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his dis charge from
PART III. Substitu
$ 199. If money be deposited, as provided in the last two ting bail
sections, bail may be given and justified upon notice, as prefor deposit.
scribed in section 193, any time before judgment; and thereupon the judge before whom the justification is had, shall direct, in the order of allowance, that the money deposited be refunded by the sheriff to the defendant, and it shall be
refunded accordingly. Money de $ 200. Where money shall have been so deposited, if it posited,
remain on deposit at the time of an order or judgment for disposed of the payment of money to the plaintiff, the clerk shall, under
the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall refund to him the whole sum deposited and remaining unapplied.
$ 201. If, after being arrested, the defendant escape or be as bail, and rescued, or bail be not given or justified, or a deposit be not
made instead thereof, the sheriff shall himself be liable as liability,
bail. But he may discharge himself from such liability, by the giving and justification of bail as provided in sections 193, 194, 195, and 196, at any time before process against the person of the defendant, to enforce an order or judgment in the action.
31 B., 63; 22 How. P. R., 91; 9 How. P. R., 182, 188; 10 Ab. 12; 3 Ab.,
87; 4 Bos., 94. Proceed $ 202. If a judgment be recovered against the sheriff, upon ings on Judgment his liability as bail, and an execution thereon be returned against sheriff.
unsatisfied, in whole or in part, the same proceedings may be had on the official bond of the sheriff, to collect the deficiency, as in other cases of delinquency.
31 B., 63; 8 B., 422; 10 Ab., 20; 3 How. P. R., 413; 1 S. S. C., 711. Bail liable $ 203. The bail taken upon the arrest shall, unless they to sherifi.
justify, or other bail be given or justified, be liable to the sheriff, by action, for damages which he may sustain by reason of such omission.
31 B., 63; 10 Ab., 20. Motion to $ 204. A defendant arrested, may, at any time before judgder of ar. ment, apply on motion, to vacate the order of arrest, or to duce bail. reduce the amount of bail.
As amended by laws of 1858, ch. 306.
441; 17 How. P. R., 479; 15 How. P. R., 12, 71; 14 How. P. R.,
P. R., 86, 241; 13 Ab., 187; 12 Ab., 159, 179, 476; 2 Ab., 284. Allidavits $ 205. If the motion be made upon affidavits on the part of on motion. the defendant, but not otherwise, the plaintiff may oppose
the same by affidavits or other proofs, in addition to those on which the order of arrest was made.
8 B., 124; 14 How. P. R , 136, 444; 13 How. P. R., 490; 10 How. P. R.,
433 ; 12 Ab., 159, 179, 293; 7 Ab, 182.
207. Affidavit and its requisites.
217. Notice and affidavit, when and where to be filed. $206. The plaintiff, in an action to recover the possession Delivery of of personal property, may, at the time of issuing the summons, property
. or at any time before answer, claim the immediate delivery may be of such property as provided in this chapter.
claimed. 20 B., 493; 16 B., 314; 12 B., 350; 20 How. P. R., 368; 8 How. P. R.,
191; 6 How. P. R., 338 ; 13 Ab., 181; 5 Ab., 357; 4 Ab., 51; 3 Ab.,
440; 2 Ab., 165; 1 Ab., 176; 3 S. S. C., 710. $ 207. Where a delivery is claimed, an affidavit must be Amavit, made by the plaintiff, or by some one in his behalf, showing, requisitos.
1. That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth ;
2. That the property is wrongfully detained by the defendant ;
3. The alleged cause of the detention thereof, according to his best knowledge, information and belief;
4. That the same has not been taken for a tax, assessment or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff'; or if so seized, that it is, by statute, exempt from such seizure; and, 5. The actual value of the property.
19 B., 482 ; 16 B., 314; 10 How. P. R., 376; 2 Ab., 135; 1 Ab., 177; 3
S. S. C., 711. $ 208. The plaintiff may, thereupon, by an endorsement in Requisition writing upon the affidavit, require the sheriff of the county to take and
deliver prowhere the property claimed may be, to take the same from perty. the defendant, and deliver it to the plaintiff.
16 B., 314; 3 S. S. C., 711. $ 209. Upon the receipt of the affidavit and notice, and a Security on written undertaking, executed by one or more sufficient sure- the plainties, approved by the sheriff, to the effect that they are bound, tification. in double the value of the property as stated in the affidavit, for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, for
any cause, be recovered against the plaintiff, the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his
Exception to sureties, and proceedings thereon, or on failure to except.
Defendant when enti. tled to redelivery.
custody. He shall, also, without delay, serve on the defendant a copy of the affidavit, notice and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose possession the property is taken; or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion.
28 B,, 538; 16 B., 314; 22 How. P. R., 494; 7 How. P. R., 39; 7 Ab.,
19; 3 Ab., 440. $ 210. The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice in like manner, as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justify. If the defendant except to the sureties, he cannot reclaim the property as provided in the next section.
18 How. P. R., 376. $ 211. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound, in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within three days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section 216.
22 N. Y., 426; 28 B., 389, 538; 8 B., 512; 7 B., 658; 18 How. P. R., 376;
13 How. P. R., 380; 10 How. P. R., 478; 8 How. P. R., 111; 7 Ab., 19, 406; Ab., 352; 3 Ab., 440; 1 Ab., 337; 4 E. D. S., 95; 3 S.
S. C., 711. $ 212. The defendant's sureties, upon a notice to the plaintiff of not less than two nor more than six days, shall justify before a judge or justice of the peace, in the same manner as upon bail on arrest; upon such justification, the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the defendant's sureties, until they justify, or until justification is completed or expressly waived, and may retain the property until that time, but if they or others in their place, fail to justify, at the time and place appointed, he shall deliver the property to the plaintiff.
21 How. P. R., 354; 1 Ab., 339.
Justification of de fendant's Eureties.
S 213. The qualifications of sureties and their justification,
Qualificashall be as are prescribed by sections 194 and 195, in respect tons and to bail upon an order of arrest.
$ 214. If the property or any part thereof be concealed in Property, a building or enclosure, the sheriff shall publicly demand its how taken delivery. If it be not delivered, he shall cause the building sellaining or or enclosure to be broken open, and take the property into enclosure. his possession; and if necessary he may call to his aid the power of his county.
3 S. S. C., 711. $ 215. When the sheriff shall have taken property, as in this property: chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same.
S 216. If the property taken be claimed by any other per- Claim of son than the defendant or his agent, and such person shall third permake affidavit of his title thereto and right to the possession thereof, stating the grounds of such right and title and serve the same upon the sheriff; the sheriff shall not be bound to keep the property, or deliver it to the plaintiff unless the plaintiff on demand of him or his agent, shall indemnify the sheriff against such claim by an undertaking, executed by two sufficient sureties accompanied by their affidavits, that they are each worth double the value of the property as specified in the affidavit, of the plaintiff and freeholders and householders of the county. And no claim to such property by any other person than the defendant or his agent, shall be valid against the sheriff unless made as aforesaid, and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity.
6 Ab., 189. $ 217. The sheriff shall file the notice and affidavit with his Notice and proceeding thereon, with the clerk of the court in which the when and action is pending within twenty days after taking the pro- filed. perty mentioned therein.
Ch. 484 of Laws of 1862 extends this chapter to the Marine and District
courts in the city of New York.
where to be
Sec. 218. Writ of injunction abolished, and order substituted.
219. Injunction, in what case granted.
226. Affidavits, on motion. $ 218. The writ of injunction as a provisional remedy is Writ of inabolished ; and an injunction, by order, is substituted there- abolished,
in what cases
PART III. and order
for. The order may be made by the court in which the action substituted. is brought, or by a judge thereof, or by a county judge, in
the cases provided in the next section; and when made by a judge, may be enforced as the order of the court.
9 How. P. R., 425; 5 Ab., 251; 4 Ab., 126, 224. Injunction. $ 219. Where it shall appear by the complaint, that the
plaintiff is entitled to the relief demanded, and such relief, or granted.
any part thereof, consists in restraining the commission or continuance of some act the commission or continuance of which during the litigation would produce injury to the plaintiff, or when, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted, to restrain such act. And where during the pendency of an action, it shall appear by affidavit, that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition.
13 N. Y., 290; 30 B., 448, 559 ; 25 B., 411; 24 B., 188; 17 B., 229, 445;
16 B., 537; 19 How. P. R., 54, 397; 16 How. P. R., 164; 14 How. P. R., 470; 11 How. P. R., 562; 9 How. P. R., 425; 8 How. P. R., 169; 7 How. P. R., 17, 481; 6 How. P. R., 92, 126, 341, 456; 5 How. P. R., 293, 437, 464; 11 Ab., 87, 220, 473; 7 Ab., 323; 4 Ab., 323; 3
Ab., 182; 1 Ab., 81, 212. At what $ 220. The injunction may be granted at the time of combir grantedmencing the action, or at any time afterwards, before judg
ment, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction.
13 N. Y., 490; 9 N. Y., 277; 17 B., 229; 8 B., 176; 19 How. P. R., 54;
15 How. P. R., 397; 5 How. P. R., 272; 13 Ab., 181; 10 Ab., 472;
6 Ab., 90. $ 221. An injunction shall not be allowed, after the defen
dant shall have answered, unless upon notice, or upon an quired. Temporary order to show cause ; but in such case the defendant may be injunction.
restrained, until the decision of the court or judge, granting
or refusing the injunction. Security $ 222. Where no provision is made by statute, as to secuupon in junction. rity upon an injunction, the court or judge shall require a
written undertaking, on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the
court shall finally decide that the plaintiff was not entitled Damages thereto. The damages may be ascertained by a reference, or how.ascer- otherwise, as the court sball direct.
18 N. Y., 464 ; 28 B., 644; 7 B., 35; 6 B., 543, 562; 19 How. P. R., 54;
15 How. P. R., 325; 11 How. P. R., 270; 9 How. P. R., 225; 6 How.
Notice, when re