Imagens das páginas

PART III, Interest in corporations or


$ 234. The rights or shares which such defendant may hara

in the stock of any association or corporation, together with Association, the interest and profits thereon, and all other property in the tachment. state of such defendant, shall be liable to be 'attached and levied upon and sold to satisfy the judgment and execution.

13 Ab., 454; 10 Ab., 88; 35 N. Y., 322; 28 N. Y., 578; 31 How. P. R., 504.

$ 235. The exccution of the attachment upon any such 'executed on rights, shares, or any debts or other property incapable of Pretpat manual delivery to the sheriff, shall be made by leaving a of manual certitied copy of the warrant of attachment with the presi

dent 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.

32 B, 603; 26 B., 62 ; 11 How. P. R., 520; 11 Ab., 3; 4 Ab., 368; 4

E. D. S., 443; 3 E. D. S., 117. Certificate $ 236. Whenever the sheriff shall, with a warrant of attachant's inte ment, or execution against the defendant, apply to such Fertigha officer, debtor, or individual, for the purpose of attaching, or en corpora- levying upon, such property, such officer, debtor, or indi

vidual, shall furnish him with a certificate under his band, 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 attachment.

26 B., 62 ; 22 How. P. R., 278; 13 Ab., 413, 469; 7 Ab., 349; 4 Ab.,

368. 19 Ab. 478. Judgment, $ 237. In case judgment be entered for the plaintiff, in such how satis. God. 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 juterest 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 CHAP. II. 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 willfully 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 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. At the expiration of six months from the docketing of the judgment, the court shall have power, upon the petition of the plaintiff

, accompanied by an affidavit, setting forth fully all the proceedings which have been had by the sheriff since the service of the attachment, the property attached, and the disposition thereof, and also the affidavit of the sheriff that he has used due diligence and endeavored to collect the evidences of debt in his hands so attached, and that there remains uncollected of the same any part or portion thereof, to order the sheriff to sell the same, upon such terms and in such manner as shall be deemed proper. Notice of such application shall be given to the defendant or his attorney, if the defendant shall have appeared in the action. In case the summons has not been personally served on the defendant, the court shall make such rule or order, as to the service of notice and the time of service as shall be deemed just.

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.

As amended by Laws of 1859, ch. 428.
31 B., 89; 27 B., 468; 24 B., 119; 22 How. P. R., 278; 13 Ab., 181,

254, 454, 456, 470; 12 Ab., 14; 11 Ab., 6, 290; 8 Ab., 121; 35
N. Y., 322 ; 28 N. Y.. 578; 38 B., 443; 18 Ab., 451; 15 Ab., 100,

113, 247; 28 How. P. R., 87; 24 How. P. R., 287. $ 238. The actions herein authorized to be brought by the When ao sheriff, may be prosecuted by the plaintiff, or under bis direc- cover notro, tion, upon the delivery by him to the sheriff of an under-can of de

, taking executed by two sufficient sureties, to the effect that may be the plaintiff will indemnify the sheriff from all damages, by plaintif costs and expenses on account thereof, not exceeding two action in hundred dollars and fifty dollars in any one action. Such which then sureties shall in all cases, when required by the sheriff, justify, by making an affidavit that each is a householder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities.

32 B., 602 ; 31 B., 89; 22 How. P. R., 180; 3 How. P. R., 281; 39 B.,

209; 24 How. P. R., 489. S 239. If the foreign corporation or absent or absconding sheriff on or concealed defendant, recover judgment against the plain- how dis tiff, in such action, any bond taken by the sheriff, except such on judgas are mentioned in the last section, all the proceeds of sales deten dan


Bond to


ment and

in action.



and moneys 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.

8 Ab., 70. Diechargo S 240. Whenever the defendant shall have appeared in such of attach

action, he may apply to the officer who issued the attachment, return of property or or to the court, for an order to discharge the same, and if the to proceeds same be granted, all the proceeds of sales and moneys colant on his lected by him, and all the property attached remaining in luis appearance

hands, shall be delivered or paid by him to the defendant or When relict his agent and released from the attachment. And where plied for. there is more than one defendant, and several property of

either of the defendants has been seized by virtue of the order of attachinent, the defendant whose several property has been seized, may apply to the officer who issued the attachment for relief under this section.

Amended by Laws of 1862, ch. 460. 29 B., 109; 7 B, 653; 13 Ab.,

97, 181, 432, 470; 12 Ab., 63 ; 7 Ah.. 26; 22 llow. P. R., 106, 278;

11 How. P. R., 227; 19 Ab, 321; 14 Ab., 43. Under S 241. Upon such application the defendant shall deliver part or do to the court or officer an undertaking, executed by at least

two siireties, who are l'esidents and freeholders, or householders, 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 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. If it shall appear by affidavit that the property attached be less than the amount claimed by the plaintiff, the court or officer issning the attachment may order the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised. And in all cases the defendant may move to discharge the attachment, as in case of other provisional remedies. And where there is more than one defendant, and several property of either of the lefendants has been scizeil by virtue of the order of attachment, the defendant whose several property bas been seized, may deliver to the court or officer, undertaking in accordance with the provisions of this section, to the effect that he will on demand pay to the plaintiff the amount of judgment that may be l'ecovered against such defendant. And all the provisions of this section applicable to such undertaking shall be applied thereto.

Amendod by Laws of 1857, ch. 723; 1862, cb. 460. 29 B, 109; 7 B.,

658 ; 22 How. P. R., 10;; 19 How. P. R... 411; 16 Ilow. P. R. 78; 4 How. P. R., 227; 13 Ab., 78, 432; 12 Ab, 159; 10 Ab., 391; 1

Ab., 26; 46 B., 44; 15 Ab., 190; 14 Ab., 43, 67. When sher $ 242. When the warrant shall be fully executed or dis

charged, the sheriff shall return the same, with his proceedceedpoging ings thereon, to the court in which the actiou was brought.

4 Ab., 72.

10 to return warrant



§ 243. The sheriff shall be entitled to the same fees and compensation fees of for services and the same disbursements under this title, as are allowed sherift. by law for like services and disbursements under the provisions of chaptor five, title one, and part two, of the Revised Statutes. Provided, however, that no poundage or other compensation shall be allowed to the said sheriff (except his fee of fifty cents for making the levy, and such compensation for his trouble and expense in taking possession of and preserving the property as shall be fixed by the officer issuing the attachment), unless a statement shall be had or a judgment shall be recovered and collected in whole or in part in the action in which the attachment in this title referred to shall have issued. And where a judg. ment shall have been recovered and collected in part only, the amount of his poundage shall not be estimated upon any sum greater than the sum collected upon such judgment. And where a settlement shall be had, the amount of his poundage shall not be estimated upon any sum greater than the amount at which said settlement is made.

As amended by Laws of 1865, ch. 615.
31 B., 89; 21 How. P. R., 457 ; 20 How. P. R., 405; 11 Hov. P. R.,

207; 12 Ab., 136, 362; 10 Ab., 291; 29 How. P. R., 2; 28 How.
P. R., 87; 18 Ab., 383; 14 Ab., 289.


SEC. 244. Powers of courts as to receivers, deposit of money, &c., in court, and other

provisional remedies. $244. A receiver may be appointed : 1. Before judgment, on the application of either party, when he cs- Powers of tablishes an apparent right to property which is the subject of the ac- receivers, tion, and which is in the possession of an adverse party, and the prop

deposit of

money, and crty, or its rents and profits, are in danger of being lost or materially other pro injured or impaired, except in cases where judgment upon failure to

remedies. auswer may be had without application to the court.

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: and in like cases of the property within this state of foreign corporations.

Receivers of the property within this state, of foreign or other corporations, shall be allowed such commissions as may be fixed by the court appointing them, not exceeding five per cent on the amount received and disbursed by them.

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 fur. ther direction of the court.

Whenever, in the exercise of its authority, a court shall have ordered 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, expressly or by not denying, 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 euforces a judgment or provisional remedy.

Amended by Laws of 1851, ch. 479 ; 1852, ch. 392 ; 1857, ch. 723 ; 1858,

ch. 306; 1862, ch. 460; 1867, ch. 781. 9 N. Y., 147; 26 B., 199; 10 B., 48; 22 How. P. R., 158; 18 How. P. R.,

41; 16 How. P. R., 193; 13 How. P. R., 514; 12 How. P. R., 112;
11 How. P. R., 204, 360; 10 Hlow. P. R., 57, 428; 9 How. P. R.,
101; 5 How. P. R., 126; 12 Ab., 63; 7 Ab., 94; 4 Ab., 142, 252; 3
Ab., 255; 2 Ab., 235; 1 Ab., 225, 229, 393, 399, 477; 45 B., 555;
37 B., 612; 18 Ab., 383, 451, 454; 30 Ilow. P. R., 231; 29 How.
P. R., 7; 25 How. P. R., 182.

CHAPTER I. Judgment upon failure to answer.

II. Issues and tbe mode of trial.
III. Trial by jury.
IV. Trial by the court.
V. Trial by referees.
V. The manner of entering judgment.

Judgment, what.

Judgment on failure of defend ant to answer.


SEC. 245. Judgment, what.

246. Judgment on failure of defendant to answer.

247. Judgment on frivolous demurrer, answer or reply.
$ 245. A judgment is the final determination of the rights
of the parties in the action.

Amended by Laws of 1852, ch. 392.
6 N. Y., 465; 4 N. Y., 417; 22 B, 600; 9 Ab., 194; 8 Ab., 295; 4 Ab.,

92; 3 Ab., 387; 18 How. P. R., 83; 11 lIow. P. R., 200 ; ¢ How.
P. R., 276, 328; 6 How. P. R., 127; 5 How. P. R., 199; 3 Bos., 614;

47 B., 642; 27 How. P. R., 382; 24 How. P. 433; 14 Ab., 62. S 246. Judgment may be had, if the defendant fail to answer the complaint, as follows:

1. In any action arising on contract, for the recovery of money only, the plaintiff may file with the clerk, proof 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 the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff

' thereon; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount 80 assessed or ascertained. In case the defendant give notice

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