TITLE 2. dence, or to give a bond. In the latter respect, the case has been overruled by Taylor v. Heath, 4 Denio, 592; Bennett v. Brown, 4 N. Y. (4 Comst.), 254; and numerous other cases. But it has been assumed, if not expressly decided, that the legislature intended, by the non-imprisonment act of 1831, to authorize an attachment to be issued against a non-resident defendant, without proof of any of the facts required by § 26 of the R. S., or § 34 of the act of 1831. Van Kirk v. Wilds, 11 Barb., 520; Williams v. Barnaman, 19 Abb. Pr., 70; Bascom v. Smith, 31 N. Y., 595. It seemed to the commissioners to be unnecessary and plainly unjust, to seize a person's property, upon an ex parte allegation of the existence of a demand, simply because such property happens to be found out of the county where the alleged debtor resides; and, accordingly, this article abolishes that practice; extending, however, the right to issue an attachment, to cases where the defendant is about to remove his property from the county where it is found, as well as from the county where he resides. The earlier cases laid down very stringent rules, in regard to the manner in which the fraudulent intent of the defendant must be stated in the affidavit. This has been a very fruitful source of controversy; and the reports are full of cases, where it has been held, that an attachment was void, for the want of proper allegations in the affidavit upon which it was founded. So stringent were those rulings that, at one time, it appeared to be almost necessary to prove the defendant's fraudulent intent by direct and affirmative evidence, so that the cases were rare, in which the plaintiff could obtain a valid attachment; for it is not often that a debtor, designing to cheat his creditors, manifests his intention in such a manner, that it is susceptible of direct proof. But the case of Schoonmaker v. Spencer, 54 N. Y., 366, authoritatively established much less stringent rules than the former cases. See, also, Horton v. Fancher, 14 Hun, 172. The provisions of this article so nearly resemble those of the sections relating to attachments in the principal courts of record, that doubtless the decisions under the latter, which establish rules allowing the attachment to be made a remedy of great practical value, will be generally applicable to this article, upon the question which has given rise to most of the difficulties referred to. SEC. 2905. In what actions, warrant of attachment may be granted. 2906. What must be shown to procure a warrant. 2907. Warrant; form and contents thereof. 2908. Undertaking. 2909. Warrant; how executed. 2910. Service of summons and warrant upon defendant. 2911. Undertaking by defendant; re-delivery to him. 2912. Claim by third person; bond and delivery thereupon. ABT. 4. SEC. 2914. When defendant may prosecute bond. 2915. Return of warrant. 2916. Motion to vacate or modify warrant, etc. 2917. Effect of vacating warrant. 2918. Proceedings where summons not personally served. actions, warrant of ment may § 2905. In an action brought before a justice of the peace, a In what warrant of attachment against the property of one or more defend- attachants must be granted, upon the application of the plaintiff, as be granted. prescribed in this article, where the action is brought upon a judgment, or to recover for one or more of the following causes: 1. Breach of a contract, express or implied. 2. Wrongful conversion of personal property. 3. Any other injury to personal property, in consequence of negligence, fraud, or other misconduct. [Substituted for parts of §§ 26 and 27 of tit. 4, ch. 2, Part 3 of the R. S. (3 R. S., 5th ed., 430; 2 Edm., 245), and framed in accordance with the principles stated in the preliminary note to this article. The words, "rendered within this State," are omitted after "judgment," so as to make the section correspond, in that respect, to L. 1831, ch. 300, § 34 (4 Edm., 473).] § 2906. To entitle the plaintiff to such a warrant, he must show, What mus by affidavit, to the satisfaction of the justice, as follows: 1. That a sufficient cause of action exists against the defendant, to recover damages for one or more of the causes specified in the last section. If the action is upon a judgment, or to recover for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him. 2. That the defendant is either a foreign corporation; or not a resident of the State; or, if the defendant is a natural person, and a resident of the State, that he has departed, or is about to depart, from the county where he last resided, with intent to defraud his creditors, or to avoid the service of a summons; or keeps himself concealed, with the like intent; or, if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the county where the defendant, being a natural person, last resided, or, being a corporation, last kept its principal office, or from the county in which the action is brought, with intent to defraud his or its creditors; or has assigned, disposed to procuro a warrant. TITLE 2. of, or secreted, or is about to assign, dispose of, or secrete, property, with the like intent; or that the defendant, being a natural person of full age, and a resident of the State, has been continuously without the United States for the space of six months or more, immediately before the application, and either that he has not made a designation of a person, upon whom to serve a summons in his behalf, as prescribed in section 430 of this act, or that service upon the person so designated cannot be made, with due diligence, in the county where the person making the designation resides. Warrant; form and contents thereof. The affidavit must be filed with the justice. when the warrant is granted.(*) [The remainder of § 26, and part of § 28 of the R. S., and L. 1831, ch. 300, § 34 (3 R. S., 5th ed., 462; 4 Edm., 473), consolidated, and amended by omitting the provision as to who shall make the affidavit, thus allowing the plaintiff to prove the facts by any competent testimony; by including a case where the defendant is a foreign corporation, and adding provisions appropriate to that case, including the removal, etc., of property of such a corporation from the county in which the action is brought; also, by adding the provision for a case, where the defendant is absent from the State, without having made a designation under $430 of this act; and by adding the last sentence. words, "with due diligence", will enable the justice to grant the attachment, if it clearly appears that an attempt to serve the summons upon the person designated would be fruitless, without the effort having been actually made, as § 438 requires in courts of record. The § 2907. The warrant must be granted by the justice who issues the summons, at the time when the summons is issued; and it must be indorsed thereupon, or annexed thereto. It must be subscribed by the justice, and must briefly recite the ground of the attachment. It must require the constable, to whom the summons is delivered, to attach, on or before a day specified therein, which must be at least six days before the return day of the summons, and safely to keep, as much of the defendant's goods and chattels, within his county, as will satisfy the plaintiff's demand, with the costs and expenses, and to make return of his proceedings thereon to the justice, at the time when the summons is returnable. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit. [Sec. 30 of the R. S., amended by adding the first sentence, and the clause specifying the time when the attachment is to be made, in lieu of the provision in the original, specifying the time when the return 28 is to be made. Section 2909, post, provides, in analogy to the existing statute, that the warrant must be executed six days before the return day; and it is eminently proper, that this restriction should appear upon the face of the warrant.] ART. 4. taking. § 2908. Before granting the warrant, the justice must require a Underwritten undertaking to the defendant, on the part of the plaintiff, with one or more suretics, approved by the justice, to the effect that, if the defendant recovers judgment, or the warrant of attachment is vacated, the plaintiff will pay all costs which 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 must be at least two hundred dollars; and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment, and interest thereupon. [Id., § 29, amended by substituting an undertaking for a bond, thus abrogating the ruling, under the former statute, in Tiffany v. Lord, 65 N. Y., 310, that a bond was necessary; and by inserting the words, "or upon any bond given therefor," to protect the defendant from a possible loss under $2913, post. Sections 728-730 and 810-816, relating to undertakings and affidavits, are applicable to justices' courts. See § 3347, subd. 6.]() how exe § 2909. The constable, to whom the warrant of attachment is Warrant; delivered, must execute it at least six days before the return day of the cuted. summons, by levying upon and taking into his custody so much of the goods and chattels of the defendant, not exempt from levy and sale by virtue of an execution, including money and bank-notes, which he finds within his county, as will satisfy the plaintiff's demand, with the costs and expenses. He must safely keep the property attached, to be disposed of as prescribed in this article, and must immediately make an inventory thereof, stating therein the estimated ralue of each item or article. [Id., the first part of § 31, amended as required by the general plan of this article.] $2910. The constable must, immediately after making the inventory, and at least six days before the return day of the summons, serve the summons, together with the warrant of attachment and inventory, upon the defendant, by delivering to him personally a copy 29 Service of and war summons rant upon defendant. TITLE 2. Undertaking by defendant; to him. of each, if he can, with reasonable diligence, be found within the county; or, if he cannot be so found, by leaving a copy of each, certified by the constable, at the last place of residence of the defendant in the county, with a person of suitable age and discretion; or, if such a person cannot be found there, by posting it on the outer door, and also depositing another copy in the nearest post-office, inclosed in a sealed post-paid wrapper, directed to the defendant at his residence; or, if the defendant has no place of residence in the county, by delivering it to the person in whose possession the property attached is found. [Id., the remainder of § 31, as modified by § 36 of the act of 1831, amended in accordance with the general plan of this article; and by providing for the mode of service, where no one can be found at the defendant's last residence.] § 2911. The defendant, or his attorney or agent in his behalf, re-delivery may, at any time before judgment is rendered in the action, execute and deliver to the constable an undertaking to the plaintiff, in a sum specified therein, at least twice the value of the property attached, as stated in the inventory; with one or more sureties, approved by the constable, or by the justice who issued the warrant; and to the effect that, if judgment is rendered against the defendant, and an execution is issued thereupon, within six months after the giving of the undertaking, the property attached shall be produced to satisfy the execution. Thereupon the constable must redeliver the property to the defendant. Claim by son; ery thereupon. [Id., § 32. and part of § 34, amended as follows: The right to reclaim has been confined to the defendant, or his agent or attorney, instead of being conferred upon any person," as a claim by a third person is provided for in the next section; an undertaking has been substituted for a bond; the penalty of the undertaking has been fixed at twice the inventory value of the chattels attached; the justice has been allowed to approve of the sureties; and the defendant has been authorized to reclaim the property, at any time during the pendency of the action. See note to § 2908, ante, for provisions applying to acknowledgment, etc., of undertakings.] third perna § 2912. If a person, not a party to the action, claims any propBon bond erty attached, which is not reclaimed by the defendant, as prescribed in the last section, he may, at any time after the seizure, and before execution is issued upon a judgment rendered in the action, execute, and file with the justice, a bond to the plaintiff, with one or more |