reasonable demand, must deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment.

NOTE.-When the attachment is satisfied, the property not disposed of, as well as surplus moneys, are subject to the rights of the debtor or his assignee.Sexey vs. Adkinson, 40 Cal., p. 408.

When

suits may be com

menced on

the under

552. (§ 134.) If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to Section 540 or taking. Section 555, or he may proceed, as in other cases, upon the return of an execution.

NOTE.-The undertaking is not a substitution of security. Its only operation was to release the property from the custody of the Sheriff pending the suit.Low vs. Adams, 6 Cal., p. 277.

ant recover

what the

Sheriff is

to deliver.

553. (§ 135.) If the defendant recover judgment If defendagainst the plaintiff, any undertaking received in the judgment, action, all the proceeds of sales and money collected by the Sheriff, and all the property attached remaining in the Sheriff's hands, must be delivered to the defendant or his agent. The order of attachment shall be discharged, and the property released there from.

Proceedrelease at

ings to

tachment,

whom

taken.

554. (§ 136.) Whenever the defendant has appeared in the action, he may, upon reasonable notice to the plaintiff, apply to the Court in which the action before is pending, or to the Judge thereof, or to a County Judge, for an order to discharge the attachment, wholly or in part; and upon the execution of the undertaking mentioned in the next section, an order may be made, releasing from the operation of the attachment any or all of the property attached, and all of the property so released, and all of the proceeds of the sales thereof, must be delivered to the defendant, upon the justification of the sureties on the undertaking, if required by the plaintiff.

NOTE.-See Note to Sec. 555 of this Code.

did 1873-4.

Attach-
ment, in

what cases
it may be
released

and upon
what
terms.

555. (§ 137.) Before the making such order, the Court or Judge must require an undertaking on behalf of the defendant, by at least two sureties, residents and freeholders or householders in the county, to the effect that in case the plaintiff recover judgment in the action, defendant will, on demand, redeliver the attached property so released, to the proper officer, to be applied to the payment of the judgment, and that in default thereof the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released. The Court or Judge making such order may fix the sum for which the undertaking must be executed, and if necessary in fixing such sum to know the value of the property released, the same may be appraised by three disinterested persons to be appointed for that purpose. The sureties may be required to justify before the Court or Judge, and the property attached cannot be released from the attachment without their justification, if the same be required.

NOTE.-1. EFFECT OF UNDERTAKING.-It is not a substitution of security.-Low vs. Adams, 6 Cal., p. 277. A bond given voluntarily is valid at common law.-Palmer vs. Vance, 13 Cal., p. 553. A substantial compliance with this section, in respect to the undertaking, is sufficient.-Heynemann vs. Eder, 17 Cal., p. 433; Palmer vs. Vance, 13 Cal., p. 553. If the Sheriff takes a sufficient statutory undertaking he has no further responsibility.-Curiac vs. Packard, 29 Cal., p. 194.

2. ACTION ON THE UNDERTAKING.-In an action on the undertaking, the complaint should allege that the property attached was released upon the delivery of the undertaking.-Williamson vs. Blatten, 9 Cal., p. 500. Whether each obligor is liable to the Sheriff for the whole amount of any judgment against him, leaving the question of contribution to be settled between them, was questioned in White vs. Fratt, 13 Cal., p. 521. Where defendant applied to the Court for a discharge of the attachment, and an undertaking was executed by D. and R., reciting the fact of the attachment, and that "in consideration of the premises, and in consideration of the release from attachment of the property

attached as above mentioned," they undertake to
pay whatever judgment plaintiff may recover, etc.,
the Court made an order discharging the writ and
releasing the property. In an action against the sure-
ties on the undertaking, it was held: that the complaint
need not aver that the property was actually released
and delivered to the defendant; that as the considera-
tion for the undertaking was the release of the property,
and as the complaint avers such release, in consequence
and in consideration of the undertaking, by order of
the Court, which is set out, the actual release and rede-
livery of the property to defendant is immaterial, the
plaintiff having no claim on it after the undertaking
was given and the order of release made.-McMillan
vs. Dana, 18 Cal., p. 339. An undertaking, given to a
Sheriff to procure a release of property attached, is for
the benefit of the plaintiff who may sue on it.—Curiac
vs. Packard, 29 Cal., p. 194. If the defendant obtains
an order for the release of property upon an undertak-
ing executed, by sureties, conditioned to pay the plain-
tiff any judgment he may recover in the action, and
the property is thereupon released: whenever the lia-
bility of the sureties is fixed, by the rendition of a
judgment in favor of the plaintiff, the sureties have a
right to tender the plaintiff the full amount of the
judgment, and if he refuses to receive the same, the
sureties are discharged from their obligation on the
undertaking. Hayes vs. Josephi, 26 Cal., p. 540; Cu-
riac vs. Packard, 29 Cal., p. 194. Tender by sureties,
of the full amount of judgment recovered, is equivalent
to payment or release by said plaintiff.-Norwood vs.
Kenfield, 34 Cal., p. 329; Curiac vs. Packard, 29 Cal.,
p. 194.

When a

motion to

attachment

made, and
upon what

556. (§ 138.) The defendant may, also, any time before the time for answering expires, apply, on discharge motion, upon reasonable notice to the plaintiff, to the may be Court in which the action is brought, or to the Judge thereof, or to a County Judge, that the attachment be discharged on the ground that the writ was improperly or irregularly issued.

NOTE.-The notice should specify in what particulars the writ was improperly issued.-Freeborn vs. Glazier, 10 Cal., p. 337. If the complaint does not state facts sufficient to constitute a cause of action and does not admit of amendment, the attachment should be dis

grounds."

Amended 1893-41.

When
motion
made on
affidavit,
it may be

opposed by
affidavit.

When writ
must be

solved; but if the complaint can be made good, the plaintiff should be allowed to amend, pending the motion to dissolve.--Hathaway vs. Davis, 33 Cal., p. 161; see, also, Subdivisions 1 and 2 of note to Sec. 537 of this Code.

557. (§ 139.) If the motion be made upon affidavits 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 attachment was made.

558. (§ 140.) If, upon such application, it satisfacdischarged. torily appears that the writ of attachment was improp erly or irregularly issued, it must be discharged.

When writ to be

returned.

NOTE.-Speyer vs. Ihmels, 21 Cal., p. 280.

559. (§ 141.) The Sheriff must return the writ of attachment with the summons, if issued at the same time; otherwise, within twenty days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto.

NOTE.-See Subdivision 3 of note to Sec. 542 of this Code. The Sheriff's return, how far conclusive.Egery vs. Buchanan, 5 Cal., p. 53. How far it may be amended.-Webster vs. Haworth, 8 Cal., p. 21; Newhall vs. Provost, 6 Cal., p. 85; Ritter vs. Scannell, 11 Cal., p. 238.

ded 1873-4.

CHAPTER V.

RECEIVERS.

SECTION 564. Appointment of Receiver.

565. Appointment of Receivers upon dissolution of corpora

tions.

566. Who shall not be appointed.

567. Oath and undertaking.

568. Powers of Receivers.

569. Investment of funds.

ment of

564. (§ 143.) A Receiver may be appointed by Appointthe Court in which an action is pending, or by the Receiver. Judge thereof:

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 owning or 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 his 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 mortgage 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 in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply his property in satisfaction of the judgment;

5. In the cases when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights;

6. In all other cases where Receivers have heretofore been appointed by the usages of Courts of equity.

NOTE.-1. RECEIVER-APPOINTMENT OF. - The County Judge cannot (as a thing distinct from the injunction) appoint a Receiver in an action pending in the District Court.-Ruthrouff vs. Kresz, 13 Cal., p. 639. The general rule is that a Receiver should not be appointed without notice to the adverse party.-People

62-VOL. I.