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TITLE IV.

Other special actions and rights of action.

ARTICLE I. Judgment creditor's action.

2. Action by a private person upon an official bond.

3. Action by a private person for a penalty or forfeiture.

4. Certain actions to recover damages for wrongs.

5. Miscellaneous actions and rights of action.

ARTICLE FIRST.

Judgment Creditor's Action.

SEC. 1871. When judgment creditor may bring action. 1872. To what county execution must have issued.

1873. What property may be reached.

1874. Interest of judgment debtor in land contract may be reached. 1875. Id.; how applied.

1876. Injunction may be issued.

1877. Receiver may be appointed.

1878. How discovery may be compelled.

1879. Application of this article; what property cannot be reached.

§ 1871. When judgment creditor may bring action. Where an execution, against the property of a judgment debtor, issued out of a court of record, as prescribed in the next section, has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action against the judgment debtor, and any other person, to compel the discovery of any thing in action, or other property belonging to the judgment debtor. and of any money, thing in action, or other property due to him, or held in trust for him; to prevent the transfer thereof, or the payment or delivery thereof to him, or to any other person; and to procure satisfaction of the plaintiff's demand, as prescribed in the next section but one. Where the execution was issued as prescribed in section 1934 of this act, and a defendant not summoned in the original action is made a defendant in an action brought under this section, personal property, owned by him jointly with the defendants summoned or with any of them, may be applied to the satisfaction of the plaintiff's demand as prescribed in this article.

From 2 R. S. 173, Part 3, ch. 1, tit. 2, § 38 (2 Edm. 180).

See 88 217, 713, 827.

§ 1872. To what county execution must have issued. To entitle the judgment creditor to maintain an action as prescribed in the last section, the execution must have been issued as follows: 1. If, at the time of the commencement of the action, the judgment debtor is a resident of the State, to the sheriff of the county where he resides.

2. If he is not then a resident of the State, to the sheriff of the county where he has an office, for the regular transaction of business in person; or, if he has no such office within the State, to the sheriff of the county where the judgment-roll is filed, unless the execution was issued out of a court, other than the court in which the judgment

was rendered; in which case, it must have been issued to the sheriff of the county where a transcript of the judgment is filed.

See § 2458.

§ 1873. What property may be reached.

The final judgment in the action must direct and provide for the satisfaction of the sum due to the plaintiff, out of any money, thing in action, or other personal property, belonging to, or due to the judgment debtor, or held in trust for him, which is discovered in the action; whether the same might or might not have been originally taken, by virtue of an execution.

From part of § 39 of the R. S.

§ 1874. Interest of judgment debtor in land contract may be reached.

The final judgment in the action must also direct and provide for the satisfaction of the sum due to the plaintiff, out of the interest, if any, of the judgment debtor, in a contract for the purchase of real property by him; either by selling the interest. or by transferring it to the judgment creditor, in such a manner and upon such terms, as the court deems most conducive to the interests of the parties. Where the person bound to perform the contract to the judgment debtor, is a defendant in the action, the final judgment may direct a specific performance of the contract to the judgment creditor, or where the interest in the contract is directed to be sold, to the purchaser.

From R. S. 744, Part 2, ch. 1, tit. 4, part of § 4 and § 5 (1 Edm. 696).

§ 1875. Id.; how applied.

In a case specified in the last section, the value of the interest of the judgment debtor holding the contract must be ascertained, under the direction of the court; and so much thereof as is necessary must be applied to the payment of the sum due to the plaintiff, and the residue, if any, to the benefit of the judgment debtor.

From Id., § 6.

§ 1876. Injunction may be issued.

A temporary injunction, restraining the transfer to any person, or the payment or delivery to the judgment debtor, of any money, thing in action, or other property or interest, which may, by the provisions of this article, be applied to the satisfaction of the sum due to the plaintiff, may be granted in the action. The injunction, and the proceedings before and after it is granted. are governed by the provisions of article first of title second of chapter seventh of this act; for which purpose, the injunction is deemed to be one of those specified in section 603 of this act.

From 2 R. S. 174, Part 3, ch. 1. tit. 2, § 39 (2 Edm. 180).

§ 1877. Receiver may be appointed.

The court may, by an order, or by the interlocutory or final judgment in the action, appoint a receiver of any or all of the property of the judgment debtor; and may direct the judgment debtor, or any other defendant in the action, to convey or deliver to the receiver, as justice requires, any property, real or personal, book, voucher, or other paper, or to execute any instrument, which it deems necessary, for perfecting or assuring the receiver's title or possession.

See 714-716, 718.

§ 1878. How discovery may be compelled.

A discovery may be compelled in an action, brought as prescribed in this article, by directing the person, required to make it, to appear before the court, or a referee appointed by it, and to be examined under oath, concerning the matters pertaining to the discovery. But this section does not affect the right of the plaintiff, to cause the deposition of a defendant to be taken, as prescribed in article first of title third of chapter ninth of this act.

See rule 14 (Sup. Ct.).

§ 1879. Application of this article; what property cannot be reached.

This article does not apply to a case, where the judgment debtor is a corporation, created by or under the laws of the State. Nor does it authorize the discovery or seizure of, or other interference with, any property, which is expressly exempted by law from levy and sale, by virtue of an execution; or any money, thing in action, or other property. held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor; or the earnings of the judgment debtor for his personal services, rendered within sixty days next before the commencement of the action, where it is made to appear, by his oath or otherwise that those earnings are necessary for the use of a family, wholly or partly supported by his labor.

From 2 R. S. 73, § 38.

ARTICLE SECOND.

Action by a Private Person upon an Official Bond.

SEC. 1880. Application for leave to sue sheriff's bond; proof required. 1881. Order granting leave; action thereupon.

1882. Successive actions.

1883. Indorsement upon executions.

1884. Collection of execution: when a defence to subsequent action.
1885. When claimants entitled to ratable distribution.

1886. Action upon a surrogate's bond.

1887. Action upon a county treasurer's bond.

1888. Action upon official bonds of other officers.

1889. Actions, etc., under the last three sections, regulated.

1890. Receivers, etc., deemed public officers.

1891. Demand of money; when necessary before application.
1892. Application may be made ex parte.

§ 1880. Application for leave to sue sheriff's bond; proof required.

Where a sheriff is liable for the escape of a prisoner committed to his custody, or is guilty of any other actionable default or misconduct in his office, the person injured thereby may apply to the supreme court for leave to prosecute the sheriff's official bond. The application must be accompanied with proof, by affidavit, of the default or misconduct complained of, and that satisfaction of the same has not been received; and with a certified copy of the official bond.

From 2 R. S. 470, Part 3, ch. 8, tit. 5, §§ 1 and 2 (2 Edm. 498).
Am'd by ch. 946 of 1895:

§ 1881. Order granting leave; action thereupon.

Upon such an application, the court must grant an order, permitting the applicant to maintain an action upon the bond. The action must be brought, in the court which granted the order, by the applicant as plaintiff; and it may be maintained, as if the applicant was the obligee named in the bond, except as otherwise expressly prescribed in this article.

From Id., 3; 1 R. S. 378, § 67 (1 Edm. 351).

§ 1882. Successive actions.

The same, or any other applicant may, in like manner, either before or after judgment in the first action, obtain an order, permitting him to maintain another action, in the same court, upon the same bond, for another default or misconduct. Any number of such orders may be successively made; and neither of the actions authorized thereby is affected by the pendency of, or the recovery of judgment in, any other, except as otherwise expressly prescribed in this article.

From Id., §§ 5, 6, 7 and 8.

Am'd by ch. 946 of 1895.
See § 1886.

§ 1883. Indorsement upon execution.

Where an execution is issued upon a judgment recovered against the sheriff and any of his sureties, in an action, brought pursuant to the last four sections, the plaintiff's attorney must indorse thereon a direction to collect the same, in the first place, out of the property of the

sheriff, and, if sufficient property of the sheriff cannot be found, then to collect the deficiency out of the property of the surety or sureties. From Id., § 15.

§ 1884. Collection of execution; when a defence to subsequent action.

It is a defence by a surety, against whom an action is brought upon a sheriff's official bond, that he, or any other surety or sureties, have been or will be compelled, for want of sufficient property of the sheriff. to pay, upon one or more judgments recovered against him or them, upon the same bond, an aggregate amount, exclusive of costs, officers' fees, and expenses, equal to the sum for which the defendant is liable, by reason of the bond. It is a partial defence, that the difference between the aggregate amount, so paid, or to be paid, and the sum for which the defendant is thus liable, is less than the amount of the plaintiff's demand.

From Id., §§ 12, 13 and 14.

§ 1885. When claimants entitled to ratable distribution. If the aggregate amount of the liabilities, which might be recovered by actions upon the sheriff's official bond, as prescribed in this article, exceeds the sum for which the sureties are liable, the court must, upon the application of a person who has obtained leave to prosecute the bond, made upon notice to the plaintiff's attorney, in each action then pending upon the sheriff's official bond, and in each uncollected judgment recovered thereupon, direct and provide for the distribution of the money, collected out of the property of the sureties, among the persons in favor of whom the liabilities have accrued, in proportion to the amount which each one is entitled to recover; to be ascertained by a reference, or in such other manner as the court directs. For the purposes of the motion, an order may be made by a judge, forbidding the payment, to the plaintiff in any action of the sum collected or to be collected, by virtue of a judgment therein. But this section does not authorize the court to compel a plaintiff to refund any money, collected and received by him, in good faith, before service or notice of such an order.

From Id., §§ 17 and 18.

§ 1886. Action upon a surrogate's bond.

Where a surrogate, or an officer acting as surrogate, is guilty of any actionable default or misconduct in his office, the person injured thereby may apply for leave to prosecute the delinquent's official bond.

From Id., §§ 19 and 20, as modified by ch. 213 of 1858 (3 Edm. 340).

§ 1887. Action upon a county treasurer's bond.

Where a certified copy of the order or judgment of a court, directing a county treasurer to pay or deliver, to one or more persons designated therein, any money, stocks, securities, or other investments held by him, subject to the direction of that court, is served upon the county treasurer, if he fails to obey the direction, the person injured thereby may apply for leave to prosecute his official bond. Service upon a

county treasurer, as required by this section, may be made personally, or by leaving the paper, either at his office, during his absence therefrom, with a person of suitable age and discretion, having charge of the office, or at his residence, or his last residence within the county, with a person of suitable age and discretion.

From ch. 524 of 1874, §§ 1 and 2 (9 Edm. 966).

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