wilfully injuring or wrongfully taking, detaining, or converting property.

Second. In an action for a fine or penalty, or for money, or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or by an attorney, or by an officer or agent of a corporation in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office or in a professional employment.

Third. In an action to recover the possession of personal property unjustly detained, when the property or any part thereof has been concealed, removed, or disposed of, so that it can not be found or taken by the marshal, and with intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof.

Fourth. When the defendant has been guilty of a fraud in contracting a debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, detention, or conversion of which the action is brought.

Fifth. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.

But no female shall be arrested in any action except for injury to person, character, or property.

Proceeding to

SEC. 100. The mode of proceeding to obtain the arrest of the defendant for any of the causes specified in the section last preceding shall obtain an arrest. be as provided in this section:

tion.

First. At any time after the commencement of an action at law, and -after combefore judgment, the plaintiff in such action shall, in the discretion of mencement of acthe court, or the judge thereof be entitled to a writ of arrest for such defendant whenever he shall make and file with the clerk of the court in which such action is commenced, or is at the time pending, an affidavit that the plaintiff has a sufficient cause of action therein, and that the case is one of those mentioned in the section last preceding; and shall also make and file with such clerk an undertaking, with sufficient sureties, in a sum not less than three hundred dollars, and equal to the amount for which the plaintiff prays judgment. Such undertaking shall be conditioned that the plaintiff will pay all costs that 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 amount specified in the undertaking.

-affidavit

in

Second. The affidavit may be either positive or upon information and belief; but if the latter, it shall state the facts upon which the support of applibelief is founded. The plaintiff shall also file with his undertaking cation. the affidavits of the sureties therein, from which it must appear that such sureties are residents of the district, and that they are, taken together, worth double the amount of the sum specified in the undertaking over all debts and liabilities and property exempt from execution. No person not qualified to become bail upon arrest is qualified to become surety in an undertaking for an arrest.

Third. The writ of arrest shall be issued by the court, judge, or -issue of writ commissioner in his or its discretion, and shall require the marshal discretionary, etc. forthwith to arrest the defendant and hold him to bail in the amount specified in the undertaking, and that in default thereof to keep him in custody until discharged by law, and to return the writ to the court from which it issued, with his doings indorsed thereon, when required by the plaintiff at any time before the defendant may be arrested, or afterwards whenever the defendant shall have been discharged from the arrest or bail or otherwise.

-copy of affi

Fourth. The plaintiff shall deliver or cause to be delivered to the marshal with the writ a copy of the affidavit upon which the warrant davit to be deliv was issued, subscribed by himself or attorney. The marshal, upon the ered to marshal.

Defendant may

be discharged on bail or deposit. Bail, how given.

Surrender of defendant.

copy of under

taking to be delivered to marshal,

etc.

-exoneration

of bail.

-arrest of de

delivery of the writ, shall indorse thereon the date of the receipt, and upon the arrest of the defendant shall deliver to him a copy of the writ and such copy of the affidavit. The marshal shall execute the writ by arresting the defendant and keeping him in custody until discharged by law.

SEC. 101. The defendant, at any time before execution, shall be discharged from the arrest, either upon giving bail or upon depositing the amount mentioned in the writ of arrest, as provided in this chapter.

SEC. 102. The defendant may give bail by causing a written undertaking to be executed in favor of the plaintiff by sufficient sureties, stating their places of residence, to the effect that the defendant shall 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 if he be arrested for the cause mentioned in the third subdivision of section ninety-nine, and undertaking to the same effect as that provided by section one hundred and twenty-seven. SEC. 103. At any time before failure to comply with the undertaking the bail may surrender the defendant to their exoneration, or he may surrender himself to the marshal in the following manner:

First. A certified copy of the undertaking of the bail shall be delivered to the marshal, who shall detain the defendant in his custody thereon as upon a writ of arrest, and shall, by a certificate in writing, acknowledge the surrender.

Second. Upon a production of a copy of the undertaking and marshal's certificate, the court may, upon a notice to the plaintiff of eight days, with a copy of the certificate, order that the bail be exonerated, and on filing the order and the papers used on the application with the clerk of the court where the action is pending they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in the third subdivision of section ninety-nine so far as to discharge the bail from an undertaking given to the effect provided by section one hundred and twenty-eight.

SEC. 104. For the purpose of surrendering the defendant, the bail fendant by party at any time and place, before they are finally charged, may themselves giving bail. arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower the marshal or any other person of suitable age and discretion to do so.

SEC. 105. In case of the failure to comply with the undertaking, the bail may be proceeded against by action only.

SEC. 106. The bail may be exonerated, either by the death of the defendant or his imprisonment in the penitentiary, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the marshal or any deputy in execution thereof, within twenty days after the commencement of the action against the bail or within such further time as may be granted by the court.

SEC. 107. Within five days after the execution of the undertaking of the bail the marshal or deputy having the defendant in custody shall deliver to the plaintiff or his attorney, or such other person as the plaintiff may direct, a certified copy of the undertaking, with the data of the arrest indorsed thereon. In any other case the marshal may mail such copy within the same time to the plaintiff or his attorney, within the district, or to either of them, as the plaintiff may direct. The plaintiff, within ten days from the delivery of such copy, or fifteen days from the mailing of the same, if sent by mail, may serve upon the marshal or deputy for the defendant in custody a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the marshal shall be exonerated from liability. If no notice be served within ten days, the original undertaking shall be filed with the court where the action is pending.

Notice of justifi

SEC. 108. On the receipt of such notice the marshal or defendant may, within ten days thereafter, give to the plaintiff or his attorney cation of bail. rotice of the justification of the same or other bail, specifying the place of residence and occupation of the latter, before a judge of the district court or clerk of the court where the action is pending, or a commissioner, at a specified time and place, the time to be not less than five nor more than ten days thereafter. In case neither the plaintiff nor his attorney reside within one hundred miles from where the arrest is made, the notice may be served upon the person, and in the manner provided for serving the copy of the undertaking in the section last preceding. In case other bail be given there shall be a new undertaking, in the form and to the effect prescribed in section one hundred and two.

SEC. 109. The qualifications of bail shall be as follows:

Qualifications of

First. Each of them shall be a resident within the district; but no bail. counselor or attorney at law, marshal, deputy marshal, commissioner, clerk of any court, or other officer of any court shall be permitted to become bail in any action.

Second. Each of them shall be worth the amount specified in the writ of arrest, or the amount to which the same may be reduced as provided in this chapter, over and above all debts and liabilities, and exclusive of property exempt from execution; but the judge, clerk, or commissioner on justification may allow more than two sureties to justify severally in amounts less than that expressed in the writ, if the whole justification shall be equivalent to that of two sufficient bail.

SEC. 110. For the purpose of justification each of the bail shall attend before the judge, commissioner, or 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, commissioner, or clerk in his discretion may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff.

Justification of

bail.

Allowance of

SEC. 111. If the judge, commissioner, or clerk shall find the bail sufficient, he shall annex the examination to the undertaking, indorse bail. his allowance thereon, and cause them to be filed with the clerk of the court in which the action is pending; and the marshal shall thereupon be exonerated from liability.

bail.

Payment by

SEC. 112. The defendant may, at the time of his arrest, instead of Deposit of giving bail, deposit with the marshal the amount mentioned in the money in lieu of writ. Thereupon the marshal shall give the defendant a certificate of the deposit made and the defendant shall be discharged out of custody. SEC. 113. The marshal shall, within ten days after the deposit, pay the same into the court, and take from the clerk receiving the same two marshal of deposit certificates of such payment, the one of which he shall deliver to the to clerk. plaintiff or his 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 marshal to collect the sum deposited as in other cases of delinquency.

Bail may be

refunded.

SEC. 114. If money be deposited, as provided in the last two sections, bail may be given and justified upon notice, as prescribed in section given and deposit one hundred and two, at any time before judgment, and on the filing of the undertaking and justification with the clerk the money deposited shall be refunded by such clerk to the defendant.

Deposit, how ap

SEC. 115. When money shall have been so deposited, if it remain on deposit at the time of an order or judgment for the payment of money plied or disposed to the plaintiff, the clerk shall, under the direction of the court, apply of. the same in satisfaction thereof, and, after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall refund to him the whole sum deposited and remaining unapplied.

ity.

When marshal

SEC. 116. If, after being arrested, the defendant escape or be resliable as bail and cued, or bail be not given or justified, or a deposit be not made instead how discharged from such liabil- thereof, the marshal himself shall be liable as bail; but he may discharge himself from such liability by the giving and justification of bail, as provided in sections one hundred and eight, one hundred and nine, one hundred and ten, and one hundred and eleven, at any time before process against the person of the defendant to enforce an order or judgment in the action.

Judgment against marshal as bail.

When bail liable to marshal.

SEC. 117. If a judgment be recovered against the marshal upon his liability as bail, and an execution thereon be 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.

SEC. 118. The bail taken upon arrest shall, unless they justify, or other bail be given or justified, be liable to the marshal by action for any damages which he may sustain by reason of such omission. Plaintiff liable in SEC. 119. The fees which shall be allowed to the marshal for the the first instance food and maintenance of any defendant arrested under the provisions for the mainte- of this chapter shall be as provided by law, and the plaintiff shall be nance of defend- liable in the first instance for such fees, and if required by the marshal,

ant.

When marshal

shall pay the same weekly in advance; and such fees so paid shall be added to the disbursements taxed or accruing in the case, and be collected as other disbursements.

SEC. 120. If the plaintiff shall neglect to pay such fees for three days may discharge de- after a demand of payment the marshal may discharge the defendant fendant for non- out of custody.

payment of main

tenance.

Motion to vacate writ of arrest.

Proceedings

thereon.

SEC. 121. A defendant arrested may, at any time before judgment, apply on motion to the court or judge thereof in which the action is pending, upon notice to the plaintiff, to vacate the writ of arrest.

SEC. 122. If a motion be made upon affidavits or other proofs on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs in addition to those upon which the writ was issued. If upon the hearing of such motion it shall satisfactorily appear that there was not sufficient cause to allow the writ, or that there is other good cause which would entitle him to be discharged on habeas corpus the same shall be vacated, or in case he has given bail the court may discharge the same or reduce the amount thereof on good cause shown.

When delivery

SEC. 123. In an action to recover possession of personal property the may be claimed in plaintiff, at any time after the action is commenced, and before judgpossession of per- ment, may claim the immediate delivery of such property, as provided sonal property.

in this chapter.

SEC. 124. When a delivery is claimed an affidavit shall be made by the plaintiff, or by some one in his behalf, showing—

Affidavit there

for, what it must

First. That the plaintiff is the owner of the property claimed (par- show. ticularly describing it), or is lawfully entitled to the possession thereof by virture of a special property therein, the facts in respect to which shall be set forth;

Second. That the property is wrongfully detained by the defendant; Third. The alleged cause of the detention thereof, according to his best knowledge, information, and belief;

Fourth. That the same has not been taken for a tax assessment or fine, pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure; and

Fifth. The actual value of the property.

SEC. 125. The plaintiff may thereupon, by an indorsement in writing upon the affidavit, require the marshal to take the property from the defendant and deliver it to the plaintiff.

Indorsement thereon, requiring

the marshal to take property. Undertaking to

SEC. 126. Upon the receipt of the affidavit and indorsement thereon, with a written undertaking executed by two or more sufficient sureties marshal on the approved by the marshal, to the effect that they are bound in double part of plaintiff. the value of the property as stated in the affidavit for the prosecution of the action for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against the plaintiff, the marshal shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall also, without delay, serve on the defendant a copy of the affidavit, indorsement thereon, and undertaking, by delivering the same to him personally, if he can be found, or to his agent from whose possession the property is taken; or, if neither can be found, by leaving them at the usual place of abode of either with some person of suitable age and discretion; or, if neither have any known place of abode, by putting them in the post-office directed to the defendant at the post-office nearest to him.

thereon.

SEC. 127. The defendant may, within three days after the service of Exception to a copy of the affidavit and undertaking, give notice to the marshal that sureties by defendhe excepts to the sufficiency of the sureties. If he fail to do so, he ant, proceedings shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice in like manner as upon bail on arrest. And the marshal shall be responsible for the sufficiency of the sureties until the objection to them is either waived, as above provided, or until they shall justify or new sureties shall be substituted and justified. If the defendant except to the sureties, he can not reclaim the property, as provided in the next section.

How and when

SEC. 128. At any time before the delivery of the property to the plaintiff the defendant may, if he do not except to the sureties of the defendant entitled plaintiff, require the return thereof upon giving to the marshal a writ- to redelivery. ten undertaking, executed by two or more sufficient sureties, to be approved by the marshal, to the effect that they are bound in double the value of the property as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within three days after the taking and service of a copy of the affidavit and undertaking of a defendant, it shall be delivered to the plaintiff, except as provided in section one hundred and thirty-two.

Justification of

ant's undertaking.

SEC. 129. The defendant's sureties, upon a notice to the plaintiff or his attorney of not less than two nor more than six days, shall justify sureties on defendbefore a judge of the district court or commissioner, or the clerk of the court in which the action is pending, in the same manner as upon