§ 4035. Clerk's certificate that deposit has been paid into court. Form No. 976.

[TITLE.]

[VENUE.]

I, J. K., clerk of the county of

....

hereby certify

that the sheriff of said county has deposited in this court the sum of ..... dollars, as having been paid him by C. D., the defendant, in lieu of an undertaking of bail in this action.128

4036. Certificate that bail has been given instead of deposit.

[TITLE.]

[VENUE.]

Form No. 977.

...

I, A. K., sheriff of the county of hereby certify that the defendant C. D. has deposited with me an undertaking, of which the within is a copy, in lieu and instead of the money heretofore deposited with me.

A. K.,

4037. Effect of bail. The defendant, on arrest, by putting in bail and neglecting to move to be discharged, consents to process, and waives all previous irregularities.129

§ 4038. Return to order of discharge on supersedeas.

[VENUE.]

Form No. 978.

By virtue of the within order to me directed, I took the within-named defendant and safely kept him in my custody in the common jail of the county of wards, to-wit, on the ..... day of

until after

18.., by

virtue of a certain other writ to me directed and delivered, and to this writ annexed, I caused the said defendant to be delivered out of the said jail; wherefore I can not have the body of the said defendant before the said Superior Court of the county of .... as within I am commanded.

state of

128 Money deposited in court is to be paid over to the county treasurer, subject to the order of the court. Cal. Code Civ. Pro., § 2104. 129 Matoon v. Eder, 6 Cal. 57.

§ 4039. Return to order of delivery on writ of habeas corpus. Form No. 979.

[VENUE.]

By virtue of the within order, to me directed, I took and arrested the within-named defendant and safely kept him in my custody, in the common jail of the county of

until afterwards, to-wit, on the

........

day of ...

18.., I received the writ of habeas corpus cum causa, commanding me to have the body of the said defendant before the justices of the Supreme Court of the state of California [or as the case may be], at on the ...... day of

then next [or "immediately after the receipt of that writ"]. By virtue of which said writ, and in obedience thereto, I had the body of the said defendant with the said lastmentioned writ, and the return of the within cause in a certain schedule thereunto annexed, before the said justices of the Supreme Court of the state of California [or as the case may be], at the day and place in the said writ contained, who then received of me the body of the said defendant, and discharged him out of my custody [or "committed to the jail of the county of ... "], and altogether discharged and exonerated me from further keeping the said defendant.

Wherefore I can not have the body of the said defendant before the said Superior Court in the within order named, as I am therein commanded.

84040. Notice of motion to vacate order of arrest.

Form No. 980.

[TITLE.]

To E. F., plaintiff's attorney:

Please take notice, that on the ...

day of ....

18.., at the courtroom of said court, at the opening of the court, or as soon thereafter as counsel can be heard, the undersigned will move this court to vacate the order of arrest in this action. This motion will be based upon the affidavit hereto annexed, and upon the papers filed and served in this action, and said motion will be made for irregularity in this, that the undertaking given to procure said order was not filed with the clerk of the court [or otherwise], and for such other and further order as may be just.

[DATE.]

[SIGNATURE

7

4041. Conversion.

In an action for a conversion an order of arrest is not to be vacated on mere denial of the cause of action,180

§ 4042. Facts must be shown. It is well settled that the facts necessary to be shown must appear by the positive averments of the affidavits; and it is insufficient to refer to the complaint or to any other paper to show what the affidavit. ought itself to disclose, although it is positively averred that such complaint or paper is true.131

4043. False representations. A purchaser who obtains credit by a false representation must be held to intend the legitimate consequence of his acts; and if he admits the false representation, his denial of intent to defraud is immaterial. So held on motion to vacate arrest.132

4044. Insufficient ground. Although an order of arrest ought not to be granted upon general assertions made on information only, yet if such allegations are not met by a denial on a motion to discharge from arrest, they will be taken to be true.133

4045. Notice essential.

These motions must be on notice, and must be made in court, or may be before the judge who granted the order of arrest, if he is a judge of the court.134

4046. Parties. An order of arrest should not be vacated merely on the ground that one of the plaintiffs is not a proper party.125

4047. Positive denial, effect of. Where, on motion to vacate an order of arrest, the affidavit of the plaintiff positively and unequivocally alleges the making of false representations by the defendant, which the affidavit of the latter as unequivocally and positively denies, the defendant's affidavit should be regarded as neutralizing that of the plaintiff, who should be left to make out his case by other or further proofs.138

130 Cousland v. Davis, 4 Bosw. 619.

131 McGilvery v. Morehead, Cal. 609.

182 Whitcomb v. Salsman, 16 How. Pr. 533.

183 Wolfe v. Brouwer, 5 Rob. 601.

134 Rogers v. McElhone, 12 Abb. Pr. 292; but see Cal. Code Civ.. Pro., § 503.

135 Webber v. Moritz, 11 Abb. Pr. 13.

136 Allen v. McCrasson, 32 Barb. 662.

4048. Renewal of motion. After a defendant has moved to vacate an order, being founded on facts extrinsic to the cause of action, and his motion to vacate it being founded only on the plaintiff's original affidavits, if such motion is denied he should not be allowed to renew it upon opposing affidavits on his own part, especially where the order denying his motion has been affirmed on appeal.137

4049. Rule to show cause. On a rule to show cause why the arrest of a party, ordered by the court on an allegation of fraud, should not be vacated, the question of fact involved in it must be decided, like any other fact, by the weight of evidence.138

4050. Vacating order and reducing bail. A defendant arrested may at any time before the trial of the action, or if there be no trial, before the entry of judgment, 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.139

§ 4051. When order will be vacated or bail reduced. If, upon such application, it appears that there was not sufficient cause for the arrest, the order shall be vacated; or if it appears that the bail was fixed too high, the amount must be reduced.140 An order of arrest should not be vacated on the ground that an action has been brought in a foreign court against the defendant for the same cause, it not appearing that any arrest was ever made there, or would have been allowed by the practice of such court.1

141

4052. Order vacating arrest.

[TITLE.]

Form No. 981.

I. On reading and filing notice of motion and affidavit thereto annexed, and on the pleadings and proceedings in this action,

137 Lovell v. Martin, 12 Abb. Pr. 178.

138 Southworth v. Resing, 3 Cal. 378.

139 Cal. Code Civ. Pro., § 503; see N. Y. Code, §§ 567, 568.

140 Id., § 504.

141 Arthurton v. Dalley, 20 How. Pr. 311.

on motion of E. F., counsel for the defendant, and after hearing thereon

II. It is hereby ordered that the order of arrest granted in this action, on the ........ day of ..... 18.., against the defendant, A. B., be vacated [and that the bail heretofore given for the defendant be exonerated from liability].

[DATE.]

[SIGNATURE.]

4053. Order, where made. This order may be made at chambers by the judge who granted the original order. Otherwise it must be made at Special Term, in New York.142 The Superior Court is always open for the purpose of hearing motions of this character.143

4054. The same on condition that defendant shall not sue. Form No. 982.

[TITLE.]

[Commencement as in last form.]

It is hereby ordered that on defendant's stipulating within .... days to bring no action for false imprisonment, said motion be granted, and the order of arrest heretofore granted in this action be vacated [or that the defendant be discharged from said arrest], with .. ... dollars costs to the defendant; otherwise, that said motion be denied, without costs.144

§ 4055. Conditional discharge. The discharge may be granted conditionally upon the defendant's stipulating not to bring an action for the arrest.145 So where the question involved in the motion to discharge the defendant is one involved in uncertainty, and about which there has been much diversity of opinion.148

142 Dunaher v. Meyer, 1 Code R. 87; Cayuga County Bank v. Warfield, 13 How. Pr. 439; Cal. Code Civ. Pro., § 503.

143 Cal. Code Civ. Pro., § 76.

144 It will be observed by reference to the following authorities that a conditional order can be made, or rather that such has been made. Yet it would seem the party is either entitled or not entitled to a discharge.

145 Northern Railway Co. v. Carpentier, 4 Abb. Pr. 47.

146 Alden v. Sarson, 4 Abb. Pr. 102; compare Merchants' Bank v. Dwight, 13 How. Pr. 366; and Croden v. Drew, 3 Duer, 652.