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15. A pleading may be demurred to if upon its face it shows that the court has no jurisdiction over either of the parties, or the cause of action; or that the plaintiff has not the legal capacity to sue, or that there is a defect of parties, or an improper joinder of several causes of action, or that no cause of action or defense is stated in the pleading. The deinurrer must distinctly state the grounds upon which it is based, and in case a demurrer to a pleading is sustained, the court shall in all cases allow the party against whom the judgment on demurrer is rendered a reasonable length of time in which to amend, serve, and file his amended pleadings. All material allegations contained in the complaint, and not denied specifically in the answer thereto, shall be considered as admitted.
16. The cross-demand mentioned in section fourteen shall be one existing in favor of the defendant pr plaintiff, and against a plaintiff or defendant between whom a several judgment might be bad in the action, and arising out of one of the following causes of action:
1st. A cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff's claim, or defendaut's defense, or connected with the subject of the action.
20. In an action arising upon a contract, any other cause of action arising also upon contract and existing at the time of the commencement of the action.
17. It shall not be necessary for a party to set forth in a pleading the items of the account therein alleged, but he shall deliver to the adverse party, within three days after demand thereof, in writing, a copy of the account, or he may be precluded from giving evidence thereof.
18. The plaintiff may unite several causes of action in the same complaint, when they all arise out of
1št. Contracts express or implied.
2d. Claims to cover specific real property, with or without damages for waste or detention thereof, and the rents and profits of the same.
3d. Claims to cover specific personal property, with or without damages for the detention thereof.
4th. Injuries to character, person, or to property; but the causes of action so united shall all belong to one only of these causes of action, and shall affect all of the parties to the action, and not require different places of trial, and be distinctly and separately stated.
19. The court may in furtherance of justice allow amendments to pleadings by adding or striking out the name of a party, or by correctiug a mistake in the name of a party, or any other mistake; it may also enlarge the time for filing an answer, or demarrer, or a demurrer to an answer, or relieve a party from a judgment obtained against him by fraud, or through his mistake, inadvertence, surprise, or excusable neglect.
20. If the defendant appears and answers, the court having both parties before it, shall, before proceeding further, encourage a settlement by mutual agreement or by submission of the case to referees agreed on by the parties; a finding by a majority of whom shall decide the case, and be entered as a judgment by the court, subject to appeal or motion for a new trial, as in cases of other judgments, and upon similar grounds.
21. On application of either party and on advance of the fees, any American citizen residing in the empire of Japan may be compelled to attend as a witness upon any court in the empire, and may be compelled to bring with him, and produce in such court, all necessary books, papers, &c., in his possession or under his control.
22. An order to arrest the defendant in a civil action may be made by the court in which the action is brought, or is pending, whenever it shall be made to appear to the satisfaction of the court, by an attidavit in writing, that the defendant is about to depart from the empire with the intent to defraud his creditors; or that the defendant has, while acting in either an official, fiduciary, or professional character, embezzled or fraudulently misapplied, or converted to his own use, moneys or property of his principal; or when the action is to recover the possession of personal property, when the property or any portion thereof has been concealed, removed, or disposed of, so that it cannot be found, or taken possession of by the marshal; or when the defendant has been guilty of a fraud, in contracting the debt or incurring the obligation for which the action is brought; or in concealing or in disposing of the property, for the taking, detension, or conversion of which the action is brought, or when the defendant has removed or disposed of his property or is about to do so, with intent to defraud his creditors, before making the order, the court shall require the plaintiff to enter into an undertaking, with two sureties, citizens of the United States, and residents of the em. pire of Japan, in a sum of not less than five hundred dollars; conditioned to pay the defendant such cost and damage as he may sustain by reason of the arrest if judgment be in bis favor, not exceeding the amount mentioned in the bond. The sureties shall justify on the bond, by affidavit showing that they are American citizens, residents of the empire, and worth the sum mentioned in the undertaking; which bond shall be at once filed by the court.
23. The order may be made at any time after the summons is issued; it shall be directed to the marshal, and shall direct him to arrest the defendant, and to hold him to bail in a specified sum, and return the order within a time specified to the court that issued it. A copy of the affidavit and order of arrest shall be delivered to the marshal, who, upon arresting the defendant, shall deliver ito him a copy of each ; and shall execute the order by arresting the defendant, and holding him in custody until he shall be discharged according to law.
24. The defendant at any time before execution shall be discharged from arrest, either upon giving bail in the amount stated in the order of arrest, with two sureties, citizens of the United States, who shall justify as such on said bond, and to the further effect, that they are residents of the empire of Japan, and worth respectively the amount stated in the order; conditioned that the defendant will at all times render himself amenable to the process of the court, during the pendency of the action, and to the execution of the judgment therein; or that he will pay the plaintiff any judgment that may be recovered in said action; or the defendant may be discharged from arrest by depositing with the court the amount of money mentioned in the order of
25. In an action brought to recover specific personal property, if the plaintiff make and file with the court, at any time before the defendant appears and answers in the action, an affidavit showing that he, the plaintiff, is the owner or entitled to the possession of the property, (particularly describing it,) that the property is unlawfully detained by the defendant, the value thereof, the cause of the detention to the best of his knowledge, and that the same has not been taken or seized by process issued ont
any court, he shall be entitled to claim the delivery to himself of such property as hereinafter provided.
26. The plaintiff or his attorney may, by indorsement in writing on such affidavit, require the marshal to deliver the property therein mentioned to him, and it shall be the duty of the marshal to whom the same is directed, upon receipt of the affidavit and notice, with a sufficient undertaking executed by the plaintiff with two or more sufficient sureties, to be approved by the marshal, to the effect that they are bound to the defendant in double the value of the property as stated in the affidavit, for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against the plaintiff, the marshal shall forth with take the property into his possession, if he find it in the possession of the defendant, or his agent, and he shall also without delay serve on the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to him personally if he can be found, but if he cannot be found, by leaving the same at his usual or last place of residence. 27. At any time before the delivery of the property to the plaintiff, the defendant may require the return thereof, upon giving to the marshal a written undertaking executed by two or more sufficient sureties, to be approved by the marshal, to the effect that they are bound in double the value of the property as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff
, if such delivery be adjudged; and for the payment to him of such sum as may for any cause be recovered against the defendant. If a return of the property be not so required within three days after the service of the notice on the defendant, and the taking of the property, it shall be delivered to the plaintift, unless it be claimed by some third person, in which case the marshal must at once notify the plaintiff of such claim; and unless the plaintiff, within wo days thereafter, give to the marshal an undertaking, with two sufficient sureties in double the value of the property so claimed as stated in the affidavit, conditioned to save him the marshal harmless against any cost or damages he may be put to by said claimant, if he holds the same or delivers it to the plaintiff, he, the marshal, may surrender such property to the said claimant. 28. In all cases, sureties, to be sufficient on any undertaking, must, by affidavit attached to such andertaking, affirm on oath that they are citizens of the United States, residents of the empire of Japan, and worth respectively the sum for which they therein bind themselves, in property situated in said empire, not exempt from execution, and over and above all of their just debts and legal liabilities.
29. An injunction is a writ or order, requiring a person to refrain from a particular act. This order or writ may be granted by the court in which an action is brought, when it shall appear that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, or when it shall appear that the commission or continuance of some aet during the litigation would produce great or irreparable injury to the plaintiff, or when it shall appear that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done some act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual.
30. The injunction may be granted at the time of issuing the summons, or at any time afterward, before judgment is rendered in the action ; before issuing which, however, the court shall require (except when the people of the United States are a party plaintiff) a written undertaking on the part of the plaintiff, with two or more sufficient securities, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto.
31. The party against whom an injunction is granted may, upon notice to the opposite party, move the court that it be dissolved or modified, and upon the heearing the court may consider the application solely upon the pleadings on file, or may allow the parties respectively to file aftidavits; and if it satisfactorily appears that there is not sufficient ground for the injunction, it shall be dissolved, or it may be modified, if it appears that the extent of the writ granted is too great.
ATTACHMENT. . 32. The plaintiff at the time of the issuance of summons, or at any time afterward, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment as hereinafter provided, in the following cases :
1st. In an action upon a contract, express or implied, for the direct payment of money, which contract is not secured by a mortgage, lion, or pledge upon real or personal property or, if so secured, that such security has been rendered nugatory by the act of the defendant.
20. In an action upon a contract, express or implied, against a defendant not residing in this empire.
33. The court shall issue the writ of attachment upon receiving an affidavit, by or on behalf of the plaintiff, which shall be filed, showing
1st. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-oft's as counter-claims) upon a contract, expressed or implied, for the direct payment of money, and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real or personal property ; or,
2d. That the defendant is indebted to the plaintiff (specifying the amount) over and above all legal set-offs or counter-claims, and that the defendant is a non-resident of this empire; and
3d. That the sum for which the attachment is asked is an actual, bona fide, existing debt, due and owing from the defendant to the plaintiff.
34. Before issuing the writ the court shall require a written undertaking on the part of the plaintiff, in a sum not less than one-half of, nor exceeding the amount claimed by, the plaintiff, with sufficient sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in said undertaking.
35. The writ shall be directed to the marshal of the consulate within the jurisdiction of which the property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within said consular jurisdiction, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, (the amount of which shall be stated as in the complaint in the action,) unless the defendant give him security by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been or is about to be attached, in which case, to take such undertaking, several writs may be issued at the same time, to different marshals of different consulates.
36. The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profit thereon, and all debts due such defendant, and all other property in this empire of such defendant, not exempt from execution, may be attached, and, if judgment be recovered, be sold to satisfy the judg. ment and execution.
37. The marshal to whom the writ is directed and delivered shall execute the same without delay, and if the undertaking mentioned in section 35 be not given, as follows:
1st. Real property, or any interest in or right of possession thereto, of which the defendant may be the owner and in the possession, shall be attached by leaving a cops of the writ with the occupant thereof, or, if there be no occupant, by posting a copy of the writ in a conspicuous place thereon, and filing a copy, together with a description of the property attached, with the United States consul at that port. If the same shall not be in the possession of the defendant, but in that of some other person, the same shall be attached by leaving with such person, or his agent, a copy of the writ, and a notice that such real property, (giving a description thereof,) and any interest therein, belonging to the defendant is attached pursuant to such writ, and posting a copy of said writ and notice in a conspicuous place on said property, and filing a copy of such notice and writ with the United States consul for that jurisdiction.
20. Personal property capable of manual delivery shall be attached by taking it into custody.
3d. Stock or shares, or interest in stock or shares of any corporation or company, shall be attached by leaving with the president, secretary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached in pursuance of such writ.
4th. Debts and credits, and other personal property not capable of manual delivery, shall be attached by leaving with the person owing such debts, or having in his possession, or under his control, such credits, or other personal property, or with his agent, a copy of the writ, and a notice that the debts, owing by him to the defendant, or the credits and other personal property in his possession or under his control, belonging to the defendant, are attached in pursuance of such writ.
38. Upon receiving information in writing from the plaintiff, or his attorney, that any person has in his possession or under his control any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the marshal serve upon such person a copy of the writ, and a notice that such credits or other property or debts, as the case may be, are attached in pursuance of such writ.
39. All persons having in their possession or under their control any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of tbe writ and notice, as provided in the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the marshal, liable to the plaintiff for the amount of such cretlits, property, or debts until the attachment be discharged, or any judgment recovered by him be satisfied.
40. Any person, (a citizen of the United States,) owing debts to the defendant, or having in his possession or under his control any credits or other personal property belonging to the defendant, may be required to attend before the court, and be examined on oath respecting the same. The defendant may also be required to attend, for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery, to be delivered to the marshal on such terms as may be just, having reference to any liens thereon or claiins against the same; and a memorandum to be given of all other personal property containing the amount and the description thereof.
41. The marshal sball make a full inventory of the property attached and return the same with the writ. To enable him to make such return as to debts and credits attached, he shall request, at the time of service, the party owing the debt or having the credit to give him a memorandum stating the amount and description of each, and if such memorandum be refused, he shall return the fact of the refusal with the writ. The party refusing to give the memorandum (if a citizen of the United States) may be required to pay the costs of any proceedings taken for the purpose of obtaining information respecting the amounts and description of such debt or credit.
42. If any property attached be perishable the marshal may sell the same in the manner in which such property is sold on execution. The proceeds and other property attached by him shall be retained by him to answer another judgment that may be recovered in the action unless sooner subjected to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him if the same can be done without suit. The marshal's receipt shall be a sufficient discharge for the amount paid.
43. If any personal property attached be claimed by a third person as his property, the marshal shall notify the plaintiff, or his attorney, of the amount, value, and nature thereof, and by whom claimed, and if within two days after such notice is given, the plaintiff fail to indemnify the marshal by giving him a good and sufficient bond in double the value thereof, with two sufficient securities, securing him against any cost or loss that he may be put to by bolding the same as the property of the defendant, he may release the same to the said claimant, reciting what he has done relative theretó in bis return upon the original writ.
44. If the plaintiff recovers a judgment, the marshal shall satisfy the same out of the property attached by him which has not been delivered to the defendant or a claimant, as herein before provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose
1st. By paying to the plaintiff the proceeds of all sales of perishable property sold by bim, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment.
2d. If any balance remain due and an execution shall have been issued on the judgment, he shall sell, under the execution, so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remains in his hands. Notices of the sale shall be given, and the sale conducted as in other cases of sales on execution.
45. If, after selling all of the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by hin, deducting his fees, to the payment of the judgment, any balance shall remain due, the marshal shall proceed to collect such balance as upon an execution in other cases. Whenever the judgment shall have been paid, the marshal, upon reasonable demand, shall deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment.
46. If the execution remain unsatistied, in whole, or in part, the plaintiff may prosecute any undertaking given by the defendant pursuant to this chapter of this decree; or he may proceed as in other cases upon the return of an execution.
47. If the defendant recover judgment against the plaintiff, any undertaking received in the action, all of the proceedings of sales, and money collected by the marshal, and all of the property attached remaining in the marshal's hands, shall be delivered to the defendant, or his agent, the order of attachment shall be discharged and the property released therefrom.
48. Whenever the defendant shall have appeared in the action, he may, upon reasonable notice to the plaintiff, apply to the court in which the action is pending, for an order to discharge the attachment, wholly or in part, and upon the execution of the undertaking mentioned in the next section, such order may be granted, releasing from the operation of the attachment any or all of the property attached ; and all of the property so released, and all of the proceeds of the sales thereof, shall be delivered to the defendant, upon the justification of the sureties on the undertaking, if required by the plaintiff.
49. Before granting such order the court shall require an undertaking on behalf of the defendant, by at least two sureties, American citizens residents of Japan, to the effect, that in case the plaintiff recover a judgment in the action, defendant will, on demand, redeliver such property attached, so released, to the proper officer, to be applied to the payment of the judgment, and that in default thereof, the defendant and sureties will on demand pay to the plaintiff the full value of the property so released. The court granting such release shall fix the sum for which the undertaking shall be given, and if necessary, in fixing the sum, to know the value of the property released, the same may be appraised by three disinterested persons appointed for the purpose. The sureties may be required to justify before the court, and the property attached shall not be released from the attachment without their justification, if the same be required.
50. The defendant may also at any time before the time for answering expires, apply, on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought that the attachment be discharged, on the ground that the writ was improperly or irregularly issued.
51. When the motion is made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other evidence, in addition to those on which the attachment was made. If upon such application it shall satisfactorily appear that the writ of attachment was improperly or irregularly issued, it shall be discharged.
52. The marshal shall return the writ of attachment with the summons, if issued at the same time, unless the court otherwise direct; in all other cases within twenty days of its issuance, and receipt by him, with a certificate of his proceedings, indorsed thereon.
DEPOSIT IN COURT, 53. When it is admitted by the pleading or examination of a party, that he has in his posession or under his control any money or other thing capable of delivery, which, being the subject of the 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.
54. A receiver may be appointed by the court in which an action is pending:
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 the 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 pendency of an appeal; and
3d. In such other cases as are in accordance with the practice of courts of equity jurisdiction.
OF TRIAL AND JUDGMENT. 55. A judgment is the final determination of the rights of the parties in the action or proceeding.
56. Judgment may be given for or against one or more of several plaintiffs or defend