Chapter 53. EXTRAORDINARY REMEDIES.

§1. When Writ of Prohibition Proper.—The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.(Code 1849, c. 155, §1; Code 1860, c. 155, §1; Code 1868, c. 110, §1; 1882, c. 153, §1; Code 1923, c. 110, §1.)

§2. Jurisdiction and Venue.—Jurisdiction of writs of mandamus and prohibition (except such as may be issued from the supreme court of appeals) shall be in the circuit court of the county in which the record or proceeding is to which the writ relates. Any such writ may be awarded either by the circuit court or by the judge thereof in vacation, but may be awarded by the supreme court of appeals only in term.(Code 1849, c. 169, §4; Code 1860, c. 169, §4; Code 1868, c. 123, §3; 1872-3, c. 197, §3; 1882, c. 73, §3; Code 1923, c. 123, §3.)

§3. Application for Mandamus or Prohibition.—Application for a writ of mandamus or a writ of prohibition shall be on petition verified by oath, after the party against whom the writ is prayed has been served with a copy of the petition and notice of the intended application a reasonable time before such application is a made.

§4. What Petition to State; Where Presented.—The petition shall state plainly and concisely the grounds of the application, concluding with a prayer for the writ, and shall be presented to the court having jurisdiction or to a judge thereof in vacation, on or before the day designated in the notice of the intended application.

§5. When Writ Awarded.—When the application is made, on proof of notice and service of the copy of the petition as aforesaid, if the defendant fail to appear, or appearing fail to make defense, and the petition states a case a proper for the writ, a peremptory writ shall be awarded with costs.

§6. Method of Defense; Amendment of Petition.—If the defendant appear and make defense, such defense may be by demurrer, or answer on oath, to the petition, or both, such answer to be subject to demurrer by the petitioner. The court may permit amendments to such petition as in other cases, should the demurrer be sustained.

§7. Adjournment.—When the case is before the judge of a circuit court in vacation, he may adjourn it from day to day, or from time to time, until finally disposed of.

§8. Judgment to be Based on Law and Facts; Damages; Costs.—The writ peremptory shall be awarded or denied according to the law and facts of the case, and with or without costs, as the court or judge may determine. Upon the petition and answer, if either party demand a jury, and the proceeding be in a circuit court, the court or judge shall direct such issues of fact, as may be proper, to be tried in term. If a verdict be found or a judgment be rendered for the person filing the petition, on demurrer or by nil dicit, or for want of an answer, he shall recover such damages as the jury may assess, and final judgment thereupon, as well as for any costs awarded as aforesaid, shall be entered and enforced by execution as in other cases.(Code 1849, c. 154, §4; Code 1860, c. 154, §4; Code 1868, c. 109, §4; 1882, c. 109, §4; Code 1923, c. 109, §4.)

§9. Suspension of Proceedings Where Prohibition Applied for.—On petition for a writ of prohibition, the circuit court, or judge in vacation, or the supreme court of appeals, or a judge thereof in vacation, may, at any time before or after the application for the writ is made, if deemed proper, make an order, a copy of which shall be served on the defendant, suspending the proceedings sought to be prohibited until the final decision of the cause.

§10. How Proceedings in Vacation Certified and Entered.—When the proceedings on the petition are had before the judge of the circuit court in vacation, he shall certify the same, and any judgment or order made by him in the case, to the clerk of the court, and they shall be entered by the clerk in the order book on the law side of the court, and have the same force and effect as if had or made and entered in term.

§11. Service of Writ; How Obedience Enforced.—Service of a copy of the order awarding the writ shall be equivalent to service of the writ, and obedience to the writ or order may be enforced by process of contempt in vacation in like manner as in term.

§1. Grounds for Quo Warranto.—A writ of quo warranto may be awarded and prosecuted in the name of the State of West Virginia, at the instance of the attorney general, or prosecuting attorney of any county, in any of the following cases: (a) Against a corporation for a misuse or nonuse of its corporate privileges and franchises, or for the exercise of a privilege or franchise not conferred upon it by law, or where a certificate of incorporation has been obtained by it for a fraudulent purpose, or for a purpose not authorized by law; (b) against a person for the misuse or nonuse of a privilege and franchise conferred upon him by or in pursuance of law; (c) against any person or persons acting as a corporation without authority of law; (d) against any person who shall intrude into or usurp any public office.(1882, c. 109, §6; Code 1923, c. 109, §6.)

§2. Petition; Venue.—Whenever the attorney general or prosecuting attorney of any county is satisfied that a cause exists therefor he may, at his own instance, or at the relation of any person interested, apply by petition to the circuit court, or the judge thereof in vacation, of the county wherein the seat of government is, or of the county wherein the cause, or any part thereof, for the issuing of such writ arose, to have such writ issued, and shall state therein the reason therefor. Whenever such writ is issued at the relation of any person, the petition shall be to the circuit court, or the judge thereof in vacation, or of the county wherein the seat of government is, of the county wherein the cause, or any part thereof, for the issuing of such writ arose, as the relator may elect. Any such writ may be awarded either by the circuit court or by the judge thereof in vacation.(Code 1849, c. 169, §4; Code 1860, c. 169, §4; Code 1868, c. 123, §3; 1882, c. 73, §3, c. 109, §7; Code 1923, c. 109, §7, c. 123, §3.)

§3. Issuing of Writ; Bond for Costs and Expenses.—If, in the opinion of the court, or the judge thereof in vacation, the reasons so stated in the petition are sufficient in law, the court, or judge thereof in vacation, shall award such writ and the same shall be signed by the judge of such court and attested by the clerk thereof. But if such writ be awarded at the relation of any person, it shall not be issued until the relator shall give bond with good security, to be approved by the court or judge, in such penalty as the court or judge shall prescribe, with condition that the relator will pay all such costs and expenses as may be incurred by the State in the prosecution of such writ, in case the same shall not be recovered from and paid by the defendant therein.(1882, c. 109, §8; Code 1923, c. 109, §8.)

§4. Information in the Nature of Quo Warranto.—In any case in which a writ of quo warranto would lie, the attorney general or prosecuting attorney of any county, at his own instance or at the relation of any person interested, or any person interested, may, in the name of the State of West Virginia, apply to any such court or judge thereof in vacation as is mentioned in the second section of this article for leave to file an information in the nature of a writ of quo warranto for any of the causes and against any of the corporations, officers, or persons mentioned in the first section of this article, and he shall, at the time of his application, present to the court or judge the information he proposes to file. If, in the opinion of such court or judge, the matters stated in such information are sufficient in law to authorize the same to be filed, an order shall be made filing the same and awarding a summons against the defendant named therein to answer such information. But if the leave to file such information be asked on the relation of any person, or by any person at his own instance, the summons thereon shall not be issued by the clerk until such relator or person shall give the bond and security required by the next preceding section. A copy of every such information, if not made out and filed therewith, shall be made out by the clerk, and such copy shall be delivered to the officer to whom the summons is delivered to be served, and shall be served on the defendant or one of the defendants named in the summons.(1882, c. 109, §9; Code 1923, c. 109, §9.)

§5. Service of Writ or Summons.—Every such writ or summons shall be served as provided in article two, chapter fifty-six of this Code, and if it be against a corporation, it shall be served on some of the persons mentioned in sections thirteen and fourteen of article three, chapter fifty-six of this Code; and if service thereof cannot otherwise be made upon any defendant named in such writ or summons, it may be made by publication as prescribed in said last named article.(1882, c. 109, §10; Code 1923, c. 109, §10.)

§6. Proceedings After Service of Writ or Summons; Rehearing.—If the defendant named in such writ or information fail to appear after the service thereof as aforesaid, the court may hear proof of the allegations of the petition or information, and if such allegations be sustained, the court shall give judgment accordingly. But if the service be made by publication, the defendant against whom such judgment is rendered, upon giving bond and security as provided in section three of this article, may, at the next term of the court or within such additional time as the court may allow, on petition filed for the purpose, have the judgment against him set aside, and make such defense as he or it may have thereto. If the defendant appear before the end of the term next after he service of the writ or summons, or thereafter before judgment is rendered against him, he may demur or plead not guilty, or both, to such writ, or demur or answer in writing, or both, to such information, and every allegation contained in such information which is not denied by such answer shall be taken as true and no proof thereof shall be required.(1882, c. 109, §11; Code 1923, c. 109, §11.)

§7. Verdict and Judgment.—If upon the trial of such writ or information the defendant be found guilty, or not guilty, of any of the charges therein, the verdict shall be “guilty,” or “not guilty,” as the case may be; but if he be found guilty as to a part of such charges only, the verdict shall be guilty as to such charges and shall particularly specify the same, and as to the residue of such charges the verdict shall be “not guilty.” Against a defendant so found guilty, the court shall give such judgment as is appropriate and authorized by law, and for the costs incurred in the prosecution of such writ or information, including an attorney’s fee of not less than ten nor more than fifty dollars, to be fixed by the court.(1882, c. 109, §12; Code 1923, c. 109, §12.)

§8. Receivership for Property of Dissolved Corporation.—If, by the judgment of the court rendered as aforesaid, a corporation, or pretended corporation, be dissolved, the court may appoint a receiver of the property of such corporation or pretended corporation, as provided in sections one and two, article six of this chapter, and may make all such other orders in relation thereto as may be necessary for the preservation and safe-keeping of such property.(1882, c. 109, §13; Code 1923, c. 109, §13.)

§1. Venue.—Jurisdiction of writs of certiorari (except such as may be issued from the supreme court of appeals, or a judge thereof in vacation) shall be in the circuit court of the county in which the record or proceeding is, to which the writ relates. Any such writ may be awarded either by the circuit court or by the judge thereof in vacation.(Code 1849, c. 169, §4; Code 1860, c. 169, §4; Code 1868, c. 123, §3; 1872-3, c. 197, §3; 1882, c. 73, §3; Code 1923, c. 123, §3.)

§2. When Certiorari Lies.—In every case, matter or proceeding, in which a certiorari might be issued as the law heretofore has been, and in every case, matter or proceeding before a county court, council of a city, town or village justice or other inferior tribunal, the record of proceeding may, after a judgment or final order therein, or after any judgment or order therein abridging the freedom of a person, be removed by a writ of certiorari to the circuit court of the county in which such judgment was rendered, or order made; except in cases where authority is or may be given by law to the circuit court, or the judge thereof in vacation, to review such judgment or order on motion, or on appeal, writ of error or supersedeas, or in some manner other than upon certiorari; but no certiorari shall be issued in civil cases before justice where the amount in controversy, exclusive of interest and costs, does not exceed fifteen dollars.(Const., art. 8, §12; 1882, c. 153, §2; 1889, c. 30, §2; Code 1923, c. 110, §2.)

§3. Contents of the Record Brought up; Proceedings and Disposition of Case on Review.—In every case, matter or proceeding before a county court, council, justice or inferior tribunal, in which a writ of certiorari would lie according to the provisions of the preceding section, the majority of the commissioners composing a court, or the justice or the officer or officers presiding over such council or other inferior tribunal, shall, upon request of either party in a civil case, matter or proceeding, or the defendant in a criminal case, matter or proceeding, certify the evidence, if any, which may have been heard, and sign bills of exceptions, or certificates as provided in section thirty-six, article six, chapter fifty-six of this Code, setting forth any rulings or orders which may not otherwise appear of record. Such certificate of evidence and bills of exceptions or certificates shall be part of the record and as such be removed and returned to the circuit court. The clerk upon receiving such record shall file the same and docket the case, in the same manner that other cases are docketed. Upon the hearing, such circuit court shall, in addition to determining such questions as might have been determined upon a certiorari as the law heretofore was, review such judgment, order or proceeding, of the county court, council, justice or other inferior tribunal upon the merits, determine all questions arising on the law and evidence, and render such judgment, or make such order upon the whole matter as law and justice may require. But all such cases removed as aforesaid from before a justice to the circuit court, wherein the amount in controversy is more than fifteen dollars, and in which the judgment of the justice is set aside, shall be retained in such court and disposed of as if originally brought therein.(1882, c. 153, §3; 1889, c. 30, §3; Code 1923, c. 110, §3.)

§4. Certiorari in Vacation; Habeas Corpus in Aid Thereof.—Such writs may be awarded by the judge of such circuit court in vacation; and, in case of an order abridging the freedom of a person, may be returned and heard and determined by the judge of such circuit court in vacation, if reasonable notice of such hearing shall have been given the other party; and such court or judge may grant a writ of habeas corpus in aid of such certiorari.(1882, c. 153, §4; Code 1923, c. 110, §4.)

§5. Stay of Proceedings in Certiorari; Bond.—A writ of certiorari shall not operate to suspend the judgment or order removed thereby, or proceedings on such judgment or order, except in a criminal case, until the party applying therefor, or some one for him, shall file in the office of the clerk of the circuit court a bond payable to the State of West Virginia, with security approved by such clerk, in a penalty or to be prescribed by the court or judge awarding the writ, conditioned to perform and satisfy such judgment or order as may be rendered or made by the circuit court, and to pay all such damages and costs as may be awarded to any party by such court or judge, and with any further condition which such court or judge may prescribe.(1882, c. 153, §5; Code 1923, c. 110, §5.)

§6. Effect of Such Bond.—When such bond as is mentioned in the next preceding section is filed, the writ of certiorari shall operate to stay all proceedings upon the judgment or order removed by the writ, and all further proceedings before the county court, justice or other inferior tribunal in the case, matter or proceeding in which it was awarded, until the final determination of the matter by the circuit court, except as to any order or sentence abridging the freedom of a person; but the court or judge may let such party to bail, as in other cases.(1882, c. 153, §6; Code 1923, c. 110, §6.)

§1. Jurisdiction.—The writ of habeas corpus ad subjiciendum shall be granted forthwith by the supreme court of appeals, or any circuit court, or any other court given power by any particular statute to grant the same, or any judge of either court in vacation, to any person who shall, by himself or by some one in his behalf, apply for the same by petition, showing by affidavit or other evidence probable cause to believe that he is detained without lawful authority.(Code 1849, c. 156, §1; Code 1860, c. 156, §1; Code 1868, c. 111, §1; Const. 1872, art. 8, §§3, 12, 27; 1872, c. 60, §1; Const. Amend. 1880, art. 8, §§3, 12; 1883, c. 8, §1; Code 1923, c. 111, §1.)

§2. Direction and Return of Writ.—The writ shall be directed to the person in whose custody the petitioner is detained and made returnable as soon as may be. If the writ be ordered by any court or judge other than the supreme court of appeals or a judge thereof, it shall be returnable before the court or judge ordering it, if such court or judge be of the county wherein the petitioner is detained; otherwise, before a proper court or judge of the county wherein the petitioner is detained. If the writ be ordered by the supreme court of appeals or a judge thereof, it may be made returnable either before such court or before a proper court or judge of the county wherein the petitioner is detained.(Code 1849, c. 156, §2; Code 1860, c. 156, §2; Code 1868, c. 111, §2; 1872-3, c. 60, §2; Code 1923, c. 111, §2.)

§3. Bond of Petitioner.—The court or judge granting the writ may previously require bond with security in a reasonable penalty, payable the person to whom the writ is directed, with condition that the petitioner will not escape by the way, and for the payment of such costs and charges as may be awarded against him. It shall be filed with the other proceedings on the writ and may be sued on for the benefit of any person injured by the breach of its condition.(Code 1849, c. 156, §3; Code 1860, c. 156, §3; Code 1868, c. 111, §3; 1872-3, c. 60, §3; Code 1923, c. 111, §3.)

§4. Service of Writ.—The writ shall be served on the person to whom it is directed, or, in his absence from the place where the petitioner is confined, on the person having the immediate custody of him.(Code 1849, c. 156, §4; Code 1860, c. 156, §4; Code 1868, c. 111, §4; 1872-3, c. 60, §4; Code 1923, c. 111, §4.)

§5. Penalty for Disobeying Writ.—If any person on whom such writ is served shall, in disobedience to such writ, fail to bring the body of the petitioner, with a return of the cause of his detention, before the court or judge before whom the writ is returnable, for three days after such service, he shall forfeit to the petitioner three hundred dollars.(Code 1849, c. 156, §5; Code 1860, c. 156, §5; Code 1868, c. 111, §5; 1872-3, c. 60, §5; Code 1923, c. 111, §5.)

§6. Affidavits as Evidence.—At the direction of the court or judge, the affidavits of witnesses taken by either party, on reasonable notice to the other, may be read as evidence.(Code 1849, c. 156, §7; Code 1860, c. 156, §7; Code 1868, c. 111, §7; 1872-3, c. 60, §7; Code 1923, c. 111, §7.)

§7. Hearing and Judgment; Discharge; Remand; Bail; Costs.—The court or judge before whom the petitioner is brought, after hearing the matter both upon the return and any other evidence, shall either discharge or remand him, or admit him to bail, as may be proper, and adjudge the costs of the proceedings, including the charge for transporting the prisoner, to be paid as shall seem to be right.(Code 1849, c. 156, §6; Code 1860, c. 156, §6; Code 1868, c. 111, §6; 1872-3, c. 60, §6; Code 1923, c. 111, §6.)

§8. Facts Proved May be Made Part of Record.—All the material facts proved shall, when it is required by either party, be made a part of the proceedings, which, when they are had in vacation, shall be signed by the judge and certified to the clerk of the court in which the judgment is rendered, and be entered by him among the records of that court.(Code 1849, c. 156, §8; Code 1860, c. 156, §8; Code 1868, c. 111, §8; 1872-3, c. 60, §8; 1883, c. 8, §8; Code 1923, c. 111, §8.)

§9. Powers of Judge in Vacation.—The judge issuing any such writ in vacation, or the judge before whom it is tried, shall have the same power to enforce obedience to the writ, to compel the attendance of witnesses, or to punish contempt of his authority, as a court has; and his judgment on the trial of the writ, when entered of record as aforesaid, shall be considered and be enforced as if it were a judgement of the court among whose records it is entered.(Code 1849, c. 156, §9; Code 1860, c. 156, §9; Code 1868, c. 111, §9; 1872-3, c. 60, §9; Code 1923, c. 111, §9.)

§10. Effect of Judgment.—Any such judgment entered of record shall be conclusive, unless the same be reversed, except that the petitioner shall not be precluded from bringing the same matter in question in an action for false imprisonment.(Code 1849, c. 156, §10; Code 1860, c. 156, §10; Code 1868, c. 111, §10; 1872-3, c. 60, §10; Code 1923, c. 111, §10.)

§11. Review During Recess of Supreme Court.—If, during the recess of the supreme court of appeals, the governor or the president of the said court should think the immediate revision of any such judgment to be proper, he may summon the court for that purpose to meet on any day to be fixed by him.(Code 1849, c. 156, §11; Code 1860, c. 156, §11; Code 1868, c. 111, §11; Const. 1863, art. 6, §8; Const. 1872, art. 8, §3; 1872-3, c. 60, §11; Code 1923, c. 111, §11.)

§12. Disposition of Prisoner and Proceedings Pending Writ of Error.—When the prisoner is remanded, the execution of the judgment shall not be suspended by the writ of error, or suspended for the purpose of applying for one; but where he is ordered to be discharged, and the execution of the judgment to be suspended for the purpose of applying for a writ of error, the court or judge making such suspending order may, in its or his discretion, admit the prisoner to bail until the expiration of the time allowed for applying for the writ of error, or, in case the writ of error be allowed, until the decision of the supreme court of appeals thereon is duly certified.(Code 1849, c. 156, §12; Code 1860, c. 156, §12; Code 1868, c. 111, §12; 1872-3, c. 60, §12; Code 1923, c. 111, §12.)

§13. Writs of Habeas Corpus Ad Testificandum.—Writs of habeas corpus ad testificandum may be granted by any circuit court, or any court of record of limited jurisdiction other than a county court, or any judge thereof in vacation, in the same manner and under the same conditions and provisions as are prescribed by this article as to granting the writ of habeas corpus ad subjiciendum, as far as the same are applicable.(1849-50, c. 32, §1; Code 1860, c. 156, §14; Code 1868, c. 111, §14; 1872-3, c. 60, §14; 1883, c. 8, §14; Code 1923, c. 11, §14.)

§1. Injunction for Protection of Property.—An injunction may be awarded to enjoin the sale of property set apart as exempt in the ease of a husband or parent, under articles eight and nine, chapter thirty-eight of this Code, or to protect any plaintiff in a suit for specific property, pending either at law or in equity, against injury from the sale, removal, or concealment of such property.(Code 1849, c. 179, §1; Code 1860, c. 179, §1; Code 1868, c. 133, §1; Code 1923, c. 133, §1.)

§2. Forthcoming Bond When Removal of Property From State Enjoined.—A court or judge awarding an injunction to restrain the removal of property out of the State may require bond to be given before such officer and in such penalty as it may direct, conditioned to have the property forthcoming to abide the future order or decree of the court, and, unless such bond be given, may order the officer serving its process to take possession of the property and keep it until the bond be given, or until the further order of the court.(Code 1849, c. 179, §8; Code 1860, c. 179, §8; Code 1868, c. 133, §8; Code 1923, c. 133, §8.)

§3. Jurisdiction to Award Injunction.—Jurisdiction of a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specially provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended, and the same may be granted to a judgment of a justice in like manner and with like effect as to other judgments.(Code 1849, c. 179, §4; Code 1860, c. 179, §4; Code 1868, c. 133, §4; Code 1923, c. 133, §4.)

§4. General Jurisdiction of Judge to Grant Injunction.—Every judge of a circuit court shall have general jurisdiction in awarding injunctions, whether the judgment or proceeding enjoined be in or out of his circuit, or the party against whose proceeding the injunction be asked reside in or out of the same.(Code 1849, c. 147, §6; Code 1860, c. 179, §6; Code 1868, c. 133, §6; Code 1923, c. 133, §6.)

§5. Injunction by Supreme Court or Judge Thereof in Vacation.—When a circuit court, or a judge thereof, shall refuse to award an injunction, a copy of the orders entered in the proceedings in court, and the original papers presented to the court or to the judge in vacation, with his order or refusal, may be presented to the supreme court of appeals, or a judge thereof in vacation, who may thereupon award the injunction.(Code 1849, c. 179, §7; Code 1860, c. 179, §7; Code 1868, c. 133, §7; Code 1923, c. 133, §7.)

§6. Injunction by Circuit Court or Judge When Court of Limited Jurisdiction Refuses to Grant it.—When a court of limited jurisdiction authorized to grant injunctions, or a judge thereof, shall refuse to award an injunction, a copy of the orders entered in the proceedings in court, and the original papers presented to the court or to the judge in vacation, with his order of refusal, may be presented to the circuit court of the county in which such court of limited jurisdiction is, or to the judge of such circuit court in vacation, who may thereupon award the injunction.

§7. How Injunction Order to be Certified.—Every order awarding an injunction by a court or judge other than the court or judge in which or before whom it is to be heard shall be directed to the clerk of the court in which it is to be heard.(Code 1849, c. 179, §9; Code 1860, c. 179, §9; Code 1868, c. 133, §9; Code 1923, c. 133, §9.)

§8. Notice and Showing on Application for Injunction.—No injunction shall be awarded in vacation nor in court, in a case not ready for hearing, unless the court or judge be satisfied by affidavit or otherwise of the plaintiff’s equity; and any court or judge may require that reasonable notice shall be given to the adverse party, or his attorney at law, or in fact, of the time and place of moving for it, before the injunction awarded, if in the opinion of the court or judge it be proper that such notice should be given.(Code 1849, c. 179, §3; Code 1860, c. 179, §3; Code 1868, c. 133, §3; Code 1923, c. 133, §3.)

§9. Injunction Bond.—An injunction (except in the case of any personal representative, or other person from whom, in the opinion of the court or judge awarding the same, it may be improper to require bond) shall not take effect until bond be given in such penalty as the court or judge awarding it may direct, with condition to pay the judgment or decree (proceedings on which are enjoined) and all such costs as may be awarded against the party obtaining the injunction, and also such damages as shall be incurred or sustained by the person enjoined, in case the injunction be dissolved, and with a further condition, if a forthcoming bond has been given under such judgment or decree, to indemnify and save harmless the sureties in such forthcoming bond and their representatives against all loss or damages in consequence of such suretyship; or, if the injunction be not to proceedings on a judgment or decree, with such condition as such court or judge may prescribe. The bond shall be given before the clerk of the court in which such judgment or decree is, and in other cases before the clerk of the court in which the suit is wherein the injunction is awarded. If the bond be not given before the summons is issued, the clerk shall indorse thereon that the injunction is not to take effect until the bond is given, and the clerk who afterwards takes the bond shall indorse on the summons that it is given.(Code 1849, c. 179, §10; Code 1860, c. 179, §10; Code 1868, c. 133, §10; 1882, c. 78, §10; Code 1923, c. 133, §10.)

§10. Additional Security.—Any surety in such forthcoming bond, or his personal representative, may move for and obtain an order for other or additional security, in like manner as a defendant in the injunction may do.(Code 1849, c. 179, §11; Code 1860, c. 179, §11; Code 1868, c. 133, §11; 1882, c. 78, §11; Code 1923, c. 133, §11.)

§11. Dissolution of Injunction in Vacation.—The judge of any court in which a case is pending wherein an injunction is awarded may, in vacation, dissolve such injunction, after reasonable notice to the adverse party. His order for dissolution shall be directed to the clerk of such court, who shall record the same in the order book.(Code 1849, c. 179, §12; Code 1860, c. 179, §12; 1870, c. 31.)

§12. Nature of Decree on Dissolution of Injunction Staying Judgment or Decree for Money; Liability of Sureties on Forthcoming Bond.—When an injunction to stay proceedings on a judgment or decree for money is dissolved, wholly or in part, there shall be decreed to the party having such judgment or decree damages, in lieu of interest, at the rate of ten per cent per annum, from the time the injunction took effect until such dissolution thereof, on the amount of principal, interest, and costs due on the judgment or decree, proceedings on which are enjoined, and, if a forthcoming bond has been taken in the case, the amount on which such damages shall be paid shall be the sum due on such bond. And in all cases the court or judge dissolving the injunction shall ascertain and enter in the decree of dissolution the amount of principal, interest, damages and costs, including officer’s fees and commissions due on the judgment or decree, at the date of the dissolution of the injunction, and shall award execution therefor against the defendant in the judgment or decree, proceedings on which were enjoined, or their personal representatives, with interest thereon from that day till paid, and the costs incurred by the defendant in the injunction in defending the same. And if a forthcoming bond has been given in the case, and the same has been or shall be forfeited, the sureties therein shall be liable for the costs incurred by the defendant in the injunction, as aforesaid, and, to the extent of their liability on such forthcoming bond, for whatever sum remains unpaid on the execution so awarded.(Code 1849, c. 179, §13; Code 1860, c. 179, §13; Code 1868, c. 133, §12; 1882, c. 78, §12; Code 1923, c. 133, §12.)

§13. Dismissal of Bill for Injunction.—Where an injunction is wholly dissolved, the bill shall be dismissed with costs, unless sufficient cause be shown against such dismission.(Code 1849, c. 179, §14; Code 1860, c. 179, §14; Code 1868, c. 133, §13; 1882, c. 78, §13; Code 1923, c. 133, §13.)

§1. Appointment of Special Receiver; Bond; Notice.—A court of equity may, in any proper case pending therein, in which funds or property of a corporation, firm or person is involved, and there is danger of the loss or misappropriation of the same or a material part thereof, appoint a special receiver of such funds or property, or of the rents, issues and profits thereof, or both, who shall give bond with good security to be approved by the court, or by the clerk thereof, for the faithful performance of his trust, and for paying over and accounting for, according to law, all such moneys that may come into his hands by virtue of his appointment. But no such receiver shall be appointed of any real estate, or of the rents, issues and profits thereof, until reasonable notice of the application therefor has been given to the owner or tenant thereof. A judge of such court in vacation may appoint such receiver of any such property, except real estate, and the rents, issues and profits thereof.(Code 1868, c. 133, §28; 1882, c. 78, §28; 1919, c. 122, §28; Code 1923, c. 133, §28.)

§2. Appointment of Special Receiver Ordered by Supreme Court of Appeals or Judge Thereof.—When a circuit court, or judge thereof, shall refuse the appointment of a receiver as aforesaid, a copy of the orders entered in the proceedings in court, and the original papers presented to it, or the judge in vacation, with the order of refusal, may be presented to the supreme court of appeals, or a judge thereof in vacation, who may thereupon order the appointment to be made, and cause such order to be certified to the clerk of such circuit court, who shall record the same in his chancery order book, whereupon it shall be the duty of such circuit court or judge to appoint such receiver, and require the bond as hereinbefore provided.(1919, c. 122, §28; Code 1923, c. 133, §28.)

§3. Accounting by Special Receiver.—Any special receiver shall render an account of the funds or property of which he is receiver when ordered to do so by the court wherein the cause in which he is receiver is pending, or by the judge thereof in vacation. Such accounting shall be before such court or judge, or before any commissioner in chancery of such court directed by such court or judge to take and state such account, and shall constitute a part of the proceedings in such cause.

§1. Affidavit; Grounds for Arrest.—An order for the arrest of a defendant in any action or proceeding at law or suit in equity may be made by the court in which the action, proceeding or suit is pending, or by the judge or clerk thereof in vacation, upon the affidavit of the plaintiff or any credible person showing to the satisfaction of the court, or judge or clerk thereof in vacation, the nature and justice of the plaintiff’s claim, the amount which the affiant believes the plaintiff is justly entitled to recover in the action, proceeding or suit, and the existence of some one or more of the following grounds for the arrest of the defendant: (a) That the defendant has removed, or is about to remove, any of his property out of the State with intent to defraud his creditors; or (b) that he has converted or is about to convert his property or any part thereof into money or securities with like intent; or (c) that he has assigned, disposed of or removed his property or any part thereof, or is about to do so, with like intent; or (d) that he has property or rights in action which he fraudulently conceals; or (e) that he fraudulently contracted the debt or incurred the liability for which the action or suit is brought; or (f) that he is about to leave the State and reside permanently in another state or country, without paying the debt or liability for which the action or suit is brought.(Code 1860, c. 151, §33; Code 1868, c. 106, §37; 1882, c. 158, §30; Code 1923, c. 106, §30.)

§2. Entering Order of Arrest; Plaintiff’s Bond.—When sufficient cause shall be shown for the arrest of a defendant as aforesaid, such court, judge or clerk shall make an order directing the defendant to be arrested and held to bail for such sum as the said court, judge or clerk shall think fit, and the plaintiff shall thereupon deliver to the clerk of the court in which the action is pending a bond in a penalty double the amount sworn to, executed by himself or some person for him, with one or more sufficient securities, approved by the clerk, to the effect that the plaintiff will pay the defendant all damages he may sustain by reason of the arrest, should it thereafter appear that the order was wrongfully obtained.(Code 1860, c. 151, §39; Code 1868, c. 106, §38; 1882, c. 158, §31; Code 1923, c. 106, §31.)

§3. Issuing Order of Arrest.—Upon the delivery of the bond mentioned in the preceding section, the clerk shall issue an order for the arrest of the defendant in form or in substance as follows:

(Code 1868, c. 106, §39; 1882, c. 158, §32; Code 1923, c. 106, §32.)

§4. Arrest and Commitment Unless Bond Given by Defendant.—Under such order, the defendant against whom it issues shall be arrested and committed to jail, unless bond be given in the sum specified therein, with sufficient security, conditioned that, in case there shall in the action, proceeding or suit be any judgment, decree or order on which a writ of fieri facias may issue, and within four months after such judgment, decree or order is rendered or made, interrogatories be filed under sections one, two and three, article five, chapter thirty-eight of this Code, with a commissioner of the court wherein such judgment, decree or order is, the defendant will, at the time the commissioner issues a summons to answer such interrogatories, be in the county in which such commissioner resides, and will, within the time prescribed in such summons, file proper answers upon oath to such interrogatories, and make such conveyance and delivery as is required by the said article, or in case of failure to file such answer and make such conveyance and delivery, that the said defendant will perform and satisfy the said judgment, decree or order.(Code 1860, c. 151, §34; Code 1868, c. 106, §40; 1882, c. 158, §33; Code 1923, c. 106, §33.)

§5. Defendant May Give Bond to Officer.—The defendant arrested under such order may, at any time pending the case, give bond to the officer making the arrest. Such bond shall be taken by such officer and returned by him to the clerk of the court from which the order issued, and the same shall be filed in such clerk’s office.(Code 1860, c. 151, §35; Code 1868, c. 106, §41; 1882, c. 158, §34; Code 1923, c. 106, §34.)

§6. Discharge of Defendant or Bond.—If the defendant give such bond, or be committed to jail for want of it, the court in which the case is pending, or the judge thereof in vacation, may, after reasonable notice to the plaintiff, or his attorney, quash the order and discharge the defendant from custody, or discharge the bond, on being satisfied that the order was wrongfully obtained; and, whether the order was so obtained or not, may discharge him from custody when the plaintiff is cast in the action, proceeding or suit.(Code 1860, c. 151, §36; Code 1868, c. 106, §42; 1882, c. 158, §35; Code 1923, c. 106, §35.)

§7. Interrogatories; Discharge of Defendant on Failure of Plaintiff to File Interrogatories, or on Answers, Conveyance and Delivery by Defendant.—While a defendant is in custody, the plaintiff, without having a judgment or decree against the defendant, may file interrogatories to him in like manner as might be done under sections one, two and three, article five, chapter thirty-eight of this Code, if such judgment or decree had been obtained and a fieri facias thereon had been delivered to an officer. And the court wherein the case is pending, or a judge or a commissioner thereof, after reasonable notice to the plaintiff, or his attorney, may discharge the defendant from custody, unless interrogatories be filed within such time as such court, judge or commissioner may deem reasonable; or, though interrogatories be filed, may discharge him when proper answers thereto are filed and proper conveyance and delivery made.(Code 1860, c. 151, §37; Code 1868, c. 106, §43; 1882, c. 158, §36; Code 1923, c. 106, §36.)

§8. Conveyance; Return and Filing of Interrogatories, Answers and Report; Sale of Property.—The officer making the arrest shall be the officer to whom the conveyance shall be made: Provided, That if for any reason it cannot or should not be made to him, it shall be made to such other officer as the court or judge may direct. The interrogatories, answers and report of the commissioner shall be returned to the court in which the case is pending and filed in the papers of such case. And such court may make such order as it may deem right as to the sale and proper application of the estate conveyed and delivered under the preceding section.(Code 1860, c. 151, §38; Code 1868, c. 106, §44; 1882, c. 158, §37; Code 1923, c. 106, §37.)