subdivision does not apply to a claim for damages in an action to recover a chattel. 3. To recover money, funds, credits, or property, held or owned by the State, or held or owned, officially or otherwise, for or in behalf of a public or governmental interest, by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same. $550. A defendant may also be arrested as prescribed in this title, in either of the following cases: 1. In an action to recover a chattel, when the chattel, or a part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof. 2. In an action upon contract, express or implied, other than a promise to marry; when the defendant has been guilty of a fraud in contracting or incurring the liability; or has, since the making of the contract, or in contemplation of making the same, removed or disposed of his property with intent to defraud his creditors; or is about to remove or dispose of the same, with like intent. 3. In an action to recover for money received, or to recover property, or damages for the conversion or misapplication of property, where the money was received, or the property was embezzled, or fraudulently misapplied, by a public officer, or by an attorney, solicitor or counselor, or by an officer or agent of a corporation or banking association, in the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity. But this subdivision does not apply to an action to recover a chattel. 4. In an action wherein the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, where the defendant is not a resident of the State, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual. ART. 1. when of cretionary. § 551. In a case specified in subdivision fourth of the last section, the Order, order of arrest can be granted only by the court; is always in its dis- when and eretion; and may be granted or served, either before or after final granted; judgment, unless an appeal from the judgment is pending, upon which right, and security has been given, sufficient to stay the execution thereof. In when diseither of the other cases specified in the last two sections, the order cannot be served after final judgment; but it may be granted, where a proper case therefor is presented, at any time before final judgment. § 552. The recovery of judgment in a court, not of the State, for the Foreign same cause of action; or, where the action is founded upon fraud or not to deceit, for the price or value of the property obtained thereby; does affect right not affect the right of the plaintiff to arrest the defendant, as prescribed in this title. judgment. to arrest. arrested, § 553. A woman cannot be arrested, as prescribed in this title, except Woman in a case where the order can be granted only by the court; or where not to be appears that the action is to recover damages for a wilful injury to except, person, character or property. it etc. Idiot, luna § 554. A lunatic, an idiot or an infant under the age of fourteen tic, or in TITLE 1. fant under years, if arrested, may be discharged from arrest as a privileged person in the discretion of the court. The application for his discharge may not to be be made, in his behalf, by a relative, or by any other person whom the Discharge. court or judge permits to represent him, for the purpose. fourteen, arrested. Person sued in a tative ca § 555. A person prosecuted in a representative capacity, as heir, represen- executor, administrator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, as prescribed in this title, except for his personal act. pacity, not to be ar rested. ARTICLE SECOND. Order required for granted. GRANTING, EXECUTING, AND VACATING OR MODIFYING THE ORDER OF ARREST. 557. Proof necessary to procure order. 558. When order may be granted; effect of complaint subsequently made. 559. Security, upon order of arrest made by a judge. 560. Id.; upon order of arrest granted by the court. 561. Contents of the order; to whom directed; when to be executed. 562. Copies of papers to be delivered to defendant; originals to be filed. 563. Arrest; how made. 564. General provision as to privilege from arrest; discharge of privileged person. 565. Privilege of officers of courts. 566. Defendant arrested to have twenty days to answer. 567. When application to be made to vacate order of arrest, etc. 568. How and to whom application must be made; opposing it by new proofs. *569, *570. Questions of fact arising on the motion. *571. When prior motion not to prejudice subsequent motion. § 556. An order for the arrest of the defendant, except as otherwise arrest; how prescribed in section five hundred and fifty-one of this act, must be obtained from a judge of the court in which the action is brought, or from any county judge. Proof nec essary to procure order. When or der may be granted, effect of complaint subsequently made, timative of arrest judge § 557. The order may be granted, where it appears by the affidavit of the plaintiff or of any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in the last preceding article. The affidavit may also contain any statement tending to determine the amount of bail to be required. § 558. Subject to the provisions of the last preceding article, the order may be granted at any time, after the commencement of the action. It may also be granted, to accompany the summons; but at any time after the filing or service of the complaint, the order of arrest must be vacated on motion, if the complaint shows that case is not one of those mentioned in sections five hundred and forty-nine or five hundred and fifty of this act. Security § 559. Except where the action is brought for a cause specified in upon order subdivision third of section five hundred and forty-nine of this act, or made by a in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking, on the part of the plaintiff, with or without sureties, to the effect, that, if the defendant recovers judgment, the plaintiff will pay all costs which may be awarded to the defendant, and all damage which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least one hundred dollars § 560. Where the order can be granted only by the court, an under Id.; upon order of Stricken out. re ART. 2. arrest taking on the part of the plaintiff may be dispensed with. If it is quired, its form, and the security to be given thereupon, must be such granted by as the court prescribes. the court the order; § 561. The order must be subscribed by the plaintiff's attorney, and, Contents of except where it is granted by the court, by the judge. It may be to whom directed, either to the sheriff of a particular county, or, generally, to when to be the sheriff of any county. It must require the sheriff forthwith to executed. arrest the defendant, if he is found within his county; to hold him to bail in a specified sum; and to return the order, with his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that case, he cannot be arrested afterward under the same order. papers to ered to de § 562. The order of arrest, or, where it was granted by the court, a Copies of certified copy thereof, subscribed by the plaintiff's attorney; and in be deliv either case, the papers upon which the order was granted; must be fendant; delivered to the sheriff, who, upon arresting the defendant, must deliver originals to him a copy thereof. The papers upon which the order was granted, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in sections five hundred and seventy-seven and five hundred and ninety of this act. to be filed. how made. § 563. The sheriff must execute the order by arresting the defend- Arrest; ant, if he is found within his county, and keeping him in custody, until discharged by law. provision arrest; dis person. § 564. This title does not abridge or affect a privilege from arrest given General by law, or a right of action for a breach thereof. A privileged person as to priviis entitled to be discharged from arrest, where other provision is not lege from made therefor by law; by the court, or a judge thereof; or by the charge of privileged County judge of the county, or a judge of a superior city court of the city where the arrest was made. The order must be made, upon proof by affidavit, of the facts entitling the applicant to the discharge; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both. $565. An officer of a court of record, appointed or elected pursuant Privilege to law, is privileged from arrest, during the actual sitting, which he is of courts. required to attend, of a term of the court of which he is an officer, and no longer; but an attorney or counsellor is not thus privileged, unless he is employed in a cause, to be heard at that term. of officers arrested to § 566. Except where an order of arrest can be granted only by the Defendant court, a defendant, arrested before answer, has twenty days after the have twen arrest, in which to answer the complaint; and judgment must be ty days to stayed accordingly. answer. vacate $567. Except where an order of arrest can be granted only by the When ap court, a defendant, arrested as prescribed in this title, may, at any be made to plication to time before final judgment, or, if he was arrested within twenty days order of arbefore final judgment, at any time within twenty days after the arrest, rest, etc. apply to vacate the order of arrest; or to reduce the amount of bail; to increase the security given by the plaintiff; or for one or more of these forms of relief, together, or in the alternative. In a case where the order of arrest can be granted only by the court, a like application ay be made, at any time within twenty days after the arrest; and an plication to increase the security given by the plaintiff, may be made any time before final judgment. TITLE 1. How and to whom motion must be made; opposing it by new proofs. Superse deas, unless de § 568. An application, specified in the last section, may be founded only upon the papers upon which the order was granted; in which case, it must be made to the court, or, if the order was granted by a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper, and the application must be heard upon those papers only. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, it must be made to the court, or, if the order was granted by a judge, out of court, to any judge of the court, upon notice; and it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground of arrest recited in the order, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings; in which case, the plaintiff may show any matter in avoidance thereof, which he might show upon the trial. § 572. Except in a case where an order of arrest can be granted only by the court, if the defendant is in actual custody, by virtue of an fendant is order of arrest in the action, and the plaintiff neglects to enter judg charged in execution, etc. ment in the action, within one month after it is in his power to do so; or neglects to issue execution against the person of the defendant, within three months after the entry of judgment; the defendant must, on his application, made upon notice to the plaintiff, be discharged from custody, by the court in which the action was commenced, or by a judge thereof, within the county where the defendant is in custody; unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon a judgment in the action. Defendant to be discharged on ARTICLE THIRD. DISCHARGING THE DEFENDANT UPON BAIL OR DEPOSIT; JUSTIFICATION OF THE Bail SECTION 573. Defendant to be discharged on bail or deposit. 574. When defendant may elect to give bail, etc., or bond for liberties. 575. Undertaking of the bail; what to contain. 576. Examination of persons offered as bail. 577. Filing, etc., of papers; plaintiff's acceptance or rejection of bail. 578. Notice of justification; new undertaking, if other bail is given. 579. Qualifications of bail. 580. Justification of bail. 581. Allowance of bail. 582. Deposit of money with sheriff. 583. Payment of deposit into court by sheriff. 584. Substituting bail for deposit. 585. How deposit disposed of. 586. When deposit to be paid to a third person. 587. Sheriff, when liable as bail; his discharge from liability. 588. Proceedings on judgment against sheriff. 589. Bail liable to sheriff. 590. Filing papers if bail not given. § 573. The defendant, at any time before he is in contempt, whe the order can be granted only by the court, or, in any other case, bail or de- any time before execution against his person, must be discharged fro arrest, either upon giving bail, or upon depositing the sum specified the order of arrest. The defendant may give bail, or make the depos posit. immediately upon his arrest, at any hour of the day or night; and he must have reasonable opportunity to see* for and to procure bail, before being committed to jail. ART. 3. may elect § 574. Where the defendant is actually confined in the jail, by virtue When deof an order of arrest, and final or interlocutory judgment has been fendant rendered against him in the action, but an execution against his person to give bail, has not been issued, he may elect, either to give a bond for the liberties bond for of the jail, or to give bail or make a deposit, as prescribed in this liberties. article. etc., or the bail; $575. The defendant may give bail, by delivering to the sheriff a Underwritten undertaking, in the sum specified in the order of arrest, exe- taking of cuted by two or more sufficient bail, stating their places of residence what to and occupations, to the following effect: 1. If the order of arrest could be granted only by the court, that the defendant will obey the direction of court, or of an appellate court, contained in an order or a judgment, requiring him to perform the act specified in the order; or, in default of his so doing, that he will, at all times, render himself amenable to proceedings to punish him for the omission. 2. If the action is to recover a chattel, that the defendant will deliver it to the plaintiff, if delivery thereof is adjudged in the action, and will pay any sum recovered against him in the action. 3. In any other case, that the defendant will, at all times, render himself amenable to any mandate, which may be issued to enforce a final judgment against him in the action. contain. sons of bail. etc., of acceptance 576. The officer, taking the acknowledgment of the undertaking, ExaminaDust, if the sheriff so requires, examine under oath, to a reasonable tion of perextent, the persons offering to become bail, concerning their property fered as and their circumstances. The examination must be reduced to writing, bscribed by the bail, and annexed to the undertaking. $577. Within three days after bail is given, the sheriff must file Filing, ith the clerk, the order of arrest, with his return thereon indorsed d; papers; papers upon which the order of arrest was granted; and the under- plaintiff's king of the bail. Within the same time, he must deliver to the or rejection Paintiff's attorney, copies, certified by him, of the order of arrest, trn, and undertaking. The plaintiff's attorney, within ten days Freafter, must serve upon the sheriff a notice that he does not accept bail; otherwise he is deemed to have accepted them, and the Ceriff is exonerated from liability. Where an order of arrest, directing e arrest of two or more defendants, has been executed as to some, but as to all of them, the sheriff may file a copy of the order of arrest, tead of the original. of bail. tion; new ing, if other $578. Within ten days after the receipt of the notice, the sheriff or Notice of defendant may serve upon the plaintiff's attorney, notice of the justificaetification of the same or other bail, specifying the place of residence undertak tal occupation of each of the latter, before a judge of the court, or a bas anty judge, at a specified time and place; the time to be not less given. han five nor more than ten days thereafter, and the place to be within county where one of the bail resides, or where the defendant was ested. If other bail are given, a new undertaking must be executed, prescribed in section five hundred and seventy-five of this act. *So in the original. |