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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.

property.

SEC. 108. When the sheriff shall have taken property, as in this Sheriff to keep 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.

where property

SEC. 109. If the property taken be claimed by any other person Proceedings than the defendant or his agent, and such person make affidavit of claimed by his title thereto, or right to possession thereof, stating the grounds of third party. 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.

affidavit

SEC. 110. The sheriff shall file the order and affidavit, with his Order and proceedings thereon, with the clerk of the court in which the action to be filed. is pending, within twenty days after taking the property mentioned therein; or if the clerk reside in another county, shall mail or forward the same within that time.

CHAPTER III.

INJUNCTION.

defined.

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

SEC. 112. An injunction may be granted in the following cases: 1st. 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 :

2d. 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 :

In what cases it, may be granted.

When it may be granted.

Injunction after answer.

Undertaking

before injunction issued.

Order nisi for injunction.

Injunction to suspend business of corporation.

Motion to dis

solve or modify injunction.

3d. 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. 113. The injunction may be granted at the time 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 plaintiff, 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.

SEC. 114. 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. 115. On granting an injunction, the court or judge shall require, except where the people of the state are a party plaintiff, a written undertaking, on the part of the plaintiff, with sufficient sureties, to the effect that the plaintiff will pay to the party enjoined such damages, 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.

SEC. 116. 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 mean time, be restrained.

SEC. 117. An injunction to suspend the general and ordinary business of a corporation, shall not be granted except by the court; nor shall it be granted without due notice of the application therefor to the proper officers of the corporation, except when the people of this state are a party to the proceeding.

SEC. 118. 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 the part of the defendant, with or without the answer. If the 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

those on which the injunction was granted.

will be dissolved

SEC. 119. If upon such application it satisfactorily appear that when injunction there is not sufficient ground for the injunction, it shall be dissolved; or modified. or if it satisfactorily appear that the extent of the injunction is too great, it shall be modified.

CHAPTER IV.

ATTACHMENT.

may issue in

SECTION 120. The plaintiff at the time of issuing the summons or Attachments at any time afterwards may have the property of the defendant at- certain cases. tached, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided in the following cases:

1st. In an action upon a contract express or implied, for the direct payment of money, which contract is made or is payable in this state, and is not secured by a mortgage upon real or personal property.

2d. In an action upon a contract, express or implied against a defendant not residing in this state. (1)

contents thereof

SEC. 121. The clerk of the court shall issue the writ of attach- Affidavit and ment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, showing

1st. That the defendant is indebted to the plaintiff, (specifying the amount of such indebtedness, over and above all legal set-offs or counter claims,) upon a contract express or implied, for the direct payment of money, and that such contract was made or is payable in this state, and that the payment of the same has not been secured by any mortgage on real or personal property; or,

2d. That the defendant is indebted to the plaintiff, (specifying the amount of such indebtedness as near as may be, over and above all legal set-offs or counter claims,) and that the defendant is a non-resident of the state. (2)

(1) (2) Amendments inserted from Stat. 1853. pp. 276-7.

Plaintiff to give undertaking.

Requirement of writ, etc.

Several may issue.

Stock, etc., may be attached.

How executed.

SEC. 122. Before issuing the writ the clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, not exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking.

SEC. 123. The writ shall be directed to the sheriff of any county in which property of such defendant may be, and require him to attach and safely keep all the property of such defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which shall be stated in conformity with the complaint, unless the defendant give him security by the undertaking, of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs; in which case, to take such undertaking. Several writs may be issued at the same time, to the sheriffs of different counties.

SEC. 124. The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profits thereon, and all debts due such defendant, and all other property in this state of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution.

SEC. 125. The sheriff to whom the writ is directed and delivered, shall execute the same without delay, and if the undertaking mentioned in section 123 be not given, as follows:

1st. Real property shall be attached by leaving a copy of the writ with the occupant thereof; or if there be no occupant, by posting a copy in a conspicuous place thereon, and filing a copy, together with a description of the property attached, with the recorder of the county:

2d. Personal property capable of manual delivery, shall be attached by taking it into custody:

3d. Stock or shares, or interest in stock or shares, of any corporation or company, shall be attached, by leaving with the president, or other head of the same, or the secretary, cashier, or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached in pursuance of such writ:

4th. Debts and credits, and other personal property, not capable of manual delivery, shall be attached by leaving with the person owing such debts, or having in his possession, or under his control such credits, or other personal property, a copy of the writ, and a

notice that the debts owing by him to the defendant, or the credits and other personal property in his possession, or under his control, belonging to the defendant, are attached in pursuance of such writ.

hands of

SEC. 126. Upon receiving information in writing from the plain- Property in tiff, or his attorney, that any person has in his possession, or under third party. his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the sheriff shall serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pursuance of such writ.

third party to

SEC. 127. All persons having in their possession, or under their Liability of control, any credits or other personal property, belonging to the de- plaintiff. fendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as provided in the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff, for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied.

be examined as

SEC. 128. Any person owing debts to the defendant, or having in Third party may his possession, or under his control, any credits or other personal pro- to property. perty belonging to the defendant, may be required to attend before the court or judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court or judge may, after such examination, order personal property capable of manual delivery, to be delivered to the sheriff on such terms as may be just, having reference to any liens thereon, or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof.

made.

SEC. 129. The sheriff shall make a full inventory of the property Return, how attached, and return the same with the writ. To enable him to make such return as to debts and credits attached, he shall request, at the time of service, the party owing the debt, or having the credit, to give him a memorandum stating the amount and description of each; and if such memorandum be refused, he shall return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay the costs of any proceedings taken for the purpose of obtaining information respecting the amounts and description of such debt or credit.

property

SEC. 130. If any of the property attached be perishable, the sheriff Perishable shall sell the same in the manner in which such property is sold on execution. The proceeds, and other property attached by him, shall

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