Order, duty of Sheriff.

How executed. Defendant, how dis charged.

Bail, how given.

Surrender.

May arrest defendant.

Judgment against.

How exonerated.

Proceed

ings after arrest.

the county where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, naming the money or currency in which it is payable, and to return the order at a time therein mentioned to the Clerk of the Court in which the action is pending.

SEC. 78. The order of arrest, with a copy of the affidavit upon which it is made, shall be delivered to the Sheriff, who, upon arresting the defendant, shall deliver to him the copy of the affidavit, and also, if desired, a copy of the order of arrest.

SEC. 79. The Sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged by law.

SEC. 80. The defendant, at any time before execution, shall be discharged from the arrest either upon giving bail or upon depositing the amount mentioned in the order of arrest in the money or currency therein named, as provided in this Chapter.

SEC. 81. The defendant may give bail by causing a written undertaking, payable in the money of the contract, (if any be named) and in other cases as directed by the Judge, to be executed by two or more sufficient sureties, stating their places of residence and occupations, to the effect that they are bound in the amount mentioned in the order of arrest; that the defendant shall at all times render himself amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that they will pay to the plaintiff the amount of any judgment which may be recovered in

the action.

SEC. 82. At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration; or he may surrender himself to the Sheriff of the county where he was arrested.

SEC. 83. For the purpose of surrendering the defendant, the bail, at any time or place before they are finally charged, may themselves arrest him; or by a written authority, indorsed on a certified copy of the undertaking, may empower the Sheriff to do so. Upon the arrest of the defendant by the Sheriff, or upon his delivery to the Sheriff by the bail, or upon his own surrender, the bail shall be exonerated, provided, such arrest, delivery or surrender take place before the expiration of ten days after judgment; but if such arrest, delivery or surrender be not made within ten days after judgment, the bail shall be finally charged on their undertaking, and be bound to pay the amount of the judgment within ten days thereafter.

SEC. 84. If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of such original judgment.

SEC. 85. The bail shall also be exonerated by the death of the defendant, or his imprisonment in a State Prison, or by his legal discharge from the obligation to render himself amenable to the process.

SEC. 86. Within the time limited for that purpose, the Sheriff shall file the order of arrest in the office of the Clerk of the Court in which the action is pending, with his return indorsed thereon, together with a copy of the undertaking of the bail. The original undertaking he shall retain in his possession until filed, as herein provided. The plaintiff within ten days thereafter may serve upon the Sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted them, and the Sheriff shall be exonerated from liability. If no notice be served within ten days, the original undertaking shall be filed with the Clerk of the Court.

SEC. 87. Within five days after the receipt of notice, the Sheriff Notice of or defendant may give to the plaintiff, or his attorney, notice of the of bail. justification justification of the same, or other bail (specifying the places of residence and occupations of the latter) before the Judge of the Court, or Clerk, at a specified time and place; the time to be not less than five nor more than ten days thereafter, except by consent of parties. In case other bail be given there shall be a new undertaking. SEC. 88. The qualifications of bail shall be as follows: First Each of them shall be a resident, and householder, or freeholder, tions of bail. within the county. Second-Each shall be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this Chapter, over and above all his debts and liabilities, exclusive of property exempt from execution; but the Judge, or Clerk, on justification, may allow more than two sureties to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

Qualifica

SEC. 89. For the purpose of justification, each of the bail shall Bail, how to attend before the Judge, or Clerk, at the time and place mentioned in justify. 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 in his discretion may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff.

SEC. 90. If the Judge, or Clerk, find the bail sufficient, he shall Allowance annex the examination to the undertaking, indorse his allowance there- of bail. on, and cause them to be filed, and the Sheriff shall thereupon be exonerated from liability.

SEC. 91. The defendant may at the time of his arrest, instead of Deposit in giving bail, deposit with the Sheriff the amount mentioned in the order. lieu of bail. In case the amount of the bail be reduced, as provided in this Chapter, the defendant may deposit such amount instead of giving bail. In either case the Sheriff shall give the defendant a certificate of the deposit made, and the defendant shall be discharged out of custody. SEC. 92. The Sheriff shall immediately after the deposit pay the Disposition same into Court, and take from the Clerk receiving the same two certificates of such payment; the one of which he shall deliver or transmit to the plaintiff, or his attorney, 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.

of deposit.

SEC. 93. If money be deposited, as provided in the last two Sec- Bail after tions, bail may be given, and may justify upon notice at any time be- deposit. fore judgment; and on the filing of the undertaking and justification with the Clerk, the money deposited shall be refunded by such Clerk to the defendant.

SEC. 94. Where money shall have [been] deposited, if it remain Application of deposit on deposit at the time of a recovery of a judgment in favor of the after judgplaintiff, the Clerk shall, under the direction of the Court, apply the ment. 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, under like direction of the Court, refund to him the whole sum deposited and remaining unapplied. SEC. 95. If, after being arrested, the defendant escape or be res- Liability of cued, the Sheriff shall himself be liable as bail; but he may discharge Sheriff. himself from such liability by the giving and justification of bail at any time before judgment.

Judgment against Sheriff.

Vacating order of arrest.

Reduction of bail.

SEC. 96. 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 his official bond for the recovery of the whole or any deficiency, as in other cases of delinquency.

SEC. 97. A defendant arrested may, at any time before the justification of bail, apply to the Judge who made the order, or the Court in which the action is pending, upon reasonable notice to the plaintiff to vacate the order of arrest, or to reduce the amount of bail. If the application 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.

SEC. 98. If upon such application it shall satisfactorily appear that there was not sufficient cause for the arrest, the order shall be vacated, or if it satisfactorily appear that the bail was fixed too high, the amount shall be reduced.

When claim may be made.

Affidavit to obtain order for delivery.

Delivery.

Proceedings on.

CHAPTER 2-CLAIMS AND DELIVERY OF PERSONAL PROPERTY.

SEC. 99. The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him as provided in this chapter.

SEC. 100. Where a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing: First-That the plaintiff is the owner of the property claimed, (particularly describing it) or is lawfully entitled to the possession thereof. Second-That the property is wrongfully detained by the defendant. Third-The alleged cause of the detention thereof according to his best knowledge, information and belief. Fourth-That the same has not been taken for a tax, assessment or fine, pursuant to a statute, or seized under an execution or an attachment against the property of the plaintiff, or, if so seized, that it is by statute exempt from such seizure; and, FifthThe actual value of the property.

SEC. 101. The plaintiff or his attorney may thereupon, by 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.

SEC. 102. Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, approved by the Sheriff, to the effect that they are bound to the defendant in double the value of the property, in gold coin of the United States, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendants, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, in gold coin of the United States, 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; or if neither have any known place of abode, by putting them in the nearest Post Office, directed to the defendant.

SEC. 103. The defendant may, within two days after the service of Sureties, exa copy of the affidavit and the undertaking, give notice to the Sheriff cepting to. 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.

return.

SEC. 104. At any time before the delivery of the property to the Defendant plaintiff, the defendant may, if he do not except to the sureties of the may require 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, in gold coin of the United States, 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, in gold coin of the United States, 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 serving of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section one hundred and nine.

Justifica

defendant's

SEC. 105. The defendant's sureties, upon notice to the plaintiff of not less than two or more than five days, shall justify before the Judge tion of or the Clerk, in the same manner as upon bail on arrest; and upon sureties. 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. If they or others in their place fail to justify at the time and place appointed, he shall deliver the property to the plaintiff.

SEC. 106. The qualification of sureties and their justification shall Qualificabe such as are prescribed by this Act in respect to bail upon an order tion of of arrest.

sureties.

concealed.

SEC. 107. If the property, or any part thereof, be concealed in a Property building 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.

erty.

SEC. 108. When the Sheriff shall have taken property, as in this Sheriff to Chapter provided, he shall keep it in a secure place, and deliver it to keep propthe party entitled thereto upon receiving his lawful fees for taking and necessary expenses for keeping the same.

property other per

son.

SEC. 109. If the property taken be claimed by any other person Proceedthan the defendant or his agent, and such person make affidavit ings when of his title thereto, or right to possesion thereof, stating the grounds claimed by 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, made payable in gold coin of the United States, 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

Notice, etc., to be filed.

Injunction defined.

In what cases

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.

SEC. 110. 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.

CHAPTER 3-INJUNCTION.

SEC. 111. 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, and, when made by a Judge, may be enforced as the order of the Court.

SEC. 112. An injunction may be granted in the following cases: be granted. First-When 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 the act complained of, either for a limited period or perpetually. Second-When it shall appear by the complaint or affidavit that the commission or continuance of some act, during the litigation, would produce great or irreparable injury to the plaintiff. Third-When it shall appear, during the litigation, that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual.

When may be granted.

After answer.

Undertaking.

Order for hearing.

SEC. 113. The injunction may be granted at the time of issuing the summons upon the complaint, and at any time afterwards, before judgment, upon affidavits or other evidence. The complaint in the one case, and the affidavits or other evidence in the other, shall show satisfactorily that sufficient grounds exist therefor. No injunction shall be granted on the complaint, unless it be verified by the oath of the plaintiff, or some one in his behalf, that he, the person making the oath, has read the complaint or heard the complaint read, and knows the contents thereof, and the same is true of his own knowledge, except the matters therein stated on information and belief, and that as to those matters he believes it to be true. When granted on the complaint a copy of the complaint and verification attached shall be served with the injunction; when granted upon affidavit, without notice, a copy of the affidavit shall be served with the injunction.

SEC. 114. An injunction shall not be allowed after the defendant has answered unless upon notice, or upon an order made as provided in section one hundred and sixteen, but in such case the defendant may be restrained until the decision of the Court or Judge granting or refusing the injunction.

SEC. 115. On granting an injunction, or a restraining order, the Court or Judge shall require, except where the State is a party plaintiff, a written undertaking, with sufficient sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the Court finally decide that the plaintiff was not entitled thereto.

SEC. 116. If the Court or Judge deem it proper that, the defendant, or any of several defendants, should be heard before granting the in