Page images

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.

See section 650.

1. Where a replevin bond substantially conforms to the act, and no variation is pointed out, the assignees of the defendants can maintain an action upon it. Wingate v. Brooks, 3 Cal. 112.

2. In an action on the bond, the fact that defendant brought his action before an incompetent tribunal is no defense, and the plea that the title of property so replevied is in him, is bad. McDermott v. Isbell, 4 ib. 113.

3. Where the defendant in a replevin suit failed to claim the return of the property in his answer, and on the trial, the jury found a verdict for the defendant, on which the court rendered judgment against plaintiff for costs, which was paid : held, that the payment of the judgment, as taken, was a complete discharge of plaintiff's sureties on the undertaking. Chambers v. Waters, 7 ib. 390.

4. This bond is liable for a return of the property, or for damages on a failure to return in whole or in part. Ginaca v. Atwood, 8 ib. 446.

5. T. commenced suit against J. by attachment; the writ was levied upon certain personal property by the plaintiff H., as sheriff. M. J., wife of J., claimeil the property as a sole trader, and brought her action of replevin for the property, and obtained possession of the same by the delivery of an, undertaking, as required by section 102 of the code. The undertaking was executed by defendants R. and S. The replevin suit was decided February 5th, 1855, in favor of H. T. obtained judgment in the attachment suit against J., November 30th, 1854. On the eighteenth of February, 1855, executions in favor of other creditors of J. coming into the hands of H. as sheriff, he levied them on the same property, and subsequently sold the property and paid the proceeds into court. H. then brought this suit against the sureties in the replevin bond: held, that the lien of T.'s attachment continued after the replevy of the goods by M. J. Hunt v. Robinson, 11 ib. 262.

6. When the same property came into the hands of H. as sheriff, the condition of the replevin bond, to return the property, was fulfilled. The primary object of the replevin suit is, the recovery of the thing itself. The value is received only in the alternative, that the property is not returned. The possession obtained by the plaintiff in replevin is only temporary. It does not divest the title or discharge the lien. In an action on a replevin bond, the defendant's liability is limited to the damage sustained by a failure to return the property. Ib.

7. A bond may be filed nunc pro tunc when the one giren in the first instance is defective. Neuland v. Willits, 1 Barb. 20; Manly v. Patterson, 3 Code R. 89.

8. Where the defendant appears, he waives the irregularity of the issuing the writ without a clerk's name to it. Legate v. Lagrille, 1 How. Pr. 13.

9. The sheriff must endorse his approval on the undertaking. Burns v. Robbins, 1 Code R. 62. 10. An assignee of the defendant in whose favor judgment is rendered, may

maintain an action upon the undertaking of plaintiff. Bowdoin v. Coleman, 3 Abbott, 431. 11. If the defendant give the undertaking required in section 104, and claims a return of the property, the plaintiff, if a non-resident, will be required to give security for costs, and it is questionable whether an action would lie on this bond after a return of the property. Gelch v. Barbaby, 7 Abbott, 19.

103. 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 surcties. If he fails to do so, he shall be deemed to have waived all objection to them. 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 justify. If the defendant except to the sureties, he cannot reclaim the property as provided in the next section.

1. When the defendant, in an action to recover personal property, excepts to the sureties in the plaintiffs undertaking, if one fails to justify, and for that reason a new surety is substituted, a new undertaking must be executed. Cobb v. Lackey, 6 Duer, 648.


104. 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 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 one hundred and nine.

1. This bond is assignable by the sheriff. Wingate v. Brooks, 3 Cal. 112.

2. In an action on this bond it must be alleged that the defendant neither re-delivered the property, nor paid the value thereof, as recited in the judgment. Nickerson v. Chatterton, 7 ib. 568; Chambers v. Waters, ib. 390.

3. Where the defendant has required the return of the property, and given an un. dertaking, for such purpose ; a judgment for plaintiff, in order to hold the sureties on the undertaking must be in the alternative, as required by sections 104, 177, and 210. Nickerson v. Chatterton, 7 ib. 568.

4. The liability of the sureties cannot be more than the value of the property, fixed by the judgment in the original suit. Ib.

5. In an action on this undertaking, it is not necessary to aver the issuing of an execution against the property of the defendant, and its return unsatisfied. The sureties are bound absolutely for the payment of the judgment, and must see to it that such payment is made. Slack v. Heath, 4 E. D. Smith, 837.

105. 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 county 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.

106. The qualification of sureties and their justification shall be such as are prescribed by this act, in respect to bail upon an order of arrest.

107. If the property, or any part thereof, be concealed in a building or enclosure, the sheriff shall publicly demand its delivery; if it be not delivered, he shall cause the building or enclosure to be broken open, and take the property into his possession; and if necessary, he may call to his aid the power of his county.

108. 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.

1. The officer is estopped by his return from denying that he had the goods in his possession. Kuhlman v. Orser, 5 Duer, 242.

2. If the defendant has not excepted to the sufficiency of the suretics, and requires a return of the property, he must claim it within five days, or his right to a return is gone. M'Cann v. Thompson, 13 How. Pr. 381.

109. 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 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.

See section 650.

1. This is the only way in which the third party can assert his claim. Egerton v. Ross, 6 Abbott, 189.

110. [1854.*] 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.



111. An injunction is a writ or order, requiring a person to refrain

a from a particular act. The order or writ may be granted by the court in which the action is brought, or by a judge thereof, or by a county judge ; and when made by a judge may be enforced as the order of the court.

1. Abuse in injunction should be guarded against. De Witt v. Hays, 2 Cal. 463.

2. The writ of injunction can only be issued where the case is one of equity jurisdiction. Minturn v. Hays, 2 Cal. 590 ; Coker v. Simpson, 7 ib. 340.

3. An injunction operates to restrain not only the party enjoined but other courts on the ground of judicial comity. Engels v. Lubeck, 4 ib. 31.

4. An injunction is a mere remedial process, and where the party obtaining it has also obtained a judgment upon his cause, the court will not revise the propriety of granting the writ. Hicks v. Davis, 4 ib. 67.

5. An order of injunction whereby the bringing of an action is restrained, will be reversed, notwithstanding an injunction bond has been given. King v. Hall, 5 ib. 82.

* Statutes of 1854, 84.

6. There is no prohibition to this grant of authority in the county judge, by the constitution, and the implication is decidedly otherwise. Thompson v. Williams, 6 Cal. 88; Crandell v. Woods, ib. 449; Chard v. Stone, 7 ib. 117; Ruthrauff v. Kresz, Cal. July T. 1859.

7. An appeal does not lie from an order refusing to grant an injunction. Richards v. McMillan, 6 ib. 422. (See amendment to section 336.)

8. An injunction will not lie to restrain the collection of a judgment against plaintiff, because the judgment was for purchase money of land under covenant of title, while in fact the grantor had no title, as long as the purchaser remains in possession. Jackson v. Norton, 6 ib. 187.

9. A preliminary injunction cannot be sustained, where the equities of the complaint are denied by the answer. Crandell v. Woods, 6 ib. 449; Blatchford v. New York and New Haven R. R. Co., 5 Abbott, 276.

10. An appeal does not lie from an order refusing to dissolve an injunction. Martin v. Travers, 7 Cal. 253. (See amendment to section 336.)

11. An appeal will not authorize per se a stay of injunction. Merced Mining Co. v. Fremont, ib, 130.

12. A writ of injunction will lie, to restrain trespass, in entering upon a mining claim, and removing auriferous quartz from it, where the injury threatens to be continuous and irreparable. It comports more with justice to both parties to restrain the trespass, than to leave the plaintiff to his remedy at law. Moreover, it would be impossible to estimate, with any approach to accuracy, the damage done; and hence, the greater necessity of preventing what cannot be adequately compensated. The removal of gold from a mine is emphatically taking away the entire substance of the estate, and comes within that class of trespass in which injunctions are now universally granted. Merced Mining Co. v. Fremont, 7 ib. 317.

13. Where the complaint alleged that the defendants had dug a mining ditch, above one previously constructed by defendants, and had thereby diverted the water of the stream from plaintiff's ditch, but did not aver that the injury was continuing, or threatened to be continued, or likely to be continued : held, that it was sufficient for the recovery of damages, but not to sustain an injunction. Coker v. Simpson, 7 ib. 340.

14. Where a party can obtain ample relief in the court whose proceedings he wishes to restrain, there is no reason for seeking an injunction in another tribunal, possessing only the same power. Anthony v. Dunlap, 8 Cal. 26; Rickett v. Johnson, 8 ib. 34 ; Revalk v. Kraemer, ib. 66; Chipman v. Hibbard, ib. 268; Phelan v. Smith, ib. 520; Gorham v. Toomy, 9 ib. 77; Uhlfelder v. Levy, ib. 607; Grant v. Quick, 5 Sand. 612; Bennett v. Leroy, 6 Duer, 683; 6 Abbott, 55.

15. Where several alleged fraudulent judgments are confessed in several courts, this rule does not apply, and it would not be necessary for a creditor to bring a different suit in each different court. Uhlfelder v. Levy, 9 Cal. 697.

16. A complaint must show that the suit cannot be brought in the county where the judgment is, to enable another court to enjoin the proceedings. Ib.

17. No particular form is necessary for a writ of injunction; the substantial thing is an authentic notification to the defendants of the mandate of the judge which they must then at their peril obey. Summers v. Farish, 10 Cal. 347.

[ocr errors]


[ocr errors]
« PreviousContinue »