thereof, or any officer thereof, or of any county, city, or town; but on complying with other provisions of the Code of Civil Procedure, such parties shall have the same rights, remedies, etc., as if such bond, etc., were given and approved.105

4019. Sufficient surety-under seal. Although the word "" sureties is used in the statute, yet an undertaking with one surety may be accepted as sufficient.106 The undertaking may properly be under seal, but this is not essential nor usual.107

Before making the order,

§ 4020. Undertaking essential. 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.108

§ 4021. Who must join. The preponderance of authority seems to be that the undertaking need not necessarily be exe

103 Matoon v. Eder, 6 Cal. 57; see Cal. Code Civ. Pro., §§ 494, 495, 496.

104 Riggins v. Williams, 2 Duer, 678.

105 Cal. Code Civ. Pro., § 1058.

106 Ward v. Whitney, 8 N. Y. 446; Sieff v. Shausenburgh, 10 Abb. Pr. 477, n.; see Cal. Code Civ. Pro., § 482.

107 Thompson v. Blanchard, 3 N. Y. 335; Seacord v. Morgan, 17 How. Pr. 394; Coleman v. Bean, 14 Abb. Pr. 38. For definition of a seal, and how made, see Cal. Code Civ. Pro., §§ 1930, 1931.

108 Cal. Code Civ. Pro., § 482.

Vol. II-121

cuted by the plaintiff personally.109 So, in an action brought on behalf of a foreign government, an undertaking to procure an arrest of defendant, executed by an agent appointed to sue, is good as an undertaking on the part of the plaintiff.110

§ 4022. Indorsement of judge's approval.

Form No. 968.

I approve the within undertaking, and the sufficiency of the sureties therein named.

[DATE.]

4023. Order of arrest.

[TITLE.]

Form No. 969.

[SIGNATURE.]

The People of the State of California, To the Sheriff of the City and County of....

The above-named plaintiff having commenced an action in the Superior Court of the state of

county of

in and for the

., against the above

named defendant, and it duly appearing to me, from affidavits submitted on the part of the said plaintiff, that a sufficient cause of action exists, that the case is one of those mentioned in section 479 of the Code of Civil Procedure of this state, to-wit:

That the said defendant has been guilty of fraud in contracting the debt for which the said action is brought, and the neeessary undertaking having been given, I, the undersigned, judge of the said Superior Court, by virtue of the authority in me vested by law, do order and require you, the said sheriff of the county of ..... forthwith to arrest the said defendant if he be found in your county, and hold him to bail in said action in the sum of ... .. dollars, and that you return this order, with your proceedings thereon, to the clerk of the said Superior Court, on the

[DATE.]

18..

§ 4024. Amount of bail.

... day of

G. H., Judge.

In relation to the amount of bail,

under the former practice, in actions for a money demand on

109 Askins v. Hearns, 3 Abb. Pr. 184; Bellinger v. Gardner, 2 id. 441; Courter v. McNamara, 9 How. Pr. 255; Leffingwell v. Chave, 10 Abb. Pr. 472-477, n.

110 Republic of Mexico v. Arrangois, 11 How. Pr. 1.

111

contract, bail was required in double the amount of the claim; but this was subject to modification where the amount was large. In other actions the bail is altogether in the discretion. of the court, and depends upon the character of the action and the position of the defendants; whether, for example, residents or transient persons, etc.1 In California the amount of the undertaking must be at least five hundred dollars.113 The undertaking must precede the order.114

112

§ 4025. How served. 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.115 The sheriff must file them within ten days. The sheriff must execute the order by arresting the defendant, and keeping him in custody until discharged by law.116

§ 4026. Name of party. Formerly it was held that an arrest of a person by a wrong name could not be justified, though he was the person intended, unless he was as well known by one name as the other.117 But since the Code it is not necessary that the name of the party to be arrested should be stated. If unknown, he may be designated as the real defendant in the suit or proceeding, and whose name is not known; or by any name.118

§ 4027. Nature of remedy. The writ of arrest is only an intermediate remedy or process to secure the presence of the party until final judgment, and the facts on which it is based must be affirmatively found, and the fraud stated in the judgment, in order to authorize an arrest on final process. 119 As a matter of practice, it is safest to award an arrest, even in cases of doubt, for the defendant is protected by his bond from abuse by the process, without which process the plaintiff may be remediless. 120

111 Cromelines ads. Beldens, 1 Wend. 107; Ballingall v. Burnie, 1 Hall, 237.

112 Baker v. Swackhamer, 3 Code R. 248.

113 Cal. Code Civ. Pro., § 482.

114 Id.

115 Id., § 484; N. Y. Code, § 562.

116 Id., § 485; N. Y. Code, § 563.

117 Mead v. Haws, 7 Cow. 332; Gurnsey v. Lovell, 9 Wend. 319. 118 Pinder v. Black, 4 How. Pr. 95.

119 Matoon v. Eder, 6 Cal. 57.

120 Southworth v. Resing, 3 Cal. 377.

§ 4028. Order by whom made requisites of. An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought, or from a county judge.12 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. 122 The order may be made whenever it shall appear 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 the statute.123 And may be made at the time of issuing the summons, or at any time afterwards before judgment.1 124 The order may be made returnable within a specified period after arrest, and it is not essential to name a certain day.125 Where the complaint was not filed until two days after an order of arrest had issued thereupon, it was held that the order of arrest was void.126

arrest of defendant — bail given. Form No. 970.

4029. Return of order

[TITLE.] [VENUE.]

I have taken and arrested the within-named C. D., whose body I have ready, as required by the within order.

The within-named A. B. is not found in my county.

121 Cal. Code Civ. Pro., § 480. For an order under N. Y. Code, see §§ 551 and 556.

122 Id., § 483; see N. Y. Code, § 561.

123 Id., § 481.

124 Id., § 483.

125 Continental Bank v. De Mott, 8 Bosw. 696; see Cal. Code Civ.

Pro., § 483.

126 Ex parte Cohen, 6 Cal. 318.

§ 4031. Return -one arrested, the other not found.

[VENUE.]

Form No. 972.

I have taken and arrested the within-named A. B., whose body I have ready, as required by the within order; but the within-named C. D. is not found in my county.

§ 4032. Return-imprisoned for want of bail.

[VENUE.]

Form No. 973.

I have taken and arrested the within-named C. D., who remain imprisoned in the common jail of the county of in my custody, for want of bail.

A. C.,

[VENUE.]

I have taken and arrested the within-named C. D., as required by the within order, and safely kept him in my custody until divers persons, to me unknown, on the

18.., at

.. day of with force and arms assaulted me, and out of my custody rescued said C. D., who then and there rescued himself and escaped out of my custody, and afterwards the said C. D. is not found in said county.

§ 4034. Return that defendant has made deposit in lieu of bail. Form No. 975.

[VENUE.]

I have taken and arrested the within-named A. B., as required by the within order, and he has deposited with me dollars, in lieu of bail in the above-entitled

action.127

A. C.,

Sheriff of

County.

127 See Cal. Code Civ. Pro., § 486. If the sheriff omit to pay over the money he is liable to a penalty of twenty-five per cent., and ten per cent. per month interest: Cal. Pol. Code, § 4181.