clerk, the money deposited shall be refunded by such clerk to the defendant.

SEC. 140. Where money shall have been deposited, if it remain on deposit at the time of recovery of a judgment in favor of the plaintiff, the clerk shall, under the direction of the court, apply the 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 the direction of the court, refund him the whole sum deposited and remaining unapplied.

Money deposited, how disposed of.

Liability of

SEC. 141. If, after being arrested, the defendant escape or be rescued, the sheriff shall himself be liable as bail, but he may discharge himself from such liability sheriff as by the giving and justification of bail at any time before judgment.

SEC. 142. 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 proceeding may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency.

bail.

Proceeding

against sher section.

iff under last

cate order or reduce bail.

SEC. 143. A defendant arrested may, at any time before 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 Motion to vaof arrest or to reduce the amount of bail. If the plication 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.

ap

When order

SEC. 144. 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 ap- vacated or pear that the bail was fixed too high, the amount shall be reduced.

bail reduced.

SEC. 145. Every person confined in jail on an exePerson in jail cution issued on a judgment rendered in a civil action, shall be discharged therefrom upon the conditions hereinafter specified.

how dis

charged.

SEC. 146. Such person shall cause notice in writing to be given to the plaintiff, his agent or attorney, that at a certain time and place he will apply to the district or for discharge. probate judge of the county in which such person may be confined, for the purpose of obtaining a discharge from his imprisonment.

Application

SEC. 147. Such notice shall be served upon the plaintiff, his agent or attorney, one day at least before the hearing of the application. If the plaintiff be not a restice of appli- ident of the county, and have no agent or attorney in the county, no such notice need be served.

Service of no

cation.

Examination

SEC. 148. At the time and place specified in the notice, such person shall be taken before such judge, who shall examine him under oath, concerning his estate and property and effects, and the disposal thereof, and his for discharge. ability to pay the judgment for which he is committed; and such judge shall also hear any other legal and pertinent evidence that may be produced by the debtor or creditor. SEC. 149. If, upon examination, the judge be satisfied that the prisoner is entitled to his discharge, such judge shall administer to him the following oath: "I, do solemnly swear (or affirm) that I have Oath admin- not any estate, real or personal, to the amount of fifty discharge. dollars, except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to defraud my creditors."

istered upon

Order for discharge.

SEC. 150. After administering the oath, the judge shall issue an order that the prisoner be discharged from custody, if he be imprisoned for no other cause; and the officer upon receiving service of such order, shall discharge the prisoner forthwith, if he be imprisoned for no other cause.

SEC. 151. If such judge should not discharge the prisoner, he may apply for his discharge at the end of every succeeding ten days, in the same manner as above provided, and the same proceedings shall thereupon be had.

Times in

which prison

er can apply

for discharge

Effect
charge.

SEC. 152. The prisoner, after being so discharged, shall be forever exempt from arrest and imprisonment for the same debt, but the judgment against him shall her of disremain in full force against any estate, present or future, of the prisoner, not exempt from execution.

SEC. 153. The plaintiff in the action may, at any time, order the prisoner to be discharged, and he shall Plaintiff may not thereafter be liable to imprisonment for the same cause of action.

CHAPTER II.-Claim and Delivery of Personal

Property.

SEC. 154. The plaintiff, in an action to recover possession of personal property, may, at the time of issuing summons, or at any time before answer, claim the delivery

of such property to him as provided in this chapter. SEC. 155. When 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 the statute exempt from such seizure; and,

Fifth. The actual value of the property.

order prisoner discharged.

Claim of the personal

delivery of

property.

The affidavit and its requisites.

Sheriff may be

SEC. 156. The plaintiff or his attorney may thererequired upon, by an endorsement in writing upon the affidavit, sion of prop require the sheriff of the county where the property claimed may be to take the same from the defendant.

erty.

to take prop

SEC. 157. Upon 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, as stated in the affidavit for the proseWhen sheriff cution of the action, without delay and with effect and for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, 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.

erty.

Further duty of sheriff.

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 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. 158. 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 objections to them. When the deException by fendant 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.

defendant to sureties.

case of judgment for return of personal prop

SEC. 159. In all cases when a judgment shall be rendered in an action to recover the possession of personal In property for the return thereof, or its value in case a return cannot be had, it shall be the duty of the party against whom such judgment shall be rendered to return the same in as good condition as the same was when session thereof was taken by him.

pos

SEC. 160. In case such property shall, while in the possession of the party against whom such judgment shall be rendered, or while the same shall be unlawfully detained from the party entitled to the possession thereof, be materially injured or lessened in value by use or otherwise, then a return or offer to return the same shall not be deemed a compliance with the undertaking given for its return, but an action may be maintained for the value thereof as assessed by the jury or court, and damages for its detention.

SEC. 161. In case such action to recover possession of personal property shall be brought against any sheriff or other officer who may have levied upon and seized the same under authority of any attachment or other process, and judgment shall be rendered in favor of such officer for the return of the property, the party against whom such judgment shall be rendered may nevertheless make return of said property, notwithstanding the same may have been injured or lessened in value, and thereupon it shall be the duty of such officer to immediately adver-tise the same for sale as in cases of sales of personal property under execution, and apply the proceeds of the sale thereof, after paying the costs, towards the payment and satisfaction of any judgment that may have been rendered.

be

erty, same to in condition

returned

as when taken.

taking not discharged under the preceding

SEC. 162. Such second taking of such property referred to in the preceding section shall not release or discharge the sureties on any undertaking given for the The under return of such property, but an action may be maintained on such undertaking and recovery thereon had, section. unless the property shall have been actually returned in accordance with the judgment rendered.