Obrázky stránek

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


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 proceedings 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 themselves. That controversy can be determined without bringing other parties in, and surely it seems a great hardship on a plaintiff to encumber his 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.




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 1851, 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 in 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 or

dered the deposit, delivery, or conveyance of money or other property, 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 property, and deposit, deliver, or convey 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.

The practice in respect to the appointment and duties of receivers is, as will be seen, rather defined than altered by these provisions, and remains substantially the same as before. The elementary and other works upon that subject, and in particular, the Treatise of M. Edwards, should, accordingly be carefully consulted; and the following observations will be confined simply to a short citation and consideration of the decisions which have taken place under the Code, in relation to this remedy, in the order pointed out by the section itself, as now amended.

The first subdivision of that section is, in fact, the principal point to be looked into, in the present connection, bearing, as it does, more peculiarly the stamp of a provisional remedy. Subvisions 2 and 3, are, on the contrary, more properly provisions consequent on a judgment or decree, and as such, have been heretofore considered.

An application for a receiver, in general, unless forming part of the judgment in the cause, must, in all cases, be grounded on the usual notice to the adverse party, (see Kemp v. Harding, 4 How. 178, and Dorr v. Noxon, 5 How. 29,) and must be brought on as a motion, on affidavits in the usual manner. A form of notice of motion will be found in the Appendix. The affidavits on which it is grounded, must state the facts of the case, and must clearly bring it within the terms of the section as above cited. A primâ facie right to the property claimed, and a reasonable apprehension of its being lost or injured, must, in all cases, be fully established, or the application will not be granted. The motion may, as has been seen, be made at any time before judgment, and by either party; but, of course, it cannot be made until after the action has been duly commenced by service of process. If immediate injury be apprehended, an injunction may be applied for collaterally, and on the same pa

pers; and, if the risk be imminent, the application may be shaped in the form of an order to show cause, with an interim injunction, until it is brought on and disposed of in due course.

Security must be given by the receiver when appointed, as under the former practice.

Where the application for a receiver forms part of the relief originally contemplated at the outset of the suit, it should be formally prayed for in the complaint, and the subsequent application must be grounded upon that prayer. Where, however, two parties have an equal interest in the same fund, and an injunction has been granted on the application of one, a motion for an injunction and receiver, will be so on the part of the other, almost as of course, although a prayer to that effect may have been omitted in the complaint.-McCracken v. Ware, 3 Sandf. S. C. R. 688; 1 C. R. (N. S.) 215.

A prima facie case for the granting of this remedy being shown as above, the merits of the action will not otherwise be inquired into; the proceeding being merely for the preservation of the property in controversy, and not for any adjudication as to the ultimate rights of the parties.-Sheldon v. Weeks, 1 C. R. 87; Conro v. Gray, 4 How. 166. See, also, Todd v. Crooke, 1 C. R. (N. S.) 324, below cited.

A motion for a receiver will not be granted to restrain the due use of joint property, where no abuse can reasonably be apprehended, and where full security has been given for the due accounting for mesne profits.-Dunham v. Jarvis, 8 Barb. S. C. R. 88.

Where, however, there is any doubt as to the safety of the fund, the application will be granted, almost as of course.

In Dillon v. Horn, 5 How. 35, an injunction and receiver were granted at the suit of a general creditor of insolvent general partners, on complaint and answer, the debt not being denied.

The granting of receiverships, under subdivisions 2 and 3, have been heretofore fully considered under the heads of Judgment, and proceedings supplementary to Execution, and particularly the latter. See that chapter and the cases of Kemp v. Harding, 4 How. 178; Corning v. Tooker, 5 How. 16; Dorr v. Noxon, 5 How. 29; Porter v. Williams, 5 How. 441, 9 L. O. 307; 1 C. R. (N. S.) 144; The People v. Hulburt, 5 How. 446; McCracken v. Ware, 3 Sandf. S. C. R. 688; 1 C. R. (N. S.)

« PředchozíPokračovat »