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4 Month. L. Bul. 7.

17 Hun, 232. 4 Month. L.

Bul. 7.

§ 593. [Am'd 1877.] For the purpose of surrendering the defendant, the bail, at any place or at any time before they are finally charged, may themselves arrest him, or, by a written authority, endorsed on a certified copy of the undertaking, may empower another person to do so. And one or more of the bail may thus arrest and surrender the defendant, although the others do not join with him or them, for that purpose.

§ 594. Where the defendant surrenders himself in cxoneration of his bail, he must present himself to the sheriff, and require the sheriff, in writing, to take him into custody, in exoneration of his bail. The sheriff must detain him accordingly, as prescribed in subdivision second of section five hundred and ninety-two of this act; and, if requested by the bail, at any time after the surrender, the sheriff must, by a certifi cate in writing, acknowledge the surrender. An order for the exoneration of the bail may be procured, as prescribed in section five hundred and ninety-two of this act.

§ 595. Where the sheriff is liable as bail, he has all the rights and privileges, and is subject to all the duties and liabilities of bail; and bail given by him, in order to discharge himself from liability, must be regarded as the bail of the defendant in the action. But this section does not apply to an action to recover a chattel; or to a case where a defence arises to an action against the bail, in consequence of an act or omission of the sheriff.

§ 596. In case of failure to comply with "he undertaking, the bail may be proceeded against by actior, and not other

wise.

$ 597. An action may be brought, as rescribed in the last section, in a case where the order of arrest could be granted only by the court, at any time after the bail have failed to comply with their undertaking. Where the undertaking was given in an action to recover a chattel, an action may be brought thereupon, at any time after the return, wholly or partly unsatisfied, of an execution for the delivery of the possesion of the chattel, with respect to which the order of arrest was granted. In any other case, in action cannot be brought, as prescribed in the last section, until the following requisites have been complied with:

1. An execution, against the property of the defendant, must have been issued to the sheriff of the county in which he was arrested, and returned by that sheriff, wholly or partly unsatisfied.

2. An execution, against the person of the de endant, must have been issued to the same sheriff, and by him returned, not less than fifteen days after its receipt, to the effect that the defendant could not be found within his county.

§ 598. [Am'd 1877.] The sheriff must diligently endeavor 88 N.Y. 611. to enforce an execution issued and delivered to him, as prescribed in the last section, notwithstanding any direction he may receive from the plaintiff, or his attorney.

88 N. Y. 611.

40 N.Y. Super. Ct. (J. & S.) 206.

§ 599. [Am'd 1877.] In an action against bail, is a defence, that an execution, against the property, or ag ist the person, of the defendant in the original action, was not _ssued, as prescribed in section five hundred and ninety-seven of this act; or that it was not issued in sufficient time to enable the sheriff to enforce it; or that a direction was given, or other

fraudulent or collusive means were used, by the plaintiff or his attorney, to prevent the service thereof.

$600. If the defendant in the orignal action, after his discharge upon bail, is imprisoned, either within or without the State, upon a criminal charge, or a conviction of a criminal offence, the court, in which an action against the bail is pending, may, before the expiration of the time to answer, and upon notice to the adverse party, make such an order for the relief of the bail, as justice requires.

§ 601. [Am'd 1877.] Except in an action to recover a chattel, the bail must be exonerated where either of the following events occurs, before the expiration of the time to answer in an action against them:

1. The death of the original defendant.

2. His legal discharge from the obligation to render himself amenable to the process, direction, or proceedings, with respect to which the undertaking of the bail was made.

3. His surrender to the sheriff of the county where he was arrested, as prescribed in this article.

Where either event occurs, after the commencement of the action against the bail, the court may, in its discretion, impose the payment of the plaintiff's costs and expenses, incurred after the return of the execution against the person, as a condition of allowing the exoneration. And the court may, by an order, made upon notice to the adverse party, grant such further time as it deems just, after answer, for the surrender of the original defendant. In that case, his surrender, within the time so granted, has the same effect, as if it had been made before answer.

TITLE II.
Injunction.

ARTICLE 1. Cases where an injunction may be granted; granting and service of an injunction order.

2. Security.

3. Vacating or modifying an injunction order.

ARTICLE FIRST.

CASES WHERE AN INJUNCTION MAY BE GRANTED; GRANTING
AND SERVICE OF AN INJUNCTION ORDER.

2 602. Writ of injunction abolish

ed, and order substituted. 603. Injunction, when the right thereto depends upon the nature of the action. 604. Id.; when the right thereto depends upon extrinsic facts.

605. Restrictions upon injunctions to restrain State officers.

2606. By whom injunction grant-
ed in other cases.

607. Proof necessary to procure
injunction.

608. At what time the order
may be granted.
609. When notice required or
not required. Injunction
pending an application.
610. Order must recite grounds;
service of order.

§ 602. The writ of injunction has been abolished. A temporary injunction may be granted by order, as prescribed in this article.

§ 603. Where it appears, from the complaint, that the plaintiff demands and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff, an injunction order may be granted to restrain it. The case

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22 Week. Dig. 448.

11 Civ. Pro. 310.

31. Hun, 309.

rections, 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.

§ 616. An injunction order shall not be granted, to stay proceedings in an action of ejectment, or for dower, after verdict, report, or decision, unless the party applying therefor gives an undertaking, with sufficient sureties, to pay t the party enjoined, or his representative, all damages and costs, not exceeding a sum specified in the undertaking, which may be awarded to him, in the action wherein the injunction was granted.

§ 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 airected 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 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.

§ 620. [Am'd 1877.] Where special provision is not otherwise made by law for the security to be given upon an injunetion 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.

§ 622. [Repealed 1877.]

§ 623. [Am'd 1877.] The damages, sustained by reason of an injunction, may be 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.

§ 624. Where the defendant enjoined was an officer of a corporation, or joint stock association, or a bailee, agent, trustee, or other representative of another, and the damages sustained by him, are less than the sum specified in the undertaking, the court or the referee may also 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 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.

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§ 626. Where the injunction order was granted without 61 How. Pr. notice, the party enjoined may apply, upon the papers upon 105. which it was granted, for an order vacating or modifying the 24 Hun, 648. injunction order. Such an application may be made, without notice, to the judge who granted the 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.

§ 627. [Am'd 1877, 1879.] Where the injunction order 24 Hun, 648; was granted without notice, or where it was granted upon 34 Id. 549. notice with leave to apply to vacate or modify it, the party enjoined may 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 injunction 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.

§ 628. The granting or denial of an application, made as prescribed in the last section, founded only upon the papers

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upon which the injunction order was granted, does not prejudice a subsequent application, seasonably made founded upon proof, by affidavit, on the part of the defendant. And the granting or denial of either application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint, 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. [Am'd 1883, 1884.] Upon the hearing of an application upon notice to vacate or modify an injunction order, the court or judge may require a new 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. Upon such hearing the court or judge may, where the alleged wrong or injury is not irreparable, and is capable of being adequately compensated for in money, vacate the injunction order upon the defendant's executing an undertaking in such form and amount and with such sureties as the court or judge shall direct, conditioned to indemnify the plaintiff against any loss sustained by reason of vacating such injunction order.

§ 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 of an affidavit.

§ 631. [Repealed 1877.]

§ 632. [Repealed 1877.]

§ 633. [Repealed 1877.]

§ 634. [Repealed 1877.]

TITLE III.

Attachment of property.

ARTICLE 1. Cases where a warrant of attachment may be granted, and proceedings 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 same defendant.

5.

Proceedings after judgment; rights of parties and duties of the sheriff, after the warrant is vacated or annulled, or the attachment discharged.

ARTICLE FIRST.

CASES WHERE A WARRANT OF ATTACHMENT MAY BE GRANTED;
AND PROCEEDINGS UPON GRANTING THE SAME.

635. In what actions a warrant
of attachment may be
granted.

636. What must be shown to
procure the warrant.
637. Warrant in action againt
public officer, etc., for
peculation.

2638. When and by whom the
warrant may be granted.

€39. Affidavits to be filed.
640. Security on obtaining war-

rant.

641. Contents of warrant; to whom directed.

642. Validity of undertaking.

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