his damages by reason of the detention thereof to be adjudged to him, etc. 8. Replication Denying the Award. Form No. 2232. (Precedent in 3 Wentw. Pl 145; Humph. Prec. 901.) (Commencing as in Form No. 2231, and continuing down to *) because he saith that the said arbitrator did not make any such award of and concerning the premises in manner and form as the said defendant hath above in his said plea in that behalf alleged. And this the said plaintiff prays may be inquired of by the country, etc. Rejoinder Denying the Award. Form No. 2233. (Precedent in 2 Chit. Pl. 712; Tillingh. Forms 560.) In the King's Bench. Trinity Term, 51 Geo. III.1 And the said Richard as to the said replication of the said John to the said second plea of him the said Richard saith that the said John by reason of any thing by him in that replication alleged, ought not to have or maintain his aforesaid action thereof against him the said Richard, because he says that the said Samuel Short and William West did not make any such award of or concerning the said premises, in manner and form as the said John hath above in his said replication alleged. And of this he the said Richard puts himself upon the country, etc. 1. For the formal parts of a rejoinder in a particular jurisdiction consult the title REJOINDer. ARCHITECTS. See the title BUILDERS AND ARCHITECTS. ARREST. For Forms relating to Arrest in Civil Cases on Mesne Process, see the title ARREST IN CIVIL ACTIONS, infra, p. 117. For Forms relating to Arrest in Civil Cases on Final Process, see the title EXECUTIONS. For Forms relating to Arrest in Civil Cases as a Substitute for the Writ of Ne Exeat, see the title NE EXEAT. For Forms connected with the Arrest or Discharge of Poor Debtors, see the title POOR DEBTORS. For Forms relating to Arrest for Contempt, see the title CONTEMPT. For Forms relating to Arrest in Criminal Cases, see the title WARRANTS OF ARREST. Consult also the titles BAIL AND RECOGNIZANCE; COMMITMENT; CRIMINAL COMPLAINTS; INDICTMENTS; and INFORMATIONS. ARREST IN CIVIL ACTIONS. BY HOWARD P. NASH. I. IN GENERAL, 119. II. THE AFFIDAVIT TO HOLD TO BAIL, 125. 1. At Common Law, 125. a. Affidavit by Plaintiff, 125. b. Affidavit by Plaintiff's Agent, 129. 2. In Canada, 131. 3. Under Codes and Statutes, 131. a. In General, 131. (1) Affidavit by Plaintiff, 131. (a) In Contract, 131. (b) In Tort, 133. (2) Affidavit by One of Several Plaintiffs, 133. (3) Affidavit by Plaintiff's Agent, 134. (4) Affidavit by an Executor or Administrator, 134. b. In Arkansas, 134. c. In New Mexico, 135. d. Where Defendant Is about to Abscond, 135. (1) In General, 135. (2) Where Defendant Is Garnishee in Attachment Case, 137. e. For Fraudulent Disposition or Removal of Property, 138. (1) Assignment, 138. (a) Affidavit by Plaintiff, 138. (b) Affidavit by Plaintiff's Agent, 140. (2) Conversion, 142. (a) Affidavit by Plaintiff, 142. (b) Affidavit by Plaintiff's Agent, 143. (3) Disposal and Removal, 145. (a) Affidavit by Plaintiff, 145. (b) Affidavit by One of Several Plaintiffs, 147. f. For Fraud in Contracting the Debt, 150. (1) Affidavit by Plaintiff, 150. (2) Affidavit by Plaintiff's Agent, 152. g. For Fraud in Concealment of the Property for Which the Action is Brought, 155. h. For Acts of Defendant Who Occupied a Fiduciary Relation towards Plaintiff, 156. i. In Actions of Tort, 158. (1) Case for Fraud, 158. j. Statutory Forms, 160. (2) In North Carolina where Debt was Fraudulently Contracted, 161. III. THE PLAINTIFF'S UNDERTAKING, 162. 1. In General, 162. 2. Statutory Forms, 164. a. Ir Illinois, 164. b. In Kentucky, 165. c. In North Carolina, 165. d. In Oregon, 166. e. In Washington, 166. IV. THE ORDER TO HOLD DEFENDANT TO BAIL, 166. V. THE CAPIAS OR ORDER OF ARREST, 167. 1. At Common Law, 167. a. In General, 167. b. Alias Capias, 167. (1) In General, 167. (2) Into a County Palatine, 168. c. Pluries Capias, 168. 2. Under Codes and Statutes, 168. a. When Issued by a Clerk or Judge, 168. (1) In General, 168. (2) Statutory Forms, 174. (b) In New Hampshire, 174. (e) In West Virginia, 177. b. When Issued by a Justice of the Peace, 177. (1) In General, 177. (2) Statutory Forms, 180. (a) In Illinois, 180. (b) In Indiana, 180. (c) In North Carolina, 180. (d) In Oregon, 181. (e) In Washington, 181. (f) In Wisconsin, 181. VI. THE OFFICER'S RETURN, 182. 1. Defendant Arrested, 182. a. In General, 182. b. And Discharged on Bail, 183. 2. Defendant Not Found, 183. VII. PROCEEDINGS TO VACATE ORDER OF ARREST, 184. 1. The Notice of Motion to Vacate, 184. 2. Order to Show Cause why Order of Arrest should Not be Vacated, 185. 3. The Motion to Vacate, 186. 4. The Judgment, 187. a. Vacating the Order, 187. b. Denying the Motion, 187. VIII. DEFENDANT'S COUNTER-AFFIDAVIT, 188. CROSS-REFERENCES. For Forms of Defendant's Undertaking and all Forms connected with Bail, the Justification of Bail, and the proceedings connected with the Forfeiture of Bail, see the title BAIL AND RECOGNIZANCE. For Forms relating to Arrest and Imprisonment for Contempt, see the title CONTEMPT. For Forms connected with Arrest on Final Process, see the title EXECUTIONS. For Forms connected with Arrest as a substitute for the Writ of Ne Exeat, see the title NE EXEAT. For Forms connected with the Arrest or Discharge of Poor Debtors, see the title POOR DEBTORS. For other Forms of the Officer's Return, see the title SERVICE OF WRITS AND PAPERS. For other Forms in proceedings of kindred character, see the title ATTACHMENT. For matters of Substantive Law pertaining to the subject of Arrest in Civil Actions, see 2 Am. and Eng. Encyc. of Law (2d ed.) 832, title ARREST. For matters of Pleading and Practice connected with the subject of Arrest in Civil Actions, see 8 Encyc. of Pl. and Pr., title EXECUTIONS AGAINST THE BODY AND ARREST IN CIVIL CASES. I. IN GENERAL. At early English common law, the defendant was not liable to be arrested upon mesne process for civil injury, unaccompanied with force. By successive statutory enactments, however, the right to arrest the body of the defendant was extended to all actions for the recovery of money, damages, or personal property.1 In most of the United States, statutes have been enacted abolishing imprison 1. I Tidd's Pr. 128; 3 Bl. Com. 281. ment for debt, except under certain enumerated circumstances 1 1. Statutory Grounds for Arrest in Civil Actions, Generally.-The statutory grounds for arrest vary more or less in number and in wording in the different states, and before making the affidavit to hold to bail in any particular jurisdiction the pleader should consult the statutes of that jurisdiction with the greatest care. The various grounds may, however, be grouped under a few general heads which are given below, with references to the statutes of the different states in which the particular ground of arrest exists. Infra, in Forms Nos. 2237 to 2265, will be found numerous examples of affidavits to hold to bail. By reference to the title AFFIDAVITS, vol. 1, p. 548, for the formal parts and peculiar requirements of an affidavit in any particular jurisdiction, and by following Forms Nos. 2237 to 2265, infra, as models, an affidavit to hold to bail may readily be drawn in accordance with the requirements of any particular statute. Removal of Defendant from State."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." California.—Code Civ. Proc. (1886), § 479, subs. I. Idaho.-Rev. Stat. (1887), § 4241, subs. I. Montana.-Code Civ. Proc. (1895), § 801, subs. I. Nevada.-Gen. Stat. (1885), § 3095, subs. I. Oregon.-1 Hill's Anno. Laws (1892), p. 247, 108, subs. 1 (or "where defendant is not a resident of the state"). Utah.-2 Comp. Laws (1888), § 3261, subs. I. "Where defendant has absconded or is about to abscond from the place of his usual abode." Delaware.-15 Laws of Del., c. 180, Where the defendant has a good cause of action and expects to recover a sum amounting to twenty dollars exclusive of costs, and believes, and has reason to believe, that defendant has property not exempt from execution which he does not intend to apply to the payment of plaintiff's claim, and believes, and has reason to believe, that defendant is about to leave the state so that execution, if obtained, cannot be served upon him. Massachusetts.-Pub. Stat. (1882), c. 162, § 1. Similar statutes exist in the following states, the chief difference being in the amount of the expected recovery: Maine.-Rev. Stat. (1883), c. 113, § 2. New Hampshire.-Pub. Stat. (1891), c. 221, § 8. Vermont. Rev. Laws (1880), § 1478. Where an action has already been commenced the defendant may be arrested if the plaintiff makes an affidavit that defendant is about to quit the commonwealth without leaving sufficient real or personal estate therein to satisfy plaintiff's demand. Pennsylvania.-Bright. Pur. Dig. (1894), p. 65, § 41. "Where the defendant is about to quit the state." Virginia.-Code (1887), § 2991. "When the defendant is about to leave the state and reside permanently in another state or county without paying the debt or liability for which the action or suit is brought." West Virginia.-Code (1887), p. 732, § 30, subs. 6. Actions for Injury to Person or Character When the action is for wilful injury to person or to character." Idaho. Rev. Stat. (1887), § 4241, subs. 1. Montana.-Code Civ. Proc. (1895), § 801, subs. I. |