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TITLE 3.

Contents

of warrant; to whom directed.

Validity of undertaking.

the effect, that if the defendant recovers judgment, or if the warrant 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 and fifty dollars. But this section does not apply to a case, where the action is brought for a cause specified in section six hundred and thirty-seven of this act, or where it is specially prescribed by law that security may be dispensed with, or where the security to be given is specially regulated by law.

§ 641. The warrant must be subscribed by the judge and the plaintiff's attorney, and must briefly recite the ground of the attachment. It may be directed, either to the sheriff of a particular county, or, generally, to the sheriff of any county. It must require the sheriff to attach and safely keep, so much of the property, within his county, which the defendant has, or which he may have, at any time before final judgment in the action, as will satisfy the plaintiff's demand, with costs and expenses. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit. Warrants may be issued at the same time, to sheriffs of different counties.

§ 642. It is not a defence to an action upon an undertaking, given upon granting a warrant of attachment, that the warrant was granted improperly, for want of jurisdiction, or for any other cause.

ARTICLE SECOND.

EXECUTING THE WARRANT, PENDING THE ACTION.

*SECTION 643. Judge who granted warrant controls its execution; power of the court thereupon.

644. Sheriff must attach property of defendant.

645. What interest in real property may be attached.

646. Attachment of unpaid subscription to foreign corporation.

647. Id.; interest in corporation.

648. Id.; negotiable securities.

649. How property to be attached.

650. Certificate of defendant's interest to be furnished.

651. Person refusing certificate may be examined.

652. Rights of owner or master of vessel on which goods have bee shipped.

653. Foregoing section not to apply in certain cases.

654. Sheriff must make inventory.

655. Sheriff may maintain actions.

656. Perishable goods to be sold.

657. Claim of property; how tried.

658. Proceedings, if claimant succeeds.

659. Finding, not to prejudice right of claimant.

660. Proceedings on claim to domestic vessel.

661. Appraisers to be sworn; valuation to be returned.

662. Undertaking to be given.

663. Vessel; when to be discharged.

664. When undertaking to be sued.

665. Defence in such an action; plaintiff's recovery

666. Foreign vessel; how valued.

667. Notice thereof.

668. Plaintiff to give undertaking with sureties.

669. Vessel; when to be discharged,

670. Terms on which debtor may claim vessel.

671, 672, 673. When vessel to be sold.

674. Sheriff to keep. property.

*Stricken out.

SECTION 675. Sheriff may be directed to pay money into court.

676. When he may be directed to release or deliver property.
677. Plaintiff may bring action in name of himself and the sheriff.
678. How leave to bring such an action procured.

679. Plaintiff may be joined with sheriff, after action commenced.
680. Judge to direct as to management of such an action, etc.
681. Return of inventory; how enforced.

ART. 2.

§ 644. The sheriff must immediately execute the warrant, by levying Sheriff upon so much of the personal and real property of the defendant, must attach within his county, not exempt from levy and sale by virtue of an execu- defendant. tion, as will satisfy the plaintiff's demand, with the costs and expenses. He must take into his custody all books of account, vouchers, and other papers, relating to the personal property attached, and all evidences of the defendant's title to the real property attached, which he must safely keep, to be disposed of, as prescribed in this title. The sheriff, to whom a warrant of attachment is delivered, may levy, from time to time, and as often as is necessary, until the amount, for which it was issued, has been secured, or final judgment has been rendered in the action, notwithstanding the expiration of his term of office.

real prop

§ 645. The real property, which may be levied upon by virtue of a What inwarrant of attachment, includes any interest in real property, either terest in rested or not vested, which is capable of being aliened by the erty maybe defendant.

attached.

paid sub

foreign

§ 646. Under a warrant of attachment against a foreign corporation, Attachother than a corporation created by or under the laws of the United ment of unStates, the sheriff may levy upon the sum remaining unpaid upon a scription to subscription to the capital stock of the corporation, made by a person corporawithin the county; or upon one or more shares of stock therein, held tion. by such a person, or transferred by him, for the purpose of avoiding payment thereof.

est in cor

rities.

$647. The rights or shares which the defendant has in the stock of Id.; interan association or corporation, together with the interests and profits poration. thereon, may be levied upon; and the sheriff's certificate of the sale thereof entitles the purchaser to the same rights and privileges, with respect thereto, which the defendant had, when they were so attached. $648. The attachment may also by levied upon a cause of action ra.; negoarising upon contract; including a bond, promissory note, or other tiable secu instrument for the payment of money only, negotiable, or otherwise, whether past due, or yet to become due, executed by a foreign or domestic government, State, county, public officer, assocation, municipal or other corporation, or by a private person, either within or without the State; which belongs to the defendant, and is found within the county. The levy of the attachent thereupon is deemed a levy upon, and a seizure and attachment f, the debt represented thereby.

$649. A levy under a warrant of attachment must be made as How propfollows:

1. Upon real property, by filing with the clerk of the county, where it is situated, a notice of the attachment, stating the names of the parties to the action, the amount of the plaintiff's claim, as stated in the warrant, and a description of the particular property levied upon. The Botice must be subscribed by the plaintiff's attorney, adding his office address; and must be recorded and indexed by the clerk, in the same book, in like manner, and with like effect, as the notice of the pendency

of an action.

erty to be attached.

TITLE 3.

Certificate of defend

est to be

furnished.

2. Upon personal property, capable of manual delivery, including a bond, promissory note, or other instrument for the payment of money, by taking the same into the sheriff's actual custody.

3. Upon other personal property, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same; or, if it consists of a demand, other than is specified in the last subdivision, with the person against whom it exists; or, if it consists of a right or share in the stock of an association or corporation, or interest or profits thereon, with the president, or other head of the association or corporation, or the secretary, cashier, or managing agent thereof.

$650. Upon the application of a sheriff, holding a warrant of attachant's inter- ment, the president or other head of an association or corporation, or the secretary, cashier, or managing agent thereof, or a debtor of the defendant, or a person holding property, including a bond, promissory note, or other instrument for the payment of money, belonging to the defendant, must furnish to the sheriff a certificate, under his hand, specifying the rights or number of shares of the defendant, in the stock of the association or corporation, with all dividends declared, or incumbrances thereon; or the amount, nature, and description of the property, held for the benefit of the defendant, or of the defendant's interest in property so held, or of the debt or demand owing to the defendant, as the case requires.

Person refusing

may be

§ 651. If a person, to whom application is made, as prescribed in the certificate last section, refuses to give such a certificate; or if it is made to appear, examined. by affidavit, to the satisfaction of the court, or a judge thereof, or the county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given by him is untrue, or that it fails fully to set forth the facts, required to be shown thereby; the court or judge may make an order, directing him to attend, at a speci fied time, and at a place within the county to which the warrant is issued, and submit to an examination under oath, concerning the same The order may, in the discretion of the court or judge, direct an appear ance before a referee named therein.

Rights of

owner or

master of

which

been

shipped.

§ 652. Except as otherwise prescribed in the next section, the owne or master of a vessel, on board of which goods of a defendant, agains vessels of whom a warrant of attachment is issued, have been shipped for trans goods have portation, without reshipment or transshipment in the State, to a por or place without the State, may transport and deliver them accordin to their destination, notwithstanding the warrant; unless the plaintif his agent, or attorney, executes to the owner or the master of the vesse a written undertaking, with sufficient sureties, in a sum specifie therein, to pay him all expenses, damages, and charges, which may incurred by him, or to which he may be subjected, for unlading th goods from the vessel, and for all necessary detention of the vessel, f that purpose. The undertaking must be approved, with respect to form, the sum specified therein, and the sufficiency of the sureties, a judge of the court, or the county judge of the county wherein t vessel is situated, or, in the city and county of New-York, by a jud of a superior city court within that city and county.

section not

Foregoing § 653. The last section does not apply, where the owner or mast to apply in before the shipment of the goods, had actual information of the gra

certain

cases.

ing of the warrant, or where he has, in any wise, connived at, or be privy to, the shipment thereof, for the purpose of screening them fr legal process, or of hindering, delaying, or defrauding creditors.

ART. 2.

§ 654. The sheriff must, immediately after levying under a warrant Sheriff of attachment, make, with the assistance of two disinterested freehold- must make inventory. ers, a description of the real property, and a just and true inventory of the personal property, upon which it was levied, and of the books, vouchers, and other papers taken into his custody, stating therein the estimated value of each parcel of real property attached, or of the interest of the defendant therein, and of each article of personal property, enumerating such of the latter as are perishable. The inventory must be signed by the sheriff and the appraisers; and must within five days after the levy, be filed in the office of the clerk of the county, where the property is attached.

$655. The sheriff must, subject to the direction of the court or judge Sheriff collect and receive all debts, effects, and things in action, attached by property; him. He may maintain any action or special proceeding, in his own tions. name, or in the name of the defendant, which is necessary, for that purpose, or to reduce to his actual possession an article of personal property, capable of manual delivery, but of which he has been unable to obtain possession. And he may discontinue such an action or special proceeding, at such time and on such terms, as the court or judge directs.

sold.

§ 656. If property attached, other than a vessel, is perishable, the Perishable court or judge may, by an order, made with or without notice, as the goods to be urgency of the case, in its or his opinion, requires, direct the sheriff to sell it at public auction; and thereupon the sheriff must sell it accordingly. If it consists of live animals the same proceedings may be had, but such notice shall be given to the parties to the action, of the application for the order as the court or judge prescribes. The order directing the sale must prescribe the time and place of the sale, and notice thereof, must be given in such manner, and for such time as is prescribed in the order. The sheriff must retain in his hands the proceeds of the sale, after deducting his expenses, as allowed by the court or judge.

may main

$657. If the goods or effects, other than a vessel, attached as the prop- Claim of erty of the defendant, are claimed by or in behalf of another person, how tried. as his property, the sheriff may, in his discretion, empanel a jury to try the validity of the claim.

claimant

8658. If, by their inquisition, the jury find the property of the goods Proceed effects to have been in the claimant at the time of the levy, the ing Beriff must forthwith 'deliver them to him or his agent; unless the succeeds. plaintiff gives an undertaking, with sufficient sureties, to indemnify the sheriff for the detention thereof. If the undertaking is given, the Sheriff must detain the goods or effects, as the property of the defendant. $659. If the property is found to be in the defendant, the finding Finding dhes not prejudice the right of the claimant to bring an action, to re- not to prever the goods or effects, or the value thereof. $600. Where a vessel, belonging to a port or place in the United States, or a share or interest therein, is attached, the court or judge, on ings on the application, within thirty days thereafter, of a person claiming claim to title thereto, or of his agent, must appoint three indifferent persons to vessel. ake a valuation thereof.

judice

right of claimant. Proceed

domestic

sworn; val

8661. A valuation of a vessel, or of a share or interest therein, made Apprais prescribed in this article must be in writing, and subscribed by the ers to be praisers; each of whom must take and subscribe an affidavit, an- uation to ed thereto, to the effect, that the valuation is, in all respects, just turned. ad fair, and that the value of the vessel, share, or interest, is truly

be re

TITLE 3.

Undertaking to be given.

Vessel; when to

be discharged.

When undertaking to be sued.

Defence in such an action;

stated therein, according to the deponent's belief. The valuation must be immediately returned to the court or judge; and, after an undertaking is given, or after the expiration of the time to give an undertaking, as prescribed in the next section, it must be delivered to the sheriff.

§ 662. Within two days after the valuation is returned, the claimant or his agent may execute an undertaking to the sheriff, with sufficient sureties, approved by the court or judge, who must justify in twice the appraised value, to the effect, that, in an action to be brought on the undertaking, the claimant will establish that he was the owner of the vessel, share or interest, at the time of the levy thereupon; and that, in case of his failure to do so, he will pay the amount of the valuation, with interest from the date of the undertaking, to the sheriff; or, if the warrant is vacated or annuled, to the defendant, or his personal representative.

§ 663. Upon such an undertaking being executed and delivered to the sheriff, the court or judge must make an order, directing the vessel or share to be discharged from the attachment. Thereupon the sheriff must discharge the same accordingly.

§ 664. The court or judge may, upon the application of either party, at any time before the warrant is vacated or annulled, direct the sheriff to commence an action upon the undertaking, upon such terms and conditions, and under such regulations, between him and the applicant, as it or he deems just. And if the warrant of attachment is vacated or annulled, the defendant in the attachment, his assignee or personal representative, may commence and maintain an action upon the undertaking, or may be substituted, in place of the sheriff, in an action pending thereupon.

§ 665. In such an action, the claimant may show, in bar of a recovery that he was the owner of the vessel, share, or interest at the time plaintiff's when it was attached. If judgment passes against him, the plaintif recovery. is entitled to recover the amount of the valuation, with interest from the date of the undertaking.

Foreign

vessel, how valued.

Notice thereof.

Plaintiff to give under

sureties.

§ 666. Where a foreign vessel, or a share or interest therein, i attached, it must be valued, as prescribed in sections six hundred and sixty and six hundred and sixty-one of this act, upon the application of a person, who makes affidavit, to the effect that he is the owne thereof, or that he is the agent of a person, naming him and his res dence, whom he believes to be the owner of the vessel, share or intere attached.

§ 667. Such notice of the application must be given to the plaintif as the court or judge deems reasonable.

§ 668. Within three days after the valuation is returned, the plainti taking with must give, to the person in whose behalf the claim is made, an unde taking, with sufficient sureties, approved by the court or judge, wi must justify in twice the appraised value, to the effect that they w pay such damages as may be recovered for seizing the vessel, share, interest, in an action brought against the sheriff, or the plaintiff in t attachment, within three months from the approval of the undertakin if it appears therein that the vessel, share, or interest belonged, at t time of attaching it, to the person in whose behalf the claim is mad § 669. Unless such an undertaking is given, the court or judge mu grant an order discharging the vessel, share, or interest so claime from the attachment; whereupon the sheriff must discharge the san accordingly

Vessel;

when to

be discharged.

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