1. Where the right to an injunction depends upon the nature of the action, when a final judgment is rendered in the action, which does not establish the plaintiff's right to a perpetua injunction.

2. In any other case, when the injunction order is vacated; or, if an application to vacate it is not made, or is denied, when final judgment against the plaintiff is rendered in the action; or, if two or more causes of action are joined in the complaint, when final judgment is so rendered upon the cause of action, with respect to which the injunction order was granted.

3. Where an appeal is taken from a judgment or order, specified in either of the last two subdivisions, and a stay of proceedings is obtained thereupon, when the judgment or order is finally affirmed in, or the appeal is dismissed by, the highest court, to which an appeal therefrom is taken.

ART. 3.

how ascer.

§ 623. The damages, sustained by reason of an injunction, may be Damages, ascertained and determined by the court, or by a referee, appointed by tained. the court; and the decision of the court thereupon, or an order confirming the report of the referee, is conclusive, as to the amount of those damages, upon all the persons who have executed the undertaking, unless it is reversed upon appeal. The court may in its discretion, direct that the sureties have notice of the hearing, or of an appeal, and may prescribe the time and manner of giving them notice.

sustained

by a third

§ 624. Where the defendant enjoined was an officer of a corporation, Damages or joint stock association, or a bailee, agent, trustee, or other representative of another, and the damages sustained by him, are less than the person. sum specified in the undertaking, the court or the referee may also separately ascertain and determine the damages sustained, by reason of the injunction, by the corporation, association, or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking; and those damages may be recovered in a separate action, brought as prescribed in the next section.

the under

§ 625. Where the damages have been ascertained by the decision of Action on the court, or the confirmation of a referee's report, as prescribed in the taking. last two sections, any person, entitled to the benefit of an undertaking, executed pursuant to the provisions of this title, may bring an action thereon, without further leave of the court.

ARTICLE THIRD.

VACATING OR MODIFYING AN INJUNCTION ORDER.

SECTION 626. Application to vacate or modify, without notice.

627. Id.; upon notice.

628. When prior motion not to prejudice subsequent application.
629. New undertaking may be required.

$30. Verified answer to have the effect only of an affidavit.

631. When merits of action may be litigated.

632. When merits not to be litigated.

633. Extrinsic questions of fact to be determined.
634. Proof upon questions of fact.

tion to

§ 626. Where the injunction order was granted without notice, the Applicaparty enjoined may apply, upon the papers upon which it was granted, vacate or for an order vacating or modifying the injunction order. Such an modify application may be made, without notice, to the judge who granted the notice.

without

TITLE 2.

Id.; upon notice.

When

prior mo

subsequent application.

order, or who held the term of the court where it was granted; or to the general term of the court. It cannot be made without notice, to any other judge or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge who granted the order, the application cannot be made to him; and that the applicant will be exposed to great injury, by the delay required for an application upon notice. The affidavit must be filed with the clerk; and a copy thereof, and of the order vacating or modifying the injunction order, must be served upon the plaintiff's attorney, before that order takes effect.

§ 627. Where the injunction order was granted upon notice, the party enjoined may also apply, upon notice, to the judge who granted it, or to the court, at a term where a contested motion in the action may be heard, for an order, vacating or modifying the injunction order. Such an application may be founded upon the papers upon which the injunction was granted; or upon proof, by affidavit, on the part of the defendant; or both. Where it is founded upon proof on the part of the defendant, it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground for the injunction, recited in the order, but no other.

§ 628. The granting or denial of an application, made as prescribed tion not to in the last section, founded only upon the papers upon which the inprejudice junction order was granted, does not prejudice a subsequent application, seasonably made, founded upon proof, by affidavit, on the part of the defendant. And the granting or denial of either application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint, which had not been made at the time of the former application, to set forth a cause of action, sufficient to entitle the plaintiff to the injunction order, upon one or more grounds, recited therein.

New undertaking may be

§ 629. Upon the hearing of an application, upon notice, to vacate or modify an injunction order, the court or judge may require a new required. undertaking, in the same or in a different sum, to be given by the plaintiff, with the like sureties, and to the like effect, as upon granting an original order. The persons executing the new undertaking become liable thereon, as if they had executed it upon the granting of the original order. The persons who executed the original undertaking remain liable thereon, until the new undertaking is given and approved, and no longer.

Verified answer to have the

§ 630. Upon the hearing of a contested application for an injunction order, or to vacate or modify such an order, a verified answer has the effect only effect only of an affidavit.

of an affidavit.

When

merits of

action may

be liti. gated.

When

merits not

to be litigated.

Extrinsic questions

of fact to

§ 631. In a case where the right to an injunction depends upon the nature of the action, the court or judge, upon an application specified in the last section, must, if necessary for the purposes of the motion, determine, as a question of fact, the truth of each allegation of the complaint, essential to granting or sustaining the injunction order.

§ 632. In any other case, the court or judge, upon an application specified in the last section but one, must assume the truth of each allegation of the complaint, which is essential to granting or sustaining the injunction, and respecting which there is conflicting evidence; although a conflict of evidence may be taken into consideration, for the purpose of fixing the amount of the security to be given by the plaintiff. § 633. Where the plaintiff's right to an injunction depends partly upon allegations extrinsic to the complaint, the truth of those allega

ART. 1.

be determined.

questions

tions must be determined, as a question of fact, by the court or judge, upon an application to vacate or modify an injunction order. § 634. The determination of a question of fact, arising as specified Proof upon in the last section, may be made upon the proof adduced on both sides; of fact. or the hearing may be adjourned for the purpose of enabling the parties to procure further evidence, either by affidavit, or by deposition taken before a referee, appointed for that purpose by the court or judge.

TITLE III.

Attachment of property.

ARTICLE 1. Cases where a warrant of attachment may be granted, and proceedings upon granting the same.

2. Executing the warrant pending the action.

3. Vacating or modifying the warrant; discharging the attachment.

4. Regulations where there are two or more warrants against the same.
defendant.

5. Proceedings after judgment; rights of parties and duties of the sheriff,
after the warrant is vacated or annulled, or the attachment discharged.

ARTICLE FIRST.

CASES WHERE A WARRANT OF ATTACHMENT MAY BE GRANTED; AND PROCEEDINGS
UPON GRANTING THE SAME.

SECTION 635. In what actions a warrant of attachment may be granted.

636. What must be shown to procure the warrant.

637. Warrant in action against public officer, etc., for peculation.
638. When and by whom the warrant may be granted.

639. Affidavits to be filed.

640. Security on obtaining warrant.

641. Contents of warrant; to whom directed.

642. Validity of undertaking.

warrant of

§ 635. A warrant of attachment against the property of one or more In what defendants in an action, may be granted upon the application of the actions a plaintiff, in a case specified in the next section, where the complaint attachment demands judgment for a sum of money only, and it appears, from the mate complaint, that the action is brought to recover damages for one or more of the following causes:

1. Breach of contract, express or implied, other than a contract to

marry.

2. Wrongful conversion of personal property.

3. Loss of, or damage or injury to, personal property, in consequence

of negligence, fraud, or other misconduct.

granted.

be shown

§ 636. In order to entitle the plaintiff to such a warrant, he must What must show, by affidavit, to the satisfaction of the judge granting the same, to procure as follows:

1. That a sufficient cause of action exists against the defendant, to recover damages for one or more of the causes specified in the last section. If the action is to recover damages for breach of a contract, the

the warrant.

TITLE 3.

action

against

public off for pecula

cer, etc.,

tion.

affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him.

2. That the defendant is either a foreign corporation or not a resident of the State; or, if he is a natural person and a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or, if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the State, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with the like intent.

Warrant in § 637. A warrant of attachment, against the property of one or more defendants in an action, may also be granted, upon the application of the plaintiff, where the complaint demands judgment for a sum of money only; and it appears, from the complaint, that the action is brought to recover money, funds, credits, or other property, held or owned by the State, or held or owned, officially or otherwise, for or in behalf of a public governmental interest, by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of; or in the obtaining, reception, payment, conversion, or disposition of which, without right, he has aided or abetted; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof. In order to entitle the plaintiff to a warrant of attachment, in a case specified in this section, he must show, by affidavit, to the satisfaction of the judge granting it, that a sufficient cause of action exists against the defendant, for a sum, stated in the affidavit.

When and by whom

the warrant may be granted.

Affidavits

to be filed.

Security on obtaining warrant.

§ 638. The warrant may be granted by a judge of the court, or by any county judge, at any time after the commencement of the action, and before final judgment therein. It may also be granted, before the service of the summons; in which case a complaint need not be presented to the judge, upon the application therefor; but, for the purpose of determining whether the warrant was properly granted, a complaint, thereafter made, must be regarded as having been made at the time of the application. In the same case, personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must have been commenced, or service thereof must have been made without the State, pursuant to an order obtained therefor, as prescribed in this act; and, if publication has been, or is thereafter commenced, the service must be made complete, by the continuance thereof.

§ 639. The plaintiff procuring the warrant must, within ten days after the granting thereof, cause the affidavits, upon which it was granted, to be filed in the office of the clerk of the county where the action is triable.

§ 640. The judge, before granting the warrant, must require a written undertaking, on the part of the plaintiff, with sufficient sureties, to the effect, that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs, which 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, which must be at least two hundred and fifty dollars. But this section does not apply to a case, where the action is brought for a cause specified in section six hundred and thirty-seven of this act, or where it is specially prescribed by law that security may be dispensed with, or where the security to be given is specially regulated by law.

ᎪᎡᎢ. 2.

to whom

§ 641. The warrant must be subscribed by the judge and the plain- Contents tiff's attorney, and must briefly recite the ground of the attachment. of warrant; It may be directed, either to the sheriff of a particular county, or, gen- directed. erally, to the sheriff of any county. It must require the sheriff to attach and safely keep, so much of the property, within his county, which the defendant has, or which he may have, at any time before final judgment in the action, as will satisfy the plaintiff's demand, with costs and expenses. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit. Warrants may be issued at the same time, to sheriffs of different counties.

under

§ 642. It is not a defence to an action upon an undertaking, given Validity of upon granting a warrant of attachment, that the warrant was granted taking. improperly, for want of jurisdiction, or for any other cause.

ARTICLE SECOND.

EXECUTING THE WARRANT, PENDING THE ACTION.

SECTION 643. Judge who granted warrant controls its execution; power of the

court thereupon.

644. Sheriff must attach property of defendant.

645. What interest in real property may be attached.

646. Attachment of unpaid subscription to foreign corporation.

647. Id.; interest in corporation.

648. Id.; negotiable securities.

649. How property to be attached.

650. Certificate of defendant's interest to be furnished.

651. Person refusing certificate may be examined.

652. Rights of owner or master of vessel on which goods have been shipped.

653. Foregoing section not to apply in certain cases.

654. Sheriff must make inventory.

655. Sheriff may maintain actions.

656. Perishable goods to be sold.

657. Claim of property; how tried.

658. Proceedings, if claimant succeeds.

659. Finding, not to prejudice right of claimant.

660. Proceedings on claim to domestic vessel.

661. Appraisers to be sworn; valuation to be returned.

662. Undertaking to be given.

663. Vessel; when to be discharged.

664. When undertaking to be sued.

665. Defence in such an action; plaintiff's recovery.

666. Foreign vessel; how valued.

667. Notice thereof.

668. Plaintiff to give undertaking with sureties.

669. Vessel; when to be discharged.

670. Terms on which debtor may claim vessel.

671, 672, 673. When vessel to be sold.

674. Sheriff to keep property.

675. Sheriff may be directed to pay money into court.

676. When he may be directed to release or deliver property.

677. Plaintiff may bring action in name of himself and the sheriff.

678. How leave to bring such an action procured.