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Term, under sec. 319, 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 pay. ment 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. Beizcedon, 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 tion,
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 ac
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 bis 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 :
$ 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 hiin, 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 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.
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 ar 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 proceeding 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.
For the purpose of authorizing the sheriff to proceed as above, an execution should be lodged in his hands in the usual manner.
It was considered in Keyser v. Waterbury, 3 C. R. 233, that, as soon as an execution is so lodged, the attachment is virtually at an end; but this seems clearly inconsistent with the special directions in sec. 237.
In Hanson v. Tripler, 3 Sandf. S. C. R. 733, 1 C. R. (N. S.) 154, it was held that an attachment, and supplementary proceed. ings on execution, might be carried on at the same time in the same case, subject to the questions as to the relative rights of the parties being settled, in an action by a receiver under those proceedings, in the event of a conflict arising.
In Fraser v. Greenhill, 3 C. R. 172, the powers of the court on the above subject are stretched to their utmost limit, it being held that where an attachment has been issued, any other creditor of the same party may come in, and seek to be made co-defendant in the suit. “A complete determination of the controversy, with respect to the fund which is in court by virtue of the attachment, cannot," said the learned judge, “ be had without the presence of the subsequent creditors, and those creditors claim and have an interest in the whole controversy
involved in the suit brought by the prior creditors," on which grounds he granted the order under sec. 122.
This decision really seems to amount to a practical repeal of the peculiar provisions of the code, under which, this proceeding is one for the exclusive benefit of the attaching creditor; and to a complete practical restoration of the machinery of the proceeding under the Revised Statutes, which was one for the benefit of creditors in general.
The law, as thus laid down, seems also open to most serious objection on the following grounds:
The claims of subsequent creditors, are totally beside the controversy between the parties before the court. Any question on that subject is purely incidental, and has nothing to do with the rights, either of the plaintiff or the defendant, as between therselves. That controversy can be determined without bringing other parties in, and surely it seems a great hardship on a plaintiff to encumber bis suit with unnecessary parties, either asking to raise collateral issues, manifestly prejudicial to the rights he has obtained by his superior diligence, or fighting about a surplus to which no one can have any claim whatever, until he have been first paid his debt and costs in full, To leave the subsequent creditors to their remedy as against the sheriff, and to the independent assertion of their rights as between each other, seems far more consonant to sound principles and sound practice; and a proceeding in the nature of interpleader, would afford at once indemnity to the sheriff, and satisfaction to the parties, without encumbering the case of the original suitor with controversies with which he has no concern, and difficulties, from which his superior diligence ought properly to have afforded him protection, and was evidently meant to do so by the legislature.
The return to be made by the sheriff, and the fees to which he is entitled, are thus provided for by sections 242 and 243:
$ 242. 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. 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, part two, of the Revised Statutes.
APPOINTMENT OF RECEIVER, AND OTHER PROVISIONAL
In the Codes of 1848 and 1849, the subject of minor provisional remedies was left unprovided for, except by a general reservation of the existing powers of the court.
On the amendment of 185), however, these matters, and the subject of receiverships in particular, were made matter of special provision by sec. 244, and that section has since been further altered on the recent revision, and now reads as follows:
§ 244. 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 iņ 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 ore