the prisoner to be discharged, and he shall not thereafter be liable to imprisonment, for the same cause of action. CHAPTER. II. CLAIM AND DELIVERY OF PERSONAL PROPERTY. Sec. 116. Delivery of personal property-when it may be claimed. Sec. 118. Requisition to sheriff to take and deliver the property. Sec. 121. Defendant-when entitled to re-delivery. Sec. 122. Justification of defendant's sureties. Sec. 123. Qualification and justification of sureties. Sec. 124. Property-how taken when concealed in building or in closure. Sec. 125. Property—how kept. Sec. 126. Claim of property by third person. Sec. 127. Notice and affidavit-when and where to be filed. Section 116. The plaintiff, in an action to recover possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him as provided in this chapter. Sec. 117. Where a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing: First. That the plaintiff is the owner of the property claimed, particularly describing it, or is lawfully entitled to the possession thereof. Second. That the property is wrongfully detained by the defendant. Third. The alleged cause of the detention thereof according to his best knowledge, information and belief. Fourth. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or an attachment against the property of the plaintiff; or, if so seized, that it is by the statute exempt from such seizure; and, fifth, the actual value of the property. Sec. 118. The plaintiff or his attorney may thereupon, by an endorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be to take the same from the defendant. Sec. 119. Upon receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, approved by the sheriff, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit for the prosecution of the action, without delay and with effect and 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 from any cause be recovered against the plaintiff, the sheriff shall forthwith take the property described in the affidavit, if it be in 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; or if neither have any known place of abode, by putting them in the nearest post office, directed to the defendant. Sec. 120. 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 sureties. If he fails to do so, he shall be deemed to have waived all objections 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. Sec. 121. 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 twenty-six. Sec. 122. 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. 123. 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. Sec. 124. 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 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. Sec. 125. 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. Sec. 126. 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. Sec. 127. 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. 128. Injunction-what is, and who may grant it. Sec. 129. When it may be granted. Sec. 130. At what time it may be granted and what is required to obtain it. Sec. 131. Injunction after answer. Sec. 132. Security upon injunction; damages-how ascertained. Sec. 133. Order to show cause why injunction should not be granted. Sec. 134. Injunction to suspend business of a corporation-how and by whom granted. Sec. 135. Motion to vacate or modify injunction. Sec. 136. When to be vacated or modified. Section 128. An injunction is a writ or order requiring a person 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, and when made by a judge may be enforced as the order of the court. Sec. 129. 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. 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. 130. 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. 131. 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. 132. On granting injunction the court or judge shall require, except where 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 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. 133. 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. 134. 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. 135. 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. 136. 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. CHAPTER IV. ATTACHMENT. Sec. 137. Attachment-when issued. Sec. 138. Undertakings. Sec. 139. Attachment upon debt not due. Sec. 140. Writ of attachment-to whom directed. Sec. 141. Shares of stock and debts may be attached. Sec. 142. Writ-how executed. Sec. 143. To be subject to inspection. Sec. 144. Garnishment. Sec. 145. When garnishee liable to plaintiff. Sec. 146. Garnishee and defendant may be examined. Sec. 147. Inventory of attached property. Sec. 148. Perishable property. Sec. 149. When property claimed by third party. Sec. 151. If balance due-how collected. Sec. 152. When suit may be commenced on undertaking. |