undertaking stable shall deliver the order of arrest to the plaintiff, or attorney by A. D. 1870 . whom it is subscribed, with his return indorsed, and a certified copy of the undertaking of the bail. The plaintiff, within ten days thereafter, Delivery of may serve upon the Sheriff or Constable a notice that he does not accept to plaintiff, the bail, or he shall be deemed to have accepted it, and the Sheriff or ceptance or Constable shall be exonerated from liability. and its ac rejection by him. SEC. 216. On the receipt of such notice, the Sheriff or Constable, or defendant, may, within ten days thereafter, give to the plaintiff, or attor- Notice of jus. ney by whom the order of arrest is subscribed, notice of the justification of tification. the same or other bail (specifying the places of residence and occupation of the latter) before a Judge or Clerk of the Court, at a specified time and place; the time to be not less than five nor more than ten days thereafter. În case other bail be given, there shall be a new undertaking, in the form prescribed in Section two hundred and ten. SEC. 217. The qualification of bail must be as follows: 1. Each of them must be a resident, and householder or freeholder, within the State. 2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution; but the Judge or Clerk of the Court, on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail. New bail. Qualification of bail. of bail. SEC. 218. For the purpose of justification, each of the bail shall attend Justification before the Judge or Clerk of the Court at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the Judge, or Clerk of the Court, in his discretion, may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff. SEC. 219. If the Judge, or Clerk of the Court, find the bail sufficient, Allowance of he shall annex the examination to the undertaking, indorse his allowance bail. thereon, and cause them to be filed in the office of the Clerk; and the Sheriff shall thereupon be exonerated from liability. SEC. 220. The defendant may, at the time of his arrest, instead of giv- Deposit with ing bail, deposit with the Sheriff or Constable the amount mentioned in the Sheriff. the order. The Sheriff shall thereupon give the defendant a certificate of the deposit and the defendant shall be discharged out of custody. into SEC. 221. The Sheriff or Constable shall, within four days after the de- Payment of deposit posit, pay the same into Court, and shall take from the officer receiving Court. the same two certificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant. For any default in making such payment the same proceedings may be had on the official bond of the Sheriff or Constable, to collect the sum deposited, as in other cases of delinquency. bail for depo SEC. 222. If money be deposited, as provided in the last two Sections, Substituting bail may be given and justified upon notice, as prescribed in Section two sit. hundred and sixteen, 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 or Constable to the defendant, and it shall be refunded accordingly. SEC. 223. Where money shall have been so deposited, if it remain on de- Deposit, how posit at the time of an order or judgment for the payment of money to the disposed of A. D. 1870. plaintiff, the Clerk shall, under 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. or Constable, bail. SEC. 224. If, after being arrested, the defendant escape or be rescued, The Sheriff or bail be not given or justified, or a deposit be not made instead thereof, when liable as the Sheriff or Constable shall himself be liable as bail. But he may discharge himself from such liability by the giving and justification of bail, as provided in Sections two hundred and sixteen, two hundred and seventeen, two hundred and eighteen, and two hundred and nineteen, at any time before process against the person of the defendant to enforce an order or judgment in the action. SEC. 225. If a judgment be recovered against the Sheriff or Constable, Proceedings upon his liability as bail, and an execution thereon be returned unsatison judgment fied, in whole or in part, the same proceedings may be had on the official bond of the Sheriff or Constable to collect the deficiency, as in other cases of delinquency. against Sheriff. Sheriff. SEC. 226. The bail taken upon the arrest shall, unless they justify, or Ball liable to other bail be given or justified, be liable to the Sheriff' or Constable by action for damages which he may sustain by reason of such omission. SEC. 227. A defendant arrested may, at any time before judgment, ap ply, on motion, to vacate the order of arrest, or to reduce the amount of bail. Vacating order of arrest or reducing bail. SEC. 228. If the motion be made upon affidavits on the part of the deAffidavits on fendant, 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. motion. CHAPTER II. Delivery of CLAIM AND DELIVERY OF PERSONAL PROPERTY. SEC. 229. Claim and delivery of personal property. 230. Affidavit and its requisites. 231. Requisition to Sheriff to take and deliver the property. 232. Security by plaintiff. 233. Exception to sureties. 234. Defendant, when entitled to re-delivery. 235. Justification of defendant's sureties. 236. Qualification and justification of sureties. 237. Property, how taken when concealed in building or in closure. 238. Property, how kept. 239. Claim of property by third person. 240. Notice and affidavit, when and where to be filed. SEC. 229. The plaintiff, in an action to recover the possession of per personal pro- sonal property, may, at the time of issuing the summons, or at any time perty. before answer, claim the immediate delivery of such property, as pro vided in this chapter. A. D. 1870. SEC. 230. Where a delivery is claimed, an affidavit must be made by its requisites the plaintiff, or by some one in his behalf, showing: 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. SEC. 231. The plaintiff may, thereupon, by an indorsement in writing upon the affidavit, require the Sheriff of the County where the property claimed may be, to take the same from the defendant and deliver it to the plaintiff. Requisition take and deliver the prop to Sheriff to erty. Security by SEC. 232. Upon the receipt of the affidavit and notice, with a written undertaking executed by one or more sufficient sureties, approved by the plaintiff. Sheriff, to the effect that they are bound 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 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. sureties. SEC. 233. The defendant may, within three days after the service of a copy Exception to 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 justifiy, 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. when entitled SEC. 234. At any time before the delivery of the property to the plain- Defendant, tiff, the defendant may, if he do not except to the sureties of the plaintiff, to re-delivery 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 A. D. 1870. of defendant's sureties. be not so required, within three days after the taking and service of notice to the defendant, it shall be delivered to the plaintiffs, except as provided in Section two hundred and thirty-nine. SEC. 235. The defendant's sureties, upon a notice to the plaintiff of not less Justification than two nor more than six days, shall justify before a Judge, Clerk of the Court, or Trial Justice, 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. and justifica Qualifications SEC. 236. The qualifications of sureties and their justification shall be tion of sure- as are prescribed by Sections two hundred and seventeen and two hundred and eighteen in respect to bail upon an order of arrest. ties. how to be ta SEC. 237. If the property, or any part thereof, be concealed in a buildProperty ing or inclosure, the Sheriff shall publicly demand its delivery. If it be ken when con- not delivered, he shall cause the building or inclosure to be broken open, building or in- and take the property into his possession; and, if necessary, he may call to his aid the power of his County. cealed in а closure. how kept. SEC. 238. When the Sheriff shall have taken property, as in this chapProperty- ter 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. perty by third person. SEC. 239. If the property taken be claimed by any other person than Claim of pro- the defendant or his agent, and such person shall make 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. Notice and affidavit, when SEC. 240. The Sheriff shall file the notice and affidavit, with his proand where to ceedings thereon, with the Clerk of the Court in which the action is pending, within twenty days after taking the property mentioned therein. be filed. CHAPTER III. INJUNCTION. SEC. 241. Writ of injunction abolished, and order substituted. 243. At what time it may be granted. Copy affidavit to be served. SEC. 244. Injunction after answer. 245. Security upon injunction. Damages, how ascertained. 246. Order to show cause why injunction should not be granted. 247. Security upon injunction to suspend business of corporation. 249. Affidavits on motion. A. D. 1870. Injunction SEC. 241. An order of injunction may be made by the Circuit Court in which the action is brought, or by a Judge thereof, and in the absence by order. from the Circuit, or inability, from any cause, of a Judge thereof, by a Judge of any other Circuit, or a Justice of the Supreme Court. SEC. 242. [1] Where it shall appear by the complaint that the plaintiff Injunction, in what cases. is entitled to the relief demanded, and such relief, or 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 [2] 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. [3] 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. Injunction, at what time SEC. 243. The injunction may be granted at the time of commencing the action, or at any time afterwards, before judgment, upon its appearing granted. satisfactorily to the Court or Judge, by the affidavit of the plaintiff, or of Copy affidaany other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction. SEC. 244. An injunction shall not be allowed after the defendant shall have answered, unless upon notice or upon an order to show cause; but in such case the defendant may be restrained until the decision of the Court or Judge granting or refusing the injunction. vits to be serv ed. Injunction after answer. Security up on injunction. SEC. 245. When no provision is made by statute as to security 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 thereto. The damages may be ascertained by a reference, or otherwise, as the Damages. Court shall direct. cause. SEC. 246. If the Court or Judge deem it proper that the defendant, or Order to show any of several defendants, should be heard before granting the injunction, an order may be made requiring to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the meantime, be restrained. Restraint in meantime. Security up on injunction SEC. 247. An injunction to suspend the general and ordinary business of a corporation shall not be granted except by the Court or a Judge to suspend bu thereof Nor shall it be granted without due notice of the application siness of cor therefor, to the proper officers of the corporation, except where the State poration. is a party to the proceeding, and except in proceedings to enforce the liability of stockholders in corporations and associations for banking |