Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

1. 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.

2. 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; and in case of the sale of any rights or shares in the stock of a corporation or company, the marshal shall execute to the purchaser a certificate of the sale, and the purchaser shall thereupon have all the rights and privileges in respect thereto which were had by the defendant. Notices of the sales shall be given, and the sales conducted as in other cases of sales on execution.

Sec. 27. 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 and costs, any balance shall remain due, the marshal shall proceed to collect such balance as upon an execution in other cases.

Whenever the judgment and all costs of the proceedings shall have been paid, the marshal, upon reasonable demand, shall deliver over to the defendant the residue of the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment.

Sec. 28. If the defendant recover judgment against the plaintif, any undertaking received in the action, all the proceeds of sales, and money collected by the marshal, and all property attached remaining in the marshal's hands, shall be delivered to the defendant or his agent, and the order of attachment discharged.

SEC. 29. Whenever the defendant shall have appeared in the action, he may apply, upon reasonable notice to the plaintiff, to the court, or any judge thereof in vacation, for an order to discharge the attachment 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 marshal, and all the property attached remaining in the marshal's hands, shall be released from the attachment and delivered to the defendant.

Sec. 30. Upon such application, the defendant shall deliver to the court or judge, an undertaking, executed by at least two sureties approved by the court or judge, to the effect that the sureties will, on demand, pay to the plaintiff the amount of the judgment that may be recovered against the defendant 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 application to the court or judge, and the property attached shall not be released from the attachment without their so justifying, if it be required.

Sec. 31. The defendant may also, at any time before the time for answering expires, apply, on motion, upon reasonable notice to the plaintiff, to the court or judge, to discharge the attachment, on the ground that the writ was improperly issued. If the motion be made upon affidavit, on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the writ of attachment was issued. If upon such application it shall satisfactorily appear that such writ was improperly issued, it shall be discharged.

Sec. 32. When the writ of attachment shall be fully executed or discharged, the marshal shall return the same, with his proceedings thereon.

Sec. 33. Where a debtor has departed from this District with intent to defraud his creditors, or has assigned, secreted, removed, or disposed of, or is about to assign, secrete, remove, or dispose of, his property not exempt from execution, with intent to defraud his creditors, a creditor may bring an action on his claim before it is due, and have an attachment against the property of the debtor.

Sec. 34. The attachment authorized by the last section shall only be granted by the court or by the judge thereof; but before such action shall be brought, or such attachment shall be granted, the plaintiff, or some other person in his behalf, shall make an affidavit showing the nature and amount of the plaintiff's claim, that it is just, when the same will become due, and the existence of some one of the grounds for attachment mentioned in the preceding section. The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action. The attachment shall not be issued by the clerk until the plaintiff has executed the undertaking required by section three of this chapterIn such action the plaintiff shall not have judgment on his claim before it becomes due. The proceedings shall be as in other cases of attachment, except as otherwise provided.

CHAPTER 86.

OF RECEIVERS AND DEPOSIT IN COURT.

SECTION

1. When a receiver may be appointed.
2. No party or attorney shall be appointed

a receiver.
3. Receiver to take on oath and give a bond.
4. Upon an admission, the court may order

a fund to be deposited in court or de-
livered over.

SECTION
5. Disobedience of such order may be

punished as for a contempt.
6. Receiver may bring and defend actions.
7. When plaintiff's claim is admitted, the

court may order it to be satisfied.

SECTION 1. A receiver may be appointed by the court:

1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.

2. In an action by a mortgagee for the foreclosure of the mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mort

gage debt.

3. After judgment, to carry the judgment into effect.

4. 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.

5. In such other cases as may be provided by law; or when, in the discretion of the court, it may be necessary to secure ample justice to the parties.

Sec. 2. No party, or attorney, or person interested in any action, shall be appointed receiver therein.

Sec. 3. Before entering upon his duties, the receiver must be sworn to perform them faithfully, and, with one or more sureties to be approved by the court, shall execute an undertaking to such person, and in such sum as the court shall direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein.

Sec. 4. 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.

Sec. 5. Whenever, in the exercise of its authority, a court shall have ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the court, besides punishing the disobedience, as for a contempt, may make an order requiring the marshal to take the money, or thing, and deposit or deliver it in conformity with the direction of the court.

Sec. 6. The receiver shall have power, under the control of the court, to bring and defend actions; to take and keep possession of the property; to receive rents; collect debts; and generally to do such acts, respecting the property, as the court may authorize. He shall be allowed such compensation for his services as the court may deem just and proper, to be taxed as the court may order.

Sec. 7. Whenever the answer of the defendant admits part of the plaintiff's claim to be just, the court, on motion, may order the defendant to satisfy that part of the claim, and may enforce the order by execution or attachment.

[blocks in formation]

SECTION 1. Issues arise upon the pleadings where a fact or conclusion of law is maintained by one party, and controverted by the other. They are of two kinds:

1. Of law; and, 2. Of fact.

Sec. 2. An issue of law arises upon a demurrer to the complaint, answer or reply, or to some part thereof.

Sec. 3. An issue of fact arises:

1. Upon a material allegation in the complaint, controverted by the answer; or,

2. Upon a counter-claim or set-off in the answer, controverted by the reply; or,

3. Upon new material matter in the answer or reply, which shall be considered as controverted by the opposite party, without further pleading

Sec. 4. An issue of law shall be tried by the court, unless it be referred by consent, as provided by statute. An issue of fact in any action for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as provided by statute.

Sec. 5. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, in its discretion, or upon the application of either party, or referred as provided by statute.

Sec. 6. The clerk shall enter upon the appearance docket all actions in the order in which they were brought, the date of the summons, the time of the return thereof by the officer, and his return thereon, the time of filing the complaint, and all subsequent pleadings

« ΠροηγούμενηΣυνέχεια »