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§ 701. Undertaking by junior attaching creditor, to prevent release of foreign vessel. Where a foreign vessel, or a share or interest therein, has been attached and valued, as prescribed in article second of this title, and the plaintiff, in the first warrant of attachment, fails to give an undertaking to prevent the release thereof, the court or judge may grant to the plaintiff in a second warrant, then in the sheriff's hands for execution, an extension, of not more than three days thereafter, within which to furnish an undertaking, in all respects like the one to be furnished by the first plaintiff. And if he furnishes it, within that time, he has the same rights and privileges, and is subject to the same duties and liabilities, with respect, to the vessel and its proceeds, and the subsequent proceedings relating thereto, as if his was the first warrant.

§ 702. Rule as to subsequent attachment of foreign vessel. If a foreign vessel, or a share or interest therein, has been attached, and afterwards released, by reason of the failure of the plaintiff, in the first or the second warrant, to give an undertaking to prevent the release, it shall not be again attached, under warrant against the same defendant, which had been delivered to the sheriff of the same county, before the expiration of the time within which the undertaking should have been furnished. But it may be again attached, under a subsequent warrant against the same defendant; in which case, the plaintiff therein, and the plaintiff in each warrant subsequently delivered to the sheriff, have the same rights, and privileges, and are subject to the same duties and liabilities, with respect to the vessel and its proceeds, and the subsequent proceedings relating thereto, as if the warrant, under which it was attached, was the first warrant.

§ 703. Rights of junior plaintiff in action by senior plaintiff and sheriff jointly. Where the plaintiff in a warrant of attachment has commenced an action, in the name of himself and the sheriff jointly, as prescribed in this title, a plaintiff in a junior warrant may apply to the court or judge, to direct as to the conduct, discontinuance, or settlement of the same, or to impose terms, conditions, and regulations as to the continuance thereof, in the interest of the applicant; and such order may be made thereupon, as justice requires. If the first warrant is vacated, or the attachment thereunder is released or discharged, without affecting the cause of action prosecuted by the plaintiff therein and the sheriff jointly, the plaintiff in the warrant next in order, may, upon his own application, be substituted as joint plaintiff with the sheriff, by an order, made as upon an application for leave to bring such an action.

§ 704. Junior plaintiff may be allowed to commence action jointly with sheriff. A plaintiff in a second warrant may apply to the court or judge, upon notice to the plaintiff in the first warrant, and to the sheriff, for leave to bring and maintain, in the name of himself and the sheriff jointly, any action, which might be brought in the name of the senior plaintiff and the sheriff. If it appears that the plaintiff in the first warrant neglects or refuses to be joined with the sheriff in such an action, or to comply with the terms, conditions, and regulations, imposed, either upon granting him an order for that purpose, or upon the hearing of an application, made as prescribed in this section, the court or judge may grant to the plaintiff in the second warrant, leave to bring and maintain such an action, in the name of himself and the sheriff jointly, with like effect, as if his was the first warrant.

§ 705. Rights of third and other subsequent attaching creditors. Where there are more than two warrants of attachment, against the same defendant, the plaintiffs in the third and each subsequent warrant have,

according to their respective priorities, the same rights and privileges, as against the plaintiffs in all senior warrants, which the plaintiff in the second warrant has, as against the plaintiff in the first, and are subject to the same duties and liabilities; except that a second extension of the time, within which to furnish an undertaking to prevent the release of a foreign vessel, or a share or interest therein, shall not be granted. And the plaintiffs in two or more junior warrants of attachment, may, by agreement among themselves, take jointly, and for their common benefit, any proceeding, permitted by this title to be taken, by the plaintiff in a second or subsequent warrant of attachment; provided that it does not interfere with the preferential or other right of an intermediate plaintiff.

ARTICLE FIFTH.

PROCEEDINGS AFTER JUDGMENT; RIGHTS OF PARTIES AND DUTIES OF THE SHERIFF, AFTER THE WARRANT IS VACATED OR ANNULLED, OR THE ATTACHMENT DISCHARGED.

SECTION 706. Execution to issue to sheriff who has levied.

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707. Only attached property bound when summons not personally served.
708. Judgment in the principal action; how satisfied.

709. When attachment discharged, etc., property to be restored to defendant.
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 an 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.

§ 707. Only attached property bound, when summons not personally served. [AMENDED BY CH. 416 OF 1877.] 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.

§ 708. Judgment in the principal action; how satisfied. [AMENDED BY CH. 416 OF 1877.] Where an execution against property is issued upor a judgment for the plaintiff, in an action in which a warrant of attachmen has been levied, the sheriff must satisfy it, as follows:

1. He must pay over to the plaintiff all money attached by him, and all proceeds of all sales of perishable property, or of any vessel, or share or 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 execution, the other personal property attached or so much thereof as is necessary; includ

*So in the original

ing 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 payable to the bearer or holder, the principal whereof is not then payable; 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 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. person who wilfully conceals or withholds such property from him, is liable to double damages, at the suit of the party aggrieved.

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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.

§709. When attachment discharged, etc., property to be restored to defendant. [AMENDED BY CH. 416 OF 1877.] 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 proceedings thereof, if it has been sold by him.

$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 acknowledged, 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.

$711. Cancelling notice attaching real property. [AMENDED BY CH. 416 OF 1877.] 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.

§ 712. When sheriff to return warrant and his proceedings. 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.

TITLE IV.

Other provisional remedies; general and miscellaneous provisions.

ARTICLE 1. Receivers.

2. Deposit, delivery, or conveyance of property.

3. General and miscellaneous provisions.

ARTICLE FIRST.

RECEIVERS.

SECTION 713. Receiver; when appointed.

714. Notice of application.

715. Security.

716. Certain receivers may hold real property.

§ 713. 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 adjournment, 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. [AM'D BY CH. 946 OF 1895. In effect Jan., 1, 1896.]

§ 714. Notice of application. [AMENDED BY Ch. 416 OF 1877 AND BY CH. 542 OF 1879.] 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 four hundred and thirty-eight 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 it thinks proper.

§ 715. Security. [AMENDED BY CH. 416 OF 1877.] 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 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, with new sureties, with the like condition. But this section does 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.

§ 716. Certain receivers may hold real property. A receiver, appointed by or pursuant to an order or a judgment, in an action in the supreme court, or a county court, or in a special proceeding or the voluntary dissolution of a corporation, 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. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

ARTICLE SECOND.

DEPOSIT, DELIVERY, OR CONVEYANCE OF PROPERTY.

SECTION 717. Court may order a deposit or delivery of property in certain cases. 718. When sheriff may take and convey, etc., property.

§ 717. Court may order a deposit or delivery of property in certain cases. [AMENDED BY CH. 416 OF 1877.] Where it is admitted, by the pleading or examination of a party, that he has, in his possession or under his control, money, or other personal property capable of delivery, which, being the subject of the action or special proceeding, is held by him as trustee for an

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