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ing or enclosure, the sheriff shall publicly demand its delivery. If it be not delivered, he shall 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.
On seizure of the property, three courses are open to the defendant:
1. He may move to set aside the plaintiff's proceedings, on the ground of irregularity.
2. He may require the plaintiff's sureties to justify; or,
3. He may give counter security, for the purpose of retaining the property.
If he move to set aside, the motion must be noticed at once; and an interim stay of proceedings, and extension of the time to except, or give counter security, must be at once applied for. By requiring the sureties to justify, his right to make a motion on the ground of irregularity will be gone. See cases cited in last chapter on the analogous question of arrest. Three days only are allowed him for the former purpose.
By requiring the sureties to justify, the defendant will likewise lose his rights to give counter security. See sec. 210. These points should, of course, be weighed well, and at once, before deciding on the precise course to be adopted.
The proceedings, where justification is demanded, are thus prescribed by sec. 210:
$ 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.
The proceedings, it will be seen, are substantially the same as those treated of in the last chapter. If the plaintiff's sureties omit to justify, it seems the defendant will be without remedy, except as against the sheriff. See Marley v. Patterson, 3 C. R. 89, there cited.
The case of Burns v. Robbins, I C. R. 62, above referred to, is authority, as to the power of the court to allow further time
for sureties to justify, upon good cause shown; but, it seems, a new notice must be given by them, under these circumstances.
If, on the contrary, the defendant is desirous of retaining the property on counter security, it is competent for him to do so under sec. 211, which runs as follows:
§ 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.
It will be seen that, if these proceedings are not taken within the three days allowed as above, the property is to be delivered by the sheriff to the plaintiff, except in the event of a claim by a third party, as hereafter noticed.
The plaintiff may require the defendant's sureties to justify, as follows, under sec. 212:
§ 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.
The qualifications of the sureties in general, are the same as those on arrest, as treated of in the preceding chapter.-See sec. 213.
If the defendant's sureties justify in due course, the property, as above prescribed, must be delivered to the defendant; if they fail to do so, then to the plaintiff. In the meantime it is to remain in the custody of the sheriff, who is entitled to be paid his fees and necessary expenses, by the party to whom it is eventually delivered.-Sec. 215. For the fees in question, see 2 R. S. 644 to 647. The expenses must of course be reasonable, and, if any question arise, a taxation of his account may be applied for, in the usual manner.
The contingencies of a claim to the property by a third party, and the indemnity that may be required by the sheriff thereon, are thus provided for by sec. 216 :
$ 216. If the property taken be claimed by any other 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 suficient 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.
The ultimate disposition of the papers is prescribed by sec. 217, as follows:
§ 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.
The property, when disposed of in any of the above methods, remains subject to the disposition of the court on the hearing of the cause; and a delivery may be demanded, or the liability of the sureties enforced accordingly, in the usual manner, on an order or decree being duly made.
The plaintiff cannot discontinue his action, without providing for the return of the property to the defendant, as well as for the payment of costs. If the desendant be in a situation to ask for a dismissal of the complaint, he should set the cause down, and take judgment by default, in the ordinary course. He cannot obtain a judgment for a return, on the usual motion for dismissal., Wilson v. Wheeler, 6 How. 49; 1 C. B. (N. S.) 402.
The remedy of injunction, though in some respects altered in form, remains, in all its substantial parts, the same as under the former practice.
The definition of that remedy as now existent, and of the officers by application to whom it is obtainable, is thus contained in sec. 218:
$ 218. The writ of injunction as a provisional remedy is abolished; and an injunction, by order, is substituted therefor. The order may be made by the court in which 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.
Such motions, in practice, are always made to the single judge. The power of the general Term to entertain them, if thought expedient, is, however, asserted in Drake v. The Hudson River Railroad Company, 2 C. R. 67.
The powers of the county judge in this respect, and the limits within which those powers are exerciseable, have been before considered, in the chapter as to the general machinery of a suit, under the head of Motions. See, in particular, Eddy v. Howlet, and Peebles v. Rogers, there cited. The substitution of an order for the former writ of injunction is merely formal, and calculated to simplify, instead of complicating the practice.
The circumstances under which an injunction is obtainable, are thus laid down in sec. 219:
$ 219. Where it shall appear by the complaint, that the plaintiff 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 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.
The injunctions obtainable under this section may be classed under the two main divisions of preliminary or subsidiary; the former arising upon the case as stated upon the complaint, and forming part of the relief originally demanded; the latter obtainable in respect of subsequent acts of the defendant. A third description, which may be denominated as extraneous, arises under the last section, in respect of circumstances unconnected with the immediate controversy between the parties, but tending incidentally to defeat the plaintiff's rights. This branch of the subject is closely connected with that of proceedings supplementary to execution, as heretofore considered ; and the powers here conferred, when exercised, give to those provisions a species of retrospective effect, by restraining, pendente lite, any disposition of the defendant's property, which might tend to defeat the remedy sought for by the suit, when ultimately obtained.
Proceeding with the consideration of these remedies, in the order above prescribed, the first which presents itself is the preliminary injunction, applied for at the outset of the suit, and forming part of the relief originally demanded. It will be seen that one main condition precedent to an application of this nature is, that the plaintiff's title to relief, and, in particular, to the injunction applied for, should appear by the complaint ; unless this be the case it cannot be granted.
Thus, it has been held that an injunction is only obtainable by a plaintiff. A defendant, as defendant, is not competent to move for one, except in the very improbable case of his title to do so appearing by the complaint. His only method of proceeding is to serve a summons and complaint in the nature of cross-suit, and then proceed therein as plaintiff.—Thursby v. Mills, 1 C. R. 83.
An injunction will not be granted, unless it be shown that the plaintiff has some interest in the premises; and that the defend