of the property of the original defendant, if not so made, then such costs to be collected as the remainder of the

judgment.

SEC. 243. Whenever such judgment, or any portion when collected, thereof, shall be collected out of the property of such surety or sureties, the judgment against the original defendant, or so much thereof as shall be necessary, shall stand to the use and benefit of such surety or sureties until his or their claim shall have been satisfied.

TITLE XI.

Injunction.

SEC. 244. The injunction provided by this code is a command to refrain from a particular act. It may be the final judgment in an action, or may be allowed as a provisional remedy, and when so allowed, it shall be by order. The writ of injunction is abolished.

Injunction.

When plaintiff is entitled to

SEC. 245. When it appears, by the petition, that the plaintiff is entitled to the relief demanded, and such relief, relief. or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff; or when, during the litigation, it appears 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 action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. It may also be granted in any case where it is specially authorized by statute.

ed.

SEC. 246. The injunction may be granted at the time May be grantof commencing the action or at any time afterwards, before judgment by the district court or the judge thereof, or, in his absence from the county, by the probate judge, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto.

SEC. 247. If the court or judge deem it proper that the defendat or any party to the suit, should be heard before granting the injunction, it may direct a reasonable notice to be given to such party to attend for such purpose, at a specified time and place, and may, in the mean time, restrain such party.

SEC. 248. An injunction shall not be granted against a party who has answered, unless upon notice, but such party may be restrained until the decision of the application for an injunction.

SEC. 249. No injunction, unless otherwise provided by special statute, shall operate until the party obtaining the same shall give an undertaking, executed by one or more sufficient sureties, to be approved by the clerk of the court or judge granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure to the party injured the damages he may sustain, if it be finally decided that the injunction ought not to have been granted.

SEC. 250. The order of injunction shall be addressed to the party enjoined, shall state the injunction and shall be issued by the clerk. When the injunction is allowed at the commencement of the action, the clerk shall indorse upon the summons, "injunction allowed," and it shall not be necessary to issue the order of injunction, nor shall it be necessary to issue the same, where notice of the application. therefor has been given to the party enjoined. The service of the summons so indorsed, or the notice of an application. for an injunction, shall be notice of its allowance.

SEC. 251. That when the injunction is allowed during the litigation, and without notice of the application therefor, the order of injunction shall be issued, and the sheriff shall forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof without delay.

SEC. 252. An injunction binds the party from the time he has notice thereof, and the undertaking required by the applicant therefor is executed.

SEC. 253. No injunction shall be granted by a judge

after a motion therefor has been overruled on the merits of the application by his court, and where it has been refused by the court in which the action is brought, or a judge thereof, it shall not be granted to the same applicant, by a court of inferior jurisdiction or any judge thereof.

When no to junction granted

SEC. 254. An injunction granted by a judge may be Pan shment. enforced as the act of the court. Disobedience of any injunction may be punished as a contempt by the court or any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against the party guilty of the same, and he may be required, in the discretion of the court or judge, to pay a fine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged.

eurity.

SEC. 256. That a party enjoined may, at any time Additional sebefore judgment, upon reasonable notice to the party who has obtained the injunction, move the court or judge for additional security; and if it appear that the surety in the undertaking has removed from the territory or is insufficient, the court or judge may vacate the injunction, unless, in a reasonable time, sufficient security be given.

SEC. 257. On the hearing of an application for an injunction, each party may read affidavits. All affidavits shall be filed.

Affidavits.

without notice.

SEC. 258. If the injunction be granted without notice, where granted the defendant, at any time before the trial, may apply, upon notice to the court in which the action is brought, or any judge thereof, to vacate or modify the same. The application may be made upon the petition and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined with or without answer. The order of the judge, allowing, dissolving, or modifying an injunction, shall be returned to the office of the clerk of the court in which

Plainti may

оррове.

Defendant may obtain injunction

Receiver, how appointed.

the action is brought, and recorded and obeyed, as if made by the court.

SEC. 259. If application be made upon affidavits, on the part of the defendant, but not otherwise, the plaintiff may oppose the same, by affidavits, or other evidence, in addition to that on which the injunction was granted.

He shall

SEC. 260. A defendant may obtain an injunction upon an answer in the nature of a counter claim. proceed in the manner prescribed in this title.

Receivers and other Provisional Remedies.

SEC. 261. A receiver may be appointed by the supreme court, the district court, cr any judge of either, or in the absence of said judges from the county, by the probate judge:

First, In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party, whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.

Second, In an action by a mortgagee for the foreclosure of his mortgage, and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has been performed, and the property is probably insufficient to discharge the mortgage debt.

Third, After judgment, to carry the judgment into effect.

Fourth, After judgment, to dispose of the property according to judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply the property in satisfaction of the judgment.

Fifth, In the cases provided in this code, and by special statutes, when a corporation has been dissolved, or is

insolvent, or in imminent danger of insolvency, or has

forfeited its corporate rights.

Sixth, In all other cases, where receivers have heretofore been appointed by the usages of the courts of equity.

ceiver shall be

SEC. 262. No receiver shall be appointed except in a Where no resuit actually commenced and pending, and after notice to all appointed, be. parties to be effected thereby, of the time and place of the application, the names of the proposed receiver, and of his proposed sureties, and of the proposed sureties of the applicant. Such notice shall state upon what papers the application is based, and be served upon the adverse party or solicitor, at least five days before the proposed hearing, and one additional day for every thirty miles of travel from the place where the application is to be made by the usually traveled route, or shall be published in the same manner as notices of the pendency of suits to non-resident defendants.

possession.

SEC. 263. Should the delay occasioned by giving the temporary notice, provided for in the last preceding section, be hazardous to the rights of any party, the court or judge may, by order, direct the sheriff of the county in which such action is pending, to take temporary possession of the property, and shall appoint an early day for the hearing of the application, and if, at such hearing, the application is refused, restitution shall be made of the property [to the person] from whom the same was taken.

of applicant.

SEC. 264. Every order appointing a receiver shall what required require the applicant to give a bond conditioned to pay all damages which the other parties to the suit, or any of them may sustain, by reason of the appointment of the receiver in case it shall be finally directed that the order ought not to have been granted, and shall also require the receiver to give a bond conditioned to faithfully discharge his duties as receiver, and obey all orders of the court. The said bonds shall each run to the defendant and all adverse parties in interest, and be for the use of any party to the suit, and be in a penal sum equal to double the value of the property in question, and be executed by two or more sureties, to be approved by the court or judge making the appointment,