FORMS IN PROVISIONAL REMEDIES-ARREST AND BAIL.

At the time of issuing a summons in an action, or at any time thereafter, before judgment therein, the plaintiff, if he wishes to avail himself of the provisional remedy of arrest and bail, must present to the judge of the court In which the action is pending, an affidavit which may be as indicated by the following form:

FORM NO. 92.

AFFIDAVIT FOR ORDER FOR ARREST OF A DEFENDANT IN A CIVIL ACTION.

[Name of Court.]

[Venue.]

A B being duly sworn, says: That he is the plaintiff in the above entitled action; that a complaint has been filed in the action and a summons has been issued therein, and that no judgment has been entered in the action; that this action is one for the recovery of money [or damages] on a cause of action arising upon an express [or implied] contract, namely: [State briefly the contract.] That affiant has never sold, endorsed or transferred said contract; that the sum of dollars pay

able to plaintiff on said contract is due and wholly unpaid; that said defendant is about to depart from this state, with intent to defraud his creditors, especially this affiant, one of his said creditors; and when he departs from this state he will leave no property therein out of which his indebtedness on said contract can be made or satisfied;

[Or that the defendant in the action is an attorney at law, and in the course of his employment as such by this affiant, he received and fraudulently converted to his own use dollars [or if other property state what it was and its value,] the money [or the property] of affiant, said plaintiff. And this action is to recover the money [or the value of the property] so converted by the defendant to his own use;]

[Or that affiant was at the commencement of the above entitled action the owner of the following described personal property,namely: [Describe it] of the value of dollars;

and the said defendant at the time of the commencement of the action unjustly detained and withheld the possession of said.

property from this affiant, and he has concealed and removed [or disposed of] said property to prevent its being found or taken by a sheriff; and this action is brought against the defendant to recover the possession of said property;]

day of

[Or that the said defendant falsely represented to the affiant, said plaintiff, who was and is a merchant, to induce this affiant to sell him goods on credit; that the said defendant was the owner of a tract of land of about acres, situate in county, in this state, and that there were no encumbrances on said tract of land; and induced by such representations this affiant on the sold and delivered to said defendant goods of the value of dollars, and for the agreed price of dollars, on a credit of [three] months from such sale; and said agreed price therefor is due and wholly unpaid; and said representations were false, and the defendant knew when they were made that they were false; and the defendant at the time of making said representations did not own, and has not since owned any land in said county of -; and said representations were fraudulently made with intent to deceive and defraud affiant; and they did deceive and defraud him. And this action is brought to recover from the defendant lars, the agreed price for said goods so sold and delivered;]

dol

[Or that said defendant was at the commencement of the above entitled action, and is, indebted to affiant in the sum of

dollars on an account for goods, wares and merchandise sold and delivered by affiant to said defendant; and defendant has since such sale removed [or disposed of] his property [or is about to remove and dispose of his property] to prevent the same from being applied to the payment of his debts, and with intent to defraud his creditors, of whom this affiant is one; and this action is brought to recover the sum of said indebtedness to this plaintiff.]

[Jurat.]

dollars, the

A B.

This affidavit must be made positively, or upon information and belief, and if upon information and belief it must state the facts on which such informa tion and belief is founded.

Upon the presentation of the affidavit to the judge he must require an undertaking on the part of affiant, with sureties, and in an amount fixed by the judge, which must be at least five hundred dollars.

FORM NO. 93.

FORM OF THE UNDERTAKING REQUIRED BY THE JUDGE BEFORE ORDER FOR ARREST IS MADE.

[Name of Court.]

A B, the plaintiff in this action, having presented to the Hon. - judge of this court, the affidavit of plaintiff, and having asked thereon for an order of the judge of the court for the arrest of C D, the defendant; and said judge having required before making such order a written undertaking on the part of the plaintiff, with sufficient sureties, in the sum of dollars, fixed by the judge, now, therefore, in consideration of the premises, and to procure such order of arrest to be made, we, as principal, and the sum of

and

as sureties, undertake in dollars, and promise the defendant, 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 said sum of dollars.

[Date.]

Signatures.

Affidavit of sureties should be made on the undertaking, showing that they are qualified to be such sureties, as in form No. 131.

This undertaking should be approved by the judge, and filed with the clerk of the court.

Should the court make an order of arrest, it may be in the following form:

FORM NO. 94.

ORDER OF JUDGE FOR ARREST.

[Name of Court.]

It appearing to me from the affidavit of A B, the plaintiff in said action, that a sufficient cause of action exists, and that the case is one of those mentioned in section 479 of the Code of Civil Procedure; and the plaintiff having given the undertaking as required by me,

IT IS ORDERED that the sheriff of any county in this state where C D, the defendant in this action may be found, forthwith arrest him and hold him to bail in the sum of dollars; and

If the order of arrest be made the affidavit for the order must be filed in the office of the clerk of the court in which the action is pending.

On the delivery of this order, and of a copy of the affidavit on which the order was made, to the sheriff of the county in which the defendant is found. the sheriff must arrest the defendant and keep him in custody until discharged, as provided by law; and he must, when he arrests the defendant, deliver to him the copy of the affidavit on which the order of arrest was made, and, if desired by the defendant, he must also deliver to him a copy of the order of arrest.

The defendant at any time before execution must be discharged from arrest, either upon giving bail, or depositing the amount mentioned in the order of arrest.

The defendant may give bail by causing a written undertaking to be executed by two or more sufficient sureties; which undertaking may be in the following form:

FORM NO. 95.

UNDERTAKING OF BAIL BY A DEFENDANT ARRESTED IN A CIVIL ACTION.

[Name of Court.]

C D, the defendant in this action having, under an order of arrest made on the day of by the Hon. -, judge of the Superior Court of the state of California in the county of -, requiring the sheriff of the county where said defendant might be found to arrest the defendant and hold him to bail in the sum of dollars, been arrested by

of

and

-, the sheriff county, in which said defendant was found; now, therefore, we, as sureties for said defendant, in consideration of the premises and to procure his discharge from such arrest, undertake in the sum of

dollars, and promise plaintiff to the effect that the defendant in this action will 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 that we will pay to A B, the plaintiff in the action, the amount of any judgment that may be recovered against the defendant in the action not exceeding said sum of

[Date.]

dollars.

Signatures.

Affidavit of the qualification of the sureties as in form 131.
Within the time limited for that purpose the sheriff must file in the office

of the clerk of the court in which the action is pending, a copy of the undertaking of bail; and within ten days thereafter, the plaintiff may serve upon the sheriff a notice that he does not accept the bail; which notice may be in the following form:

FORM NO. 96.

EXCEPTION TO BAIL.

[Name of Court.]

To the sheriff of

county, California:

You will take notice that the plaintiff in the action excepts to, and does not accept the bail given by the defendant in this action.

[Date.]

[Address to Sheriff.]

G H, Attorney for Plaintiff.

Within five days after the receipt of this notice the sheriff or the defendant, may give to the plaintiff or his attorney, notice of the justification of the bail (or of other bail-specifying the places of residences and occupation of the latter) before a judge of the court, or county clerk, at a specified time and place, not less than five, nor more than ten days thereafter, except by consent of parties.

If new bail justify, a new undertaking must be given. Such notice may be In the following form:

FORM NO. 97.

NOTICE OF JUSTIFICATION OF BAIL.

[Name of Court.]

You will take notice that the sureties on the undertaking of bail of C D, the defendant in this action [or residence

occupation, and

-, residence, occupation

as sureties on another undertaking of bail] will justify as

At the time and place specified in the notice, the sureties should justify, and if the judge (or county clerk) be satisfied on an examination, that the