« PředchozíPokračovat »
judge, and be examined on oath, respecting the same.
The defendant may also be required to attend, for the purpose of giving information respecting his property, and may be examined on oath. The court or judge, may, after such examination, order personal property, capable of manual delivery, to be delivered to the sheriff, on such terms as may be just, having reference to any liens thereon, or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof.
SEC, 100. The sheriff shall make a full inventory of the property attached, and return the same with the writ, and from the time of leaving such writ or attachment, it shall be a lien upon the property, until the satisfaction of the judgment recovered by the plaintiff, unless the defendant executes the undertaking mentioned in section ninety-four. To enable him to make such return as to debts and credits attached, he shall request, at the time of the service, the party owing the debt, or having the credit, to give him, a memorandum, stating the amount and description of each; and if such memorandum be refused, he shall return the fact of refusal with the writ. The party refusing to give the memorandum, may be required to pay the costs of any proceeding taken for the purpose of obtaining information respecting the amount and description of such debt or credit.
Sec. 101. If any property attached be perishable, the sheriff shall sell the same, in the manner in which such property is sold on execution. The proceeds and other property attached by him shall be retained by him, to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment, recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him, if the same can be done without suit. The sheriff's receipt shall be a sufficient discharge for the amount paid. SEC. 102. The sheriff
any of the property attached to the defendant or to any other person claiming it upon his giving a written undertaking therefor executed by two or more sufficient sureties engaging to re-deliver it or pay the value thereof to the sheriff to whom execution upon a judgment obtained by the plaintiff in that action may be issued. If an action be brought upon such undertaking, against the principal or his sureties, it shall be a defence that the property for which the undertaking was given did not at the execution of the writ of attachment belong to the defendant against whom it was issued.
SEC. 103. If judgment be recovered by the plaintiff, the sheriff shall satisfy the same out of the property attached by him which has not been delivered to the defendant or claimant as herein before provided, or subjected to execution on another judgment recovered previous to issuing the attachment, if it is sufficient for that purpose : First, by paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment. Second, if any balance remain due and an execution shall have been issued on the judgment, he shall sell under the execution so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notices of the sales shall be given and the sales conducted as in other cases of sales on execution.
Sec. 104. If after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the sheriff shall proceed to collect such balance as upon execution in other cases. Whenever the judgment shall have been paid, the sheriff upon reasonable demand shall deliver over to the defendant the attached property remaining in his hands and any proceeds of the property attached unapplied on the judgment.
SEC. 105: If the execution be returned unsatisfied in whole or in part the plaintiff may prosecute any undertaking given pursuant to sections ninety-four and one hundred and two, or he may proceed as in other cases upon the return of an execution.
SEC. 106. If the defendant recover judgment against the plaintiff, (on any undertaking received in the action,) all the proceeds of sales and money collected by the sheriff or deposited by the defendant and all the property attached remaining in the sheriff's hands shall be delivered to the defendant or his agent, the order of attachment shall be discharged and the property released therefrom.
Sec. 107. In all cases where there has been more than one attachment issued against the same defendant returnable at the
same term of court, and more than one judgment rendered against such defendant at the same torm of court in cases in which attachments have been issued, and there is not sufficient property of such defendant including the rights, debts and credits attached in such action to satisfy all of said judgments, the court shall direct the sheriff to whom execution may issue or who has under his control any money, rights, credits or other property that may be applied to the satisfaction of such judgments to proceed to sell said property as herein provided and to collect such debts, rights, or credits, and after deducting the costs that may be due in all of said cases, to pay to each such judgment creditor a proportionate share of the remainder of the proceeds of such sales and money collected according to the amount of his judgment.
SEC. 108. Whenever the defendant shall have appeared in the action he may apply, upon reasonable notice to the plaintiff, to the court in which the action is pending, or to the judge thereof, or to a probate judge, for an order to discharge the same upon the execution of the undertaking mentioned in the next section, and if the application be granted, all the proceeds of sales and moneys collected by the sheriff, and all the property attached remaining in his hands, shall be released from the attachment and delivered to the defendant upon the justification of the sureties on the undertaking, if required by the plaintiff.
Sec. 109. Upon such application the defendant shall deliver to the court or judge an undertaking executed by at least two sureties, residents of the district, to the effect that the sureties will on demand pay to the plaintiff the amount of any judgment that may be recovered in favor of the plaintiff in the action not exceeding the sum specified in the undertaking which shall be sufficient to satisfy. the amount claimed by the plaintiff in his complaint and the costs. The sureties may be required to justify on such application before the judge or court, and the property attached shall not be released. from the attachment without their justification, if the same be required.
Sec. 110. In all cases where property or effects have been attached, the defendant, or any creditor of the defendant interested, may file a plea in the nature of a plea in abatement, under oath, putting in issue the truth of the facts alleged in the affidavit on wbich the attachment was sued out.
Sec. 111. Upon such issue the plaintiff shall be held to prove that the facts alleged by him in said affidavit as the grounds of the attachment existed at the time of the issuance of the writ of attachment.
Sec. 112. If the issue be found against the plaintiff the attachment shall be dismissed at the cost of the plaintiff, and his sureties shall thereafter be liable on their bond for all damages sustained by the defendant in consequence of the issuing of the attachment, and the court shall assess a reasonable fee against the plaintiff for defendant attorney or attorneys.
SEC. 113 After the attachment of property by the sheriff, the defendant, after reasonable notice to the plaintiff, may have the writ of attachment dissolved by showing to the court in which the action is brought, or a judge thereof, or a probate judge, that there was not at the time of the issuing of the attachment any sufficient grounds therefor, or that the property attached is not subject to execution or attachment. If the court or judge hearing the same shall dissolve the attachment, the sheriff shall deliver all property attached remaining in his hands, and all moneys collected by him by virtue of the attachment of the defendant, and the sureties of the plaintiff shall be liable to the defendant for all damages he may have sustained by the issuing of the attachment, not exceeding the amount stated in the plaintiff's undertaking.
Sec. 114. The sheriff shall return the writ of attachment with the summons if issued at the same time, otherwise within twenty days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto.
DEPOSIT IN COURT.
SEC. 115. 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 things capable of delivery, which being the subject of litigation is held by him as a trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court, or delivered to such party, upon such conditions as may be just, subject to the further direction of the court.
Sec. 116. A receiver may be appointed by the court in which the suit is pending, or by a judge thereof, First, Before judgment, provisionally, on the application of either party, when he establishes a prima facie right to the property, or to an interest in the property, which is the subject of the action, and which is in possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired. Second, After judgment, to dispose of the property according to the judgment, to preserve it during the pending of an appeal, and, Third, In such other cases as are in accordance with the practice of the courts of equity jurisdiction.
TRIAL AND JUDGMENT.
SEC. 117. A judgment is the final determination of the rights of the parties in the action or proceeding.
Sec. 118. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.
Sec. 119. In an action against several defendants, the court may in its discretion render judgment against one or more of them, leaving the action to proceed against the others, when a several judgment is proper.
SEC. 120. The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint, but in any other case the court may grant him any relief consistent with the case made by the complaint, and embraced within the issue.
Sec. 121. An action may be dismissed, or judgment of nonsuit entered, in the following cases: First, By the plaintiff him