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described in the affidavit, if it be in 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; or if neither have any known place of abode, by putting them in the nearest post office, directed to the defendant.

N. Y. Code, § 209.

1. In an action on the bond, the fact that defendant brought his action before an incompetent tribunal is no defense, and the plea that the title of property so replevied is in him is bad. McDermott v. Isbell, 4 Cal. 113.

2. Where the defendant, in a replevin suit, failed to claim the return of the property in his answer, and on the trial the jury found a verdict for the defendant, on which the Court rendered judgment against plaintiffs for costs, which was paid: Held, that the payment of the judgment, as taken, was a complete discharge of plaintiffs' sureties on the undertaking. Chambers v. Waters, 7 Cal. 390.

3. Where a replevin bond substantially conforms to the act, and no variation is pointed out, the assignee of the defendants can maintain an action upon it. Wingate v. Brooks, 3 Cal. 112.

4. No recovery can be had on a bond purporting to be a joint bond of the principal and sureties, but signed by the latter only. City of Sacramento v. Dunlap, 14 Cal. 421.

5. Otherwise, as to undertakings under our system. They are original and independent contracts on the part of the sureties, and do not require the signature of the principal. Id.

6. Where the plaintiff, in replevin, gives the statutory undertaking, and takes possession of the property in suit, and is afterwards nonsuited, and judgment entered against him for the return of the property and for costs: Held, that his sureties are liable for damages sustained by defendant by reason of a failure to return the goods; but not for damages for the original taking and detention-the value of the goods not having been found by the jury. Guiaca v. Atwood, 8 Cal.

446.

7. T. commenced suit against J. by attachment; the writ was levied upon certain personal property by the plaintiff, H., as Sheriff. M. J., wife of J., claimed the property as a sole trader, and brought her action of replevin for the property, and obtained possession of the same by the delivery of an undertaking, as required by section one hundred and two of the Code. The undertaking was executed by defendants R. & S. The replevin suit was decided February 5th, 1855, in favor of H. T. obtained judgment in the attachment suit against J., November 30th, 1854. On the eighteenth of February, 1855, execution in favor of other creditors of J. coming into the hands of H., as Sheriff, he levied them on the same property, and subsequently sold the property and paid the proceeds into Court. H. then brought this suit against the sureties in the replevin bond: Held, that the lien of T.'s attachment continued after the replevy of the goods by M. J. Hunt v. Robinson, 11 Cal. 262.

8. The possession obtained by the plaintiff in replevin is only temporary. It does not divest the title, or discharge the lien. Id.

9. In an action on a replevin bond, the defendant's liability is limited to the damage sustained by a failure to return the property. Id.

10. When the same property came into the hands of II. as Sheriff, the condition of the replevin bond, to return the property, was fulfilled.

Id.

§ 103. Exception to sureties and proceedings thereon, or on failure to except.

The defendant may, within two 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 fails 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 justify. If the defendant except to the sureties, he cannot reclaim the property, as provided in the next section.

N. Y. Code, § 210.

§ 104. Defendant, when entitled to redelivery.

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 five days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section one hundred and nine.

N. Y. Code, § 211.

1. This bond is assignable by the Sheriff. Wingate v. Brooks, 3 Cal. 112. 2. In an action on this bond, it must be alleged that the defendant neither redelivered the property, nor paid the value thereof, as recited in the judgment. Nickerson v. Chatterton, 7 Cal. 568; Chambers v. Waters, Id. 390.

3. In an action on a replevin bond, the defendant's liability is limited to the damages sustained by a failure to return the property. Hunt v. Robinson, 11 Cal.

262.

4. The sureties only bind themselves to make good any judgment that plaintiff may lawfully obtain against defendant. Nickerson v. Chatterton, 7 Cal. 560.

5. The liability of the sureties cannot be more than the value of the property fixed by the judgment in the original suit. Nickerson v. Chatterton, 7 Cal. 568. 6. In an action against the sureties on replevin bond, it is necessary to allege and prove that the property was delivered to the party requiring it, and for whom the bond was given. Id. 570.

7. A replevin bond was made to the Sheriff instead of the party to be protected by it, by mistake, and then corrected; this did not invalidate the bond. Turner v. Billagram, 2 Cal. 522.

§ 105. Justification of defendant's sureties.

The defendant's sureties, upon notice to the plaintiff of not less than two nor more than five days, shall justify before a Judge or County Clerk, in the same manner as upon bail on arrest; and 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 the 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.

N. Y. Code, § 202.

1. In proceedings of claim and delivery, if the defendant elect to hold the property, the officer is still to retain it until the sureties justify, unless, indeed, he is willing himself to take the risk of such justification. The effect of a demand of the property by the defendant is not to entitle the defendant to have the property delivered to him, but to prevent a delivery of the property to the plaintiff. If the defendant would have the property himself, he must proceed to have his sureties justify in the manner provided in section two hundred and twelve of the Code. The time within which the defendant is to proceed to have his sureties justify is not limited. It is enough for plaintiff that the property is to be retained by the officer until such justification takes place, unless the officer chooses to make himself personally responsible that the sureties shall justify. Graham v. Wells, 18 How. 377.

2. Where, in an undertaking given in proceedings of claim and delivery, there were five sureties, and only three justified, and the aggregate amount of their justification was less than double the sum specified in the undertaking: Held, insufficient. Id.

§ 106. Qualification and justification of sureties.

The qualification of sureties and their justification shall be such as are prescribed by this Act in respect to bail upon an order of

arrest.

N. Y. Code, § 213.

§ 107. Property, how taken when concealed in building or inclosure.

If the property, or any part thereof, be concealed in a building or inclosure, the Sheriff shall publicly demand its delivery; if it be not delivered, he shall cause the building or inclosure 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.

N. Y. Code, § 214.

§ 108. Property, how kept.

When the Sheriff shall have taken property, as in this 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.

N. Y. Code, § 215.

1. The property, a delivery of which was required, consisted of a cargo of coal, in a schooner lying at a wharf in an insecure place. The Sheriff served the papers on the defendant in possession, but left the coal there, where the vessel was afterwards sunk by a storm: Held, that the Sheriff was liable to the owner therefor. Moore v. Westervelt, 1 Bosw. 357.

2. Of the liability of the Sheriff for the safe keeping of the property in his custody. Moore v. Westervelt, 21 N. Y. (7 Smith) 103.

$109. Claim of property by third person.

If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, 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, indemnify the Sheriff against such claim, by an undertaking, 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, over and above their debts and liabilities, exclusive of property exempt from execution, and are freeholders or householders in 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 so made.

N. Y. Code, § 216.

§ 110. Notice and affidavit, when and where to be filed.

[1854.] The Sheriff shall file the notice, undertaking 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.

N. Y. Code, § 217.

CHAPTER III.-Injunction.

SEC. 111. Injunction, what is and who may grant it.

112. When it may be granted.

113. At what time it may be granted, and what is required

to obtain it.

114. Injunction after answer.

115. Security upon injunction. Damages, how ascertained. 116. Order to show cause why injunction should not be

granted.

117. Injunction to suspend business of a corporation ; how and by whom granted.

118. Motion to vacate or modify injunction.

119. When to be vacated or modified.

§ 111. Injunction, what is and who may grant it.

An injunction is a writ or order requiring a person to refrain from a particular act. The order or writ may be granted by the Court in which the action is brought, or by a Judge thereof, or by a County Judge; and when made by a Judge may be enforced as the order of the Court.

N. Y. Code, § 218.

1. Writ, form of.-No particular form is necessary for a writ of injunction. The substantial thing is an authentic notification to the defendants of the mandate of the Judge, which they must then, at their peril, obey. Summers v. Farish, 10 Cal. 347.

2. By whom it may be issued.—There is no prohibition in the Constitution to this grant of authority to the County Judge, and the implication is decidedly in favor of its exercise. Thompson v. Williams, 6 Cal. 88.

3. The grant of authority to the County Judge, to award injunctions in cases brought in the District Court, is a mere power to issue mesne process auxiliary to the proper jurisdiction of the District Court, and is not trenching upon it. Id.

4. The granting an injunction by a County Judge on a bill filed in the District Court is auxiliary to the action of that Court, and has the same force and effect, for all intents and purposes, as if it were the direct act of the latter. Crandall v. Woods, 6 Cal. 449.

5. A County Judge, in granting an injunction upon a bill filed in the District Court, acts as an injunction master, and is exercising a power auxiliary to the jurisdiction of the District Court. The effect of such an order is the same as if made by the District Court, and the injunction is subject to be controlled, modified or dissolved by the District Judge, the same as if issued by his order in the first instance. Borland v. Thornton, 12 Cal. 440.

6. Granting and continuing injunctions rests very much in the sound discretion of the Court, to be governed by the nature of the case. Hicks v. Michael, 15

Cal. 107.

7. The Court below may, on proper showing, revive an injunction once dissolved, or grant an injunction previously denied, and this is the extent of its power when the matter has been once disposed of. Id.

8. An injunction operates to restrain not only the party enjoined, but other Courts, on the ground of judicial comity. Engels v. Lubeck, 4 Cal. 31.

9. Abuse of the writ of injunction should be guarded against. De Witt v. Hays, 2 Cal. 463.

10. An injunction is never retroactive. It can never make an act unlawful, or a disobedience to its provisions, which was done before the injunction was granted. To convict of a contempt, it must satisfactorily appear either that the defendants, through themselves or their agents, have, since knowledge of the injunction, authorized the act prohibited by it to be done, or omitted to interfere to prevent a subsequent violation by a party who stood to them in the mere relation of an

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