§ 671. When vessel to be sold. 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 paid to the persons who executed the undertaking, for their indemnity. From Id., § 24. § 672. The 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 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. From Id., § 25. § 673. The 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. From Id., § 26. 674. 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. From Co. Proc. § 232. Am'd by ch. 416 of 1877. § 675. Sheriff may be directed to pay money 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. § 676. When he may be directed to release or deliver property. 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. Am'd by ch. 416 of 1877. § 677. Plaintiff may bring action in name of himself and the sheriff. 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. From Co. Proc. § 288. Am'd by ch. 504 of 1889. § 678. How leave to bring such action 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. From Id. See § 703, 704. § 679. Plaintiff may be joined with sheriff, after action commenced. Leave may, in like manner and in 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. From Id. § 680. Judge to direct as to management of such an 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. From Id. § 681. 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. From 2 R. S. 13, Part 2, ch. 5, tit. 1, art. 1, § 66 (2 Edm. 14). ARTICLE THIRD. Vacating or modifying the Warrant; discharging the Attachment. SEC. 682. Motion to vacate or modify warrant, or increase security. 688. Undertaking to be given. 689. Application by one of several defendants. 690. Sureties to justify if required. 691. Sheriff may retain property until justification 692. Foregoing provisions applicable to vessels. 693. Partners may apply to discharge attachment. 694. Undertaking to be given. 695. Court or judge may ascertain value. 696. When plaintiff entitled to notice of any application, etc. § 682. Motion to vacate or modify warrant, or increase 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. From Co. Proc. § 241. Am'd by ch. 416 of 1877. § 683. How motion must be made; opposing it by new proofs. 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. § 684. Questions of fact arising on the motion. Repealed by ch. 416 of 1877. § 685. Id. Repealed by ch. 416 of 1877. § 686. When prior motion not to prejudice subsequent motion. The denial of such an application does not prejudice a subsequent application, seasonable* 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. Am'd by ch. 416 of 1877. See § 558. § 687. Defendant may apply for discharge of 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. From Co. Proc. § 240. § 688. Undertaking to be given. 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. From Co. Proc. § 241. Am'd by ch. 416 of 1877. § 689. Application 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. § 690. Sureties to justify if required. 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 So in the original. like manner. If the plaintiff does not except, as prescribed in this section, he is deemed to have waived all objections to the sureties. From Co. Proc. § 241. Am'd by ch. 416 of 1877. § 691. Sheriff may retain property until justification. The sheriff is responsible for the sufficiency of the sureties: and he may retain possession of the property attached, and the proceeds thereof, until the objection to them is waived, as prescribed in the last section, or they or the new sureties, justify. From Id. § 692. Foregoing provisions applicable to vessels. The last five sections are applicable, where a vessel, or a share or interest therein is attached. If it is necessary to enable the defendant to discharge the attachment, the court or judge may, by order, stay any proceedings specified in article second of this title, or extend the tinie to do any act therein specified. § 693. Partners may apply to discharge attachment. If a warrant of attachment is levied upon the interest of one or more partners, in goods or chattels of a partnership, the other partners, who are not defendants in the action, or any of them, may at any time before final judgment, apply to the judge who granted the warrant, or to the court, upon an affidavit showing the facts, for an order to discharge the attachment, as to that interest. § 694. Undertaking to be given. Upon such an application, the applicant must give an undertaking, with at least two sufficient sureties, to the effect that they will pay to the sheriff, on demand, the amount of any judgment which may be recovered against the partner who is defendant in the action; or which may be recovered against him, in any other action, wherein the other partners are not defendants, and wherein a warrant of attachment, or an execution, may come to the sheriff's hands, at any time before the warrant of attachment, which was so levied, is vacated or annulled; not exceeding a sum, specified in the undertaking, which must not be less than the value of the interest of the defendant, in the goods or chattels seized by virtue of the attachment, as fixed by the court or judge. If the value, in the opinion of the court or judge, is uncertain, the sum shall be such as the court or judge determines. Am'd by ch. 416 of 1877. § 695. Court or judge may ascertain value. For the purpose of fixing the sum, or determining the sufficiency of the sureties, the court or judge may receive affidavits or oral testimony, or may direct a reference. § 696. When plaintiff entitled to notice of any application, etc. The court or judge may direct, that the plaintiff have notice of an application for a discharge of property, as prescribed in this article, or of the hearing under an order of reference, made as prescribed in the last section; and, if the applicant does not appear, where notice has been given, the application may be dismissed or denied. Am'd by ch. 416 of 1877. |