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Judgment, how satisfied.
association, corporation or individual, for the benefit of, or debt owing to the defendant. If such officer, debtor or individual refuse to do so, he may be required by the court or judge to attend before him, and be examined on oath, concerning the same, and obedience to such orders may be enforced by attachment.
§ 237. In case judgment be entered for the plaintiff, in such action, the sheriff shall satisfy the same out of the property attached by him, if it shall be sufficient for that purpose;
1. By paying over to such plaintiff the proceeds of all sales of perishable property, and of any vessel, or share or interest in any vessel sold by him, or of any debts or credits collected by him or so much as shall be necessary to satisfy such judgment;
2. If any balance remain due, and an execution shall have been issued on such judgment, he shall proceed to sell under such execution so much of the attached property, real or personal, except as provided in subdivision four of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his hands; and in case of the sale of any rights 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 re-possess 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.
which the attachment
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. The actions herein authorized to be brought by When acthe sheriff, may be prosecuted by the plaintiff, or under his cover notes
&of de direction, upon the delivery by him to the sheriff of an may be
prosecuted undertaking executed by two sufficient suréties, to the by plaintiff effect that the plaintiff will indemnify the sheriff from all tion in damages, costs and expenses on account thereof, not ex- issued. ceeding two hundred and fifty dollars in any one action. Such sureties shall in all cases, when required by the 1849. sheriff justify, by making 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. If the foreign corporation or absent or abscond- Bond to ing or concealed defendant, recover judgment against the attachment plaintiff, in such action, any bond taken by the sheriff, posed of on
judgment except such as are mentioned in the last section, all the for defendproceeds of sales and monies collected by him, and all the property attached remaining in his hands, shall be deliv- 1849. ered by him to the defendant or his agent on request and the warrant shall be discharged, and the property released therefrom.
Discharge $240. Whenever the defendant shall have appeared in of attach. such action, he may apply to the officer who issued the return of
property or attachment, or to the court, for an order to discharge the its preceeds same, and if the same be granted all the proceeds of sales and moneys collected by him, and all the property at- Passed
to defendapt on his appearance in action.
Undertaking on part 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 deÞare 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 resident, the court will order a reference to ascertain the fact, without the un. dertaking. Killian vs. Washington, 2 Code Rep. 78.
§ 242. When the warrant shall be fully executed or return war- discharged, the sheriff shall return the same, with his proceedPngs there proceedings thereon, to the court in which the action was
§ 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
011. Passed 1849.
court as to
money,&c. in court, and other
court, and other provisional remedies.
1. Before judgment, provisionally, on the application of Powers of either party, when he establishes a prima facie right to such receivers
deposit of property which is the subject of the action, and which is in 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.
II. Issues and the mode of trial.
V. Trial by referees.
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
ant to an&wer.