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ART. 2.

Terms on

debtor

may claim

§ 670. If, after such an undertaking is given by the plaintiff, the warrant is vacated or annulled, or the attachment is discharged as to which the vessel, share or interest, the defendant or his agent is entitled to claim the same, or the proceeds thereof, if it has been sold, only upon vessel. his showing, to the satisfaction of the court or judge, that the undertaking has been discharged; or giving to the plaintiff an undertaking, with sufficient sureties, approved by the court or judge, who must justify in twice the appraised value, to the effect, that they will indemnify the plaintiff against all charges and expenses, in consequence of the undertaking.

sel to be

$671. If the undertaking of the plaintiff is not discharged, or he is When vesnot indemnified, as prescribed in this article, within one month after sold. the defendant becomes entitled to claim the vessel, share, or interest, as so prescribed, it may be sold by the sheriff, in whose custody it is, upon an order of the court or judge; and the proceeds of the sale must be paid to the persons who executed the undertaking, for their indemnity.

§ 672. If a claim is not made, by or in behalf of an owner of a do- The same. mestic vessel, or of a share or interest therein, within thirty days after it is attached, or if the proper undertaking is not executed by the claimant; or if a claim is not made, within that time, by or in behalf of the owner of a foreign vessel, or of a share or interest therein; the vessel, share, or interest, may be sold by the sheriff, under an order of the court or judge, upon the application of the plaintiff, if, in the opinion of the court or judge, a sale is necessary.

§ 673. Where a share or interest in a vessel, foreign or domestic, is The same. attached, if the proper claim to it is not made, by or in behalf of an Owner thereof, within thirty days thereafter, it may be sold by the sheriff, under an order of the court or judge, upon the application of a joint owner, or his agent.

keep prop

$674. The sheriff must keep the property attached by him, or the Sheriff to proceeds of property sold, or of a demand collected by him, to answer erty. any judgment that may be obtained against the defendant in the

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to pay

may be di

deliver

$675. But the court upon the application of either party to the Sheriff may ion, may direct the sheriff, either before or after the expiration of be directed his term of office, to pay into court the proceeds of a demand collected, money into property sold; or to deposit them in a designated bank or trust court. mpany, to be drawn out only upon the order of the court. $676. Where the proceeds of the property sold, and of the demands When he lected by the sheriff, exceed the amount of the plaintiff's demand, rected to th the costs and expenses, and of all other warrants of attachment release or executions in the sheriff's hands, chargeable upon the same; the property. , or the judge who granted the warrant, upon the application of the defendant, or of an assignee of, or purchaser from the defendant, apon notice to the plaintiff, and the plaintiffs in the other warFasts or executions, may, at any time during the pendency of the action, make an order, directing the sheriff to pay over the surplus to the plicant, and to release from the attachment the remaining real and personal property attached.

and

action in

8677. The plaintiff, by leave of the court or judge, procured as pre- Plaintiff ribed in the next section, may bring and maintain, in the name of him- may bring and the sheriff jointly, by his own attorney, and at his own expense, name of action which, by the provisions of this title, may be brought by himself and the sheriff, to recover property attached, or the value thereof, or a de

the sheriff

TITLE 3.

How leave to bring

procured.

Plaintiff may be

joined with

mand attached, or upon an undertaking given as prescribed in th title, by a person other than the plaintiff. The sheriff must receive t proceeds of such an action, but he is not liable for the costs or exper thereof. Costs may be awarded, in such an action, against the pla tiff in the warrant, but not against the sheriff.

§ 678. The court or judge must grant leave to bring such an actio such action where it appears, that due notice of the application therefor has be given to the sheriff; but, before doing so, the court or judge may requ that notice of the application be given to the plaintiff, in any other w rant against the same defendant. And such terms, conditions, regulations may be imposed, in the order granting leave, as the co or judge thinks proper, for the due protection of the rights and intere of all persons, interested in the disposition of the proceeds of the acti § 679. Leave may, in like manner and with like effect, be grante the plaintiff in the warrant, to be joined with the sheriff, in an act brought by the sheriff, in a case where he might have procured le to bring the action, as prescribed in the last two sections. Upon an plication therefor, the court or judge may, in a proper case, require plaintiff to provide for the expenses in the action, already incurred the sheriff. The application must be denied, in case of an unreast ble delay in making it; or where an application was made, before action was brought, and the plaintiff neglected or refused, witho good excuse therefor, to comply with the terms, conditions or reg tions then imposed.

sheriff, af

ter action

commenced.

Judge to direct as

ment of

§ 680. The court or judge may, upon the application of the she to manage- or of the defendant in the warrant, during the pendency of an act brought as prescribed in the last three sections, direct as to the duct, discontinuance, or settlement of the same, and as to the app tion or disposition of the money or property recovered therein, as tice requires.

such an action, etc.

Return of

inventory; how en

forced.

Motion to vacate or modify

§ 681. Upon the application of either party, and proof of the ne of the sheriff, the court or judge may, by order, require the sheri return an inventory. Disobedience to such an order may be punis as a contempt of the court.

Monolan 72 н

ARTICLE THIRD.

VACATING OR MODIFYING THE WARRANT; DISCHARGING THE ATTACHMENT.

SECTION 682. Motion to vacate or modify warrant, or increase security.
683. How motion must be made; opposing it by new proofs.

*684, *685. Questions of fact arising on the motion.

686. When prior motion not to prejudice subsequent motion.
687. Defendant may apply for discharge of attachment.

688. Undertaking to be given.

689. Application by one of several defendants.

690. Sureties to justify if required.

691. Sheriff may retain property until justification.

692. Foregoing provisions applicable to vessels.

693. Partners may apply to discharge attachment.

694. Undertaking to be given.

695. Court or judge may ascertain value.

696. When plaintiff entitled to notice of any application, etc.

§ 682. The defendant, or a person who has acquired a lien up interest in, his property, after it was attached, may, at any time t

*684, 685 Stricken out.

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ART. 3.

warrant, or

security.

How mo

opposing it

the actual application of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to vacate increase or modify the warrant, or to increase the security, given by the plaintiff, or for one or more of those forms of relief, together, or in the alternative. $683. An application, specified in the last section, may be founded tion must only upon the papers upon which the warrant was granted; in which be made; case, it must be made to the court, or, if the warrant was granted by by new a judge out of court, to the same judge, in court or out of court, and proofs. with or without notice, as he deems proper. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, it must be made to the court, or, if the warrant was granted by a judge out of court, to any judge of the court, upon notice; and it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground for the attachment, 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.

prior mo

prejudice

$686. The denial of such an application does not prejudice a subse- When qnent application, seasonable made, founded upon the failure of a tion not to complaint, which had not been filed or served at the time of the former subsequent application, to set forth any of the causes of action, mentioned in section motion. six hundred and thirty-five and section six hundred and thirty-seven

of this act.

Defendant

may apply

$657. The defendant may, at any time after he has appeared in the action, and before final judgment, apply to the judge who granted the for diswarrant, or to the court for an order to discharge the attachment, as to the whole or a part of the property attached.

charge of

attachment

$688. Upon such an application, the defendant must give an under- taking to taking, with at least two sufficient sureties, to the effect that he will, be given. on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specihed 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 is affidavit; or, at the option of the defendant, equal to the appraised alue, 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.

defend

$689. Where there are two or more defendants, and an application tion by one Applicais made, as prescribed in the last two sections, by one or more, but not of several by all of them, the undertaking must provide for the payment of any ants. 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 dertaking 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 the affidavit, must be served upon the plaintiff's attorney, who may pose the application by proof, by affidavit, that one or more of the ther defendants own, or have an interest in the property.

So in the original

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