tion thereof, within the time fixed in section one hundred and seventy-three, or within such further time as the court in which the action is pending may allow.

SEC. 176. [Bail substituted for money.]-If money be deposited by the aetendant on his discharge, bail may be given and justified upon notice as prescribed in section one hundred and sixty-six, at any time before judgment; and thereupon the court in which the action is brought, on being satisfied that the bail has been given.and adjudged sufficient, shall direct that the money deposited be refunded to the defendant, and it must be refunded accordingly.

SEC. 177. [Stay of proceedings against bail.]-If, at any time before or after judgment against the bail, proceedings in error are commenced on the judgment against the principal in the suit in which their undertaking was taken, the court may, on motion, stay proceedings against such bail for a reasonable time, on their paying all the costs that have accrued against them; and if, on such proceedings, the judgment against the principal shall be reversed, and the principal discharged from said suit, the bail shall be discharged from the undertaking.

SEC. 178. [Order to vacate arrest.]-A defendant arrested may, at any time before the justification of the bail, apply, on motion, to the court in which the suit is brought, if in session, and in vacation to a judge thereof, or to any judge of a court of record of the state, to vacate the order of arrest, or to reduce the amount of bail. Reasonable notice of such motion must be given to the plaintiff.

SEC. 179. [Same-Affidavits:]-If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of arrest was made.

SEC. 180. [Person causing arrest-Liability-Jail fees.]—Any person causing another to be committed to jail under the provisions of this chapter, shall be liable, in the first instance, for jail fees, and shall, if required by the jailer, pay such fees weekly in advance; and such fees, so paid, shall be a part of the costs of the case.

CHAPTER II.-REPLEVEN OF PROPERTY.

SEC. 181. [Delivery of property-When claimed.]-The plaintiff in an action to recover the possession of specific personal property, may, at the commencement of the suit, or any time before answer, claim the immediate delivery of such property, as provided in this chapter. [R. S. 421. G. S. 552.]

SEC. 182. [Order-Affidavit.-An order for the delivery of personal property to the plaintiff, shall be made by the clerk of the court in which the action is brought, when there shall be filed in his office an affidavit of the plaintiff, his agent or attorney showing: 1st. A description of the property claimed. 2d. That the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the same. 3d. That the property is wrongfully detained by the defendant. 4th. That it was not taken in execution on any order or judgment

SEC. 181. Gist of action is unlawful detention. 6 Neb. 272. 7 Id. 294. 15 Id. 27. Plaintiff recovers on strength of his own title. 10 Neb. 273. He must show such interest as entitles him to immediate possession. 7 Neb. 27. 14 Id. 100. And party in possession may challenge his title. 2 Neb. 191. Proof of demand not necessary when defendant pleads ownership. 1 Neb. 209. 2 Id. 253. 8 Id. 114. Offer to receive amount due after action commenced will not defeat it. 8 Neb. 507. Replevin will lie for buildings by one claiming title to realty. 1 Neb. 437. 16 Id. 99. And in favor of vendor of chattels, sold on condition that title does not pass until payment of security given. 2 Neb. 190. 5 Id. 180. 9 Id. 444. 13 Id. 72. But right of mortgagee to secure bona fide debt on same chattels, Held Superior to vendor selling property and taking notes in payment. 8 Neb. 114. Writ may issue in favor of mortgagee of chattels when wrongfully seized by creditor of mortgagor. 12 Neb. 67, 588. 15 Id. 610. But increase in animals after execution of mortgage cannot be replevied by mortgagee. 13 Neb. 402. And writ lies to recover exempt property. 10 Neb. 572. 13 Id. 205 And by vendor before goods delivered by carrier to vendee; garnishment of carrier by creditor of insolvent debtor no defense. 15 Neb. 396. And to recover property procured by fraud. 16 Neb. 174. But replevin does not lie at suit of surety on undertaking given by plaintiff. 7 Neb. 27. Nor to enforce specific performance. 2 Neb. 175. Nor to oust tenant. 11 Neb. 264. 14 Id. 510. Nor in favor of claimant after judgment against him under proceedings for trial of right of property. 5 Neb. 458. 13 Id. 520. Nor to recover animal taken up under herd law without tender of payment of damage done. 12 Neb. 112.

SEC. 182. Affidavit. 7 Neb.51. 13 Id. 205. Petition. 6 Neb. 272. 7 Id. 317. 14 Id. 48. 16 Id. 99. Answer. 5 Neb. 38, 102. 7 Id. 294. 9 Id. 486. 15 Id. 27.

against said plaintiff; or for the payment of any fine, tax or amercement assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process issued against, him; Provided, That such affidavit may omit the first and last clause of this subdivision and in lieu thereof, show that the property was taken in execution on a judgment or order, other than an order of delivery in replevin, and that the same.is exempt from such execution or attachment under the laws of this state; And provided further, That the provisions of this act shall extend to and apply as well to proceedings in replevin had before justices of the peace. [Amended 1877, 9. Took effect June 1, 1877.]

SEC. 183. [Order-Contents.]-The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein.

SEC. 184. [Same-Returnable.]-The return day for the order of delivery, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it issued.

SEC. 185. [Same-Execution.]-The sheriff shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detention of the property, or leave such copy at his usual place of residence.

SEC. 186. [Bond.]-The sheriff, or other officer, shall not deliver to the plaintiff, his agent or attorney, the property so taken, until there has been executed, by one or more sufficient sureties of the plaintiff, a written undertaking tɔ the defendant in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him, and return the property to the defendant, in case judgment for a return of such property is rendered against him. The undertaking shall be returned with the order. [Amended to take effect Sept. 1, 1873. G.S.558.j

SEC. 187. [Same-Appraisement.]-For the purpose of fixing the amount of the undertaking, the value of the property taken shall be ascertained by the oath of two or more responsible persons, whom the sheriff or other officer shall swear truly to assess the value thereof.

SEC. 188. [Same-When given.]-If the undertaking, required by section one hundred and eighty-six, be not given within twenty-four hours from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant. And if the sheriff or other officer deliver any property so taken to the plaintiff, his agent or attorney, or keep the same from the defendant, without taking such security within the time aforesaid, or if he take insufficient security, he shall be liable to the defendant in damages.

SEC. 189. [Same-Objections to sureties.]-The defendant may, within twenty-four hours from the time the undertaking referred to in the preceding section is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he must be deemed to have waived all objec tions to them. When the defendant excepts, the sureties must justify upon notice as bail on arrest. The sheriff or other officer shall be responsible for the sufficiency of the sureties, until the objection to them is waived as above provided or until they justify. The property shall be delivered to the plaintiff, when the undertaking, required by section one hundred and eighty-six has been given.

SEC. 190. [Proceedings in action-Jury-Findings.]—If the property has been delivered to the plaintiff, and judgment be rendered against him on de

SEC. 185. Seizure of property on Sunday not proper. 16 Neb. 651. Failure to serve writ not jurisdictional. 6 Neb. 472. 8 Id. 113. Defects cannot be objected to by special appearance. Id.

SEC. 186. Undertaking omitting italicized words good as far as it goes. 8 Neb. 468.

Sec. 190. Plaintiff cannot, after trial commenced, dismiss without prejudice. 9 Neb. 488. On appearance of defendant and dismissal of action for want of jurisdiction, he cannot afterwards be heard in that action as to his right to property replevied, or on question of damages. 10 Neb. 573. Conversion during pendency of action may be shown as affecting damages. 12 Neb. 392. Right of property and right of possession only can be tried. 16 Neb. 458. See 13 Neb. 42. 15 Id. 510.

murrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impannel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that tl. › defendant was entitled to the possession only of the same at such time, then, ar in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.

SEC. 191. [Same.]-In all cases, when the property has been delivered to the plaintiff, where the jury shall find upon issue joined, for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which, with costs of suit, the court shall render judgment for the defendant.

SEC. 191 a. [Return of property.]—SEC. 7. The judgment in the cases mentioned in sections one hundred and ninety, and one hundred and ninety-one, and in section one thousand and forty-one of said code, shall be for a return of the property or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding said property, and costs of suit. [Took effect Sept. 1, 1873. G. S. 713.]

SEC. 192. [Same-Damages.]-In all cases, when the property has been delivered to the plaintiff, where the jury shall find for the plaintiff, on an issue joined, or on inquiry of damages upon a judgment by default, they shall assess adequate damages to the plaintiff for the illegal detention of the property; for which, with costs of suit, the court shall render judgment for defendant.

SEC. 193. [Same-Property not returned.-When the property claimed has not been taken, or has been returned to the defendant by the sheriff for want of the undertaking required by section one hundred and eighty-six, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking required by section one hundred and eighty-six, the plaintiff shall pay all costs made by taking the same.

SEC. 193 a. [Judgment for defendant on dismissal.]-That whenever any action in replevin shall be dismissed by the court for irregularities or defects

SEC. 191. Cited 1 Neb. 209. 13 Id. 511. 15 Id. 42. Damages assessed whatever plea of defendant. 5 Neb. 38, 102. Judgment must conform to verdict; verdict silent as to damages; judgment cannot be rendered for any amount. 6 Neb. 225. 9 Id. 29. Measure of damages when property levied on for taxes. 6 Neb. 226. Damages in action by mortgagee against sheriff holding under attachment is amount called for by writ. 12 Neb. 375. Recoverable on appeal; effect of increase in value of property. Id. 392. Effect of decrease in value of property. 7 Id. 199, 236, 295. Damages may be assessed by court; expenses in caring for property proper item of. 6 Neb. 472. Damages to personal property, in house taken on replevin, not allowed. 13 Neb. 47. Damages are value of property as proved, with interest from date of unlawful taking until first day of term. 12 Neb. 456. Value of use of property; depreciation; property in possession of sheriff under execution; damages recoverable; finding that defendant was entitled to possession; right of possession only carries right to damages. 7 Neb. 199, 200. Verdict should respond to all the issues. 9 Neb. 29. Should pass on question of unlawful detention. 6 Neb. 412. 9 Id. 181. If stated in present tense the error is not prejudicial. Id. Verdict good, after jury discharged, although it does not answer several questions submitted. 6 Neb. 416. Finding stated, Held, Not to sustain judgment. 10 Neb. 226. 14 Id. 450. Held, Sufficient to sustain judgment. 14 Id. 448.

SEC. 191 a. Provisions are mandatory. 7 Neb. 236. Judgment return of property or value in case stated. 9 Neb. 220. Judgment must be in alternative. 7 Neb. 201, 236. Unless it is shown by the record that return cannot be had. 13 Neb. 511. If not in alternative before plaintiff can complain, he must show that property is capable of being returned, 10 Neb. 276. If property cannot be returned defendant entitled to value. 7 Neb. 295. Return of property; delivery by mortgagee to satisfy judgement creditor. 12 Neb. 414. Alternative judgment; tender; refusal of defendant to receive property; injunction lies to restrain execution for amount of judgment. 10 Neb. 600. 11 Id. 483. Property may be returned at place where replevied; if portion lost value in money may be tendered. 11 Neb. 481. See 15 Neb. 42.

SEC. 192. Cited 1 Neb. 209. SEC. 193. Cited 1 Neb. 316. 12 Id. 455. 15 id. 477. 16 Id. 460.

in the proceedings by the plaintiff, judgment may be given in favor of the defendant on proof of the value of the property and amount of damages. [1875, 44.]

SEC. 194. [Order to several counties.]-An order may be directed to any other county than the one in which the action is brought, for the delivery of the property claimed. Several orders may issue at the same time, or successively, at the option of the plaintiff; but only one of them shall be taxed in the costs, unless otherwise ordered by the court.

SEC. 195. [Order-Execution-Power of sheriff. The sheriff or other officer in the execution of the order of delivery, may break open any building or enclosure in which the property claimed, or any part thereof, is concealed; but not until he has been refused an entrance into said building or enclosure and the delivery of the property, after having demanded the same.

SEC. 196. [Suit on undertaking. No suit shall be instituted on the undertaking given under section one hundred and eighty-six, before an execution issued on a judgment in favor of the defendant in the action shall have been returned, that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county.

SEC. 197. [Liability of clerk and plaintiff.]-Any order for the delivery of property issued under section one-hundred and eighty-two, without the affidavit required thereby, shall be set aside at the cost of the clerk issuing the same, and such clerk, as well as the plaintiff, shall also be liable in damages to the party injured.

CHAPTER III.-ATTACHMENT.

SEC. 198. [When allowed-Grounds.]-The plaintiff in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated: First. When the defendant, or one of several defendants, is a foreign corporation, or a non-resident of this state; or, Second. Has absconded with the intent to defraud his creditors; or, Third. Has left the county of his residence to avoid the service of a summons; or, Fourth. So conceals himself that a summons cannot be served upon him; or, Fifth. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; or, Sixth. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, Seventh. Has property, or rights in action, which he conceals; or, Eighth. Has assigned, removed, or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud his creditors; or, Ninth. Fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought. But an attachment shall not be granted on the ground that the defendant is a foreign corporation, or a non-resident of the state, for any claim other than a debt or demand arising upon contract, judgment, or decree.

SEC. 199. [Affidavit.]-An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent, or attorney, showing: First. The nature of the plaintiff's claim. Second. That

SEC. 196. In action on undertaking by one not a nomina! party to it. plaintiff's interest must affirmatively appear. 8 Neb. 468. Execution creditors may maintain action if undertakin, has been assigned to them by obligee. 14 Neb. 163. Penalty fixes limit to which recovery can be had in suit on. Id. Sureties on appeal bond concluded by judgment. 7 Neb. 294. 91d. 46. Subrogation of surety in supersedeas to rights of creditor on replevin bond. 11 Neb. 423. Sureties failing to object to form of judgment are bound by it. 8 Neb. 215. But sureties are not liable for value of property unless a return thereof could not be had. 13 Neb. 511.

SEC. 198. Cases where attachment held good. 5 Neb. 432. 6 Id. 348, 418. 7 Id. 281. 12 Id. 590. [See however 14 Id. 217.) 15 Id. 18, 313,400. Held bad. 4 Neb. 62. 13 Neb. 4, 267. 15 Id. 215, 542. 14 Id. 460, 496. 16 Id. 91. Attachment dissolved by bankruptcy proceedings. 10 Neb. 44. See 12 Neb. 350.

SEC. 199. Affidavit sufficient if in language of statute. 2 Neb. 15. 3 Id. 73. 9 Id. 409. But if denied burden of proof rests on plaintiff: Id. 14 Id. 497. Omission of venue, curable by amendment. 5 Neb. 493. 6 Id. 165. Omission of affiant's name in body, not fatal, he having signed it at its close. 6 Neb. 165. Is not a pleading admitting of an answer. 6 Neb. 527. Statement that claim is for "damages in not delivering goods purchased," does not authorize issuance of attachment against foreign corporation or non-resident. 14 Neb. 460. Sufficiency of affidavit. 15 Neb. 312. 16 Id. 370. Not necessary to set out facts constituting cause of action. 15 Neb. 400. One affidavit only necessary for issuance of successive writs. 15 Neb. 113.

it is just. Third. The amount which the affiant believes the plaintiff ought to recover. Fourth. The existence of some one of the grounds for an attachment enumerated in the preceding section.

SEC. 200. [Undertaking.]-When the ground of the attachment is, that the defendant is a foreign corporation, or a non-resident of the state, the order of attachment may be issued without an undertaking. In all other cases, the order of attachment shall not be issued by the clerk until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk an undertaking not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained.

SEC. 201. [Order-Requirements.-The order of attachment shall be directed and delivered to the sheriff. It shall require him to attach the lands, tenements, goods, chattels, stocks, or interests in stocks, rights, credits, moneys, and effects of the defendant in his county not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action, not exceeding fifty dollars.

SEC. 202. [Same-To several counties.]-Orders of attachment may be issued to the sheriff of different counties; and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but such only as have been executed shall be taxed in the costs, unless otherwise directed by the court.

SEC. 203. [Same-Returnable.]-The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it is issued.

EXECUTION AND RETURN.

SEC. 204. [Several orders, how executed.]-When there are several orders of attachment against the same defendant, they shall be executed in the order in which they are received by the sheriff.

SEC. 205. [Duty of sheriff-Appraisement.]-The order of attachment shall be executed by the sheriff without delay. He shall go to the place where the defendant's property may be found, and there in the presence of two residents of the county, declare that by virtue of said order he attaches said property at the suit of such plaintiff; and the officer, with the said residents, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and residents, and returned with the order. Where the property attached is real property, the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal property, and accessible, he shall take the same into his custody, and hold it subject to the order of the court.

SEC. 206. [Same-Bond.]-The sheriff shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in the presence of the sheriff, of an undertaking to the plaintiff, with one or more sufficient sureties, resident in the county, to the effect that the parties to the same are bound in double the appraised value thereof, that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound.

SEC. 200. Liability of sureties. 1 Neb. 128. Action on undertaking. 5 Neb. 471. Section is constitutional. 9 Neb. 100, 235. Damages in suit on undertaking. 12 Neb. 220. Undertaking not required when defendant is non-resident. 9 Neb. 104. 15 Id. 104.

SEC. 202. Cited 15 Neb. 113.

SEC. 203. Cited 4 Neb. 382.

SEC. 206. Defendant, after dissolution, entitled to possession of property without paying sheriff what be paid a carrier who had a lien, or for safe keeping. 1 Neb. 129. Giving of undertaking does not operate as dissolution: nor of preventing defendant from afterwards moving to dissolve. 9 Neb. 410. 15 Id. 18.