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Undertaking

fendant. Passed 1849.

tached remaining in his hands, shall be delivered or paid by him to the defendant or his agent and released from the attachment.

§ 241. Upon such application, the defendant shall depart of de- liver to the court or officer an undertaking executed by

at least two sureties, resident and freeholders 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.

The proper method of obtaining redress for any irregularity or impropriety in issuing it, is by a special motion to the court, and not by appeal. Morgan vs. Avery, 7 Barb. 656.

If defendant has been arrested as a non-resident, and claims to be a resi. dent, the court will order a reference to ascertain the fact, without the un. dertaking. Killian vs. Washington, 2 Code Rep. 78.

$ 212. When the warrant shall be fully executed or return war- discharged, the sheriff shall return the same, with his imgs there- proceedings thereon, to the court in which the action was

brought.

§ 243. 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.

When sheriff to rant and

on. Passed 1849.

Sheriff's fees.

Passed 1849.

CHAPTER V.

court as to

1951.

Provisional Remedies.
SECTION 244. Powers of court as to receivers, deposit of money, &c., in

court, and other provisional remedies.
§ 244. [Sec. 200.] A receiver may be appointed:

1. Before judgment, provisionally, on the application of Powers of either party, when he establishes a prima facie right to such receivers property which is the subject of the action, and which is in in court, the possession of an adverse party, and the property, or its provisional rents and profits, are in danger of being lost or materially Amended 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.

The court may grant the other provisional remedies now existing according to the present practice except as otherwise provided in this act.

When it is admitted by the pleading or examinatian 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 of money or other thing, 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 thing and deposit or deliver 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.

When a receiver will be appointed to take the effects of a corporation Como and others vs. Gray and others, 4 How. 166, and cases there cited.

See Supreme Court Rule 81.

TITLE VIII.
Of the trial and judgment in civil actions.
CHAPTER I. Judgment upon failure to answer.

II Issues and the mode of trial.
III. Trial by jury.
IV. Trial by the court.

V. Trial by referees.
VI. The manner of entering judgment.

CHAPTER I.
Judgment upon failure to answer.
SECTION 245. Judgment, what.

246. Judgment on failure of defendant to answer,

247. Judgment on frivolous demurrer, answer or reply. Judgment, § 245. [Sec. 201.] A judgment is the final determinawhat,

tion of the rights of the parties in the action. Judgment § 246. [Sec. 202.] Judgment may be had, if the defendof defend- ant fail to answer the complaint, as follows:

1. In any action arising on contract, for the recovery Amended, of money only, the plaintiff may file with the clerk, proof 1849, 1851.

of personal service of the summons and complaint, on one or more of the defendants, or of the summons, according to the provisions of section 130, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against

on failure

ant to answer.

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the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appearance in the action he shall be entitled to five days notice of the time and place of such assessment.

2. In other actions the plaintiff may, upon the like proof apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days notice of the time and place of application to the court for the relief demanded by the complaint.

3. In actions where the service of the summons was by publication, the plaintiff may in like manner apply for judgment and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff or to any one for his use, on [NOTES.]

7

account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, aud shall succeed in such defence.

It is unnecessary enter an order for default in not answering. Watson vs. Brigham, 3 How. 290.

The clerk in ascertaining the amount of plaintiff's recovery, should file his report with the judgment roll. Squire agt. Elsworth and others, 4 How. 77.

Where the complaint contains several counts, and the answer denies only a part, the plaintiff may have judgment on those counts not denied. Tracy and others agt. Humphrey, 5 How. 155.

Where defendant has appeared but not answered, he is not entitled to notice of assessment. Where costs are adjusted without notice, it is the ad. justment of costs only that is irregular. Dix agt. Palmer and Schoolcraft, 5 How. 233; Rickards vs. Swetzer, 3 How. 413.

Supreme Court, Rule 91. Judgment § 247. If a demurrer, answer, or reply be frivolous, the lous de- party prejudiced thereby, upon a previous notice of five

days may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.

On overruling a demurrer to a complaint as frivolous, leave to answer will not be given without an affidavit of merits. Appleby vs. Elkins, 2 Sand. 673.

No affidavit need be served with the notice of motion for judgment. Darrow agt. Miller, 5 How. 247.

The decision of the motion under this section is a judgment, not an order. King agt. Stafford and Maxwell, 5 How. 30.

It is for the court, not a party, to decide whether the pleading is frivo. lous. Hartness and others vs. Bennett, 3 How. 289; De Witt ads. Swift & Waldon id. 280.

on frivo

murrer answer or reply.

Passed 1849.

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