737. How defendant discharged. 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 order of arrest, as provided in this chapter.

Code, s. 298; C. C. P., s. 156.

738. Defendant's undertaking. The defendant may give bail by causing a written undertaking, payable to the plaintiff, to be executed by sufficient surety 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 judg ment therein, or if he be arrested for the cause mentioned in the third subdivision of section seven hundred and twenty-seven, an undertaking to the same effect as that provided by law to be given by defendant for the retention of property, under subchapter entitled Claim and Delivery.

Code, s. 299; C. C. P., s. 157.
Note.

See ss. 727, 752.

739. Defendant's undertaking delivered to clerk; plaintiff's exceptions. Within the time limited for that purpose, the sheriff shall deliver the order of arrest to the clerk of the court in which the suit is brought, with his return endorsed, and a certified copy of the undertaking of the bail, and notify the plaintiff or his attorney thereof. The plaintiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from the liability.

Code, s. 304; C. C. P., s. 162.

740. Qualification of bail. The qualifications of bail must be as follows:

1. Each of them must be a resident and freeholder within the state.

2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution; but the judge, on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

Code, s. 306; C. C. P., s. 164.

741. Notice of justification; new bail. On the receipt of such notice, the sheriff or defendant may, within ten days thereafter, give to the plaintiff, or his attorney, notice of the justification of the same or other bail (specifying the places of residence and occupation of the latter) before the court, justice of the peace, or judge,

at a specified time and place; the time to be not less than five nor more than ten days thereafter. In case other bail be given, there shall be a new undertaking, in the form hereinbefore prescribed.

Code, s. 305; C. C. P., s. 163.

Note. See s. 738.

742. Justification of bail. For the purpose of justification, each of the bail shall attend before the court or judge, or a justice of the peace, 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 a manner as the court, the justice of the peace, or the judge, in his discretion, may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff.

Code, s. 307; C. C. P., s. 165.

743. If bail sufficient, examination certified, sheriff exonerated. If the court, justice of the peace or judge find the bail sufficient, he shall annex the examination to the undertaking, endorse his allowance thereon, and cause them to be filed with the clerk; and the sheriff shall thereupon be exonerated from liability.

Code, s. 308; C. C. P., s. 166.

744. Deposit in lieu of bail. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged from custody.

Code, s. 309; C. C. P., s. 167.

745. Deposit paid into court; liability on sheriff's bond. The sheriff shall, within four days after the deposit, pay the same into court, and shall take from the officer receiving the same two certificates of such payment, the one of which he shall deliver to the plaintiff, 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 delinquencies.

Code, s. 310; C. C. P., s. 168.

746. Bail substituted for deposit. If money be deposited, as provided in the two preceding sections, bail may be given and justified upon notice according to law any time before judgment; and thereupon the judge, court or justice of the peace shall direct, in the order of allowance, that the money deposited be refunded by the sheriff or other officer to the defendant, and it shall be refunded accordingly. Code, s. 311; C. C. P., s. 169.

747. Deposit applied to plaintiff's judgment. 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 to the plaintiff, the clerk or other officer shall, under the direction of the court, apply 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 or other officer shall refund to him the whole sum deposited and remaining unapplied. Code, s. 312; C. C. P., s. 170.

748. Defendant in jail, sheriff may take bail. If any person for want of bail shall be lawfully committed to jail, at any time before final judgment, the sheriff, or other officer having him in custody, may take bail and discharge him; and the bail bond shall be regarded in every respect as other bail bonds, and shall be returned and sued on in like manner; and the officer taking it shall make special return thereof, with the bond, at the first court which is held after it is taken.

Code, s. 318; R. C., c. 11, s. 8.

749. Sheriff liable as bail, when. If, after being arrested, the defendant escape, or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liability by the giving and justification of bail at any time before process against the person of the defendant, to enforce an order or judgment in the action.

Code, s. 313; C. C. P., s. 171.

750. Action on sheriff's bond, when. If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the same proceedings may be had on the official bond of the sheriff, to collect the deficiency, as in other cases of delinquency.

Code, s. 314; C. C. P., s. 172.

751. Bail exonerated. The bail may be exonerated, either 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, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, at any time before final judgment against the bail.

Code, s. 303; C. C. P., s. 161.

752. Surrender of defendant. At any time before final judgment against them, the bail may surrender the defendant in their exonera

tion, or he may surrender himself to the sheriff of the county where he was arrested in the following manner:

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

2. Upon the production of a copy of the undertaking and sheriff's certificate, the court, or a judge thereof, may, upon a notice to the plaintiff of ten days, with a copy of the certificate, order that the bail be exonerated, and on filing the order and papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in subdivision three of section seven hundred and twenty-seven, so as to discharge the bail from an undertaking given to the effect provided by law to be given by defendant for the retention of property, under subchapter entitled Claim and Delivery.

Code, s. 300; C. C. P., s. 158.
Note. See ss. 727, 752.

753. Bail may arrest defendant. For the purpose of surrendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, endorsed on a certified copy of the undertaking, may empower any person over twenty-one years of age to do so.

Code, s. 301; C. C. P., s. 159.

754. Proceedings against bail by motion. In case of failure to comply with the undertaking the bail may be proceeded against by motion in the cause on ten days' notice to such bail.

Code, s. 302; C. C. P., s. 160.

755. Bail liable to sheriff, when. The bail taken upon the arrest shall, unless they justify, or other bail be given or justified, be liable to the sheriff by action for damages which he may sustain by

reason of such omission.

Code, s. 315; C. C. P., s. 173.

756. Bail to pay costs, when. Whenever a notice shall issue against any person, as the bail of any other person, and the bail, at or before the term of the court at which such bail is bound to appear, or ought to plead, shall not be discharged from his liability as bail by the death or surrender of his principal or otherwise; in that case the bail shall be liable for all costs which may accrue on said notice, notwithstanding the bail may be afterwards discharged, by the death or surrender of the principal, or otherwise.

Code, s. 319; R. C., c. 11, s. 10.

757. Bail not discharged by amendment. No amendment of process or pleading shall discharge the bail of the party arrested thereon, unless the amendment be to enlarge the sum demanded beyond the sum expressed in the bail bond.

Code, s. 320; R. C., c. 11, s. 11.

XXXIV.

ATTACHMENT.

758. When issued. A warrant of attachment against the property of one or more defendants in an action, may be granted upon the application of the plaintiff, as specified in this chapter, when the action is to recover a sum of money only, or damages for one or more of the following causes:

1. Breach of contract, express or implied.

2. Wrongful conversion of personal property.

3. Any other injury to real or personal property, in consequence of negligence, fraud, or other wrongful act.

act.

4. Any injury to the person, caused by negligence or wrongful

Code, s. 347; 1893, c. 77; 1901, c. 740; C. C. P., s. 197.

759. Affidavit must show what. To entitle the plaintiff to such a warrant he must show by affidavit to the satisfaction of the court granting the same as follows:

1. That one of the causes of action specified in the preceding section exists against the defendant. If the action is to recover damages for breach of contract, the defendant must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him.

2. That the defendant is either a foreign corporation or not a resident of the state, or a domestic corporation none of whose officers can be found in the state after due diligence; or, if he is a natural person and a resident of the state, that he has departed therefrom, with intent to defraud his creditors or to avoid service of summons, or keeps himself concealed therein with like intent; or, if the defendant is a natural person or a domestic corporation, that he or it has removed, or is about to remove, property from the state, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property with the like intent.

Code, s. 349; 1897, c. 476; C. C. P., s. 201.

760. Affidavits for attachment filed. It shall be the duty of the plaintiff procuring a warrant of attachment, within ten days from the issuing thereof, to file the affidavits on which the same was