TITLE IX. OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. Chapter I. Arrest and Bail. Chapter II. Claim and Delivery of Personal Property. Chapter III. Injunction. Chapter IV. Attachment. Chapter V. Provisional Remedies. CHAPTER I. ARREST AND BAIL. SEC. 148. No person to be arrested, ex- SEC. 160. Bail, how proceeded against. 148.-No person to be arrested, except as prescribed. No person shall be arrested in a civil action, except as prescribed by this act; but this provision shall not apply to proceedings for contempt. 149.-In what cases defendant may be arrested. [Amended by Acts of 1869–170, Chapter 79, Section 1.] The defendant may be arrested, as hereinafter prescribed, in the following cases: 1. In an action arising on contract where the defendant is a non-resident of this State, or is about to remove therefrom; and in an action for the recovery of damages on a cause of action not arising out of contract, where the action is for injury to person or character, or for wrongfully taking, detaining or converting property : When the plaintiff, in his affidavit to obtain an order of arrest, relies upon his apprehension of what the defendant is about to do, as remove from the State," "secrete his property," &c., he must state the grounds on which he bases such apprehensive belief, in his affidavit: but when he relies on a fact already accomplished, it is sufficient, if such fact be stated in the words of the Code, authorizing the arrest, as that the defendant “has secreted his property with intent to defraud his creditors," &c. Hughes v. Person, 63-548. An affidavit that the defendant is "about to leave the State" is insufficient to obtain an order of arrest, because: (1.) It does not set forth that it is with the intent to defraud his creditors; and (2.) It does not state the ground of affiant's belief that the defendant is about to commit the act apprehended; which is necessary to be done, in order that the court may perceive that he has reasonable cause for such apprehension Wilson v. Barnhill, 64-121. An affidavit alleging that the defendant "is about to remove from the State of North Carolina, to become a resident of the State of Virginia," is insufficient because it does not state the reasons of the belief in regard to what is about to occur, in order that the court may judge whether his apprehensions be reasonable or not. Wood v. Harrell, 74-338. 2. In an action for a fine or penalty; or on a promise to marry; or for money received, or for property embezzled or fraudulently misapplied, by a public officer, or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker or other person in a fiduciary capacity; or for any misconduct. or neglect in office, or in a professional employment; The provision of this section authorizing the arrest of the defendant in an action on a promise to marry" is in violation of Article I, Section 16 of the Constitution, which provides that, There shall be no imprisonment for debt, except in cases of fraud." "A breach of a promise to marry," says Pearson, C. J., "is no more a case of fraud than a breach of any other promise. The purpose, in McNeely v. Haynes, 76-122, was to restrain that decision to the case in hand, as we do this, so as to let the other sub-sections stand on their own construction, except so far as these two cases may furnish analogies. Moore v. Mullen, 77–327. Quare-Whether in a case of breach of promise of marriage accompanied with seduction, and an attempt to flee the State, the element of fraud would justify the defendant's arrest? Ibid. 3. In an action to recover the possession of personal property unjustly detained, where the property, or any part thereof, has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof; 4. 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; or when the action is brought to recover damages for fraud or deceit ; The fact that one partner has obtained goods for the firm by false representations, does not make the other partner liable to arrest therefor, unless he is shown to be guilty of the fraud, and an affidavit charging one partner with such fraud, will not justify the arrest of the other. McNeely v. Haynes, 76-122. Where a plaintiff alleged in his affidavit that the defendant had sold him a patent right, representing it to be genuine and no infringment on any other patent, which was false, and that the defendant was a non-resident, held, that the order was properly issued. Bahnson v. Chesebro, 77-325. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. An affidavit stating that "the defendant has disposed of his property with intent to defraud his creditors" is good if it stops here. When, however, it proceeds to give a reason for that belief, the reason must be sufficient or the affidavit will not suffice. So when it adds: "In this, that although he has received from the plaintiffs alone, over $7,000 in specie and $7,000 in currency, and owes upward of $3,000, he has not paid any of his debts:" Held, to be insufficient to justify the arrest of the defendant. Gibson, 74--684. Smith v. But no female shall be arrested in any action, except for a wilful injury to person, character or property. 150.-Order for arrest-by whom made. An order for the arrest of the defendant must be obtained from the court in which the action is brought, or from a judge thereof. An order of arrest granted by a court having jurisdiction is not void, though it may be erroneous, if issued on an insufficient affidavit. Tucker v. Davis, 77–330. Regular process is a justification of a taking made under it, when it issues from a court of competent jurisdiction, but not for any conversion of the property. Woody v. Jordan, 69–189. Irregular process, after it has been set aside, is no justification to the plaintiff, his agents or attornies. Ibid. § 151.—Affidavit to obtain order—To what actions this chapter applies. The order may be made where it shall appear to the court, or judge thereof, 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 section one hundred and forty-nine (§ 149.) The provisions of this chapter shall apply to all actions included within the provisions of section one hundred and forty-nine (§ 149), which shall be commenced after the ratification of this Act. Where the affidavit on which the order (of attachment) was issued, was defective and the defendant move to dismiss on counter-affidavits, to which the plaintiff replied with one which was sufficient: Held, that the second affidavit cured the defects of the first. Clark v. Clark, 64-150. A non-resident notary public has no authority to take an affidavit to be used in the courts of this State to obtain an order of arrest. Benedict v. Hall, 76-113. Leave to amend an affidavit by filing an additional one is a matter of discretion, but after the defendant has been discharged for defect in the affidavit, the plaintiff may at once apply for another order upon a new affidavit. Wilson v. Burnhill, 64-121. 152.-Security by plaintiff before order of arrest. 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 damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars. One suing as a pauper cannot have an order of arrest without giving this undertaking. Rowark v. Homesly, 68-91. 153.-Order, when made, and its form-Time to answer or to move to vacate. The order may be made to accompany the summons, or issue at any time afterwards, before judgment. It shall require the sheriff of the county where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order, at a place and time therein mentioned, to the clerk of the court in which the action is brought, and notice of such return shall be served on the plaintiff or his attorney as prescribed in section eighty (§ 80.) But said order of arrest shall be of no avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as provided by law, before the docketing of any judgment in the action; and the defendant shall have twenty days, after the service of the order of arrest, in which to answer the complaint in the action, and to move to vacate the order of arrest, or to reduce the amount of bail. 154.-Affidavit and order to be delivered to sheriff and copy to de fendant. The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof. 155.-Arrest, how made. The sheriff shall execute the order by arresting the defendant, and keeping him in custody until discharged by law; and may call the power of the county to his aid in the execution of his arrest, as in case of process. 156.-Defendant to be discharged on bail or deposit. The defendant, at any time before execution, shall be discharged from the arrest, either upon giving bail, or upou depositing the amount mentioned in the order of arrest, as provided in this chapter. ? 157.-Bail-how given. The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient bail, stating their places of residence and occupations, 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 judgment therein, or if he be arrested for the cause mentioned |