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Defendant

SEC. 163. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the 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, as stated in the affidavit of the plaintiff, for may have 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 five days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section 126.

property returned.

Sureties of defendant to justify.

SEC. 164. The defendant's sureties, upon notice to the plaintiff of not less than two nor more than five days, shall justify before a judge or clerk, in the same manner as upon bail on arrest; and 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 the 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.

SEC. 165. The qualification of sureties and their jusQualification tification shall be such as are prescribed by this act in respect to bail upon an order of arrest.

of sureties.

SEC. 166. If the property, or any part thereof, be concealed in a building or inclosure, the sheriff shall publicly demand its delivery; if it be not delivered, he Duty of her shall cause the building or inclosure to be broken open,

iff if property

concealed.

How sheriff

to keep property.

and take the property into his possession; and if necessary, he may call to his aid the power of his county.

SEC. 167. When the sheriff shall have taken property, as in this 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 his necessary expenses for keeping, the same.

Claim of

third person.

SEC. 168. If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds 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 by two sufficient sureties, accompanied by property 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 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. 169. 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 III.-Injunction.

SEC. 170. An injunction is a writ or order requiring a person to refrain from a particular act. The order or

Notice and

affidavit to be

filed.

defined.

writ may be granted by the court in which the action is Injunction brought, or by a judge thereof, and when made by a

judge may be enforced as the order of the court.

SEC. 171. An injunction may be granted in the following cases:

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.

cases in which an in

be granted.

granted.

To be

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.

SEC. 172. The injunction may be granted at the time When may be of issuing the summons upon the complaint, and at any time afterwards, before judgment, upon affidavits. The complaint in the one case, and the affidavits 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 plainverified. tiff, 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, a copy of the affidavit shall be served with the injunction.

Granted on complaint, copies served.

When allowed after answer.

Undertaking

SEC. 173. An injunction shall not be allowed after the defendant has answered, unless upon notice, or upon an order to show cause; but in such case the defendant may be restrained until the decision of the court or judge, granting or refusing the injunction.

SEC. 174. On granting an injunction, the court or judge must require, except the people of the territory are a party plaintiff, a written undertaking on the part of the plaintiff, with sufficient sureties, to the effect that required on the plaintiff will pay to the party enjoined such damjunction. ages, 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.

granting in

Within five days after the filing of the undertaking

except

required, the defendant may except to the sufficiency of Defendant If he fails to do so, he is deemed to have

the sureties.
waived all objections to them.

When excepted to, the plaintiff's sureties, upon notice to the defendant of not less than two nor more than five

days, must justify before a judge or county clerk, in the same manner as upon bail on arrest, and upon failure to justify, or if others in their place fail to justify at the time and place appointed, the order granting an injunction shall be dissolved.

SEC. 175. If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown at a specified time and place, why the injunction should not be granted, and the defendant may, in the meantime, be restrained.

SEC. 176. An injunction to suspend the general and ordinary business of a corporation shall not be granted except by the court or a judge thereof; nor shall it be granted without due notice of the application therefor to the proper officers or managing agent of the corporation, except when the people of this territory are a party to the proceedings.

SEC. 177. 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 brought, to dissolve or modify the same. The application may be made upon the complaint and the affidavit on which the injunction was granted, or upon affidavit on part of defendant, with or without the answer. If the application be made upon affidavits on part of defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the injunction was granted.

SEC. 178. If, upon such application, it satisfactorily appear that there is not sufficient ground for the injunction, it shall be dissolved; or, if it satisfactorily appear that the extent of the injunction is too great, it shall be modified.

may

to undertak

ing.

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Attach ment

CHAPTER IV.-Attachments.

SEC. 179. The plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant not exempt from execution attached, as security for the satisfaction of any judgment that may be recovered in said action, unless the defendant give good and sufficient security to secure the payment of said judgment: Provided, That no writ of attachment shall be issued until the plaintiff, his agent or when is attorney, shall file with the clerk an affidavit showing that the defendant is indebted to the plaintiff, upon a contract, express or implied, for the payment of money, gold dust, or other property, then due, which is not „secured by a mortgage lien, or pledge upon real or personal property, or is so secured that the security has become insufficient by the act of the defendant, or by any means has become nugatory.

sued.

Undertaking.

Sureties

thereon.

SEC. 180. Before issuing the writ the clerk shall require a written undertaking on the part of the plaintiff, with two or more sufficient sureties, to be approved by the clerk, in a sum not less than double the amount claimed by the plaintiff, to the effect that if the defendant recover judgment, or if the court shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages he may sustain by reason of the wrongful suing out of the attachment, not exceeding the sum specified in the undertaking. Said sureties may be required to justify before the clerk of the court to the effect that each, for himself, is worth the amount specified in the undertaking, over and above his debts and liabilities, and property by law exempt from execution the under in the territory of Montana: Provided, That when the amount claimed by the plaintiff shall be one thousand dollars, or any sum under one thousand dollars, the said undertaking shall be in a sum not less than double the amount claimed: Provided, also, When the amount claimed in the affidavit of the plaintiff equals or exceeds

Amount of

taking.

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