ARTICLE FIFTH. Que art foci. Prave! Proceedings after judgment; rights of parties and duties of the sheriff after the warrant is vacated or annulled, or the attachment discharged. Sec. 706. Execution to issue to sheriff who has levied. 707. When judgment enforceable only against attached property. 708. Judgment in the principal action; how satisfied. 709. When attachment discharged, etc., property to be restored to de- 710. Additional provision for his relief. 711. Cancelling notice attaching real property. 712. When sheriff to return warrant and his proceedings. 706. Execution to issue to sheriff who has levied. Where a levy, under a warrant of attachment in an action, has been made, an execution against property, upon a final judgment in favor of the plaintiff therein, recovered after the expiration of the term of office of the sheriff, who made the levy, must nevertheless be directed to and executed by that sheriff, unless another person is designated by law to complete the unfinished business pertaining to his office; or, in that case, to the person so designated. New. 707. [Am'd, 1877.] When judgment enforceable only against attached property. Where a defendant, who has not appeared, is a non-resident of the State, or a foreign corporation, and 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, the judgment can be enforced only against the property which has been levied upon, by virtue of the warrant of attachment, at the time when the judgment is entered. But this section does not declare the effect of such a judgment, with respect to the application of any statute of limitation. New. Am'd by L. 1877, c. 416. 708. [Am'd, 1877, 1912.] Judgment in the principal action; how satisfled. Where an execution against property is issued upon a judgment for the plaintiff, in an action in which a warrant of attachment has been levied, the sheriff must satisfy it, as follows: 1. He must pay over to the plaintiff all money attached by him, and the proceeds of all sales of perishable property, or of any vessel or share of interest therein, or animals, sold by him, or of any debts, or other things in action collected or sold by him; or so much thereof as is necessary to satisfy the judgment. 2. if any balance remains due, he must sell, under the execu tion, the other personal property attached, or so much thereof as is necessary; including rights or shares in the stock of an association or corporation, or a bond or other instrument for the payment of money, executed and issued, with the interest coupons annexed, if any, by a government, state, county, public officer, or municipal or other corporation, which is in terms negotiable, or otherwise, whether past due, or yet to become due; but not including any other debt or thing in action. If the proceeds of that property are insufficient to satisfy the judgment, and the execution requires 287 him to satisfy it out of any other personal property of the defendant, he must sell the personal property, upon which he has levied by virtue of the execution. If the proceeds of the personal property, applicable to the execution, are insufficient to satisfy the judgment, the sheriff must sell, under the execution, all the right, title, and interest, which the defendant had in the real property attached, at the time when the notice was filed, or at any time afterwards, before resorting to any other real property. 3. If personal property attached, belonging to the defendant, has passed out of the hands of the sheriff, without having been sold or converted into money, and the attachment has not been discharged as to that property, he must, if practicable, regain possession thereof; and, for that purpose, he has all the authority which he had, to seize the same under the warrant. A person, who wilfully conceals or withholds such property from him, is liable to double damages, at the suit of the party aggrieved. 4. Until the judgment is paid, he may collect the debts and other things in action attached, and prosecute any undertaking, which he has taken in the course of the proceedings, and apply the proceeds thereof to the payment of the judgment. 5. At any time after levying the attachment, the court, upon the petition of the plaintiff, accompanied with an affidavit, specifying fully all the proceedings of the sheriff, since the levy under the warrant, the property attached, and the disposition thereof; and the affidavit of the sheriff, showing that he has used diligence, in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected; may direct the sheriff to sell the remaining portion, upon such terms, and in such manner, as it thinks proper. Notice of the application must be given to the defendant's attorney, if the defendant appeared in the action. If the summons was not personally served on the defendant, and he did not appear, the court may make such order as to the service of notice, as it thinks proper; or may grant the application without notice. From Co. Proc., § 237. Am'd by L. 1877, c. 416; L. 1912, c. 40 (in effect Sept. 1, 1912). § 709. [Am'd, 1877.] When attachment discharged, etc., property to be restored to defendant. Where a warrant of attachment is vacated, or annulled, or an attachment is discharged, upon the application of the defendant, the sheriff must, except in a case where it is otherwise specially prescribed by law, deliver over to the defendant, or to the person entitled thereto, upon reasonable demand, and upon payment of all costs, charges, and expenses, legally chargeable by the sheriff, all the attached personal property remaining in his hands, or that portion thereof, as to which the attachment is discharged; or the proceeds thereof, if it has been sold by him. From Co. Proc., §§ 237, 239, 240. Am'd by L. 1877, c. 416. § 710. Additional provision for his relief. Where the sheriff is required by this title, to deliver attached property, or the proceeds thereof, to the defendant, he must also deliver to him, unless otherwise specially directed by the court or judge, all books of account, vouchers, evidences of debt, muniments of title, or other papers, relating to the property, either real or personal, or to its proceeds; together with all undertakings, relating thereto, which he has taken in the course of the proceedings, and which have not been fully satisfied; except an undertaking, given by the defendant, upon the discharge of property. He must also deliver a written assignment, duly acknowl edged, of each undertaking, so delivered, and of each other instrument, to which the defendant is thus entitled, an assignment of which is necessary to perfect or protect the defendant's title thereto. The defendant must also, but upon his own application only, be substituted in place of the sheriff, or the sheriff and the plaintiff jointly, in an action brought as prescribed in this title; but the court or judge may impose, as a condition of granting the order of substitution, such terms as justice requires, with respect to indemnity and payment of expenses. The defendant's rights, with respect to property attached and not disposed of, and an undertaking, or other instrument, to which he is thus entitled, are the same as those of the sheriff, while the warrant was still in force, except where his rights are specially defined or regulated by law. See Co. Proc., § 239. § 711. [Am'd, 1877.] property. Cancelling notice attaching real At any time after the warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property attached, the court may, in its discretion, upon the application of any person aggrieved, and upon such notice as it deems just, direct, that any notice, filed for the purpose of attaching the property, be cancelled of record, by the clerk of the county where it is filed and recorded. The cancellation must be made by a note, to that effect, on the margin of the record, referring to the order; and, unless the order is entered in the same clerk's office, a certified copy thereof must, at the same time, be filed therein. From Co. Proc., § 132. Am'd by L. 1877, c. 416. § 712. When sheriff to return warrant and his proceed ings. Where a warrant of attachment has been vacated or annulled, the sheriff must forthwith file, in the clerk's office, the warrant, with a return of his proceedings thereon. Upon the application of either party, and proof of the sheriff's neglect, the court may direct him so to do, forthwith, or within a specified time. From Co. Proc., § 242; 2 R. S. 13 (Part 2, c. 5, tit. 1), § 66 189 715. Security. 716. Certain receivers may hold property. § 713. [Am'd, 1895.] Receiver; when appointed. In addition to the cases, where the appointment of a receiver is specially provided for by law, a receiver of property, which is the subject of an action, in the supreme court or a county court, may be appointed by the court, in either of the following cases: 1. Before final judgment, on the application of a party who establishes an apparent right to, or interest in, the property, where it is in the possession of an adverse party, and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed. 2. By or after the final judgment, to carry the judgment into effect, or to dispose of the property, according to its directions. 3. After final judgment, to preserve the property, during the pendency of an appeal. The word, property," as used in this section, includes the rents, profits, or other income, and the increase, of real or personal property. From Co. Proc., § 244. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896). § 714. [Am'd, 1877, 1879, 1903.] Appointment of receiver; notice of application. Notice of an application, for the appointment of a receiver in an action, before judgment therein, must be given to the adverse party, unless he has failed to appear in the action, and the time limited for his appearance has expired. But where an order has been made, as prescribed in section 438 of this act, the court may, in its discretion, appoint a temporary receiver, to receive and preserve the property, without notice, or upon a notice given by publication or otherwise, as he thinks proper. But where the action is for the foreclosure of a mortgage, which mortgage provides that a receiver may be appointed without notice, notice shall not be required. New. Am'd by L. 1877, c. 416; L. 1879, c. 542; L. 1903, c. 217 (in effect Sept. 1, 1903). § 715. [Am'd, 1877, 1896.] Security. A receiver, appointed in an action or special proceeding, must, before entering upon his duties, execute and file with the proper clerk, a bond to the people, with at least two sufficient sureties, in a penalty fixed by the court. judge, or referee, making the appointment, conditioned for the faithful discharge of his duties as receiver: and the execution of any such bond by any fidelity or surety company authorized by the laws of this state to transact business, shall be equivalent to the execution of said bond by two sureties. And the court, or where the order was made out of court, the judge making the order, by or pursuant to which the receiver was appointed, or his successor in office, may, at any time, remove the receiver, or direct him to give a new bond, wit new sureties, with the like condition. But the foregoing provisions of this section do not apply to a case where special provision is made by law, for the security to be given by a receiver, or for increasing the same, or for removing a receiver. A receiver who,' having executed and filed a bond as provided for in this section, before presenting his accounts as receiver, must give notice to the surety or sureties on his official bond, of his intention to present his accounts, not less than eight days before the day set for the hearing on said accounting. The same notice must be given to such surety or sureties where the accounting is ordered on the petition of a person or persons other than the receiver, and in no case shall the receiver's accounts be passed, settled or allowed, unless the said notice provided for in this section shall have first been given to the surety or sureties on the official bond of such receiver. New. Am'd by L. 1877, c. 416; L. 1896, c. 94 (in effect March 11, 1896). § 716. [Am'd, 1895, 1909.] property. Certain receivers may hold real A receiver, appointed by or pursuant to an order or a judgment, in an action in the supreme court or a county court, may take and hold real property, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof. From L. 1845, c. 112, § 1. Am'd by L. 1895, c. 946; L. 1909, c. 65. Table, p. iii, ante). 1 So in the original. The "who " is superfluous. 184 (See |