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TITLE 1.

Notice of first warrant; proceedings thereon.

warrant.

Rights and

warrant had been issued by the officer who granted the first warrant.

13 B., 452. S 40. The officer who issued such first warrant, shall, on the application of any creditor, subscribe and deliver to him, a notice in writing, directed to the sheriff having such subsequent warrant, of the fact of a prior warrant having issued; and upon such notice being served on such sheriff, he shall return to such officer an inventory of the property seized by him under such subsequent warrant, with all his proceedings thereon, in the same manner as if the same had been issued by such officer; and all proceedings on the subsequent warrant shall be conducted, in all respects, as if the same had been

issued by the officer, who issued the first warrant. Duty of off- $ 41. The officer who issued such subsequent warrant, shall cendeguies transmit the petitions and affidavits upon which such warrant subsequent

was founded or relating thereto, to the officer who issued the first warrant, upon receiving from such officer a certificate of the time of his issuing the same; and after the service of such notice, the officer who issued the subsequent warrant, shall cease to exercise any authority by virtue of the application made to him.

S 42. The creditors making the subsequent application, or of creditors who shall have filed a petition and affidavit with the officer in swahtlatz. issuing the subsequent warrant, desiring to be deemed attach

ing creditors, shall be entitled to all the benefits and advantages, and subject to the same responsibilities and obligations, as the creditor at whose instance the first warrant issued.

13 B., 452. Petition for

S 43. Every person proceeded against as an absconding or hearing a concealed debtor, may, at any time before the appointment sconding or

of trustees as herein after mentioned, present a petition by himself or his attorney, verified by his oath or that of some

other person, to the officer who issued the warrant against [10] him, stating that he is a resident within this state, and was

not at any time within thirty days before the issuing of such warrant, or at any time thereafter, an absconding or concealed debtor within the intent of this Article; and may therein pray that his allegations in that behalf, may be heard and determined by the supreme court, or the court of common pleas of the county in which such officer resides.

1 R. L., 157, § 7; 4 H., 599; 11 How. P. R., 227. Ib. Non- S 44. Every person proceeded against as a non-resident

debtor, and any person in his behalf, may, at any time before the appointment of trustees as herein after mentioned, present a petition verified by the oath of the person presenting the same, to the officer who issued the warrant against such debtor, stating that at the time of issuing such warrant, the debtor so proceeded against was a resident of this state; and may pray that the allegations in such petition may be deter

&c.

concealed debtor.

resident debtor.

ART. 1. mined by the supreme court, or the court of common pleas of the county.

5 N. Y., 429; 11 How. P. R., 227. S 45. Such debtor in either of the cases before mentioned, Bond to be

given. or his agent, shall, at the time of presenting the petition, deliver to the officer who issued the warrant, a bond to the attaching creditors in the penal sum of one hundred dollars, with such security as shall be approved by such officer, with a condition, (preceded by a recital of the petition,) that such debtor shall prove to the supreme court, or to the court of common pleas of the county, whichever shall be inserted by such officer at his discretion, at the next term thereof, the facts set forth in such petition.

11 N. Y., 335; 5 N. Y., 429. $ 46. The officer with whom such petition and bond shall be oficerre filed, shall report his proceedings, with the affidavits presented tition and to him in relation to such proceedings, to the court named in port. the condition of such bond, on the first day of the next term thereof.

5 N. Y., 429. S 47. The court to which such report shall be made, shall Proceedproceed to hear the proofs and allegations of the parties in a court on resummary way, and shall determine whether the allegations in port. such petition have been satisfactorily proved; unless the court shall deem it a proper case to be submitted to a jury, in which case, the court may in its discretion, award a venire to try the same, in such manner as the court shall direct.

$ 48. If the court determine that the allegations in the Ih Warrant petition are proved, it shall grant an order, cancelling the bond discharged. given by or in behalf of the debtor, and discharging the warrant or warrants that may have been issued against him, and thereby releasing all property which shall bave been attached under such warrants; which order shall terminate all proceedings upon such warrants.

5 N. Y., 429. $ 49. The court shall tax the costs and expenses of the debtor, incurred in obtaining such order, and shall cause Ib. Costs. the same to be paid by the attaching creditor, and may enforce the payment thereof by attachment.

1 R. L., 157, S 7. $ 50. If the court determine that the allegations contained Tb. Penalty in the petition are not proved, then the obligee in the bond when to be given by or in behalf of such debtor, may recover the penalty thereof with costs; one moiety of the penalty may be retained by the obligee or his representatives, and the other moiety shall be paid to the trustees to be appointed as herein after mentioned, to be disposed of by them, as part of the property and effects of such debtor; or if no trustees be appointed, such moiety may be retained by the obligee.

(11)

recovered.

TITLE 1. Petition by

debtor.

$ 51. If any person to whom a debtor shall have assigned persons te or delivered any property, on a valuable consideration, or to perty from whom the debtor may have made payments, after the publi

cation of the notice of attachment, shall desire to contest the
fact of such debtor's being non-resident, concealed or abscond-
ing, within the meaning of this Article, he may do so, on
executing a bond similar to that required of a debtor in the
previous forty-fifth section, and within the time allowed to
the debtor for that purpose; and on his application to the
court to which such proceedings are or shall be reported,
the court shall direct such allegations to be tried by a jury,

and shall direct the proper proceeding for that purpose.
Jury trial. $ 52. A decision by a jury, in any case, where a trial may
Proceed-
ings on cer-

be had, pursuant to the provisions of this Article, if not set tain bonds. aside by the court, shall have the same effect in all cases as

the determination of a court without such trial; and the same
proceedings may be had upon the bond executed by any other
person than the debtor, as are herein provided in respect to
the bond of such debtor, in the like cases and with the like

effect. Effect of pe

S 53. The proceedings upon any warrant, that may be Hondas stay issued, pursuant to the provisions of this Article, shall not of proceed be in any manner stayed or affected, by such petition or bond,

given as herein before provided, until an order discharging
such warrant shall be granted; except that no sale of any
property, other than such as may be perishable, shall be had,
and no payment of any debts, shall be made, by any trustees
appointed under such attachment, until a determination be
made by the court to which such petition shall be referred.

11 N. Y., 335.
Application S 54. Every debtor against whom any warrant of attach-
charge of

ment shall be issued, may, at any time before the appointment
of trustees as herein after mentioned, apply in person or by
attorney to the officer, who issued such warrant, for an order
to discharge the same.

1 R. L., 162, & 21; 4 H., 600. (12)

S 55. Upon such application, such debtor or his agent shall Bond with execute and deliver to the officer to whom the same is made, be given. a bond to the creditors prosecuting the attachment, in a penal

sum double the amount of the debts sworn to by such cre-
ditors, with such sureties as shall be approved by the said
officer, conditioned that they will pay to each attaching cre-
ditor the amount justly due and owing by such debtor, to
him, at the time when he became an attaching creditor, on
acount of any debt so claimed and sworn to by him, with
interest thereon.

1 R. L., 162, 8 21; 13 N. Y., 500; 8 N. Y., 446; 4 N. Y., 516; 12 B.,

112; 7 B., 253; 3 D., 567; 2 W., 295; 1 Du., 1; 4 S. S. C., 198;

Laws of 1833, ch. 52.
When war- $ 56. Upon such bond being executed and delivered, the

for dis

warrant.

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ART. 1.

said officer shall thereupon grant his order, discharging all rant to be warrants that may have been issued by him, or of which discharged. notice shall have been given to him, against such debtor; and no further or other proceedings shall be had under the provisions of this Article, founded upon any demands included in such bond.

8 N. Y., 442; 9 W., 473; 2 W., 285. $ 57. Every such bond shall be held for the common benefit Bond how

prosecuted, of all the attaching creditors, and may be prosecuted at any &c. time within six months after its date, and not afterwards by them jointly, or by any one of them separately, in respect to his separate demand; and in every such action the prosecuting creditor shall establish his demand, in the same manner as in an action against the debtor.

4 N. Y., 533; 2 N. Y, 390 ; H. & D, 169. $ 58. If the debtor against whom such warrant of attach- Trustees ment shall be issued, shall not appear and satisfy his creditors, appointed. within the time for that purpose limited in the notice herein before directed, and if such warrant shall not have been discharged, the officer who issued the same, shall, within three months after the expiration of the time so limited, upon due proof of the publication of such notice, nominate and appoint three or more fit persons, to be trustees for all the creditors of such debtor.

I R. L., 159, § 8. $ 59. If such appointment of trustees be not made within Consequenthe time above prescribed, the warrant of attachment shall be sion. deemed to be discharged and annulled.

$ 60. The officer making such appointment, shall endorse Appoint thereon an order allowing it to be recorded; which shall entitle der to be

endorsed, it to be recorded by the clerk of any county, to whom it may &c. be presented for that purpose.

S 61. The trustees shall cause their appointment to be Ib. To be recorded in the office of the clerk of every county, in which any property shall have been seized, under the warrant of attachment against such debtor, within one month after their appointment.

1 R. L., 163, § 26; 13 N. Y., $ 62. Such appointment of trustees, the record thereof, and Appointthe transcript of such record duly certified, shall in all cases, evidence. except on hearing of a petition referred to any court as herein (13) before provided, be conclusive evidence that the debtor therein named was a concealed, absconding or non-resident debtor, within the meaning of the foregoing provisions, and that the said appointment and all the proceedings previous thereto, were regular.

ces of omis. TITLE 1.

1 R. L., 163, § 26; 13 N. Y., 515; 11 Y., 336; 3 N. Y., 41; 7 B.,

187; 4 H., 599; 15 W., 373; 9 W., 469. $ 63. Where any debtor against whom proceedings may death, &c.,

521.

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not to abate have been commenced, as herein authorised, shall die or be-
proceed- come insane, after the expiration of the time limited in the
ings.

order for his appearance, the proceedings shall, notwithstand-
ing, be continued to a final conclusion, in the same manner,
and with the like validity, as if such debtor had lived or
remained sane.

1 R. L., 163, § 22.

S 64. If any debtor against whom any such warrant of abate them.

attachment shall have been issued, shall die or become insane,
before the time limited for his appearance, the proceedings
thereon shall be stayed, and the property seized thereby shall
be delivered to his personal representatives, or to the commit-

tee of his estate.
Sheriff to $ 65. Upon the appointment of trustees being made, every
turn, &c. sheriff to whom any warrant against the estate of such debtor

may have been issued, shall return the same, with his proceed-
ings thereon, to the officer who issued the same, or to the
officer who issued the first warrant against such debtor, in case
warrants shall have been issued by several officers; and such
officer shall cause the same to be filed, within thirty days
thereafter, in the office of a clerk of the supreme court.

1 R. L., 163, § 25.
Return how $ 66. Every sheriff to whom a warrant may have been
enforced.

delivered, may be compelled by the officer having jurisdiction
over the proceedings thereon, to return such warrant, and the
inventory required to be taken by him, by an order of such
officer and by process of attachment for disobedience thereof,
on the application of any creditor, or of the debtor, and on

proof of the neglect of the sheriff.
Affidavits, $ 67. Every officer who shall issue any warrant, pursuant

to the foregoing provisions, shall cause the affidavits of the
creditors presented to him, or transmitted to him, by any
other officer, who shall have issued a subsequent warrant, to
be filed in the office of a clerk of the supreme court, within
thirty days after receiving the same.

$ 68. Within twenty days after the appointment of any report to

trustees by such officer, he shall make a report to the supreme
court, to be filed with the clerk thereof, of all the proceedings
had before, or done by, him, under this Article; after which,
the supreme court shall have jurisdiction over such proceed-

ings. Such report, and a certified copy thereof under the (14) seal of the court, and attested by the clerk, shall be conclusive

evidence, that the proceedings stated therein, were had before
such officer.

13 N. Y., 509; 7 B., 188; 15 W., 373; 7 W.,
Certiorari S 69. The proceedings had before any officer, under the
proceed-

provisions of this Article, may also be removed into the su-
preme court, previous to any report, by certiorari, at the
instance of the debtor or of any creditor; but such certiorari
shall not stay any proceedings on such warrant.

&c., to be filed.

Officer to

supreme court.

490.

to remove

ings.

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