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section, all the proceeds of sales and money collected by him, and all the property attached remaining in his hands, must be delivered by him to the defendant or his agent on request; the order of attachment must be discharged, and the property released therefrom.

Amended Code, § 239.

§ 739. Whenever the defendant shall have appeared in the action, he may apply to the judge who issued the attachment, or to the court, for an order to discharge the same, upon the execution of the undertaking mentioned in the next section; and if the application be granted, all the proceeds of sales and moneys collected by the sheriff, and all the property attached remaining in his hands, must be released from the attachment, and delivered to the defendant.

Amended Code, § 240.

§ 740. Upon such application, the defendant must deliver to the court or judge an undertaking executed by at least two sureties, resident and freeholders in this state, approved by such court or judge, to the effect, that the sureties will on demand pay to the plaintiff, the amount of the judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which must be at least double the amount claimed by the plaintiff in his complaint.

Amended Code, § 241.

§ 741. The defendant may also, any time before the time for answering expires, apply on motion to vacate the order of attachment.

Conformable to the provision, in similar cases made in previous chapter.

§ 742. 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 order of attachment was made.

Conformable to the provision, in similar cases in previous chapters.

§ 743. When the order of attachment is fully executed or discharged, the sheriff must return the same with his proceedings thereon, to the court in which the action was brought.

Amended Code, § 242.



SECTION 744. Receiver of property in litigation, may be appointed.

745, Powers of a receiver.

§ 744. In the cases mentioned in the first subdivision of section 546, the court may provisionally appoint a receiver of property; and may protect and support him in the proper discharge of his duties.

This chapter and the next, with sections 545, 546 and 547, are designed to fill up the space left in our first report, and there indicated by section 200. The chapters explain themselves, and will be found, we think to answer the purposes designed.

§ 745. A receiver subject always to the control of the court, has power to bring and defend actions; to take and keep possession of property; collect debts; receive the rents and profits of real property; and generally to do such acts in respect to the property committed to him, as the court may authorize.



SECTION 746. When court may order a payment or deposit of the subject of litigation.

747. Manner of enforcing the order.

§ 746. When it is admitted by the pleading, or examination, of a party, that he has in his possession, or under his control, any money or other thing, capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs, or is due, to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court.

§ 747. Whenever, in the exercise of its authority, a court shall have ordered the deposit, or delivery, of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience, may make an order requiring the sheriff to take the money or thing,


and deposit or deliver it, in conformity with the direc

tion of the court.



CHAPTER I. Judgment in general.

II. Judgment upon failure to answer.

III. Issues and the mode of trial.

IV. Trial by jury.

V. Trial by the court.

VI. Trial by referees.

VII. Provisions relating to trials in general.

VIII. The manner of giving and entering judgment.





A judgment defined.

When several defendants, judgment may be, for or against any. 750. Judgment may be given as to some, and action continued as to others. 751. Judgment except upon failure to answer not limited to the relief asked in complaint.

752. Judgment dismissing action when given.

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748. A judgment is the final determination of the rights of the parties in the action.

Amended Code, § 245.

§ 749. Judgment may be given, for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may, when the justice of the case require it, determine the ultimate rights of the parties on each side, as between themselves.

Amended Code, § 274.

§ 750. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.

Amended Code, § 274

§ 751. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court my grant him any relief consistent with the case made by the complaint, and embraced within the issue.

Amended Code, § 275.

§ 752. The action may be dismissed without a final determination of its merits, in the following cases:

1. By the plaintiff himself, at any time before trial, if a provisional remedy has not been allowed, or counter claim made :

2. By either party, with the written consent of the other:

3. By the court, when, upon the trial and before the final submission of the case, the plaintiff abandons it;

4. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal;

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