in support of the above allegations of fraud, to wit: [Facts and circumstances]. Subscribed and sworn to before me, this .... day of .... ...... A.D. 18.. ...... ...... County Clerk. Affidavit for Order of Arrest-Fraudulent Debtor. In the district court of the judicial district of the state of California, in .... and for the .... county of Plaintiffs, against Defendant. .., being duly sworn, says, that he is one of the plaintiffs in the above-entitled action; that the cause of action in this case arose after the passage of the act of the legislature of the state of California, entitled "An act to regulate proceedings in civil cases in the courts of justice of this state," passed April 29th, 1851. That it is an action for the recovery of money or damages, on a cause of action upon an implied contract, and that defendant in said action has been guilty of fraud in contracting the debt and incurring the obligations for which the said action is brought. And affiant further states and shows the following facts and circumstances in support of the above allegations of fraud, to wit: stances]. Subscribed and sworn to before me, this .... day of General Affidavit for Order of Arrest. State of California, district. In the district court of the .... judicial district. [Facts and circum ...... one of the plaintiffs in this suit, being duly sworn, deposes and says, that the cause of action in this case arose after the passage of the act of the legislature of the state of California, entitled "An act to regulate proceedings in civil cases of the courts of justice of this State," passed April 29th, 1851. That it is an action for the recovery of money or damages, in a cause of action arising upon an express contract, and that the defendant is about to depart from this state with the intent to defraud his creditors [or set out other ground of arrest as prescribed by the statute]. And deponent further states and shows to the court the following facts and circumstances in support of the above allegations of fraud, that is to say: [Here set out the facts, etc.]. Sworn to before me this day of.... A.D. 18.. .... ....... Deputy Clerk, Undertaking on Arrest. In the district court of the.... judicial district of the state of California, in and for the .... county of..... Plaintiff, against Defendant. .... ..... Whereas, in a certain action in the district court of the judicial district of the state of California, in and for the .... county of wherein .... .... is plaintiff, and.... defendant, an order was duly made and delivered to the sheriff of the .... county of...., requiring him forthwith to arrest the said defendant, and hold ...... to bail, in the sum of ...... dollars; and the said sheriff having arrested the said defendant and taken into custody by virtue of the said order: Now, therefore, we ........, residing at the by occupation a of ..... ..... ...... in the county of and ........ residing at in the county of by occupation a......, are jointly and severally bound in the sum dollars, the amount in the said order of arrest mentioned, that the said defendant shall at all times render.... amenable to the process of the said court during the pendency of the said action, and to such as may be issued to enforce the judgment therein; or, that we will pay to the said plaintiff the amount of any judgment which may be recovered in the said action. Dated the.... day of.... A.D. 18.. [Sureties must justify as in other undertakings. See ATTACHMENT.} Order of Arrest. In the district court of the .... judicial district of the state of California, in and for the .... county of.... Plaintiff, against Defendant. The people of the state of California, to the sheriff of the.... county of....: The above-named plaintiff having commenced an action in the district court of the.... judicial district of the state of California, in and for the ... county of...., against the above-named defendant, and it duly appearing to me, from affidavits submitted on the part of the said plaintiff, that a sufficient cause of action exists, and that the case is one of those mentioned in section seventy-three of the act, entitled "An act to regulate proceedings in civil cases in the courts of justice of this state," passed April 29th, 18.., to wit: That the said defendant has been guilty of fraud in contracting the debt for which the said action is brought, and the necessary undertakin given, I, the undersigned, judge of the said district authority in me vested by law, do order and requ the.... county of...., forthwith to arrest the be found in your county, and hold.... to dollars, and that you return this order, with your proceedings thereon, to the clerk of the said district court, on the .... day of.... A.D. 18. Dated the .... day of .... A.D. 18.. ..... Judge of said.... District. ARREST OF JUDGMENT. Arrest of Judgment.-The act of a court, by which the court refuses to give judgment, because upon the face of the record or proceedings the plaintiff is not entitled to it. A motion, in arrest of judgment, is addressed to the court before which the action has been tried, and is based on the record. ARSON. Arson. The malicious burning of a house of another. See CRIMES AND PUNISHMENTS. ARTICLES OF PARTNERSHIP. Articles of Partnership.-A written agreement by which parties enter into a partnership upon the conditions therein mentioned. See PARTNERSHIP. ASSAULT. In California.-An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. It is punishable by fine not exceeding five hundred dollars or by not exceeding three months imprisonment. In Oregon -An assault by a person not being armed with a dangerous weapon is punishable by not less than three months nor more than one years imprisonment in county jail or fined not less than fifty, nor more than five hundred dollars. o both. ssaulter is armed then he may be ary not over one year. Oregon except there is or unarmed, and the punishment is by fine not exceeding five hundred dollars or six months imprisonment. In Nevada and Arizona.-An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another; and every person convicted thereof, shall be fined in a sum not exceeding five hundred dollars, or imprisonment in the county jail not exceeding six months. In Idaho.-Same as in Nevada except the fine shall not be less than twenty, nor more than one thousand dollars, or by not to exceed six months imprisonment. In Montana.-Same as in Nevada except the fine shall be no less than five nor more than fifty dollars. What Constitutes.-To constitute an assault, the defendant must intend to strike, have the ability to strike, and must make the attempt. An attempt to do violence accompanied by acts which, avoided by the other party, would, in the usual course of crime be followed by violence, amounts to an assault; and in no case is it necessary that a blow should be given to constitute this offense, nor is it always necessary that tho assailant should be at any time. within striking distance, Intention and Acts.-Drawing a pistol and pointing it at another, shaking the closed hand or striking at another, and in short, doing any act which, if not prevented or avoided in some way, would amount to a battery, is an assault. If A strikes or frightens a horse which B is riding or driving, with intent to cause it to run away [and wo may here observe that in most cases the intent is judged by the act], it is an assault; and if the horse does run away and injures B, it is an assault aud battery. Repelling Assaults.-In repelling an assault, the person assailed must beware or he too will lay himself liable. Ho should use no more force than is absolutely necessary [and it is for a jury to say whether he did or not]; and if he does, he becomes himself the aggressor, and must answer to the offended law. We must not be understood as recommending a person on whom an assault is committed to consult a lawyer before he repels it. He must resist on the spot, instantly, or he must not resist at all. ASSAULT AND BATTERY. In California.-A battery is any unlawful use of force or violence upon the person of another; and is punishable by fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year. In Oregon. The same as an assault. [See ASSAULT, Oregon.] In Washington, Nevada, Arizona, Idaho and Montana. An assault and battery is the unlawful beating of another. The punishment is usually the same as for assault. At Common Law. The common law is substantially the same, and so is the law of the several States. Every battery includes an assault; and, on the same principle, the greater crime always includes the less of the same nature. Assault and battery is nothing more than perfected assault, as the object of the assault is carried out in the battery. Therefore, what we have said under the head "Assault, comes aptly in this place, and which see. A mere touch of the person, in an angry, rude or threatening manner, constitutes the offense as well as a violent blow. The two batteries only differ in degree. There have been cases where the slightest touch has been punished by the severest penalty. In England where the common law prevails, the penalty depends in a high degree upon the person aggrieved. Repelling Assault and Battery.-The same caution must be observed here as in cases of assault, and no more force should be used than is absolutely necessary to repel the assailant. If more force is used than is necessary for selfprotection, the assailed becomes the assailant. On the other hand, the assailed is not required or expected to calcalate, or weigh the force of the return blow. |