ARTICLE SECOND. SECURITY. ART. 2. SECTION 611. Security, on staying proceedings in an action, before trial. 612. Id.; after trial, and before judgment. 613. Id.; after judgment. 614. Money deposited may be paid over. 615. Undertaking to be cancelled thereupon. 616. Security, on staying proceedings after verdict, in ejectment or dower. 618. Deposit may be dispensed with. 619. Undertaking and deposit; when dispensed with. 620. Security in other cases. 621. Special cases excepted. *622. When undertaking deemed forfeited. 623. Damages; how ascertained. 624. Damages sustained by a third person. action, be §611. An injunction order shall not be granted, to stay the trial of Security, on staying an action, in which the complaint demands judgment for a sum of proceedBoney only, after issue has been joined therein, unless the party apply-ings in an ing therefor gives an undertaking to the party enjoined, with sufficient fore trial. sureties, to the effect, that he will pay to the party enjoined, or his representative, all damages and costs, which may be recovered by him in the action stayed by the injunction, not exceeding a sum, specified in the undertaking; and, also, all damages and costs that may be awarded to him, in the action in which the injunction order is granted. before § 612. An injunction order shall not be granted, to stay proceedings Id.; after in an action specified in the last section, after verdict, report, or decis- trial, and ion, and before final judgment thereupon, unless a sum of money, judgment. sufficient to cover the sum awarded by the verdict, report, or decision, and the costs of the action, is first paid, by the party applying for the injunction into the court, in which his action is commenced, or an undertaking for the payment thereof, with interest, is given, as prescribed in this article. §613. An injunction order shall not be granted, to stay proceedings Id.; after upon a judgment for a sum of money, unless the following requisites judgment. are complied with, by the party applying therefor: 1. The full amount of the judgment, including interest and costs, must be paid by him, into the court in which his action is commenced; r an undertaking in lieu thereof must be given, as prescribed in this article. 2. He must also give an undertaking, with sufficient sureties, to pay the party enjoined, all damages and costs, which may be awarded to him by the court, in the action in which the injunction order is anted; not exceeding a sum, specified in the undertaking. §614. Money paid into court, as prescribed in the last two sections, Money demay be paid over, by the direction of the court, to the party whose pro- may be ceedings are stayed, upon his giving an undertaking to the people of paid over. the State, with sufficient sureties, in a sum fixed by the court, to pay the money and interest, or any part thereof, as directed in the order or judgment of the court. posited 615. Where money so paid into court has been paid over to the Undertak party whose proceedings are stayed, if the final decision of the action, ing to be TITLE 2. cancelled in which the injunction order is granted, is against the party obtaining thereupon. it, the court must give such directions, as justice requires, with respect to cancelling the undertaking given by the successful party; making perpetual the injunction staying collection of the judgment; and requiring the judgment to be discharged of record. Security on staying proceed verdict, in § 616. An injunction order shall not be granted, to stay proceedings in an action of ejectment, or for dower, after verdict, report or decision, ings after unless the party applying therefor gives an undertaking, with sufficient ejectment sureties, to pay to the party enjoined, or his representative, all damages or dower. and costs, not exceeding a sum specified in the undertaking, which may be awarded to him, in the action wherein the injunction was granted. Id.; damages to include waste. Deposit may be dispensed with. § 617. Where an undertaking is given, as prescribed in the last section, the damages to be paid, upon the vacating of the injunction order, or the decision of the action against the party obtaining it, include, not only the reasonable rents and profits of the real property, recovered by the verdict, report, or decision, but all waste committed upon the property, after the granting of the injunction. § 618. In a case, where money is required by the foregoing sections of this article, to be paid into court, the court or judge may dispense with the payment, and may require the party to give, in lieu thereof, an undertaking, with two or more sureties, to pay the sum specified, with interest, as directed by the court. If an undertaking is required, in addition to the deposit, both undertakings may be contained in the same instrument, at the election of the party applying for the injunction. § 619. The foregoing sections of this article do not apply to a case, where an injunction order is applied for, to stay proceedings in another when dis- action, on the ground that a judgment, verdict, report, or decision therein was obtained by actual fraud. In that case, the court or judge granting the injunction order may dispense with the deposit of money, or the execution of an undertaking, except as prescribed in the next section. Undertaking and deposit; pensed with. Security in other cases. Special cases ex cepted. Damages, tained. § 620. Where special provision is not otherwise made by law for the security to be given upon an injunction order, the party applying therefor must give an undertaking, executed by him or by one or more sureties, as the court or judge directs, to the effect, that the plaintiff will pay to the party enjoined, such damages, not exceeding a sum, specified in the undertaking, as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto. § 621. The foregoing provisions of this article do not affect any special statutory provision, whereby security upon granting an injunction order may be dispensed with, in a particular case, or the security to be given in a particular case is otherwise regulated. § 623. The damages, sustained by reason of an injunction, may be how ascer- ascertained and determined by the court, or by a referee, appointed by the court, or by a writ of inquiry or otherwise as the court shall direct; and the decision of the court thereupon, or an order confirming the report of the referee, is conclusive, as to the amount of those damages, upon all the persons who have executed the undertaking, unless it is reversed upon appeal. The court may in its discretion, direct that the sureties have notice of the hearing, or of an appeal, and may prescribe the time and manner of giving them notice. Damages sustained § 624. Where the defendant enjoined was an officer of a corporation, or joint stock association, or a bailee, agent trustee, or other represent person. ative of another, and the damages sustained by him, are less than the ART. 3. sum specified in the undertaking, the court or the referee may also by a third separately ascertain and determine the damages sustained, by reason of the injunction, by the corporation, association, or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking; and those damages may be recovered in a separate action, brought as prescribed in the next section. §625. Where the damages have been ascertained by the decision of Action on the court, or the confirmation of a referee's report, as prescribed in the last two sections, any person, entitled to the benefit of an undertaking, executed pursuant to the provisions of this title, may bring an action thereon, without further leave of the court. ARTICLE THIRD. VACATING OR MODIFYING AN INJUNCTION ORDER. SECTION 626. Application to vacate or modify, without notice. 627. Id.; upon notice. 628. When prior motion not to prejudice subsequent application. 630. Verified answer to have the effect only of an affidavit. *631. When merits of action may be litigated. *632. When merits not to be litigated. *633. Extrinsic questions of fact to be determined. *634. Proof upon questions of fact. the undertaking. tion to without §626. Where the injunction order was granted without notice, the Applicaparty enjoined may apply, upon the papers upon which it was granted, vacate or for an order vacating or modifying the injunction order. Such an modify application may be made, without notice, to the judge who granted the notice. order, or who held the term of the court where it was granted; or to the general term of the court, it cannot be made without notice, to any other judge or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge who granted the order, the application cannot be made to him; and that the applicant will be exposed to great injury, by the delay required for an application upon notice. The affidavit must be filed with the clerk; and a copy thereof, and of the order vacating or modifying the injunction order, must be served upon the plaintiff's attorney, before that order takes effect. notice. $627. Where the injunction order was granted upon notice, the Id.; upon party enjoined may also apply, upon notice, to the judge who granted it, or to the court, at a term where a contested motion in the action may be heard, for an order, vacating or modifying the injunction order, Such an application may be founded upon the papers upon which the junction was granted; or upon proof, by affidavit, on the part of the defendant; or both. Where it is founded upon proof on the part of the defendant, it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain the injunction. prior mo 3628. The granting or denial of an application, made as prescribed When in the last section, founded only upon the papers upon which the in- tion not to junction order was granted, does not prejudice a subsequent applica- prejudice tion, seasonably made, founded upon proof, by affidavit, on the part of applica the defendant. And the granting or denial of either application does * Stricken out. subsequent tion. TITLE. 3. New undertaking may be not prejudice a subsequent application, seasonably made, founded upon the failure of a conplaint, which had not been made at the time of the former application, to set forth a cause of action, sufficient to entitle the plaintiff to the injunction order, upon one or more grounds, recited therein. § 629. Upon the hearing of an application, upon notice, to vacate or modify an injunction order, the court or judge may require a new required. undertaking, in the same or in a different sum, to be given by the plaintiff, with the like sureties, and to the like effect, as upon granting an original order. The persons executing the new undertaking become liable thereon, as if they had executed it upon the granting of the original order. The persons who executed the original undertaking remain liable thereon, until the new undertaking is given and approved, and no longer. Verified answer to have the § 630. Upon the hearing of a contested application for an injunction order, or to vacate or modify such an order, a verified answer has the effect only effect only of an affidavit. of an affidavit. Friday TITLE III. Attachment of property. ARTICLE 1. Cases where a warrant of attachment may be granted, and proceed ings upon granting the same. 2. Executing the warrant pending the action. 3. Vacating or modifying the warrant; discharging the attachment. 4. Regulations where there are two or more warrants against the sam defendant. 5. Proceedings after judgment; rights of parties and duties of the sherif after the warrant is vacated or annulled, or the attachment dis charged. In what actions a ARTICLE FIRST. CASES WHERE A WARRANT OF ATTACHMENT MAY BE GRANTED; AND PROCEEDIN UPON GRANTING THE SAME. SECTION 635. In what actions a warrant of attachment may be granted. 637. Warrant in action against public officer, etc., for peculation. 638. When and by whom the warrant may be granted. 639. Affidavits to be filed. 640. Security on obtaining warrant. 641. Contents of warrant; to whom directed. 642. Validity of undertaking. § 635. A warrant of attachment against the property of one or m warrant of defendants in an action, may be granted upon the application of attachment plaintiff, as specified in the next session, where the action is to granted. cover a sum of money only as damages for one or more of the may be lowing causes: *So in the original. 1. Breach of contract, express or implied, other than a contract to marry. 2. Wrongful conversion of personal property. 3. Any other injury to personal property, in consequence of negligence, fraud, or other wrongful act. ART. 1. to procure §636. To entitle the plaintiff to such a warrant, he must show, by What must affidavit, to the satisfaction of the judge granting the same, as follows: be shown 1. That one of the causes of action specified in the last section exists the waragainst the defendant. If the action is to recover damages for breach rant. of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him. 2. That the defendant is either a foreign corporation or not a resident of the State; or, if he is a natural person and a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or, if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the State, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with the like intent. against cer, etc., § 637. A warrant of attachment, against the property of one or more Warrant in defendants in an action, may also be granted, upon the application of action the plaintiff, where the complaint demands judgment for a sum of public offi money only; and it appears, by affidavit, that the action is brought to for pecularecover money, funds, credits, or other property, held or owned by the tion. State, or held or owned, officially or otherwise, for or in behalf of a public governmental interest, by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted or disposed of; or in the obtaining, reception, payment, conversion, or disposition of which, without right, he has aided or abetted; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof. In order to entitle the plaintiff to a warrant of attachment, in a case specified in this section, he must show, by affidavit, to the satisfaction of the judge granting it, that a sufficient cause of action exists against the defendant, for a sum, stated in the affidavit. the war § 638. The warrant may be granted by a judge of the court, or by When and any county judge to accompany the summons or at any time after the by whom Commencement of the action, and before final judgment therein. Per- rant may sonal service of the summons must be made upon the defendant, against be granted whose property the warrant is granted, within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the State, pursuant to an order obtained therefor, as prescribed in this act; and if publication has been, or is thereafter commenced, the service must be made complete, by the continuance thereof. to be filed. $639. The plaintiff procuring the warrant must, within ten days Affidavits after the granting thereof, cause the affidavits, upon which it was granted, to be filed in the office of the clerk. Security on obtaining $640. The judge, before granting the warrant, must require a writundertaking, on the part of the plaintiff, with sufficient sureties, to warrant. |