1851.

Defendant may

order of arrest,

or reduce bail.

ARTICLE IV.

Motion to vacate an order of arrest.

§225. A defendant against whom an order of arrest has been obtained, may, at any time before judgment in the move to vacate action, and before a decision of a motion on account of the insufficiency of the bail, apply to the court, or, in vacation and before executing a bail bond, to the judge thereof, or to any circuit judge, or to the presiding judge of the county court, by motion, to vacate the order of arrest, or to reduce the amount of bail. Reasonable notice of the motion shall be given to the plaintiff. If satisfied that the bail ought not to have been required, or that the sum for which it was demanded is too large, the court or judge may vavate the order of arrest, or reduce the amount of bail. The decision of the motion shall be final in the action, but shall not affect the rights of the parties in any other action. Upon the vacation of the order of arrest, the defendant shall be discharged, or the bail bond, if any is given, shall be cancelled.

§ 226. If the motion is supported by affidavits or other evidence out of the record, the plaintiff may oppose it by affidavits or other evidence, in addition to that on which the order of arrest was obtained.

§ 227. The writ of scire facias against bail, is abolished. CHAPTER 2.

Claim and delivery of personal property.

§ 228. The plaintiff in an action to recover the possession of specific personal property, may, at the commencement of the action, or at any time before judgment, claim the immediate delivery of the property, as herein provided. § 229. An order for the delivery of property to the plaintiff, shall be made by the clerk, when there is filed in his office an affidavit of the plaintiff, showing

1. A particular description of property claimed.

2. Its actual value, and the damages which the affiant believes the plaintiff ought to recover for the detention thereof.

3. That the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property.

4. That the property is wrongfully detained by the defendant.

5. That it has not been taken for a tax or fine against the plaintiff, or under any order or judgment of a court against him, or seized under an execution or attachment against his property, or, if so seized, that it is, by statute, exempt from such seizure.

6. That the plaintiff's cause of action has accrued within one year.

Where the action is brought to recover property taken under an execution or distress warrant, the affidavit must state the fact of the taking and the nature of the process under which it was done.

§ 230. Where the delivery of several articles of property is claimed, the affidavit must state the value of each. § 231. The order for the delivery of the property to the plaintiff shall be addressed and delivered with a copy thereof to the sheriff. It shall state the names of the parties to the action and the court in which the action is brought, and direct the sheriff to take the property, describing it and stating its value as in the affidavit of the plaintiff, and deliver it to him, and to make return of the order on a day to be named therein. The order shall be made returnable, as an order of arrest is directed to be returned.

§ 232. The order shall not be complied with by the sheriff, until there has been executed in his presence, by one or more sufficient sureties of the plaintiff, a bond to the defendant to the effect that the plaintiff shall duly prosecute the action, and that he shall perform the judgment of the court therein, by returning the property, if a return thereof shall be adjudged, and by paying such sums of money ast may be adjudged against him in the action, not exceeding double the value of the property, and the costs of the action.

Requisites of bond to be executed when action is against

officer.

§ 233. Where the action is brought against a sheriff, or other officer, to recover the possession of property taken by him under an execution against a person other than the sheriff or other plaintiff, or under a distress warrant, the bond provided for in the last section shall be to the effect that the plaintiff shall duly prosecute the action, and that he shall perform the judgment of the court therein, by returning the property, if a return thereof shall be adjudged, and by paying to the defendant, or to the plaintiff in the execution or party who sued out the distress warrant, as may be directed by the court, such sums of money as may be adjudged against the plaintiff in the action not exceeding double the value of the property, and the costs of the action.

How the order for the delivery

be executed.

§ 234. The sheriff shall execute the order by taking the property therein mentioned, if it is found in the possession of property is to of the defendant or of his agent, or of any other person who obtained possession thereof from the defendant directly or indirectly after the order was placed in the sheriff's hands. He shall also deliver a copy of the order to the defendant, or to the person from whose possession the property is taken, or, if neither can be found, leave it at the usual place of abode of either, with some white person of the age of sixteen years.

§ 235. If the affidavit of the plaintiff states that the property was taken under an execution or distress warrant, the sheriff shall deliver it to the plaintiff. In every other case,

been taken unIf property has der execution, be to plaintiff.

delivery must

1851.

Property to he fendant if plain tiff fails to give

delivered to de

bond.

Either party may have prop fore bond is giv.

erty valued be

en.

Expenses of

keeping proper

ty to be taxed in

bill of costs.

Proceedings

where the prop

erty is claimed

by a stranger.

Order may, at

any time before

judgment, be is sued to another

County.

If the proper

he shall retain the property in his possesion for two days, unless the bond mentioned in the succeeding section shall be sooner executed.

§ 236. Within two days after the taking of the property by the sheriff, the defendant, or any one for him, may, in the case in which the property was not taken under an execution or a distress warrant, cause a bond to be executed to the plaintiff, in the presence of the sheriff, by one or more sufficient sureties, in double the value of the property, to the effect that the defendant shall perform the judgment of the court in the action; whereupon, the sheriff shall restore the property to the defendant, or to the person in whose possession it was found. If such bond is not executed within the time above limited, the sheriff shall deliver the property to the plaintiff. He shall return the bonds with the order.

§ 237. Before taking any bond, the sheriff shall, upon the suggestion of either party that the value of the property is not truly stated in the order for its delivery, and, where the suggestion is on the part of the defendant, on his producing the property to the sheriff, select three disinterested housekeepers, to appraise the same under oath to be administered by him; whose appraisement indorsed upon the order, shall be regarded as the value of the property, in taking the bonds.

$238. The sheriff shall safely keep the property, and shall be allowed by the court the necessary expenses of doing so, to be paid by the plaintiff, and taxed in the costs. § 239. If another person than the defendant or his agent, claims the property taken by the sheriff, and delivers to the sheriff his affidavit that he is entitled to the possession thereof, the sheriff shall not be bound to keep it, or deliver it to the plaintiff, unless he shall, within two days after the delivery to him, or to his agent or attorney, by the sheriff, of a copy of the affidavit, indemnify the sheriff against the claim, by a bond executed by one or more sufficient sureties, in double the value of the property. No claim to such property by any other person than the defendant or his agent, shall be valid against the sheriff, unless so made. He shall return the affidavit of the claimant, with his proceedings thereon to the clerk's office.

§ 240. An order may, at any time before judgment, be directed to any other county for the delivery of the property claimed. And several orders may issue at the same time, or successively, at the option of the plaintiff. But only one of them shall be taxed in the costs, unless otherwise ordered by the court.

§ 241. Where it appears by the affidavit of the plaintiff, or by the return of the order of delivery, that the property ty is concealed, claimed has been disposed of or concealed, so that the orpunished der cannot be executed, the court may compel the attend

defendant may

he

therefor.

ance of the defendant, examine him on oath as to the situation of the property, and punish a disobedience of its orders in this respect as in cases of contempt.

§ 242. The plaintiff in a civil action, may, at or after the commencement thereof, have an attachment against the property of the defendant, in the cases and upon the grounds hereinafter stated, as a security for the satisfaction of such judgment as may be recovered:

First. In an action for the recovery of money where the action is against

1. A defendant or several defendants, who, or some one of whom, is a foreign corporation, or a non-resident of this state; or

or

2. Who has been absent therefrom four months;

3. Has departed from this state with intent to defraud his creditors; or

4. Has left the county of his residence, to avoid the service of a summons; or

5. So conceals himself that a summons can not be served upon him; or

6. Is about to remove his property, or a material part thereof, out of this state, not leaving enough therein to satisfy the plaintiff's claim; or

7. Has sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay his creditors; or

8. Is about to sell, convey, or otherwise dispose of his property, with such intent.

But an attachment shall not be granted on the ground that the defendant or defendants, or any of them, is a foreign corporation, or a non-resident of this state, for any claim other than a debt or demand arising upon contract.

1851.

Steps necessary to obtain an attachment.

Absence or concealinent au

Secondly. In an action to recover the possession of personal property, where it has been ordered to be delivered to the plaintiff, and where the property, or part thereof, has been disposed of, concealed, or removed, so that the order for its delivery cannot be executed by the sheriff.

SUBDIVISION II.

How an attachment is obtained.

§ 243. An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the first subdivision of section two hundred and forty-two, when there is filed in his office an affidavit of the plaintiff, showing

1. The nature of the plaintiff's claim.

2. That it is just.

3. The amount which the affiant believes the plaintiff ought to recover; and

4. The existence in the action of some one of the grounds for an attachment enumerated in that subdivision; and in the case mentioned in the second subdivision of section two hundred and forty-two, where it is shown, by such affidavit or by the return of the sheriff upon the order for the delivery of the property claimed, that the facts mentioned in that subdivision exist.

§ 244. Where the return by the proper officer upon à summons against a defendant, states that he has left the thorizes an at County to avoid the service of the summons, or has concealed himself therein for that purpose, it shall be equivalent to the statement of the fact in the affidavit mentioned in the last section.

tachment.

§ 245. The order of attachment shall not be issued by the clerk, until there has been executed in his office by one or more sufficient sureties of the plaintiff, a bond to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, if the order is wrongfully obtained, not exceeding double the amount of the plaintiff's claim.

$246. The order of attachment shall be directed and delivered to the sheriff, with as many copies thereof as the plaintiff may direct. It shall require him to attach and safely keep the property of the defendant in his county not exempt from execution, or so much thereof as will satisfy the plaintiff's claim specified in his affidavit, which shall be stated in the order, and the probable costs of the action not exceeding thirty dollars; also to summon the garnishees to answer in the action on the return day of the order, and to make due return thereof. The order shall be made returnable as an order of arrest is directed to be returned.