Affidavit to obtain

481. ($ 75.) The order may be made whenever it order, what appears to the Judge, by the affidavit of the plaintiff

to contain.

Security by plaintiff before order of arrest.

Ord

wh

its form.

or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in Section 479. 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. If an order of arrest be made, the affidavit must be filed with the Clerk of the county.

482. (§ 76.) (§ 76.) Before making the order, the Judge must require a written undertaking on the part of the plaintiff, with sureties, to the effect that if the defendant recover judgment the plaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least five hundred dollars. The undertaking must be filed with the Clerk of the Court.

483. (§ 77.) ($ 77.) The order may be made at the time maa, and of the issuing of the summons, or any time afterwards before judgment. 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 pend ing.

Affidavit and order

ered to the

484. (78.) The order of arrest, with a copy of to be deliv- the affidavit upon which it is made, must be delivered Sheriff, and to the Sheriff, who, upon arresting the defendant, must defendant. deliver to him a copy of the affidavit, and also, if

copy to

desired, a copy of the order of arrest.

made.

485. (§ 79.) The Sheriff must execute the order Arrest, how by arresting the defendant and keeping him in custody until discharged by law.

to be

on bail or

486. (§ 80.) The defendant, at any time before Defendant execution, must be discharged from the arrest, either discharged upon giving bail or upon depositing the amount men- deposit. tioned in the order of arrest.

given.

487. (§ 81.) The defendant may give bail by Bail, how causing a written undertaking to be executed by two or more sufficient sureties, to the effect that they are bound in the amount mentioned in the order of arrest, that the defendant 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 they will pay ɔ the plaintiff the amount of any judgment which may be recovered in the action.

of

488. (§ 82.) At any time before judgment, or Sur within ten days thereafter, the bail may surrender the defe defendant in their exoneration; or he may surrender himself to the Sheriff of the county where he was arrested.

489. (§ 83.) For the purpose of surrendering the Same. defendant, the bail, at any time or place before they are finally charged, may themselves arrest, or, by a written authority indorsed on a certified copy of the undertaking, may empower the Sheriff to do so. Upon the arrest of defendant by the Sheriff, or upon his delivery to the Sheriff by the bail, or upon his own. surrender, the bail are exonerated, if such arrest, delivery, or surrender take place before the expiration of ten days after judgment; but if such arrest, delivery, or surrender be not made within ten days after judgment, the bail are finally charged on their under

эг

t.

Bail, how proceeded against.

Bail, how exonerated

Delivery of undertaking to plaintiff, and its acceptance or rejection by him.

Notice of justifica

tion.

taking, and bound to pay the amount of the judgment within ten days thereafter.

490. ($ 84.) If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of the original judgment.

491. ($85.) The bail are exonerated by the death of the defendant or his imprisonment in a State Prison, or by his legal discharge from the obligation to render himself amenable to the process.

492. (§ 86.) Within the time limited for that purpose, the Sheriff must file the order of arrest in the office of the Clerk of the Court in which the action is pending, with his return indorsed thereon, together with a copy of the undertaking of the bail. The original undertaking he must retain in his possession until filed, as herein provided. The plaintiff, within ten days thereafter, may serve upon the Sheriff a notice that he does not accept the bail, or he is deemed to have accepted them, and the Sheriff is exonerated from liability. If no notice be served within ten days, the original undertaking must be filed with the Clerk of the Court.

493. (§ 87.) Within five days after the receipt of notice, the Sheriff or defendant may give to the plaintiff, or his attorney, notice of the justification of the same, or other bail (specifying the places of residence and occupations of the latter), before a Judge of the Court, or County Judge, or County Clerk, at a specified time and place; the time to be not less than five nor more than ten days thereafter, except by consent New under- of parties. In case other bail be given, there must be a new undertaking.

taking, if other bail.

tion of bail.

494. (§ 88.) The qualifications of bail are as fol- Qualificalows:

1. Each of them shall be a resident and householder, or freeholder, within the county;

2. Each must be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this Chapter, over and above all his debts and liabilities, exclusive of property exempt from execution; but the Judge or County Clerk, on justification, may allow more than two sureties to justify, severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

tion of bail.

495. (§ 89.) For the purpose of justification, each Justifica of the bail must attend before the Judge or County Clerk, at the time and place mentioned in the notice, and may be examined on oath on the part of the plaintiff, touching his sufficiency, in such manner as the Judge or Clerk, in his discretion, may think proper. The examination must be reduced to writing, and subscribed by the bail, if required by the plaintiff.

of bail.

496. ($ 90.) If the Judge or Clerk find the bail Allowance sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the Sheriff is thereupon exonerated from liability.

money with

497. (§ 91.) The defendant may, at the time of Deposit of his arrest, instead of giving bail, deposit with the Sheriff. Sheriff the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this Chapter, the defendant may deposit such amount instead of giving bail. In either case the Sheriff must give the defendant a certificate of the deposit made, and the defendant must be discharged from custody.

Payment of
money into
Court by
Sheriff.

Substituting bail for deposit.

Money deposited, how applied or disposed of.

Sheriff, when liable as bail, and his discharge from liability.

Proceed

ings on judgment against Sheriff.

498. (§ 92.) The Sheriff must, immediately after the deposit, pay the same into Court, and take from the Clerk receiving the same two certificates of such payment, the one of which he shall deliver to the plaintiff's attorney, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the Sheriff, to collect the sum deposited, as in other cases of delin

quency.

499. (§ 93.) If money is deposited, as provided in the two last sections, bail may be given and may justify upon notice, at any time before judgment; and on the filing of the undertaking and justification with the Clerk, the money deposited must be refunded to the defendant.

500. (§ 94.) Where money has been deposited, if it remain on deposit at the time of the recovery of judgment in favor of the plaintiff, the Clerk must, under the direction of the Court, apply the same in satisfaction thereof; and after satisfying the judgment, refund the surplus, if any, to the defendant. If the judgment is in favor of the defendant, the Clerk must, under like direction of the Court, refund to him the whole sum deposited and remaining unapplied.

501. ($ 95.) If, after being arrested, the defendant escape or is rescued, the Sheriff is liable as bail; but he may discharge himself from such liability by the giving bail at any time before judgment.

502. (§ 96.) If a judgment is recovered against the Sheriff upon his liability as bail, and an execution thereon is returned unsatisfied in whole or in part, the same proceedings may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency.