complaint (id) But where the action is commenced without filing any undertaking the court may order it filed nunc pro tunc (Millbank v. Broadway Bk, 3 Abb. N. S. 223). Where the sheriff levies on a promissory note in course of prosecution, he may continue the action in the name of the plaintiff, or may be substituted as plaintiff at his election (Russell v. Ruckman, 3 E D. Smith, 419). Where, in an action by the sheriff pursuant to this action, defendant has a set-off, other attaching creditors are not necessary parties to the suit (Glenville Woolen Co. v. Ripley, 6 Rob. 530).

§ 239. Bond to sheriff on attachment, how disposed of on judgment for defendant.

If the foreign corporation, or absent, or absconding, or concealed defendant, recover judgment against the plaintiff in such action, any bond taken by the sheriff, except such as are mentioned in the last section, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered by him to the defendant, or his agent, on request, and the warrant shall be discharged, and the property released therefrom.

§ 210. (Am'd 1862.) Discharge of attachment, and return of property or its proceeds to defendant.

Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same; and if the same be granted, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered or paid by him to the defendant or his agent, and released from the attachment.

And where there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order of attachment, the defendant whose several property has been seized may apply to the officer who issued the attachment for relief under this section.

a. Discharge.-The application on the part of the defendant to discharge the attachment is "purely ex parte." The plaintiff has no right to except to defendant's sureties (Sanborn v. Elizabethport Manuf'g Co. 22 How. 106; 13 Abb. 433). The court may direct notice of the application to be given to the plaintiff, and if a notice is so given and the defendant does not attend at the time specified, the court cannot give plaintiff the costs of his attendance (id.) b. After judgment for the plaintiff in the action, it is too late for the defendant to avail himself of this section (Spencer v. Rogers Locomotive Works, 13 Abb. 180; see Zerega v. Benoist, 7 Rob. 205).

d. A surety in an undertaking given pursuant to this section is not discharged by an order on the principal to furnish further security, that order not being complied with (Jewitt v. Crane, 13 Abb. 97; 35 Barb. 208).

c. A motion to compel a party to furnish further sureties on the ground

that he has imposed on the court; as for instance that one of the sureties is an infant, is not an exception to the sufficiency of the sureties (Jewitt v. Crane, 35 Barb. 208). Sureties may be allowed for their own protection to defend an action against their principal; and even after judgment has been entered, they may on a prompt application have the judgment set aside and be let in to defend (id). In such an action the sureties cannot avail themselves of any mere irregularities in the original action (id.)

§ 241. (Am'd 1857, 1862, 1869.) Undertaking on the part of the defendant; discharge of attachment.

Upon such application, the defendant shall deliver to the court or officer an undertaking, executed by at least two sureties, who are residents and freeholders or householders in this State, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff, the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint. If it shall appear by affidavit that the property attached be less than the amount claimed by the plaintiff, the court or officer issuing the attachment may order the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised. And the plaintiff may, within three days after receiving written notice of the filing of such undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails so to do, he shall be deemed to have waived all objection to them. When the plaintiff excepts, the sureties shall justify on notice in like manner as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties, and may retain possession of the property attached and the proceeds thereof in his hands, until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justify. And in all cases the defendant may move to discharge the attachment, as in the case of other provisional remedies. And when there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order of attachment, the defendant, whose several property has been seized, may deliver to the court or officer an undertaking in accordance with the provisions of this section, to the effect that he will on demand, pay to the plaintiff the amount of judgment that may be recovered against such defendant. And all the provisions of this section applicable to such undertaking shall be applied thereto.

a. Discharge.-Where a party has been attached as a nonresident, he may move to have the attachment discharged on the ground of his being a resident, and the court will grant a reference to ascertain the fact, without the undertaking required by this section (Killian v. Washington, 2 Code Rep. 78). The issuing an attachment against a debtor on the ground that he is a nonresident, when in fact he is a resident, is an irregularity only, and must be taken advantage of at the earliest opportunity, or it will be waived (Lavrence v. Jones, 15 Abb. 110). Giving an undertaking under § 241 does not preclude the defendant from afterwards moving to set aside the attachment (Garbutt v. Hanff, 15 Abb. 189). A motion to set aside an attachment as improvidently issued must be on the plaintiff's affidavit only. Additional affidavits cannot be used (White v. Featherstonhaugh, 7 How. 357; see also Bank of Lansingburg v. McKie, 7 How. 360).

b. Where an undertaking was given on discharging an attachment against a nonresident defendant, and subsequently the plaintiff moved for other sure ties, on the ground that one of them was insolvent,-held that the court had no power to order additional sureties in such a case (Dudley v. Goodrich, 16 How. 189; 7 Abb. 26).

c. An order appointing an appraiser to ascertain the value of property attached for the purpose of an undertaking to procure a discharge of the attachment is not appealable (Lupton v. Jewett, 19 Abb. 320).

d. In an action on a bond given to obtain the release of property seized under an attachment, the defendants are estopped from denying any fact recited in the undertaking (Coleman v. Bean, 3 Keyes, 94; Haggart v. Morgan, 5 N. Y. 422).

$ 242. thereon.

When sheriff to return warrant, and proceedings

When the warrant shall be fully executed or discharged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action was brought.

§ 243. (Am'd 1865.) Sheriff's' fees.

The sheriff shall be entitled to the same fees and compensation for services, and the same disbursements, under this title, as are allowed by law for like services, and disbursements, under the provisions of chapter five, title one, and part two of the Revised Statutes. Provided, however, that no poundage or other compensation shall be allowed to the said sheriff (except his fee of fifty cents for making the levy, and such compensation for his trouble and expense in taking possession of and preserving the property as shall be fixed by the officer issuing the attachment), unless a settlement shall be had, or a judgment shall be recovered and collected in whole or in part, in the action in which the attachment in this title referred to shall have issued. And where a judgment shall have been recovered and collected in part only, the amount of his poundage shall not be estimated upon any sum greater than the sum collected upon such judgment. And where a settlement shall be had, the amount of his poundage shall not be estimated upon any sum greater than the amount at which said settlement is made.

a. If the sheriff employs agents to assist him, he must himself remunerate them; but the cost of employing attorney and counsel is a necessary disbursement (Mayhew v. Duncan, 31 Barb. 87; and see Mayhew v. Wilson, 10 Abb. 289).

b. A sheriff must, in his bill of charges, specify the items of disbursements, under oath of himself or his deputy (Mayhew v. Wilson, 10 Abb. 289).

c. Where an arrangement was made by which the defendant agreed to pay certain drafts, and this was done,-held the sheriff was entitled to poundage upon the amount paid (Pritchard v. B'k of California, 51 Barb. 184).

CHAPTER V.

Provisional Remedies.

§ 244. (Am'd 1851, 1852, 1857, 1858, 1862, 1867.) Powers of court as to receivers, deposit of money, &c., in court, and other provisional remedies. Judgment for sum admitted due.

A receiver may be appointed :

1. Before judgment, on the application of either party, when he establishes an apparent right to property which is the subject of the action, and which is in the possession of an adverse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired; except in cases where judgment upon failure to answer may be had without application to the court.

2. After judgment, to carry the judgment into effect.

3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment.

4. In the cases provided in this Code and by special statutes, when a corporation has been dissolved, or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights; and in like cases, of the property within this State of foreign corporations. Receivers of the property within this State, of foreign or other corporations, shall be allowed such commissions as may be fixed by the court appointing them, not exceeding five per cent. on the amount received and disbursed by them.

5. In such other cases as are now provided by law, or may be

in accordance with the existing practice, except as otherwise provided in this act.

When it is admitted by the pleading or examination of a party that he has in his possession, or under his control, any money or other thing capable of delivery, which being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court.

Whenever, in the exercise of its authority, a court shall have ordered the deposit, delivery, or conveyance of money or other property, and the order is disobeyed, the court, besides punishing the disobedience, as for contempt, may make an order requiring the sheriff to take the money or property, and deposit, deliver, or convey it in conformity with the direction of the court.

When the answer of the defendant, expressly, or by not denying, admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy.

Receiver.

a. Appointment.-A receiver cannot be appointed until a suit is commenced (Anon. 1 Atk. 419), except in cases of idiots and lunatics (Ex parte Whitefield, 2 Atk. 315), or where defendant designedly keeps out of the way to avoid service of the process (Quinn v. Gunn, 1 Hogan, 75; Sandford v. Sinclair, 3 Edw. Ch. R. 393). He cannot be appointed without notice to the party interested, except under peculiar circumstances (People v. Norton, 1 Paige, 17; Verplank v. Mercantile Ins. Co. 2 id. 438; Sandford v. Sinclair, 8 id. 373; Gibson v. Martin, 8 id. 481; Field v. Ripley, 20 How. 26; Kemp v. Harding, 4 How. 178; Dorr v. Noxon, 5 id. 29; and see note to section 298); nor before answer, unless in special cases (West v. Swan, 3 Edw. Ch. R. 420; and see Vann v. Barrett, 2 Bro. C. C. 158; Bloodgood v. Clark, 4 Paige, 577; Osborn v. Heyer, 2 Paige, 343). An order to show cause why a receiver should not be appointed, served before the action is commenced, is irregular (Kattenstroth v. The Astor Bank, 2 Duer, 632). After judgment for default of answer, a receiver may be moved for without notice (Austin v. Figueira, 7 Paige, 56; Nesmith v. Halsted, 11 id. 647). Upon a motion for a receiver the merits are not inquired into (2 Barb. 532; 4 How. 166). Such motion relates only to the preservation of the property in controversy (4 Wend. 173; see 2 Barb. 533).

b. The pendency of a motion for leave to amend or to dissolve an injunction is no objection to a motion to appoint a receiver (Barnard v. Darling, 1 Barb. Ch. R. 76). A receiver is appointed only for the benefit of the parties, and not of strangers to the action (Howard v. Ripley, 10 Paige, 43). A party applying for a receiver, pending the litigation, must show a probable interest in the property, and that it is in danger of being lost (Goodyear v. Belts, 7 How. 187; Patten v. Access. Transit Co. 4 Abb. 235; Hamilton v. Access. Trans. Co. 3 Abb. 255; McCarthy v. Peake, 9 Abb. 164).