CHAPTER I. ARREST AND BAIL. 478. No person to be arrested except as prescribed by this Code. 479. Cases in which defendant may be arrested. 480. Order for arrest, by whom made. 481. Affidavit to obtain order, what to contain. 482. Security by plaintiff before order of arrest. 483. Order, when made, and its form. 484. Affidavit and order to be delivered to the sheriff, and copy to defendant. 485. Arrest, how made. 486. Defendant to be discharged on bail or deposit. 497. Bail, how given. 488. Surrender of defendant. 489. Same. 490. Bail, how proceeded against. 491. Bail, how exonerated. 492. Delivery of undertaking to plaintiff, and its acceptance or rejec tion by him. 493. Notice of justification. New undertaking, if other bail. 494. Qualification of bail. 495. Justification of bail. 496. Allowance of bail. 497. Deposit of money with sheriff. 498. Payment of money into court by sheriff. 499. Substituting bail for deposit. 500. Money deposited, how applied or disposed of. 501. Sheriff, when liable as bail, and his discharge from liability. 502. Proceedings on judgment against sheriff. 503. Motion to vacate order of arrest or reduce bail. Affidavits on motion. $504. When the order vacated or bail reduced. § 478. No person can be arrested in a civil action, except as prescribed in this Code. Imprisonment for debt and torts-Const. Cal. art. 1, sec. 15. Arrest-parties privileged from, Const. Cal. art. 2, sec. 2; art. 4, sec. 11; Political Code, sec. 1069. Fraud-requisite, for arrest, 1 Cal. 438; 6 Cal. 240; sec. 479, subd. 4, note; but see Const. Cal. art. 1, sec. 15. Ne exeat-49 Cal. 465. § 479. The defendant may be arrested, as hereinafter prescribed, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State with intent to defraud his creditors; 2. 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 an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity; or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty; 3. 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, to prevent its being found or taken by the sheriff; 4. When the defendant has been guilty of a fraud in contracting the 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; 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. [In effect July 1st, 1874.] Arrest-generally, 2 Cal. 609; 3 Cal. 377; 8 Cal. 87. SUBDIVISION 1. Contract, express or implied-see Civil Code, secs. 1620, 1621. SUBDIVISION 2. SUBDIVISION 3. Agent's misappropriation—1 Cal. 346; 8 Cal. 624. Claim and delivery-generally, see sec. 509 et seq. SUBDIVISION 4. Fraud-1 Cal. 440; 6 Cal. 61, 240. § 480. An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought. [In effect March 9th, 1880.] § 481. The order may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section four hundred and seventy-nine. 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 court. [In effect July 1, 1874.] Order-generally, 3 Cal. 377; 6 Cal. 57, 318; 10 Cal. 411. § 482. Before making the order, the judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least five hundred dollars, 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 the sum specified in the undertaking. The undertaking must be filed with the clerk of the court. [In effect July 1st, 1874.] Undertaking-generally, secs. 941n, 1057; also see secs. 259, subd. 3, and 581, subd. 1. § 483. The order may be made at the time 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 pending. Order of arrest-when may be made, 6 Cal. 320. § 484. The order of arrest, with a copy of the affidavit upon which it is made, must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. § 485. The sheriff must execute the order by arresting the defendant and keeping him in custody until discharged by law. § 486. The defendant, at any time before execution, must be discharged from the arrest, either upon giving bail or upon depositing the amount mentioned in the order of arrest. § 487. The defendant may give bail by 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 to the plaintiff the amount of any judgment which may be recovered in the action. Bail-effect of, as waiver, 6 Cal. 59; qualifications of, secs. 494, 1057; sureties, complaint against, 45 Cal. 252. § 488. At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration; or he may surrender himself to the sheriff of the county where he was arrested. Surrender of defendant-5 Cal. 93; 8 Cal. 552. § 489. For the purpose of surrendering the 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 undertaking, and bound to pay the amount of the judgment within ten days thereafter. Bail-liability of, 6 Cal. 57. Judgment-within ten-days after, 8 Cal. 554. § 490. If the bail neglect or refuse to pay the judg ment within ten days after they are finally charged, an action may be commenced against such bail for the amount of the original judgment. § 491. 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. 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. Within five days after the receipt of notice, the sheriff or defendant may give to the plaintiff, or his attor ney, 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 clerk, at a specified time and place; the time to be not less than five nor more than ten days thereafter, except by consent of parties. In case other bail be given, there must be a new undertaking. [In effect March 9th, 1880.] § 494. The qualifications of bail are as follows: 1. Each of them must be a resident and householder, or freeholder, within the state. 2. Each must be worth the amount specified in the order of the 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. [In effect July 1st, 1874.] Qualifications-of bail, sec. 1057. § 495. For the purpose of justification, each 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. Justification-sec. 259, subd. 3; 10 Cal. 189. § 496. If the judge or clerk find the bail 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. Court commissioners-power as to bail, sec. 259, subd. 3. § 497. The defendant may, at the time of his arrest, instead of giving bail, deposit with the 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. Deposit in court-secs. 572-574, 2104. § 498. The sheriff must, immediately after the deposit, pay the same into court, and take from the clerk receiv ing 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 delinquency. Sheriff-penalty for non-payment, Political Code, sec. 4181. § 499. If money is deposited, as provided in the two last sections, bail may be given, and may justify upon |