1. By paying over to such plaintiff the proceeds of all By paying sales of perishable property, and of any vessel or share or over avails of sales of perishinterest in any vessel sold by him, or of any debts or able property. 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 By issuing exhave been issued on such judgment, he shall proceed to attached propecution against sell under such execution, so much of the attached pro- erty. perty, real or personal, except as provided in sub-division four of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his Rights or hands; and in case of the sale of any rights or shares, shares in corin the stock of a corporation or association, the sheriff porations, how disposed of. 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 Sheriff may redefendant shall have passed out of the hands of the sher- possess himself of all property iff without having been sold or converted into money, attached. such sheriff shall repossess himself of the same, and for that purpose 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.

collect notes

4. Until the judgment against the defendant shall be Sheriff may paid, the sheriff may proceed to collect the notes and and accounts other evidence of debt, and the debts that may have been attached. 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.

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.

note, &c., at

SEC. 146. The actions herein authorized to be brought When actions by the sheriff, may be prosecuted by the plaintiff or un to recover der his direction, upon the delivery by him to the sheriff tached, may be of an undertaking executed by two sufficient sureties, to prosecuted by the effect, that the plaintiff will indemnify the sheriff the plaintiff in from all damages, costs and expenses on account thereof, which the atnot exceeding two hundred and fifty dollars in any one ac tachment istion. Such sureties shall, in all cases, when required by sued.

the action in

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. Bond to sheriff SEO. 147. If the foreign corporation, or absent, or abon attachment sconding, or concealed defendant, recover judgment ed of on judg. against the plaintiff in such action, any bond taken by ment for de- the sheriff, except such as are mentioned in the last sec

-how dispos

fendant.

Discharge of attachment

and return of

proceeds to defendant.

tion, all the proceeds of sales, 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.

SEO. 148. Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the property or its 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.

Undertaking on the part of

defendant in such cases.

When and how

sheriff to return warrant.

Sheriff's fees.

Motion to set

ment for in

SEC. 149. Upon such application, the defendant shall deliver to the court, or officer, an undertaking, executed by at least two sureties, resident, and freeholders 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 the 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.

SEO. 150. 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.

SEC. 151. 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 in other cases.

SEC. 152. The defendant may, at any time before the aside attach- time to answer expires, make a motion before the circuit sufficiency and judge of the proper circuit, to set aside or discharge the affidavits and attachment, on the ground that sufficient cause for the proceedings granting of the same did not exist. Such motion may be for that purmade upon the affidavit for the attachment or additional pose. affidavits, on the part of the defendant, controverting the grounds upon which the attachment was issued, and in

case the defendant uses additional affidavits, the plaintiff may use additional affidavits, on his part, to sustain the same, and the plaintiff may, on reasonable notice for that purpose given, require the defendant or other person to appear on the hearing of such motion, and be examined orally, touching the grounds upon which said attachment was issued; and if the defendant neglect or refuse to attend as required, the motion to discharge the attachment shall be denied.

Powers of

ceivers.

SEO. 153. A receiver may be appointed; 11. Before judgment, on the application of either party, court as to rewhen 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.

12. 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 pendancy 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, cxcept as otherwise provided in this act.

' court.

SEO. 154. When it is admitted by the pleading or ex Deposit of amination of a party, that he has in his possession or under money or othhis control any money or other thing capable of delivery, er property in 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.

SEO. 155. Whenever in the exercise of its authority, a Court may orcourt shall have ordered the deposit, delivery or convey. der property or ance of money or other property, and the order is diso- ted, to be demoney deposibeyed, the court, besides punishing the disobedience as livered or confor contempt, may make an order 'requiring the sheriff to veyed, or may take the money or property, and deposit, deliver or con- real estete by vey it in conformity with the direction of the court, or the judgment. court may pass title to real estate by its judgment, with

pass title to

When answer admits part of

out conveyance, in like manner, as may now be done by decree.

SEO. 156. When the answer of the defendant admits plaintiff's part of the plaintiff's claim to be just, the court on motion, claim, court on may order such defendant to satisfy that part of the claim and may enforce the order, as it enforces a provisional ant to satisfy remedy.

order defend

that part. Judgmentwhat.

Judgment on

failure of de

SEC. 157. A judgment is the final determination of the rights of the parties in the action.

SEO. 158. Judgment may be had if the defendant fail fendant to an- to answer the complaint, as follows:

swer.

Action on contract.

In other actions.

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 35, 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 41. 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 of appearance in the action, he shall be entitled to five days notice of the time and place of such assessment.

2. In other actions, the plaintiff may, upon the like proof, apply to the court after the expiration of the time for answering, for the relief demanded in the complaint. If the taking an account or the proof of any fact be necessary to enable the court to give judgment or to carry the judgment into effect, the court may take the account, or hear the proof, or may in its discretion, order a refer ence for that purpose. And where the action is for the recovery of money only, or of specific, real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a

reference as above provided. In case the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days notice of the time and place of application to the court for the relief demanded by the complaint,

I 3. In actions where the service of the summons was by Judgment on publication, the plaintiff may in like manner apply for frivolous dejudgment, and the court shall thereupon cause proof to murrer, answer or reply. be taken of the demand mentioned in the complaint, and in case the defendant is a non resident, shall cause the plaintiff or his agent to be examined on oath, as to any payment that may have been made to such plaintiff, or to any one for his use on, account of such demand, and may render judgment for the amount which he is entitled to recover, and before entering judgment, the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court, touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives, shall apply and be admitted to defend the action and shall succeed in such defence.

SEO. 159. If a demurrer, answer or reply be frivolous, Cases of publithe party prejudiced thereby, upon a previous notice of cation of sumfive days, may apply to a judge of the court, either in or mons.

out of the court, for judgment thereon, and judgment

may be given accordingly.

SEO. 160. Issues arise upon the pleadings when a fact The different or conclusion of law is maintained by the one party, and kinds of issue. controverted by the other; they are of two kinds:

1. Of law.

2. Of fact.

SEC. 161. An issue of law arises upon a demurrer to Issue of law. the complaint, answer or reply, or to some part thereof. SEO. 162. An issue of fact arises,

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

2. Upon new matter in the answer controverted by the

=reply; or,

3. Upon new matter in the reply, except an issue of law is joined thereon.

Issue of fact.

Issue of both law and fact,

SEC. 163. Issues both of law and of fact may arise upon different parts of the pleadings in the same action; in such cases the issue of law must be first tried, unless to be first tried the court otherwise direct.

the issue of law