When and how an order of arrest may be obtained.

$200. A defendant in a civil action, can be arrested and Defendant may held to bail, only upon the conditions and in the manner

be held to bail.

8ed unless bond with surety is given.

prescribed in this chapter.

$201. An order for the arrest of the defendant, shall be made by the clerk of the court in which the action is brought, at its commencement or at any time before judgment, when there is filed in his office an affidavit of the plaintiff, showing

1. The nature of the plaintiff's claim..

2. That it is just.

3. The amount or value, which the affiant believes the plaintiff ought to recover.

4. That the affiant believes, either that the defendant is about to depart from this state, and, with intent to defraud his creditors, has concealed, or removed from this state, his property, or so much thereof, that the process of the court after judgment cannot be executed; or that the defendant has money, or securities for money, or evidences of debt, in the possession of himself, or of others for his use, and is about to depart from this state, without leaving property therein sufficient to satisfy the plaintiff's claim.

$202. The order of arrest shall not be issued by the Not to be is clerk, until there has been executed in his office by one or more sufficient sureties of the plaintiff, a bond to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the arrest, if the order is wrongfully obtained, not exceeding double the amount of the plaintiff's claim stated in the affidavit.

§ 203. The order of arrest shall be addressed and delivTo whom or ered, with a copy thereof, to the sheriff. It shall state the

der of arrest to

be delivered.

names of the parties to the action, the court in which the action is brought, and the amount of the plaintiff's claim specified in the affidavit, and shall require the sheriff to arrest the defendant and hold him to bail in the sum of the

plaintiff's claim, with the probable costs of the action, not exceeding twenty-five dollars, and to make return of the order on a day to be named therein, with the bail bond, if any is taken.

§ 204. The return day of the order of arrest, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterwards, it may be another day in term, at the option of the plaintiff.

ARTICLE II,

Proceedings upon an order of arrest.

§205. The sheriff shall execute the order of arrest, by arresting the defendant and delivering to him a copy thereof.

§ 206. The defendant, when arrested, shall be committed by the sheriff to the jail of his county, a copy of the order of arrest being delivered to the jailer; and, unless bailed, kept in custody in the manner provided by law in the case of a defendant taken in execution upon a judgment in a civil action, until discharged in the mode and upon the conditions such defendant may be.

§ 207. The defendant may, before or after giving bail, deposit in the hands of the sheriff, or in court, the amount of money mentioned in the order of arrest; whereupon he shall be discharged, or his bail, if any is given, shall be released.

The sheriff shall pay into

§ 208. The sheriff shall pay into the court the money received by him, in vacation, in lieu of bail, on the first day court all depos of the next term. Where it is received during a term, he shall pay it into the court immediately.

§ 209. The court shall make proper orders for the safekeeping of money deposited in lieu of bail. It may direct the sheriff to keep the money, and, after final judgment in the action, shall order it to be paid to the party entitled thereto, according to the result.

$210. Money deposited in the hands of the sheriff in lieu of bail, or directed by the court to be kept by him, shall be held upon his official responsibility; and he and his sureties shall be liable, and may be proceeded against, for any default in relation thereto, as in other cases of delinquency.

its.

Court to make

orders

for keeping the

proper
money.

Sheriff and sureties liable for

moneys deposited with him in

bail cases.

Defendant may

$211. Bail may be given by the defendant on his arrest, or at any time afterwards before judgment. It shall be give bail by ex

done by causing one or more sufficient bail to execute a bond to the plaintiff in the presence of the sheriff, or of the jailer where the defendant has been committed to jail, to the effect that, if judgment shall be rendered in the action against the defendant, he will render himself amenable to the process of the court thereupon. The bond, when accepted, shall be returned to the clerk's office, and the defendant discharged.

ecuting bond, with surety.

1851.

Qualification

of bail.

Plaintiff may

object to bail

proceedings

thereon.

Officer not liable if no mcmade, or

judged insufli.

cient.

$212. The bail must be a resident of this state, and be worth double the sum specified in the order of arrest, beyond the amount of his debts, and have property in this state, subject to execution, at least equal in value to that sum. If two or more become bail, they must, in the aggregate, possess the same qualifications. The bail, if it is required by the sheriff, shall make affidavit of their qualification before him.

213. If the plaintiff objects to the bail for insufficiency, he may move his objections in court, during the term at which the bail bond is returned, and not afterwards, except where the bond is returned within the last three days of the term; in which case, the motion may be made on the first day of the succeeding term. The motion cannot be made, unless the plaintiff has given to the sheriff, or to the jailer where the bond was taken by him, notice thereof. And if the notice is adjudged unreasonable, the court may continue the motion to some day in the same or the succeeding term.

§ 214. If the motion is not made, or the bail is not thereupon adjudged insufficient, the officer shall be exonerated bail is not ad from liability by reason of the insufficiency of the bail. $215. The bail adjudged insufficient, shall not be thereby released, but an order shall forthwith be made to re-arrest the defendant; and, thereupon, the same proceedings may be had, and with the like effect, as are directed upon an order of arrest.

Bail adjudged Insufficient not released.

Execution may

be issued against

the body, but defendant may

take oath of insolvency.

Bail may sur.

render defend.

§ 216. Upon judgments in actions in which the defendant has been arrested and held to bail, and in which the order of arrest has not been vacated, an execution against the body of the defendant may be issued, upon which the same proceedings shall be had, and the defendant shall be dealt with in the same manner, as provided by law in the civil actions in which executions may be issued against the body of the defendant; except that the oath of insolvency, upon reasonable notice, may be taken at any time after the arrest, by delivering to the plaintif, his agent or attorney, a schedule of the property intended to be surrendered, although said schedule may not have been delivered ten days before the taking of such oath. This exception shall also apply to section 206 of this code.

ARTICLE S.

Liability and discharge of bail, and of officer.

$217. A surrender of the defendant to the sheriff of the county in which he was arrested, with a delivery to him of a copy of the order of arrest and of the bail bond by the ant and be dis defendant himself, or by his bail, at any time before the liability of the bail is fixed, shall discharge the bail. The sheriff shall give to the bail a written acknowledgment of the surrender, and commit the defendant to the jail of his

charged.

county with his order indorsed upon the copy of the bail bond delivered to the jailer.

$218. For the purpose of surrendering the defendant, the bail may, at any time or place, arrest him, or authorize, in writing indorsed upon a copy of the order of arrest and bail bond, the sheriff or any constable to do so.

§ 219. A return of "not found" upon an execution against the body of the defendant, placed in the hands of the sheriff of the county in which he was arrested, within twenty days after it might have issued upon the judgment, shall be necessary to fix the liability of the bail, which shall be, to pay the amount of the judgment and costs.

§ 220. The bail can be proceeded against, in a separate action only.

1851.

The bail may arrest defend.

ant, or cause of ficer to do it.

A return of

not found neces

sary to fix bail.

Bail may be sued in a sepa

rate action.

bail may be ex onerated.

§ 221. He will be exonerated by the death of the defend- For what causes ant, or his removal from this state under process of law as a fugitive, before the return day of the summons served upon the bail in the action to enforce his liability, or by the imprisonment of the defendant in the penitentiary, or his legal discharge from the obligation to render himself amenable to the process of the court, or by his surrender, to the sheriff of the county in which he was arrested in execution thereof, by the return day of the summons in the action against the bail, or within such further time as the court, in which the action is pending, may allow. If the defendant is confined in any jail of this state, the bail will be exonerated by delivering to the jailer thereof, at any time before the return day of the summons in the action against the bail, a certified copy of the order of arrest and of the bail bond, with a written order thereupon to detain the defendant in custody until discharged by law from the action in which the bond was given. The jailer shall give a written acknowledgment of the receipt of the order, which shall be filed with the original bond.

§ 222. If, after being arrested, the defendant escapes or is rescued, or bail is not taken or is adjudged insufficient, or a deposit is not made, the sheriff shall be liable as bail, unless he had committed the defendant to jail and obtained a written acknowledgment thereof from the jailer; in which case, the jailer shall be so liable. Either officer may discharge himself from such liability, by putting in sufficient bail at any time before judgment.

For what causes sheriff liable.

Liability of of ficer fixed in ed in § 219.

§ 223. The liability of the officer as bail, shall be fixed in the manner provided in section two hundred and nineteen, manner providand can be enforced only in a separate action against him, or against him and his sureties in his official bond, as in other cases of delinquency.

The bail ad. judged insuffi

6224. The bail adjudged insufficient, shall be liable to the officer for the damages he may sustain by reason of cient liable to such insufficiency.

the officer.

ARTICLE IV.

Motion to vacate an order of arrest.

§225. A defendant against whom an order of arrest has been obtained, may, at any time before judgment in the action, and before a decision of a motion on account of the insufficiency of the bail, apply to the court, or, in vacation and before executing a bail bond, to the judge thereof, or to any circuit judge, or to the presiding judge of the county court, by motion, to vacate the order of arrest, or to reduce the amount of bail. Reasonable notice of the motion shall be given to the plaintiff. If satisfied that the bail ought not to have been required, or that the sum for which it was demanded is too large, the court or judge may vavate the order of arrest, or reduce the amount of bail. The decision of the motion shall be final in the action, but shall not affect the rights of the parties in any other action. Upon the vacation of the order of arrest, the defendant shall be discharged, or the bail bond, if any is given, shall be cancelled.

§ 226. If the motion is supported by affidavits or other evidence out of the record, the plaintiff may oppose it by affidavits or other evidence, in addition to that on which the order of arrest was obtained.

§ 227. The writ of scire facias against bail, is abolished. CHAPTER 2.

Claim and delivery of personal property.

§ 228. The plaintiff in an action to recover the possession of specific personal property, may, at the commencement of the action, or at any time before judgment, claim the immediate delivery of the property, as herein provided. § 229. An order for the delivery of property to the plaintiff, shall be made by the clerk, when there is filed in his office an affidavit of the plaintiff, showing

1. A particular description of property claimed.

2. Its actual value, and the damages which the affiant believes the plaintiff ought to recover for the detention thereof.

3. That the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property.

4. That the property is wrongfully detained by the defendant.

5. That it has not been taken for a tax or fine against the plaintiff, or under any order or judgment of a court against him, or seized under an execution or attachment against his property, or, if so seized, that it is, by statute, exempt from such seizure.

6. That the plaintiff's cause of action has accrue d within one year.