« ΠροηγούμενηΣυνέχεια »
on failure to
cution of the action, for the return of the property to the defen-
•sareties, and of a copy of the affidavit and undertaking, give notice to the sheriff
proceedings that he excepts to the sufficiency of the sureties. If he fail to do thereon, or so, he shall be deemed to have waived all objection to them. except 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.
$ 211. 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 when entithe plaintiff require the return thereof, upon giving to the sheriff delivery. 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 ihree days after the taking and service of notice to the defendant, it shall be delivered to theplaintiff
, except as provided in section two hundred and sixteen.
Justification $ 212. The defendant's sureties, upon a notice to the plaintiff of defend.
ant's sureties 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 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.
213. The qualifications of sureties and their justification shall be Qualificaas are prescribed by sections one hundred and ninety-four and one justification hundred and ninety-five, in respect to bail upon an order of arrest, of sure ties.
§ 214. If the property, or any part thereof be concealed in a property, building or enclosure, the sheriff shall publicly demand its delivery. When con If it be not delivered, he shall cause the building or enclosure to be cealed in broken open, and take the property into his possession; and if ne- enclosure. cessary, he may call to his aid the power of his county.
$ 215. When the sheriff shall have taken property, as in this how kept. 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 hfs necessary expenses for keeping the same. Claim of
$ 216. If the property taken be claimed by any other person property by third person. than the defendant or his agent, and such person shall make affi
davit 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 sufficient sureties accompaned 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, be may retain the property a rea
sonable time to demand such indemnity. Notice and $ 217. The sheriff shall file the notice and affidavit with his when and proceedings thereon, with the clerk of the court in which the where to be action is pending within twenty days after taking the property
219. Injunction, in what cases granted.
Security upon injunction. Damages, how ascertained.
226. Affidavits, on motion.
$ 218. The writ of injunction as a provisional remedy is abolWrit of injunction ished; and an injunction, by order, is substituted therefor. The abolished. order may be made by the court in which the action is brought, substituted. 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. Injunction, $ 219. Where it shall appear by the complaint, that the plainin what ca tiff is entitled to the relief demanded, and such relief, or any part ses granted.
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 wben 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 atsidavit, 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.
§ 220. The injunction may be granted at the time of commen- At what cing the action, or at any time afterwards, before judgment, upon be granted! its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction.
$ 221. An injunction shall not be allowed, after the defendant Notice, shall have answered, unless upon notice, or upon an order to show when requircause; but in such case the defendant may be restrained, until rary injuncthe decision of the court or judge, granting or refusing the in- tion. junction.
$ 222. Where no provision is made by statute, as to security Security, upupon an injunction, the court or judge shall require a written un-on injuncdertaking, on the part of the plaintiff
, with or without sureties, to the effect that the plaintiff will pay to the party enjoined, such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide
Damages, that the plaintiff was not entitled thereto. The damages may be how ascerascertained by a reference, or otherwise, as the court shall direct. tained.
$ 223. If the court or judge deem it proper that the defend-Order to ant, or any of several defendants, should be heard before granting
why injuncthe injunction, an order may be made requiring cause to be tion should
not be grant. shown, at a specified time and place, why the injunction should not be granted; and the defendant may in the mean time be restrained.
§ 224. An injunction to suspend the general and ordinary bu- Security, siness of a corporation, shall not be granted, except by the court upon injuncor a judge thereof. Nor shall it be granted, without due notice pend busiof the application therefor, to the proper officers of the corpora- poration. tion, except where the people of this state are a party to the proceeding, and except in proceedings to enforce the liability of stockholders in corporations and associations for banking purposes, after the first day of January, one thousand eight hundred and fifty, as such proceedings are or shall be provided by law, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain, by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise, as the court shall direct.
225. If the injunction be granted by a judge of the court, or by a county judge, without notice, the defendant, at any time be-vacate or fore the trial, may apply, upon notice, to a judge of the court in junction.
which the action is brought, to vacate or modify the same. The
the defendant, with or without the answer.
of the defendant, but not otherwise, the plaintiff may oppose the
sconding or concealed defendants may be attached.
ecuted by plaintiff in the action in which the attachment is
ceeds, to defendant, on his appearance in action.
243. Sheriff's fees.
perty of such defendant attached, in the manner hereinafter pre-
plaintiff may recover.
$ 229. The warrant may be issued whenever it shall appear may be ist by affidavit, that a cause of action exists against such defendant, sued. specifying the amount of the claim, and the grounds thereof, and
that the defendant is either a foreign corporation, or not a resi-
In what cases warrant
$ 230. Before issuing the warrant, the judge shall require a Security on written undertaking on the part of the plaintiff, with sufficient surety, to the effect, that if the defendant recover judgment, the plaintiff will pay 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, which shall at least two hundred and fifty dollars.
$ 231. The warrant shall be directed to the sheriff of any warrant to county in which property of such defendant may be, and shall re-ed, and what quire him to attach and safely keep all the property of such de- to require, fendant within his county. Several warrants may be issued at the same time to the sheriffs of different counties.
$ 232. The sheriff to whom such warrant of attachment is di- Mode of prorected and delivered, shall proceed thereon in all respects, in the ceeding in manner required of him by law in case of attachments against warrant. absent debtors, shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action, and shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits and effects of the defendant. The sheriff may always take such legal proceedings, either in his own name or in the name of such defendant, as may be necessary for that purpose, and discontinue the same at such times and on such terms as the court or judge $ 233. If any property so seized shall be perishable, or if any
Proceedings part of it be claimed by any other person than such defendant, or
perishable if any part of it consist of a vessel, or of any share or interest property or
vessels. therein, the same proceedings shall be had in all respects as are provided by law upon attachments against absent debtors.
§ 234. The rights or shares which such defendant may have in Interest in the stock of any association, or corporation, together with the incorporations terest, and profits thereon, and all other property in this state of tions liable such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution.
$ 235. The execution of the attachment upon any such rights, Attachment shares, or any debts or other property incapable of manual de- how execu livery to the sheriff
, shall be made by leaving a certified copy of the warrant of attachment with the president or other head of pable of mathe association or corporation, or the secretary, cashier, or mana-ry. ging agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on.
$ 236. Whenever the sheriff shall, with a warrant of attach- Certificate of ment, or execution against the defendant, apply to such officer, interest to be debtor or individual, for the purpose of attaching, or levying upon furnished by such property, such officer, debtor, or individual, shall furnish him
corporations. with a certificate under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any incumbrance thereon, or the amount and description of the property held by such association,
in case of
ted on pro