Page:United States Statutes at Large Volume 31.djvu/1474

 1422 FIFTYSIXTH CONGRESS. Sess. II. Ch. 854. 1901_ M°°i°“f°’ rama 0* Sec. 1557. MOTION ron nETUnN.—On the takin ossession pmpmy goods and chattels by the marshal, by virtue of tli pwrit of i·e&i\g;% the defendant may, on one day’s notice to the plaintiff or his attm-DQ ’ move for a return of the property to his possession; and the eouiit may thereupon inquire into the circumstances and manner of the defendant’s obtaining possession of such property, and if it shall seem just .may order the property to be returned to the possession of the defendant, to abide the final judgment in the action, and .may, in its discretion, require the defendant to enter into an undertaking, with surety or sureties, similar to that required of the plaintiff upon the commencement of the action, and in such case a judgment for the plaintiff shall be rendered against the surety or sureties, as well as against the defend- J ant. If it shall appear that the possession of the property was forcibly or fraudulently obtained by the defendant, or that the possession being first in the plaintiff. was procured or retained by the defendant without authority. from the plaintiff,fthe court may refuse to order the return. The defendant may also, on similar notice, object to the sufficiency of the security in the undertaking, and the court may require additional security, in default of which the property shall bg returned to the defendant, but the action may proceed as if the property had not been taken.. nOQ§l@gg¤“;; §,;g,;j,§;g  1558. Qrrrenris DUTY.·If the defendant shall notify the Officer monon. taking possession of the property, in writing, of his intention to make . either of the motions aforesaid, it shall be the duty of the officer to retain possession of the property until said motion shall be disposed of, provided that the same shall be filed and notice given, as aforesaid, to the plaintiff, or his attorney, within two days thereafter. 5 Damagaa- E Sec. 1559. DAMAGEs.=rWhether the defendant plead and the issue thereon joined is found against him, or his plea is held bad on demurrer, or he makes default after personal service or after publication, the plaintiff’s damages shall be ascertained by the jury trying the issue, where one is joined, or by a jury of inquest, where there is no issue of fact, and the damages shall be the full value of the goods, if eloigned by the defendant, including, in every case, the loss sustained by the plaintiff by reason of the detention, and judgment shall pass for the plaintiff `accordingly., · fcggjgjaaat far da Sec. 1560. JUDGMENT ron DErENDANT.—If the issue be found for ` the defendant,~or the plaintiff dismiss or fail to prosecute his suit, the judgment shall be that the goods, if delivered to the plaintiff, be returned to the defendant with damages, or, on failure, that the defendant recover against the plaintiff and his surety thezdamages by him , sustained, to be assessed by the jury trying the issue; or, where the ` plaintiff dismisses or fails to prosecute his suit, by the jury of inquest. gf; l{,§(,§§,,§*B{{§§;gQ Sec. 1561. If the_ defendant has eloigned the things sued for the Sued fer- · court may instruct the jury, if they find for the plaintiff, to assess such damages as may compel the defendant to return the things. » ,,,§}“’gm°““°* PMD Sec. 1562. JUDGMENT ron rLAiNTrrr·.—’§[`he judgment in such cases A shall be that the plaintiff recover against the defendant the value of the goods as found and the damages so assessed, to be discharged by the return of the things, within ten days after the judgment, with damages for detention, which the jury shall also assess. CHAPTER l1`rrTr‘-THREE. S¤a¤a· SET—OFF.‘ — what cm ba m`OE' SEO. 1563.. WHAT CAN BE SET-QFF.~—MHhH&l debts and claims i1H€l€Y contract between the parties to aj eommon—law action, or between one party and the testator or intestate of the other, or between the testators or intestates of both parties, may be set off against each other by plea in bar, whether said debtsaor claims be of the same or a different