junction, an order shall be made fixing a time and place for hearing the application for the injunction, a copy of which order shall be served upon the person or persons designated therein, and the defendant may in the mean time be restrained. Upon the hearing the parties may use affidavits, other written evidence and oral testimony.

SEC. 117. An injunction or restraining order to suspend the Injunction to suspend general and ordinary business of a corporation shall not be granted business of without due notice of the application therefor, to be served in the corporamanner prescribed for service of the summons in the action.

SEC. 118. If an injunction be granted without notice, the defendant at any time before the trial, may apply, upon reasonable notice, to the Judge who granted the injunction, or to the Court in which the action is pending, or a Judge thereof, to dissolve or modify the same. The application may be made upon the complaint and the affidavit, or affidavits, on which the injunction was granted, if any were used, or upon affidavits or other testimony on the part of the defendant, with or without the answer. If the application be made upon affidavit, or other evidence, on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence in addition to the affidavits on which the injunction was granted, and the defendant may then in proper cases introduce rebutting affidavits or other evidence; provided, that for the purpose of allowing the plaintiff to introduce further evidence, the answer or verification thereto attached shall be deemed an affidavit.

tion.

Motion to

modify.

dissolve or

Court to

SEC. 119. The Supreme Court may prescribe by rule the time Supreme when, and the cases in which, the service of affidavits to be used upon prescribe applications for injunctions, and motions to dissolve injunctions, shall rule, etc. be made; and may also provide by rule for the giving of notice before such hearings of the kind of testimony to be used, and make all needful rules on the subject of injunctions not in conflict with this or other Acts.

fused, etc.

SEC. 120. If upon the hearing of an application for an injunction, Injunction or for the dissolution of an injunction, it does not satisfactorily appear may be rethat there is a sufficient cause for an injunction, or if it appear that the extent of the injunction is too great, it shall be refused, dissolved, or modified, as the case may be, and upon all such applications in actions respecting mines the Court, or Judge hearing the same, may, instead of granting or continuing the injunction, make an order requiring the party against whom the application is made to give a bond in an amount fixed by such Court or Judge, with sufficient sureties, to be approved by such Court or Judge, conditioned for the payment to the plaintiff of all damages which he may sustain by reason of the use or occupation of the mine, or other acts complained of, by the party giving the bond, his or its agents, servants, employés, grantees, or other persons by his or its consent pending the litigation, if the plaintiff finally recover; or that upon failure to give such bond within the time prescribed in the order, the injunction shall be granted, or continued, as the case may be; or the Court, or Judge, may appoint a receiver, to take charge of the mine, or the proceeds thereof, pending the litigation.

of injunction.

SEC. 121. It shall be good cause in the discretion of the Court, or Dissolution Judge, for the dissolution of an injunction that the plaintiff is doing, or causing, or permitting to be done, some act pending the litigation which, if continued, will be injurious to the defendant if he finally recover, or to the property in dispute. But the Court, or Judge, hearing

Gold coin.

Attachment.

Writ, how issued.

Undertaking required.

Requirement of writ.

a motion to dissolve an injunction, may instead of granting such motion, direct by order that the plaintiff give to the parties restrained a bond conditioned, as provided in Section One Hundred and Twenty, or upon his failure to do so, within the time prescribed in such order that the injunction shall be dissolved.

SEC. 122. All undertakings and bonds provided for in this Chapter shall be made payable in gold coin of the United States.

CHAPTER 4-ATTACHMENT.

SEC. 123. The plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided in the following cases: First-In an action upon a contract for the direct payment of money, made, or by the terms thereof, payable in this State, which is not secured by mortgage, lien or pledge upon real or personal property situated or being in this State, or, if so secured, when such security has been rendered nugatory by the act of the defendant. Second-In an action upon a contract against a defendant not residing in this State.

SEC. 124. The Clerk of the Court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, showing: First-That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs or counter claims) upon a contract for the direct payment of money, and that such contract was made, or is, by the terms thereof, payable in this State, and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real or personal property situate or being in this State, or, if so secured, that said security has been rendered nugatory by the act of the defendant ; or: Second-That the defendant is indebted to the plaintiff, (specifying the amount of such indebtedness as near as may be over and above all legal set-offs or counter claims) and that the defendant is a nonresident of the State. Third--That the sum for which the attachment is asked is an actual, bona fide, existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant.

SEC. 125. Before issuing the writ the Clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, not exceeding the amount claimed by the plaintiff, in gold coin of the United States, with sufficient sureties, to the effect that if the defendant recover judgment the plaintiff will pay, in gold coin of the United States, all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking.

SEC. 126. The writ shall be directed to the Sheriff of any county in which property of such defendant may be, and require him to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which shall be stated in conformity with the complaint, unless the defendant give him security by the undertaking, of at least two sufficient sureties, in an amount

sufficient to satisfy such demand, besides cost, in the money or currency of the contract, in which case to take such undertaking. Several writs may be issued at the same time to the Sheriffs of different counties. SEC. 127. The rights or shares which the defendant may have in What property may be the stock of any corporation or company, together with the interest attached. and profits therein, and all debts due such defendant, and all other property in this State of such defendant not exempt from execution, may be attached, and if judgment be recovered be sold to satisfy the judgment and execution.

should be

SEC. 128. The Sheriff to whom the writ is directed and delivered How writ shall execute the same without delay, and if the undertaking mentioned executed. in Section One Hundred and Twenty-six be not given-as follows: First-Real property shall be attached by leaving a copy of the writ with the occupant thereof; or if there be no occupant, by posting a copy in a conspicuous place thereon, and filing a copy, together with a description of the property attached, with the Recorder of the county. Second-Personal property capable of manual delivery shall be attached by taking it into custody. Third-Stock or shares, or interest in stock or shares, of any corporation or company, shall be attached by leaving with the President, or other head of the same, or the Secretary, Cashier or Managing Agent thereof, a copy of the writ, and a notice stating the stock or interest of the defendant is attached in pursuance of such writ. Fourth-Debts and credits, and other personal property, not capable of manual delivery, shall be attached by leaving with the person owing such debts, or having in his possession, or under his control, such credits or other personal property, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits and other personal property in his possession or under his control belonging to the defendant, are attached in pursuance of such writ. SEC. 129. Upon receiving information in writing from the plaintiff Property in or his attorney, that any person has in his possession, or under his control, other perany credits or other personal property belonging to the defendant, or is son. owing any debt to the defendant, the Sheriff shall serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pursuance of such writ.

hands of

persons.

SEC. 130. All persons having in their possession, or under their Liability control, any credits or other personal property belonging to the defend- of other ant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as provided in the last two Sections, shall be, unless such property is delivered up or transferred, or such debts be paid to the Sheriff, liable to the plaintiff for the amount of such credits, property or debts, until the attachment be discharged or any judgment recovered by him be satisfied.

tion.

SEC. 131. Any person owing debts to the defendant, or having in Examinahis possession or under his control any credits or other personal property belonging to the defendant, may be required to attend before the Court, or Judge, or a referee appointed by the Court or Judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The Court, or Judge, may, after such examination, order personal property capable of manual delivery to be delivered to the Sheriff on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof.

Return of
Sheriff.

Perishable property to be sold.

SEC. 132. The Sheriff shall make a full inventory of the property attached, and return the same with the writ. To enable him to make such returns as to debts and credits attached, he shall request at the time of service the party owing the debt, or having the credit, to give him a memorandum stating the amount and description of each; and if such memorandum be refused, he shall return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay the costs of any proceeding taken for the purpose of obtaining information respecting the amount and description of such debt or credit.

SEC. 133. If any of the property attached be perishable, the Sheriff shall sell the same in the manner in which such property is sold on execution. The proceeds and other property attached by him shall be retained by him, to answer any judgment that may be recovered in the action, unless sooner subject to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him, if the same can be done without suit. The Sheriff's receipt shall be a sufficient discharge for the amount paid. SEC. 134. If any personal property attached be claimed by a third third party. person as his property, the Sheriff may summon a jury of six men to try the validity of such claim; and such proceedings shall be had thereon, with the like effect, as in case of a claim after levy upon execution.

Property

claimed by

Judgment, how satisfied.

Notice of sale.

Same.

Proceedings

cution

SEC. 135. If judgment be recovered by the plaintiff, the Sheriff shall satisfy the same out of the property attached by him which has not been delivered to the defendant, or a claimant as hereinafter provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose: First-By paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment. Second--If any balance remain due, and an execution shall have been issued on the judgment, he shall sell under the execution, so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notice of the sales shall be given, and the sales conducted as in other cases of sales on execution.

SEC. 136. If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting the fees, to the payment of the judgment, any balance shall remain due, the Sheriff shall proceed to collect such balance as upon an execution in other cases. Whenever the judgment shall have been paid, the Sheriff, upon reasonable demand, shall deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment.

SEC. 137. If the execution be returned unsatisfied, in whole or in when exe- part, the plaintiff may prosecute any undertaking given pursuant to Section one hundred and twenty-six, or Section one hundred and forty, or he may proceed as in other cases upon the return of an execution.

returned unsatisfied.

Proceedings when defendant

recovers

judgment.

SEC. 138. If the defendant recover judgment against the plaintiff, any undertaking received in the action, all the proceeds of sales and money collected by the Sheriff, and all the property attached remaining in the Sheriff's hands, shall be delivered to the defendant or his agent; the order of attachment shall be discharged and the property released therefrom.

of attach

SEC. 139. Whenever the defendant shall have appeared in the ac- Discharge tion, he may apply, upon reasonable notice to the plaintiff, to the Court ment, when in which the action is pending, or to the Judge thereof, for an order to made. discharge the attachment, wholly or in part, upon the execution and filing of the undertaking mentioned in the next section. Such order may be granted directing the release from the operation of the attachment, upon the filing of such undertaking and the justification of the sureties thereon, if required by the plaintiff, of all or any part of the property, money, debts or credits attached, as the case may be. All the proceeds of sales and moneys collected by the Sheriff, and all the property attached remaining in his hands, so released, shall be delivered or paid to the defendant upon the filing of such undertaking and making such justification, if required by the plaintiff.

SEC. 140. On granting such order the Court or the Judge shall Undertaking of require an undertaking on behalf of the defendant, with at least two defendant. sureties, residents and freeholders or householders in the county, which shall be filed to the effect, in case the value of the property or the amount of money, debts or credits sought to be released shall equal or exceed the amount claimed by the plaintiff in the complaint, that the defendant will pay to the plaintiff the amount of the judgment which may be recovered in favor of the plaintiff in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount so claimed by the plaintiff, and in the money or currency of the contract; or to the effect, in case the value of the property or the amount of money, debts or credits sought to be released shall be less than the amount so claimed by the plaintiff, that the defendant will pay the amount of such judgment, to the extent of the value of the property, or amount of money, or debts or credits sought to be released, not exceeding the sum specified in the undertaking, which shall be at least double the value of such property, money, debts or credits, and in the money or currency of the contract. The value of the property sought to be released, if disputed, shall be determined, in the money or currency of the contract, by the Court or Judge thereof, upon proof, or by a sworn appraiser or sworn appraisers, not exceeding three, to be appointed by the Court or the Judge for that purpose. Before filing the undertaking the defendant shall serve a copy thereof upon the plaintiff, and if the plaintiff require a justification by the sureties, he shall give notice thereof to the defendant within two days; or at the time of giving notice of motion for an order to discharge the attachment, the defendant may in his notice name the sureties, and if the plaintiff require them to justify he shall give notice thereof at the hearing of the motion. If required, the sureties shall justify before the Court in which the suit is pending, or the Judge thereof, after reasonable notice.

discharge of

SEC. 141. The defendant may also, any time before the time of Motion for answering expires, apply on motion, upon reasonable notice to the attachment. plaintiff, to the Court in which the action is brought, or to the Judge thereof, for the discharge of the attachment, on the ground that the writ was improperly issued.

may oppose

SEC. 142. If the motion be made upon affidavits on the part of the Plaintiff defendant, but not otherwise, the plaintiff may oppose the same by affi- by other davits or other evidence, in addition to those on which the writ of evidence. attachment was issued.

SEC. 143. If upon such application it shall satisfactorily appear Discharge that the writ of attachment was improperly issued, it shall be of writ." discharged.