4th. 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.

5th. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.

1. One partner cannot arrest another, suing to recover money.—Soule v. Hayward, 1 Cal., 345; Cary v. Williams, 1 Duer, 667.

2. A party will be discharged from arrest where the process, though proper in form, has been issued in an improper case.-Soule v. Hayward, 1 Cal., 345.

3. The representations, if false or fraudulent, must precede the contract.—Snow v. Halstead, 1 Cal., 359.

4. In a suit to recover money received by a person as agent, he cannot be arrested without showing some fraudulent conduct on his part, or a demand on him by the principal, and a refusal on his part to pay. An arrest in such case is prohibited by section 15, art. I, of the constitution.-Ex parte Holdforth, 1 Cal., 438.

7. After administering the oath, the judge shall issue an order that the prisoner be discharged from custody, if he be imprisoned for no other cause; and the officer, upon the service of such order, shall discharge the prisoner forthwith, if he be imprisoned for no other cause.

8. If such judge should not discharge the prisoner, he may apply for his discharge at the end of every succeeding ten days, in the same manner as above provided, and the same proceedings shall thereupon be had.

9. The prisoner after being so discharged shall be forever exempted from arrest or imprisonment for the same debt, unless he shall be convicted of having willfully sworn falsely upon his examination before the judge, or in taking the oath before prescribed.

10. The judgment against any prisoner, who is discharged as aforesaid, shall remain in full force against any estate which may then, or at any time afterwards, belong to him; and the plaintiff may take out a new execution against the goods and estate of the prisoner in like manner as if he had never been committed.

11. The plaintiff in the action may at any time order the prisoner to be discharged, and he shall not thereafter be liable to imprisonment for the same cause of action.

12. Whenever a person is committed to jail on an execution issued on a judgment recovered in a civil action, the creditor, his agent, or attorney, shall advance to the jailor, within twenty-four hours after such commitment, sufficient money to pay for the support of said prisoner during the time for which he may be imprisoned; and in case the money should not be so advanced, or if, during the time the prisoner may be in confinement, the money should be expended in the support of such prisoner, and the creditor should neglect, for twenty-four hours, to advance such further sum as might be necessary for his support, the jailor shall forthwith discharge such prisoner from custody, and such discharge shall have the same effect as a discharge by order of the creditor.

5. A person once arrested and discharged, cannot be re-arrested in the same action., McGilvery v. Morehead, 2 Cal., 607.

6. The judgment should find the facts of the fraud upon which the defendant can only be imprisoned on final process, or his bail become forfeit.-Matoon v. Eder, 6 Cal., 57; Ex parte Cutts, ib.

7. The provision of arrest for willful injury to person or character, is in conflict with the constitution.-Ex-parte Prader, 6 Cal., 239.

8. 2d. An allegation, that the money was collected and received by the defendant, as the agent or attorney in fact of the plaintiff, is in the alternative form, and cannot be permitted. The character or capacity must be averred in direct and positive terms, or the charge must fall.-Porter v. Hermann, 7 Cal., Oct. T.

9. 4th. The word "obligation" is here used equivalent to "legal liability or legal duty."-Crandall v. Ryan, 5 Abbott, 162.

10. Fraud may consist in the misrepresentation or concealment of material facts, and may be inferred from the circumstances and conditions of the parties contracting. Belden v. Henriquez, 7 Cal., July T.

74. An order for the arrest of the defendant shall be obtained from a judge of the court in which the action is brought, or from a county judge.

75. The order may be made whenever it shall appear 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 seventy-three. The affidavit shall be either positive, or upon information and belief; and when upon information and belief, it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the clerk of the county.

1. The affidavit must contain sufficient facts, and must not refer to the complaint for the matter, without setting forth sufficient of itself.-McGilvery v. Morehead, 2 Cal.,

607.

2. It is sufficient if the circumstances set forth in the affidavit would induce a reasonable belief that fraud was committed.-Southworth v. Resing, 3 Cal., 377.

3. An affidavit on information and belief, followed by an averment of the facts on which the belief is founded, also stated on information and belief, is sufficient.-Matoon v. Eder, 6 Cal., 57.

4. Until the complaint is filed, and suit thereby commenced, no order of arrest can issue.-Ex-parte Cohen, 6 Cal., 318.

5. Putting in and perfecting bail is a waiver of all defects in the affidavit.-Stewart v. Howard, 15 Barb., 26.

6. In the affidavit upon which an order of arrest is to be founded, two things must be made to appear; that a sufficient cause of action exists, and that it is among those

specified in section 73. It is not sufficient for a party to state that "his case is one of those mentioned in section 73." He must state the facts.-Pindar v. Black, 4 How Pr., 95.

7. In an affidavit for the arrest of the defendant for fraudulently obtaining goods, the facts within the knowledge of the plaintiff must be stated positively. What is stated on information, should be set out particularly, and good reasons given why a positive statement cannot be procured.-Whitlock v. Roth, 5 ib., 143.

8. It is not necessary to state in the affidavit for an arrest, that a summons has been issued. Conklin v. Dutcher, 5 ib., 386.

9.

Where the right to arrest the defendant is derived from the nature of the action e. g., in an action for embezzlement, the defendant will not be allowed upon a motion to discharge from arrest, affidavits to show that there is no cause of action.-Geller v. Seixas, 4 Abbott, 103.

10. Where an order of arrest is granted on plaintiff's own affidavit, and a discharge is moved for solely on the original papers, the affidavit of plaintiff being uncontradicted is to be taken as true; but it is to be strictly construed against plaintiff. The defendant was discharged from arrest on the ground that the allegations of the plaintiff's affi davit, on which alone the arrest was ordered, were insufficient to establish an intent on the part of the defendant to defraud his creditors.-Hathorne v. Hall, 4 Abbott, 227.

11. The affidavit must state the facts and circumstances to establish the grounds of the application for the arrest; stating the single fact that the defendant intends to depart from the State with intent to defraud his creditors, is not sufficient legal evidence.— Furman v. Walter, 13 How. Pr., 348.

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76. Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder, or freeholder, within the State, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the court.

See Sec. 650.

1. A defective undertaking may be allowed to be amended, on motion to discharge from arrest.-Bellinger v. Gardner, 2 Abbott, 441.

2. The undertaking for an arrest need not be executed by the plaintiff personally. Askins v. Hearns, 3 ib., 184.

3. When a foreign state is a plaintiff, an undertaking accompanying an order of arrest signed and acknowledged by its resident minister on the part of the plaintiff, is a valid undertaking within the provisions of the code.-Republic of Mexico v. Arrangoiz, 5 Duer, 634.