XXXV. CLAIM AND DELIVERY.

790. Claim for delivery of personal property, when. 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 subchapter.

Code, s. 321; C. C. P., s. 176.

791. Affidavit and requisites. Where a delivery is claimed, an affidavit must be made, before the clerk of the court in which the action is required to be tried, or before some person competent to administer oaths, by the plaintiff, or 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 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. Code, s. 322; C. C. P., s. 177; 1881, c. 134.

Note. For statute forbidding seizure of property taken for a tax, see s. 821.

792. Order for sheriff to seize property and deliver to plaintiff. The clerk of the court shall, thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant and deliver it to the plaintiff: Provided, the plaintiff shall give the undertaking prescribed in the succeeding section.

Code, s. 323; C. C. P., s. 178.

793. Plaintiff's undertaking; copies furnished defendant. Upon the receipt of the order from the clerk with a written undertaking payable to the defendant 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 prosecution of the action, for the return of the property to the defendant with damages for its deterioration and detention if return can be had, and if for any cause return can not be had, for the payment to him of such sum as may be recovered against the plaintiff for the

value of the property at the time of the seizure, with interest thereon as damages for such seizure and detention, 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.

Code, s. 324; 1885, c. 50; C. C. P., s. 179.

794. Exceptions to undertaking; liability of sheriff. The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff personally, or by leaving a copy at his office in the county town of the county, or, if he have no such office, at the office of the clerk of the court, 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 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 until new sureties shall be substituted and justify. If the defendant except to the sureties, he can not reclaim the property as provided in the succeeding section. Code, s. 325; C. C. P., s. 180.

795. Defendant's undertaking for replevy. 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, payable to the plaintiff, executed by one 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, with damages for its deterioration and its detention, if delivery can be had, and if such delivery can not for any cause be had, for the payment to him of such sum as may be recovered against the defendant for the value of the property at the time of the wrongful taking or detention, with interest thereon, as damages for such taking and detention. 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 plaintiff, unless it shall be claimed by an interpleader.

Code, s. 326; 1885, c. 50, s. 2; C. C. P., s. 181.

796. Justification of defendant's sureties. The defendant's sureties, upon a notice to the plaintiff of not less than two or more than

six days, shall justify before the court, a judge or justice of the peace, 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.

Code, s. 327; C. C. P., s. 182.

797. Qualification and justification of defendant's sureties, how. The qualification of the defendant's sureties, and their justification, shall be as prescribed in respect to bail upon an order of

arrest.

Code, s. 328; C. C. P., s. 183.

798. Property concealed in buildings. 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 his aid the power of his county, and if the property be upon the person the sheriff or other officer may seize the person, and search for and take the same.

Code, s. 329; C. C. P., s. 184.

799. How property seized shall be kept. When the sheriff shall have taken property, as in this subchapter 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.

Code, s. 330; C. C. P., s. 185.

800. Property taken claimed by third person. When the property taken by the sheriff shall be claimed by any person other than the plaintiff or the defendant the claimant may interplead upon his filing an affidavit of his title and right to the possession of the property, stating the grounds of such right and title; and upon his delivering to the sheriff an undertaking in an amount double the value of the property specified in plaintiff's affidavit, for the delivery of the property to the person entitled to the same, and for the payment of all such costs and damages as may be awarded against him; this undertaking to be executed by one or more sufficient sureties, accompanied by their affidavits that they are each worth double the value of the property. A copy of this undertaking and accompanying affidavits shall be served by the sheriff on the plaintiff and defendant

at least ten days before the return day of the summons in said action, when the court trying the same shall order a jury to be impaneled to enquire in whom is the right to the property specified in plaintiff's complaint; and the finding of the jury shall be conclusive as to the parties then in court, and the court shall adjudge accordingly, unless it is reversed upon appeal: Provided, that in a court of a justice of the peace he may try such issue unless a jury be demanded, and then proceedings are to be conducted in all respects as in jury trials before courts of justices of the peace.

Code, s. 331; C. C. P., s. 186; 1793, c. 389, s. 3; R. C., c. 7, S. 10.

801. When sheriff may deliver property to intervenor. Upon the filing by the claimant of the undertaking set forth in the preceding section, the sheriff shall not be bound to keep the property, or to deliver it to the plaintiff; but may deliver it to the claimant, unless the plaintiff shall execute and deliver to him a similar undertaking to that required of claimant; and notwithstanding such claim, when so made, the sheriff may retain the property a reasonable time to demand such indemnity.

Code, s. 332; R. C., c. 7, s. 10; 1793, c. 389, s. 3.

802. Sheriff to return undertaking, etc., in ten days. The sheriff shall return the undertaking, notice and affidavit with his proceedings thereon to the court in which the action is pending within ten days after taking the property mentioned therein.

Code, s. 133; C. C. P., s. 187.

XXXVI. CONTROVERSY WITHOUT ACTION.

803. How submitted; affidavit; judgment. Parties to a question in difference which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The judge shall thereupon hear and determine the case, and render judg ment thereon as if an action were pending.

Code, s. 567; C. C. P., s. 315.

804. Judgment roll. Judgment shall be entered on the judgment docket, as in other cases, but without costs for any proceeding prior to trial. The case, the submission, and a copy of the judgment, shall constitute the judgment roll.

Code, s. 568; C. C. P., s. 316.

805. Judgment enforced; appealed from. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner.

Code, s. 569; C. C. P., s. 317.

XXXVII. INJUNCTION.

806. Temporary, issued, when. The writ of injunction as a provisional remedy is abolished, and a temporary injunction by order is substituted therefor. The order may be made by any judge of a superior court in the following cases, and shall be issued by the clerk of the court in which the action is required to be tried:

1. 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 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 by affidavit that a party thereto is doing, or threatens, or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party to the litigation respecting the subject of the action, and tending to render the judgment ineffectual; or,

3. When, during the pendency of an action, it shall appear by affidavit of any person, that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud the plaintiff. Code, ss. 334, 338; C. C. P., ss. 188, 189.

807. Solvent defendant restrained from cutting trees. In an application for an injunction to enjoin a trespass on land it shall not be necessary to allege the insolvency of the defendant when the trespass complained of is continuous in its nature, or is the cutting or destruction of timber trees.

1885, c. 401.

808. Timber lands, trial of title to. In all actions to try title to timber lands and in all actions for trespass thereon for cutting timber trees, whenever the court shall find as a fact that there is a bona fide contention on both sides based upon evidence constituting a prima facie title, no order shall be made pending such action, permitting either party to cut said timber trees, except by consent, until the title to said land or timber trees shall be finally determined in such action: Provided, that in all cases where the title to any timber or tree, or the right to cut and remove the same during a term of years, is claimed by any party to such action, and the fee of the soil or other estate in the land by another or others, whether party to the