mons, or at any time after the commencement of the action, and before final judgment therein. Personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the state, pursuant to an order obtained therefor, as prescribed in this act; and if publication has been, or is thereafter commenced, the service must be made complete by the continuance thereof. Code Civ. Pro., § 638, as am'd L. 1877, c. 416.

54 N. Y. 164; 80 id. 547; 73 id. 1; 76 id. 599; 84 id. 614, 615; 93 id. 93; 108 id. 355, 357; s. c. 20 Abb. N. C. 425, 427; s. c. 46 Hun, 519, 520; 10 Abb. Pr. N. S. 395; 4 T. & C. 222; 53 Barb. 517; 4 Hun, 315; 39 id. 439; 27 id. 242, 243; s. c. 15 W. D. 14, 25, aff'd, 91 N. Y. 668; s. c. 16 W. D. 327; 31 Hun, 271; 44 id. 70, 71; 26 id. 463; 27 id. 269, 270; 44 id. 86; 10 W. D. 130; s. c. 59 How. Pr. 68; 1 How. Pr. N. S. 484; 26 W. D. 308; 19 id. 46; 8 Civ. Pro. 424; 2 id. 314; s. c. 64 How. Pr. 71; s. c. 4 L. B. 90; s. c. 2 Civ. Pro. (McCarty) 250; 13 Civ. Pro. 283; 18 Abb. N. C. 352, 357; 20 id. 57; 21 id. 175, 180, n., 181, n.; 52 N. Y. Super. 64; 122 N. Y. 263; 19 Civ. Pro. 160; 21 id. 293; 141 N. Y. 136; 4 Misc. 268; 6 id. 396; 33 N. Y. St. R. 330; 43 id. 616; 53 id. 318; 56 id. 674: 57 id. 556; 6 N. Y. Supp. 320; 9 id. 484; 12 id. 79; 16 id. 50; 18 id. 69; 24 id. 101; 27 id. 1000; 37 id. 524, 1085.

5 Affidavits to be filed. The plaintiff procuring the warrant must, within ten days after the granting thereof, cause the affidavits, upon which it was granted, to be filed in the office of the clerk. Code Civ. Pro., § 639, as am'd L. 1877, c. 416.

36 How. Pr. 253; 6 N. Y. Supp. 890. 6 Security on obtaining warrant. The judge, before granting the warrant, must require a written undertaking, on the part of the plaintiff, with sufficient sureties, to 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. Code Civ. Pro.,

$640.

2 T. & C. 471; 10 Abb. Pr. 424; 3 id. 184; 41 How. Pr. 213; 9 id. 255; 62 id. 515; s. c. 26 Hun, 19; 4 N. Y. 254; 5 Bosw. 703; 17 Hun, 497; 16 id. 624; 37 id. 634, 635; 48 N. Y. Super. 219; s. c. 14 W. D. 244; 12 Civ. Pro. 243; 20 id. 241, n.; 57 Hun, 62; 11 Misc. 237; 32 N. Y. St. R. 10; 46 id. 277; 4 N. Y. Supp. 908; 10 id. 272; 19 id. 466.

7 Contents of warrant; to whom directed. 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. Code Civ. Pro., & 641.

12 Barb. 265; 19 Abb. Pr. 469; s. c. 30 How. Pr. 30; 10 Abb. Pr. 424; 1 Abb. Pr. N. S. 421: 16 Hun, 407; 46 id. 216; 32 id. 359; 83 N. Y. 231; 66 How. Pr. 133: 4 Civ. Pro. 195, 327; 13 Abb. N. C. 176; 22 Civ. Pro. 105; 23 id. 306; 143 N. Y. 352: 62 Hun, 591; 75 id. 336; 76 id. 120, 565; 79 id. 134; 11 Misc. 237; 43 N. Y. St. R. 705; 46 id. 176; 51 id. 43: 57 id. 477; 58 id. 209, 246: 61 id. 351, 354; 62 id. 307; 66 id. 460; 6 N. Y. Supp. 319: 17 id. 556; 18 id. 763; 27 id. 822; 29 id. 757; 35 id. 519; 70 N. Y. St. R. 131, 132; 65 id. 800; 90 Hun, 42.

8 Validity of undertaking. 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. Code Civ. Pro., § 642.

7 Barb. 253; 12 Abb. Pr. N. S. 324; s. c. 62 Barb. 175; 1 Abb. App. Dec. 394; 36 N. Y. 358.

Executing the Warrant, Pending the Action.

§ 643 repealed by L. 1877, c. 416.

9 What property sheriff may seize; when he may levy. The sheriff must immediately execute the warrant, by levying upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, 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. Code Civ. Pro., § 644, as am'd L. 1877, c. 416.

33 Barb. 123; 5 id. 166; 43 id. 187, 373; 18 id. 56; 27 id. 473; 34 N. Y. 253; 18 id. 115; 34 id. 463; 52 id. 181; 74 id. 145, aff'g 12 Hun, 627; 93 N. Y. 592; s. c. 13 Abb. N. C. 176, rev'g 12 id. 202; s. c. 29 Hun, 362, 365; 4 id. 634; 19 id. 399; 46 id. 216; 43 id. 520; 55 How. Pr. 386; 57 id. 75; 2 L. B. 25; 19 Abb. N. C. 276; s. c. 12 Civ. Pro. 283; 20 Abb. N. C. 206; 10 W. D. 33; 18 Civ. Pro. 322; 130 N. Y. 482; 56 Hun, 277; 79 id. 134; 80 id. 592; 30 N. Y. St. R. 958; 42 id. 364; 61 id. 358; 62 id. 555; 1 N. Y. Supp. 209; 6 id. 499, 889; 9 id. 588; 16 id. 177, 180; 69 N. Y. St. R. 421; 148 N. Y. 177.

10 Same: real property. The real property, which may be levied upon by virtue of a warrant of attachment, includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant. Code Civ. Pro., & 645.

1 Paige, 519; 18 Civ. Pro. 322; 130 N. Y. 482; 56 Hun, 277; 30 N. Y. St. R. 958; 42 id. 364; 9 N. Y. Supp. 588.

11 Same: stock and unpaid subscriptions of certain corporations. Under a warrant of attachment against a foreign corporation, other than a corporation created by or under the laws of the United States, the sheriff may levy upon the sum remaining unpaid upon a subscription to the capital stock of the corporation, made by a person within the county; or upon one or more shares of stock therein, held by such a person, or transferred by him, for the purpose of avoiding payment thereof. Code Civ. Pro., § 646.

11 Abb. N. C. 182.

12 Same: defendant's interest in corporation, etc. The rights or shares which the defendant has in the stock of an association or corporation, together with the interests and profits 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. Code Civ. Pro., § 647.

7 Lans. 317; 29 Hun, 362, 365; 93 N. Y. 592; s. c. 13 Abb. N. C. 173, 174, 178; s. c. 4 Civ. Pro. 194; s. c. 66 How. Pr. 132: s. c. 18 W. D. 85, rev'g 12 Abb. N. C. 202, 220; s. c. 17 W. D. 73; 2 N. Y. Supp. 293.

13

Same: cause of action on contract. The attachment may also be levied upon a cause of action arising upon contract; including a bond, promissory note, or other 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, association, 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 attachment thereupon is deemed a levy upon, and a seizure and attachment of, the debt represented thereby. Code Civ. Pro., § 648, as am'd L. 1877, c. 416.

11 Abb. Pr. N. S. 20; 7 Lans. 180; 10 Abb. Pr. 193: 49 N. Y. 318; 50 id. 80; 51 id. 519; 96 id. 180; s. c. 6 Civ. Pro. 168; 89 N. Y. 343, 352: 50 N. Y. Super. 147, 151; 11 Abb. N. C. 182; 12 id. 203, n.; 19 id. 276; s. c. 12 Civ. Pro. 283; 5 id. 365; 32 Hun, 139; 46 id. 216; 5 Dem. 244; 55 How. Pr. 386; 115 N. Y. 251; 4 N. Y. Supp. 325, 801, 819; 16 id. 177.

14 How property to be attached. must be made as follows:

A levv under a warrant of attachment

This subject.

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 notice must be subscribed by the plaintiff's attorney, adding the office address; and must be recorded and indexed by the clerk, in the same book, in like manner, and with like effect, as a notice of the pendency of an action.

28 How. Pr. 110; 62 id. 90; 2 How. Pr. N. S. 362; 31 Hun, 76; 39 id. 36; 20 Civ. Pro. 341; 23 id. 337; 60 Hun, 156; 79 id. 134; 38 N. Y. St. R. 580; 61 id. 357; 10 N. Y. Supp. 365.

2. Upon the* 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. He must thereupon, without delay deliver to the person from whose possession the property is taken, if any, a copy of the warrant, and of the affidavits upon which it was granted.

7 How. Pr. 379; 4 Hun, 634; 44 id. 374; s. c. 12 Civ. Pro. 186; 28 Hun, 112, 113; 32 id. 139; 39 id. 36; 43 id. 520; 44 id. 62; 46 id. 217; 41 N. Y. 210; 89 id. 343, 352; 96 id. 180, 186; s. c. 6 Civ. Pro. 167, 168, rev'g 29 Hun, 239, 241; 38 N. Y. Super. 400; 50 id. 147; 23 W. D. 318; 9 Daly, 271; 12 Abb. N. C. 204, n.; 21 id. 245; 5 Civ. Pro. 365; 12 id. 283; s. c. 19 Abb. N. C. 277; 12 Civ. Pro. 192; 116 N. Y. 492; 20 Civ. Pro. 341; 62 Hun, 365; 32 N. Y. St. R. 267; 61 id. 834; 66 id. 460.

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 as specified in the last subdivision, with the person against whom it exists; or, if it consists of 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.

56 N. Y. 52; 41 id. 210; 69 id. 546; 75 id. 586; 50 id. 84; 7 Lans. 180; 6 id. 303; 11 Abb. Pr. N. S. 20; 93 N. Y. 592; s. c. 13 Abb. N. C. 173; s. c. 4 Civ. Pro. 193; s. c. 18 W. D. 85, rev'g 29 Hun, 362, 365; 12 Abb. N. C. 204, n.; 11 W. D. 428, aff'g 20 Hun, 36; 28 Hun, 279; 32 id. 139; 39 id. 36; 44 id. 62; 5 Civ. Pro. 169; 12 id. 283; s. c. 19 Abb. N. C. 277; 55 How. Pr. 386; 115 N. Y. 251; 130 id. 146; 55 Hun, 365; 62 id. 122; 27 Abb. N. C. 361: 41 N. Y. St. R. 264; 7 N. Y. Supp. 552; 33 id. 1095; 35 id. 1049; 70 N. Y. St. R. 137, 257, 744, 745; 65 id. 800.

4. Upon property discovered in any action brought as prescribed in subdivision two of section six hundred and fifty-five of this act, by entering in the proper clerk's office, the judgment rendered in said action, and thereafter levying on said property in the manner prescribed in subdivisions one, two and three of this section. Code Civ. Pro., § 649, as am'd L. 1879, c. 542, and L. 1889, c. 504. 23 Abb. N. C. 7; 1 N. Y. Supp. 54, 209; 4 id. 801, 819, 873; 6 id. 499, 889; 8 id. 63; 14 id. 574; 16 id. 177, 180, 620; 30 id. 146; 32 id. 974; 36 id. 648.

15 Certificate of defendant's interest to be furnished. Upon the application of a sheriff, holding a warrant of attachment, 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. Code Civ. Pro., § 650.

56 N. Y. 52; 96 id. 180; 4 Hun, 630; 22 How. Pr. 278; s. c. 13 Abb. Pr. 469; 65 How. Pr. 481; s. c. 12 Abb. N. C. 459; s. c. 12 Daly, 5; 24 How. Pr. 489; s. c. 15 Abb. Pr. 391, rev'g 13 Abb. Pr. 443; 9 Bosw. 660; 1 L. B. 58, 42; 25 Hun, 441; 13 W. D. 454, 264; 9 Civ. Pro. 171; 13 id. 80; 115 N. Y. 251; 6 N. Y. Supp. 499, 889; 33 id. 546; 70 N. Y. St. R. 744.

16 Person refusing, or giving untruthful, etc., certificate may be examined. If a person, to whom application is made, as prescribed in the last section, refuses to give such a certificate; or if it is made to appear, by affidavit, to the satisfaction of the court, or a judge thereof, or the county judge of the county to *So in original.

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 specified 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 appearance before a referee named therein. Code Civ. Pro., § 651.

4 Hun, 630; 26 Barb. 61; 48 id. 146; 56 N. Y. 52; 13 W. D. 454; 13 id. 264; 65 How. Pr. 518; s. c. 17 W. D. 492; 65 How. Pr. 481; s. c. 12 Abb. N. C. 459; s. c. 12 Daly, 5; 25 Hun, 441; 99 N. Y. 410; 1 L. B. 42; 9 Civ. Pro. 171; 13 id. 82; 35 N. Y. St. R. 639; 6 N. Y. Supp. 499, 889; 13 id. 122.

17 Rights of owner or master of vessels by which goods have been shipped. Except as otherwise prescribed in the next section, the owner or master of a vessel, on board of which goods of a defendant, against whom a warrant of attachment is issued, have been shipped for transportation without reshipment and transhipment in the state, to a port or place without the state, may transport and deliver them according to their destination, notwithstanding the warrant; unless the plaintiff, his agent, or attorney, executes to the owner or the master of the vessel, a written undertaking with sufficient sureties, in a sum specified therein, to pay him all expenses, damages and charges, which may be *incurrel by him, or to which he may be subjected, for unlading the goods from the vessel, and for all necessary detention of the vessel for that purpose. The undertaking must be approved with respect to its form, the sum specified therein, and the sufficiency of the sureties, by a judge or justice of the court or the county judge of the county wherein the vessel is situated, or, in the city and county of New York, by a justice of the supreme court. Code Civ. Pro., § 652, as am'd L. 1895, c. 946.

18 Abb. Pr. 307; 70 N. Y. 424.

18 Exception to foregoing section. The last section does not apply, where the owner or master, before the shipment of the goods, had actual information of the granting of the warrant, or where he has, in any wise, connived at, or been privy to, the shipment thereof, for the purpose of screening them from legal process, or of hindering, delaying, or defrauding creditors. Code Civ. Pro., § 653.

19 Description or inventory of property levied on. The sheriff must, immediately after levying under a warrant of attachment, make, with the assistance of two disinterested freeholders, 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. Code Civ. Pro., § 654. 38 How. Pr. 367; 30 id. 30; s. c. 19 Abb. Pr. 469; 5 Duer, 242; 3 E. D. Smith, 117. 20 Proceedings by sheriff to collect debts and recover property in hands of third person. 1. The sheriff must, subject to the direction of the court or judge, collect and receive all debts, effécts and things in action attached by him. He may maintain any action or special proceeding in his own 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.

57 Barb. 33; 32 id. 601; 16 Abb. Pr. N. S. 212; 50 N. Y. 80; 73 id. 218, aff'g 10 Hun, 140; 89 N. Y. 33, 35, rev'g 25 Hun, 577; 27 Hun, 314; s. c. 14 W. D. 447; 32 Hun, 138, 139, 140, 141; s. c. 5 Civ. Pro. 169; 27 Hun, 312; 29 id. 239, 242; 31 id. 257; 20 W. D. 122; 13 id. 454; 19 Abb. N. C. 276; 15 Civ. Pro. 223; 12 Daly, 5; 9 Civ. Pro. 171; 39 Hun, 38; 134 N. Y. 527.

So in the original.

2. Where 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; and where the defendant has not appeared in the action (otherwise than specially) but has made default and before entering final judgment, the sheriff may in aid of said attachment, maintain an action against the attachment debtor, and any other person or persons, or against any other person or persons to compel the discovery of any thing in action, or other property belonging to the attachment debtor; and of any money, thing in action, or other property due to him, or held in trust for him, or to prevent the transfer thereof, or the payment or delivery thereof, to him or any other person, and the sheriff may, in aid of said attachment, also maintain any other action against the attachment debtor and any other person or persons, or against any other person or persons, which may now be maintained by a judgment creditor in a court of equity, either before the return of an execution in aid thereof, or after the return of an execution unsatisfied. The judgment in any of the above mentioned actions must provide and direct that the said property shall be applied by the sheriff, to the satisfaction of any judgment which the plaintiff may obtain in the attachment action. Code Civ. Pro., § 655, as am'd L. 1889, c. 504.

57 Barb. 33; 32 id. 601; 16 Abb. Pr. N. S. 212; 50 N. Y. 80; 73 id. 218, aff'g 10 Hun, 140; 89 N. Y. 33, 35, rev'g 25 Hun, 577; 27 id. 314; s. c. 14 W. D. 447; 32 Hun, 138, 139, 140, 141; s. c. 5 Civ. Pro. 169; 27 Hun, 312; 29 id. 239, 242; 31 id. 257; 20 W. D. 122; 13 id. 454; 19 Abb. N. C. 276; 15 Civ. Pro. 223; 12 Daly, 5; 9 Civ. Pro. 171; 39 Hun, 38; 62 id. 122; 116 N. Y. 492; 23 Abb. N. C. 7; 27 id. 361: 41 N. Y. St. R. 446; 53 id. 369; 16 N. Y. Supp. 619; 23 id. 577; 88 Hun, 168; 148 N. Y. 256.

21 Order for sale of perishable property, etc. If property attached, other than a vessel, is perishable, the court or judge may, by an order made with or without notice, as the 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. Code Civ. Pro., § 656, as am'd L. 1877, c. 416.

14 How. Pr. 346; 62 id. 510; s. c. 25 Hun, 367; s. c. 21 Daily Reg. No. 29; 19 W. D. 454; 98 N. Y. 597; 13 Civ. Pro. 224, 225; 19 id. 348; 26 Abb. N. C. 125; 34 N. Y. St. R. 699; 13 N. Y. Supp. 157.

22 Conflicting claim, how tried. If goods or effects, other than a vessel, attached as the property of the defendant, are claimed by or in behalf of another person, as his property, the sheriff may, in his discretion, empanel a jury to try the validity of the claim. Code Civ. Pro., § 657.

9 Daly, 271; 12 id. 321; 31 Hun, 351; 43 Barb. 373, 375.

23 Proceedings if claimant succeeds. If, by their inquisition, the jury find the property of the goods or effects to have been in the claimant, at the time of the levy, the sheriff must forthwith deliver them to him or his agent; unless the 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. Where an undertaking is given to indemnify the sheriff, he must, within two days after the giving of the said undertaking, cause the same to be filed in the office of the court out of which the attachment was issued, and serve upon the claimant or his agent, and the attaching creditor or attorney, whose name is subscribed to the warrant of attachment, a copy of the said undertaking, with a notice of the justification of the sureties thereon. The justification must take place before a judge of the court out of which the attachment was issued, at a time to be specified in the notice, which must not be less than two nor more than five days after the serving of the said notice. For the purpose of justification each of the • Actions, §§ 23-33.