Page images

1. Real property must be attached, by leaving with the occupant thereof, or if there be no occupant, in a conspicuous place thereon, a copy of the order certified by the sheriff:

2. Personal property, capable of manual delivery to the sheriff must be attached by taking it into his custody:

3. Other personal property must be attached by leaving a certified copy of the order, and a notice specifying the property attached, with a person holding the same, or as to a debt with the debtor, or as to stock or interest in stock of a corporation, with the president or other head of the same, or the secretary, cashier, or managing agent thereof. make a full inventory of the property attached, and return the same with the order of attachment.

The sheriff must

Amended Code, § 232 and 235, altered, so as to prescribe the sheriff's mode of proceeding without referring to existing


§ 730. Whenever the sheriff, with an order of attachment, or with an execution against the defendant, applies to any person mentioned in the third subdivision of the last section, for the purpose of attaching or levying upon the property mentioned therein, such person must furnish him with a certificate, designating the number of rights or shares of the defendant in the stock of the corporation, with any dividend or incum

[blocks in formation]

brance thereon, or the amount and description of the property held by such corporation or person, for the benefit of the defendant, or the debt owing to the defendant. If such person 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 disobedience to the order may be punished as a contempt.

Amended Code, § 236.

§ 731. If any of the property attached be perishable, the sheriff must sell the same in the manner in which property is sold on execution, and immediately deposit the proceeds with the clerk of the court. He must also collect, and if necessary, in his name of office, sue for the debts and credits attached, and deposit the amount collected with the clerk. Other property attached by him, must be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment.

Amended Code, § 233, altered, so as to dispense with a reference to existing statutes.

§ 732. The sheriff may deliver any of the property attached to the defendant, to or any other person claiming it, upon his giving a written undertaking therefor, executed by one or more sufficient sureties, engaging to re-deliver it or pay the value thereof to the sheriff, to whom execution, upon a judg

ment obtained by the plaintiff in that action, may be issued.

See 2 R. S., 5, §§ 13, 14, 15, 16, 17, 18, 19, 20, 21 and 231.33 and 34.

§ 733. If an action be brought upon such undertaking against the principal or his sureties, it shall be a defence, that the property for which the undertaking was given, did not, at the execution of the order of attachment, belong to the defendant against whom it was issued.

See 2 R. S., 5, § 17 und 231. § 36.

§ 734. If the property attached, be claimed by a third person as his property, the sheriff may summon a jury to try the validity of such claim, and such proceedings must be had thereon, with the like effect, as in case of seizure upon execution.

See 2 R S., 4, §§ 10 and 11.

§ 735. The defendant or claimant may be required to attend before the court or judge, for the purpose of giving any necessary information respecting the property attached, and may be thereupon examined on oath concerning the same.

Amended Code, § 236.

§ 736. If judgment be recovered by the plaintiff in such action, the sheriff must satisfy the same out of the property attached by him, if it be sufficient for that purpose;

1. By paying to the plaintiff the proceeds of all sales of perishable property, and of any vessel, or share or interest therein, sold by him, or of any debts or credits. collected by him, or so much as shall be necessary to satisfy the judgment:

2. If any balance remain due, and an execution shall have been issued on the judgment, he must sell under the 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 remain in his hands; and in case of the sale of any rights or shares in the stock of of a corporation, the sheriff must execute to the purchaser a certificate of the sale, and the purchaser shall thereupon have all the rights and privileges in respect thereto which were had by the defend


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, the sheriff must 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 wilfully 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 be paid, the sheriff may collect the notes, other evidences of

lebt, and debts that may have been attached, and may prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment; or, upon the order of the court, he may sell such notes, evidences and debts, and apply the proceeds in like manner.

When the judgment and costs shall have been paid, the sheriff upon reasonable demand, must deliver over to the defendant the residue of the attached property or the proceeds thereof.

Amended Code, § 237.

§ 737. The actions authorised by sections 731 and 736, to be brought by the sheriff, may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties, to the effect, that the plaintiff will indemnify the sheriff from all damages, costs and charges on account thereof, not exceeding two hundred and fifty dollars in any one action. Such sureties shall in all cases, when required by 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 debts and liabilities.

Amended Code, § 238.

§ 738. If the foreign corporation, or absent, absconding or concealed defendant, recover judgment against the plaintiff, in such action, any undertaking received by the sheriff, except such as is mentioned in the last

« PreviousContinue »