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Oct. 11, 1862, $305.

§ 308. [305.] After the issuing of an execution against property, and upon proof by the affidavit of the plaintiff ine judgment in the writ, or otherwise, to the satisfaction of the court

Order to exam

debtor.

Oct. 11, 1862, $306.

Examination

of judgment debtor.

or judge thereof, that the judgment debtor has property liable to execution, which he refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear and answer under oath concerning the same, before such court or judge, or before a referee appointed by such court or judge, at a time and

Supplementary proceedings hereunder are said to be purely legal in their nature, and limited to a particular object and mode of investigation, and cannot be used to enforce a lien by virtue of a chattel mortgage: Knowles v. Herbert, 11 Or. 54; S. C., Id. 241. The property or funds of a

place specified in the order.

private corporation, not having been declared a dividend in the hands of a stockholder, are subject to execution against the corporation, and the execution creditor is entitled to the remedy under this provision to enforce payment of his demand: Hughes v. Oregonian R'y Co., 11 Id. 158.

§ 309. [306.] On the appearance of the judgment debtor, he may be examined on oath concerning his property. His examination, if required by the plaintiff in the writ, shall be reduced to writing, and filed with the clerk by whom the execution was issued. Either party may examine witnesses in his behalf, and if by such examination it appear that the judgment debtor has any property liable to execution, the court or judge before whom the proceeding takes place, or to whom the report of the referee is made, shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment, or that such property be levied on, by execution, in the manner and with the effect as

$306.

provided in title I. of this chapter, or both, as may Oct. 11, 1862, seem most likely to affect the object of the proceeding. Examination

Examination. - A garnishee can be required to answer only as to his liability to the debtor defendant at time of the garnishment: Norris v. Burgoyne, 4 Cal. 410.

Order to hand over property, etc. This order cannot be made on the mere affidavit mentioned in this section; there must be an examination: Hathaway v. Brady, 26 Cal. 589. It is the duty of the court to render judgment against the garnishee for the amount found due, and an order to pay the same into court is improper: Brummagim v. Boucher, 6

Id. 17; and see Brown v. Moore, 61 of judgment
debtor.
Id. 432, and Hartman v. Olvera, 51
Id. 501. But where it was ordered
to be paid into court, the supreme
court held it made no difference in
the substantial rights of the parties,
and the plaintiff was entitled to have
the money paid on his execution:
Smith v. Brown, 5 Id. 119. The court
may order the property to be deliv-
ered or assigned to a receiver, to be
disposed of in aid of the execution,
- here a patent right: Pacific Bank
v. Robinson, 57 Id. 520.

$307.

Restraining

judgment

§ 310. [307.] At the time of allowing the order pre- Oct. 11. 1862, scribed in section 308 [305], or at any time thereafter pending the proceeding, the court or judge may make order against an order restraining the judgment debtor from selling, debtor. transferring, or in any manner disposing of any of his property liable to execution, pending the proceeding. Disobedience to any order or requirement authorized by sections 308 [305], 309 [306], and 310 [307], on the part of the judgment debtor, may be punished as for a contempt.

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$308. Judgment

arrested.

§ 311. [308.] Instead of the order requiring the at- Oct. 11, 1862, tendance of the judgment debtor, as provided in the last two sections, the court or judge may, upon proof by debtor may be affidavit of a party, or otherwise to his satisfaction, that there is danger of the debtor leaving the state, or concealing himself therein, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be to arrest him and bring him before the court or judge; upon being brought

Oct. 11, 1862, 308.

Judgment

arrested.

before the court or judge, he may be examined on oath, and if it then appear that there is danger of the debtor debtor may be leaving the state, and that he has property which he has unjustly refused to apply to such judgment, he may be ordered to enter into an undertaking, with one or more sureties, that he will from time to time attend before the court or judge, as may be directed, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to the jail of the county by warrant of the judge.

Oct. 11, 1862, 309.

Order to exam

17 Or. 345.

§ 312. [309.] Whenever the sheriff, with an execution against the property of the judgment debtor, shall ine garnishee. apply to any person or officer mentioned in subdivision 3 of section 149 [147], for the purpose of levying on any property therein mentioned, such person or officer shall forthwith give to the sheriff a certificate in the manner prescribed in section 152 [150]. If such person or officer refuse to do so, or if the certificate be unsatisfactory to the plaintiff in the writ, he may in like manner have the order prescribed in such section against such person or officer. Thereafter the proceeding upon such order shall be conducted in the manner prescribed in title XIV. of chapter I., from section 162 [160] to section 171 [169], inclusive.

Oct. 11, 1862, $310.

Earnings of judgment

debtor exempt.

Oct. 11, 1862, 311.

Public officers

not liable to answer as

garnishees.

13 Or. 56.

§ 313. [310.] The earnings of a judgment debtor for personal services, at any time within thirty days next preceding the judgment against a garnishee, shall not be included in such judgment, when it shall be made to appear by the affidavit of the judgment debtor, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor.

§ 314. [311.] No state or county treasurer, sheriff, clerk, constable, or other public officer shall be liable to answer as garnishee for moneys in his possession as such public officer, belonging to or claimed by any judgment debtor.

CHAPTER IV.

OF ACTIONS AT LAW IN PARTICULAR CASES.

TITLE I.-OF ACTIONS TO RECOVER THE POSSESSION OF
REAL PROPERTY.

--

II. OF ACTIONS FOR NUISANCE, WASTE, AND
TRESPASS ON REAL PROPERTY.

III. OF ACTIONS ON OFFICIAL UNDERTAKINGS,
AND FOR FINES AND FORFEITURES.

IV. OF ACTIONS BY AND AGAINST PUBLIC COR-
PORATIONS AND OFFICERS.

V. OF ACTIONS TO VACATE CHARTERS AND LET-
TERS PATENT, AND TO DETERMINE THE
RIGHT TO AN OFFICE OR FRANCHISE.

VI. OF ACTIONS BY AND AGAINST EXECUTORS
AND ADMINISTRATORS.

GENERAL PROVISION.

§ 315. General rule of proceeding.

§ 312.

General rule

§ 315. [312.] The mode of proceeding in the actions Oct. 11, 1862, provided for in this chapter, from the commencement to the determination thereof, and thereafter until satisfac- of proceeding. tion of the judgment be had, shall be according to the general provisions of this code upon the subject of actions at law, except as herein or otherwise specially provided.

TITLE I.

OF ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY.

§ 316. Who may bring such action, and against whom.

$317. When landlord may be made defendant in place of tenant.

§ 318. What to be pleaded in complaint.

§ 319. Defendant not to be allowed to give in evidence certain matters unless pleaded in the answer. Judgment, when conclusive against landlord.

§ 320. What the jury shall find by their verdict.

§ 321. What damages may be recovered, and when the value of permanent

improvements may be set-off against such damages.

§ 322. Verdict when right of possession expires after commencement of action.

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§ 325.

§ 326.

Action not to be prejudiced by alienation of person in possession.
Mortgagee cannot maintain action against mortgagor.

§ 327.

§ 328.

Action by tenant in common or for dower, what must be shown.
Action against lessee on failure to pay rent.

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Oct. 11, 1862, 313.

Action to recover real

property.

§ 332. Estate of donee under the donation law, approved Sept. 27, 1850.

§ 316. [313.] Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for By and against Withholding the same, by an action at law. Such action. shall be commenced against the person in the actual possession of the property at the time, or if the property be not in the actual possession of any one, then against the person acting as the owner thereof.

whom maintainable.

8 Or. 433.

12 Or. 206. 14 Or. 59.

14 Or. 362. 18 Or. 200.

Action to recover possession of real property, generally. This is the action of ejectment, and is merely a possessory action: Goldsmith v. Smith, 10 Saw. 294. The plaintiff to maintain it must have a present right of possession: Cincinnati v. White, 6 Pet. 431; Heffner v. Betts, 32 Pa. St. 376; Payne v. Treadwell, 5 Cal. 310; at the commencement of the suit: Kile v. Tubbs, 32 Id. 332; and at the time of trial: Cresap v. Hutson, 9 Gill, 269; Alden v. Grove, 18 Pa. St. 377.

The right of possession is the question in controversy, and a perfect title need not be shown: Fowler v. Nixon, 7 Heisk. 719; unless plaintiff's title is subsequent to the date of defendant's possession: Patterson v. Litton, 23 La. Ann. 274. In a suit by several, all must show a legal title, and present right to possession: Cheney v. Cheney, 26 Vt. 606.

A party claiming a right to lands must recover, if at all, on the strength of his own title, and not on the defects of that of his adversary: Wallace v. Swinton, 64 N. Y. 188; Butler v. Davis, 5 Neb. 52; Goulding v. Clark, 34 N. H. 148. Title is presumed from possession: Stark v. Starr, 1 Saw. 15; and the presumption of title

in the defendant arising from his pos session must be overcome by proof of title in plaintiff which is good, at least against the defendant: People v. Leonard, 11 Johns. 504; Eldon v. Doe, 6 Blackf. 341; Stanford v. Mangin, 30 Ga. 355. Proof of prior possession is sufficient to maintain ejectment against a mere trespasser: Mickey v. Stratton, 5 Saw. 475. Where both parties derive title from the same source, the question is as to which has the better title, and the fact that a third person has a still better title is of no consequence: Union Bank v. Manard, 51 Mo. 548; Seabury v. Stewart, 22 Ala. 207; S. C., 58 Am. Dec. 254; Ames v. Beckley, 48 Vt. 395; Touchard v. Crow, 20 Cal. 150.

Who can maintain the action. -Besides the persons mentioned in the sections following, the class of persons who have such a title as enables them to maintain the action under this section includes assignees in bankruptcy: Barstow v. Adams, 2 Day, 70; corporations, private: Henley v. Bank, 16 Ala. 552; or municipal: San Francisco v. Sullivan, 50 Cal. 603; a guardian: Holmes v. Seely, 17 Wend. 75. The donee of a land claim may maintain an action under this section for the recovery of real property against one

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