Order of arrest

vacated.

Motion upon adavite.

Liable for fee.

Delivery of property.

Order for delivery, what to show

motion, stay proceedings against such bail, for a reasonable time, on their paying all costs that have accrued against them; and if, on such proceedings, the judgment against the principal shall be reversed, and the principal discharged from said suit, the bail shall be discharged from the undertaking.

SEC. 182. A defendant arrested may, at any time. before the justification of the bail, apply on motion, to the court in which the suit is brought, if in session, and in vacation, to a judge thereof, to vacate the order of arrest, or to reduce the amount of the bail. Reasonable notice of such motion must be given to the plaintiff.

SEC. 183. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same, by affidavits or other evidence, in addition. to that on which the order of arrest was made.

SEC. 184. Any person causing another to be committed to jail under the provisions of this chapter, shall be liable, in the first instance, for the jail fees, and shall, if required by the jailer, pay such fees weekly in advance; and such fees so paid shall be a part of the costs of the case.

TITLE IX.

Replevin of Property.

SEC. 185. The plaintiff in an action to recover the possession of specific personal property, may, at the commencement of the suit, or at any time before answer, claim the immediate delivery of such property, as provided in this title.

SEC. 186. An order for the delivery of property to the plaintiff shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing,

First, A description of the property claimed.

Second, 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.

Third, That the property is wrongfully detained by the defendant.

Fourth, The value of the property.

Fifth, That it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this title or any other mesne or final process issued against the plaintiff; or if taken on an execution or order of attachment, that it is by statute exempt from such levy or attachment.

sheriff.

SEC. 187. The order for the delivery of the property Addressed to to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the partics, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein.

SEC. 188. The return day for the order of delivery, Return day. when issued at the commencement of the suit, shall be the

same as that of the summons; when issued afterwards, it shall be twenty days after it issued.

SEC. 189. The sheriff shall execute the order by taking Duty of sherif the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detention of the property, or his agent from whose possession the property is taken, or if neither can be found by leaving a copy of the order at the usual place of the abode of either, with some person of suitable age and discretion.

SEC. 190. The sheriff or other officer shall not deliver Undertaking. to the plaintiff, his agent or attorney, the property so taken, until there has been executed by one or or more sufficient sureties of the plaintiff, a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him. The undertaking shall be returned with the order.

SEC. 191. For the purpose of fixing the amount of the undertaking, the value of the property taken shall be ascer- sessed.

Property

Property re

turned.

Exception to sureties.

Judgment fr defendant.

tained by the oath of two or more responsible persons, whom the sheriff or other officer shall swear truly to assess the value thereof.

SEC. 192. If the undertaking required by section one hundred and ninety be not given within forty-eight hours from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant; and if the sherif or other officer deliver any property so taken to the plaintiff, his agent or attorn y, or keep the same from the defendant, without taking such security, within the time aforesaid, or if he take insufficient security, he shall be liable to the defendant in damages.

SEC. 193. The defendant may, within forty-eight hours from the time the undertaking referred to in the preceding section is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he must be deemed to have waived all objections to them. When the defendant excepts, the sureties must justify upon notice, as bail on arrost. The sherif or other officer shall be responsible for the suficiency of the sureties, until the objection to them is waived as above provided, or until they justify. The. property shall be delivered to the plaintiff, when the undertaking required by section one hundred and ninety has been given.

SEC. 194. If the property has been delivered to the plaintiff, and judgment be rendered against him on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as right and proper; for which, with costs of suit the court shall render judgment for the defendant.

SEC. 195. In all cases where the property has been delivered to the plaintiff, when the jury shall find upon issue joined, for the defendant, they shall also find whether the defendant has the right of property or the right of possession only, at the commencement of the suit, and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which, with costs of suit, the court shall render judgment for the defendant.

'Damages.

Damages to

SEC. 196. In all cases when the property has been delivered to the plaintiff, where the jury shall find for the plaintiff. plaintiff, on an issue joined, or on inquiry of damages upon a judgment by the default, they shall assess adequate damages to the plaintiff for the illegal detention of the property; for which, with costs of suit, the court shall render judgment for defendant.

Plaintiff pay

SEC. 197. When the property claimed has not been taken, or has been returned to the defendant by the sheriff costs. for want of the undertaking required by section one hundred and ninety, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking required by section one hundred and ninety, the plaintiff shall pay all costs made by taking the

same.

SEC. 198. An order may be directed to any other county than the one in which the action is brought, for the delivery of the property claimed. Several orders may be issued 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.

Several orders

Sheriff may break open

SEC. 199. The sheriff or other officer in the execution of the order of delivery, may break open any building or buildings. enclosure in which the property claimed, or any part thereof is concealed; but not unless he has been refused an entrance

into said building or enclosure and the delivery of the

property, after having demanded the same.

SEC. 200. No suit shall be instituted on the undertaking No snit. given under section one hundred and ninety, before an

Order set aside

execution issued on a judgment in favor of the defendant in the action shall have been returned, that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county.

SEC. 201. Any order for the delivery of property issued under section one hundred and eighty-six, without the affidavit required thereby, shall be set aside at the cost of the clerk issuing the same, and such clerk, as well as the plaintiff, shall also be liable in damages to the party injured.

TITLE X.

Attachment-Article 1.

SEC. 202. The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated:

First, When the defendant or one of the defendants, is a foreign corporation, or a non-resident of this territory; or, Second, Has absconded with the intent to defraud his creditors; or,

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

Fourth, So conceals himself that a summons cannot be sorved upon him; or,

Fifth, Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; or,

Sixth, Is about to convert his property, or a part thereof into money, for the purpose of placing it beyond the reach of his creditors; or,

Seventh, Has property, or rights in action, which he conceals; or,

Eighth, Has assigned, removed or disposed of, or is about to dispose of, this property, or a part thereof, with the intent to defraud his creditors, or,

Ninth, Fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought.