網頁圖片
PDF
ePub 版

sureties upon the undertaking must attend before the judge at the time and place mentioned in the notice, and be examined on oath on the part of the claimant, or his agent or attorney, touching his sufficiency, in such manner as the judge, in his discretion, thinks proper. The examination may be adjourned from day to day until it is completed, but such adjournment must always be to the next judicial day. If required by the claimant, his assignee or other representative, the examination must be reduced to writing, and subscribed by the sureties. If the judge finds the sureties sufficient he must annex the examination to the undertaking, indorse his allowance thereon, and cause the said undertaking, together with the examination of the sureties, to be filed with the clerk of the court. Thereupon the sheriff is released and discharged from all further liability, by reason of the taking and detention of the property seized. When any such undertaking shall have been approved and filed, as hereinbefore provided, the clerk of the court in which the same shall be filed shall immediately index the same in the general index book in his office under the title of the suit in which the attachment is issued. Code Civ. Pro., § 658, as am'd L. 1877, c. 416, L. 1888, c. 98, § 1, and L. 1895, c. 662.

43 Barb. 373; 34 N. Y. 463; 18 id. 115; 8 Johns. 185; 10 id. 98; 31 Hun, 351; 12 Daly,. 321; 23 Civ. Pro. 397; 61 N. Y. St. R. 836; 30 N. Y. Supp. 145.

See Executions, § 60.

24 Claimant's failure does not bar him from suing. If the property is found to be in the defendant, the finding does not prejudice the right of the claimant to bring an action, to recover the goods or effects, or the value thereof. Code Civ. Pro., § 659.

12 Daly, 321.

25 Valuation on attachment of American vessel. 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 the application, within thirty days thereafter, of a person claiming title thereto, or of his agent, must appoint three indifferent persons to make a valuation thereof. Code Civ. Pro., § 660.

1 N. Y. Supp. 802.

26 Return of same in writing; appraisers' oath. A valuation of a vessel, or of a share or interest therein, made as prescribed in this article,* must be in writing, and subscribed by the appraisers; each of whom must take and subscribe an affidavit, annexed thereto, to the effect, that the valuation is in all respects, just and fair, and that the value of the vessel, share, or interest, is truly 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. Code Civ. Pro., § 661, as am'd L. 1877, c. 416. 27 Undertaking by claimant. 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 annulled, to the defendant, or his personal representative. Code Civ. Pro., § 662.

57 Hun, 62; 32 N. Y. St. R. 10; 10 N. Y. Supp. 272.

28 Discharge of vessel thereupon. 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. Code Civ. Pro., § 663.

29

When action to be brought on undertaking. The court or judge may, upon the application of either party, at any time before the warrant is vacated

*This subject, §§ 9-46.

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. Code Civ. Pro., § 664.

30 Defence to same; amount of recovery. 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 when it was attached. If judgment passes against him, the plaintiff is entitled to recover the amount of the valuation, with interest from the date of the undertaking. Code Civ. Pro., § 665.

31 Valuation of attached foreign vessel. Where a foreign vessel, or a share or interest therein, is 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 owner thereof, or that he is the agent of a person, naming him and his residence, whom he believes to be the owner of the vessel, share, or interest attached. Code Civ. Pro., § 666.

32 Notice of application therefor. Such notice of the application must be given to the plaintiff, as the court or judge deems reasonable. Code Civ. Pro., § 667, as am'd L. 1877, c. 416.

33 Undertaking to be given by plaintiff. Within three days after the valuation is returned, the plaintiff must give, to the person in whose behalf the claim is made, 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 pay such damages as may be recovered for seizing the vessel, share, or interest, in an action brought against the sheriff, or the plaintiff in the attachment, within three months from the approval of the undertaking, if it appears therein that the vessel, share, or interest belonged, at the time of attaching it, to the person in whose behalf the claim is made. Code Civ. Pro., § 668.

34 If not given, vessel to be discharged. Unless such an undertaking is given, the court or judge must grant an order discharging the vessel, share, or interest so claimed, from the attachment; whereupon the sheriff must discharge the same accordingly. Code Civ. Pro., § 669.

35 Claim by defendant after attachment is vacated. If, after such an undertaking is given by the plaintiff, the warrant is vacated or annulled, or the attachment is discharged as to 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 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. Code Civ. Pro., § 670. 36 When vessel may be sold by sheriff; proceeds. If the undertaking of the plaintiff is not discharged, or he is not indemnified, as prescribed in this article,* within one month after 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 raid to the persons who executed the undertaking, for their indemnity. Code Civ. Pro., 671.

37 Same. If a claim is not made, by or in behalf of an owner of a domestic 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

This subject, §§ 9-46.

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. Code Civ. Pro., § 672.

38 Same. Where a share or interest in a vessel, foreign or domestic, is 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. Code Civ. Pro., § 673.

39 Sheriff to keep property. The sheriff must keep the property attached by him, or the proceeds of property sold, or of a demand collected by him, to answer any judgment that may be obtained against the defendant in the action. Code Civ. Pro., § 674, as am'd L. 1877, c. 416.

4 Keyes, 165; 27 Barb. 463; 26 N. Y. 117; 6 Johns. 195; 32 Hun, 356; 39 id. 38.

40 May be directed to deposit money or pay it into court. But the court, upon the application of either party to the action, may direct the sheriff, either before or after the expiration of his term of office, to pay into court the proceeds of a demand collected, or property sold; or to deposit them in a designated bank or trust company, to be drawn out only upon the order of the court. Code Civ. Pro., § 675.

32 Hun, 138; s. c. 5 Civ. Pro. 170.

41 Disposition of surplus over amount of attachment, costs, etc. Where the proceeds of the property sold, and of the demands collected by the sheriff, exceed the amount of the plaintiff's demand, with the costs and expenses, and of all other warrants of attachment or executions in the sheriff's hands, chargeable upon the same; the court, or the judge who granted the warrant, upon the application of the defendant, or of an assignee of, or purchaser from the defendant, and upon notice to the plaintiff, and the plaintiffs in the other warrants 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 applicant, and to release from the attachment the remaining real and personal property attached. Code Civ. Pro., § 676, as am'd L. 1877, c. 416.

42 Plaintiff may bring action in name of himself and sheriff by leave of court. The plaintiff, by leave of the court or judge, procured as prescribed in the next section, may bring and maintain, in the name of himself and the sheriff jointly, by his own attorney and at his own expense, any action which, by the provisions of this title,* may be brought by the sheriff to recover property attached, or the value thereof, or a demand attached, or upon an undertaking given, as prescribed in this title,* by a person other than the plaintiff; the plaintiff, in his own name and the sheriff's jointly, may also bring and maintain any action which, by the provisions of subdivision two of section six hundred and fifty-five of article second of this title, may be brought by the sheriff. The sheriff must receive the proceeds of such an action, but he is not liable for the costs or expenses thereof. Costs may be awarded in such an action against the plaintiff in the warrant, but not against the sheriff. Code Civ. Pro., § 677, as am'd L. 1889, c. 504.

14 Abb. Pr. N. S. 317, n.; 3 How. Pr. N. S. 290, 308; 50 N. Y. 80; 89 id. 343, 348; 31 Hun, 257; 34 id. 91, 92; 39 id. 31, 38; 1 City Ct. 460; 12 Daly, 5; 18 Abb. N. C. 149, n.; 13 Civ. Pro. 124; 116 N. Y. 492; 23 Abb. N. C. 7, 433; 53 N. Y. St. R. 369; 7 N. Y. Supp. 552; 10 id. 40; 23 id. 577; 30 id. 557.

43 Such leave, how procured. The court or judge must grant leave to bring such an action, where it appears, that due notice of the application therefor has been given to the sheriff; but, before doing so, the court or judge may require that notice of the application be given to the plaintiff, in any other warrant against the same defendant. And such terms, conditions, and regulations may be imposed, in the order granting leave, as the court or judge thinks proper, for the due protection of the rights and interests of all persons, interested in the disposition of the proceeds of the action. Code Civ. Pro., § 678.

34 Hun, 91, 92; 89 N. Y. 343, 348; 1 City Ct. 460; 18 Abb. N. C. 149, n.; 23 Abb. N. C. 433; 4 N. Y. Supp. 353, 873; 10 id. 40. This subject.

44 When plaintiff may be joined with sheriff after action commenced. Leave may, in like manner and with like effect, be granted to the plaintiff in the warrant, to be joined with the sheriff, in an action brought by the sheriff, in a case where he might have procured leave to bring the action, as prescribed in the last two sections. Upon an application therefor, the court or judge may, in a proper case, require the plaintiff to provide for the expenses in the action, already incurred by the sheriff. The application must be denied, in case of an unreasonable delay in making it; or where an application was made, before the action was brought, and the plaintiff neglected or refused, without a good excuse therefor, to comply with the terms, conditions or regulations then imposed. Code Civ. Pro., § 679.

34 Hun, 91, 92; 39 id. 38.

45 Judge to direct as to management of such action, etc. The court or judge may, upon the application of the sheriff, or of the defendant in the warrant, during the pendency of an action, brought as prescribed in the last three sections, direct as to the conduct, discontinuance, or settlement of the same, and as to the application or disposition of the money or property recovered therein, as justice requires. Code Civ. Pro., § 680.

46 Return of inventory, how enforced. Upon the application of either party, and proof of the neglect of the sheriff, the court or judge may, by order, require the sheriff to return an inventory. Disobedience to such an order may be punished, as a contempt of the court. Code Civ. Pro., § 681.

32 Hun, 356.

Vacating or Modifying the Warrant; Discharging the Attachment.

47 Who may move, and when, to vacate, etc., warrant, or for increase of security. The defendant, or a person who has acquired a lien upon, or interest in, his property, after it was attached, may, at any time before the actual application of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to vacate 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. Code Civ. Pro., § 682, as am'd L. 1877, c. 416.

61 Barb. 266; 15 Abb. Pr. 189; 82 N. Y. 88; s. c. 10 W. D. 484; s. c. 22 Alb. L. J. 315; 8. c. 59 How. Pr. 402, aff'g 58 How. Pr. 439; 85 N. Y. 500, aff'g 11 W. D. 292; s. c. 60 How. Pr. 190; s. c. 9 Daly, 413; 73 N. Y. 1; 85 id. 243; 100 id. 243, 247; 89 id. 440, 441; s. c. 15 W. D. 15; 58 N. Y. 253; 73 id. 218; 12 W. D. 177; 9 id. 119; s. c. 20 Alb. L. J. 315; 15 W. D. 476; 62 How. Pr. 422; 1 How. Pr. N. S. 276; 30 Hun, 19; s. c. 65 How. Pr. 151; s. c. 17 W. D. 261; 44 Hun, 296, 298; 30 id. 50, 51; 32 id. 279; s. c. 19 W. D. 166; 35 id. 396; 42 id. 95; 17 id. 49; 13 Abb. N. C. 31; 6 Civ. Pro. 401; 3 id. 342; s. c. 65 How. Pr. 511; 12 Civ. Pro. 245; 14 id. 238; 12 Daly, 321; 1 Abb. Pr. N. S. 255; 20 Civ. Pro. 338, 341; 21 id. 120, 121; 22 id. 227; 23 id. 251; 57 Hun, 144; 77 id. 313; 79 id. 134; 32 N. Y. St. R. 449; 38 id. 597; 46 id. 139; 51 id. 42; 53 id. 588; 59 id. 828; 61 id. 350; 1 N. Y. Supp. 211: 2 id. 218; 6 id. 539; 8 id. 590; 11 id. 27; 14 id. 529, 574; 18 id. 390; 19 id. 46; 22 id. 1096; 24 id. 483; 69 N. Y. St. R. 422. 48 Before whom, and on what papers made and opposed. An application, specified in the last section, may be founded only upon the papers upon which the warrant was granted; in which case, it must be made to the court, or, if the warrant was granted by a judge out of court, to the same judge, in court or out of court, and 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. Code Civ. Pro., § 683.

44 N. Y. 271; 75 id. 179: s. c. 56 How. Pr. 345; 75 N. Y. 434; 87 id. 141; 13 Abb. Pr. 76; 22 How. Pr. 272; 20 id. 343; 62 id. 364; 1 How. Pr. N. S. 276; 61 Barb. 266; 5 W.

D. 288; 8 id. 1; 9 id. 523; 18 id. 475; 14 Hun, 402; 34 id. 519, 520; 27 id. 242, 244; 30 id. 19; s. c. 65 How. Pr. 152; 31 Hun, 424; 34 id. 563; 42 id. 95; 7 Civ. Pro. 67, 70; s. c. 1 How. Pr. N. S. 161; 7 Civ. Pro. 86; 3 id. 342; 5 id. 265; 7 id. 91; s. c. How. Pr. N. S. 189; 12 Civ. Pro. 438; 15 id. 178; 2 L. B. 19; 1 City Ct. 473, 475; s. c. 3 Civ. Pro. 106, 108; s. c. 64 How. Pr. 366; 45 N. Y. St. R. 652; 46 id. 178; 51 id. 42; 1 N. Y. Supp. 761; 2 id. 218; 4 id. 353, 873; 18 id. 591, 765; 22 id. 1096; 36 id. 893; 4 App. Div. 21.

§§ 684, 685 repealed by L. 1877, c. 416.

49 When denial of motion not to prejudice subsequent motion. The denial of such an application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint which had not been filed or served at the time of the former application, to set forth any of the causes of action mentioned in section six hundred and thirty-five and section six hundred and thirty-seven of this act. Code Civ. Pro., § 686, as am'd L. 1877, c. 416.

50 When defendant may move to discharge attachment. The defendant may, at any time after he has appeared in the action, and before final judgment, apply to the judge who granted the warrant, or to the court for an order to discharge the attachment, as to the whole or a part of the property attached. Code Civ. Pro., § 687.

4 Keyes, 165; 3 Abb. N. C. 9; 9 Daly, 413.

51 Undertaking to be given by defendant. Upon such an application the defendant must give an undertaking, with at least two sufficient sureties, to the effect that he will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specified 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 his affidavit; or, at the option of the defendant, equal to the appraised value, 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. Code Civ. Pro., § 688, as am'd L. 1877, c. 416.

64 Barb. 464; 15 Abb. Pr. 189; 16 How. Pr. 189; 4 Keyes, 165; 18 Hun, 190; 26 id. 19; 32 id. 279; 34 id. 470; 19 W. D. 166; 13 Civ. Pro. 218; 23 id. 340; 61 N. Y. St. R. 835; 63 id. 426; 31 N. Y. Supp. 37.

52 Same: when application is made by one of several defendants.

Where there are two or more defendants, and an application is made, as prescribed in the last two sections, by one or more, but not by all of them, the undertaking must provide for the payment of any 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 undertaking 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 of the affidavit, must be served upon the plaintiff's attorney, who may oppose the application by proof, by affidavit, that one or more of the other defendants own, or have an interest in the property. Code Civ. Pro., § 689.

8 Alb. L. J. 302; 64 Barb. 464; 32 Hun, 279; 19 W. D. 166.

53 Same: filing, service of copy, justification of sureties. An undertaking, given as prescribed in the last two sections, must be forthwith filed with the clerk. A copy thereof, with a notice of the filing must be forthwith served upon the plaintiff's attorney; who may, within three days thereafter, give notice to the sheriff, that he excepts to the sufficiency of the sureties. Thereupon the sureties must justify, upon the like notice, and in like manner, as bail upon an arrest; or a new undertaking must be given, with new sureties, who must justify in like manner. If the plaintiff does not except, as prescribed in this section, he is deemed to have waived all objection to the sureties. Code Civ. Pro., § 690, as am'd L. 1877, c. 416.

15 Abb. Pr. N. S. 205. See Arrest, §§ 23-40.

« 上一頁繼續 »