Page images
PDF
EPUB

or Judge, and be examined on oath respecting the same.

The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The Court or Judge may, after such examination, order personal property capable of manual delivery, to be delivered to the Sheriff on such terms as may be just, having reference to any liens thereon, or any claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof.

Perishable property attached must be sold by the Sheriff; the proceeds, and other property attached, must be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him, if the same can be done without suit. The Sheriff's receipt is a sufficient discharge for the amount paid.

Whenever property has been taken by an officer under a writ of attachment, and it is made to appear satisfactorily to the Court, or a Judge thereof, that the interest of the parties to the action will be subserved by a sale thereof, the Court or Judge may order such property to be sold in the same manner as property is sold under an execution, and the proceeds to be deposited in the Court, to abide the judgment in the action.

Whenever the defendant has appeared in the action, he may, upon reasonable notice to the plaintiff, apply to the Court in which the action is pending, or to the Judge thereof, for an order to discharge the attachment, wholly or in part; and upon the execution of the undertaking mentioned hereafter, an order may be made, releasing from the operation of the attachment any or all of the property attached; and all 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.

Before making such order, the Court or Judge must require an undertaking on behalf of the defendant, by at least two

[ocr errors]

sureties, residents and freeholders, or householders, in the State, to the effect that, in case the plaintiff recover judgment in the action, the defendant will, on demand, re-deliver the attached property iso released to the proper officer, to be applied to the payment of the judgment; or, in default thereof, that 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 one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify before the Court or Judge, and the property cannot be released without their justification, if the same be required.

The defendant may also, at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply on motion, upon reasonable notice to the plaintiff, to the Court in which the action is brought, or to the Judge thereof, that the writ of attachment be discharged, on the ground that the same was improperly or irregularly issued.

If, upon such application, it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged.

CHAPTER VIII.

CLAIM AND DELIVERY OF PERSONAL

PROPERTY

The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him.

[ocr errors][ocr errors]

Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one on his behalf, showing:

1. That the plaintiff is the owner of the property claimed (particularly describing it), or is entitled to the possession thereof.

2. That the property is wrongfully detained by the defendant.

3. The alleged cause of the detention thereof, according to his best knowledge, information and belief.

4. That it has not been taken for a tax, assessment or fine, pursuant to a statute; or seized under an execution or an attachment against the property of the plaintiff; or if so seized, that it is by statute exempt from seizure.

5. The actual value of the property.

The plaintiff or his attorney may, thereupon, by an indorsement in writing upon the affidavit, require the Sheriff of the county where the property claimed may be, to take the same from the defendant.

Upon a receipt of the affidavit and notice with a written undertaking, executed by two or more sufficient sureties, approved by the Sheriff, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit for the prosecution of the action for the return of the property to the defendant—if return thereof be adjudged, and for the payment to him of such sum as may from recovered against the plaintiff --the Sheriff must forth with take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. The Sheriff must, without delay, serve on the defendant a copy of the affidavit, notice and undertaking.

The defendant may, within two days after the service of a copy of the affidavit and undertaking, give notice to the Sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When the defendant excepts, the sureties must justify on notice before the Judge or County Clerk; and the Sheriff is responsi

any cause be

[ocr errors]
[ocr errors][ocr errors][ocr errors][merged small]

ble for the sufficiency of the sureties until the objection to them is either waived or until they justify.

At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the Sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged; and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, unless claimed by a third party, as hereafter set forth. The defendant's sureties, upon notice to the plaintiff of not less than two or more than five days, must justify before a Judge or County Clerk; and upon such justification the Sheriff must deliver the property to the defendant. The Sheriff is responsible for the defendant's sureties until they justify, or until the justification is completed or waived, and may retain the property until that time; if they, or others in their place, fail to justify at the time and place appointed, he must deliver the property to the plaintiff.

If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the Sheriff, the Sheriff is not bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him, or his agent, indemnify the Sheriff against such claim, by an undertaking, by two sufficient sureties; and no claim to such property by any other person than the defendant or his agent is valid against the Sheriff, unless so made.

The provisions contained in this chapter are applicable to cases in Justices' Courts, the word “Constable" being substituted for “Sheriff,” and “ Justice” for “ Judge."

[ocr errors]
[merged small][ocr errors][merged small][merged small]
[ocr errors]

The defendant may be arrested in a civil action in the following cases :

1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors.

2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such ; or by any other person in a fiduciary capacity; or for misconduct or neglect in office, or in a professional employment; or for a wilful violation of duty.

3. In an action to recover the possession of personal property unjustly detained, when the property or any part thereof has been concealed, removed, or disposed of, to prevent its being found or taken by the Sheriff.

4. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought.

5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.

The order of arrest is made upon affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and the case is one of those mentioned above.

« PreviousContinue »