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or shares in the stock of a corporation or association, the sheriff shall execute to the purchaser a certificate of sale thereof and the purchaser shall thereupon have all the rights and privileges in respect thereto which were had by such defendant.
3. If any of the attached property belonging to the defendant, shall have passed out of the hands of the sheriff without having been sold or converted into money, such sheriff shall repossess himself of the same, and for that purpose shall have all the authority which he had to seize the same under the attachment, and any person who shall wilfully conceal or withhold such property from the sheriff, shall be liable to double damages at the suit of the party injured.
4. Until the judgment against the defendant shall be paid, the sheriff may proceed to collect the notes and other evidences of debt, and the debts that may have been seized or attached under the warrant of attachment, and to prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment.
When the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the attached property or the proceeds thereof.
$ 238. When action to recover notes, &c., of defendant, may be prosecuted by plaintif' in the action, in which the attachment issued.
The actions herein authorized to be brought by the sheriff, may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff from all damages, costs, and expenses on account thereof, not exceeding two hundred and fifty dollars in anyone action. Such sureties shall, in all cases, when required by the sheriff, justify by making an affidavit that each is a householder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities.
$ 239. Bond to sheriff on attachment, how disposed of, on judgment for defendant.
If the foreign corporation, or absent, or absconding, or concealed defendant, recover judgment against the plaintiff in such action, any bond taken by the sheriff, except such as are mentioned in the last section, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered by him to the defendant, or his agent, on request, and the warrant shall be discharged, and the property released therefrom.
$ 240. Discharge of attachment, and return of property or its proceeds to defendant, on his appearance in action.
Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same, and if the same be granted, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered or paid by him to the defendant or his agent, and released from the attachment.
$ 241. Undertaking on the part of the defendant.
Upon such application, the defendant shall deliver to the court or officer an undertaking executed by at least two sureties, resident and freebolders in this State, approved by such court or officer, to the effect that the sureties will,on demand, pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint.
a. Where a party has been attached as a non-resident, he may move to have the attachment discharged on the ground of his being a resident, and the court will grant a reference to ascertain the fact, without the undertaking required by this section. Killian v. Washington, 2 Code Rep., 78.
b. By a section of the code of Mississippi it is enacted, “That attachments shall hereafter be repleviable at any time before final judgment, on the appearance of such defendant, and his execution of a bond with sufficient security, payable to the plaintiff, in a sum double the value of the property altached, and conditioned to have said property forthcoming to abide the order or decree of the court to which said writ of attachment shall be returnable ; or, in default thereof, to pay and satisfy, to an extent not exceeding the value of said property, such order or decree of said court." Hutch., 819. Under this provision, where an attachment was served, and the property attached was replevied and restored to the defendant upon his giving the statu• tory bond to have it forthcoming to abide the order of the court, and before the judg. ment in the attachment suit a judgment against the defendant was obtained by an. other person, and levied on the property which had been attached, the court held that the attaching creditor had the prior lion, and would be entitled to the proceeds of the sale of the attached property, his judgment having been rendered before the sale ; and that the execution of the replevin bond did not discharge the lien created by the levying of the attachment. Grey v. Perkins, 12 Sme. & M., 622.
c. In an action on a bond given on the discharge of a foreign attachment, the debtor is not a competent witness for the defendant, inasmuch as he is substantially
the real party. In such action it is not necessary for the creditor to establish a claim exceeding $100. He can recover on the bond any sum that he can prove to be justly owing to him from his foreign debtor. Thompson v. Dickerson, 1 Code Rep. N. S. 213 ; 12 Barb., 108.
a. In an action on a bond given to obtain the release of property seized under an attachment regularly issued against a person as a non-resident debtor, the defendants are estopped from denying that the person proceeded against was a non-resident. Haggart v Morgan, 1 Selden, 422.
$ 242. When sheriff to return warrant and proceedings thereon.
When the warrant shall be fully executed or discharged, the sheriff shall return the same with his proceedings thereon, to the court in which the action was brought.
$ 243. Sheriff's' fees.
The sheriff shall be entitled to the same fees and compensation for services, and the same disbursements, under this title, as are allowed by law for like services and disbursements under the provisions of chapter five, title one, and part two of the revised statutes.
6. The chapter of the revised statutes here referred to, treats" Or title to property, real and personal, transmitted or acquired by special provisions of law.” 2 R. Š., 3d ed., 62. The title referred to treats of the assignment of the estates of nonresident, absconding, insolvent, or imprisoned debtors. The fees allowed to sheriffs are prescribed by 2 R. S., 3d ed., 735, and Laws of 1850, p. 404; for which, see note to section 215, on page 302, ante.
Section 244. Powers of court as to receivers, deposit of money, &c., in court, and
other provisional remedies.
$ 244. [200.) (Amended 1851-1852.)-Powers of court as to receivers, deposit of money, &c., in court, and other provisional remedies. A receiver may be appointed,
, 1. Before judgment, on the application of either party, when he establishes an apparent right to 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 ;
2. After judgment, to carry the judgment into effect ;
3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment;
4. In the cases provided in this code, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights;
5. In such other cases as are now provided by law, or may be in accordance with the existing practice, except as otherwise provided in this act.
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 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 to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court.
Whenever, in the exercise of its authority, a court shall have ordered the deposit or delivery or conveyance of money or other property, and the order is disobeyed, the court besides punishing the disobedience, as for contempt, may make an order, requiring the sheriff to take the money or property, and deposit, deliver, or convey it in conformity with the direction of the court.
When the answer of the defendant admits part of the plaintiff's claim to be just, the court on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a provisional remedy.
a. This section, before the amendment of 1851, was as follows: "Until the legislature shall otherwise provide, the court may appoint receivers, and direct the deposit of money or other thing in court, and grant the other provisional remedies Dow existing, according to the present practice, except as otherwise provided in this act.”:
b. The amendment of 1852, consisted in striking out from subdivision 1 the word provisionally," after the words, " before judgment,” and the word "such ” after the
words " right to." Striking out from subdivisiou 5, the words," the court may grant the other provisional remedies now existing according to the present practice, except as otherwise provided in this act." Substituting in subdivision 1, the words
an apparent” for “a prima facie,” and in subdivision 2 the word " property' for " thing," and inserting in subdivision 5 the words“ or conveyance or convey."
4. As to this section, before amendment of 1851, it was observed: “The code has not, in terms, and I think not in spirit, altered the practice in the appointment of receivers, so far as notice to the party to be affected is concerned.” By section 244, the court is authorized to appoint receivers “ according to the present practice," that is, the practice of the supreme court in equity in force at the time of the adoption of the code, which was the same as that of the late court of chancery. By, that practice, a receiver could not be appointed without notice to the party interested, except under peculiar circumstances, demanding immediate action, to be made to appear upon the papers upon which the application was made. 1 Paige, 17; 2 ib., 438—450 ; 8 ib., 373–481. And in such cases, the receiver was appointed for the protection of property, pendente lite; and the order did not assume to make a final disposition of the property without a hearing of the parties.” Per Allen, J., in Kemp v. Harding, 4 Pr. R., 178; Dorr v. Noxon, 5 Pr. R., 29. And see note to sec. tion 298-178.
b. The writ of supplicavit has not ceased to exist, as a provisional remedy. Per Edmonds, J., in Forrest v. Forrest, 5 Pr. R., 121.
C. A receiver is an officer of the court. He cannot be appointed until a suit is commenced. Anon. 1 Atk., 489—except in cases ol' idiots and lunatics. Ex parte Whitefield, 2 Atk., 315,
d. A special receiver appointed in a cause to take charge of the fund in dispute, is an officer of the court and entitled to the instructions of the court, as to his duty under an order in the cause respecting payment out of such fund. Curtis v. Leavitt, 1 Abbott, 274.
e. An order to show cause why a receiver should not be appointed, served before the action is commenced, is irregular. Kattenstroth v. The Astor Bank, 2 Duer, 632
f. Formerly, a master in chancery could not be a receiver (6 Ves., 427), nor a solicitor in the cause, or under a commission of lunacy (2 Mer., 452); nor the next friend of an infant plaintiff (2 Mad., 64), nor a trustee (8 Ves., 72 ; 11 ib., 363; 15 ib., 584); but on the voluntary dissolution of a corporation, one of its officers might be appointed receiver. (8 Paige, 385; 3 Edw. Ch. R., 385.) But upon proceedings against an insolvent bank, one of its officers could not be receiver. (1 Paige, 511; 8 ib., 383).
g. A receiver had to be prayed for, in the bill, under the former practice. 3 Atk. 689; 1 Molloy, 29.
h. Upon a motion for a receiver, the merits are not inquired into. Such motion relates only to the preservation of the property in controversy. 4 Wend.,
i. Where there are no persons authorized to tako charge of and conduct the affairs of a corporation, a receiver will be appointed to take charge of the effects of the company and preserve them for the benefit of the creditors and stockholders generally. Lawrence v. Greenwich Fire Ins. Co., 1 Paige, 587.
j. And a receiver will be appointed, where a fraud is shown in the defendant and the fund is in danger of being wasted or misapplied. Podmore v. Gunning, Simons, 485; 1 Barb. Ch. R., 664; 1 Hopk., 429; 3 John. Ch., 48.
k. A receiver also will be appointed to prevent the removal of property beyond the jurisdiction of the court.
l. And a receiver will be appointed as against a defendant, who is out of the jurisdiction of the court. Gibbons v. Mainwaring, 9 Simons, 77; Tanfield v. Irvine, 2 Russ., 149.
m. A receiver could not bring ejectment, without leave of the court. 1 Ves. jun., 165; 3 Bro. C. C., 88; 16 Wend., 410. Nor could such an action be brought against him, without leave of the court. 9 Ves. jun., 335. Nor could he make any payment. 1 ib., 85.