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Requistion. § 208. [Sec. 183.] The plaintiff may, thereupon, by an 10 sheriff, 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 plainu notice, with a written undertaking, executed by one or more lification 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 40 sureties, service of a copy of the affidavit and undertaking, give thereon, or notice to the sheriff that he excepts to the sufficiency of to 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.

when enti

delivery.

Amendad

sureties.

Amended

$ 211. [Sec. 186.] At any time before the delivery of the Defendanı property to the plaintiff, the defendant may if he do not ued 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.

§ 213. [Sec. 188.] The qualifications of sureties and their tions and 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

Property, concealed in a building or enclosure, the sheriff shall public- when conly 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

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ceiving his lawful fees for taking, and his necessary expenses for keeping the same.

$ 216. If the property taken be claimed by any other property by third per person than 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.

$ 217. The sheriff shall file the notice and affidavit with his proceedings thereon, with the clerk of the court in which the action is pending within twenty days after taking the property mentioned therein.

Notice and affidavit when and where to be filed.

Passed 1849.

and order substitu

CHAPTER III.

Injunction.
Section 218. Writ of injunction abolished, and order substituted.

219. Injunction, in what cases granted.
220. At what time it may be granted.
221. Notice, when required. Temporary injunction.
222. Security upon injunction. Damages, how ascertained.
223. Order to show cause why injunction should not be granted.
224. Security upon injunction to suspend business of corpora-

tion.
225. Motion to vacate or modify injunction.

226. Affidavits, on motion. $ 218. [Sec. 191.] The writ of injunction as a provisional Writ of in

abolished, remedy is abolished; and an injunction, by order, is substituted therefor. The order may be made by the court in which ted. the action 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.

A motion for an injunction may be made at a general term. Drake vs. Hudson River R. R. Co., 2 Code Rep. 67.

$ 219. [Sec. 192.] Where it shall appear by the complaint, Injunction, that the plaintiff is entitled to the relief demanded, and such cases relief, or any part thereof, consists in restraining the commission or continuance of some act the commission or continu- 1849. ance of which, during the litigation would produce injury to the plaintiff, or when, during the litigation, it shall 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 judgmentineffectual, 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.

The complaint must contain a demand for the injunction. Hovey and wife agt. McCrea, 4 How. 31. S. C., 2 Code Rep. 31. Townsend agt. Tanner, 3 How. 384.

granted.

Amended

it shall appear

At what time it may

1849.

An injunction will issue to restrain waste or trespass to lands, where the title is in dispute, and the waste or trespass will be attended with irreparable mischief. Spear agt. Cutter, 4 How. 175.

So an injunction will issue to protect partnership property, Dillon agt. Horn and Moring, 5 How. 35.

The inquiry to be made on application for the injunction is, whether the act complained of will produce injury to the plaintiff, Cure agt. Crawford, 5 How. 293; Pomeroy and Leonard agt. Hindmarsh and White, id. 437.

An injunction will not issue to restrain the collection of taxes, on the grounds that the returns are insufficient. Van Rensselaer vs. Kidd, 4 Barb. 17.

Nor to stay the prosecution of another suit in this court. Dederick agt. Hoystradt and others, 4 How. 350.

§ 220. [Sec. 193.] The injunction may be granted at the be granied time of commencing the action, or at any time afterwards, Amended before judgment, 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.

The mode of obtaining an injunction is by affidavit, which may be so drawn that the complaint will form a part of it. Milikin agt. Cary, 5. How. 272. Roome and another agt. Webb, 3 How. 327.

To authorize an injunction there should not only be a clear and palpable violation of the plaintiff's rights, but the rights themselves should be certain, and such as are capable of being clearly ascertained and measured. Olmstead vs. Loomis, 6 Barb. 152.

For the various forms of injunctions, see 2 Barb. Chanc. Prac., 513, 514, 515.

See section 226, infra, and notes. Notice,

$ 221. [Sec. 194.) An injunction shall not be allowed, quired.

after the defendant shall have answered, unless upon noTemporary injunction. tice, or upon an order to show cause; but in such case the Amended defendant may be restrained, until the decision of the .

court or judge, granting or refusing the injunction. Security $ 222. [Sec. 195.] Where no provision is made by statute, junction as to security upon an injunction, the court or judge shall Amended 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

when re

1849.

1849.

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