PART III. Interest in tions or $234. The rights or shares which such defendant may ha、 a corpora- in the stock of any association or corporation, together with associations 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. liable to at ment, how delivery. Attach- $235. The execution of the attachment upon any such executed on rights, shares, or any debts or other property incapable of property manual delivery to the sheriff, shall be made by leaving a incapable of manual 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. Certificate of defend rest to be tions. 32 B, 603: 26 B., 62; 11 How. P. R., 520; 11 Ab., 3; & Ab., 368; 4 E. D. S., 443; 3 E. D. S., 117. $236. Whenever the sheriff shall, with a warrant of attachant's inte- ment, or execution against the defendant, apply to such furnished officer, debtor, or individual, for the purpose of attaching, or by corpora- 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 attachment. Judgment, how satisfiod. 26 B., 62; 22 How. P. R., 278; 13 Ab., 443, 469; 7 Ab., 349; 4 Ab., 368 19 Ab. 478. $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 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. XI. 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, tion to re fendant, in the $238. The actions herein authorized to be brought by the When ac sheriff, may be prosecuted by the plaintiff, or under his direc- cover notes, tion, upon the delivery by him to the sheriff of an under- &c., of detaking executed by two sufficient sureties, to the effect that may be prosecuted the plaintiff will indemnify the sheriff from all damages, by plaintiff costs and expenses on account thereof, not exceeding two action in hundred dollars and fifty dollars in any one action. Such attachment sureties shall in all cases, when required by the sheriff, justify, issued. 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., which the Bond to attachment, $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 judg as are mentioned in the last section, all the proceeds of sales ment for posed of defendant. PART III Dischargo of attachment and return of property or Its proceeds to defend ant on his appearance in action. When relief may be applied for. Undertaking on fendant. 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. $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 attachment. And where there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order of attachment, 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, 658; 13 Ab., 97, 181, 432, 470; 12 Ab, 63; 7 Ah.. 26; 22 Ilow. P. R., 106, 278; 11 How. P. R., 227; 19 Ab, 321; 14 Ab., 43. S241. Upon such application the defendant shall deliver part of de to the court or officer an undertaking, executed by at least two sureties, who are residents 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 defendants has been seized by virtue of the order of attachment, the defendant whose several property has 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 recovered against such defendant. And all the provisions of this section applicable to such undertaking shall be applied thereto. When sheriff to return Amended by Laws of 1857, ch. 723; 1862, ch. 460. 29 B, 109; 7 B., S242. When the warrant shall be fully executed or diswarrant charged, the sheriff shall return the same, with his proceedceeding ings thereon, to the court in which the action was brought. pro thereon. 4 Ab., 72. 67 CHAP. XL § 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 sheriff. 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 judgment 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 How. P. R., CHAPTER V. OTHER PROVISIONAL REMEDIES. SEC. 244. Powers of courts as to receivers, deposit of money, &c., in court, and other provisional remedies. § 244. A receiver may be appointed: courts as lo money, and 1. Before judgment, on the application of either party, when he es- 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 erty, or its rents and profits, are in danger of being lost or materially other proinjured or impaired, except in cases where judgment upon failure to 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 further direction of the court. court shall Whenever, in the exercise of its authority, a 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 order requiring the sheriff to take the money or property, and an visional remedies. PART III. Judgment, what. Judgment on failure of defendant to answer. 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 enforces 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 How. 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 How. P. R., 231; 29 How. P. R., 7; 25 How. P. R., 182. TITLE VIII. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. II. Issues and the mode of trial. III. Trial by jury. IV. Trial by the court. V. Trial by referees. V. The manner of entering judgment. CHAPTER I. JUDGMENT UPON FAILURE TO ANSWER. SEC. 245. Judgment, what. 246. Judgment on failure of defendant to answer. 247. Judgment on frivolous demurrer, answer or reply. S 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 How. P. R., 200; & How. P. R., 276, 328; 6 How. P. R.. 127; 5 How. P. R., 199; 3 Bos., 644; 47 B., 642; 27 How. P. R., 382; 24 How. P. R., 433; 14 Ab., 62. S246. 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 so assessed or ascertained. In case the defendant give notice |