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. a. Error in date.-The undertaking will not be vitiated on account of an error in the recital of it, as to the date on which the affidavit was made. Hyde v. Patterson, 1 Abb. 248. tice of justification must be given. Burns v. Robbins, supra. 1. Foreign corporation, plaintiff. In the case of a foreign corporation plaintiff, the undertaking, pursuant to this section, dispenses with the security required by the ReStatutes. Wisconsin Marine and Fire Insurance Company Bank v. Hobbs, 22 How. 494. b. New undertaking.-When the undertaking given in the first instance is defect-vised ive, the court will allow a new one to be given nunc pro tunc. Newland v. Willetts, 1 Barb. 20. See 2 R. S. 556. c. Sheriff cannot dispense with a bond-If he does, the proceedings will be irregular; the bond must be executed and delivered to him. Wilson v. Williams, 18 Wend. 581. d. Who must control property Unless the defendant himself, or his agent, has possession of the property claimed and described in the plaintiff's affidavit, the sheriff cannot take it. King v. Orser, 4 Duer, 431. See Haskins v. Kelly, 1 Rob. 160, 168; S. C. 1 Abb. N. S. 63. e. Evidence of directions. Where the plaintiff's requisition directs the sheriff to take property from the defendant, which proves to belong to a third party, if the plaintiff causes his sureties to justify, that fact is prima facie evidence that the property of the third person seized was directed to be taken by the plaintiff. Aldrich v. Ketcham, 3 E. D. Smith, 577. f. Property damaged.-Where, by the sheriff's negligence, the property is damaged, the plaintiff does not waive his claim against the sheriff by receiving it in a damaged state. Moore v. Westervelt, 1 Bosw. 357; S. C. Rev'd, 21 N. Y. (7 Smith), 103. g. Approval of undertaking by of undertaking by sheriff. The proceedings may be set aside on motion, if the sheriff have not indorsed his approval on the undertaking; but the indorsement will be allowed nunc pro tunc. Burns v. Robbins, 1 Code R. 62. h. Time to justify.-If good cause exists, the time may be extended in which the sureties may justify. Burns v. Robbins, m. Infant plaintiff.-The guardian may be surety in the case of an infant plaintiff. Anonymous, 2 Hill, 417. n. Two bills of costs.-Where a third person, on behalf of the plaintiff, executes an undertaking in accordance with this section of the Code, conditioned for the payment of such sum as may "from any cause " be recovered against the plaintiff (which provision is required by the section), and a judgment for costs is subsequently obtained against the plaintiff, and such judgment is affirmed at the general term, with costs, the two bills of costs are within the undertaking, and the obligor is liable therefor. Tibbles v. O'Connor, 28 Barb. 538. o. Property of third party.-Where the sheriff had taken possession of, and an property was claimed by a third party, which action was commenced against the sheriff and the plaintiff in the first action by such third party for the taking, held, that the action was irregular, and that the only way in which a third party claiming goods taken by the sheriff in proceedings of this nature, is pursuant to section 216 of the Code. Edgerton v. Ross, 6 Abb. 189. See, also, Haskins v. Kelly, 1 Rob. 160; S. C. 1 Abb. N. S. 63; Stimpson v. Reynolds, 14 Barb. 506. undertaking is provided for by the Code in an p. Only one undertaking.-No other action for the claim and delivery of personal property, than that to be taken and approved by the sheriff. This is the fact, however inadequate the amount for which it is given, DeReguie v. Lewis, 3 Rob. 708. See, also, Manley v. Patterson, 3 Code R. 89. tion on the undertaking by an assignee of the q. Action on undertaking.-In an acdefendant, where the undertaking is produced on the trial, a regular delivery of it to the promisee will be presumed. Bowdoin v. Coleman, 3 Abb. 431; S. C. 6 Duer, 182. Where the action is by assignee of only a portion of the original promisees, there is a defect of parties. Ib. § 210. [185.] Exception to sureties and proceedings thereon, or on failure to except. The defendant may, within three 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 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 new sureties shall be substituted and justify. If the defendant except to the sureties he cannot reclaim the property as provided in the next section. a. Discontinuance of the action. In this case, the plaintiff claimed the immediate delivery of the property, served the affidavit, notice and undertaking required; the defendant excepted to the sureties, and they omitted to justify, whereupon he moved to have the action discontinued; the motion was denied. Semble, that if the sheriff takes sham | security, the plaintiff is entirely without remedy, except the responsibility of the sheriff or his bondsmen. Manley v. Patterson, 3 Code R. 89. b. Defects in the undertaking may be cured upon an exception thereto, if they are merely formal. DeReguie v. Lewis, 3 Rob. 708. § 211. [186.] (Am'd 1849.) Defendant, when entitled to redelivery. 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 three days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section 216. a. No further change can be made. After the defendant has once recovered the possession of the property under this section, there is no provision made for its restoration again to the plaintiff before judgment; it will Le protected from injury in the hands of either party. Hunt v. Mootry, 10 How. 478. b. Defendant's time to claim a redelivery. The sheriff or other officer is required to retain the property in his possession during the three days in which the defendant may elect whether or not he will demand a return of the property. Butterworth v. O'Brien, 28 Barb. 187. If he elect to take the property, the officer must still retain possession until his sureties have justified. His demand within three days does not entitle him to the property, but prevents a delivery to the plaintiff. Graham v. Wells, 18 How. 376. See, also, M'Cann v. Thompson, 13 How. 380. c. Time not limited.-The time is not limited within which the defendant's sureties may justify. Graham v. Wells, 18 How. 376. d. Undertaking in plaintiff's name. An undertaking is not rendered invalid, under this section, because taken in the name of the plaintiff in the action. Slack v. Heath, 4 E. D. Smith, 95; S. C. 1 Abb. 331; Decker v. Judson, 16 N. Y. (2 Smith), 443. e. Failure of sureties to justify.Where sureties have been accepted, it is no defense to an action against them that they failed to justify. An action commenced on the undertaking is a waiver of the exception. Where the undertaking is made to the party, it need not be assigned to him; he may sue on it without. Decker v. Anderson, 39 Barb. 346. f Who deemed a householder.-A surety upon an undertaking given under the provisions of this chapter, who rents and oc cupies a portion of a building as an office, der this section is competent evidence to go to the jury to disprove an allegation in the answer of the defendants that they do not detain the property. Black v. Foster, 28 Barb. 387; S. C. 7 Abb. 406. § 212. [187.] (Am'd 1849.) 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 a judge or justice of the peace, in the same manner as upon bail or 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. a. Manner and amount of justifi- | cation. The time within which the defendant's sureties must justify is not limited; nor is there any necessity that it should be, as the plaintiff's security is the liability of the officer until sureties have completely justified. Where more than two bail are allowed to justify, the whole justification must be equivalent to that of two sufficient bail. The undertaking must be, in the aggregate, double the amount. Graham v. Wells, 18 How. 376. b. When the officer is liable.-Where an action has been commenced and the defendant arrested, under an order pursuant to subd. 3 of § 179, and the proper undertaking has been given, provided for by § 211, the property delivered to the plaintiff and the defendant liberated from arrest, and process returned, but the defendant's sureties on being excepted to, fail to justify, it was held, that in such a case the officer himself, by such omission, became liable as bail. McKenzie v. Smith, 27 How. 20. In Gallarati v. Orser, 27 N. Y. (13 Smith), 324, it is held, that in order to render the sheriff liable, there must be a judgment under the execution on which the property might be sought and delivered. § 213. [188.] (Am'd 1849.) Qualifications and justification of sureties. The qualifications of sureties and their justification, shall be as are prescribed by sections 194 and 195, in respect to bail upon an order of arrest. § 214. [189.] Property; how taken, when concealed in building or inclosure. If the property or any part therof 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 the county. § 215. [190.] Property; how kept. When the sheriff shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same. Edwards on Bailments, p. 59; Moore v. Westervelt, 27 N. Y. (13 Smith), 239 S. C. 9 Bosw. 558. More than ordinary diligence.-It | Y. (7 Smith), 103. See, in this connection, is not sufficient that the sheriff use ordinary diligence in the care of the property, he must preserve it safe. Moore v. Westervelt, 21 N. § 216. Claim of property by third person. If the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto, and right to the possession thereof, stating the grounds of such right and title, 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, shall indemnify the sheriff against such claim by an undertaking, executed by two sufficient sureties, accompanied by their affidavits that they each are worth double the value of the property as specified in the affidavit of the plaintiff, and freeholders and householders of 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 made as aforesaid, and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity.. When the section applies.-It is only when the property is taken by an officer, in the proper discharge of his duty, that this section applies, and not when it is wrongfully taken. King v. Orser, 4 Duer, 431. If the sheriff takes the property described in the replevin process, from the defendant or his agent, the process is a complete justification, and no action lies against such sheriff. Hallett v. Byrt, Carth. 380; Shipman v. Clark, 4 Denio, 446; Foster v. Pettibone, 20 Barb. 350; Willard v. Kimball, 10 Allen (Mass.), 211; State v. Jennings, 14 Ohio St. 73. But if he takes the property of a third person from_the true owner, an action lies. Stimpson v. Reynolds, 14 Barb. 506; King v. Orser, 4 Duer, 431. Under the Code, it is not necessary to call a jury in those cases in which a third party claims the property taken by the sheriff. Haskins v. Kelly, Abb. N. S. 63, 70; S. C. 1 Rob. 160, 168. If the sheriff's proceedings are regular, there is no mode of making a valid claim by a third person except in the manner prescribed by this section. Edgerton v. Ross, 6 Abb. 189. § 217. Notice and affidavit, when and where to be filed. The sheriff shall file the notice 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. SECTION 218. Writ of injunction abolished, and order substituted. 219. Injunction; in what cases granted. 220. At what time it may be granted. 221. Notice, when required; temporary injunction. 222. Security upon injunction; damages how ascertained. 223. Order to show cause why injunction should not be granted. 224. Security, upon injunction to suspend business of corporation. § 218. [191.] Writ of injunction abolished, and order substituted. The writ of injunction as a provisional remedy is abolished; and an injunction, by order, is substituted therefor. The order may be made by the court in which the action is brought, or by a judge thereof, or by a county judge, in the cases provided in the next section; and when made by a judge may be enforced as the order of the court. a. Scope of the provisions with reference to injunctions.-The Code substitutes an order for the writ heretofore used, and defines the cases in which it may be granted; it does not create a new remedy; it only recognizes the injunction as an existing provisional remedy. Linden v. Hepburn, 5 How. 188; S. C. 3 Code R. 165, sub nom. Linden v. Fritz; New York Life Insurance Co. v. Supervisors of the City and County of New York, 4 Duer, 192; Howard v. Ellis, 4 Sandf. 369; Wordsworth v. Lyon, 5 How. 463; S. C. 1 Code R. N. S. 163; disapproving, 5 How. 293; S. C. 1 Code R. N. S. 163. b. Motion for injunction.-As the order of injunction may be made by the court at general term, a motion for an injunction may be made and entertained at general term. Drake v. Hudson River Rail Road Co. 2 Code R. 67. c. Person enjoining or enjoined must be a party.-In Aaron v. Baum, 4 Abb. N. S. 65; S. C. 37 How. 237; 7 Rob. 340, the court says, "I do not know of a case, nor can I conceive of one, where a stranger, i e., one not a party to the proceeding, can obtain an injunction merely upon allegation that he is in danger of having his possession disturbed." Marry v. James, 37 How. 52; S. C. 2 Daly, 437. An injunction order can only go against a party to the action. Watson v. Fuller, 9 How. 425. Edmonston v. McLoud, 19 Barb. 356; S. C. Aff'd, 16 N. Y. (2 Smith), 543; Fellows v. Fellows, 4 Johns. Ch. R. 25; Waller v. Harris, 7 Paige, 167; S. C. Aff'd, 20 Wend. 555. If persons, not parties, are injuriously affected by an injunction, they will be relieved on application to the court; but the defendant himself cannot object that persons, not parties, are included in the injunction. Tradesman's Bank 4. Merritt, 1 Paige, 302. And where persons, not parties to the action were enjoined, but disobeyed the injunction, on a motion for attachment against their persons for contempt of court, one of the principal reasons assigned why such attachment should not issue, was that the persons sought to be held in contempt were not parties to the action. Watson v. Fuller, 9 How. 425. See Edmonston v. McLoud, 19 Barb. 356; S. C. 16 N. Y. (2 Smith), 543. d. Want of jurisdiction.-The supreme court in one district, in a suit in progress in another district, cannot issue an injunction to stay proceedings in an action previously commenced in such other district, in the same court, and which is still pending there. Schell v. Erie Railway Co. 51 Barb 368; S. C. 4 Abb. N. S. 287; 35 How. 438. e. Want of capacity in judge.-A judge, whose wife is a first cousin of the wife of the defendant in an action, cannot grant an injunction in such action, the judge and the party being within the degree of affinity which would incapacitate a juror from sitting on the trial of the cause. New York and New Haven Railroad Co. v. Schuyler, 28 How. 187. f. Power to enforce the injunction order. The power that makes the order can enforce it; in all cases, where the power to issue the injunction exists, the power of compelling obedience also exists; and the violation of the injunction order may be punished, even when it issues against a corporation. People v. Albany and Vermont Railroad Co 12 Abb. 171; S. C. 20 How. 358. g. Order not retroactive.-An injunction order is never retroactive; it cannot make an act, already performed, unlawful, or treat such act as a disobedience to its provisions. People v. Albany and Vermont Railroad Co. 12 Abb. 171, 177; S. C. 20 How. 358. § 219. [192.] (Am'd 1849.) Injunction; in what cases granted. Where 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 when, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. And where, during the pendency of an action, it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition. I. GENERAL. a. Definitions, scope, nature.-Before viz: preliminary and final; the former issuthe Code, there were two kinds of injunctions, ing before judgment, the latter at the time of |