Obrázky stránek

issuing, but the usual law stationers' form, in which such attachment is treated as process running in the name of the judge, and signed by him, is wrong. An amendment was, however, allowed. These directions must therefore be strictly followed in all cases, the judge's allowance being first obtained, and the paper afterwards sealed in the clerk's office in the ordinary form. If more than one warrant is required, duplicates should be prepared, and the judge's signature and seal of the court obtained thereto.

The warrant, when obtained, must be lodged with the sheriff of the county, the affidavits on which it was issued being filed with the clerk of the court.

The duties of the sheriff thereon, are thus prescribed by sections 232 to 236, inclusive.

§ 232. The sheriff to whom such warrant of attachment is directed and delivered, shall proceed thereon in all respects, in the manner required of him by law in case of attachments against absent debtors; shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action; and shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits, and effects of the defendant. The sheriff may also take such legal proceedings, either in his own name or in the name of such defendant, as may be necessary for that purpose, and discontinue the same, at such times and on such terms as the court or judge may direct.

§ 233. If any property so seized shall be perishable, or if any part of it be claimed by any other person than such defendant, or if any part of it consist of a vessel, or of any share or interest therein, the same proceedings shall be had in all respects, as are provided by law upon attachments against absent debtors.

§ 234. The rights or shares which such defendant may have in the stock of any association, or corporation, together with the interest and profits thereon, and all other property in this state of such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution.

§ 235. The execution of the attachment upon any such rights, shares, or any debts or other property incapable of manual delivery to the sheriff, shall be made by leaving a certified copy of the warrant of attachment with the president or other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on.

§ 236. Whenever the sheriff shall, with a warrant of attachment, or execution against the defendant, apply to such officer, debtor, or individual, for the purpose of attaching, or levying upon such property, such officer, debtor, or individual, shall furnish him with a certificate under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any incumbrance thereon, or the amount and description of the property held by such 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 attach


The statutory provisions, under the law in cases of attachment against absent debtors, will be found as above, at 2 R. S. 1 to 16 inclusive. See, also, the works on the old practice, in relation to the proceedings under these provisions, which are essentially the same as those under the Revised Statutes, with this exception, that the machinery of trustees, as thereby provided, is now swept away, and the sheriff alone acts in the matter.

Where legal proceedings may be necessary, under the provisions of sec. 232, the same may be prosecuted by the plaintiff himself, if thought advisable, under the following power, conferred by sec. 238:

§ 238. 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 any one action. Such sureties shall, in all cases, when required by the 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.

The sheriff, having thus seized upon all the available property of the defendant, holds it in deposit, to abide the event of the suit, the plaintiffs lien taking precedence of any subsequent process lodged with him.

In Frost v. Willard, 9 Barb. S. C. R. 440, an attachment, issued against goods in the hands of third parties, who had a claim to property in part thereof, and a lien on the remainder for ad

vances, was held to have been bad as against those parties, and that they were entitled to recover, to the full extent of their lien.

It is, however, competent for the defendant, at any period during the pendency of the action, to appear and apply for a discharge of the attachment, on giving security to the plaintiff. The provisions of the Code in this respect, are contained in sections 240 and 241, which run as follows:

§ 240. 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 attach


§ 241. Upon such an application, the defendant shall deliver 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 suretics 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 application for this purpose must be made on the usual notice, and a copy of the undertaking should be served with the notice or order to show cause. Where, however, the attachment has been obtained upon a false statement, it seems the court will not require the security here prescribed, on moving to discharge it.—Killian v. Washington, 2 C. R. 78. The attachment had there been obtained on the ground of non-residence, and the defendant applied to discharge it, on the ground that he was in fact a resident, under which circumstances the court ordered a reference, under subdivision 3 of section 271, to ascertain the fact, without requiring any undertaking to be given.

In Conklin v. Dutcher, 5 How. 386, 1 C. R. (N. S.) 49, it was held by the general Term of the 6th district, in direct opposition to Morgan v. Avery, that additional affidavits cannot be read on either side, on a motion to set aside an attachment. It cannot be set aside at special term, except for irregularity ab initio. The defendant has only "two modes of getting rid of it, where it has been improvidently granted: 1. By applying to the judge to vacate his own order, sec. 324. 2. By appeal to the general

Term, under sec. 349, subdivision 1. But, in neither mode, can opposing affidavits be used by the defendant, nor can additional affidavits be used by the plaintiff. In this case, the defendant has pursued neither of these modes, and is without remedy."

"The Code, in allowing the process," says the learned judge in a previous part of his decision, "evidently intended it in the nature of bail, and the defendant can, at any time before final judgment, get the property discharged, by giving an undertaking for the payment of any judgment which may be recovered; sec. 240, 241. The entire omission of any other mode of discharging the attachment, is quite conclusive that the legislature did not intend that conflicting affidavits should be received for that purpose, especially as the legislature carefully provide for the reception of such affidavits, in two of the provisional remedies in this same Code ;" and sec. 204 and 205, relative to arrest, and 225 and 226, to injunction, are then cited.

The decision in Morgan v. Avery, above cited, is, however, in distinct opposition to these views, and has also the additional authority of being confirmed by the general Term. The power of the special term to entertain a motion testing the propriety of issuing an attachment, is there distinctly asserted; and it is as distinctly held that, on such an application, the plaintiff will be allowed to introduce additional affidavits, and that, not merely in answer to those of the defendant, but also in support of the original attachment; this view being grounded on the fact, that attachment is in the nature of process, and as such, controllable by the court in all respects.

In Camman v. Tompkins, and Gilbert v. Tompkins, 1 C. R. (N. S.) 12 & 16, the same conclusion is maintained, and it was distinctly held that, where the defendant moves to discharge the attachment on affidavits, counter affidavits may be used by the plaintiff to support his case. "It is only when such a motion is made on the original affidavits alone, that the plaintiff is precluded from strengthening his case by amendments or additions."

In St. Amant v. Beixcedon, 3 Sandf. S. C. R. 703, 1 C. R. (N. S.) 104, the general Term of the superior court fully confirmed the authority of Morgan v. Avery on these points, and stated, that "they entertain no doubt as to the right to introduce supplemental affidavits. The cases under the Code are different from those which have arisen under the Revised Statutes, where the

jurisdiction of the court depended upon the facts set out upon the affidavits upon which the warrant was granted." The weight of authority tends therefore decidedly in favor of this conclusion.

In case such an application be made and granted, the defendant becomes of course entitled to the return of the property, on the order discharging the attachment being entered, and served upon the sheriff in the usual manner. If the application fail, or if none be made, the case then comes on for trial in the usual course.

If the plaintiff fail in the action, and the defendant recover judgment against him, the course to be pursued by the latter is thus pointed out by sec. 239:

§ 239. 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 monies 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.

The defendant may, too, under these circumstances, be entitled to prosecute a claim for damages against the plaintiff, and his sureties, under the undertaking prescribed in sec. 230, by action on such undertaking in the usual manner.

If, on the contrary, judgment be recovered by the plaintiff, the sheriff's course thereupon is thus prescribed by sec.


§ 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 corporate association, the sheriff shall execute to the purchaser a

« PředchozíPokračovat »