bail is sufficient, he must reduce the examination to writing and annex it to the undertaking, and endorse his allowance thereon, and cause them to be filed.

The defendant at any time before trial or the entry of judgment, may apply to the judge who made the order of arrest, or to the court in which the action is pending upon reasonable notice to the opposite party to vacate the order of arrest, or to reduce the amount of bail. If the application be made upon affidavits on the part of defendant, but not otherwise, the plaintiffs may oppose the same by affidavits or other proofs in addition to those on which the order of arrest was made.

CLAIM AND DELIVERY.

The delivery of personal property sued for, may at the time of issuing summons in an action, or thereafter, before answer in the action, be claimed by plaintiff, under the provisions of the provisional remedy of claim and delivery, and the property claimed may be taken from the defendant.

FORM NO. 98.

AFFIDAVIT FOR CLAIM AND FOR DELIVERY.

[Name of Court.]

[Venue.]

being duly sworn, deposes and says: That he is the plaintiff in this action; [or that he makes this affidavit in behalf of the plaintiff in this action] that the plaintiff in the action is the owner of and entitled to the possession of the following described goods and chattels, namely: [describe them] and which are of the actual value of - dollars;

That said goods and chattels are wrongfully detained by the defendant from plaintiff; that the alleged cause of the detention thereof, according to affiant's best knowledge, information and belief is [state the alleged cause of detention] that said property has not been taken for a tax, assessment or fine, pursuant to a statute, or seized under an execution or an attachment against the property of the plaintiff [or that said property has been seized under an execution [or an attachment] against the property of the plaintiff, and that by statute it is exempt from such seizure.]

[Jurat.]

Signature.

The attorney of the plaintiff may, by an endorsement in writing upon this

affidavit, require the sheriff of the county where the property is, to take the property from the defendant, and which endorsement may be in the following form:

FORM NO. 99.

REQUIREMENT THAT THE SHERIFF TAKE PROPERTY.

To the sheriff of the county of

I hereby require you to take the personal property mentioned and described in the within affidavit from the defendant named therein.

[Date.]

G H,

Attorney for Plaintiff.

Upon the receipt of the affidavit and requirement in writing endorsed thereon, and a written undertaking executed by two or more sufficient sureties, approved by the sheriff, the sheriff must forthwith take the property described in the affidavit, if it be in the possession of the defendant, or his agent. This undertaking, which is to be approved by the sheriff, may be in the following form:

FORM NO. 100.

UNDERTAKING FOR THE TAKING OF SUCH PROPERTY.

[Name of Court.]

An affidavit showing the plaintiff in this action to be entitled to the possession of the personal property therein described having been made, and an endorsement thereon in writing having been made and signed by the attorney for the plaintiff requiring the sheriff of the county of in this state, to take said personal property from C D, the defendant in said action; now, therefore, in consideration of the premises, and that said sheriff take said personal property from the defendant, we,

and

undertake to the effect that we are bound to the defendant C D in the sum of - dollars [double the value of the property stated in the affidavit] and promise the defendant that plaintiff will prosecute the above entitled action, and will return to the defendant the property described in the affidavit made to procure the taking of said property by said sheriff, if return

thereof be adjudged, and will pay to the defendant such sum as may for any cause be recovered against the plaintiff.

[Date.]

Signature.

Affidavit of sureties showing their sufficiency, as in form No. 131, should be made by the sureties on the undertaking.

The sheriff, on recieving the undertaking, if he approve it, should endorse such approval thereon as follows:

FORM NO. 101.

APPROVAL OF UNDERTAKING BY SHERIFF.

I approve of the within undertaking, both as to its form and as to the sufficiency of the sureties who executed the same. [Date.]

Signature of Sheriff.

on the

can be

The sheriff, on taking the property, should without delay, serve defendant, a copy of the affidavit, of the endorsement thereon, and a copy of the undertaking, by delivering such copies to him personally if he found, or to his agent from whose possession the property is taken, or if neither can be found, then by leaving the same at the usual place of abode of either, with some person of suitable age and discretion; or if neither has any known place of abode, then by putting them in the nearest postoffice, directed to the defendant.

The defendant within two days after such service may give notice to the sheriff that he excepts to the sufficiency of the sureties to the undertaking, which may be in the following form:

FORM NO. 102.

EXCEPTION TO THE SUFFICIENCY OF SURETIES.

[Name of Court.]

You will take notice that the defendant in this action excepts to the sufficiency of the sureties to the undertaking made in this action, and which has been approved by you.

[Date.]

[Address to sheriff.]

Signature of Defendant.

When the defendant excepts to the sufficiency of the sureties, they may justify on like notice and in like manner, as the sureties justify upon bail on arrest. (See form No. 97.)

Should the defendant not except to the sufficiency of such suretles, he may at any time before the delivery of the property to the plamuff in the action. require the sheriff to return to the defendant the property so taken on giving an undertaking, which may be in accordance with the following form:

FORM NO. 103.

UNDERTAKING FOR THE RETURN OF SUCH PROPERTY TO DEFENDANT.

[Name of Court.]

The property which is described in the affidavit of the plaintiff in this action as [describe the property as in such affidavit] having been taken from said defendant C D by the sheriff of the county of in this state, and said defendant having

required the return of said property to him,

and

Now, THEREFORE, in consideration of the premises, and to procure the return of said property to said defendant, we, the undersigned, undertake to the effect that they are bound to A B, the plaintiff in the action, in the sum of — dollars [being double the actual value of said property as stated in the affidavit of plaintiff] and promise plaintiff that defendant will deliver said property to said plaintiff, if such delivery be adjudged, and will pay to him such sum as may for any cause be recovered against the defendant. [Date.]

Signatures.

The defendant's sureties must, unless their justification be waived by plaintiff, upon notice to the plaintiff, of not less than two nor more than five days, justify before a judge or county clerk in like manner as upon bail on arrest. (See form No. 97.)

The property so taken by the sheriff from the defendant or his agent, and while in the possession of the sheriff, may be claimed by a third person, who makes and serves on the sheriff an affidavit showing his right to the same, and which may be according to the following form:

FORM NO. 104.

CLAIM OF PROPERTY BY THIRD PERSON.

[Name of Court.]

[Venue.]

E F being duly sworn, says: That he is the owner of [or has the right to the possession of] [describe the property] which has been taken possession of by you as sheriff, under a writ of attachment as such in the above entitled action, and that such ownership [or right of possession] is on the grounds that [state

the grounds of such ownership, or right of possession] and affiant claims said property on said grounds.

[Jurat.]

E F.

Should such claim be so made, the sheriff is not bound to keep the property or deliver the same to the plaintiff unless plaintiff give to the sheriff, on demand by the sheriff on plaintiff or his agent, an undertaking of indemnity by two sufficient sureties, which may be in accordance with the following form:

FORM NO. 105.

UNDERTAKING ON BEHALF OF PLAINTIFF ON A CLAIM TO PROPERTY BY A THIRD PERSON.

[Name of Court.]

The plaintiff in this action having claimed possession of the following property, [describe it] and the plaintiff by proceedings in this action having caused J K, the sheriff of the county of in this state, to take said property from the possession of the defendant C D, and one E F having claimed that he is the owner [or has the right of possession] of such property, and having made an affidavit that he is the owner [or has the right of possession] thereof, and having served the same on J K, said sheriff, and J K, said sheriff, having demanded that he be indemnified against said claim of said E F,

NOW THEREFORE, we,

and

in consideration of the premises, and to indemnify J K, said sheriff, from loss by reason of said claim, undertake in the sum of dollars, and promise J K, said sheriff, that A B, the plaintiff in said action, will indemnify J K, said sheriff, against said claim, and against all loss and damage he may sustain by reason thereof; and if said plaintiff fail to do so, we will pay to said J K, all loss and damage he may sustain by reason of such claim, not exceeding said sum of dollars.

[Date.]

Signatures.

If no such claim be made, or if made, if such undertaking of indemnity be given, and if the defendant does not claim a return of the property within five days after notice of the taking of the property by the sheriff, by giving the proper undertaking for that purpose; or if the return be so required, but the sureties on such undertaking do not justify on notice, the sheriff must deliver the property to the plaintiff upon receiving the fees of the sheriff for the taking of the property, and his necessary expenses in keeping the same.