how ascer injunction, if the court shall finally decide that the plain- Damages, tiff was not entitled thereto. The damages may be ascer- tained, tained by a reference, or otherwise, as the court shall direct. The undertaking must be approved and filed with the clerk of the court. A non-resident plaintiff must give a resident surety who can justify. Sheldon vs. Alberton, 1 Sand. 700. show cause junction be granted. § 223. [Sec. 196.] If the court or judge deem it proper order to that the defendant, or any of the several defendants, should why inbe heard before granting the injunction, an order may be should not made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the 1849. defendant may in the meantime be restrained. The defendant may read in opposition to the motion, the affidavits of third persons, although he has put in his answer denying the whole merits of the complaint. The answer in such case is only used as an affidavit. Florence vs. Bates, 2 Sand. 675. Amended upon in suspend corporation § 224. [Sec. 197.] An injunction to suspend the general Security, and ordinary business of a corporation, shall not be grant- junction to ed, except by the court or a judge thereof. Nor shall it be business of granted, without due notice of the application therefor, to Amended the proper officers of the corporation, except where the peo- 1849. ple 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. Motion to vacate or § 225. [Sec. 198.] If the injunction be granted by a judge modify in- of the court, or by a county judge, without notice, the defendant at any time before the trial, may apply, upon notice, junction. Affidavits, to a judge of 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. An appeal from an order granting an injunction, does not stay the injunction; and if the defendant violate it, pending the appeal, an attachment will issue against him. Stone vs. Carlan and others, 2 Sand. 738; S. C., 3 3 Code Rep. 103. What proof is necessary? See Osborn vs. Lobdell, 2 Code Rep. 77. § 226. [Sec. 199.] If the application be made upon affidaon motion. vits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted. Pleadings when verified to be considered affidavits on this motion. Florence vs. Bates, 2 Sand. 675; Schoonmaker agt. the minister, &c., of the church of Kingston, 5 How. 265; Krom agt. Haydan and others, 4 How. 225; S.-C. 2 Code Rep. 144. Contra, Hartwell vs. Kingsley, 2 Sand. 674, and note; Roome and another vs. Webb, 3 How. 327; Servoss vs. Stunnard, 2 Code Rep. 56. Although the cases disagree as to whether pleadings duly verified may be read and considered as affidavits, on a motion to dissolve an injunction, they all agree that a complaint duly verified is not such an affidavit as would be sufficient to authorize the issuing an injunction. See section 220 and notes. SECTION 227. CHAPTER IV. Attachment. Property of foreign corporations and of non-resident or ab- 228. Warrant by whom granted. 229. In what cases warrant may be granted. 230. Security on obtaining warrant. 231. Warrant, to whom directed, and what to require. 232. Mode of proceeding in executing warrant. 233. Proceeding in case of perishable property or vessels. 234. Interest in corporations or associations, liable to attachment. delivery. 236. Certificate of defendant's interest to be furnished by corpo ration. 237. Judgment, how satisfied. 238. When action to recover notes, &c., of defendant may be 239. Bond to sheriff on attachment, how disposed of, on judgment for defendant. 240. Discharge of attachment and return of property, or its pro- 241. Undertaking on the part of the defendant. 242. When sheriff to return warrant and proceedings thereon. Sheriff's fees. foreign tions, and of non-re absconding ed defend be attached § 227. In an action for the recovery of money, against Property of a corporation created, by or under the laws of any other corpora state, government, or country, or against a defendant who sident or is not a resident of this state, or against a defendant who or concealhas absconded or concealed himself as hereinafter men- ants may tioned, the plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of such 1849. defendant attached, in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover. In what cases attachment may issue. Hernstein agt. Matthewson, 5 How. 196; Burrows vs. Miller and others, 4 How. 349; Brewster and others vs. Honigsburger and others, 2 Code Rep. 50; Morgan vs. Avery id. 91; Conklin and Conklin agt. Dutcher, 5 How. 386; Morgan vs. Avery, 7 Barb. 656. The attachment may be served after the summons, Hulbert vs. the Hope Mutual Ins. Co. 4 How. 275. Attachments cannot be issued in the Superior Court (N. Y. city) except in cases where the court has jurisdiction. Fisher and others vs. Curtis, 2 Sand. 660; S. C. 2 Code Rep. 62. Passed Warrant, by whom granted. Passed 1849. In what cases war be issued. Passed 1849. § 228. A warrant of attachment must be obtained from a judge of the court in which the action is brought, or from a county judge. § 229. The warrant may be issued whenever it shall rant may appear by affidavit, that a cause of action exists against such defendant, specifying the amount of the claim, and the grounds thereof, and that the defendant is either a foreign corporation, or not a resident of this state, or has departed therefrom with intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein with the like intent. obtaining 1849. Security on § 230. Before issuing the warrant, the judge shall rewarrant. quire a written undertaking on the part of the plaintiff, Passed with sufficient surety, to the effect, that if the defendant recover judgment, 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. whom di rected, and what to re quire. Passed 1849. Warrant to § 231. The warrant shall be directed to the sheriff of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as may be Amended 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. 1851. Mode of proceeding ting warrant. § 232. The sheriff to whom such warrant of attachment in execu- is directed and delivered, shall proceed thereon in all respects, in the manner required of him by law in case of attachments 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 Passed 1849. 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. ings in case ble proper sels. § 233. If any property so seized shall be perishable, or if Proceedany part of it be claimed by any other person than such de- of perishafendant, or if any part of it consist of a vessel, or of any ty or vesshare or interest therein, the same proceedings shall be passed had in all respects as are provided by law upon attachments against absent debtors. 1849. corpora liable to at § 234. The rights or shares which such defendant may Interest in have in the stock of any association, or corporation, to- tionions gether with the interest, and profits thereon, and all other tachment. property in this state of such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution. Passed ment, how on property of manual delivery. § 235. The execution of the attachment upon any such Attachrights, shares, or any debts or other property incapable of executed manual delivery to the sheriff, shall be made by leaving a incapable 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. Passed 1849. of defend est to be by corporations. § 236. Whenever the sheriff shall with a warrant of at- Certificate tachment, or execution against the defendant, apply to ant's intersuch officer, debtor or individual, for the purpose of at- furnished taching, or levying upon, such property, such officer, debtor, or individual, shall furnish him with a certificate Passed 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 1849. |