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§ 141. When the writ is to be returned. To what debts these sections apply.

The Sheriff shall return the writ of attachment with the summons, if issued at the same time; otherwise, within twenty days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto. The provisions of this chapter shall not apply to any suits already commenced, but so far as those suits may be concerned, the Act entitled "An Act to regulate Proceedings against Debtors by Attachment," passed April 22, 1850, shall be deemed in full force and effect.

J. P.

1. The Sheriff's return is conclusive against the plaintiff, and his action must be for a false return. Egery v. Buchanan, 5 Cal. 53.

2. This return cannot be amended where a third party has acquired an interest adverse to the attachment. Nexhall v. Provost, 6 Id. 85; Webster v. Haworth, 8 Id. 21.

3. A mistake in the date of a Sheriff's return may be amended at any time. Ritter v. Scannell, 11 Cal. 238.

CHAPTER V.Deposit in Court.

Sec. 142. Deposit in Court.

143. Appointment of receiver. § 142. Deposit in Court.

When it is admitted, by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs, or is due, to another party, the Court may order the same, upon motion, to be deposited in Court, or delivered to such party, upon such conditions as may be just, subject to the further direction of the Court. N. Y. Code, 244, sub. 5. $ 143. Appointment of receiver.

[1854.] A receiver may be appointed by the Court in which the action is pending, or by a Judge thereof:

1st. Before judgment, provisionally, on the application of either party, when he establishes a prima facie right to the property, or to an interest in the property which is the subject of the action, and which is in possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired;

2d. After judgment, to dispose of the property according to the judgment, or to preserve it during the pending of an appeal; and

3d. In such other cases as are in accordance with the practice of Courts of Equity jurisdiction.

N. Y. Code, $ 244. 1. A County Judge cannot appoint, when.-Under the statute, the County Judge may grant an injunction in cases in the District Court, but he cannot appoint a receiver; at least, not a thing distinct from the injunction. Ruthrauff v. Kresz, 13 Cal. 639.

2. Courts of Equity have the power to appoint receivers, and to order them to take possession of the property in controversy, whether in the immediate possession of the defendant or his agents; and in proper cases, they can also order the defendant's agents or employés, although not parties to the record, to deliver the specific property to the receiver. Er parte Cohen, 5 Cal. 494.

3. Receiver, his powers and duties.-A receiver may employ counsel. Adams v. Woods, 8 Cal. 315.

4. Upon the application of the receiver, in the suit for dissolution, he can obtain the necessary proceedings for procuring a correct application of the balance of a judgment held by the partnership against a third party, after paying the judgment creditor of the partnership. Adams v. Hackett, 7 Cal. 187.

5. Generally, a receiver can pay out nothing except on an order of the Court; but there are exceptions to the rule; nor will he be denied reimbursements in every case in which he neglects to obtain the order, especially in a Court of Equity. Adams v. Wood, 15 Cal. 207.

6. Where a receiver was authorized by order of the Court appointing him to prosecute suits for the recovery of assets of the estate he represents, and certain important mercantile books belonging to such estate being lost, the receiver paid $1,127 for their recovery without an order of Court: Held, that he was entitled to a credit for that sum as part of the necessary or appropriate expenditure of his office. Id.

7. The plaintiff brought an action against a corporation and certain of its trustees, and obtained an injunction and an order for a receiver, referring it to a referee to appoint a suitable person. The trustees, who were defendants, appealed from this order and obtained a stay of proceedings, and meanwhile brought a suit against the same corporation and obtained the appointment of a receiver. The order for a receiver in the first action was subsequently affirmed, and the referee thereupon proceeded under the order and appointed a receiver: Held, that the latter appointment related back to the time of granting the order of reference, and gave the receiver so appointed a right to possession of the assets to the exclusion of the other. Deming v. N. Y. Marble Co., ante, 66.

8. A receiver appointed in supplementary proceedings, having applied to the Court for leave to take and sell property of the judgment debtor, which was covered by a chattel mortgage not yet due, and leave having been refused, subsequently, by direction of the judgment creditor, took possession forcibly; and pending an order to show causc why he should not return it, and restraining him from selling in the meantime, he sold the same in parcels without giving notice of the mortgage : Held, that the judgment creditor and the receiver were liable to the mortgagee in an action for the illegal taking and selling the property without recognition of plaintiff's rights for the amount of the debt and interest, with interest on the aggregate from the time it fell due. Manning v. Monaghan, 1 Bosw. 459.

9. When a receiver should not be appointed.-A Court of Equity has no jurisdiction over corporations for the purpose of restraining their operations


or winding up their concerns. Such Court may compel the officers of the corporation to account for any breach of trust, but the jurisdiction for this purpose is over the officers personally, and not over the corporation; hence, in this case, it was error in the Court below to appoint a receiver and decree a sale of the property and a settlement of the affairs of the corporation. Neall v. Hall, 16 Cal. 148.

10. Where the allegations of a bill are general in their nature, and the equities are fully denied by the answer, such a case is not presented as will justify the appointment of a receiver, the withdrawal of the property from the hands of one intimately acquainted with all the affairs of the concern, and placing it in the hands of another who may not be equally competent to manage the business. Williamson v. Monroe, 3 Cai. 385.

11. In a foreclosure suit, the plaintiff has no right to have a receiver of rents and profits of the mortgaged property appointed pending the litigation. Guy v. Ide, 6 Cal. 101.

12. A receiver should not in general be appointed in such case as to interfere with the rights of creditors having a legal or equitable lien upon the fund, under an executory contract, and the fact that under that contract they may yet become part owners, does not entitle the present owner to a receiver against them. Field v. Ripley, 20 How. Pr. 26.

13. In an action to recover possession of real property, with damages for the wrongful withholding thereof, it is not regular or proper to appoint a receiver of the rents and profits of the property in controversy. I hompson v. Sherrard, ante, 427.

14. The plaintiff cannot demand the appointment of a receiver of property in which he has no interest. Smith v. Wells, 20 How. Pr. 158.

15. That a receiver should not be appointed of property in another State, belonging to a person who has not been brought within the jurisdiction of the Court. Field v. Ripley, 20 How. Pr. 26.

16. The Court will not ordinarily take from a party the custody of his property without notice to him, and giving him an opportunity to show cause against it. ) receiver will not be appointed upon an ex parte application before the appearance of the defendant, or until he has made default, after service of process, except in cases of emergency. Id.

17. Appointment before judgment.—To warrant the appointment of a receiver before judgment under the Code, both a prima facie right to the property which is the subject of the action, and which is in the possession of the adverse party; and also as matter of fact, that the property, or its rents and profits, are in danger of being lost or materially injured or impaired, must be shown. People v. Mayor, etc., of New York, 19 How. Pr. 289.

18. In an action for lands, where the plaintiff shows an apparent right, and the party in possession has no legal title, and the rents and profits are in danger of being impaired, a receiver may be appointed in the first instance. But where some of the detendants in possession are irresponsible, and before the commencement of the action the rents and profits were in danger of being lost, it is no answer to the application for a receiver, that since the commencement of the action the responsible defendants, who clearly have no title, have taken measures for their collection and preservation. The People and Taylor v. Mayor, etc., of New York, 8 Abb. 7.

19. One who is a necessary party to the action, is interested in the fund, and is entitled to be heard in regard to its custody and disposal, pendente lite, must be brought in and have notice before a receiver can, in ordinary cases, be appointed. Field v. Ripley, 20 How. 26.

20. Creditors may attach after bill filed.-In a case where one partner has filed his bill for a dissolution of the partnership and the appointment of a receiver, it seems that until a dissolution has been judicially declared, and a receiver ordered to make a pro rata distribution of the assets among the creditor they are not prevented from resorting to adverse proceedings and thereby gaining a preference. Adams v. Hackett, 7 Cal. 187; Adams v. Woods, 8 Id. 152; 9 Id. 24; Naglee v. Laman, 14 Id. 450.

21. Fees, disbursements, etc.-An order of Court directing a referee to ascertain and report the amount of disbursements and expenses made with or under the direction and authority of the Court,” by a receiver or custodian of money in the hands of the Court, is too narrow to do him justice, and should be so enlarged as to allow for all reasonable and proper expenses incident to the receivership. Adams v. Haskell, 6 Cal. 475.

22. And this, although the claim is for disbursements, etc., incurred by the custodian of the fund, under an appointment as assignee in a proceeding in insolvency, which was afterwards held to be void. Id.

23. Receivers or other custodians of money in the hands of a Court, who are receivers except in name, as they are bound to obey the orders of the Court in their relation to the fund, as well as regards its safe custody as its return, are corelatively entitled to the protection of the Court against loss for disbursements which were necessary and proper, and such as a reasonable and prudent man, acting as receiver, would have been justified in expending. Id.

24. Generally:-Where it appears that the partners, parties to the suit for a dissolution, held a judgment against a third party which was never reduced to the possession nor under the control of the receiver, the appointment of the receiver would not operate as an assignment or transfer of any property not so reduced to possession within a reasonable time. Id.

25. Per TERRY, J.- A fund in the possession of a receiver can only be distributed by the order of the Court in whose custody it is, and no party can, by adverse proceedings, acquire a lien over it. Id.

26. In this case it was error in the Court below to appoint a receiver and decree sale of the property and a settlement of the affairs of the corporation. Neall v. Hill, 16 Cal. 145.

27. Such decree necessarily results in the dissolution of the corporation, and would be doing indirectly what the Court has no power to do directly. Id.

28. A receiver is appointed on behalf of all the parties who may establish rights in the cause, and the money in his hands is in custodia legis. Adams v. Woods, 8 Cal. 306.

29. The transfer to a receiver by order of Court of the effects of an insolvent in the suit of a judgment creditor, is not an assignment absolutely void under the insolvent act of 1852, according to any decision of the Supreme Court, but only void against the claim of creditors. Naglee v. Lyman, 14 Cal. 466.

30. A creditor's action was commenced against the defendants, an insolvent firm, and then negotiations were had for a compromise with creditors, upon an understanding that the plaintiffs should not be prejudiced by the delay necessary. But meanwhile other plaintiff's commenced a second action for the same purpose, and obtained an order referring it to a referee to appoint a receiver. The defendants appealed from this order and stayed the plaintiff's proceedings thereon, and meanwhile suffered the plaintiff in the first suit to obtain a like order, from which they took no appeal, and thereupon a receiver was appointed in the first suit, who entered upon his duties. The plaintiffs in the second suit then moved to vacate or modify the order for a receiver in the first suit: Held, 1st, that the defendants having been guilty of no fraud or collusion, the order should not be vacated; 2d, that no objection being shown to the receiver actually appointed, the order should not be modified. The receiver is the officer of the Court, not the agent of the party; 3d, that the plaintiffs in the second suit were entitled to have been heard on the application for his appointment, and that they should be allowed to take an order so far opening the reference as to permit them to be heard on the subject, and that the referee inquire whether the receiver so appointed is a suitable person to be appointed receiver in both suits, and to hear and determine the objections of such last named plaintiffs to such receiver; and if the referee shall find that he is not a suitable person, then that he nominate to the Court a suitable person to be appointed in his place; and in the meantime, that all proceedings of both parties in the matter of such receivership, except the bearing of the appeal, be stayed. Lattiner v. Lord, 4 E. D. Smith's C. P. R. 183.




CHAPTER I.-Judgment in general.

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SEC. 144. Judgment, definition of.

145. Judgment may be for or against one of the parties.
146. Judgment, may be against one party and action pro-

ceed on to the others.
147. The relief to be awarded to the plaintiff.
148. Action may be dismissed or nonsuit entered.

149. Judgment on the merits, when.
$ 144. Judgment, definition of.

A judgment is the final determination of the rights of the parties in the action or proceeding, and may be entered in term or vacation.

N. Y. Code, $ 245.

1. Final judgment, what is.—The correct rule appears to be that the words “ final judgment" must be understood as applying to all judgments and decrees which determine the particular cause, and that it is not requisite that such judgments should finally decide upon the rights which are litigated. Belt v. Davis, 1 Cal. 138.

2. In this case, the whole scope and object of the suit was to vacate the judg. ment in a former suit, and procure a new trial therein, that being the point in issue. The District Court set aside the judgment, and granted a new trial: Held, that the order setting aside the judgment was a final judgment. Id.

3. The case of Loring v. Ilsley (1 Cal. 28) explained. Id.

4. Every definitive sentence or decision of a Court, by which the merits of a cause are determined, although it be not technically a judgment, or the proceedings are not capable of being enrolled so as to constitute what is technically called a record, is a judgment within the meaning of the law, and as such subject to the revisory jurisdiction of the appellate Court. Id.

5. Judgment having been obtained against A, who was master and one-third owner of a certain bark, for the sum of $2,000, in the Court of First Instance, and his interest having been sold, and purchased by B: Held, that a further judg. ment, rendered in a subsequent proceeding, ordering that the possession of the bark should be delivered to B, was erroneous. Held, also, that such judgment is a final judgment, over which this Court has appellate jurisdiction, under the Act of February 28th, 1850. Loring v. Illsley, 1 Cal. 24; see Belt v. Davis, Id. 134.

6. When the Court has jurisdiction of the question and the parties, its judgment, whether legal or illegal, proper or improper, is valid and binding, until reversed or set aside. Reynolds v. Harris, 14 Cal. 678.

7. A judgment dismissing a suit, in which a temporary injunction had been granted, for want of prosecution, amounts to a determination by the Court that the injunction was improperly granted, and is in effect a final judgment against the defendant. Dowling v. Polack, 18 Cal. 625.

8. Order, as contradistinguished from a final judgment, what is.-As to what constitutes an order, see Loring v. Illsley, i Cal. 27, and Belt v. Davis, Id. 136.

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