« SebelumnyaLanjutkan »
P. R., 30; 12 Ab., 189; 10 Ab., 472; 4 Ab., 223; 3 Ab., 391 ; 2
$ 223. If the court or judge deem it proper that the defen- Order to dant, or any of several defendants, should be heard before why ingranting the injunction, an order may be made requiring should not
be granted. cause to be shown, at a specified time and place, why the injunction should not be granted ; and the defendant may in the meantime be restrained.
18 N. Y., 464; 9 N. Y., 94; 6 B., 543, 562. S 224. An injunction to suspend the general and ordinary Security, business of a corporation, shall not be granted, except by the junction to court or a judge thereof. Nor shall it be granted, without Siness of due notice of the application therefor, to, the proper officers corporation of the corporation, except where the people of this state are a party to the proceeding, and except in proceedings to enforce the liability of stockholders in corporations and associations for banking purposes, after the first day of January, one thousand eight hundred and fifty, as such proceedings are or shall be provided by law, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain, by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise, as the court shall direct.
1 Ab., 228. $ 225. If the injunction be granted by a judge of the court, Motion to or by a county judge, without notice, the defendant at any modify in. time before the trial, may apply, upon notice, to a judge of Junction, the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon affidavits on the part of the defendant, with or without the answer.
17 B., 230; 8 B., 176, 440; 6 How. P. R., 183; 13 Ab., 181; 12 Ab.,
159, 294; 7 Ab., 322; 4 Ab., 284. $ 226. If the application be made upon affidavits on the Afidavite, part of the defendant, but not otherwise, the plaintiff may
on motion, oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted.
8 B., 176; 10 How. P. R., 540; 5 How. P. R., 265; 12 Ab., 159; 8 Ab.,
69; 7 Ab., 322 ; 5 Ab., 71.
cealed defendants may be attached.
SEO. 230. Security on obtaining warrant.
231. Warrant, to whom directed, and what to require.
in the action in which the attachment issued.
on his appearance in action.
243. Sheriff's fees. Actions
$ 227. In action for the recovery of the money, against a perinincor corporation created by or under the laws of any other state, non-resi.
government or country, or against a defendant who is not a
As amended by Laws of 1857, ch. 723.
413; 6 B., 562; 20 How. P. R., 405, 437; 19 How. P. R., 544; 13
335; 8 Ab., 247; 4 Ab., 72. Warrants,
$ 228. A warrant of attachment must be obtained from a biyawhom judge of the court in which the action is brought, or from granted. a county judge.
30 B., 62; 12 B., 265; 9 Ab., 336. In what
$ 229. The warrant may be issued whenever it shall appear cadere may be by affidavit that a cause of action exists against such defendissued. ant, specifying the amount of the claim and the grounds
thereof, and that the defendant is either a foreign corpora-
secrete any of his or its property, with the like intent, whether Amdarits
such defendant be a resident of this state or not. It shall be on which
the duty of the plaintiff procuring such warrant, within ten Wholeranted days after the issuing thereof, to cause the affidavits on which
CHAP, XI. the same was granted, to be filed in the office of the clerk
in county of the county in which the action is to be tried.
411, 544; 17 How. P. R., 17; 13 How. P. R., 348; 10 How. P. R.,
477; 11 Ab., 2, 345, 351; 10 Ab., 390; 9 Ab., 328, 335. $ 230. Before issuing the warrant, the judge shall require Security on a written undertaking on the part of the plaintiff, with suffi- warrant. cient surety, to the effect, that if the defendant recover judgment, or the attachment be set aside by the order of the court, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain, by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars.
As amended by Laws of 1862, ch. 460.
8 B., 656; 5 How. P. R., 386; 12 Ab., 63; 10 Ab., 424. $ 231. The warrant shall be directed to the sheriff of any warrant to county in which property of such defendant may be, and rected, and shall require him to attach and safely keep all the property require. of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand together with costs and expenses. The amount of which must be stated in conformity with the complaint, together with costs and expenses. Several warrants may be issued at the same time to the sheriffs of different counties.
As amended by Laws of 1851, ch. 479.
454; 11 Ab., 2–6; 10 Ab., 88; 9 Ab., 328. $ 232. The sheriff to whom such warrant of attachment is Mode of directed and delivered, shall proceed thereon in all respects, in execu
proceeding in the manner required of him by law in case of attachments rank.
ting war against absent debtors, shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action, and shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits and effects of the defendant. The sheriff may also take such legal proceedings either in his own name or in the name of such defendant, as may be necessary for that purpose, and discontinue the same at such times and on such terms as the court or judge may direct.
32 B., 602; 31 B., 89; 27 B., 468; 12 B., 287; 20 How. P. R., 345; 14
How. R., 347; 13 Ab., 181, 254, 443; 12 Ab., 160, 401; 11 Ab.,
6; 10 Ab., 95, 290; 9 Ab., 329 ; 8 Ab., 121; 3 E. D. S., 117, 428. $ 233. If any property so seized shall be perishable, or if Proceed. any part of it be claimed by any other person than such of perishadefendant, or if any part of it consist of a vessel, or of any ty or vessbare or interest therein, the same proceedings shall be had sels. in all respects as are provided by law upon attachments against absent debtors.
27 B., 468; 14 How. P. R., 347.
PART III. Interest in corporatione or ag
Attachment, how executed
of manual delivery.
Certificate of detendant's inte
$ 234. The rights or shares which such defendant may have
in the stock of any association, or corporation, together with Bacile icon at the interest, and profits thereon, and all other property in tachment. the state of such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution.
13 Ab., 454; 10 Ab., 88. S 235. The execution of the attachment upon any such
rights, shares, or any debts or other property incapable of on property manual delivery to the sheriff, shall be made by leaving
a certified copy of the warrant of attachment with the president or other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on.
32 B., 603; 26 B., 62; 11 How. P. R., 520; 11 Ab., 3; 4 Ab., 368; 4
E. D. S., 443; 3 E. D. S., 117. $ 236. Whenever the sheriff shall with a warrant of attach
ment, or execution against the defendant, apply to such Furnished officer, debtor or individual, for the purpose of attaching, or bo morbo levying upon, such property, such officer, debtor, or indi
vidual, shall furnish him with a certificate under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any incumbrance thereon, or the amount and description of the property, held by such association, corporation or individual, for the benefit of, or debt owing to the defendant. If such officer, debtor or individual refuse to do so, he may be required by the court or judge to attend before him, and be examined on oath, concerning the same, and obedience to such orders may be enforced by attachment.
26 B., 62; 22 How. P. R., 278; 13 Ab., 443, 469; 7 Ab., 349; 4 Ab., 368. Judgment, $ 237. In case judgment be entered for the plaintiff, in such
action, the sheriff shall satisfy the same out of the property attached by him, if it shall be sufficient for that purpose;
1. By paying over to such plaintiff the proceeds of all sales of perishable property, and of any vessel, or share, or interest in any vessel sold by him, or of any debts or 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 have been issued on such judgment, he shall proceed to sell under such execution, so much of the attached property, real or personal, except as provided in subdivision four of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his hands; and in case of the sale of any rights or shares in the stock of a corporation or association, the sheriff 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 defendant, shall have passed out of the hands of the sheriff without
having been sold or converted into money, such sheriff shall CHAP. II. re-possess himself of the same, and for that purpose shall have all the authority which he had to seize the same under the attachment, and any person who shall willfully conceal or withhold such property from the sheriff, shall be liable to double damages at the suit of the party injured;
4. Until the judgment against the defendant shall be paid, the sheriff may proceed to collect the notes, and other evidences of debt and the debts that may have been 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. At the expiration of six months from the docketing of the judgment, the court shall have power, upon the petition of the plaintiff, accompanied by an affidavit, setting forth fully all the proceedings which have been had by the sheriff since the service of the attachment, the property attached, and the disposition thereof, and also the affidavit of the sheriff that he has used due diligence and endeavored to collect the evidences of debt in his hands so attached, and that there remains uncollected of the same any part or portion thereof, to order the sheriff to sell the same, upon such terms and in such manner as shall be deemed proper. Notice of such application shall be given to the defendant or his attorney, if the defendant shall have appeared in the action. In case the summons has not been personally served on the defendant, the court shall make such rule or order, as to the service of notice and the time of service as shall be deemed just.
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.
As amended by Laws of 1859, ch. 428.
254, 454, 456, 470; 12 Ab., 14; 11 Ab., 6, 290; 8 Ab., 121.
32 B., 602; 31 B., 89; 22 How. P. R., 180; 3 How. P. R., 281. $ 239. If the foreign corporation or absent or absconding sheriff on or concealed defendant, recover judgment against the plain- how dis tiff, in such action, any bond taken by the sheriff, except such judgment as are mentioned in the last section, all the proceeds of sales for defend