Sheriff. be had on the official bond of the Sheriff or Constable to collect the deficiency, as in other cases of delinquency. Bail liable to SEC. 226. The bail taken upon the arrest shall, unless they justify, or other bail be given or justified, be liable to the Sheriff or Constable by action for damages which he may sustain by reason of such omission. Vacating order of arrest or SEC. 227. A defendant arrested may, at any time before judgreducing bail, ment, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail. motion. Affidavits on SEC. 228. If the motion 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. CHAPTER II. CLAIM AND DELIVERY OF PERSONAL PROPERTY. personal pro perty. SEC. 229. Claim and delivery of personal property. 230. Affidavit and its requisites. 231. Requisition to Sheriff to take and deliver the property. 232. Security by plaintiff. 233. Exception to sureties. 234. Defendant, when entitled to re-delivery. 235. Justification of defendant's sureties. 236. Qualification and justification of sureties. 237. Property, how taken when concealed in building or inclosure. 238. Property, how kept. 239. Claim of property by third person. 240. Notice and affidavit, when and where to be filed. Delivery of SEC. 229. The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the immediate delivery of such property, as provided in this chapter. 10-497. Affidavit-its SEC. 230. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing: 1. That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth; 2. That the property is wrongfully detained by the defendant; 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief; 4. That the same has not been taken for a tax, assessment or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff; or, if so seized, that it is, by statute, exempt from such seizure; and 5. The actual value of the property. requisites Sheriff to take SEC. 231. The plaintiff may, thereupon, by an indorsement in Requisition to writing upon the affidavit, require the Sheriff of the County where and deliver the the property claimed may be, to take the same from the defendant and deliver it to the plaintiff. property. Security by plaintiff. Joplin. (Mss.) SEC. 232. Upon the receipt of the affidavit and notice, with a written undertaking executed by one or more sufficient sureties, approved by the Sheriff, to the effect that they are bound in double the value of the property, as stated in the affidavit for the Thompson v. prosecution of the action, 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, for 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. 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 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. In case the plaintiff does not execute the required undertaking, the party 15 Stat., 498. having possession of the property shall retain the same until the determination of the suit. sureties. SEC. 233. The defendant may, within three days after the Exception to 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 fail to do so, he shall be deemed to have waived all objection to Defendant, when entitled Thompson v. Joplin. 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 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. SEC. 234. At any time before the delivery of the property to the to re-delivery. 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, (Ms.) 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 three days after the taking and service of notice to the defendant, it shall be delivered to the plaintiffs, except as provided in Section two hundred and thirty-nine. Justification of defendant's sureties. Qualifications and justification of sureties. Property how to be taken in a building or inclosure. SEC. 235. The defendant's sureties, upon a notice to the plaintiff of not less than two nor more than six days, shall justify before a Judge, Clerk of the Court or Trial Justice, in the same manner as upon bail on 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. SEC. 236. The qualifications of sureties and their justification shall be as are prescribed by Sections two hundred and seventeen and two hundred and eighteen, in respect to bail upon an order of arrest. SEC. 237. If the property, or any part thereof, be concealed in a when concealed building or inclosure, the Sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the building or inclosure 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. Propertyhow kept. SEC. 238. 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. perty by third SEC. 239. If the property taken be claimed by any other person Claim of prothan the defendant or his agent, and such person shall make affi- party. 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, accompanied 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, he may retain the property a reasonable time to demand such indemnity. SEC. 240. The Sheriff shall file the notice 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. Notice and affidavit, when and where to be filed. CHAPTER III. INJUNCTION. SEC. 241. Writ of injunction abolished, and order substituted. 242. Temporary injunction, in what cases granted. 243. At what time it may be granted. Copy affidavit to be served. 244. Injunction after answer. 245. Security upon injunction. Damages, how ascertained. granted. 247. Security upon injunction to suspend business of cor. 248. Motion to vacate or modify injunction. 249. Affidavits on motion. Injunction by SEC. 241. An order of injunction may be made by the Circuit order. Injunction, in what cases. at time Injunction, what granted. Court in which the action is brought, or by a Judge thereof, and in the absence from the Circuit, or inability, from any cause, of a Judge thereof, by a Judge of any other Circuit, or a Justice of the Supreme Court. SEC. 242. [1] Where 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 some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or, [2] when, 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. [3] And where, during the pendency of an action, it shall appear by affidavit 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. SEC. 243. The injunction may be granted at the time of commencing the action, or at any time afterwards, before judgment, upon its appearing satisfactorily to the Court or Judge, by the affidavit of the plaintiff, or of any other person, that sufficient Copy affidavits grounds exist therefor. A copy of the affidavit must be served with the injunction. to be served. Injunction after answer. Security upon injunction. Damages. SEC. 244. An injunction shall not be allowed after the defend. ant shall have 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. 245. When no provision is made by statute as to security upon an injunction, the Court or Judge shall require a written undertaking 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 that the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise, as the Court shall direct. |