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money with the

Amended 1849.

be filed with the clerk; and the sheriff shall thereupon be exonerated from liability.

§ 197. [Sec. 172.] The defendant may, at the time of his Deposit of arrest, instead of giving bail, deposit with the sheriff the sheria. amount mentioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged out of custody.

§ 198. [Sec. 173.] The sheriff shall, within four days af- Payment of ter the deposit, pay the same into court; and shall take court by the from the officer receiving 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 to collect the sum deposited, as in other cases of delinquency. $ 199. [Sec. 174.] If money be deposited, as provided Substitu

for deposit. in the last two sections, bail may be given and justified upon notice, as prescribed in section 193, any time before Amended 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.

$ 200. [Sec. 175.] Where money shall have been so de-Money deposited, if it remain on deposit at the time of an order or applied or judgment for 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. [Sec. 176.] If, after being arrested, the defendant Sheriff,

when liable escape or be rescued, or bail be not given or justified, or a as bail, and deposit be not made instead thereof, the sheriff shall himself charge be liable as bail. But he may discharge himself from such liability, by the giving and justification of bail as provided 1849.

1849.

ity. Amended

Proceed. ings on judgment against sheriff.

Bail liable

1849.

Motion to vacate or der of arrest or re

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.

$ 202. [Sec. 177.] If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be returned 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.

$ 203. [Sec. 178.] The bail taken upon the arrest, shall, to sheriff. unless they justify, or other bail be given or justified, be liaAmended ble to the sheriff, by action, for damages which he may

sustain by reason of such omission.

$ 204. [Sec. 179.] A defendant arrested, may, at any time

before the justification of bail, apply, on motion, to vacate duce bill. the order of arrest, or to reduce the amount of bail.

§ 205. [Sec. 180.] 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 proofs, in addition to those on which the order of arrest was made.

An order of arrest will not be vacated on the ground that no special cause for requiring bail, is set up in the plaintiff's affidavit upon which the order was granted. Baker agt. Swackhamer and Swackhamer, 5 How. 251; Martin vs. Vanderlip, 3 How. 265.

A defendant who is a common carrier, in an action on the case for negligence, is not entitled to be discharged from arrest upon a ca. sa. Burkle v. Ellis et al. 4 How. 288.

Affidavits on motion.

1

sure.

claimed.

1949.

CHAPTER II.
Claim and delivery of Personal Property.
SECTION 206. Delivery of personal property, when it may be claimed.

207. Affidavit and its requisites.
208. Requisition to sheriff, to take and deliver the property.
209. Security on the part of the plaintiff, and justification.
210. Exception to sureties and proceedings thereon or on failure

to except.
211. Defendant when entitled to re-delivery.
212. Justification of defendant's sureties.
213. Qualification and justification of sureties.
214. Property, how taken when concealed in building or enclo-
215. Property, how kept.
216. Claim of property by third person.

217. Notice and affidavit, when and where to be filed, $206. [Sec. 181.] The plaintiff, in an action to recover Delivery of the possession of personal property, may, at the time of property, issuing the summons, or at any time before answer, claim may be the immediate delivery of such property as provided in Amended this chapter. § 207. [Sec. 182.] Where a delivery is claimed, an affi- Affidavit,

quisites. davit must be made by 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. Where a delivery is claimed of property seized under an execution, the affidavit must shew clearly that it is exempt by a detailed statement of facts: Spaulding vs. Spaulding, 3 How. 297. [NOTES.]

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perty.

1849.

Requistion. $208. [Sec. 183.] The plaintiff may, thereupon, by an to take and endorsement 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 plain

tiff. Security on $ 209. [Sec. 184.] Upon the receipt of the affidavit and the part of the plain, notice, with a written undertaking, executed by one or more tification. sufficient sureties, approved by the sheriff, to the effect that Amended 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.

$210. The defendant may within three days after the on suoreties, service of a copy of the affidavit and undertaking, give thereon, or notice to the sheriff that he excepts to the sufficiency of 10 except. 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.

Exception

and pro

on failure

Passed 1849.

delivery.

Amendad

sureties.

Amended

$ 211. [Sec. 186.] At any time before the delivery of the Defendant property to the plaintiff, the defendant may if he do not led to reexcept to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, 1849. 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.

§ 212. [Sec. 187.] The defendant's sureties, upon a no- Justifica. tice to the plaintiff of not less than two nor more than six fendant's days, shall justify before a judge or justice of the peace, in the same manner as upon bail on arrest; upon such justifica- 1849. tion, 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.

Qualifica$ 213. [Sec. 188.] The qualifications of sureties and their justification, shall be as are prescribed by sections 194 and uon of su195, in respect to bail upon an order of arrest.

$ 214. [Sec. 189.] If the property or any part thereof be concealed in a building or enclosure, the sheriff shall public- when con. ly demand its delivery. If it be not delivered, he shall building or cause the building or enclosure to be broken open, and take the property into his possession; and if necessary he may call to his aid the power of his county.

§ 215. [Sec. 190.] When the sheriff shall have taken pro- Property; perty, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon re

tions and justifica

reties. Amended 1849. Property, how taken

enclosure.

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