same judge, in court or out of court, and with or without no- 3 BEL tice, as he deems proper. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, 13 must be made to the court. or, if the warrant was granted by a judge out of court. to any judze of the cart. upon notice; and it may be opposed by new proof, by afiant, te the part of the plaintiff, tending to sustain any gruded for the attache ment, recited in the warrant, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent, proceedings; in which case, the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial § 684. [Repealed 1877.] § 685. [Repealed 1877.] § 686. [Am'd 1877.] The denial of such an application does not prejudice a subsequent application, seasonat y made, founded upon the failure of a complaint which had not been filed or served at the time of the former application, to set forth any of the causes of action mentioned in section six hundred and thirty-five and section six hundred and thirty-seven of this act. § 687. The defendant may, at any time after he has ap- 3 Abb. N. C. peared in the action, and before final judgment, apply to the 9. judge who granted the warrant, or to the court for an order to discharge the attachment, as to the whole or a part of the property attached. § 688. [Am'd 1877.] Upon such an application, the de- 16 Hun, 624; fendant must give an undertaking, with at least two sufficient 30 Id. 19. sureties, to the effect that he will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specified in the undertaking, with interest. The sum so specified must be at least equal to the amount of the plaintiff's demand, as specified in his affidavit; or, at the option of the defendant, equal to the appraised value, according to the inventory, of the property attached; or, if the application is to discharge the attachment, as to a part only of the property attached, to the appraised value of that portion. § 689. Where there are two or more defendants, and an application is made, as prescribed in the last two sections, by one or more, but not by all of them, the undertaking must provide for the payment of any judgment, which may be recovered against any of the defendants in the action, unless the applicant makes proof, by affidavit, to the satisfaction of the court or judge, that the property, with respect to which the application is made, belongs to him separately; in which case, the undertaking must provide for the payment of any judgment, which may be recovered in the action against the applicant, either alone or jointly with any other defendant. Where an application is made, as prescribed in this section, at least two days' notice thereof, with a copy of the affidavit, must be served upon the plaintiff's attorney, who may oppose the application by proof, by affidavit, that one or more of the other defendants own, or have an interest in the property. § 690. [Am'd 1877.] An undertaking, given as prescribed in the last two sections, must be forthwith filed with the clerk. A copy thereof, with a notice of the filing must be forthwith served upon the plaintiff's attorney; who may, within three days thereafter, give notice to the sheriff, that he excepts to the sufficiency of the sureties. Thereupon the sureties must justify upon the like notice, and in like manner, as bail upon an arrest; or a new undertaking must be given, with new sureties, who must justify in like manner. If the plaintiff does not except, as prescribed in this section, he is deemed to have waived all objection to the sureties. § 691. The sheriff is responsible for the sufficiency of the sureties; and he may retain possession of the property attached, and the proceeds thereof, until the objection to them is waived, as prescribed in the last section, or they, or the new sureties, justify. § 692. The last five sections are applicable, where a vessel, or a share or interest therein is attached. If it is necessary, to enable the defendant to discharge the attachment, the court or judge may, by order, stay any proceedings specified in article second of this title, or extend the time to do any act therein specified. § 693. If a warrant of attachment is levied upon the interest of one or more partners, in goods or chattels of a partnership, the other partners, who are not defendants in the action, or any of them, may at any time before final judgment, apply to the judge who granted the warrant, or to the court, upon an affidavit showing the facts, for an order to discharge the attachment, as to that interest. § 694. [Am'd 1877.] Upon such an application, the applicant must give an undertaking, with at least two sufficient sureties, to the effect that they will pay to the sheriff, on demand, the amount of any judgment, which may be recovered against the partner who is defendant in the action; or which may be recovered against him, in any other action, wherein the other partners are not defendants, and wherein a warrant of attachment, or an execution, may come to the sheriff's hands, at any time before the warrant of attachment, which was so levied, is vacated or annulled; not exceeding a sum, specified in the undertaking, which must not be less than the value of the interest of the defendant, in the goods or chattels seized by virtue of the attachment, as fixed by the court or judge. If the value, in the opinion of the court or judge, is uncertain, the sum shall be such as the court or judge determines. § 695. For the purpose of fixing the sum, or determining the sufficiency of the sureties, the court or judge may receive affidavits or oral testimony, or may direct a reference. $696. [Am'd 1877.] The court or judge may direct, that the plaintiff have notice of an application for a discharge of property, as prescribed in this article, or of the hearing under an order of reference, made as prescribed in the last section; and if the applicant does not appear, where notice has been given, the application may be dismissed or denied. ARTICLE FOURTH. REGULATIONS WHERE THERE ARE TWO OR MORE WARRANTS 2697. Preferences of two or more warrants. 698. Rule as to levy under a junior warrant. 701. Undertaking, by junior attaching creditor, to prevent release of foreign vessel. 702. Rule as to subsequent attachment of foreign ves sel. 2 703. Rights of junior plaintiff in § 697. Where two or more warrants of attachment, 124 N.Y. 613. against the same defendant, are delivered to the sheriff of the same county, to be executed, their respective preferences, and the rules, where a levy, or a levy and sale, have been made under a junior warrant, are the same, as where two or more executions, against the property of the same defendant, are delivered to the sheriff of the same county, to be executed. § 698. Where a domestic vessel, or a share or interest therein, has been attached, and afterwards released, as prescribed in this title; or where the personal property of a partnership, of which the defendant was a member, has been attached, and the attachment afterwards discharged, upon the application of another partner, as prescribed in this title ; another warrant, against the same defendant, shall not be levied on the same property, by the sheriff of the same or of any other county, until after the first warrant has been vacated or annulled. But, except as thus prescribed, where a second warrant, against the same defendant, is delivered to the same sheriff, he must execute it, by a levy upon property within his county, and he must thereupon take the same proceedings, as if the levy was made under the first warrant. § 699. [Repealed 1877.] § 700. [Repealed 1877.] § 701. Where a foreign vessel, or a share or interest therein, has been attached and valued, as prescribed in article second of this title, and the plaintiff, in the first warrant of attachment, fails to give an undertaking to prevent the release thereof, the court or judge may grant to the plaintiff in a second warrant, then in the sheriff's hands for execution, an extension, of not more than three days thereafter, within which to furnish an undertaking, in all respects like the one to be furnished by the first plaintiff. And if he furnishes it, within that time, he has the same rights and privileges, and is subject to the same duties and liabilities, with respect to the vessel and its proceeds, and the subsequent proceedings relating thereto, as if his was the first warrant. § 702. If a foreign vessel, or a share or interest therein, has been attached, and afterwards released, by reason of the failure of the plaintiff, in the first or the second warrant, to give an undertaking to prevent the release, it shall not be again attached, under warrant against the same defendant, which had been delivered to the sheriff of the same county, before the expiration of the time within which the undertaking should have been furnished. But it may be again attached, under a subsequent warrant against the same defend ant; in which case, the plaintiff therein, and the plaintiff in each warrant subsequently delivered to the sheriff, have the same rights, and privileges, and are subject to the same duties and liabilities, with respect to the vessel and its proceeds, and the subsequent proceedings relating thereto, as if the warrant, under which it was attached, was the first warrant. § 703. Where the plaintiff in a warrant of attachment has commenced an action, in the name of himself and the sheriff jointly, as prescribed in this title, a plaintiff in a junior warrant may apply to the court or judge, to direct as to the conduct, discontinuance, or settlement of the same, or to impose terms, conditions and regulations as to the continuance thereof, in the interest of the applicant; and such order may be made thereupon, as justice requires. If the first warrant is vacated, or the attachment thereunder is released or discharged, without affecting the cause of action prosecuted by the plaintiff therein and the sheriff jointly, the plaintiff in the warrant next in order, may, upon his own application, be substituted as joint plaintiff with the sheriff, by an order, made as upon an application for leave to bring such an action. 704. A plaintiff in a second warrant may apply to the court or judge, upon notice to the plaintiff in the first warrant, and to the sheriff, for leave to bring and maintain, in the name of himself and the sheriff jointly, any action, which might be brought in the name of the senior plaintiff and the sheriff. If it appears that the plaintiff in the first warrant neglects or refuses to be joined with the sheriff in such an action, or to comply with the terms, conditions, and regulations, imposed, either upon granting him an order for that purpose, or upon the hearing of an application, made as prescribed in this section, the court or judge may grant to the plaintiff in the second warrant, leave to bring and maintain such an action, in the name of himself and the sheriff jointly, with like effect, as if his was the first warrant. § 705. Where there are more than two warrants of attachment, against the same defendant, the plaintiffs in the third and each subsequent warrant have, according to their respective priorities, the same rights and privileges, as against the plaintiffs in all senior warrants, which the plaintiff in the second warrant has, as against the plaintiff in the first, and are subject to the same duties and liabilities; except that a second extension of the time, within which to furnish an undertaking to prevent the release of a foreign vessel, or a share or interest therein, shall not be granted. And the plaintiffs in two or more junior warrants of attachment, may, by agreement among themselves, take jointly, and for their common benefit, any proceeding, permitted by this title to be taken, by the plaintiff in a second or subsequent warrant of attachment; provided that it does not interfere with the preferential or other right of an intermediate plaintiff. ARTICLE FIFTH. PROCEEDINGS AFTER JUDGMENT; RIGHTS OF PARTIES AND DUTIES OF THE SHERIFF, AFTER THE WARRANT IS VACATED OR ANNULLED, OR THE ATTACHMENT DISCHARGED. 2706. Execution to issue to sher- 2707. Only attached property iff who has levied. bound when summons not personally served. § 706. Where a levy, under a warrant of attachment in an action, has been made, an execution against property, upon a final judgment in favor of the plaintiff therein, recovered after the expiration of the term of office of the sheriff, who made the levy, must nevertheless be directed to an executed by that sheriff, unless another person is designated by law to complete the unfinished business pertaining to his office; or, in that case, to the person so designated. § 707. [Am'd 1877.] Where a defendant, who has not appeared, is a non-resident of the State, or a foreign corporation, and the summons was served without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, the judgment can be enforced only against the property which has been levied upon, by virtue of the warrant of attachment, at the time when the judgment is entered. But this section does not declare the effect of such a judgment, with respect to the application of any statute of limitation. § 708. [Am'd 1877.] Where an execution against property is issued upon a judgment for the plaintiff, in an action in which a warrant of attachment has been levied, the sheriff must satisfy it, as follows: 1. He must pay over to the plaintiff all money attached by him, and the proceeds of all sales of perishable property, or of any vessel or share or interest therein, or animals, sold by him, or of any debts, or other things in action collected or sold by him; or so much thereof as is necessary to satisfy the judgment. 2. If any balance remains due, he must sell, under the execution, the other personal property attached, or so much thereof as is necessary; including rights or shares in the stock of an association or corporation, or a bond or other instrument for the payment of money, executed and issued, with the interest coupons annexed, if any, by a government, State, county, public officer, or municipal or other corporation, which is in terms negotiable, or payable to the bearer or holder, the principal whereof is not then payable; but not including any other debt or thing in action. If the proceeds of that property are insufficient to satisfy the judgment, and the execution requires him to satisfy it out of any other personal property of the defendant, he must sell the personal property, upon which he has levied by virtue of the execution. If the proceeds of the personal property, applicable to the execution, are insufficient to satisfy the judgment, the sheriff must sell, under the execution, all the right, title, and interest, which the defendant had in the real property attached, at the time when the notice was filed, or at any time afterwards, before resorting to any other real property. 19 Week. Dig. 46. 3. If personal property attached, belonging to the defend- 94 N. Y. 509. ant, has passed out of the hands of the sheriff, without having been sold or converted into money, and the attachment has * So in original. |