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and take into his possession all debts, credits and effects of such debtor, and commence such suits and take such legal proceedings in the name of such debtor as may be necessary for that purpose; and which suits and proceedings may be continued by the trustees, to be appointed as herein after directed, until a final termination thereof.
I R. L., 157; Laws of 1840, ch. 354. $
$ 9. If any of the property so seized, other than vessels, be Perishable perishable, the sheriff shall sell the same at public auction, be sold.
' under an order of the officer who issued the warrant, and shall retain in his hands the proceeds of such sale, after deducting his expenses, to be allowed by such officer; which proceeds, shall be disposed of in the same manner, as the property so sold would have been, if it had remained unsold.
1 R. L., 157, 8 3; 14 How. P. R., 347. $ 10. If any goods or effects, seized as the property of the Claim of debtor, other than vessels, shall be claimed by, or in behalf how tried. of, any other person as his property, the sheriff shall summon and swear a jury to try the validity of such claim, in the same manner and with the like effect, as in case of seizure under execution.
1 R. L, 158, 8 4; 1841, ch. 297; 4 N. Y., 183; 3 H, 387. $ 11. If, by their inquisition, the jury find the property of Proceedthe goods and effects so seized to be in the person so claiming found for them, the sheriff shall forth with deliver them to the claimant or his agent; unless the attaching creditor shall, by bond with sufficient sureties, indemnify the sheriff for the detention of such goods and effects. In case of such indemnity, the
, sheriff shall detain such goods and effects, to be disposed of, as herein after directed.
4 N. Y., 183; 5 B., 168; 3 H., 387. S 12. If the property in such goods be fonnd to be in the costs and
charges. claimant, the costs and charges arising from such inquisition, to be allowed by the officer issuing the warrant, shall be paid by the attaching creditor ; but if it be found to be in the debtor, then the costs and charges, to be ascertained in the same manner, shall be paid by the claimant.
$ 13. When a vessel belonging to any port or place in this (5) state or any of the United States, or any share or any interest ings en in such vessel, shall be attached; on the application within claim to thirty days thereafter, of any person claiming such vessel or vessel, share, or of his agent, the officer who issued the warrant, may cause the vessel or share so seized, to be valued by three indifferent men to be appointed by such officer.
Laws of 1822, 238, S 1. $ 14. Within two days after such appraisement shall be Tb. Bond to
be given. made, the claimant or his agent may execute a bond with sureties to be approved by such officer, to the people of this state, in a penalty double the amount of such appraised value,
Vessel when discharged.
conditioned, that in a suit to be brought on such bond, the claimant will establish, that he was the owner of such vessel or share at the time of the seizure, and in case of his failure to do so, that he will pay the amount of such valuation with interest from the date of the bond, to any trustees who may be appointed on such attachment; or in case none be appointed according to law, or the attachment be discharged, to such debtor or his personal representatives.
S 15. Upon such bond being executed and delivered to such officer, he shall order the vessel or share so seized to be discharged from the attachment, and the sheriff shall discharge such vessel or share accordingly.
3 S. S. C., 404.
S 16. If trustees be appointed upon such attachment, they to be sued. shall immediately commence a suit on such bond; or in case
none be appointed according to law, or the attachment shall be discharged, the debtor or his personal representatives may
prosecute such bond. Defence in $ 17. In such suit, the claimant may give in evidence in bar
of a recovery, that he was the owner of the vessel or share seized at the time of issuing such warrant. If he fail to establish such ownership, or if judgment shall pass against him by default or on demurrer, the party prosecuting such suit, shall recover the amount of the valuation of such vessel or share, with interest from the date of the bond, to be assessed
as damages. Foreign S 18. Whenever a foreign vessel, or a share or interest in
any foreign vessel, shall be attached, such vessel or such share or interest, may be valued in the manner above prescribed, upon the application of any person, who shall by his affidavit swear, that he is the owner thereof, or upon the application of the agent of such owner, who shall by his affidavit swear that he is such agent, and that he verily believes his principal to be the owner of the vessel or share so attached.
Laws of 1822, 238, § 2. (6)
$ 19. Such notice of such application shall be given to the attaching creditors, as the officer to whom the same is made. shall deem reasonable.
$ 20. Within three days after such valuation shall be regive bond
turned to the officer who directed the same, the creditors at whose instance the attachment issued, shall execute a bond with sureties to be approved by such officer, to the person in whose behalf such claim shall be made, in double the amount of the valuation, with a condition to prosecute such attachment to effect, and to pay such damages as may be recovered against them for seizing the said vessel or share, in any suit that shall be brought against them within three months from the date of the bond, if it shall appear in such suit that the vessel or share or interest therein, so attached, belonged at
vessels how valued.
with sure ties.
when to be
the time of issuing such attachment, to the person in whose
S 21. Unless such bond be given as above prescribed, the vessel
$ 22. If, after an attachment has been levied upon a foreign No other vessel, a valuation of the same or of the share or interest boud given. therein seized, be made, no other warrant of attachment shall issue against the same vessel, as being the property in whole or in part of the same debtor, until the security above prescribed, shall be given by the person requiring such warrant.
$ 23. If, after the execution of any such bond by an attach- Terms on ing creditor, the attachment shall be discharged, or the or may proceedings shall cease, by the omission to appoint trustees vessel. according to law, the debtor against whom such attachment issued, or his agent, shall be entitled to claim such vessel, share or interest, or the proceeds thereof if the same shall have been sold, only, upon his discharging the bond so executed by such attaching creditor, or by his executing to such creditor, a bond in a penalty double the valuation made as herein directed, with sureties to be approved by the officer who issued the attachment, conditioned to indemnify such creditor, against all charges and expenses in consequence of the bond so executed by him.
$ 24. If the bond of the attaching creditor be not discharged, When vosor he be not indemnified as above directed, within one month sold. after the debtor became entitled to claim such vessel, share or interest, as above prescribed, such vessel, share or interest, may be sold by the sheriff in whose custody the same may be, upon an order of the officer who issued the attachment; and the proceeds of the sale shall be paid to the attaching creditor who executed such bond, for his indemnity.
$ 25. If no claim be made by any owner of a domestic (7) vessel, or of a share in such a vessel, seized under any warrant of attachment, within thirty days after such seizure, and no bond be executed as herein directed by such claimant; or if no claim be made within that time by or in behalf of the owner of any foreign vessel or of a share therein, so seized ; such vessel or share may be sold by the sheriff making such seizure, under an order of the officer issuing the attachment, to be granted upon the application of any attaching creditor, whenever in the opinion of such officer, a sale may be necessary.
$ 26. When a share in any vessel, foreign or domestic, shall Ib. oe seized, if no claim to such share be made by any owner thereof, as herein provided, within thirty days after such seizure, it may be sold by the sheriff, under an order of the officer issuing the attachment, to be granted on the application of any joint owner, or of his agent.
sel to be
TITLE 1. Omcer to fix
$ 27. Whenever a sale of perishable property, or of a vessel
a time of sale, or share of a vessel, shall be ordered by any officer as herein
authorised, he shall in such order, prescribe the time, place and notice of such sale, and how the same shall be published.
S 28. Whenever any warrant of attachment shall be issued attachment.
pursuant to the provisions of this Article, the officer issuing the same, shall thereupon immediately order the notice herein after directed, to be published in the state paper, and in a newspaper printed in the city of New York, and in a newspaper printed in the county to which any attachment shall be issued, if there be one, and if there be none printed in such county, then in a newspaper printed nearest to such county.
1 R. L., 157, § 2; Laws of 1822, 239, § 3; 3 D., 167. Time of $ 29. Such notice shall be published once in each week, for publication. three months in the case of an absconding or concealed
debtor, and for nine months in the case of a non-resident
debtor. Contents of $ 30. In the case of an absconding or concealed debtor, notice; ab- such notice shall state that an attachment has issued against econding
the estate of such debtor, and that the same will be sold for the payment of his debts, unless he appear and discharge such attachment according to law, within three months from the first publication of such notice; and that the payment of any debts, and the delivery of any property belonging to such debtor, to him or for his use, and the transfer of any property by him, for any purpose whatever, are forbidden by law, and are void.
$ 31. In the case of a non-resident debtor, such notice shall debtor.
state the issuing of the attachment against his estate, and that the same will be sold for the payment of his debts, unless he appear and discharge such attachment according to law, within nine months from the first publication of such notice; and that the payment of any debts due to him by residents of this state, and the delivery to him, or for his use, of any property within this state belonging to him, and the transfer of any such property by him, are forbidden by law, and are
void. Sales, &c., $ 32. All sales, assignments, transfers, mortgages, and conafter notice,
veyances of any part of the estate, real or personal, including things in action, of every such absconding or concealed debtor, made after the first publication of such notice, in payment of, or as security for, any existing or prior debt, or for any other consideration, and all judgments confessed by him after that time, shall be absolutely void as against his creditors.
1 R. L., 158, § 6; 26 B., 60; 23 W., 87. $ 33. All such dispositions of the estate of a non-resident debtor, real or personal within this state, including things in action, and demands against any residents of this state, made
after the first publication of such notice, shall be absolutely void as against his creditors.
25 B., 429. $ 34. After the first publication of such notice, every person Persons in
debted, &c, indebted to an absconding or concealed debtor, and every to account person having possession of any property belonging to such debtor, shall account and answer for the amount of such debt and for the value of such property, to the trustees who shall be appointed upon such attachment; and every person within this state indebted to such non-resident debtor, or having possession of any property belonging to such debtor, shall in like manner account and answer for the amount of such debt, and for the value of such property.
1 R. L., 157, § 5. $ 35. Every payment made to a debtor after the first pub- Payments,
&c., to debt. lication of such notice, of any debt or any part thereof, and or deemed every delivery of any property belonging to a debtor for which fraudulent. any person is liable by the last section, to account to any trustees; shall be deemed fraudulent as against such trustees.
S 36. If any person liable to account to any trustees as Defense in before prescribed, for any debt or property, shall be prose- brought by cnted for the same by any debtor, he may give in evidence under the general issue, the fact of an attachment having been issued, and the publication of the notice herein required, at the time of the commencement of such action, in bar thereof.
$ 37. After any application shall have been made, by any Afidavit, creditor, for a warrant of attachment against any concealed other credor absconding or non-resident debtor, any other creditor of such debtor, having any demand against such debtor, then dne, whatever may be its amount, may file with the officer who issued such warrant, an affidavit specifying the sum, in which the debtor is indebted to such creditor, over and above all discounts, and a petition stating the desire of such creditor, to be deemed an attaching creditor.
13 B., 457; 6 H., 357. $ 38. Upon the filing of such affidavit and petition, such Rights of creditor shall, in all respects be deemed to be an attach- creditors. ing creditor, and entitled to the same benefits and advantages, and subject to the same responsibilities and obligations, as the creditor at whose instance such attachment originally
part of first
13 B., 457. S 39. If, after the issuing of any warrant of attachment Subscquent against any debtor, any other warrant shall be issued pursuant deemed to the foregoing provisions, and shall be levied upon any proceeding. property of such debtor, such subsequent warrant and seizure, shall be deemed to be a part of the proceedings upon the first application, in the same manner, as if such subsequent