£rc. 45. Every such petition to be accompanied by a bond. 46. Officer with whom petition filed, to make report to court 47. Proceedings of such court thereupon. 48. If allegations are proved, warrant to be discharged. 49. Court to tax costs, and to enforce payment. 50. If allegations not proved, penalty of bond may be recovered. 51. Persons to whom debtor has transferred property, may petition for hearing. 52. When jury trial is had, effect of their decision. 53. Proceedings upon warrant, how far stayed by petition and bond. 54. Debtor may apply to officer issuing attachment, for its discharge. 55. Bond, to be executed upon such application. 56. If bond be given, warrant to be discharged. 57. When bond may be prosecuted; proceedings thereon. 58. When officer issuing warrant, shall appoint trustees. 59. If trustees are not appointed in due time, warrant to be discharged. 60. Order to be endorsed on appointment, allowing it to be recorded, &c 61. Appointment to be recorded; where and within what time. 62. Record thereof, and transcript, how far evidence. 63 & 64. If debtor die or become insane. 65. Sheriff to return warrant and proceedings. 66. Return how enforced. 67. Officer issuing warrant, to file creditor's affidavits. 68. To report to supreme court, which shall thereafter have jurisdiction. 69. Proceedings may also be removed by certiorari. 10. Powers of supreme court, after receiving return to certiorari. 71. Notice to be given of the names, &c., of sureties. 72. Creditors may require sureties to justify. 73. Seizures under this Article, to supersede other seizures. ART. 1 [3] 51. The real and personal property of a debtor, may be When pro attached for the payment of his debts, in the following cases: be attached. Berty may 1. Whenever such debtor, being an inhabitant of this state, shall secretly depart therefrom, with intent to defraud his creditors, or to avoid the service of civil process; or shall keep himself concealed therein, with the like intent. 2. Whenever any person, not being a resident of this state, shall be indebted on a contract made within this state, or to a creditor residing within this state, although upon a contract made elsewhere. 1 R. L., 157, § 1 & 23; 13 N. Y., 264; 11 N. Y., 335; 8 N. Y., 158; 5 for attach $2. Application for such attachment, may be made to any Application officer, specified in the first section of the seventh Article of ment. this Title. 5 N. Y., 164. made. $3. Such application may be made by any creditor resident By whom within this state or out of it, or by his personal representatives, having a demand against such debtor personally, whether liquidated or not, arising upon contract, or upon a judgment or decree rendered within this state, or upon a judgment or decree rendered elsewhere upon a contract made within this state, amounting to one hundred dollars or TITLE 1. How made; upwards; or by any two such creditors having such demands, to the amount of one hundred and fifty dollars or upwards: or by any three or more creditors, having such demands, to the amount of two hundred dollars or upwards. 1 R. L., 157, § 1 & 20; 1845, ch. 153; 13 N. Y., 506; 8 N. Y., 158; 3 N. Y., 41; 13 B., 452; 3 B., 230; 2 B., 438; 1 B., 148, 492; 21 W., 317; 9 W., 468; 7 W., 499; 6 W., 554; 6 Cow., 606; 5 Cow., 293; 6 J. C. R., 186; 3 Cai., 257; 2 S. S. C., 17. S4. Such application shall be in writing, verified by the affidavit re- affidavit of the creditor, or of the person making the same in quired. Two witnesses. Notice and warrant. [4] Duty of sheriff on warrant. Inventory &c. his behalf, in which shall be specified the sum in which the debtor is indebted, over and above all discounts, to the person in whose behalf such application is made, and the grounds upon which the application is founded. 11 N. Y., 335; 8 N. Y., 158; 5 N. Y, 164, 422; 21 W., 317, 673; 18 W., 611; 2 W., 298. S5. The facts and circumstances to establish the grounds on which such application is made, shall also be verified by the affidavits of two disinterested witnesses. 11 N. Y., 335; 5 N. Y., 429; 11 B., 334; 7 B., 187; 7 H., 189; 4 H., 599; 21 W., 317. $ 6. Upon such proof being made to the satisfaction of the officer to whom the application is addressed, he shall order a notice to be published as herein after directed, and shall issue one or more warrants, as may be necessary, to the sheriff of every county, in which any property of such debtor may be, commanding him to attach and safely keep all the estate, real and personal of such debtor, within his county, (except such articles as are by law exempt from execution,) with all books of account, vouchers and papers relating thereto. 13 N. Y., 514; 4 S. Ch., 565; 9 How. P. R., 122. $7. The sheriff to whom any such warrant shall be directed and delivered, shall immediately attach all the real estate of such debtor, and all his personal estate, including money and bank notes, except articles exempt from execution; and shall take into his custody all books of account, vouchers and papers relating to the property, debts, credits and effects of such debtor, together with all evidences of his title to real estate; which he shall safely keep, to be disposed of as herein after directed. 1 R. L., 157, § 1; 14 J., R., 217; 11 How. P. R., 46. S8. He shall, immediately on making such seizure, with to be made, the assistance of two disinterested freeholders, make a just and true inventory of all the property so seized, and of the books, vouchers and papers taken into his custody, stating therein the estimated value of the several articles of personal property, and enumerating such of them as are perishable; which inventory, after being signed by the sheriff and the appraisers, shall, within ten days after such seizure, be returned to the officer who issued the warrant, and the sheriff, shall, under the direction of such officer collect, receive 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. 1 R. L., 157; Laws of 1840, ch. 354. ART. L goods may S9. 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, § 3; 14 How. P. R., 347. property, $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, § 4; 1841, ch. 297; 4 N. Y., 183; 3 H., 387; 27 N. Y., ings if S 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 forthwith deliver them to the claimant 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 hereinafter directed. 4 N. Y., 183; 5 B., 168; 3 H., 387; 36 B., 407.. charges. S 12. If the property in such goods be found to be in the Costs and 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. 27 N. Y., 603. [5] ings on domestic 13. When a vessel belonging to any port or place in this state or any of the United States, or any share or any interest Proceedin 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, § 1. to be given. $14. Within two days after such appraisement shall be b. Bond 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, TITLE 1. Vessel when discharged. When bond 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. 41 B., 603. S15. 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. $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 such suit. Foreign vessels how valued. [6] Notice thereof. Creditors to give bond with sure. ties. S17. 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. 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. $ 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 returned 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 the time of issuing such attachment, to the person in whose behalf such claim shall be made. ART. 1. when to be $ 21. Unless such bond be given as above prescribed, the Vessel, officer who issued the attachment shall grant an order dis- discharged. charging the vessel, share or interest so claimed, from such attachment; and the same shall be discharged accordingly. warrant till $ 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 bond 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. which debt claim such $ 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, or he be not indemnified as above directed, within one month 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 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. When ves old. sel to be Ib. $26. When a share in any vessel, foreign or domestic, shall rь. De 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. |