CHAPTER 53. EXTRAORDINARY REMEDIES.
ARTICLE 7. ARRESTS IN CIVIL CASES.
§53-7-1. Order for arrest -- Affidavit; grounds for arrest.
An order for the arrest of a defendant in any action or
proceeding at law or suit in equity may be made by the court in
which the action, proceeding or suit is pending, or by the judge or
clerk thereof in vacation, upon the affidavit of the plaintiff or
any credible person showing to the satisfaction of the court, or
judge or clerk thereof in vacation, the nature and justice of the
plaintiff's claim, the amount which the affiant believes the
plaintiff is justly entitled to recover in the action, proceeding
or suit, and the existence of some one or more of the following
grounds for the arrest of the defendant: (a) That the defendant
has removed, or is about to remove, any of his property out of the
state with intent to defraud his creditors; or (b) that he has
converted or is about to convert his property or any part thereof
into money or securities with like intent; or (c) that he has
assigned, disposed of or removed his property or any part thereof,
or is about to do so, with like intent; or (d) that he has property
or rights in action which he fraudulently conceals; or (e) that he
fraudulently contracted the debt or incurred the liability for
which the action or suit is brought; or (f) that he is about to
leave the state and reside permanently in another state or country,
without paying the debt or liability for which the action or suit
§53-7-2. Same -- By whom made; plaintiff to give bond.
When sufficient cause shall be shown for the arrest of a
defendant as aforesaid such court, judge or clerk shall make an
order directing the defendant to be arrested and held to bail for
such sum as the said court, judge or clerk shall think fit, and the
plaintiff shall thereupon deliver to the clerk of the court in
which the action is pending a bond in a penalty double the amount
sworn to, executed by himself or some person for him, with one or
more sufficient securities, approved by the clerk, to the effect
that the plaintiff will pay the defendant all damages he may
sustain by reason of the arrest, should it thereafter appear that
the order was wrongfully obtained.
§53-7-3. Same -- Issuance; form.
Upon the delivery of the bond mentioned in the preceding
section, the clerk shall issue an order for the arrest of the
defendant in form or in substance as follows:
A............... B..............., Plaintiff,
vs.Order of arrest.
C............... D..............., Defendant,
To the sheriff of the county of ..........: You are hereby
required, in the name of the State of West Virginia, to arrest the
defendant, C............... D..............., and commit him to the
jail of the said county of .........., to be there safely kept,
unless or until he shall give a bond, with good security, in the
penalty of .......... dollars, conditioned according to law, and
that you return your proceedings under this order to the next term
of the .......... court (naming the court in which the action,
proceeding or suit is pending) of said county.
Witness E............... F..............., clerk of the said
court, this .......... day of ...........
E............... F..............., Clerk.
§53-7-4. Arrest and commitment unless bond given by defendant.
Under such order, the defendant against whom it issues shall
be arrested and committed to jail, unless bond be given in the sum
specified therein, with sufficient security, conditioned that, in
case there shall in the action, proceeding or suit be any judgment,
decree or order on which a writ of fieri facias may issue, and
within four months after such judgment, decree or order is rendered
or made, interrogatories be filed under sections one, two and
three, article five, chapter thirty-eight of this code, with a
commissioner of the court wherein such judgment, decree or order
is, the defendant will, at the time the commissioner issues a
summons to answer such interrogatories, be in the county in which
such commissioner resides, and will, within the time prescribed in
such summons, file proper answers upon oath to such
interrogatories, and make such conveyance and delivery as is
required by the said article, or in case of failure to file such
answer and make such conveyance and delivery, that the said
defendant will perform and satisfy the said judgment, decree or
§53-7-5. To whom bond of defendant may be given; return and filing
The defendant arrested under such order may, at any time
pending the case, give bond to the officer making the arrest. Such
bond shall be taken by such officer and returned by him to the
clerk of the court from which the order issued, and the same shall
be filed in such clerk's office.
§53-7-6. Discharge of defendant or bond.
If the defendant give such bond, or be committed to jail for
want of it, the court in which the case is pending, or the judge
thereof in vacation, may, after reasonable notice to the plaintiff,
or his attorney, quash the order and discharge the defendant from
custody, or discharge the bond, on being satisfied that the order
was wrongfully obtained; and, whether the order was so obtained or
not, may discharge him from custody when the plaintiff is cast in
the action, proceeding or suit.
§53-7-7. Interrogatories to defendant in custody; discharge of
While a defendant is in custody, the plaintiff, without having
a judgment or decree against the defendant, may file
interrogatories to him in like manner as might be done under
sections one, two and three, article five, chapter thirty-eight of
this code, if such judgment or decree had been obtained and a fieri
facias thereon had been delivered to an officer. And the court
wherein the case is pending, or a judge or a commissioner thereof,
after reasonable notice to the plaintiff, or his attorney may
discharge the defendant from custody, unless interrogatories be
filed within such time as such court, judge or commissioner may
deem reasonable; or, though interrogatories be filed, may discharge
him when proper answers thereto are filed and proper conveyance and
§53-7-8. Conveyance or other disposition of property.
The officer making the arrest shall be the officer to whom the
conveyance shall be made: Provided,
That if for any reason it
cannot or should not be made to him, it shall be made to such other
officer as the court or judge may direct. The interrogatories,
answers and report of the commissioner shall be returned to the
court in which the case is pending and filed in the papers of such
case. And such court may make such order as it may deem right as
to the sale and proper application of the estate conveyed and
delivered under the preceding section.