(jJornpU Slaui ^rijonl ICibrary Cornell University Library KFN6062.D42 A legal monograph upon provisional remed 3 1924 022 883 767 P B Cornell University iJ hi) Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022883767 LEGAL MONOGEAPH UPON PROVISIONAL REMEDIES UNDER THE CODE. WITH DECISIONS OF OTHER STATES THAT FOLLOW THE NEW YORK PRACTICE. — AUTnOBOP "Derby's Mechanics' LienS " and "Assignment for Creditors;" AND HEEBEET L. LUQUES, or THE NEW YORK BAR. NEW YORK: S. S. PELOUBET, LAW PUBLISHER. * 1886. Bf^va? Entered according to act of Congress, in the year 1886, By S. S. Pelottbet, in the Office of the Librarian of Congress at "Washington. HENRY M. TOBITT, WINTER AND 8TERE0TYPER, 42 DEY STREET, N. Y. TO HENRY WILDER ALLEN, THK AUTHORS DESIRE TO MAKK THIS DEDICATION, AS A TESTIMONIAL OF THEIR APPRECIATION OP JUDICIAL INTBORITT. PREFACE. " Too many books !" was the cry that legend attributes to th\ ' Saracen, as he stooped from his saddle to touch his torch to the priceless manuscripts of the Alexandrian library. Stoet viewed with apprehension the rapid increase of reports, that had then reached — State and Federal together — the alarming number of a hundred and fifty volumes ;" and the student of to-day, contemplating the crowded shelves- of our libraries, may well share the alarm of the jurist, while he entertains a feeling akin to sympathy with the reasons that actuated the barbarian. With the issuance of volumes, whose bare enumeration is an exhausting labor, and for the perusal of which time is altogether inadequate, there has arisen a pressing — an abso- lute — need of condensation and classification. The requirements of a work that will meet this demand are : that it shall be complete in its citations of authorities and enable the practitioner to determine the judicial construc- tion of statute law without the necessity of consulting some hundreds of volumes ; and that it shall be concise. The favor with which the Legal Monographs, heretofore issued with this end in view, have been received, give a 'Address to Suffolk Bar, 1839, 1 Am. Jur. 5. VI PEEFAOB. pleasing guaranty that the pi-ofession accede to the views ot the annotators, and it is hoped that this work will fulfill the necessary requirements. Of the remedies codified under the misnomer of Provis- ional, that of Arrest is the first. Debt considered as a crime was punishable under tht Athenian laws by domestic servitude, and the civil law, which boasted its derivation from that classical source, softened the punishment of an innocent debtor to an indefinite foreign, though may be lifelong, slavery. The humanity of the Common Law sought to ameliorate the condition of the imprisoned debtor ; and in its strivings it affords a narrative chiefly instructive to the historian. The Code is the resultant of persistent attempts to reduce to a written form those provisions of the common law that are left to judicial moulding alone, and its imperfections attest, what its omissions emphasize, that law is a growth and not a sudden creation ; that it is slowly evolved, like the Titans, from the darkness beyond and will evade all attempts to con- jure it full armed from the legislative brain. While it has complicated practice by minute and unimpor- tant enactments, it has retained the worst feature of the old ])rocednre ; and few realize the fact that the spirit of medieval law still governs the city that boasts of its cosmopolitan character. It is as true to-day as it was a half century ago, " that most arrests arc made in indulgence of a spirit of revenge — a motive as condemnable as it is prejudicial to the individual influenced by it ;'" and the student who carefully reads the records of other days, cannot bnt be amazed that a fact so demonstrably true should have had no weight with our law- makers. > 8 Cbitty's Practice, 838, note. PKEPAOE. Vii Nor is the historic recital free from a grotesque humor. The annotator, who cites the instance of a father reduced by the poverty that followed illness, to incur an obligation of a few shillings, for the day's maintenance of his seven children, and who was committed therefor to a perpetual imprison- ment ;' must also record the law's humanity that exempted from arrest for a debt needlessly incurred, " a junior clerk in kitchen of the King's palace ;'" and that having summoned to the bar of the Common Pleas a bailiff who had presumed to Invade the sanctity of the peerage, by the arrest of a Lord, permitted the official to escape with a reprimand, upon proof that his Lordship had on a " worn-out suit of clothes and a dirty shirt," and might not, therefore, on casual inspection have been deemed a peer of the realm.' The greatest of metropolitan journals has voiced the demand, of which a few years must — and perhaps a few months may — see tlie fulfillment: the repeal of the Code pro- visions that permit a private creditor to use the power of the State to punish his debtor with perpetual imprisonment. Eecent instances of the gross injustice of the present law of arrest, set forth in the columns of the N"ew York World, have startled society and have even stimulated to unwonted activity the legislative mind. To its unselfish efforts in this behalf we can only tender the expression of our hope, that it may be successful in accomplishing what New England's household poet so long ago desired, and "Opea the prison's living tomb, And usher from its brooding gloom The victims of your savage code, To the free sun and air of God."* ' 3 Chitty's Practice, 328, note, 'Bartlett «. Hebbes, 5 T. R. 686. • Fortescue, 165. * Whittier's " Prisoner for Debt." Vm : PKEFAOE. This volume is intended, and confidently believed, to con- tain ev6ry decision of New Tork applicable to the present Code — with references to adjudications of other States ; par- ticularly to those of California, whose Code conforms substan- tially to ours. Earlier cases, rendered inapplicable by legislative changes, are omitted, or so given, as not to mislead. The plan heretofore used in the Mechanic's Lien Law, and Assignment for Benefit of Creditors has been followed, in the belief that conciseness is the great necessity of the profession. DeEBT & LtTQTJES. . New Tokk, March 20, 1886. CONTENTS. Page Preface ' v to viii Table op Cases xv ARREST lto83 Construction of statute 1 Nature of remedy 3 Assignee's aotion .". 3 Joinder of actions 4 Second arrest 6 Ne exeat 5 for fine or penalty. ..." 6 personal injury 7 injury to property 8 conversion 9 realty ; 10 misconduct in oflBce 11 professional employment .. 11 fraud in contract 13 complaint for fraudulent contract 15 for chattel 17 removal of property 18 trust property and funds 18 removal from State 33 Obdeb oi" Akrest, how granted 33 Effect of Foreign Jttdqment 35 Exemption of Females. 26 Discharge of Lijnatic 27 Exemption op Rbpbesentativb 27 by whom order granted 38 [ix] X CONTENTS. P8g« ARREST {continued). Pboof nbcbssakt to obtain 29 Requisites op Affidavit 29 When ordbk mat be gkanted 33 sacukitt on order, of judgb 34 Court 36 Delivery of Copies 37 Filing op Papers 37 Execution op Order 38 Privilege from Arrest 39 Who is entitled to 40 Officers of Court of Record privileged 43 Defendant arrested has twenty days to Answer 43 Vacation op Order op Arrest 44 When motion to Vacate made 46 Motion upon tbe papers 47 new papers , 47 Stipulation not to sue 49 Supersedeas unless Execution is issued 51 Discharge upon Bail or deposit 53 Election to give Ijail or deposit 55 Undertaking of bail 55 Examination of bail 57 Filing papers 58 Justification of bail 58, 61 Qualification of bail 59 Allowance o£ bail ". 63 Deposit instead of bail 63 Payment into court 68 Substitution of bail for deposit 64 Disposition of deposit 64 , Deposit paid to third person ; 65 Liability of sheriff as bail 66 Proceedings against sheriff as bail 68 Liability of bail to sheriff 69 Filing papers when bail n. t given 70 StuTender of defendant 70 Exoneration of bail 73 Bail may arrest defendant 72 Voluntary surrender 73 Rights of sheriff, Uable as bail 73 Proceedings against bail 75 Sheriff s duty on execution against bail 77 Defenses of bail 77 Relief of bail imprisoned for crime 78 Death of defendant exonerates bail 79 CONTENTS. XI Page INJUNCTION 83 to 140 Writ abolished 83 Nature of tlje remedy 83 to 87 When it depends on the nature of the action. . .". 87 Actions before judgment 88 Actions after judgment 89 Asaessment and taxes 90 Real covenants 93 Corporations 94 to 100 Contracts 1 00 Copyrights and trademarks 101 Manuscripts 103 Nuisance 104 Partners , 106 Trespass 107 Waste 109 When right depends upon extrinsic facts 110 Against State officers 113 By whom granted 113 Proof to procure 114 The affidavit 114 When order granted 116 When notice required 116 Contents of order 117 Requisites of oider 117 Security on stay of case before trial 119 after trial 120 after judgment 130 Payment of money deposited 133 Cancellation of undertaking 133 Security in dower ; -. 134 Damages to include waste 134 When deposit dispensed with 114 When undertakins dispensed with 135 Security in other cases 136 Form of undertaking 137 Ascertainment of damages ■. 138 Assessment of damages 139 Reference to ascertain 181 Amount of damages 181 Damages by third person 188 Action on undertaking 133 Vacation of order, ex parte 134 upon notice 135 By whom motion made 136 Wheu motion may be made 137 XH CONTENTS, Page INJUNCTION {continued). Upon what papers ^^'^ When motion granted 138 Second motidn 139 New undertaking 139 Effect of verified answer 140 ATTACHMENT 141 to 235 When granted 141 Nature of remedy 143 In whose favor granted 144 Against whom 144 In what actions 144 Breach of contract 146 ; Tort 140 Proof to obtain warrarit 148 Sufficiency of affidavit ; 148 On information and belief 153 Statement of counter-claim 154 Issuance of summons 155 Foreign corporations 156 Non-residents 157 Against public officer 161 When and by whom warrant granted 162 When jurisdiction attaches 163 Service of summons 165 Filing of affidavits 168 Security 168 Form of undertaliing 169 Amendments to bond 169 Eights and liabilities of sureties 171 Direction and contents of warrant 173 Eequisites of warrant 173 Validity of undertaking 174 Execution of warrant 177 Property liable to levy. . . : 178 Real property 182 Unpaid subscrption 182 Interest in corporation 183 Attachment of chose in action 184 Method of attaching property 187 realty 188 ^ personalty 186, 191 Certificate of interest 192 Examination or refusal 193 Good.i on shipboard 195 Inventory on levy , 196 CONTENTS. Xlil Page ATTACHMENT {continued). Action by sheriff. 198 Sale of perishable property 200 Trial of claim 201 Claim to domestic vessel 203 Appraisal'and valuation 203 Undfertaking 303, 204 Foreign vessel 204 Undertaking 205 Discharge of vessel 205 Claim to vessel 200 Sale of vessel 307 Custody of property by sheriff 208 Payment of money into court 209 Surplus property 210 Suit by plaintiff 210, 213 Eeturn of inventory 213 Motion to vacate 2l3, 316 When and how made 216, 219 Second motion 319 Undertaking on discharge 330, 323 Justification of suieties 333 Retention of property by sheriff 323' Discharge by one partner 234 Undertaking by partner 324 Ascertainment of amount '. 236 Several warrants 225 Levy on second warrant 336 Second attachment of foreign vessel 327 Action by junior plaintiff 338 To whom execution issued 339 Judgment against non-resident 329 Satisfaction of judgment.. ., 230 Restoration of pr.operty to defendant 232 Delivery of property to defendant 233 Cancellation of notice 333 Return of wariant 334 RECEIVERS 335 to 275 In what cases granted 335 Nature of the ofSce 336 Principles governing appointment 237 Eligibility of receiver 339 Power and duties of receiver 341 Liabilities of receivers 345 Over what property appointed 347 Supplementaiy proceedings 364 XIV CONTENTS. Page RECEIVERS {continued). Accounting of receiver 206 Application before judgment 208 Security by receiver 272 Receivers of corporations may hold real estate 273 Deposit, Delivert and conveyance of Propbett 273 Miscellaneous Provisions 274 Forms 377-297 CASES CITED. Abbott V. American Rubber Co., 95. Abels V. Westervelt, 181. Achelis v. Kalman, 153, 219. Ackroyd v. Ackroyd, 145, 152. Adams v. Popham, 105. Adams v. Wood, 245. Adee v. Bigler, 255. Agate V. Lowenbein, 85, 93. Ah Thaie v. Quan Wan, 133. Albany City B'k v. Scheimerhorn, 253. Albany Ins. Co. v. Van Vranken, 262. Alden v. Sarson, 49. Aldiich V, Reynolds, 132. Alford V. Berkele, 249. Alkins V. Saxton, 145, 181. Allen V. Hyde, 2, 23, 23. Allen V. Martin, 39. Allen V. Meyer, 150, 160, 164. Allen V. McCrassen, 48. Allen V. Scandinavian B'k, 173,315. Almy V. Thurber, 193. American Grocers' Pub. Co. v. Gro- cers' Pub. Co., 103, 103. American Union Tel. Co. v. Mid- delton, 4, 11, 47. Amoskeag Mfg. Co. v. Garner, 86. Amoskeag Mfg. Co. v. Spear, 103. Anderson v. Doty, 106. Andci'son v. O'Reilly, 161. Andrews v. Glenville, 133, 133. Androvett« v. Bowne, 117. Anonymous, 3, 240. Anthony v. Stype, 159, 160. Anthony v. Wood, 188, 189. Appleby v. Robinson, 80. Argall V. Pitts, 253. Arnold v. Shapiro, 18. Arteaga v. Flack, 67. Arteager v. Conner, 59, 67. Arthurtou v. Dalley, 25. Artisans' B'k v. Treadwell, 270, 271. Ashley v. Turner, 364. Askins v. Hearns, 35. Astor V. Turner, 252. Atlantic Dock Co. v. Leavitt, 92. Atlantic Mut. Life Ins. Co., Matter of, 267. Atlantic Mut. Life Ins. Co. v. McLeon, 143, 147» Atlantic Tel. Co. v. Baltimore R. R, 118. . Attorney-General v. Atlantic Mut. Ins, Co., 257. Attorney-General v. Columbia Bank, 340. Attorney-General v. Continental Ins. Co., 363, 267, Attorney-General v. Gee, 340, Attorney- General v. Guardian Ins. Co., 359, 309. Attorney-General v. Life & Fire Ins. Co.. 363. Attorney-General v. N. A. Life Ins. Co., 357, 258, 361, 366, 367. [XV] XVI CASES CITED. Attorney-General V. TJtica Ins. Co., 94. Attrill V. Rockaway Imp. Co., 257. Auburn Plank Rd. v. Douglass, 84. Ayer v. Rushton, 103. Ayersv. Laurence, 98. B. Babcoek v. Buffalo, 99. Bach V. Pacific S. 8. Co., 95. Bacon v. Kendall, 3. Badger v. Wagstaff, 115. Baere v. Armstrong, 171, 172. Baker v. Curtis, 80, 121. Balcom v. Julien, 85. Baldwin v. Buffalo, 115. Baldwin v. Eazler, 207. Baldwin v. Kimmel, 26. Ballard v. Fuller, 48. Ball v. Gardner, 170. Ball V. Pratt, 175. Bariens v. Albany Northern, 96. Bangs V. Duckinfield, 258. Bangs V. Mclntoshj 259. Bangs V. Selden, 28. Bank of Beloit v. Beale, 10. Bank of Buffalo v. Boughton, 56. Bank of Commerce v. Rutland R. R., 149. Bank of Commonwealth v. Tem- ple, 3. Bank of Geneva v. Reynolds, 70, 80. Bank of Monroe v. Bchermerhorn, 138. Bank of Mutual Red. v. Sturgis, 193, 371. Bank of Ogdonsburgh v. Arnold, 252. Bank of Orlciins v. Skinner, 114. Barclay V. Quicksilver Mining Co., 243. Barker v. Cooke, 38. Barker v. Russell, 76, 80. Barnard v. Viele, 56. Barnes v. McAllister, 85. Barnes v. Newcomb, 267. Baron v. Biaren, 167. Barrett v. Gracie, 20, 21, 47. Barron v. Sanford, 20, 48. Barrow v. Richard, 94. Barry v. Bockover, 158. Barry v. Fisher, 181. Bartlett v. Crittenden, 104 Bascom v. Smith, 165. Bassett V. Metcalfe, 4. Bate V. McDowell, 170. Bates V. Pimstein, 154. Baxter v. Drake, 25, 35. Baxter V. Mo., Kansas, &c. R. E., 195. Baxter v. Spuyten Duyvil, 96. Bayard v. Fellows, 247. Beauf age's Case, 56. Becker v. Hager, 119. Beers v. Chelsea Bank, 273. Beldeu v. Henriques, 15. Bell v. Lock, 104. Bell V. Mali, 32. Bell V. Shilbley, 258. Bellinger v. Gardner, 85, 126. Belmont v. Erie Railway, 94,95,256. Belmont v. Lane, 150. Benedict V. Benedict, 29, 130. Benneson v. Bill, 289. Bennett v. Brown, 170. Bennett v. Edwards, 152. Bensel v. Lynch, 53, 66, 67,. 74, 77. Benson v. Fash, 115. Berry v. Kelly, 144. Berry v. Brett, 258. Besley v. Palmer, 144. Belts V. Williamsburgh, 80, 91. Bildersee v. Aden, 174, 221. Billings V. Robinson, 258. Bills V. Nat. Park Bank, 186, 187. Bingham v. Disbrow, 270. Bininger v. Clark, 107. Birchell v. Straus, 3, 12, 13. Birdsall v. Fuller, 4. Birdsall v. Tifemann, 93. Bishop V. Davis, 14. Bixby V. Mead, 197. Blake v. Beruhard, 153. • Blake v. Brooklyn, 91. CASES CITED. XVH Blake v.''Siegel, 153. Blakelee v. Buchanan, 7. Blakeney v. Dufaur, 240. Blanchard t. Cawthorne, 247. Blason v. Bruns, 9, 10, 32. Blatchford v. Ross, 95, 255. Bliss, Matter of, 152. Bliss V. Molter, 221. Blossom V. Estes, 143, 163, 166. BockeS'V. Hatliorn, 257. Boeher v. Rouillier, 218. Bogart v^ Dart, 147, 160. Bogart V. Sweesey, 166, 167. Boggs V. Merced Mining Co., 108. Bolen V. Crosby, 4. Bollus V. Duff, 247, 254. Bond V. Willett, 213. Bonton v. Brooklyn, 91. Booth Y. Clark, 236. Bostwick V. Menck, 265. Bostwick V. Goetzel, 52, 54. Boucicault v. Boucicault, 24, 39. Boughton V. Bruce, 38. Bowe V. Knickerbocker Ins. Co., 200. Bowe V. L. S. Beflector Co., 232. Bowen v. First Nat. Bank, 156, 216 Bo wen v. True, 4, 47. Bowery Bank v. Duryec, 31, 34. Bowery Savings Bank v. Richards, ,254. Bradley v. Bishop, 54, 76. Brady v. Bissell, 33. Brady v. Brundage, 53,66, 68, 74,80. Brady v. Waldron, 109. Brady v. Weeks, 104. Brainard v. Spring, 14. Brash v. Wielarsky, 168. Breiman v. Paasch, 7, 26. Brett V. Brown, 41, 42. Brewer v. Tucker, 152, 214, 217. Brewster v. Hodges, 112. Brigett v. Atkins, 144. Britton v. Richards, 2, 7. Brooklyn v. Meserole, 91. ^ \ Brooklyn City Rd. v. Fury, 99. Brooklyn Stage Co. v. Society for Prev. &c., 108. B Brooks V. Stone, 111. Brouwer v. Hill, 257, 258. Brown V. Ashbough, 4, 9, 14. Brown v. Northrup, 238. Brownell v. AUin, 22. Brownell v. Carnley, 179. Bruce v. Del. and H. Canal, 84,135. Brush V. Mullen, 10. Buchanan v. Comstock, 248. Buchanan Farm Oil Co. v. Wood- man, 19. Buckingham v. Sweezey, 145, 244. Buckingham v. White, 192. Buckman v. Carnley, 66, 73, 74. Bucknall v. Story, 91. Bufialo St. Ry. v. Leigh ton, 96. Bull V. Melliss, 3. Bullis V. Montgomery, 176. Burbank v. Fay, 105. Burch V. Cavanaugh, 85, 100, 108. Burgess v. Stitt, 152. Burkhardt v. Sanford, 163. Burkhardt'v. McClellan, 182, Burlingame v. Parce, 352. Burnett v. Phalon, 103. Burnham v. Acton, 82. Burns v. Morse, 125, 126. Burns v. Prov. Ins, Co., 157. Burns v. Bobbins, 58, 61. Burrill v. Acker, 189. Burrall v. Jewett, 158. BuiToughs V. Willett, 9. Bush V. Pettibone, 27. Bushnell v. Bushnell. 23. Butler V. Galletti, 101. Butler V. Mcllvaine, 48. Butterfield v. Klaber, 106. Byrd v. Hall, 15. C. Cady V. Edmonds, 48. Cafiero v. Demartino, 56. Cagger y Howard, 241. Caldwell's Case, 12, 13. Calkin v. Manhattan Oil Co., 88. Camman v. Tompkins, 173. Camp V. Barney, 246. xvm OASES CITED. Campbell v. Champ. & St. Law. R. R 157. Campbell v. Conner, 196. Campbell v. Erie Railway, 178. Campbell v. Morrison, 114. Campbell v. Seaman, 91, 105. Can well v. Dubuque R. R., 144. Carpenter v. Danforth, 138. Carpenter v. Wright, 130, 131. Cair V. Van Hoesen, 155, 178. Carroll v. Cone, 180. Carson v. Ball, 141, 146. Carter v. HoJIman, 35, 86. Carter v. Loomis, 53. Castle V. Lewis, 178, 179. Catlin V. Adirondack Co., 8. Catlin V. Moss, 1C6. Catlin V. Ricketts, 166. Catlin V. Valentine, 104. Central Bank v. Richland Bk., 156. Central Railway v. Bleecker St. Ry., 84, 138. Chaine v. Coffin, 31. Chamberlain v. Greenleaf, 241, 261. Chamberlain v. Roch. &c. Co., 356, 259. Chambers v. Durand, 14. Chapin v. Seeley, 48. Chapin v, Thompson, 346. Chapman v. Brooklyn, 91. Chapman v. Douglafe, 259. Chapman v. Dyett, 164. Chappel V. Skinner, 17. Chase v. Joyce, 38. Chatterton v. Kreitler, 114, 115. ■ Chautauqua Bank v. Risley, 253, 265. Cheny v. Garbrett, 31. Childs V. Fox, 137. Christal V. Kelly, 331. Christopher v. Mayor, 98. Christy v. Mui-phy, 103. City Bank v. Lumley, 10, 83. Claflin V. Baere, 153, 316, 220. Claflin V. Farm. &c. Bank, 363. Claflin V. Prank, 214. Claflin V. Frenkel, 9. C'iaflin V. Hamlin, 88. Clainnont, Matter of, 289. ' Clapp V. Graves, 165. Clapp V. Schutt, 69. Clark V. Bininger, 337, 249. Clark V. Brockway, 371. Clark V. Clark, 102, 118. Clark V. Gallagher, 101. Clark V. Goodridge, 190, 191. Clark V. Harwood, 31. Clark V. N. Y. Life Ins. Co., 94. Clark V. Pinckney, 20. Clark V. Skinner, 175. Clark V. "Warren, 179, 191-. Clarke v. Lowrie, 2. Clements v. West Troy, 105. Clews V. Rockford, 146. Clinch V. South Side R. R., 256. Clute V. Potter, 115. Coates V. Coates, 130, 133. Coburnv. Ames, 272. Coddington v. Gilbert, 179. Coddington v. Webb, 119. Cohen, Matter of, 242. Cole V. McClellan, 43, 43. Coleman v. Bean, 174, 321, 222. Collins V. Collins, 5, 23, 57. Collins V. Reynolds Card Co., 103. Columbia Col. v. Lynch, 98, 94. Columbia Col. v. Thatcher, 94. Columbian Ins. Co. v. Force, 33, 44. Columbian Ins. Co. v. Stevens, 246. Colvin V. Morgan, 40. Como V. Gray, 357. Conaughty v. l^ichols, 30. Com. Warehouse Co. v. Graber, 63, 64, 65. Congden v. Lee, 350. Conkling v. Secor, 88. Conkliu v. Butcher, 35, 126, 149, 153, 156, 169. Conover v. Mayor, 89. Cont. Store Co. v. Clark, 101, 116. Cook v. Dickerson, 120, 121. Cook V. Fredenthal, 56. Clook V. Roach, 32, 114. Cook V. Starkweather, 102. Cook V. State Nat. Bk., 156. Cooney v. Whitfield, 151. CASES CITED. XIX Copper Hill Mining Co. v. Spencer, 338. Cordot V. Barney, 346. Corey v. Long, 336, 337, 338, 346. Corey v. Russel, 43. Corley V. Griffen, 53. Gorman v. Reese, 3. Cormier v. Hawkins, 1. Corning v. Troy Iron Co., 86. Corson v. Ball, 164. Corwin v. Daly, 103. Corwin v. Freeland, 18, 38. Corwin v. Campbell, 91. Cosgrove v. Bowe, 67. Cosgrove v. Ogden, 13. Coster V. Watson, 60. Courtfer V. McNamara, 18, 35, 38. Cousland v. Davis, 30. Coxe V. McClenachen, 40. Cozine v. Paddock, 76. Crandall v. Beach, 37. Crandall v. Bryan, 13, 30, 33. Crandall v. McKaye, 151. Crane v. Bunnell, 89. Crevier v. Mayor, 91. Cribber v. Schillenger, 155. Crocker v. Baker, 84, 114. Crogan v. Livingstone, 170. Cromwell v. Stevens, 99. Crook V. Jewett, 11. Crossman v. Lindsley, 146. Croton Ins. Co. . Matter of, 344. Crouee v. Paddock, 76. Cumberland Coal Co. v. Hoffman, 98. Cummings v. Wooley, 30. Currie v. Riley, 171, 315. Curtis v. Hubbard, 38, 89. Curtis V. Keesler, 105. Curtis V. Leavitt, 386, 287. Cutler V. Rathbone, 170. D. DagueiTe v. Orser, 68. Dale V. Roosevelt, 100. Daly V. Smitb, 101. Dar'u V. Farmers' Bk.. 98. Davenport v. Ludlow, 366. Davidson v. Chatham Bank, 198, 309. Davis V. Ainsworth, 301. Davis V. Brooks, 315. Davis V. Mayor, 98, 118, 119. Davis V. Robinson, 15. Davis V. Scott, 3. Davis V. Stover, 258. Davis V. Sturtevant, 134. Dayton v. Borst, 370. Dayton v. Wilkes, 349. Dean v. Bell, 319. De Baum v. Mayor, 98. Decker v. Bryant, 176. De Groot v. Jay, 343, 344. Delafield v. Illinois, 101. Delamater v. Russell, 7. Del. & Hudson Canal Co. v. Law- rence, 105. Deming v. K. Y. Marble Co., 371. i Dempsey v. Lepp, 8. Denierth v. Sidner, 33, 114. Denike v. N. Y. & R. Lime Co., ' 256. Denton v. Denton, 23. Dentsche v. Reilly, 176. Denvrey v. Fox, 197. Denzer v. Mundy, 158. Depeyster v. Clarkson, 64. Depeyster v. Graves, 187. De Pol V. Sohlke, 101. Dcveau v. Fowler, 106. Devendorf v. Beardsley, 360. Devendoi-f v. Dickinson, 236, 266. Devenege v. Dalby, 38. De Vivier v. Smyth, 264. Devoe v. Brandt, 15. De Weerth v. Feldner, 33. Dewey v. Fox, 177. Dewitt v. Buchanan, 14 Dickey v. Coe, 154, Dickey v. Craig, 133. Dickenson v. Benham, 159, 314, 217. Dinan v. Allen, 173. Dinsmore v. Nerescheim.er, 88. Disbrow v. Garcia, 133. Dix V. Palmer, 45. XX OASES CITED. Dixon V. Beach, 47. Doane v. Lindsay, 145, 181. Dolau V. Mayor, 98. Donnell v. Williams, 154, 155, 163, 234. Donnelly v. Corbett, 153, 153. Douglas V. Haberstro, 74, 77. Douglass V. Warren, 66. Drake v. Hudson, &c. R. R., 113. Draper v. Beers, 30. Dreyfus v. Otis, 33. Dry Dock R.R. v. Cunningham, 133. Dry Dock R. R. v. Mayor, 99. Dry Dock R. R. v. K Y. & H. R. R., 96. Dubois V. Budlong, 84, 138. Dubois V. Thompson, 30. Dndley v. Mayhew, 101. Duffield V. Horton, 186. Duguid V.' Edwards, 30. Duncan v. Guest, 31. Dunham v. Jarvis, 107. Dunlop V. Paterson Ins. Co., 157, 180, 271. Dupuy V. Pemberton, 161. Durant v. Einstein, 138. Dusseldorf v. Redlich, 171, 173. Dwight's Case, 136. D wight V. jSTorthern Ind. R. R., 131. B. Eagle Iron Works, Matter of, 289, 340. Eastman v. Starr, 121. Easton v. Cassidy, 4, 15. Easton v. Malavagi, 150. Ebnerv. Bradford, 143, 145. Edgerton v. Ford, 49. Edmonston v. McLoud, 86, 119. Edwards v. Bodine, 133. Bgan V.' Walsh, 251. Egbert v. Wood, 248. Eldridgev. Howell, 170. Elevated R. R. Cases, 96. Ellicott V. Warford, 336. Ellison V. Bernstein 151. Ellsworth V. Scott, 230. Elston V. Potter, 17. Elwood V. Gardner, 48. Ely V. Mumford, 81, 47. Ely V. Steigler, 4. E. M. Boynton Saw Co., In re, 369. Emerie v. Alvaradp, 373. Enoch V. Ernst, 5. Ensign v. Colburn, 109. Erie Ry. Co. v. Ramsey, 83, 88, 134. Evans v. Mathias, 344. Evans v. Warner, 159. Ewart V. Schwartz, 5, 16. Eypert v. Bolenius, 26. F. Fairbanks v. Bloomfield, 181. Fairfield v. Weston, 371. Faris v. Peck, 48. Farmers' L. & T. Co. v. Dickson, 38. Farmington v. BirdsaU, 87, 109. Farrington v. Frankfort Bk., 101. Farrington v. Freeman, 133. Fassett v. Tallmadge, 18. Faulkner, Matter of, 149, 153. Faulkner v. Morey, 49. Fellows v. Cook, 35. Fellows V. Fellows, 86. Fellows v. Heermans, 83, 338, 370, 373. Fenn v. BoUes, 107. Ferrier v Amer. Glass Co., 147. Field v. Chapman, 136. Field V. Hunt,' 118. Field V. Ireland, 39. Field V. Morse, 31. Field V. Ripley, 350, 251, 268. Fields V. Bland, 10. Fincke v. Funke, 341. Finn v. Belles, 240. Finnin v. Malloy, 265. Finnegan v. Lee, 138. First Presb. Ch. v. Bowder, 97. Fisher v. Curtis, 143. Fish V. Chicago R. R. 97. 9& OASES CITED. XXI Fisk V. Spring, 200, 201. Fitch V. Vanderveer, 61. Fitagerald v. Belden, 151. Fitzgerald v. Blake, 209. Fitzpatrick v. Flagg, 133. Flandron, Matter of, 190. FloiiT City Bk. v. Hall, 18. Forest v. Forest, 23, 23. Foster v. Townshend, 243, 253. Fowler's Petition, 255, 259. Frank v. Levie, 159. Frazer v. Greenhill, 143. Frederick v. Major, 101. Fredericks v. Meyer, 84. Fieel, Matter of, 178. Freeman v. Leland, 15. French v. Maguire, 104 Frisbie v. Young, 43. Frost V. McCarger, 30, 48. Frost V. Mott, 176, 178, 199. Frost V. Willard, 30, 176. Fuentes v. Mayorga, 19, 30, 44. Fullam V. Hooper, 121. Fuller V. Prest, 56. Fullerton v. Fitzgerald, 10. Fulton V. Heaton, 153. Furman v. Walter, 143, 148, 149, 150, 213, 314. G. Gaffney v. Burton, 3. Gallagher v. Kams, 355. Galloway, Matter of, 145. Galwey v. U. S. Steam Sugar Co., 263, 263. Garretson v. Weaver, 349. Garbutt v. Hanff, 216. Garcie v. Sheldon, 129. Garden v. Sabey, 208, 209. Gardiner v. Gardiner, 8. Gardiner v. Tyler, 267. Gardner v. Newburgh, 104. Gardner v. Smith, 243. Garland v. Garland, 239. Garrison v. Marie, 88. Gasherie v. Apple, 160, 214. Gauntley v. Wheeler, 79. Gedney v. Haas, 45, 47. i Geller v. Seixas, 48. Genessee River Bank v. Mead, 33, 33, 34. Genin v. Tompkins, 158, 173. Genin v. Sparks, 39. Gentil v. Arnaud, 108, 115. Gere v. Gundlech, 165. German Bank v. Dash, 160. Gillet V. Fairchild, 358. Gillet V. Moody, 286, 357. Gillott V. Kettle, 103. Gilman v. Green Point Sugar Co., 255. Glen Cove M'f'g. Co. v. Gotthold, 195. Glens Falls Paper Co. v. White, 6. Glenton v. Glover, 49. Glover v. Whitenhall, 89 Godf j-ey v. Godfrey, 218. Godfrey v. Pell, 1. Gold V. Bissell, 39. Goldzier v. Young, 183. Goodale v. Finn, 4, 35. Goodwin v. Griffls, 9, 33. Goodrich v. Dunbar, 35. Goldschmidt v. Goldschmidt, 231. Goodyear v. Betts, 238. Goll V. Hinton, 143, 144, 180, 188. Gopsill i. Decker, 63. Gordon v. GafEey, J42, 147. Gorton V. Griffin, 98. Gould V. Bryan, 149, 164. Gould V. Chapin, 38. Gould V. Mortimer, 136. Gould V. Sherihan, 30. Goulding v. Bain, 107, 268. Graff V. Bonnett, 265. Grant v. Davenport, 241. Gray v. Brooklyn, 99. Gray v. Giles, 154. Greenleaf v. Mumford, 173, 178, 180, 191, 197, 199, 200, 211. Green v. Green, 241. Green v. Hunter, 243. Greenbaum v. Stern, 25. Greentree v. Rosenstock, 30, 178, 191. xxu CASES CITED. Gregory v. Gregoiy, 85, 238. Gregory v. Levy, 77, 67. Griffiag v. State, 134. Griffiths V. Scott, 98. Grigsby v, Barnett, 108. Grocers' Bank v. Clark, 3. Grimes v. Davison, 30. Griswold, Matter of, 214. Griswold v. Haven, 214. Griswold v. Sweet, 100. Guard. Mut. Life Ins. Co., Matter of. Guard. Sav. Ins. v. Bowl. Green Bk., 237, 261. Guernsey v. Powers, S51. Guest V. Brooklyn, 91. Guilford V. Cornell,. 113, 137. Guillionv. Lindo, 145, 146. Gunning v. Bowers, 252. Gurnsee v. Odell, 34. , ,<}uruey v. Atlantic, &c.- Ey., 393. H. Haggart v. Morgan, 158, 161, Haggerty v. Wilbur, 39, 188. HaigM V. N. Y. Elevated Ry., 66. Hall V. Brooks, 194, 198. I Hall V. Commissioners, 113. Hall V. Fisher, 88. Hall V. McMahon, 31. Hall V. Sampson, 181. Hall V. Stryker, 149, 178, 199. Hall V. Thomas, 337. Hallan v. Reilly, 201. Hallock V. Soheyer, 106. Hamburgh Mfg. Co. v. Edsall, 238. Hamel v. Griffith, 93. Hamilton v. Acces. Trans. Co., 368. Hamlin V. Dinneford, 101. Hammond v. Taylor, 38. Handy v. Dabbin, 176. Hanley v. Bates, 170. Hanmer v. Wilsey, 177. Hanover v. Sheldon, 2. Hardenbrook's Case, 43, 45. Harman v. Remsen, 191. Harold v. Heflfernan, 118. Harris v. Brown, 45. Harris v. Murray, 142, 175, 181. Harrison v. Hodgson, 39. Hasbrook v. Kingston, 91. Hassen v. Rochester, 91, 93. Hart V. Kennedy, 41. Hart V. The Mayor, 85, 107. Hart V. Ten Eyck, 176. Hartwell v. Armstrong, 112. Hascall v. Mad. Univ., 100. Hathaway v. Johnson, 1, 2, 8, 13. Hathorn v. Hall, 47, 137. Hayes v. Buckley, 265. Hayes v. Carrington, 79. Hayes v. Dickerson, 354 Hayes v. Willis, 101. Haynes, Matter of, 153. Hays V. Ward, 88. Hayton v. Wilkinson, 43. Hazard v. Caswell, 103. Hazard v. Hud. River Bridge, 136, 138. Head v. Down, 4. Heatherton v. Hastings, 349. Heaye v. BoUes, 199. Hecht V. Levy, 3, 15, 33. Hecker v. Mayor, 114, 115. Heermans v. Clarkson, 345. Hegeman v. Wilson, 133. Henn v. Walsh, 248. Hennequin v. Naylor, 15. Henri v. Walsh, 107. Henry v. Henry, 249. Henshaw v. Clark, 108. Hentz V. L. I. R. R., 115. Hergman v. Dettlebach, 107, 144, 145, 181, 308. Herman v. Stewart, 109. Hermann v. Aaronson, 163, 64, 65. Hernstein v. Matthewson, 141. Hernandez v. Carnobelli, 5, 48. Hersey v. Supervisors, t&c, 92. Hertz v. Stuart, 160. Hess V. Winder, 108. Heywood v. Buffalo, 90, 91. Hicks V. Cleveland, 176. Hicks V. Compton, 108. Hicks V. Michael, 85. CASES CITED. xxm Hier v. Abrahams, 103. Higgins V. Allen, 137, 139, 134. Higgins V. Bailey, 351. Higgins V. Healy, 321. Higgins V. Moore, 20. Hlhr V. Peck, 110. Hill V. Bond, 153. Hill V. Lott, 43. Hilton V. Patterson, 136. Hissong V. Hart, 66, 71. Hitchcock V. Peterson, 9. Hoffman v. Duncan, 340. Hogg V. Kirby, 104. Holdforth, Matter of, 13. Holdbrook v. Horner, 31. Hollenbeck v. Donnell, 370. Holyoke v. Adams, 173. Honegger v. Wettstein, 349. Hones v. Davis, 367. Hooper V. "Winston, 236, 341, 345. Hope Mut. Life v. Toles, 343. Hopkins v. Snow, 193, 194. Hotchkiss V. Platt. 133, 133. Houget V. Levy, 49. Houghton V. Anet, 143. Hovey v. McCrea, 111. Hovey v. Rubber Tip Co., 133. Howard v. Ellis, 83, 93. Howard v. Lee, 104. Howard v. Park, 130.' Howard Nat. Bank v. King, 179. Howden v. Standish, 39. Howev. Deuel, 94. Howe V. Rochester Iron Co., 83, 85, 107, 108. Howe Machine Co. v. Pettibone, 160. Howell V. Chicago Ry., 98. Howell V. Ripley, 336, 341, 353,353. Howlett V. West Shore Ry., 364. Hoyt V. Comms. Taxes, 186. Hoyt V. Godfrey, 3, 13. Hubbard v. Mack, 39. Hubbell V. Dana, 344. Hudson v. Platt, 347. Huerstel v. Lorillard, 350. Humphrey v. Hayes, 34 Hunt v. Grant, 197. Hunt V. Wolf, 336. Hurd, Matter of, 145. Hurd V. Farmer Loan & Trust Co., 180. Hurlburt v. Banks, 98. Hurlburt v. Seeley, 158. Hutchins v. Smith, 104. Hutchinson v. N. Y. Cent. Mills, 133. Hyde v. Lynde, 358. Innes v. Lansing, 348. Ireland v. Nichols, 350, 351, 371 Isaacs v. Daly. 104. Isham V. Ketchum, 313. Ives V. Holden, 218. J. Jackson v. De Forest, 106, 348, 249. Jacobs V. Hogan, 150, 315, 318. Jacobs V. Remsen, 178. Jacobs V. Miller, 130. Jamison v. Beecher, 151. Jamieson v. Jamieson, 8. Jananique v. De Luc, 48. Janeway v. Green, 369. Jaques v. Nat. Exhibit Co., 106. Jarolauski v. Saunderson, 48. Jarvis v. Cook, 07. Jay's Case, 343. Jay V. De Groot, 256. Jenkins v. Smith, 43. Jenkins v. Wilde, 131. Jerome v. Ross, 85, 107. Jeweft V. Crane, 67, 77, 79, 331. Jewett V. Miller, 345. Johnson v. Casey, 168, 128. Johnson v. Elwood, 128, 130. Johnson V. Leigh, 39. Johnson v. Moss, 152. Johnson, Matter of, 5. Johnson v. Rochester, 108. Johnson v. White, 109. Johnson v. Whitman, 14, 20. ' Jones V. Jones, 39. XXIV OASES CITED. Jprdan v. Richardson, 155. Joslyn V. Pacific Mail S. 8. Co., 114. Josuez V. Murphy, 18. K. Kcan V. Colt, 238. Kecler v. Belts, 38. Kcelei- V. Clark, 9. Kelly V. Scripture, 31. Kelly V. McCormiclt, 77. Kell}' V. Countryman, 166. Kelly V. Breusing, 176, 198. Kelly v.Babcock, 185. Kelly V. Roberts, 185. Kelly V. Downing, 199. Kelly V. Laoe, 199, 300. Kelly V. Whiting, 199. Keir V. Mount, 147, 164, 175. Kerr v. Rackow, 45, 47. Kerr on Receivers, 245. Kelchum v. Ketcbum, 142, 146, 213. Kiefer v. Webster, 153. Kipling V. Corbin, 159, 161. Killmer v. Hobart, 145. Kilmer v. Hobart, 261. Kimberly v. Stewart, 355. King V. Cutts, 236. , King V. Kirby, 3. Kissock V. Grant, 149. Kissara v. Marshall, 170, 178. Kittle V. Kittle, 88. Klick V. Kelley, 175. Knapp V. Bronne, 33. Knapp V. Smith, 175. Knight V. Plimouth, 245. Knickerbocker Life Ins. Co. v. Hill, ,254. Knickerbocker Co. v. Ecclesine, 3, 7, 33, 45. Knudson v. Matuska, 314. Krom V. Hogan, 136, 137. Korff V. Green, 101. Kuhlman v:" Orser, 175, 190, 191, 1C7. L. Lachaise v. Marks, 348. Lachenmcyer v. Lacllenmeyer, 29. Lambert v. Snow, 4. Lampkin v. Douglass, 153, 153, 154, 169. Lamkin v. Starkey, 41. Lampert, Matter of, 43. Lament v. Cheshire, 188. Lansing v. Noith River, &c. Co., 109. Lanning v. Streeter, 178. Landers v. Fisher, 136. Lapeons v. Hart, 3. Laurie v. Laurie, ll8. Latham v. Westervelt, 81. Law V. Ford, 106, 248. Lawrence v. Mayor, 98. Lawton v. Reil, 136, 149, 156, 164, 173. Lawrence v. Foxwell, 16, 31. Lawrence v. Bank of Republic, 178, 199. Lawton v. Green, 139, 131, 133. Leach v. Day, 107, 108. Leavitt v. Dabney, 131. Leavitt v. Yates, 338. Lea V. Wolf, 103. Le Blanc, Matter of, 180. Lee V. Homer, 170, 173. Leggett V. Du Bois, 133. Lehman v. Williams, 193. Leigh v. Westervelt, 100. Lent v. McQueen, 269. Levy v. Kaim, 57. Levy V. Ley, 114. Levy V. Levy, 248. Levy V. Nicholas, 77, 79. Lewis V. Oliver, 84, 100. Lewis V. Elmendorf , 40. Libby v. Rosekrans, 357. Liddell v. Paton, 19. Lefflngwell v. Chave, 36, 115, 116, 119. Lippmann v. Petersberger, 53. Linden v. Hepburn, 83. Livingston v. Livingston, 85, 107. Livingston v. Hollenbcck, 91. Livingston v. Hudson R. R., 107. Livingston v. Bank of N. Y., 114. Livingston v. Swift, ll'J. OASES CITED. XXV Livermore v. Ehodes, 160. Loder v. N. T., Utica, &c. R. R. Co., 256. Loflin V. Fowler, 78. Lofsky V. Maujer, 253. Llorens v. Costa, 248. Lottimer v. Lord, 236, 241. Lovell V. Martin, 45, 47. liOwry V. McLane, 268. Lowbcr V. Mayor, 136. LudvigU V. Dusseldorf, 84, 138. Lummos v. Kasson, 175. . Lyell V. Goodwin, 40, 42. Lynch v. Crary, 177, 179, 185, 333. Lyon V. Botchford, 117, 118. Lyon V. Blakesly, 154. Lyon V. Yates, 177. M. Mace V. Newburgh, 91. Mackey v. Lewis, 45. Madge v. Puig, 47, 49. Majarrietta t. Saenz, 163, 165, 166, 167. Malcolm v. Miller, 83, 111. Mallet V. Weybosset Bk., 137. Mallory v. Allen, 154. Mallory v. Leach, 35. Manhattan Gas Co. v. Barker, 84. Mann v. Onondaga, 91. Mann v. Pentz, 258. Manning v. Evans, 365. Manning v. Monegan, 181. Manton v. Poole, 149. Marine Bank v. Grant, 154, 155, 315, 318. Marine Ins. Co. v. Hodgson, 89. Maripose Co. v. Garrison, 87. Marks v. "Wilson, 85. Marsh v. Backus, 175. Marsh v. Palker, 14. Marshall v. McGregor, 188, 189, 334. Marshall v. Peters, 107. Martin v. Vaurlerlip, 47. Martin v. Van Schaick 248, 249.' Marvin v. Buchanan, 249. Mason v. Lambert, 14. Mason v. N. Y. Silk M'f g Co., 361. Matoon v. Eder, 31. Matsell V. Flanagan, 103. Mather V. Hannaur, 34. Matt V. Dunn, 110. Matthews v. Cook, 75. Mattue V. Gifiord, 116. Maurice v. Gould, 315. Mayor v. Conover, 108, 113. Mayor v. Genet, 153, 157, 188. Mayor v. Meserole, 90. Mayor v. N. Y. & S. I. Ferry Co., 94, 134, 135. Mechanics' Bank v. Dakin, 143, 193, 300. Mechanics' Bank v. Dwight, 49. Mechanics' Bank v. N. Y. & N. H. Ey., 13. Meech v. Lopmis, 53. Merchants' Bank v. Mosher, 53. Merritt, Matter of, 343. Merritt v. Carpenter, 10. Merritt v. Heoksher, 48. Merritt v. Lyon, 343. Merritt v. Sawyer, 265. Merritt v. Thompson, 79, 83, 111. Mershon v. Leonard, &c. Pub. Co., 161. Merwin v. Playford, 48. Meth. Church v. Brooklyn, 117, 129. Messeck v. Columbia, 91. Metcalf V. Clark, 145. Metcalf v. Stryker, 54, 67, 73, 77. Mersereau v. Norton, 144. Mexico V. De Arangois, 19, 35, 48. Meyer v. Belden, 3. Meyer v. Phillips, 105. Meyer V. Seebald, 355. McArdle v. Barney, 354. McArthur v. Pease, 76. McBride v. Farmers' Bank, 144, 177, 208. McBurney v. Martin, 19, 20. McCabe v. Emmons, 105. McCallum v. Bernard, 71. McCardel v. Peck, 103. McCartan v. Van Syckel, 209. XXVI OASES CITED. McCarthy v. Peake, 238, 340, 267, 268, McCombs V. Allen, 331. McCready, Estate, 145. McCreeiy v. Willett, 74. McCullough V. Con-agan, 166. McDonald v. James, 133. McDonald v. Plielps, 144. McElvey v. Lewis, 248, 373. McElwain v. Willis, 178. McEncroe v. Decker, 140. McParland v. Bain, 255. McGarvey V. Smith, 337. McGee v. Cutler, 91, 113. McGilvery v. Morehead, 80. McGinn v. Ross, 191. McGovern v. Payn, 4, 18. McGregory v. Willett, 73. Mcintosh V. Mcintosh, 8. Mclvor V. McCahe, 94. McKay v. Hanower, 208. McKenzle v. Smith, 58, 62, 71. McKeon v. See, 104. . McKinley v. Fowler, 161. McNeil V. Tenth Nat. Bk., 183. Mickler v. Rochester Bank, 94. Middleton v. Rondout, 114, 187. Milliken v. Gary, 114. Minor v. Terry, 115. Miles V. Brown, 191. Miles V. Clark, 60. Milhau V. Sharp, 95, 96. Milliken v. Dart, 159. MiUs Y. Corbett, 165. Mills V. Hildreth, 70, 81. Mills V. Mills, 85. Mills V. Rodwold, 45. Mitchell V. Bartlett, 252. Mitchell V. Bittman, 110. Moat T. Holboin, 118. Mohawk, &o. v. Clute, 90. MoUer v. Aznar, 30. Moody V. Payne, 107. Moore v. Westervelt, 177. Morange v. Waldron, 19, 49 Morgan, Matter of, 28. Morgan v. Avery, 178. Morgan V. House, 149, Morgan v. Potter, 365. Morgan v. Quackenbush, 116. Morgan v. Van Kohnstamm, 264. Morgans' Sons v. Schwackofer, 103. ilorgans' Sons v. Troxell, 103. Morris v. Hiler, 253. Morris v. Rexford, 10. Morris v. Society, &c., 100. Morris v. Talcott, 15. Morrish v. Mui'ray, 39. Morrison v. Garner, 15. Moses V. Watevbury Button Co., 75, 233. Mott V. Lawrence, 153. Mott V. Union Bank, 24, 34, 44. ' Mulvey v. Davison, 17. Murphy v. Baldwin, 158. Murphy T. Du Berg, 349. MuUer v.'Perrin, 18, 30. Muller V. Pondir, 367. Mulligan v. Elias, 104. Mulry V. Hecksher, 48. Munson v. Hungerford, 105. Murphy v. Board of Police, 89, 108. Murray v. Hawkins, 155. Murray v. Knapp, 84, 107. Muser v. Miller, 36. Musgrove v. Nash, 366. Musgrove v. Sherwood, 130. Mutual Life, &c. v. Supervisors; 90. N. Nathan v. Whitlock, 263. Nat. Gaslight Co. v. O'Brien, 135. Nat. Shoe & Leather Bank v. Mech. Bk., 314. Nealis v. Bussing. 370. Negus V. Brooklyn, 341. Nelson v. Blanchfield, 48. Nessle v. Peese, 86. Neugent v. Swan, 139, 130. Newbury v. Newbury, 85. Newell V. Doran, 35, 36. Newland v. Willetts, 170. Newport v. Bury, 340. Newton v. Russell, 133. New Amsterdam Bank v. Tarlter, 258. CASES CITED. • XXVll New Jersey, &c. Bank v. Thorpe, 243. New York, &c. Ins. Co. v. Super- visors, 83, 100. New York, &c. Ins. Co. v. Saflord, 134. New York Printing Co. v. Fitch, 83, 84, 94, 107. New York, &c. Railroad v. Howe, 89. New York, &c. Railway v. Forty- Second St. Ry., 96. New York, &c. Railroad v. Schuy- ler, 101, 113. Nichols V. Horton, 41. Nichols V. Michael, 15. Nichols V. Pinner, 14. Niles V. Vanderzee, 149. Ninth Av. R. R. v. N. Y. Elevated, 86, 107. Nable v. Halliday, 263. Noble v. Prescott, 20, 31. Noe v. Gibson, 287, 258. Nones v. Edsall, 40. North Am. Q-utta Percha Co., Mat- ter of, 243. Northern Railway v. Carpentier, 10, 26, 49. Northrup v. Garrett, 171. O. Obregon v. De Mier, 79. O'Brien v. Chicago R. R., 97. O'Brien v- Glenville Woolen Co., 199. O'Brien v. Mech. & Trader's Ins. Co., 191, 194. O'Brien v. Merchants' Ins. Co., 300. Ocean Nat. Bank v. Carll, 246, 260. Oelrichs v. Spain, 133. O'Donnell V. McMurn, 128. Oestrick v, Gilbert, 176. Ogden v. Kip, 83, 84. Ogden v. Arnot, 248. Olcott V. Heermann, 245, Olmstead v. Loomis, 84. Olssen V. Smith, HI. O'Neil V. Durkee, 62. Orphan Asylum v. McCartee, 338. O'Reily v. Preel, 151, 218. Orser v. Grossman, 190, 191. Orversv. Goldschmidt, 166. Osgood V. Liiytin, 237. Osborn v. Heyer, 241. Osgood V. Maguire, 186, 857. Ostell V. Brough, 31. Otis V. Jones, 177. Otis V. Wakeman, 75. Overill v. Durkee, 62. P. Pacific Mail Steamship Co. v. Len- ling, 130. Pacific Mail Steamship Col v. Mayor, 91. Pacific Mail Steamship Co. v. Toel, 130. Pacific Mut. Ins. Co. v. Machado, 3, 18. Packer v. Nevin, 126. Palen v. Bushnell, 343. Palmer V. Clark, 356, 360. Palmer v. Do Witt, 104., Palmer v. Foley, 127, 130, 131. Palmer v. Hussey, 33. Palmer v. Napoleon, 92. Panten v. Zebley, 341. Pardee v. Leitch, 190. Park V. Musgrave, 130. Parker v. Browning, 243, 244, 253. Parker v. Nightengale, 93, 93. Parmly v. Tenth Ward Bank, 337. Parsons v. Travis, 64. Patten v. Transfer Co., 338, 247, 369, 269. Patterson v. Mayor, 100. Patterson v. Perry, 144, 176, 179. Paul V. Munger, 83, 143. Peck V. Elder, 104. Peck V. Lombard, 58. Peck V. Tiffany, 197. Peck V. Yorks, 184, 185. Peel V. Elliott, 11. 32. Pell V. Jadwin, 77. XXVUl OASES CITED, Pent! V. Remsen, 76. Pentz V. Hawley, 263. People V. Albany, &c. R. R., 86, 95, 269. People V. Albany & Vt. R. R., 96, 268. People V. Atlantic, &o. Ins. Co., 258. People V. Banks, 98. People V. Campbell, 41. People V. Cent. City Bank, 271. People V. Chapman, 359. People V. Church, 272. People V. Clark, 4. People V. Coffin, 85. People V. Columbia Car Spring Co., 266. People v. Compton, 119. People V. Dikeman, 68. People V. Donohue, 28. People V. Draper, 112. People V. Dwyer, 87. People V. Gardner, 186. People V. Globe Ins. Co., 257. People V. Horton, 105. People V. Hubbard, 38. People V. Hynds, 60. People V. Ingersoll, 60. People V. Knickerbocker Ins. Co., 264. People V. Kelly, 1, 12, 18. Pei)ple V. Lowber, 100. People V. Mayor, 98, 99, 114, 250, 251, 269. People V. McAdam, 251. People V. McCall, 267. Penple V. Meach, 105. People V. Meighan, 56. People V. Nat. Trust Co., 261, 267. People y. New York Com. Pleas, 116. People V. Norton, 268. People V. Rensselaer Ins. Co., 255. People V. Ritterman, 5. People V. Rogers, 242. People V. Sampson, 83. People V. Scott, 60. People V. Security Ins, Co., 364. People V. Security Life Ins. Co., 257, 358, 259. People V. Sturtevant, 87, 98. People V. Third Ave. Bank, 340. People V. Trustees, &c. Ogdens- burgh, 186. People V. Tweed, 5, 54. People V. Vanderbilt, 105. People V. Wasson. 85. People v. "West Troy, 87. People V. Waldron, 3. People's Bank v. Mechanics' Bank, 314, 215. Penfleld v. "White, 115, 118. Perault v. Rand, 89. Perkins v. "Warren, 83, 87, 111, 113, 138. Person v. Civer, 10, 83. Person v. Grier, 42. Perry v. "Volkening, 114. Peterson v. Humphrey, 107. Petrie v. Fitzgerald, 41, 42, 45. Pfohl V. Sampson, 83. Phelps V. Cole, 246. Phelps V. Hall, 77. Phelps V. Maxwell, 89. Phenix Ins. Co. v. Cent. Ins. Co., 93, 94. Phenix "Warehousing Co. v. Badg^, 262, 368. Phillips V. Cook, 107, 144, 189. Phillips V. "Wickham, 100. Pickhardt v. Anthony, 153, 156. Pidgeon v. Oatman, 114. Pier.son v. Freeman, 81. Pike V. Ladd, 18. Pike V. "Wieting, 15. Pindar v. Black, 30, 82, 37. Pixley V. "Winchell, 45. Place V. Riley, 230. Piatt's Case, 244. Piatt V. Jones, 105. Piatt V. Piatt, 250. Plympton v. Bigelow, 182, 184. Poillon V. "Volkenning, 131. Pomeroy v. Hindmarsh, 111. Ppmeroy v. Moss, 150. Pomeroy v. Ricketts, 166. OASES CITED. XXIX Popham V. Wilcox, 103. Popper V. Schuder, 348. Porter V. Hermann, 22. Porter v. Spencer, 33. Porter v. Williams, 236, 371. Post V. Dow, 353. Post V. Doremus, 57. Potter V. Baker, 170. Potter, Matter of, 40. Potter V. McPherson, 101. Power V. Alger, 84, 111. Prad«r v. Grim, 133. Pratt V. Wells, 22. Prichard v. Owen, 31. Prouty V. Swift, 30. Pugh V. Hurtt, 243. Pullen V. Cincinnati, 338. Pullman v. Mayor, 98. Pumpelly v. Owego, 91. Purflur, Matter of, 91. Quinn v. Brittain, 247. K. Eae V. Mayor, 93, 143. Ramsdell v. Craighill, 86. Ramsey v. Erie Ry., 84. Randall v. Carpenter, 131. Rankin v. Elliott, 360. Ranney v. Peyser, 353, 370. Ransom v. Halcott, 177, 197. Raynor v. Pacific Nat. Bank, 156. Ready v. Stewart, 144. Real Estate Associates, Matter of, 272. Redfleld v. Mlddleton, 84, 117. Reeves v. Denicke, 107, 115. Reimer v. Nagel, 18. Remmey v. Gedney* 183. Rennie v. Bean, 179. Reubens v. Joel, 83, 111, 113. Reynolds v. Mayor, 98. Rhoads v. Woods, 308. Rhonerv. First Nat. Bk., 156. Rich V. Loutrel, 343, 366. Richards v. Dower, 83. Richards v. Porter, 53. Richards v. Varnum, 197. Richter v. Wise, 150. Rider v. Bagley, 353. Rider v. Vrooman, 353. Riggs V. Whitney, 353. Rinchey v. Stryker, 178, 199, 200. Ritter v. Patch, 90. Rittcrman v. Ropes, 9. Robbins v. Falconer, 19, 30, 31. Roberts v. Anderson, 138. Roberts v. Mathews, 84, 114. Rockwell v. Merwin, 343. Rodgers v. Marshall, 350, 351. Roberts v. Mayor, 100. Roberts v. Mekill, 131. Roberts v. Randel, 17. Roberts v. White, 139. Rocherster v. Davis, 93. Robinson, Matter of, 152. Robinson v. Gaer, 91. Robinson v. New Borne Bank, 156. Robinson v. Prtswick, 351. Robinson v. Rivers, 36. Rodbourn v. Utica Ry. , 373. Rodgers v. Bonner, 234. Rodgers v. McElhone, 45. Rodgers v. Reeves, 56. Rodgers v. Rodgers, 109, 125, 137. Rogers v. Corning, 365. Rogers' Locomotive Works v. Kelly, > 180. Rogers v. Mich. Southern, 97. Rogers v. Weir, 175. Roome V. Webb, 114, 115. Rose V. Post, 133. Rosenback v. M. & B. Bank, 263. Both V. Well^ 313. Rotherby v. Rubber Co., 105. Rowe V. Patterson, 15. Rowles V. Hoare, 310. Royal Baking Co. v. Sherrill, 103. Royal Ins. Co. v. Nobles, 330. Ruggles V. Brock, 363. Ruggles V. Chapman, 359. Runk V. St. John, 343. Ruppert V. Haug, 153, 154, 155, 214 Rutter V. Boyd, 195. XXX OASES CITED. Riissen v. Lucas, 89. Rutter V. Tallis, 243, 271. Eyckman v. Coleman, 128, 138. 8. Sfichs V. Bertrand. 7, 48. Saddlesrene v. Arms, 147, St. Amant v. Beixcedon, 152, 153. St. John V. Denison, 246. St. Peters Church v. Varlan, 127. Salhinger v. Adler, 49. Salter v. Welner, 68, 64, 180. SandoD v. Jervls, 39. Sanford v. Sinclair, 368. Sanquirice v. Beuedetti, 101. Sartwell v. Field, 143. Sartos V. Merceques, 55, 66, 73, 74, 67. Satow V. Reisenberger, 32. Savage v. Allen, 84, 85, 88. Savage v. Medbury, 260. Schaefer v. Herd, 115. Schaughnessy v. Reilly, 113. Schell'v. ErleRy., 138. Schelly v. Zink, 53. Schlemmer v. Myerstein, 167. Schermerhorn v. Merrill, 137. Schieb v. Baldwin, 192. SchiefEelin v. Hawkins, 101. Scheuck v. Ingraham, 236. Schmidt V. Heitner, ,53. Schoonmaker v. Ref. Dutch Ch., 115, 137. Schoonmaker v. Spencer, 149. Scblussel V. Willett, 178. Schudder v. Shiells, 19. Schultz V. Schultz, 8. Schunemau v. Paradise, 27. Scott V. Craig, 60. Scott V. Onderdonk, 91. Scott V. Simmons, 147, 150. Scott V. Williams, 46, 48. Scudder v. Barnes, 15. Sea Ins. Co. v. Stebbins, 253. Sears v. Gear, 145. Seaver v. Genner, 54, 67, 73, 74. Seaver v. Kobiuson, 43. Sebring v. Lunt, 111. Segelken v. Meyer, 11, 17, 19. Sellar v. Sage, 81. Seltman v. Jaschenorsky, 160. Seymour v. Van Curren, 17, 33. Seymour v. McDonald, 94. Shaffer v. Mason, 143, 145, 147. Shand v. -Hanley, 250. Sharp V. Mayor, 13. Shanghnessey v. Rensselaer, 360. Shearman v.. Hart, 100, 106, 137. Shearman v. N. Y. Cent. Mills, 115, 139. Shelden v. Van Buskirk, 176. Sherman v. Clarke, 387. Sheridan v. Jackson, 343. Sheldon v. Allerton, 117, 136. Sherman v. Smith, 3. Sherill Roper Co. v. Harwood, 18. Sherlock v. Sherlock, 18. Shipman v. Shafer, 21. Shook V. Daly, 104. Short V. Barry, 31. Shotwell V. Smith, 351. Shulten v. Lord, 135. Sickles V. Richardson, 179. Sickles v. Sullivan, 160. Silsbury v. McCoon, 176. Simmons V. Wood, 271. Simpson v. Burch, 165. Siney v; N. Y. Consol. Stage Co., 272. Sixth Ave. Ry. v. Kerr, 107, 108 Skiff V. Stewart, 149, 159. Skinner v. Oettinger, 150. Skinner v. Stuart, 200, 311. Skinnion v. Kelly, 149. Skip V. Harwood, 337. Sloan V. Livermore, 34. Smedes v. Elmendorf, 11. Smith v. Amer. Coal Co., 183. Smith V. Arnold, 154, 155. Smith V. Austin, 136. Smith V. Cons. Stage Co., 371. Smith V. Frank, 2, 12. Smith V. Hudson, 197. Smith V. Jeyes, 106. Smith V. Kelley, 370. OASES CITED. XXXI Smith V. Knapp, 4, 13, 52, 67. Smith V. Longmire, 179. Smith V. Lowe, 248. Smith V. Luce, 152. Smith V. Mahon, 167. Smith V. N. Y. Stage Co., 237, 247. Smith V. Oiser, 145, 180, 188, 189, 224. Smith V. Reno, 115, 136. Smith V. Smith, 8. Smith V. Tiffany, 253. Smith V. Tracy, 12. Smith V. "Wells, 350. Smith V. Woodruff, 342, 246. Smoat V. Heim, 192. Smythe v. Banks, 40. Society, &c. v. Deers, 187. Solomon v. Cong. B'nai, 97. Solomon v. Waes, 3, 48. Somerset Bk. v. Huyck, 60. Sorley v. Brewer, 115. South Island C. v. Sherwin, 1. Southwick V. First Nat. Bk., 156. South work v. Rasing, 2. Spear v. Cutter, 85, 109. Spencer v. Rogers' Locomotive Work, 222. Spies V. Joel, 3. Springport v. Teutonia, 91. Staats V. Bristow, 145, 181, 224. Standaeker v. Pregerzer, 52. Standard Sugar Ref. v. Dayton, 21. Star Fire Ins. Co. v. Godet, 71. Starv. Rathbone, 255. Stark V. Hemstead, 79. State Bank, &c. v. Gill, 369. Steele v. Palmer, 33, 46. Steele v. Sturges, 243, 371. Steinberg- v. Lasker, 7. Steuben Co. Bank v. Alberger, 160, 315, 217, 218. Stevens v. De Oonto, 103. Stevens v. Middleton, 151, 153, 156, 317. Stevenson v. Fayerw^ather, 85. Stever v. Sornberger, 54. Stewart v. Brown, 150. Stewart v. Howard, 43, 45. Stewart v. Potter, 48, 49. Stewart v. Strasburger, 2. Steward v. Winters, 93, 93. Stockbridge's Asst., 145. Stokes V. Landgrafl, 103. Storer v. Fuvman, 361. Storer v. Rayson, 38. Storm V. Mann, 109. Story V. N. Y. Elevated, &c., 113. Stoutenburgh v. Vandenburgh, 145. Stage V. Stevens, 11. Stall V. King, 11, 19, 20. Straus V. Kreiss, 16, 31. Strauss v. Schwartzwaelden, 7. StuU'v. Westfall, 115. Stuyresant v. Bowran, 7, 48. Stuyvesant Bank, Matter of, 241. Suard V. Whale, 10. Sullivati V. Alexander, 56. Sullivan v. Judah, 117. Sumner v. Osborn, 52, 53. Susquehanna Bank v. Supervisors, 90. Sutherland v. Bradner, 217. Sutton V. De Camp, 19, 20. Sutton V. Jones, 340. Sutton V. Sabey, 47. Swift V. Wylie, 48. Sykes v. Hastings, 340. Syracuse City Bank v. Tallmau, 353. T. Taacks v. Schmid, 130, 132, 180. Taddiken v. Cantrel, 165. Talcott v. Moore, 102. Talcott V. Rosenberg, 149. Tallman v. Bigelow, 152. Talmadge v. Pell, 257, 363. Tallmadge v. East River Bank, 93, 94. Tappan v. Gray, 255. Taylor, Matter of, 70. Taylor v. Baldwin, 244. Taylor v. Brookman, 108. Taylor v. Faas, 31, 34. Taylor v. North, 7. Taylor v. Reed, 154. Taylor v. Troncoso, 165. XXXll OASES CITED. Taylor v. Van Keuren, 37. Ten Brock v. SlOo, 266. Tharpe v. Tharpe, 289. Thayer v. Miller, 178. Thompson, Matter of, 158. Thompson v. Canal Com'rs, 82, 112. Thompson v. Culver, 216. Thompson v. Friedberg, 34, 37, 56. Thompson v. Shereard, 250. Thorington v. Merrick, 145, 146. Thorpe v. WaddingHam, 30. Thornbill v. Thornbill, 245. Thorsby v. Mills, 86. Thurber v. Blanck, 179, 191, 198. Tiflahy v. Lord, 177. Tiffiauy v. U. S. 111. Co., 106. Tifftv. Buffalo, 100, Tim V. Smith, 214. TofEey v. Williams, 4, 47. - Toles V. Adec, 56, 57, 71. Toll V. Alvard, 66, 69. Tompkins v. Swett, 49. , Towner v. Church, 161. Townsend v. Bogart, 8. Townsend v. Nebenzahl, 5. , Townsend v. Tanner, 85. Tracy v. First Nat. Bk., 219. Tracy v. Leland, 26. Tracy v. Veeder, 2, 37. Tradesman's Bk. v. Merritt, 135. Treadwell v, Lauler, 151, 153. Trenor v. Jackson, 85, 99. Trenton v. Woodruff, 247. Tripp V. Chard. Ry., 239. Troop Grain Co. v. Edwards, 211. Trow's Print. &c. v. Hart, 154, 214, 215, 217, 218. Troy, &c. K. R. v. Boston, &c. R. R., 96. Turner v. Thompson, 21, 33, 137. Tyler v. Willis, 265. U. Union Bank v. Mott, 30, 48. Underwood v. SutclifOe, 265. Union Consol, Mining Co. v. Raht, 143. United States Cable Co. v. Domin- ion Tpl. Co., 97. United States v. Graff, 146, 180, 188. United States v. Moller, 6, 7, 12, 13. United States v. Kirby. 40. United States v. Reid, 6, 7, 16. Utica Ins. Co. v. Dynch, 248, 266. V. Vail V. Knapp, 88. Vail V. Hamilton, 261. Van Allen, 258. Van Allen, Matter of. 237, 359. Van Allen v. Sampson, 218. Van Alstyue v. (jook, 371. Van Alstyne v. Erwine, 149. Van Bergen v. Van Bergen, 104. Van Buren v. Chenango Co., 363. Van Cott V. Van Brunt, 257. Van Densen v. Young, 109. Van Doren v. Mayor, 91. Van Dyck v. MoQuade, 358, 360. Vanderpool v. Kissam, 8, 30. Vanderheyden v. Gary, 197. Van Gelder v. Van Gelder, 131. Van Loon v. Lyons, 149. Van Ranst v. New York College, 86. Van Rensselaer v. Hopkins, 80. Van Rensselaer v. Kidd, 91. Van Schaick v. Sigel, 11. Van Slyke v. Scbmeck, 170. Van Tassell v. Marks, 53. Van Veghten v. Howland, 83, 84. ~ Van Wick v. Bauer, 145. '" -' Vanderheyden v. Gary, 197. Verplank v. Caines, 238. Verplank v. Mercantile Ins. Co., 341, 259. Visser v. Blackstone, 237. Vincent v. King, 85, 100. Vilmar v. Schall, 19, 20. Verplanck v. Mercantile Ins. Co., 94. Vermilyca v. Vermilyea, 111. Von, Beck v. Rondout, 90, 91. Von Biel v. Prescott, 103. Von Gerliard v. Lighte, 80. OASES CITED. XXXlll w. Waffle V. Goble, 158, 165. Walvpficld V. Gillespy, 138. Wnldron v. Marsh, 108. WalUce V. Ciistle, 19, 21, 153, 156, 157. Wallace v. Murphy, 12. Wallack v. Society, &c. 89. Wall St. Ins. Co. v. Loud, 252. Waller v. Harris, 86. Walsh V. Adams, 189. Walter v. Bennett, 19. Walton V. Daly, 221. Wanzer v.De Baum, 25. Ward V. Begg, 141. Ward V. James, 61. Ward V. Kelsey, 83, 85. Warner, Matter of, 218. Warner v. Gouvemeur's Exrs., 251. Warren v. Sprague, 247. Warren v. Wendall, 33, 45. Warring v. WaiTen, 170. Washington Ins. Co. v. Fleischaner, 253. Waterbury V. Bouker, 13C.I Waterbury v. Dry Dock Ry., 96. Watson V. Fuller, 86, 119. Watson V. Hunter, 109. Watson V. McGuire, 18. Watt V. Healy, 52. Watt V. Rodgers, 120. AVatt V. Watt, 138. Watts V. Cleveland, 213. Watts V. Shipman, 180. Webb V. Bailey, 163, 164. Webb V. Overman, 269. Webb V. Van Zandt, 255. Wietjen v. St. Pauls Ry., 96. Wehle V. Butler, 176. Wehle V. Conner, 177, 181, 191. Wehle V. Spellman, 4, 190. Wciller V. Schreier, 147, 160. Welch V. Wiaterburn, 10, 48. Wellesley v. Mornington, 119. Wells V. Jones, 53. We!^tern Bk. v. City Banks, 144. West Point Iron Co. v. Reymert, 109. C Wetmore v. Earle, 2. Wetter v. Schliefer, 239, 240, 248, 269. Whaling v. Shales, 170. Whatman V. Gibson, 93. Wheaton V. Fay, 77. Wheeler v. Brady, 45. Wheeler v. Frencke, 4. Wheeler v. Hartwell, 26. Wheeler v. Wilcox, 60. Wheelock v. Elliott, 21. Whitehead v. Buffalo, 111. Wliitesidc v. Prendergast, 272. Whittlesley v. Franz, 256. White V. Colfax, 248, 254. White v. Smale, 244. Whitewright v. Stimpson, 248. Whclpey v. Erie Ry., 288. Whitlock v. Roth, 31, 32. Whitney V. Dennlston, 172. Whitney v. Mayor. 99. Whitney, v. N. Y. & Atlantic Ry., 256. Whitney v. Welsh, 264. Wickes v. Harmon, 14, 33, 45. Wickes V. Southwickes, 129. Wilde V. .loel, 132, 134. Wilder v. Guernsey, 49. Wilds, Matter of,. 265. Wllkie V. R. & S. L. Ry.. 138. Wilkins v. Williams, 239. Willett v. Equit. Ins. Co., 186. Willett V. Lassalle, 09. Willett V. Stringer, 128. Williams v. Babcock, 260. Williams v. Johnston, 102. Williams v. Lakey, 260. Williams v. Norton, 34. Williams v. Spencer, 39, 102. Williams v. Waddell, 214. Williamson v. Johnson, 103. Willinmsou v. Wilson, 236, 337, 239, 272. Willis V. Corliss, 256. Wilson V. Barney, 354. Wilson V. Britton, 159. Wilson V. Duncan, 190, 191. Wilson V. Harvey, 143, 147. XXXIV OASES CITED, ^?ilsnn V. Kelley, 188. ■Wilson V. Mayor, 90. Winfleld V. Bacon, 243, 244 Wing V. Disse, 265. "VVingato v. Haywood, 89. Winkler v. Winkler, 237. Win^liip V. Pitts, 109. Wiswell V. Sampson, 237. Winter v. Kinney, 56. WoerishoefEer v. N. R. Const. Co., 137. Wood V. Draper, 92. Wood V. Henry, 30. Wobdbouse v. Todd, 153, 153: Woodmanse V. Rogers, 316. Woodruff V. Fisher, 100, 114, 115. Woodruff V. Valentine, 3. Woodward v. Stearns, 164, 166. Woolsey V. Judd, 104, 115. Woolwortli V. Taylor, 174. Woven Tape Skirt Co., Matter of, 367. Wren v. Kirton, 335. Wright V. Brown, 15, 151. Wright V. Cabot, 193. Wright V. Hooker, 197. Wrijjlil V. Ritterman, 5. Wright V. Rowland, 170. Wynne v. Newborough, 339, 240, 244. T. Yates V. Blodgett, 10, 11. Tates V. North, 150, 160, 219. Young V. Campbell, 83, 84. Young V. Weeks, 5, 31. Yorks V. Peck, 173. Zellenkofl v. Collins, 138. Zerega v. Beuois, 216. Zeregal v. Benoist, 148, 163, 164. Zimm V. Ritterman, 59. PROYISIONAL REMEDIES. ARREST. CHAPTER VII., TITLE I., CODE OF CIVIL PROCEDURE. § 548. A person shall not be arrested in a civil action or spe- cial proceeding, except as prescribed by statute. The writ of ne exeat is hereby abohshed. This section is a substitute for section 178 of the Code of Procedure, which read as follows : " No person shall be arrested in a civil action, except as provided by this act ; but this provision shall not affect the act to abolish imprisouinent for debt, and to punish fraudu- lent debtors, passed April '26, 1833, or any act amending the same, nor shall it apply to proceedings for contempt." Construction of the Statute. The provisions of the Code in relation to arrest should be strictly construed and in favor of the liberty of the citizen. So. Inland, &c. Co. v. Sherwin, 1 N. Y. Civ. Pro. 44. Hathaway v. Johnson, 55 N. Y. 93. People V. Kelly, 35 Barb. 444. Godfrey v. Pell, 4 N. Y. Civ. Pro. 448. 2 PRO'VISIONAL kkmedies. And an order of arrest should not be granted in case of doubt. Cormier v. Hawkins, 69 N. Y. 188. •Allen 1). Hyde, 3 Abb. N. C. 197. Barron v. San ford, 6 Abb. N. S. 321. See Soutliworth. i>. Resing, 3 Cal. 877. The arrest is incidental to the remedy and not to the con- tract, and the provisions in relation thereto may be abrogated by statute. People v. Waldron, 46 Barb. 619. The right depends upon the legal status of the parties when suit is commenced and not when ithe action accrued. Heclit V. Levy, 31 Hun, 53. Nature of the Remedy. It is cdisoretionary with the judge to whom the application is made, and a plaintiff is not entitled to the order as a matter of right. Knickerbocker, &c. Co. «. Ecclesine, 6 Abb. N. S. 9. Davis 1). Scott, 15 Abb. 127. Britton ». Richards, 13 Abb. N. S. 263. Lapeons v. Hart, 9 How. 541. Clarke «. Lowrie, 82 N. Y. 580. A personal liability to arrest is necessary as a foundation for the order, and a principal is not liable to arrest for the fraud of his agent, without a personal participation therein or a ratifica- tion of the fraudulent act. Clafliu V. Prank, 8 Abb. 412. Hathaway «. Johnson, 55 N. Y. 93. Tracy v. Veeder, 35 How. 215. Stewart ». Strasburger, 7 Hun, 337. Smith V. Prank, 3 Rob. 626. Nor is a joint debtor liable to arrest for the tortious acts of another. ■WoodrufE V. Valentine, 19 Abb. 93. Nor a partner for the act of his copartner without actual knowledge of the wrong. Wetmore v. Earle, 9 Abb. 58. Hanover Co. v. Sheldon, Abb. 240. ARREST. 3 Bank of Commonwealth v. Temple, 39 How. 433. Bacon «. Kendall, 49 Supr. 133. Though by receiving the benefits of the fraudulent acts of his copartners, he may be held to have adopted them and be rendered liable by such ratification. Gorman v. Eeese, 21 How. 114. Bank of Commonwealth v. Temple, iupra. Townsend v. Bogart, 11 Abb. 355. Anonymous, C Abb. 319. Bull «. Melliss, 9 Abb. 58. Sherman v. Smith, 43 How. 198. Actual and not constructive guilt must afford the basis of this remedy ; and the constructive guilt of a debtor who is inno- cent in fact is not a sufficient ground for imprisonment. Birchell v. Straus, 8 Abb. 53. Hathaway v. Johnson, 55 N. Y. 93. Spies V. Joel, 1 Duer, 609. Pac. Mut. lus. Co. ■». Machado, 16 Abb. 451. Gaffney v. Burton, 13 How. 516. Solomon v. Waas, 3 Hilt. 179. Hoyt ». Godfrey, 88 N. Y. 669. Action by assignee. The assignee of a cause of action takes Avith all the rights to its enforcement that existed in favor of the assignor, and as such may enforce his claim by arrest. King «. Ku-by, 38 Barb. 49. Grocers' Bank v. Clark, 33 How. 160. Meyer®. Belden, 8 Week. Dig. 344. An assignee for benefit of creditors may have recourse to this remedial process in a claim for damages arising out of a fraud perpetrated upon his assignor. Meyer v. Belden,- 8 Week. Dig. 344. Corporation may assign an action for fraudulent misappro- priation of its funds and the assignee may pursue his remedy by arrest. Grocers' Bank ». Clark, S3 How. ICO. 4 PKOVISIOKAL EEMEDIES. A simpls assignment of a bill of items of merchandise does not convey a claim for damages for tort in contracting the indebtedness, and consequently the right to arrest does not pass by such assignment. Birdsall v. Fulkr, 11 Hun, 204. The general rule is that the assignment of a cause of action carries with it the rights and remedies that are incidental to recovery thereon. Bolen V. Crosby, 49 K. T. 183. Wehle V. Spellman, 75 N. T. 585. Joinder of causes. A defendant cannot be arrested in & suit in which are joined causes of action upon one of which he was not liable to arrest. Goodale ■». Fiun, 2 Hun, 151. Toffey v. Williams, 3 Hun, 217. McGovern ». Payn, 32 Barb. 83. Bassett d. Metcalfe, 15 Huu, 464. Easton v. Cassidy, 21 Hun, 459. Lambert v. Snow, 17 How. Pr. 517. Ely V. S,teigler, 9 Abb. N. S. 35. Mason ». Lambert, 3 Daly, 250. Wheeler t. Frenche, 33 Super. Ct. 63. Bowen v. True, 53 N. T. 640. Madge ». Puig, 71 N. T. 608. Am. Uuion Tel. Co. •». Middletown, 80 N. T. 408. Smith ». Knapp, 30 N. Y. 581. Brown v. Ashbough, 40 How. Pr. 336. Head «. Down, 4 Week. Dig. 321. As, in an action to recover a balance of account, part of the items of which are untainted by fraud. TofEey «. Williams, supra. Or, in a suit upon a foreign judgment in which are included causes of action upon which an arrest could have been granted. Goodale v. Finn, 3 Hun, 151. A claim for moneys collected in a fiduciary capacity and a claim for interest thereon do not constitute separate causes of action. People 11. Clark, 45 How. Pr. 13. ARBE8T. 5 Second Arrest. A defendant cannot be twice arrested by process upon tbe same cause of action. Hernandez v. Carnobelli, 10 How. Pr. 433. « Enoch V. Ernst, 21 How. Pr. 96. Wright V. Ritterman, 1 Abb. N. S. 438. Townsend v. Nebenzahl, 8 Abb. N. 0. 437. Matter of Johnson, 7 Kobt. 369. Lorillard Fire Ins. Co. ■». Mesliural, 7 Robt. 308. People v. Tweed, 63 N. Y. 303. Young % Weeks, 7 Daly, 115. Ewart t. Schwartz, 48 Super. Ct. 390. Nor will it vary the rule if the form of action be changed. Wright V. Ritterman, 1 Abb. N. S. 438. People V. Ritterman, 1 Abb. N. 8. 433. Though the order may issue when the first action was dis- continued, and the second is not vexatious. People V. Tweed, 63 N. Y. 203. Ne Exeat. The explicit provisions of this section, abolishing the writ of ne exeat, imply that it existed under the previous Code. Section 550, subdivision 4, furnishes a substitute for thi,s ■writ. Collins o. Collins, 80 N. Y. 34. The writ of ne exeat was held to be abolished by implica- tion, without the express statutory provision, in Matter of Harker, 49 Cal. 46. §549. Arrest. When this remedy Is incidental to the nature of the action. A defendant may be arrested in an action, as pre- scribed in this title, where the action is brought for either of the following causes : 6 PROVISIONAL BEMEDIE3. 1. To recover a fine or penalty. 2. To recover damages for a personal injury ; an injury to property, including the wrongful taking, deten- tion or conversion of personal property ; breach of a promise to marry ; misconduct or neglect in ofiBoe, or in a professional employment ; fraud ; or deceit. But this subdivision does not apply to a claim for damages in an action to recover a chattel. 3^ To recover money, funds, credits, or property, held or owned by the State, or held, or owned, officially or otherwise, for or in behalf of a public or governmental interest, by a municipal or other pubhc corporation, board, officer, custodian, agency, or agent, of the State or of a city, county, town, village, or other division, subdivision, department or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of ; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same. i. In an action upon' contract, express or implied, other than a pronaise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incu]-ring the liability. Where such an allegation is made, the plaintiff can- not recover unless he proves the fraud ; and a judgment for the defendant is not a bar to a new action to recover upon the contract only. Action to recover a Fine or Penalty. Taken from subdivision 2, of section 179 of Code of Procedure. To subject a party to arrest the cause of action must be a fine or penalty and not something of a penal nature. Glens Falls Paper Co. ■». White, 58 How. Pr. 173. An action against a tfustee of a corporation for a liability AEREST. 7 arising under the Statute for the neglect to file a report does not fall within this clause. Ibid. An action to recover the value of the merchandise forfeited for false and fraudulent entry is not an action to recover a fine or penalty within the meaning of this section. United States «. Reicj; 4 N. Y. Civ. Pro. 1. United States d. MoUer, 10 Benedict, 189. Personal Injury. "An injury to person or character. . . ." Code of Pro. § 179, subd. 1. Section S34:S, subdivision 9, gives the following defini- tion : " A ' personal injury ' includes libel, slandei", crimi- nal conversation, seduction, and malicious prosecution ; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another." Ziibel is a personal injury within the meaning of this clause, and an order of arrest may bo granted therefor. Britten i>. Richards, 13 Abb. N. S. 258. Blakelee v. Buchanan, 44 How. Pr. 97. Corporation may, procure an order whenever it is entitled to maintain an action for libel. Knick. Life Ins. Co. ». Ecolesine, 43 How. Pr. 201. Seduction and criminal conversation are included in this sub- division, and an arrest is authorized therefor. Steinberg «. Lasker, 50 How. Pr. 433. Taylor v. North, 3 C. R. 9. Delamater v. Russell, 4 How. Pr .234. Strauss V. Schvvarzwaelden, 4 Bosw. 637. Sachs 1). Bertrand, 23 How. Pr. 95. Stuyvesant «. Bowran, 3 Abb. N. S. 370. A married woman may cause the arrest of the defendant in an action brought for enticing away her husband. Breiman v. Paasch, 7 Abb. N. 0. 349. 8 PEOVISIONAL EEMEDIES. And malicious prosecution ; for the instituting of unfoanded civil suits, maliciouHly and without probable cause. Dempseyi). Lepp, 53 How. Pr. 11. Vandorpool v. Kissara, 4 Sandf. 715. A wife may maintain an action for assault and battery against her husband and cause his arrest thereon. Schultz V. Schultz, 37 Hun, 26. S. C, 2 N. Y. Civ. Pro. 282. Action for divorce does not fall within this section, it being simply a proceeding for the dissolution of the marital contract. Mcintosh V. Mcintosh, 12 How. Pr. 289. Although, when a decree is sought in a matrimonial action for defendant's cruelty, an arrest may be had. Jamieson a. Jaraieson, 11 Hun, 38. Gardiner v. Gardiner, 3 Abb. N. C. 1. Mcintosh v. Mcintosh, supra. See Smith v. Smith, 4 Paige, 92. Injury to property. The language of the Code of Procedure was : " for injuring or for wrongfully taking, detaining or converting property." Section 179. The definition of the phrase " injury to property," is given in section 3.S43, subdivision 10 of the present Code as follows : " An injury to property is an actionable act, ■whereby the estate of another is lessened, other than a per- sonal injury, or the breach of a contract." Action against a common carrier for non-delivery of goods, brought upon the implied undertaking of safe carriage, is an action of contract and does not fall within this section. Catlin V. Adirondack Co., 11 Abb. N. C. 377; (reversing 20 Hun, 19). An action of tort, however, will lie against a carrier for conversion of goods, entrusted to him for transportation. Ibid. AB,EEST. 9 As to action against an innkeeper for negligent loss of bag gage under the former Code, See — Burroughs ». Willett, 6 Abb. Pr. 37. Suit for recovery of money lost at play arises upon the implied contract, and does not sound in tort, and an order will not be granted therein. Tompkins v. Smith, 48 N. Y. Super. 117. Action against copartner for conversion of firm property, which does not contain allegations of a wrongful conversion, should be regarded as an action of contract and as such does not fall within this section. Goodwin ». Griffis, 88 N. Y. 639. Hitchcock V. Peterson, 14 Hun, 389. Madge ®. Puig, 13 Hun, 15. Arrest may be granted in suit to recover damages for care- less and negligent injury to the property of plaintiff. Keeler «. Clark, 18 Abb. Pr. 154. Hainea v. Jeroleman, 3 M'O. 196. And for an injury arising from the defendant's negligence, although the injury be not willful. Ritterman v. Ropes, 7 JST. Y. Civ. Pro. 893. Conversion. The disposal of personal property with intent to defraud creditors, will not render the offender liable to this remedial process if the property is so converted in a foreign State. Blason v. Bruno, 13 Abb. Pr. 265. Brown o. Ash bough, 40 How. Pr. 236. Claflin V. Frciikel, 29 Hun, 288. Though where the property is brought within this jurisdic- tion the offender is liable to arrest here, whether he could have been arrested or not, in the State in which the fraud was com- — ^ 10 PROVISIONAL REMEDIES. mitted ; the law of the forum and not of the place of the contract governing the remedy. Blason v. Bruno, supra. guard ». Whale, 11 Johns. 194. City Bank i). Lumley, 28 How. Pr. 397. Yates V. Blodgett, 8 How. Pr. 378. Northern Railway Co. ■». Carpentier, 13 How. Pr. 223. When goods are delivered to another upon an agreement that they shall be returned or their value paid, the right to the remedy by arrest for a conversion is not waived by the receipt of a partial payment in money and of due-bills for the residue. Person v. Civer, 39 How. Pr. 433. The taking of a judgment upon allegations of a sale aiijj delivery, will be deemed an election to waive the claim for cod version of goods deposited for sale. Fields «. Bland, 81 N. Y. 239. Morris v. Rexford, 18 N. Y. 557. Bank of Beloit v. Beale, 34 N. Y. 477. Railway shares with the coupons attached fall within the proper designation of personal property, and for their conversion the arrest may be had. No. Railway of France «. Carpentier, 13 How. Pr. 332. Eeal Property. The provisions of this subdivision apply to real as well as personal property, and an action for forcible entry under 2 Revised Statutes, section 4, page , will authorize an arrest. Welch V. Winterburn, 14 Hun, 519. Such, however, was not the construction placed upon the language of the former Code, which was held to be applicable only to personalty. Merritt v. Carpenter, 30 Barb. 61. Brush «. Mullen, 13 Abb. Pr. 343. Fullerton v. Fitzgerald, 18 Barb. 441, Qriswold ii. Sweet, 49 How. Pr. 171. ARREST. 11 The wrongful cutting down and carrying away of telegraph poles constitute an injury for whicli trespass quare clausum only lies, and, if committed in another State, the action being local, no arrest can be had. Am. Union Tel. Co. v. Middleton, 80 N. T. 408. Misconduct in office. Director of a corporation may be arrested at suit of a stock- holder for fraudulent acts in the disposition of corporate property. Crook «. Jewett, 12 How. Pr. 19. Stoll V. King, 8 How. Pr. 298. Officer of a foreign government for misconduct in his employment is liable to process, though the acts were committed in another jurisdiction. Peel V. Elliott, 16 How. Pr. 481. A register who . certifies to an erroneous return is liable to arrest under this section, although the search was made by a subordinate and without his personal knowledge. Van Schaick v. Sigel, 9 Daly, 383. In a professional employment. An attorney may be arrested in an action brought under this section, for moneys collected by him in the course of his professional employment. Stage V. Stevens, 1 Denio, 367. Smedes ®. Elraendorf, 8 Johns. 185. Yates V. Blodgett, 8 How. Pr. 278. Segelken v. M"yer, 94 N. Y. 486. And the attorney's liability remains the same if he resides in another State and the moneys were not collected by him within this jurisdiction. Yates V. Blodgett, supra. Fraud ; or deceit. Purchase of goods with an intent to convert them into prop- 12 PEOVISIONAL REMEDIES. erty incapable of being readily reached by execution, constitutes a fraud within the meaning of the statute. "Wallace v. Murphy, 33 How. Pr. 414. Any fraud which would avoid the contract will entitle the deceived person to this remedy. Ibid. The fraudulent act for which the arrest is sought must have been actually participated in by the defendant ; a mere con- structive guilt will not be sufficient to authorize the order. Caldwell's Case, 13 Abb. Pr. 405. Hathaway v. Johnson, 55 N. T. 93. Hoyt v. Godfrey, 88 N. Y. 669, and cases cited on page 3, ante. Matter of Holdforth, 1 Cal. 438. The act of an agent, therefore, does not afford a ground for the principal's arrest, without the latter's ratification or adop- tion of the fraud. Smith ®. Tracy, 36 N. T. 83. Birchall v. Strauss, 38 Barb. 393. People t>. Kelly, 35 Barb. 444. And a principal will be rendered liable by receiving goods obtained by means of the false representations of one who was his authorized agent. Mechanics' B'k s. N. T. & N. H. R. R., 13 N. y. 635. Griswold v. Haven, 35 N. Y. 595. Cosgrove ». Ogden, 49 N. Y. 355. Sharp V. Mayor of New York, 40 Barb. 356. Smith V. Frank, 3 Robt. 636. An action under sections 2864 and 2839 of the United States Statutes, for the value of merchandise forfeited for false entry, is not an action to recover damages for a fraud within the meaning of this section of the Code. United States v. Moller, 10 Benedict, 189. The question as to the right of arrest upon an execution AEKEST. 13 issued from the district court of the United States, dependent upon the law of the State of New York. Ibid. The fact that an insolvent debtor has, by omissions and informalities, rendered the assignment liable to be set aside as fraudulent in law, will not authorize his arrest unless there be actual fraud on his part. Birchell v. Straus, 8 Abb. Pr. 53. Fassett v. Tallmadge, 14 Abb. Pr. 193. Caldwell's Case, 13 Abb. Pr. 405. But a debtor who makes a representation which is false in fact, will be presumed to have intended the legitimate conse- quences of that act, and he cannot escape arrest on the ground that he did not intend to defraud the plaintiff. Whitcomb ». Salsman, 16 How. Pr. 533. An action charging that defendant conspired with officers of a company to cheat and defraud the company by transferring stock at par which was worth less, authorizes an arrest. Pierson v. Freeman, 77 N. Y. 589. See 50 Super. Ct. 367. Fraud in contracting the liability. This section was added in 1879. The language of the Code of Procedure was : " Where the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought." Section 179, § 4. Under this provision the fraud was not a traversable fact and should not be set forth in the complaint. McGovern ». Payne, 32 Barb. 83. Crandall i). Bryan, 15 How. Pr. 48. Smith V. Knapp, 3 N. T. 581. Corwin v. Freeland, 6 N. T. 660. 14 PROVISIONAL REMEDIES. And allegations in the complaint whicli were inconsis- tent with the statements of the affidavits upon which the arrest was sought, would prevent the issuing of the order, Wickes v. Harmon, 13 Abb. Pr. 476. Chambers v. Durand, 33 Super. Ct. 494. The amendment of 1879, adding this section to the Code, did not apply to- pending actions. Humphrey v. Hayes, 94 N. Y. 598. The fraudulent contraction of a debt in a foreign country, will render the person who committed the fraud liable to arrest, if he come within the jurisdiction of the courts of this State, although he would not have been so liable at the place of the commission of the offense. Brown «. Ashbough, 40 How. Pr. 326. Johnson i). Whitman, 10 Abb. K. S. 111. De Witt V. Buchanan, 54 Barb. 31. False representations in contracting a debt that are relied upon as the basis of an arrest, must be shown to be material and well calculated to deceive ; must be known to the defendant to have been false ; and the plaintiff must have given credit in consequence of relying upon them. Brown v. Ashbough, 40 How. Pr. 226. The defendant's knowledge of the falsity of the representa- tions and his intent to defraud thereby must be clearly shown. Brown V. Ashbough, supra. Nichols 11. Pinner, 18 N. Y. 295. Brainard v. Spring, 42 Barb. 470. ' Marsli c.Falker, 40 N. Y. 563. Claflin V. Frank, 8 Abb. Pr. 413. Positive and unequivocal statements that defendant has knowledge of certain facts, of which he was actually ignorant, if made with intent to deceive, will render him liable. Bishop ®. Davis, 9 Hun, 342. False representations, by a person who knows himself to be AEREST. 15 insolvent, of his ability to pay, by reason of whicn he obtained credit bring the case within this subdivision. Freeman v. Lelaud, 3 Abb. Pi-. 479. Scudder v. liaiiies, 16 How. Pr. 534. Nicho'.s V. Michael, 3:5 N. Y. 374. Wright V. Brown, 67 N. Y. 1. Mon-is V. Talcott, 29 Huu, 437. And procuring credit with a knowledge of inability to pay, and an intentional concealment of that fact, will render the person liable to arrest, although no direct misrepresentation was made. Morrison v. Garner, 7 Abb. Pr. 435. Nicliols 1). Michael, 33 N. Y. 274.' Hennequin «. ISlaylor, 24 N. Y. 139. Wright ■». Brown, 67 N. Y. 1. Pike V. Wieting, 49 Barb. 814. Byrd ». Hall, 3 Keyes, 646. Devoe v. Brandt, 53 N. Y. 462. Morris 1>. Talcott, 29 Hun, 438. But the concealment must be intentional, the merfe conceal- ment is not of itself sufficient. ' Nichols v. Michael, supra. The fraudulent intent may be evidenced by a concealment of material facts as well as by a direct misrepresentation. Belden v. Heuriques, 8 Cal. 87. Complaint und^r section 4. The complaint under this section is not a complaint upon the contract alone ; the contract is only one of the necessary aver- ments, and the fraud is an indispensable element in the plead- ing. Rowe V. Patterson, 48 Super. Ct. 349. Under this subdivision the f i-aud must be clearly alleged, and the complaint must present a distinct and definite issue as to the fraud relied upon. Easton ». Cassidy, 21 Hun, 459. Heoht V. Levy, 30 Hun, 58. Davis V. Robinson, 10 Cal. 4H. 16 PROVISIONAL EEMEDIES. Where the averments of the complaint are general and do ^ot set forth specific facts that would sustain the general allega- tions of frauds the complaint may be dismissed on the trial. Lawrence ». Poxwell, 49 Super. Ct. 377. Same Case, 4 N. Y. Civ. Pro. 340. Unless the complaint is presented upon a motion for an order under this section, or the affidavits show what the allegations of the complaint are, the order will he vacated. Lawrence v. Foxwell, 4 N. Y. Civ. Pro. 351. Straus V. Kris, 6 N. Y. Civ. Pro. 77. An action of debt to recover the value of merchandise for- feited for fraudulent -entry is not an action upon a contract within the meaning of this subdivision. United States v. Raid, 4 N. Y. Civ. Pro. 1. Proof of a debt in bankruptcy does not waive the fraud by •which it was contracted, and with the proper averments an action may be brought under this section. Ewart V. Schwartz, 48 Super. 390. § 550. Arrest in actions wlierein the remedy is dependent npon facts not incidental to the nature of the action. A defendant may also be arrested as prescribed in this title, in either of the following cases : 1. In an action to recover a chattel, when the chattel, or a part thereof, has been concealed, removed, or dis- posed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof. 2. In an action upon contract ; express or implied, other than a promise to marry, where the defendant has, since the making of the contract, or in contempla- tion of making the same, removed or disposed of his ARRKST. 17 property, with intent to defraud his creditors, or is about to remove or dispose of the same, with like intent. 3. In an action to I'ecover for money received, or to recover property, or damages for the conversion or nais- appUcation of property, where the money was received, or the property was embezzled, or fraudulently mis- applied, by a public officer, or by an attorney, solicitor or counsellor, or by any officer or agent of a corporation or banking association, in the course of his employment, or by a factor, agent, broker or other person in a fidu- ciary capacity. But this subdivision does not apply to an action to recover a chattel. 4:. In an action wherein the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the com-t as a contempt, where the defendant is not a resident of the State, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an order requiring the per- formance of the act will be rendered ineffectual. Action to recover a chattel. This subdivision is substantially the same as subdivi- sion 3, section 179, of the Code of Procedure, except the substitution of the word " chattel " for the phrase " per- sonal jDroperty unjustly detained." This subdivision has referenue to an Action for the recovery of a chattel, analogous to the common law action of replevin. Segelken v. Meyer, 94 N. Y. 488. Roberts d. Rtindt-l, 5 How. Pr. 337. Chappel V. Skinner, 6 How. Pr. 338. Seymour «. Van Curen, 18 How. Pr. 94. An order of arrest cannot be granted for the mere removal or concealment of property. It must appear that such removal or concealment was done with intent that it should not be found or taken, or to deprive the plaintiff of the benefit thereof. Elston V. Potter, 9 Bosw. 636. Mulvey v. Davison, 8 How. Pr. 111. 18 PROVISIONAL REMEDIES. Watson B. McGuire, 33 How. Pr. 87. Flour City Bank v. Hall, 33 How. Pr. 1. Pike V. Ladd, 4 Sand. 650. Arnold D. Shapiro, 29 Hun, 478. Sherill Roper, &c. Co. v. Harwood, 80 Hun, 9. Sherlock v. Sherlock, 7 Abb. N. S. 23. MuUer ■o. Perrin, 14 Abb. N. S. 95. Keirner v. Nagel, 1 E. D. Sm. 258. Josuez V. Murphy, 6 Daly, 339. The addition to the Code of the clause, " with intent that it should not be so found , or taken, or to deprive the plaintiff of the benefit thereof," renders inapplicable previous decisions to the contrary. Pike V. Ladd, 4 Sand. 650. Eemoval or disposal of property. Subdivision 5 of section 179, Code of Procedure, was : '■' When the defendant has removed, or disposed of his property, or is about to do so, with intent to defraud his creditors." ' The actual intent to defraud must be clearly shown, since that intent iS the gist of the provision. Pacific Ins. Co. v. Macliado, 16 Abb. Pr. 451. People v. Kelley, 35 Barb. 444. Flour Nat. B'k ®. Hall, 33 How. Pr. 1. Where an order of arrest is sought upon the ground that the defendant is about to dispose of his property with intent to defraud his creditors, evidence tending to convict the defendant of such charge must be presented, and the judge must pass upon that evidence. Courter v. McNamara, 9 How. Pr. 255. Action against person for misapplication of trust property. Subdivision 2 of section 179 of the Code of Procedure contained the provisions of this section. Under this subdisvison the complaint must show that the action is one in which an arrest may be had — must show the capacity in which the defendant received the property for which the suit is brought. An order of arrest would be iraproj)er if AEREST. 19 the complaint was simply for money had and received, or for goods sold and delivered. Segelkeu v. Meyer, 94 N. Y. i88. The object of the Code, however, was not to permit the allegation of the fiduciary capacity to be tried as are the allega- tions of fraud in subdivision 4 of the preceding section ; the nature of the capacity in which the property was received being ordinarily one of law. Ibid. To constitute a liability to arrest for misappropriation of moneys or property received in a fiduciary capacity, it must appear that the moneys or property were intrusted to defendant, and confidence was reposed in his integrity and fidelity and not in his credit or ability to pay ; and the phrase contemplates a case where good faith rather than a legal oMigation is the basis of the transaction. Stoll ». King, 8 How. Pr. 298. Scbudder v. Shiells, 17 How. Pr. 430. McBurney v. Martin, 6 Robt. 502. Robbins -a. Falconer, 43 Super. 863. Sutton V. De Camp, 4 Abb. N. S. 483. Fuentes ». Mayoiga, 7 Daly, 103. The true criterion by which to test the liability of a person under this section is the question, whether or not ho was bound in good faith to pay over or restore to his principal the identical ii;ioney or property that has come into his hands. Walter ■». Bennett, 10 K Y. 350. Vilmar v. Schall, 01 N. Y. 564. Mexico V. De Arangoiz, 5 Duer, 634. Buchanan Farm Oil Co. v. Woodman, 1 Hun, 641. Morange v. Waldron, 6 Hun, 529. Liddell v. Paton, 7 Hun, 106. Wallace ®. Castle, 14 Hun, 106. Therefore commission merchants or agents to whom property is intrusted for sale and \vho are only to account for the pro- 20 PROVISIONAL e;emi;dies. ceeds thereof, do not fall within the provisions of this subdivis- ion. Fuentcs v. Mayorga, supra. Sutton V. De Camp, supra. Eobbias v. Falconer, supra. Wood V. Henry, 40 N. Y. 124. Conaughty v. Nichols, 4a N. T. 83. Prouty V. Swift, 51 N. T. 594. Greentreo d. Rosenstock, 61 N. T. 583. Nor do brokers to whom stocks are given for sale and who are invested with a discretion in so doing. McBuiney v. Martin, 6 Robt. 503. Higgins V. Moore, 34 N. T. 417. Nor bankers with whom deposits are made subject to draft or order. Vilmar v. Schall, 01 N. T. 564. But a broker who receives money for a specific purpose and misapplies it, is liable for such breach of trust under this section. Dubois 1). Thompson, 25 How. Pr. 417. Noble V. Prescott, 4 E. D. Smith, 139. Barrett v. Gracie, 34 Barb. 20. Johnson v. Whitman, 10 Abb. N. S. 111. And so is a broker with whom money has been deposited to cover losses in purchase and sale of stock, and who refuses to pay it upon a proper demand. Clark V. Pinckney, 50 Barb. 236. Or to whom stock has been pledged as security for a usurious loan, and who refuses to return it on demand. Cousland c. Davis, 4 Bosw. 619. An agent to whom property has been intrusted for purposes of sale, and whose employment requires him to collect and remit the proceeds thereof, is liable. Stoll V. King, 8 How. Pr. 298. Frost V. McCarger, 14 How. Pr. 131. Duguid V. Edwards, 50 Barb. 301. AKBEST. 21 Turner o. Thompson, 2 Abb. Pr. 444. Chaine e. Coffin, 17 Abb. Pr. 441. Standard Sugar Eefinery «. Dayton, 70 N. Y. 486. A factor by whom moneys have been received for investment in a specified manner and who has diverted the same to other purposes, acts in a fiduciary capacity. Noble e. Prescott, supra. Or who has actually received the proceeds of a sale on account of his pHncipal, even though he was acting' under a del credere commission. Ostell c. Brough, 24 How. Pr. 274. Wallace v. Castle, 14 Hun, 106. When property is placed in the hands of anothei* person to sell, with the agreement that the proceeds of the sale, over the amount of the agent's compensation, are to be paid to the prin- cipal, the agent will be held liable for the repayment under this subdivision. Barrett v. Gracie, 34 Barb. 26. Holbrook «. Horner, 6 How. Pr. 86. A defendant who included plaintifE's claim against a vessel with his own in a suit and recovered both claims, upon a refusal to pay over the amount so collected or demanded, was held liable. Hall V. McMahon, 10 a.ob. Pr. 319. A guardian misapplying the trust estate, although he have the permission of the ward, is liable. Wheelock v. Elliott, 28 How. Pr. 89. A person liable for misappropriation of funds in such a capacity is not relieved of his liability by the giving and the acceptance of a draft or note for the amount, which is not paid at maturity. Kelly B. Scripture, 9 Hun, 283. Sliipman v. &hafer, 14 Abb. Pr. 449. To charge a defendant with conversion of moneys in this 22 PROVISIONAL EEMEDIES. capacity, it must be shown not only that he collected his money wliile acting as agent, but also that the conversion was made while the relation continued and while he was acting in a fidu- ciary capacity. Porter o. Hermann, 8 Cal. 635. Ife Exeat. Before the writ of ne exeat was specifically abolished, it was long a matter of doubt whether section 178 of the Code of Pro- cedure abrogated that remedy. The conflicting decisions upon the construction of this section the annotator deems it unneces- sary to cite. The word " danger " was suggested to the commissioners by a remark of the court in Mattocks v. Tremain, 3 Johns. Ch. '?6 ; and the word " inefllectual " by section 219 of the Code of Procedure. Commissioners' Report (1875), page 373. The provisions of subdivision 4 of this section furnish a substitute for the writ of ne exeat. Collins V. Collins, 80 N. Y. 24. Allen V. Hyde, 2 Abb. N. C. 197. Genesee River Bunk v. Mead, 18 Hun, 303. The real necessity for this writ is when the judgment may require the defendant to do some personal act ; such as the execution of a deed, or some act of that nature. Tills is the ground upon which it is considered to be still in force. Forrest v. Forrest, 10 Barb. 46. Brownell b. Akiu, 6 Hun, 378. It is always within the discretion of the court to refuse or grant the writ, and it should be issued with extreme caution. Pmtt V. Wells, 1 Barb. 425. Allen V. Hyde, 2 Abb. N. C. 197. Knickerbocker Life Ins. Co. v. Bcclesine, 11 Abb. N. S. 375. See next section and annotations thereto. auPvESt. 23 It should not be issued upon an ordinary legal demand, nor when the defendant's liability is in doubt. Allen ». Hyde, mpra. A mere intention to remove from the State does not bring the case within the provisions of this section ; and where a remedy is given to the plaintiff without recourse to this unusual process, the motion therefor will be denied. Genesee River Bank v. Mead, 18 Hun, 303. In a suit brought against an executrix, alleging the indebted- ness of the testator to the plaintiff ; the assignment to her of property immediately before his decease ; the fact that, she had filed no inventory and was about to depart from the State ; an order will not be issued for the arrest of the executrix. Ibid. The writ has been issued in cases where alimony has been ordered in divorce proceedings. Denton -o. Denton, 1 Johns. Ch. 264. Busbnell «. Boslinell, 7 How. Pr. 393. Forrest ®. Forrest, 5 How. Pr. 135. And in actions for an accounting, where the procedure was similar to that formerly followed by chancery courts. Porter v. Spencer, 1 Johns. Ch. 169. §551. Order of Arrest, How Granted and When, In a case specified in subdivision fourth of the last section, the order of arrest can be granted only by the court ; is always in its discretion ; and may be granted or served, either before or after final judgment, unless an appeal from the judgment is pending, upon which security has been given, sufficient to stay the execution thereof. In either of the other cases specified in the last 24 PROVISIONAL UKMEDIES. two sections, the order cannot be served after final judg- ment ; but it may be granted, where a proper case therefor is presented, at any time before final judgment. Compare Code of Precedure, sections 469 and 183. Amended in 187-7, c. 416, § 550. The clause of this section relative to the discretionary powers of the court in the granting of the order under subdivision four of the previous section, was intended, to settle the question in accordance with the opinion and practice generally prevailing ; it having been held in Gilbert v. Colt, Hopkins, 496, that the writ of ne exeat should be issued as of right. Commissioners' Report (1875), page 243. See citations under preceding section. The order of arrest under the final clause of this section may be issued after the decision of the court has been rendered, and before the entry of a iudgmi3nt thereon. Humphrey v. Hayes, 94 N. Y. 598. And after a judgment by default has been opened on defend- ant's motion. "Final judgment" meaning in this section the final determination of the rights of the parties. Mott «. Union Bank, 35 How. Pr. 333. S. C, 38N. Y. 18. An order of arrest issued by the judge, and not by the court, will be vacated on motion. Goldscljmidt v. Goldschmidt, 1 Law Brill. 75. But in the First Judicial District the application for an order under this section may be made to a judge in accordance with section 770 of this Code. Boucioault v. Boucicault, 21 Hun, 431. When a judgment by default is opened with leave to defend- ant to come in and defend, the judgment to stand meantime as security, an order of arrest may be made. Mott V. Union Bank, 38 N. Y. 18. AEBEST. 25 § 552. Efife-^t of foreign judgment. The recovery of judgment in a court, not of the State, for the same cause of action ; or, where the action is founded upon fraud or deceit, for the price or value of the property obtained thereby ; does not affect the right of the plaintiff to arrest the defendant, as pi'escribed in this title. Before the enactmEnt of this provision, the question as to the effect of a foreign judgment upon the merger of the original cause of action was entirely unsettled. That the right to arrest was not lost by reason of the recovery of a foreign judgment, was held in the following cases. , Wanzer v. De Baum, 1 E. D. S. 261. Greecbaiim v. Stein, 3 Daly, 333. Fellows V. Cook, 50 How. Pr. 95. Arthurton v. Dalley, 20 How. Pr. 311. The contrary opinion prevailed in the following cases. Goodrich V. Dunbar, 17 Barb. 644. Mallory v. Leach, 33 How. Pr. 507. Goodale v. Finn, 2 Hun, 151. This provision in the Code was intended to settle the ques- tion. Commissioners' Report (1 875), page 24R. And by this provision the right to arrest upon the original cause of action, where a judgment has been obtained in a foreign State, is placed beyond question. Baxter v. Drake, 85 N. Y. 503. The action should be brought upon the judgment and not upon the original cause of action. Baxter v. Drake, supra. Carter v. Hoffman, 2 N. T. Civ. Pro. 338. 26 PROVISIONAL REMEDIES. Where the orrler of arrest has been obtained upon a foreign judgment, the requirement of the Code having been complied with,, it will be upheld, even if an arrest had been ha(J in the action in another State. Carter v. Hoffman, lupra. § 553. Exemption t)f womaa from arrest. A woman cannot be arrested, as prescribed in this title, except in a case where the order can be granted only by the court ; or where it appears, that the action is to recover damages for a wiUful injury to person, character or property. Code of Procedure, section 179, last clause of subdivis- ion fifth. The concealmtot, removal and disposal of personal property by a woman will not authorize her arrest ; the injury must be willful. Tracy 11. Leland, 2 Sand. 739. Wheeler v. Hartwell, 4 Bosw. 684. Bat it was holden that the fraudulent abstraction of railway shares by a woman, and th'ir conversion ;.o money, would author- ize her arrest ; such conversion being a willful injury to property. No. Railway of Fiance v. Caipentier, 13 How. Pr. 333. See also Baldwin '. Kimmel, 16 Abb. Pr. 353, and note. Eobinson i>. Rivers, 9 Abb. N. S. 1-14. Eypert «. Bolenius, 3 Abb. N. C. 193. Breiman v. Paasch, 7 Abb. N. C. 249. M\isei-«. Miller, 13 Abb, N. C. 305, n. The larc-ny of goods by a woman renders her liable to arrest for a willful injury to property under this section, Muscr «. Miller, 12 Abb. N. C), 801. AEEEST. 27 § 554:. Discharge of lunatic^ idiot or infant. A limatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest, as a privileged person, in the discretion of the court. The apphcation for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him, for the pur- pose. This provision did not appear in the Code ' of Pro- cedure. Insane person, at common law, could not be discharged fiom arrest upon the ground of his insanity at the time of, or subsequent to, his arrest. Bush v. Pettibone, 4 N. T. 300. A person discharged from arrest on the grouild of his insan- ity, under the act of 1842, could be rearrested on his recovery. Ibid. Infancy is not of itself a sufficient reason for the discharge of a person arrested in a suit for a tort. Schuneman v. Paradise, 46 How. Pr. 426. By changing the form of the action to tort, an infant cannot b3 subjected to arrest, in a suit where he would not otherwise have been so liable. Taylor v. Van Keuren, 54 How. Pr. 25. ^555. Exemption of person sued as representative. A person prosecuted in a representative capacity, as heir, executor, administrator, legatee, devisee, next of kin, assignee, or trustee, cannot be an-ested, as prescribed in this title, except for his personal act. S8 PROVISIONAL REMEDIES. This section was modeled upon 2 R. S. 348, part, 3, chapter 6, title 1, § 9. Commissioners' Report (1875), page 244. The last clause of this section was substituted for the phrase " unless they shall have incurred a personal obliga- tion to pay the debt or demand claimed ;", and the words " legatee, devisee, next of kin," were inserted. §556. Order reo[uired for arrest ; how granted. An order for the arrest of a defendant, except as otherwise prescribed in section 551 of this act, must be obtained from a judge of the court in which the action was brought, or from any county judge. t Taken from section 180 of the Code of Procedure, with the exception of the clause relating to ne exeat, which was provided for in section 551, ante. Amended by act of 1877, oh. 416. The county named in the complaint as the place of trial is the county in which the action is brought. Gould ®. Chapin, 4 How. Pr. 185. Bangs V. Seliien, 18 How. Pr. 163. The term "county judge " includes the judges of the court of common pleas of the city and county of New York, and the latter may rightfully exercise any jurisdiction that is conferred upon the former. Matter of Morgan, 56 N. T. 639. A judge of the common pleas, therefore, may issue an order of arrest in an action pending in the supreme court. People «, Donohue, 15 Hun, 446. AEREST. 29 An order of arrest under section 650, subdivision 4, may be issued in the first district by a judge out of court. Lachenmeyer n. Lachenmeyer, 36 Hun, 543. Boucicault v. Boucicault, 21 Hun, 431. § 557. Proof necessary to procure order of arrest ; and the sufficiency of the affidavit thereof. The order may be granted, in a case, specified in sec- tion 649 of this act, where it appears by the affidavit of the plaintiff or any other person, that a sufficient cause of action exists against the defendant, as prescribed in that section. It may be granted, in a case specified in section 550 of this act, upon the hke proof that a suffi- cient cause of action exists against the defendant, as prescribed in that section, and of the other matters, extrinsic to the cause of action, specified in' that section. The affidavit may also contain any statement, tending to determine the amount of bail to be required. This section was amended by Laws of 1879, ch. 543. Code of Procedure, section 181, upon which this sec- tion was based, was as follows : "The order may be made, when it shall appear to the judge, by the affidavit of the plaintiff, or of any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 179. The provisions of this chapter shall apply to all actions included within the provisions of section 179, which shall have ]5een commenced since the thirtieth day of June, 1848, and in which judgment shall not have been obtained." Formal requisites of the affidavit. The statement of those facts that are essential to bring the application within the provisions of the Code, should be stated aO PROVISIONAL KEMEDIES. with particularity ; it is not sufficient to state the facts generally or in the language of the statute. Pindar ». Black, 4 How. Pr. 95. Crandall ». Bryan, 15 How. Pr. 48. Frost v. Willard, 9 Bavb. 440. Union Bank v. Mott, 9 Abb. Pr. 106. Draper ». Beers, 17 Abb. Pr. 163. McGilvery «. Morehead, 2 Cal. 607. For example, the mere statement of malice and want of probable cause in an application made in an action for malicious prosecution, is insuificient. The facts upon which the action is based must be stated, so as to enable the judge to draw there- from the propeir conclusions. Vanderpool «. Kissam, 4 Sand. 715. Grimes v. Davison, 2 Abb. N. C. 457. A statement that the magistrate before whom the prosecution was commenced immediately dismissed the complaint, is a suffi. cient prima facie statement. Goulds. Sherman, 10 Abb. Pr. 411. An averment that defendant has assigned or secreted his property with an intent to defraud his creditors, is not a suffi- cient statement, without allegations of the facts constituting the fraudulent act. Frost V. Willard, 9 Barb. 440. MuUer v. Perrin, 14 Abb. N. S. 95. Moller V. Aznar, 11 Abb. K S. 233. For obtaining credit on false representations, the misrepre- sentations should be specifically stated, and the respects wherein they are false particularized. Cummings v. Wooley, 16 Abb. Pr. 297, note. Thorpe v. Waddingham, 3 Daly, 275. A recital of the interview during which the representations were made to plaintiff, should be connected with the actual sales, by positive averments. Phelps D. Maxwell, 2 Abb. N. C. 459. ARfeEST. 31 The sales that were actually made upon the inducement of representations claimed to be fraudulent, must be shown. Young V. Weeks, 7 Daly, 115. An affidavit that sets forth a good cause of action of itself, is sufficient as a basis for the order. Ely -0. Mumford, 47 Barb. 629. Pierson v. Freeman, 77 N: Y. 589. Prichard v. Owen, 6 Week. Dig. 347. Where arrest is sought under section 649, subdivision 4, the moving affidavits must show that the complaint contains the necessary averments, or the complaint itself must be presented on the motion. Lawrence v. Foxwell, 4 N. Y. Civ. Pro. 851. Straus «. Kreis, 6 N. Y. Civ. Pro. 77. See page 15, a7ite, as to requisite of complaint under section 549, subd. 4. The complaint should not recite facts upon which the plaint- iff relies to obtain an arrest, unless those facts are essential to the cause of action itself. Bowery Bank v. Duryee, 74 N. Y. 491. Field v. Morse, 8 How. Pr. 47. Clark V. Harwood, Id. 473. Chsuy V. Garbutt, 5 How. Pr. 467. Sellar v. Sage, 13 How. Pr. 230. Latham v. Westervelt, 36 Barb. 356. Short ». Barry, 39 How. Pr. 313. Taylor v. Faas, 14 Hun, 166. Duncan v. Guest, 34 Hun, 639. Eobbins v. Falconer, 43 Super. 363. And such recitals, where they are not necessary to the state- ment of the cause of action, will be stricken out on motion. Field V. Morse, supra. Seller v. Sage, supra. The averments may be made on information and belief, when the facts are not within the personal knowledge of the affiant. Matoon v. Eder, 6 Cal. 57. Whitlock V. Roth, 5 How. Pr. 143. 32 PROVISIONAL REMEDIES. Bell V. Mali, 11 How. Pr. 355. Cook «. Roach, 21 How. Pr. 153. Satow V. Reisonberger, 35 How. Pr. 164. Crandall v. Bryan, 5 Abb. Pr. 163. Peel V. Elliott, 7 Abb. Pr. 433. When the affidavits are made upon information and belief, the sources and nature of the information should be specifically set forth. De Nierth «. Sidner, 35 How. Pr. 419. Crandall v. Bryan, 15 How. Pr. 48. Blason v. Bruno, 12 Abb. Pr. 365. Des Weerth «. Peldner, 16 Abb. Pr. 395. City Bank v. Lumley, 28 How. Pr. 397. The nature, quality and means of information must be given, so that the judge can be able to determine whether the belief is well founded. Crandall v. Bryan, supra. W])itlook V. Roth, supra. Dreyfus o. Otis, 54 How. Pr^ 405. The sources of the information, the terms by which it was communicated, and the reason why the affidavit was not made by the person who is possessed of the positive knowledge must be set forth. Bell «. Mali, 11 How. Pr. 354. Peel ®. Elliott, 18 How. Pr. 481. Cook «. Roach, 31 How. Pr. 153. Satow !). Reiseuberger, 35 How. Pr. 164. De Nierth v. Sidner, 35 How. Pr. 419. Knapp «. Bronne, 6 Week. Dig. 570. Hecht B. Levy, 20 Hun, 53. Where the information is derived from written instruments, either the papers themselves or properly authenticated copies of. them, should be produced if their production is possible. De Nierth v. Sidner, supra. It is not absolutely indispensable that the fact should be stated that an action has been commenced or is about to be commenced. Pindar v. Black, supra. City Bank v. Lumley, 33 How. Pr. 397. A It] JEST. 33 A verified complaint may be used upon an application, and regarded as an affidavit, when presented with other aflidavits. Brady v. Bissell, 1 Abb. Pr. 76. Turner v. Thompson, 2 Abb. Pr. 444. Palmers. Hussey, 59 N. Y. 047. But the order will be refused if the affidavits state facts that are inconsistent with the allegations of the complaint. Seymour «. Van Curen, 18 How. Pr. 95. Wicker «. Harmon, 21 How. Pr. 463. Steele v. Palmer, 7 Abb. Pr. 181. Corwin v. Freeland, 6 N. Y. 560. Bringing an action in contract is a waiver of a right to arrest for the tort, if plaintiff had a choice of concurrent remedies. Fields ». Bland, 81 N. Y. 239. Goodwin «. Griffis, 88 N. Y. 639. And the receipt of a partial payment for goods sold is a waiver of any claim to arrest that might have existed for fraud or deceit. Person v. Giver, 38 How. Pr. 139. Perfecting bail upon an arrest does not waive the defendant's right to move to vacate the order for defects in the affidavit. "Warren v. Wendall, 13 Abb. Pr. 187. Col. Ins. Co. V. Fores, 8 How. Pr. 353. Wicker b. Harmon, 21 How. Pr. 463. § 558. When order may be graixted ; effect of complaint subsequently made. Subject to the provisions of the last preceding article, the order may be granted at any time, after the com- mencement of the action. It may also be granted to accompany the summons. But at any time after the filing or service of the complaint, the order of arrest must be vacated on motion, if the complaint fails to set 3 34 PROVISIONAL REMEDIES. forth a sufficient cause of action, as required by the last section. Code of Prooedui-e, part of section 183, with amendment of 1879, tih. 542. A judgment by default, modified by an order permitting defendant to come in and defend, with the direction that the judgment stand as security for the claim, is not a final determi- nation of the rights of the parties, and is no legal obstacle to the issuing of an order of an-est. Mott V. Union Bank, 38 N. T. 18. To justify the vacation of an order of arrest under the last clause of this section, it must affirmatively appear by the com- plaint that the cause of action is such, that iu no event could the defendant be arrested under sections 549 or 550. Sloan V. Livermore, 55 How. Pr. 85. Genesee River B'k v. Mead, 18 Hun, 308. ■Williams v. Noi'toti, 54 How. Pr. 509. Thompson i). Friedberg, 54 How. Pr. 519. Mather v. Hannaur, 55 How. Pr. 1. Taylor v. Faas, 14 Hun, 166. Bowery Bank ». Duryee, 74 N. Y. 491. §559. Security upon order of arrest granted by judge. Except when the action is brought for a cause specified in subdivision third of section 549 of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking on the part of the plaintiff, with two sufficient sureties, to the effect that, if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he ARREST. 35 may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least equal to one-tenth of the amount of bail required by the order, and not less than $250. Amended by Laws 1879, ch. 543. The Code of Procedure, section 182, provided for a written undertaking with or without sureties, on the part of the plaintiff, to the effect that, if the defendant recovered judgment, the plaintiff would pay all costs that might be awarded to defendant, and all damages he might sus- 'tain by reason of the arrest ; and that the undertaking should be at least for $100. The giving of an undertaking is absolutely necessary to con- fer upon the judge jurisdiction to grant the order ; and without it the order is void (under Rule 4, 1858). Newell V. Dorau, 21 How. Pr. 437. The undertaking need not be executed by the plaintiff. It is sufficient if it be executed by sureties with his joinder. Bellinger ». Gardner, 3 Abb. Pr. 441. Asking !). Hearns, 3 Abb. Pr. 184. Courter v. McNamara, 9 How. Pr. 255. The resident minister of a foreign State, authorized to insti- tute suit in behalf of his government, may execute an under- taking for the plaintiff. Mexico ». Arrangois, 11 How. Pr. 1 . Baxter ». Drake, 23 Hun, 565. The omission of the acknowledgment, if the undertaking be otherwise sufficient in form, may be amended by leave of court, by the addition of such acknowledgment. Conklin a. Dutcher, 5 How. Pr. 386. And any informality in the execution of the instrument may be cured by amendment, in the discretion of the court, by nunc pro tunc order. Bellinger v. Gardner, 13 How. Pr. 381. 36 PROVISIONAL EEMEDIES. And a plaintiff may be so relieved from an inadvertent omis- sion to file the undertaking. Leffingwell v. Chave, 19 How. Pr, 55, The indorsement of the judge's approval upon the under- taking is necessary, and without it the proceedings are irregular and will be vacated. Newell ». Doran, 31 How. Pr. 427. 560. Security upon an order of arrest granted by the court. Where the order can be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is required, its form, and the security to be given thereupon, must be such as the court prescribes. This section did not appear in the Code of Procedure. It applies to ne exeat. 561. The order of arrest ; its contents and execution. The order must be subscribed by the plaintiffs attor- ney, and, except where it is granted by the court, by the judge. It may be directed, either to the sheriff of a par- ticular county, or, generally, to the sheriff of any county. It must require the sheriff forthvnth to arrest the defendant, if he is found within his county ; to hold him to bail in a specified sum ; and to return the order, with his proceedings thereunder, as presciibed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that ARREST. 37 case, he cannot be arrested afterwards under the same order. The substance of this section appears in the Code of Procedure, § 183. The order of arrest should contain a recital of the section and subdivision of the Code under which it issued ; the omission of this requirement, however, is not fatal. Tracy v. Veeder, 35 How. Pr. 200. The order may be taken against a defendant in a fictitious name when the real name is unknown, if the moving paper states the facts. Crandall ®. Beach, 7 How. Pr. 271. Pindar v. Black, 4 How. Pr. 95. Order will be set aside unless it be subscribed by the attorney. Thompson b. Friedberg, 54 How. Pr. 519. Though the irregularity may be corrected by amendment. Mather v. Harinaur, 55 How. Pr. 1. §562. Delivery*of copies to defendant. Filing of original papers. The order of arrest, or, where it is granted by the court, a certified copy thereof, subscribed by the plaint- iff's attorney ; and in either case, the papers upon which the oz'der was granted, with the undertaking, if any, must be dehvered to the sheriff, who, upon arresting the defendant, must dehver to him a copy thereof. The papers, upon which the order was granted, with the undertaking, if any, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in section five hundred and ninety of this act. Amended in 1879, by requiring the filing of the under- taking. 38 PEOVISIONAL EEMEDIBS. The Code of Procedure, section 184, was: "The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant shall deliver to him a copy thereof." The failure of the sheriff to serve the copies required by the Code, is an irregularity of -which the defendant cannot take advantage to secure his discharge from arrest, the requirement being merely directory. A motion may be made by defendant, and an order will thereupon be granted by the court with costs, for the delivery of the papers. Keeler v. Belts, 3 Code E. 183. Barker v. Cooke, 40 Barb. 354. S. C, 25 How. Pr. 190. See Courier v. McNamara, 9 How. Pr. 257. 563. Execution of order of arrest. The sheriff must execute the order by arresting the defendant, if he is found within his county, and keeping him in custody, until discharged by law. Code of Procedure, part of section 185. The arrest may be made by the sheriff or by any deputy either specially appointed therefor, or one who has a general commission. Hunt V. Burrel, 5 Johns. 137. Boughton «. Bruce, 20 Wend. 284. Hall V. Fisher, 9 Barb. 17. Must be made within the county within which the officer is authorized to act. Farmers' L. & T. Co. v. Dickson, 17 How. Pr. 477. Dcvenege v. Dalby, 1 Doug. 883. Chase v. Joyce, 4 Maule & S. 413. Hammond ®. Taylor, 3 B. & Aid. 408. Storer v. Rayson, Id. 158. AKREST. 39 The rigtt to enter a dwelling is of tbe common law, and the officer who attempts to serve the process, acts at his peril. People y. Hubbard, 24 Wend. 369. Curtis V. Hubbard, 4 Hill, 437. Wait's Practice, vol.. 1, page 6.58. Tbe dwelling, within the meaning of the law, is the prem- ises which is occupied by the party against whom the precept runs ; is not necessarily a building, but the word embraces any lodging-place. Williams v. Spencer, 5 Johns. 352. The sherifF or other officer cannot force an entrance by breaking the outer door. Curtis «. Hubbard, 4 Hill, 437. Glover v. Whittenhall, 6 Hill, 597. Haggerty v. Wilbur, 16 Johns. 387. Hubbard «. Mack, 17 Johns, 137. Allen V. Martin, 10 Wend. 801. Johnson v. Leigh, 6 Taunt. 346. Morrish v. Murray, 13 Mees. & Wels. 53. The arrest must be by an actual assumption of control over the person of the defendant, and a consequent restraint of his personal liberty. Harrison d. Hodgson, 10 Barn. & Cress. 445. Howden ®. Standish, Man. & Grang. 531. Russen v. Lucas, 1 C. & P. 153. Gold V. Bissell, 1 Wend. 310. ' Jones V. Jones, 13 Ired. 448. Field ». Ireland, 31 Ala. 340. Sandon v. Jervis, 1 Ell., B. & Ell. 946. Genner «. Sparks, 6 Mod. 178. §564. Persons privileged from arrest. Discharge of privileged person. This title does not abridge or affect a privilege from arrest given by law, or a right of action for a . breach thereof. A privileged person is entitled to be discharged 40 PEOVISIONAL KEMEDIES. from arrest, where other provision is not made therefor by law, by the court, or a judge thereof ; or by the county judge of the county, or a judge of a, superior court of the city, where the arrest was made. The order must be made, upon proof, by affidavit, of the facts entitling the applicant to the discharge ; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both. This provision was not in the Code of Procedure. It affirms the common law rights of privilege. To whom the privilege is due. Members of Congress, except in cases of treason, felony and breach of the peace, during their attendance at the session of their respective houses, and in going to and returning from the same. Constitution U. S. Art. I. § VL 1. See Nones ». Edsall, 1 Wall. Jr. 189. Coxa ». McClenachan, 3 Dall. 478. Lewis B. Elmendorf, 2 Johns. Cas. 233. All persons iia the public service are exempt from arrest upon civil process while emploj'ed in their duties as such. The rule is different, however, where the process is issued upon a charge of felony. United States v. Kirby, 7 Wall. 483. The privilege is extended to all persons whose attendance \ipon the court is necessary to the promotion of the ends of jus- Jice ; and includes parties to the suit, jurors, officers of the court, and witnesses while engaged in the performance of their respec- tive duties. Lyell D. Gondwin, 4 McLean, 29. Smythe «. Banks, 4 Dall. 329. Members of the Legislature are entitled to the privilege while' in attendance, and during the time necessarily occupied in going to and returning from the sessions. 1 R. S. 154, Sections 6 to 10, 5th Ed. 455. Colvin V. Morgan, 1 Johns. Ciis. 416. ARREST. 41 And officers of that body. Matter of Potter, 55 Baib. 635. An elector, when arrested on election day, may be thereafter arrested on the same process, if he were discharged. Petrie ». Fitzgerald, 1 Daly, 401. See 1 R. S. 5th Ed. 418, for privilege of electors. JPolicemen, while actually on duty, were afforded protection by Laws of 1860, p. 466, section 34 ; but this privilege was extended only to an officer while actually upon duty, and was held not to extend to other members of the force. Hart V. Kennedy, 15 Abb. Pr. 290. For exemptions of militiamen and marines see, Bliss' Code, vol. 1, page 489, and, People V. Campbell, 40 N. Y. 133. This exemption is applicable to witnesses who are in good faith in attendance upon any legal tribunal, and embraces the time occupied in going to and returning from the place of trial. Nichols v. Horton, 14 Fed. Rep'r, 327. Section 860 of the Code of Civil Procedure, is as fol- lows : "A person duly and in good faith subpcenaed or ordered to attend, for the purpose of being examined, in a case where his nttendance may lawfully be enforced by attachment, or by commitment, is privileged from arrest in a civil action or special proceeding, while going to, remain- ing at, and returning from, the place Where he is required to attend." The power of the court is not limited by statute, and it may, independently of statutory provisions, protect its witnesses. Lamkin ®. Starkey, 7 Hun, 479. A witness is privileged from the time of the commencement 42 PROVISIONAL REMEDIES. of action until the expiration of a reasonable time to enable him to return to bis residence. Brett V. Brown, 13 Abb. N. 9. 295. The privilege extends to a non-resident witness. Brett V. Brown, supra. Person v. Grier, 06 N. Y. 124. Jenkins ®. Smith, 57 How. Pr. 171. ' Seaver «. Robinson, 3 Duer, 633. « A resident witness, however, is not exempt from the service of summons. Frisbie ». Young, 11 Hun, 474. Whether or not there exist a distinction between resident and non-resident witness, is a matter of doubt. Person v. Grier, 08 N. Y. 124, and conflicting cases there cited. The privilege is a personal privilege, and may be waived by the person who is entitled to the exemption. Petrie v. Fitzgerald, 1 Daly, 401. Cole V. McClellun, 4 Hill, 59. The voluntary attendance of a witness does not entitle him to the privilege. Hardenbrook's Case, 8 Abb. Pr. 416. Stewart s. Howard, 15 Barb. 26. Petrie v. Fitzgerald, supra. The common law method of redress for a witness who was arrested, when he was entitled to the exemption, was by applica- tion to the court from which the process issued. Lyall B. Goodwin, 4 McLean, 29. Hayton ». Wilkinson, 1 Am. L. J. 260. Under the Code, the remedy is by application under section 564, and not by habeas corpus. Matter of Latnpert, 21 Hun, 154. AEREST. 43 565. Privilege of officers of courts of record. An officer of a court of record, appointed or elected pursuant to law, is privileged from arrest, during the actual sitting, which he is required to attend, of a term of the court of which he is an officer, and no longer ; but an attorney or counsellor is not thus privileged, unless he is employed in a cause, to be heard at that term. Compare 3 R. S. 290, § 86. The sheriff is privileged only during the actual session of the court of which he is an officer. The present provision of the Code is simply an affirmance of the law as it previously existed. Hill V. Lett, 10 How. Pr. 46. Attorneys and counsellors are not exempt while attending out of court before a judge. Cole V. McClellan, 4 Hill, 59. To be entitled to the right, the attorney must be an actual pi'actitioner and engaged at the term upon which he is in attendance. Corey v. Eussell, 4 Wend. 204. The privilege may be waived by an attorney, and the waiver may be inferred from his acts. Cole V. McClellan, supra. ^566. Defendant arrested to have twenty days to answer. Except where an order of arrest can be granted only by the court, a defendant, arrested before answer, has 44 PKOVISIONAL EEMEDIES. twenty days, after the arrest, in which to answer the complaint ; and judgment must be stayed accordingly. Substituted for part of Code of Procedure, § 183. §567. Application to vacate order of arrest. Time of making. Except where an order of arrest can be granted only by the court, a defendant, arrested as prescribed in this title, may, at any time before final judgment, or, if he was arrested within twenty days before final judgnaent, at any time within twenty days after the arrest, apply to vacate the order of arrest ; or to reduce the amount of bail ; or to increase the security given by the plaintiff ; or for one or more of those forms of rehef, together, or in the alternative. In a case where the order of arrest can be granted only by the court, a like application may be made, at any time within twenty days after the arrest ; and an application to increase the security given by the plaintiff, may be made at any time before final judgment. See Code of Procedure, §§ 183 and 204. Final judgment was defined as the final determination of the rights of the parties, in a question arising under section 551, ante; and conaequently the term was not applicable to a case, in which judgment by default had been entered, and the default opened with leave to defendant to come in and defend, the judg- ment to stand as security meantime. Mott V. Union Bank, 83 N. Y. 18. The motion may be made after the rendition of a verdict and before the entry of judgment. Fueutes d. Mayorga, 7 Daly, 103. The right to make the motion under this section is not waived by obtaining an extension to time of answer. Col. Ins. Co. a. Force, 8 How. Pr.. 353. AEKEST. 45 But, as to the effect of an answer or of an appearance upon tlie right of a person to claim a privilege from arrest, see — Hardenbrook's Case, 8 Abb. Pr. 416. Stewart v. Howard, 15 Barb. 36. Pixley V. Winchell, 7 Cow. 366. Dix V. Palmer, 5 How. Pr. 333. Petrie «. Fitzgerald, 1 Daly, 401. Perfecting bail upon an arrest does not act as a waiver of the right to move to vacate the order. Wickes V. Harmon, 13 Abb. Pr. 476. Warren «. Wendell, 13 Abb. Pr. 187. Knickerbocker Life Ins. Co. v. Ecclesine, 6 Abb. N. S. 9. Mackay «. Lewis, 7 Hun, 83. The motion is premature if made before the arrest has been actually made, and will not be entertained by the court. Kern v. Rackow, 44 How. Pr.44^. Gedney v. Haas, 50 How. Pr. 310. When a motion to vacate an order of arrest is made withip twenty days after judgment, and is denied with leave to renew, the new motion must be made within the statutory period, and the provision of the order giving permission to renew the motion does not extend the time within which the application must be made. Wheeler v. Brady, 3 Hun, 347. Mills V. Rodewald, 13 Hun, 439. The motion when once denied cannot be renewed without leave of court j and the court will grant such permission only for cause. Lovell V. Martin, 31 How. Pr. 338. The renewal of a motion under leave of court, is a waiver of the right to appeal from the denial of the first motion. Harris v. Brown, 98 N. Y. 390. 46 PEOVISIOWAIi EKMEDIE8. § 568. Application to vacate order. How and to whoni made. An application, specified in the last section, may be founded only upon the papers upon which the order was granted ; in which case, it must be made to the court, or, if the order 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 ; and the apphcation must be heard upon those papers only. 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 order 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 of arrest recited in the order, and no other, unless the defendant rehes 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. The following note was apjDended to the commissioner's draft of this section, in their report of 1875. " This section is offered as a substitute for section 205, Code of Procedure, for the purpose of settling certain questions which have arisen under that section and section 204 ; as, whether, in an action in the supreme court, a county judge may vacate an order of arrest which he has granted." Rogers ». McElhone, 12 Abb. Pr. 393; S. C, 30 How. Pr. 441. "Whether the motion, if made upon notice, can be made at chambers before any judge of the court, except the one who granted the order, Id.; and whether, in like case, the plaintiff can sustain his order of arrest upon new grounds." Scott ».. Williams, 23 How. Pr. 393. Stelle V. Palmer, 7 Abb. Pr. 181. AEREST. 47 So much of this section as requires motions to vacate orders upon new papers, to be made " to the court, or, if the order was granted by a judge out of court, to any judge of the court upon notice," is not in conflict with the provisions of 769 of the Code ; and the judge who grants the motion in the first district, is not authorized to entertain the motion elsewhere. Sutton V. Sabey, 33 Huu, 557. Motion upon the papers. By moving upon the plaintiff's papers, the defendant admits the truth of the allegations set forth therein. Lovell V. Martin, 21 How. Pr. 238. Hathorn v. Hull, 4 Abb. Pr. 327. Mai-tin ». Vanderlip, 3 How. Pr. 265. The papers themselves must be submitted to the court, and not merely set out in an affidavit. Kerru. Raokow, 44 How. Pr. 443. Gedney v. Haas, 50 How. Pr. 310. Order of arrest will be vacated, where the want of jurisdic- tion of the court appears upon the papers. Am. Union Tel. Co. v. Middleton, 80 N. Y. 408. And where it appears that no cause of action exists. Dixon 1). Beach, 1 Law Bui. 38. Or when there is a joinder of causes, upon some of which no arrest could be legally had. Toffey i>. Williams, 3 Hun, 217. Bowen v. True, 53 N. Y. 640. Madge v. Puig, 71 N. Y. 608, and cases cited, ante, page 4. Motion upon new papers. In cases in which the cause of action and the grounds upon which the arrest is obtained are identical, the controversy should be left to the final investigation of the cause upon the trial, and should not be determined upon affidavits. Barret v. Gracie, 34 Barb. 20. Eli V. Mumford, 47 Id. 629. 48 PEOVISIONAL REMEDIES. MeiTitt 1). Heoksber, 50 Id. 437. Nelsoa v. Blanchfield, 54 Id. 630. Geller v. Seixas, 4 Abb. Pr. 103. Faiis V. Peck, 10 Abb. N. S. 55. Elwood «. Gardner, 10 Abb. N. S. 238. Frost V. McCarger, 14 How. Pr. 131, Stuyvesant ». Bowran, 34 How. Pr. 51. Welch !). Winterburn, 14 Hun, 518. Peck 11. Lombard, 23 Hun, 68. Solomou V. Waas, 2 Hilt. 179. Merwin v. Piayford, 5 Rob. -703. Jarolauski v. Saunderson, 1 Daly, 333. This rule, however, has not been uniformly adhered to, and the embarrassing conflict of decisions in relation thereto prob- ably arose from the fact that in the Code of Procedure the present distinction between arrests in actions of tort and arrests granted for extrinsic facts was not clearly maintained. Consult, Hernandez v. Carnobelli, 10 How. Pr. 483. Mexico V. Arrangois, 11 Id. 9. Cady V. Edmonds, 13 Id. 197. Chapin v. Seeley, 13 Id. 490. Barron «. Sand ford, 14 Id. 443. Sachs V. Bertrand, 22 Id. 95. Union Bank v. Mott, 6 Abb. Pr. 513. Allen D. McCrassen, 33 Barb. 662. Mulry v. Hecksher, 50 Id. 453. Under the provisions of the Code of Procedure, court could not determine upon affidavits whether or not the defendant in receiving moneys acted in a fiduciary capacity. Swift V. Wylie, 5 Robt. 680. Butler ». Mcllvaine, 31 How. Pr. 379. Jananique v. DeLuc, 1 Abb. N. S. 419. The plaintiff may offer evidence of concurrent frauds, Com- mitted by defendant, to show his intent in the commission of the acts that are relied upon as fraudulent. Ballard ». Fuller, 32 Barb. 68. Scott V. Williams, 14 Abb. 70. Stewart v. Potter, 37 How. Pr. 68. AEKEST. 49 Stipulation not to sue. When the order is vacated on the plaintiff's papers, as matter of defendant's right, the court cannot annex a condition to the granting of the release. ~Tompkins v. Smith, 1 N. Y. Civ. Pro. 398. But when the order is vacated upon the ground that there is not sufficient evidence to charge the defendant with the tort, and the court is satisfied that there was no malice in the arrest, the discharge m.ay be granted upon condition that defendant shall stipulate not to sue for the arrest. Northern Railway v. Carpentier, 4 Abb. Pr. 47. And this seems to be the rule: that where the arrest was groundless, and defendant has a right to be discharged there- from, the court should vacate the order unconditionally. Wilder v. Guernsey, 8 Weekly Dig. 107. Tompkins u. Smith, supra. Faulkner v. Morey, 22 Hun, 379. Mayer ■». Rothschild, 59 How. Pr. 510. And may require the stipulation when the injury complained of is matter of doubt, and there was apparently no malicious intent in applying for the order. Merchants' Bank v. Dwight, 13 How. Pr, 366. Stewart ii. Potter. 37 How. Pr. 68. Alden a. Sarson, 4 Abb. Pr. 102. Salhinger v. Adlcr, 2 Rob. 704. Morange a. Waldron, 6 Hun, 529. Houget V. Levy, 1 Law Bui. 10. The court has, also, required, as a condition to the granting of tbe order, that defendant deliver to a receiver the property in controversy. Glenton v. Clover, 10 Abb. Pr. 423. The discretion of the general term in imposing a condition upon the vacation of an order, is not reviewable at a special term. Edgerton «. Ford, 11 Abb. Pr. 415. 4 50 PROVISIONAL REMEDIES. §569. Repealed by Laws 0/1.811, c. 416, § 556. The provision was as follows : "Upon the hearing of such an application, the court or judge must assume the truth of each allegation of the complaint, which is essential to sustain the order of arrest, and a conflict of evidence may be taken into consideration for the purpose of fixing the amount of bail, or of the security to be given by the plaintiff." §570. Repealed by satne chapter and section of Laws of 187Y. "In a case where the plaintiff's right to arrest the defendant depends partly upon allegations extrinsic to the complaint, the truth of those allegations must be determined, as a question of fact by the court or judge, upon the application to vacate the order of arrest. But the hearing may be adjourned, to enable the parties to procure further evidence, either by affidavit or by deposition taken before a referee, appointed for that pur- pose by the court or judge." §571. Repealed by same chapter and section of Laws of 1811. " The granting or denial of such an application, founded only upon the papers upon which the order of arrest was granted, does not prejudice a subsequent application, seasonably made, founded upon proof, by affidavit, on the part of defendant ; and the granting or <]f^nial of the application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint, which had not been made at the time of AEREST. 51 the former application, to set forth a cause of arrest sufficient to entitle the plaintiff to the order of arrest upon the ground recited therein." The commissioners' note to the last section was as follows : " The foregoing is believed to state the correct practice, and is proposed chiefly to secure uniformity ; but the last clause is intended to abrogate a doctrine which finds some countenance in the head-note^ at least, of Stelle v. Palmer, 1 Abb. Pr. ISl, — namely, that the plaintiff may rely upon one ground to procure the order of arrest, and then set forth a different ground in his complaint." §572. Supersedeas, unless defendant is charged in execution. Except in a case where an order of arrest can be granted only by the court, if the defendant is m actual custody, by virtue of an order of arrest in the action, or upon a surrender in exoneration of his bail, and the pla,intiff neglects to enter judgment in the action, within one month after it is in his power so to do ; or neglects to issue execution agaiiist the person of the defend- ant, within three months after the entry of judgment ; or if the surrender was made after judgment, within three months after the bail are exonerated thereupon ; the defendant must, on his application made upon notice to the plaintiff, be discharged from custody, by the court in which the action was commenced, or by a judge thereof, within the coilnty where the defendant is in custody ; unless reasonable ground is shown why the apphcation should not be granted. A defendant, dis- charged as prescribed in this section, shall not be arrested, upon an execution issued upon a judgment in the action. Compare Code of Procpdure, § 288. This section was amended bij Laws of 1877, c. 416, and by Laws of 1882, c. 397. 52 PEOVISIONAL REMEDIES. The date of the actual entry of judgment, is to be regarded in the cotaputation of time for charging in execution ; and upon plaintiff's neglect to enter the judgment, he may be compelled so to do. Lippman v. Peteisberger, 9 Abb. Pr. 209. Carter d. Loomis, 3 Abb. N. S. 395. Standaclier v, Pregenzer, 53 How. Pr. 76. The provisions of this section are applicable only to a defendant who is in actual custody, and supersedeas will not be issued where he has been released on bail. Merchants' Bank v. Mosher, 54 How. Pr. 415. Bostwick ■v. Goelzel, 57 N. T. 583. Corley v. GrifEen, 36 N. Y. Super. 515. Schmidt v. Heitner, 45 N. Y. Super. 334 Watt V. Healy, 23 Hun, 491. Van Tassel v. Marks, 4 Law Bui. 19. And the fact that the sureties have failed to justify, the relief will not be granted if the sheriff has not taken defendant in custody. Watt V. Healy, supra. The object of the statute is to afford relief to persons under- going close confinement only. Watt B. Healy, supra. Sumner ». Osboru, 33 Hun, 13. If not discharged upon supersedeas, the defendant remains liable, after the expiration of the specified time, to arrest upon the execution. Smith ®. Knapp, 30 N. Y. 581. Bostwick 11. Goetzel, 57 N. Y. 383. Where an order of arrest has been discharged upon a default arising from the attorney's mistake as to the return day of the motion, the discharge may be vacated, even after defendant's release, and he may be taken into custody on the execution. Schelly ». Zink, 13 Hun, 538. Though when the order has been vacated on the merits, defendant cannot be taken on final process. Meech v. Loomis, 28 How. Pr. 309. AKKEST. 53 The motion for discharge on the ground that jadgment was not entered within a month after he was able so to do, may be made in the court in which plaintiff is in custody, though not in the district wherein the action was liable or the adjoining district. Sumner v. Osborn, 23 Plun, 13. Appeal lies from an order granting a supersedeas. Wells V. Jones, 3 Abb. Pr. 20. §573. Discharge upon bail or deposit. The defendant, at any time before he is in contempt, where the order can be granted only by the court, or, in any other case, at any time before execution against his person, must be discharged from arrest, either upon giv- ing bail, or upon depositing the sum specified in the order of arrest. The defendant may give bail, or make the deposit, immediately upon his arrest, at any hour of the day or night ; and he must have reasonable oppor- tunity to see [k] for and to procure bail, before being committed to jail. Code of Procedure, § 186. In regard to order by the court see section 551 of this act. If the sheriff, after executing the order of arrest, permits the defendant to go at large, without giving bail or making a deposit, he becomes himself liable as bail. Bensel v. Lynch, 44 N. T. 163. McKeazie v. Smith, 48 Id. 143. If the sheriff refifses to accept bail from defendant, he is liable to an action. Richards v. Porter, 7 Johns. 137. Brady v. Brundage, 59 JST. Y. 310. S4 PROVISIONAL EEMEDIES. Tlie question as to the amount of bail is one of discretion in tlio court below, and its decision is not appealable. People V. Tweed, 5 Hun, 382. Same, 63 N. Y. 303. Same, 50 How. Pr. 36. Same, 13 Abb. N. 8. 148. Section 186 of Code of Procedure, allowing bail to be given to discharge a defendant from arrest at any time before execu- tion, — refers to an execution against the person. Bail may be given after execution is issued against property. Bostwick V. Goetzel, 57 N. T. 583. It is no defense to an action of debt on a recognizance of bail, that the defendant is not liable tO arrest on an execution on the judgment in the cause in which the bail was put in ; the remedy of the bail is to surrender the principal, if the latter does not apply for, and obtain an exoneratur, to be entered on the bail-piece. Stever v. Sornberger, 34 Wend. 275. In an action of debt on recognizance of bail, it is no defense that the sheriff -might have arrested the defendant in the origi- nal suit on the ca. sa. issued therein, unless fraud or collusion is charged upon the plaintifPs. Bradley «. Bishop, 7 Wend. 3.53. A sheriff, sued upon his liability as bail, cannot avoid his liability by showing that the debtor, whom he arrested and dis- charged T.'ithout sufficient bail to the action, was insolvent and iiad no property not exempt from execution, and had ever since remained in the same condition. Metcalf «. Stryker, 10 Abb. Pr. 12. A sheriff who becomes bail may surrender his principal by rearresting him. Seaver v. Genuer, Id. 256. Where a defendant is discharged from arrest on giving bail to the sheriff, and the bail fail to justify, the sheriff becomes ARREST. bo liable as ball, and is entitled to tlic same rigbts and powers as defendant's bail. Sartos B. Mercoques, 9 How. Pr. 188. §574. Election by defendant to give bond or make deposit. Where the defendant is actually confined in the jail, by virtue of an order of arrest, and final or interlocutory judgment has been rendered against him in the action, but an execution against his person has not been issued, he may elect either to give a bond for the liberties of the jail, or to give baU or make a deposit, as presciibed in this article. This section does not appear in tbe Code of Procedure. § 575. Undertaking of bail. Contents. The defendant may give bail, by delivering to the sheriff a written undertaking, in the sum specified in the order of arrest, executed by two or more sufficient bail, stating their places of residence and occupations, to the following effect : 1. If the order of arrest could be granted only by the court, that the defendant will obey the direction of [the] court, or of an appellate court, contained in an order or a judgment, requiring him to perform the act specified in the order ; or, in default of his so doing, that he will, at all times, render himself amenable to proceedings to punish him for the omission. 2. If the action is to recover a chattel, that the defendant will deUver it to the plaintiff, if delivery thereof -is adjudged in the action, and wiU pay any sum recovered against him in the action. 56 PROVISIONAL EEMEDIKS. 3. In any oth'er case, that the defendant will, at aU times, render him amenable to any mandate which may be issued to enforce a final judgment against him in the action. Code of Procedure, § 187. See note to section 059 of this act. Justification of sureties to the amount named in the order of arrest is sufficient. Cafieio «. Deraartino, 6 Weekly Dig. 55. As to the undertaking under section 559, see — Thompson ». Fiicdberg, 54 How. Pr. 519. Bonds, agreements, . Stryker, 31 Id. 355. Smith V. Knapp, 30 Id. 581. Jarvis ». Cook, 1 Cow. 309. Gregory v. Levy, 13 Barb. 610. Jewett ». Grain, 35 Id. 308. If defendant offers sufficient bail, upon his arrest, the sheriff must take it and discharge him. It is not discretionary with the sheriff whether or not he will take bail. Artcaga ». Conner, 88 N. Y. 403. Arteagac. Flack, 3 N. Y. Civ. Pro. 153; affi'g 47 N. Y. Super. 494. Upon the refusal of the sheriff to arrest or imprison a per- son upon an order of arrest, plaintiff has two remedies : an action against the sheriff as bail under sections 587, 595 and 597, or an 68 PKOVISIONAL KEMEDIB8. action for the omission of his official duty, to be brought within one year, under section 385, under which he can recover such damages as he has sustained. To maintain the former action, the plaintiff mast have recovered judgment against the prisoner and issued execution against his property and his person, and return must have been made, as to the first, of no property, and as to the second, that defendant could not be found. The damages recovered are determined by the amount of the judgment against the prisoner. Cosgvove V. Bowe, 4 Law Bull. 7 0. P. The sheriff may, as bail, rearrest defendant without process. Sai'tos 11. Merceques, 9 How. Pr. 188. Seaver v. Genner, 10 Abb. Pr. 356. Metcalf V. Stryker, 31 N. T. 355. A sheriff who has arrested a defendant under an order in a civil action, and discharges him on receiving bail, has no right to rearrest him until the bail has failed to justify. Arteaga v. Flack, 3 N. Y. Civ. Pro. 152. A sheriff who becomes bail may surrender his principal by rearresting him. Seaver v. Genner, supra. The liability of the sheriff is that of bail, with its privileges and qualifications, and he is entitled to discharge that liability in the same manner as is allowed to bail. Brady v. Brundage, 59 N. T. 310; affl'g ST. & C. 621. §588. Proceedings on judgment against sheriff. If judgment is recovered against the sheriff, upon his liability as bail, and an execution thereon is returned AREE8T. 69 wholly or partly unsatisfied, the official bond of the sheriff may be prosecuted, as in any other case of delin- quency. Code of Procedure, § 302. Under the last section the liability of the sheriff was an offi- cial and personal liability. Under this section his sureties are liable for any default of the sheriff as bail, incurred by him under that section. People V. Dikeman, 4 Keyes, 93. Daguerre v. Orser, 10 Abb. Pr. 13, n. . §589. Bail laible to sherifiF. The baU taken upon the arrest, unless they justify, or other bail are given and justify, are liable to the sheriff for all damages, which he sustains by reason of the omis- sion. Code of Procedure, § 303. The sheriff has no right of action under this section until he has sustained damages by reason of the liability as bail, which the law imposes upon him, as a consequence of a failure to justify or to put in other bail. The action is not upon the undertaking, but for damages sustained by the sheriff as bail. Clapp V. Schutt, 44 N. Y. 104; affi'g 44 Barb. 9; 19 Abb. Pr. 131 ; 39 How. Pr. 355. It has been held that the sheriff may bring his action against the bail before he has been sued, and consequently an allegation in the complaint of the existence of such an action is immaterial. Willett V. Lassalle, 1 Rob. 618; 19 Abb. Pr. 273. A judgment in favor of the plaintiff, in an action against the sheriff for an escape, conclusively establishes, in the sheriff's action against the bail, that the judgment debtor has escaped from the limits without having been discharged by law. Such 70 PBOVISIONAL EEMEDIES. judgment is evidence of the damages sustained by the sheriff, in the same manner as though the judgment had been collected. Toll V. Alvord, 64 Barb. 568. §590. Filing papers if bail not given. Within ten days after the defendant is arrested, if h© does not give bail, or if he gives bail, within ten days after the justification of the bail, the sheriff must file with the clerk the order of arrest, or, where it was granted by the court, the certified copy thereof delivered to him, with his return thereupon indorsed, the papers upon which the order of arrest was granted, and the undertaking given On the part of the plaintiff. Where an order of arrest, directing the arrest of tWo or more defendants, has been executed as to one or more, but not as to all of them, the sheriff may file a copy of the order of arrest, instead of the original. Before 1879 the section read : "If the defendant does not give bail, within ten days after he is arrested, the sheriil must file with the clerk the order of arrest, with his return thereon indorsed, and tlie papers upon which the order of arrest was granted." See notes to sections 5G1 and 577 of the Code of Civil Procedure., §59L When defendant may be surrendered. Except in an action to recover a chattel, the bail may surrender the defendant, in their own exoneration, or the defendant may surrender himself in exoneration of the bail, before the expiration of the time to answer, in an action against them. The surrender must be made to the sheriff of the county, where the defendant waa arrested. Code of Procedure, § 188. AEREHT. 71 " Expiration of the time to answer in an action against tliem " is substituted for " a failure to comply with the under- taking," in order to meet the case disclosed in Cozine v. Walter, 55 K Y. 304. Bail in an action, who have been excepted to and do not justify, can surrender the defendant to the sheriff ; and it seems, that such surrender can bo made by any one of the bail. In re Taylor, 7 How. Pr. 312. When the bail has received an undertaking in his favor from the wife of the principal, he will not be release(^ on his applica- tion for leave to surrender his principal, unless it is shown affirmatively that the wife is irresponsible. Milla «, Hildretli, 7 Hiin, 298. Mills e. Hildt-eth, 17 Hud, 207. An order made on the application of bail for leave to sur- render their principal after the time allowed by law, is in the discretion of the court, and is not appealable. Bank of Geneva v. Reynolds, 13 Abb. Pr. 81. See cases cited in note. Upon tendering a new bond similar in form to the one first given, a defendant, arrested and subsequently surrendered by his bail, is entitled to be discharged. He cannot be compelled to give a limit bond before execution, except it be a case wherein bail to pay the debt is required. McCallum v. Barnard, 58 How. Pr. 169. After the bail has become charged it is too late to apply for exoneration of bail. Hissong V. Hart, 39 N. Y. Super. 411. Star F. Ins. Co. v. Godet, 34 N. Y. Super. 359. See McKenzie v. Smith, 48 N. Y. 143; affi'g 27 How. Pr. 20. The Statutory provisions authorizing bail to surrender their principal before judgment do not apply to an undertaking bind- ing only as an agreement, and not as a statutory obligation. Teles V. A«leo, 84 N. Y. 322; rev'g 9 Weekly Dig. all. 72 PEOVISIONAL REMEDIES. 592. How surrender made ; exoneration of bail. Where the bail surrender the defendant, the surrender must be made in the following manner : . 1, They must take the defendant to the sheriff, and require him, in writing, to take the defendant into his custody. 2. A certified copy of the undertaking of the bail must be delivered to the sheriff, who must detain the defendant in his custody thereupon, as upon the original mandate, and must, by a certificate in writing, acknowl- edge the sui'render. Upon the application of the bail, made upon notice to the plaintiff's attorney, and upon production of the sheriff's certificate and a copy of the undertaking, a judge of the court, or the county judge of the county where the action is triable, may make an order, directing that the bail be exonerated. On filing the order and the papers used on the appHcation there- for, the bail are exonerated accordingly. Code of Procedure, § 188, in part. The first subdivision is new, as are the words, " upon the application of the bail," and " of the county where the action is triable." The original speaks of a notice of eight days. See section 780. §593. Bail may arrest defendant. For the purpose of surrendering the defendant, the bail, at any place or at any time before they are finally charged, may themselves arrest him, or, by a written authority, indorsed on a certified copy of the under- taking, oay empower another person to do so, and one ARREST. 73 or more of the bail may thus arrest and surrender the defendant, although the others do not join with him or them, for that purpose. Code of Procedure, § 189. The latter portion, comir.encing " anotlier person," substituted for " any person of suitable age and discretion to do so." See Matter of Taylor, 1 How. Pr. 212. §594 Voluntary surrender ; exoneration of bail thereupon. Where the defendant surrenders himself in exonera- tion of his bail, he must present himself to the sheriff, and require the sheriff, in writing, to take him into cus- tody, in exoneration of his bail. The sheriff must detain him accordingly, as prescribed in subdivision 2 of section 592 of this act ; and, if requested by the bail, at any time after the surrender, the sheriff must, by a certificate in writing, acknowledge the surrender. An order for the exoneration of the bail may be procured, as prescribed in section 592 of this act. 595. Rights, &c., of sheriff who is liable as bail. Where the sheriff is liable as bail, he has all the rights and privileges, and is subject to all the duties and liabilities of bail ; and bail given by him, in order to dis- charge himself from liability, must be regarded as the bail of the defendant in the action. But this section does not apply to an action to recover a chattel ; or to a case where a defense arises to an action against the bail, in conse- quence of an act or omission of the sheriff. 74 PROVISIONAL REMEDIES. Section 599, — " which provides that in an action against bail it is a defense," among other things, " that a direction was given or other fraudulent or collusive means were used, by the plaint- iff or his attorney to prevent the service " of the execution, — does not restrict the general words of section 595, — which Qonfers upon the sheriff, liable as bail, all the rights and privileges of bail. Douglas 1). Haberstro, 88 N. Y. 611; 2 N. Y. Civ. Pro. 186. Speaking of this section, the commissioners say : " There have been several decisions in accordance with the general principle, that the sheriff fixed as bail has the same rights as other bail, upon questions arising respecting particular acts which are justi- fied on that ground." Buckman ■». Carnley, 9 How. Pr. 180. Sartos V. Merceques, Id. 188. Seaver i>. Geriner, 10 Abb. Pr. 256. Metcalf V. Btryker, Id. 12. McGregory ®. Willett, 17 How. Pr. 439. " It seems proper to establish a rule to that effect by statute, and to regulate the exceptions thereto." When bail is not given, or the sureties fail to justify, the sheriff becomes liable as bail, and may be exonerated by sur- rendering defendant to actual custody. Brady v. Brundage, 59 K. Y. 310. Buckman «. Cain ley, supra. Sartos V. Merceques, supra. Seaver v. Genner, supra. Bensel ». Lynch, 44 N. Y. 162. McCreery t>. "Willett, 22 How. Pr. 91. Where a sheriff, liable as bail, has forty days to arrest the prisoner under an execution issued against his person, and plaintiff's attorney directs the sheriff to forthwith return the execution " defendant not found," and he does so, held, that such direction is a waiver of the sheriff's liability as bail. Douglas «. Haberstro, 88 N. Y. 611. AKREST. 75 §596. Bail ; how proceeded against. In case of failure to comply with the undertaking, the bail may be proceeded against by action, and not other- wise. The word " only " was used in the Code of Procedure instead of the phrase " and not otlierwise." §597. Certaia executions necessary before actions against bail. An action raay be brought, as prescribed in the last section, in a case where the order of arrest could be granted only by the court, at any time after the bail have failed to comply with their undertaking. Where the undertaking was given in an action to recover a chattel, an action may be brought thereupon, at any time after the return, wholly or partly unsatisfied, of an execution for the dehvery of the possession of the chat- tel, with respect to which the order of arrest was granted. In any other case, an action cannot be brought, as pre- scribed in the last section, until the following requisites have been comphed with : 1. An execution, against the property of the defend- ant, must have been issued to the sheriff of the county in which he was arrested, and returned by that sheriff^ whoUy or partly unsatisfied. 2. An execution against the person of the defendant, must have been issued to the same sherilf , and by him returned, not less than fifteen days after its receipt, to the effect that the defendant could not be found within the county. 76 PEOVISIONAL REMEDIES. The cause of action is assignable, and the assignee may maintain the action in his own name. Moses V. Waterbury Button Co., 37 N. Y. Super. 393. As a rule, actions against special bail and upon bail bonds should be brought in the court where the original suit was com- menced ; though, when necessary, they may be brought in other courts. Otis i>. Wakeman, 1 Hill, 604. "When the action is unnecessarily brought in a court other than that in which the original suit was commenced, the remedy of the party is by motion, and not by plea. Id. Matthews ®. Cook, 13 Wend. 33. The action is transitory in its nature ; and the fact that it arose in another State, or even in a foreign country, is not an objection to the jurisdiction of our courts respecting it. Otis ». Wakeman, supra. The arrest and imprisonment of one defendant does not relieve the sureties to the undertaking from their liability for the escape of the other. Crouse v. Paddock, 8 Hun, 630. The supreme court may grant relief to the bail in an action against them, and may allow a stay of proceedings to enable them to surrender their principal, although the original action was in another court. Barker i>. Russell, 11 Barb. 304. The return by a sheriff to an , execution against the person of " not found " subjects the bail of the defendant to an action upon his undertaking, and is conclusive upon him. If the return be false, the bail has a right of action against the sheriff for the damage sustained by reason thereof. Cozino V. Walter, 5n N. Y. 304. Bradley t>. Bishop, 7 Wend, 352. McArthur o. Pease, 46 Barb. 433. AEEEST. 77 Where the plaintiff has tlje right to take the persons of all the defendants in satisfaction of his judgment, it carries with it the right to proceed against the bail of one of them, as to whom there may be a return of non est inventus. Penn v. Eemsen, 24 How. Pr. 503. § 598. Duty of sheriff on such executions. The sheriff must diligently endeavor to enforce an execution issued and delivered to him, as prescribed in the last section, notwithstanding any direction he may receive from the plaintiff, or his attorney. 3 R. S. 382, § 32. §599. Defenses in action against bail. In an action against bail, it is a defense, that an execution, against the property, or against the person, of the defendant in the original action, was not issued, as prescribed in section 597 of this act ; or that it was not issued in sufficient time to enable the sheriff to enforce it ; or that a direction was given, or other fraudulent or collusive means were used, by the plaintiff or his attor- ney, to prevent the service thereof. This section does not restrict the general words of section 595, — which confers upon the sheriff, liable as bail, all the rights and privileges of bail. Douglas D. Haberstro, 88 N. Y. 611; 2 N. Y. Civ. Pro. 186. Special bail, in an action against them as such, will not be permitted to show, that before the recovery of judgment against their principal, he was insolvent and had no property liable to be applied toward the payment of said judgment. Levy «. Nicholas, 1 Rob. 614; 19 Abb. Pr. 282. See Bensel ®. Lynch, 44 N. Y. 162. Metcalf V. Stryker, 31 N. Y. 255. 78 PEOVISrONAL REMEDIES. The sureties are estopped from denying principal's liability to arrest. Gregory ». Levy, 12 Barb. 610; 7 How. Pr. 37. Kelly V. McCormick, 38 N. Y. 318. Nor will an irregularity of the judgment afford them ground for defense. They should apply to set aside the jadgment and let them in to defend the original action. Jewett V. Crane, 35 Barb. 208. Sureties cannot avoid the bond, in the absence of fraud, on the ground that they were induced to sign it by a mistake of its contents, produced by an incorrect statement of the judge as to its effect. Wheaton i>. Fay, 63 N. Y. 375. On moving to set aside the proceedings in a suit on a bail- bond, the papers should be entitled ia that suit. Phelps V. Hall, 5 Johns. 367. Pell V. Jadwin, 3 Id. 443. § 600. Relief of bail when principal is imprisoned on criminal charge. If the defendant in the original action, after his dis- charge upon bail, is imprisoned, either within or without the State, upon a criminal charge, or a conviction of a criminal offense, the court, in which an action against the bail is pending, may, before the expiration of the time to answer, and upon notice to the adverse party, make such an order for the rehef of the bail, as justice requires. Bail are entitled to an exoneration, where their principal has been convicted of a felony, and sentenced to imprisonment in a State prison of another State, for a term of years. Loflin V. Fowler, 18 Johns. 335. AEEEST. 79 601. Bail exonerated by death, &c. Except ia an action to recover a chattel, the bail must be exonerated when either of the following events occurs, before the expiration of the time to answer in an action against them : 1. The death of the original defendant. 2. His legal discharge from the obligation to render himself amenable to the process, direction, or proceed- ings, with respect to which the undertaking of the bail was made. 3. His surrender to the sheriff of the county where he was arrested, as prescribed in this article. Where either event occurs, after the commencement of the action against the bail, the court may, in its discretion, impose the payment of the plaintiff's costs and expenses, incurred after the return of the execution against the person, as a condition of allowing the exoneration. And •the court may, by an order, made upon notice to the adverse party, grant such further time as it deems just, after answer, for the surrender of the original defendant. In that case, his surrender, within the time so granted, has the same effect, as if it had been made before answer. Based on 2 R. S. 380, sections 16, 34 ; Code of Procedure, section 191. The time within which action may he taken varies somewhat under these provisions. The provisions of this section are in the light of — Hayes ». Carrington, 12 Abb. Pr. 179. Levy V. Nicholas, 19 Id. 283. Stark ». Hemstead, 6 Hun, 301, A motion by the bail is the proper course to be pursued, if they desire to be exonerated from liability, and upon such 80 PKOVISIOHAL REMEDIES. motion must necessarily be decided all questions arising upon the judgment or proceedings in the action touching their liability. Obiegon ». De Mier, 54 How. Pr. 390. On the death of the principal, bail will be entitled to an exoneretur on motion. Merrltt v. Tbompson, 1 Hilt. 550. The death of a defendant in the principal action sixty-five days after, service of the summons on his bail in an action to charge them, is no defense to the latter action. Gauntley «. Wheeler, 4 Lans. 491. Sureties may be permitted to defend on the merits in the place of their principal, in an action against him, even after a regular judgment, if it be necessary for their protection, on suitable application and excusing laches. Jewett V. Crane, 13 Abb. Pr. 97. If, upon the recovery of judgment against defendant, his bail, instead of surrendering his body, elect to pay, and do, while an appeal is pending, pay the amount of the judgment, such payment will not discharge their liability as bail. Appleby u. Robinson, 44 Barb. 316. Bail are not exonerated absolutely by a judgment in favor of their principal ; if that judgment is set aside, and the plaintiff allowed to proceed in the action, their liability revives. Von Gerhard v. Lighte, 13 Abb. Pr. 101. After the expiration of the time limited, bail cannot properly surrender their principal, nor, if they do, can the sheriff hold him. I Baker d. Curtis, 10 Abb. Pr. 279. Bail, instead of submitting to a recovery on their bond, and looking to the sheriff for indemnity, if he has made a false return of " hot found," have the right to surrender the prisoner AKKEST. 81 within twenty days after tlio commencement of the action on the undertaking, and are then entitled to be exonerated. Cozine ». Walter, 55 N. Y. 304. The court has power to grant further time, upon sufficient cause shown, for the surrender of the person arrested. Brady v. Brundage, 59 N. Y. 310. Bank of Geneva v. Reynolds, 13 Abb. Pr. 81. Gilbert «. Buckley, 1 Duer, 608. Barker «. Russell, 11 Barb. 303. It must be shown on such an application that the bail are not indemnified. Bank of Geneva v. Reynolds, supra. Sickness of the principal or bail would be a good reason for enlarging the time. Baker v. Curtis, 10 Abb. Pr. 379. Impossibility of procuring a copy of the bail-piece in time, was held a sufficient excuse. Van Rensselaer v. Hopkins, C. & C. Cases, 481. Under the Code of Procedure the exoneration of bail after twenty days was a matter of discretion. Mills V. Hildreth, 81 N. Y. 91. On the subject of exoneration of bail, see note appended to the report of the case of the Bank of Geneva v. Reynolds, 12 Abb. Pr. 81. 5 INJUNCTION. §602. Writ of injunction abolished, and temporary injunction by order substituted. The writ of injunction has been aboUshed. A tempo- rary injimction may be granted by order, as prescribed in this title. The first clause of section 218 of the Code of Procedure was : " The writ of injunction as a provisional remedy is abolished, and an injunction by order is substituted there- for." The California Code, section 525, defines the provisional injunction as " a writ or order requiring a person to refrain from a particular act." Nature of the remedy. This chapter relates to injunction as a provisional remedy only, and the decisions that are here collated pertain to the remedy in that character. All injunctions that are granted during the pendency of the litigation are temporary. Perpetual injunctions follow and are a part of the decree in an equity suit, and the principles that govern the latter are unchanged by this chapter. Thompson «. Cannl Commrs., 2 Abb. Pr. 248. Burnham v. Acton, 7 Rob. 395. [83] INJUNCTIOJS". 83 Linden v. Hepburn, 5 How. Pr. 188. Howard v. Ellis, 4 Sand. 365. N. Y. Life Ins. Co. v. Supervisors, 4 Duer, 193. The etfect of the Code provisions is to materially enlarge the class of cases in which ■ recourse may be had to provisional injunction. Reubens v. Joel, 13 K Y. 488. Merritt d. Thompson, 3 E. D. S. 283. Perkins®. Warren, 6 How. Pr. 341. Malcolm v. Miller, Id. 456. It is entirely of statutory origin, and the court has no power to issue an injunction as a provisional remedy unless a warrant therefor is given in the Code. Erie Railway ». Ramsey, 45 N. Y. 645. Fellows V. Heermans, 13 Abb. Pr. N. S. 1. The provisional remedy by injunction is wholly preventive in its nature, and is designed to preserve the subject in contro- versy in the condition in which it was at the commencement of the suit, without determining questions of right. High on Injunctions, § 4. Ward V. Kelsey, 14 Abb. Pr. 106. Van Vcghten ». Howland, 13 Abb. Pr. K. S. 461. The granting, continuing and dissolving of temporary injunctions rests in the discretion of the court that has original jurisdiction, and its determination cannot be reviewed "by the court of appeals. Calkin v. Manhattan Oil Co., 65 N. Y. 557. Pfohl ®. Sampson, 59 N. Y. 174. Paul ». Hunger, 47 N. Y. 469. People V. Sclioon maker, 50 N. Y. 499. Young «). Campbell, 75 N. Y. 525. ' Van Veghten v. Howland, 12 Abb. N. S. 463. N. Y. Printing Co. c. Fitch, 1 Paige, 97. Ogden ». Kip, 6 Johns. Ch. 160. Hicks ®. Michael, 15 Cal. 107. Richards v. Dower, 64 Cal. 62. And the fact that the object of the action may be defeated 84 PKOVISIONAL BEMEDIES. by a refusal to issue the restraining order does not deprive the court of its discretionary powers. Youug V. Campbell, supra. The discretion of the court must be governed by the facts in each particular case, and no general rule is possible. Ludvigli V. Dusseldorf, 8 Weekly Dig. 490. The provisional injunction should not be granted in case of doubt, and a plaintiff who invokes this extraordinary power of the court must establish a clear necessity therefor. Ogden V. Kip, 6 Johns. Ch. 160. Olmstead v. Loomis, 6 Barb. 153. Auburn Plank Rd. ». Douglass, 12 Barb. 555. Bruce «. Dd. and H. Canal, 19 Barb. 371. Fredricks v. Meyer, 1 Bosw. 227. Redfleld v. Middleton, 7 Bosw. 649. N. Y. Printing Est. v. Fitch, 1 Paige, 97; 21 How. Pr. 449. Manhattan Gas Co. v. Barker, 36 How. Pr. 333. Ramsey v. Erie Ry., 38 How. Pr. 193. Murray i). Knapp, 42 How. Pr. 462. Central R. R. v. Bleecker St. By., 49 How. Pr. 233. Gurnee i). 'odell, 13 Abb. Pr. 264. Power !): Alger, Id. 284. Dubois V. Budlong, 15 Abb. Pr. 445. Roberts «. Matliews, 10 Abb. Pr. 199. Van Veghteu v. Howland, 13 Abb. N. S. 461, The rights of the moving party should be certain and capable of being clearly ascertained, and the violation of those rights should be evident. Olmstead v. Loomis, 6 Barb. 153. Crocker v. Baker, 3 Abb. Pr. 182. Howe«. Rochester Iron Co., 66 Barb. 593. Lewis 1). Oliver, 4 Abb. Pr. 131. Van Veghten «. Howland, 13 Abb. N. S. 461. And it must appear that an injury without adequate redress ■will result in the absence of the restraining order, and that the applicant's rights will be prejudiced by delay. Murray v. Knapp, 42 How. Pr. 462. Savage v. Allen, 54 N. Y. 458. INJUNCTION. 85 Nor will tte court interfere by injunction where tlie plaintiff has other adequate remedy, at law or otberwise. Livingston «. Livingston, 6 Johns. Ch. 497. Jerome v. Eoss, 7 Johns. Ch. 315. Hart V. The Mayor, 3 Paige, 313. Burch V. Cavanaugh, 13 Abb. N. 8. 410. Howe«. Rochester Iron Co., 6G Barb. 593. Savage v. Allen, 54 N. Y. 458. Marks v. "Wilson, 11 Abb. Pr. 87. Ward V. Kelsey, 14 Abb. Pr. 106. Agate ®. Lowenbein, 4 Daly, 63. People V. Coffin, 7 Hun, 608. As in a case, where it is sought to 'set aside an award on the ground of collusion and want of jurisdiction, there being a remedy by appeal. People D. Wasson, 64 N. T. 167. People V. Coffin, 7 Iliin, supra. Or, in which the plaintiff's rights are sufBciently protected by the filing of a notice of pendency of action. Mills V. Mills, 31 Pow. Pr. 487. Stevenson v. Payerweather, Id. 449. Gregory v. Gregory, 33 N. Y. Super. 1. It will be refused in cases where the plaintiff has a remedy for the injury complained of, which is capable of being compen- sated by damages, which can be estimated in an action at law. Townsend v. Tanner, 3 How. Pr. 384. Spear v. Cutter, 3 Code Rop. 100. Newbury ®. Newbury, 6 How. Pr. 183. Barnes v. McAllister, 18 How. Pr. 534. Balcom v. Julien, 33 How. Pr. 349. Trenor v. Jackson, 46 How. Pr. 389. As, in a case in which there was a specific sum named as a penalty for breach of a covenant, the court will not enjoin the parties from proceeding under the agreement. Vincent ». King, 13 How. Pr. 334. Or, where the parties have fixed and liquidated the damages 86 PROVISIONAL EEMBDIE3. for a violation of an agreement, the court will not interfere, even in case of insolvency. Nessle v. Reese, 19 Abb. Pr. 340; 8. C, 49 Barb. 374. The remedy will be denied when the party applying therefor is guilty of laches in making hi8 application. Vau Ranst «. N. T. College, 4 Hun, 630. Amoskeag Mfg. Co. d. Garner, 6 Abb. N. S. 365. Ninth Av. R. R. v. N. Y. El. R. R., 3 Abb. N. C. 847. Thursby «. Mills, 11 How. Pr. 116. Corning v. Troy Iron Co., 40 N. T.. 191. An injunction order cannot be retroactive in its effect, nor operate upon proceedings subsequent to its allowance but before service. People V. Albany R. R. Co., 13 Abb. Pr. 171. Ramsdell v. Craighill, 9 How. 197. Under the Code of Procedure it was said that a defendant who desired an injui>ction against the plaintiff in the suit should properly commence a cross action. Waller v. Harris, 7 Paige, 173. Thorsby t). Mills, 1 Code Rep. 83. But see section 720, post, which was added to this chapter by Laws of 1879, ch. 542. Persons liable to the restraining order. Tbc general rule is that only parties to the litigation are liable to be restrained by this injunction. Waller -j. Harris, 7 Paige, 107. Fellows ». Fellows, 4 Johns. Ch. 35. Watson v. Fuller, 9 How. Pr. 435. Edmonston v. McLoud, 10 N. Y. 543. And service of the order upon a person who is not a party to the proceeding in which it was granted, and to whom the order is not directed, does not bind him. Edmonston i). McLoud, 19 Barb. 356. INJTJNCTIOTT. 87 The servants and agents of tLo parties, to whom knowledge of the issuance of the injunction is brought home, are liable thereto. People V. Sturtovant, 9 N. Y. 2G3. Farrington ». Birdsall, 7 Weekly Dig. 431. People V. West Troy, 35 Hun, 179. As the chamberlain of a municipal corporation, who is bound by an injunction against the president and trustees. People «. West Troy, supra. Or the common council of a city when the suit is against the city. People ». Dwyer, 1 IS. Y. Civ. Pro. 484. §603. Injunction, when the right thereto depends upon the nature of the action. Where it appears, from the complaint, that the plaint- iff demands and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff, an injunction order may be granted to restrain it. The case provided for in this section, is described in this act, as a case where the right to an injunction depends upon the nature of the action. Code of Procedure, section 219, first clause, with slight changes. Section 3160 of the present Code provides that this sec- tion shall not apply to the city court of New York. To justify the issuing of an injunction as a preventive or provisional remedy, it must appear that the tort complained of is a continuing injury. If the wrong has been perfected recourse cannot be had to this remedial process. Perkins v. Warren, 6 How. Pr. 348. Mariposa Co. d. Garrison, S6 How. Pr. 448. 88 PEOVISIONAL REMEDIES. The restraining powers of the court have been invoked and frequently exercised by the issuance of provisional injunctions in the following classes of cases. Actions at law before judgment. To restrain proceedings in another action pending in the same court, though in another judicial district. Erie Eailway d. Ramsey, 45 N. T. 637. Or, m an action pending in another court of this State, between the same parties. Savage v. Allen, 54 N. Y. 458. Garrison v. Marie, 7 N. T. Civ. Pro. 124. Or, an action brought in the courts of another State, where the continuance of such foreign litigation will work irreparable injury to the plaintiff. Dinsmnre D. Nei-esheimer, 33 Hun, 304. Kittle ». Kittle, 8 Daly, 73. Hays «. Ward, 4 Johns. Ch. 133. Vail v. Knapp, 49 Barb. 299. Conkliug 1). Secor, 55 How. Pr. 269. Reinach 1). Meyer, 55 How. Pr. 283. Claflin D. Hamlin, 63 How. Pr. 284. Such powers, however, will be exercised only in extreme cases and where the most serious consequences would result. Erie Railway ». Ramsey, supra. Savage «. Allen, supra. And an injunction will not be granted in restraint of pro- ceedings in another suit, where the relief may be obtained by a proper defense in such suit at law. Savage v. Allen, supra. New York, &c. v. American, &c., 11 Paige, 384. The same rule is applicable where the proceedings sought to be enjoined are in a court of equity, wherein the party may interpose an adequate defense. Hall V. Fisher, 1 Barb. Ch. 53. INJUNCTION. 89 Courts possessed of chancery powers, recognizing the propri- ety of confining litigation to the forum in which it was origin- ally instituted, will sometimes enjoin the removal of the cause to another tribunal. Conover «. Mayor, 25 Barb. 531. Crane v. Bunnell, 10 Paige, 333. An injunction will not ordinarily be granted to restrain a prosecution to recover a penalty given by statute on the ground of the invalidity of the statute. Wallack v. Society for Reformation, &c., 67 N.Y. 23. Nor to enjoin proceedings undertaken before a Court- martial. Perault v. Rand, 10 Hun, 222. Nor to restrain an illegal arrest, where the person liable thereto has a speedy and efficacious relief, either by resort to • habeas corpus or to an action for damages therefor. Murpliy «. Board of Police, 63 How. Pr. 396. Therefore, the court will not restrain the contemplated acts of officials, -in making an arrest for supposed breaches of the penal laws. Murphy v. Board of Police, supra. Actions at law after judgment. The general principle upon which — and upon which only — a provisional injunction will be granted to restrain proceedings after judgment, is that unavoidable accident or mistake, surprise or fraud, without laches or negligence upon the applicant's part, have interfered to prevent the applicant from availing himself of his defenses in the suit. Wingate v. Haywood, 40 N. H. 437. Marine Ins. Co. v. Hodgson, 7 Cranch, 332, and cases cited under § 114 of High on Injs. N. Y. & Harlem R. R. v. Haws, 56 N. Y. 175. 90 PEOVISIONAL REMEDIES. Assessments and taxes. Equity will not interfere to restrain the collection of an ille- gal and -void tax, merely on account of its illegality ; there must be some attendant circumstance, whereby an injury is imminent that brings the case within the province of a court of equity. Otherwise the person aggrieved will be left to his remedy at law. Heywood v. Buffalo, 14 N. Y. 534. Betta ». Williamsburgh, 15 Barb. 355. Mutual, &c. V. Supervisors, 33 Barb. 333. Mayor, &c. v. Meserole, 36 Wend. 133. The exceptions to the general rule that equity will not inter- fere are these; that it will interpose to arrest excessive litiga- tion ; to prevent irreparable injury ; and to remove a cloud from the title. Heywood b. Buffalo, supra. Von Beck v. Eondout, 15 Abb. Pr. 48. But it must appear by the complaint that the injury from the collection of the tax was irreparable and incapable of adequate compensation at law Bitter v. Patch, 13 Cal. 398. Susquehanna Bank v. Supervisors, 35 N. T. 313. The collection of a tax will not be restrained simply upon the ground that the plaintiff, being a, foreign corporation, had no place of business within the State. Mutual Life, &c. v. Supervisors, 3*Kcyes, 183. Nor that plaintiff was a non-resident and had paid taxes on his personal property in the State in which he resided. Wilson ®. Mayor, 4 E. D. Smith, 075. The rule is well settled in this State that a court of equity will not interfere to restrain the collection of a tax on the mere ground of iUegaUti/ in the assessment. Iloyward v. Buffalo, 14 N. Y. 534. Susqiielinnna Bank i). Broome Co., 35 N Y. 313. Mutual Life Ins. Co. i). Supervisors, 3 JKcyes, 182. INJUNCTION. 91 Hasbrook v. Kingston, Id. 480. Livingston «. Hollenbeclc, 4 Barb. 9. Belts V. Williamsburgh, 15 Barb. 355. McGce V. Cutler, 43 Barb. 239. Messeck v. Columbia, 50 Barb. 190. Mace V. Newburgh, 15 How. Pr. 161. Corwin v. Campbell, 45 How. Pr. 9. Von Beck v. Rondout, 15 Abb. Pr. 48. Pumpelly v. Owego, 45 How. Pr. 319. The exceptions to this rule, which will authorize the issuing of injunction orders in restraint of proceedings under an illegal assessment, are — 1. Where the acts sought to he enjoined will necessarily lead to a multiplicity of suits ; 2. Where they will lead in their execution to the commission of irreparable injury to the freehold ; and, 3. To remove a cloud from the title, where the objections to the validity of the assessment exist dehors the record. Heywood v. Buffalo, 14 K. T. 634. Brooljlyn*. Meserole, 26 Wend. 133. Van Rensselaer ». Kidd, 4 Barb. 17. Bouton V. Brooklyn, 15 Barb. 375. Blake ». Brooklyn, 26 Barb. 301. Van Doren v. Mayor, &c., 9 Paige, 388. Mann v. Onondaga, 53 How. Pr. 289. Pacific Mail, &c. Co. ■». The Mayor, 57 How.Pr. 511. Robinson ». Gaar, 6 Cal. 373. I Bucknall t>. Story, 36 Cal. 67. Scott V. Onderdonk, 14 N. Y. 9. Guest «. Brooklyn, 69 N. Y. 506. Campbell v. Seaman, 63 N. Y. 583. Springport v. Teutonia, 75 N. Y. 401. Crevier v. Mayor, &c., 13 Abb. Pr. N. S. 840. The collection of a tax may be restrained where the assess- ment is increased by the omission of lands upon which by the statute it should have been based. Hassen v. Rochester, 65 N. Y. 516. Chapman v. Brooklyn, 40 N. Y. 380. Matter of Purflur, 44 Barb. 406. 92 PEOVISIONAL EEMEDIES. As, in the case of an assessment for improvements, which the statute required to be ratably based upon the property of " all the owners and occupants " of a designated territory, and the assessors omitted certain lands therein. Hassen «. Rochester, supra. In the city of New York the court will not enjoin a sale of property for an assessment alleged to have been illegal ; the person injured being left to his remedy under the statutes. Laws 1858, ch. 338. Rae 'D. Mayor, &c., 89 N. T. Sup. 193; S. C, 62 N. Y. 631. A municipal corporation will be restrained from issuing bonds where it appears that the number of taxpayers who signed the petition was insufficient to authorize the issuance. Eocliester «. Davis, 44 How. Pr. 95. A complaint, whereby it is sought to restrain the imposition of an illegal tax, must aver that the action is brought by the plaintiff in behalf of all persons similarly situated. ■Wood ®. Draper, 24 Barb. 187. And if brought to restrain the collection of a tax, a portion of which is legal, it must show that the legal and illegal assess- ments are inseparable, and aver a readiness to pay the legal tax. Palmer v. Napoleon, 16 Mich. 176. Horsey ». Supervisors, 16 Wis. 185. Covenants relating to realty. Such covenants will be enforced in equity, and the fact that they are not expressed with technical accuracy, are not binding at law, or do not work irreparable injury, does not bar the resort to chancery. Parker «. Nightengale, 6 Allen, 344. Steward v. Winters, 4 Sandf. Ch. 587. Atlantic Dock Co. v. Leavitt, 54 N. T. 35. INJUNOTIOM". 93 And will be so enforced, although a sum named is in the instrument containing the covenant, as liquidated damages for the breach. Phenix Ins. Co. v. Continental Ins.Co., 14 Abb. Pr. N. S. 266. Though where the lessees covenanted not to use the premises for any purposes that would increase the hazard or rates of insurance, it was held that the breach of this covenant could be exactly compensated in damages, the measure of which would be the increased rates of insurance, and the injunction should be refused. Agate V. Lowenbein, 4 Daly, 62. Covenants that leased premises should be used for the carry- ing on of a specified business, and no other, will be enforced by this appropriate remedy. Steward v. Winters, supra. Howard v. Ellis, 4 Sandf. 369. Whatman v. Gibson, 9 Sim. 195. Or that the lands should be exclusively used for private house-lots, when there is an attempt to erect a public house. Parker v. Nightengale, supra. A grantor will be restrained by injunction from the violation of covenants not to make certain erections on contiguous lands retained by him. Phenix lus. Co. v. Continental Ins. Co., 14 Abb. Pr. N. S. 266; 87 N. Y. 400. Tallmadge v. East River Bk., 26 N. Y. 105. Columbia College ». Lynch, 70 N. Y. 440. And the same rule applies to infringements upon easements and servitudes that are open and apparent, and so pass with the land, though there be no express covenant. Hamel «. Griffith, 49 How. Pr. 305. A subsequent grantee of the premises subject to an easement, created by the covenants of his predecessor in title, will be restrained, although his deed contained no restrictions. Birdsall ®. Tiemann, 12 How. Pr. 551. Tallmadge v. East River Bk., supra. Columbia College v. Lynch, supra. 94 PKOVISIONAL REMEDIES. Among the instances in which the court has issued its restrain- ing order to prevent violations of covenant, is to prevent the erection of buildings that obstruct light and air. Phenixins. Co. v. Continental Ins. Co., supra. Tallmadge v. East River Bk., supra. That are used for the carrying on of any offensive business or occupation. Barrow v. Kichard, 8 Paige, 351. Seymour v. McDonald, 4 Sandf. Ch. 503. Where the covenants are intended to secure uniformity in the structure and position of buildings upon the premises, and to confine their use to certain specified purposes. Clark V. New York Life Ins. Co., 64 N. Y. 33. Columbia College v. Lynch, 70 N. Y. 440. Same d. Thacher, 87 N. Y. 31L Clark v. New Y'"ork Life Ins. Co., 64 N. Y. 33. Corporations. For the statutory provisions in relation to temporary injunc- tions in actions for the dissolution of corporations, and the annulling of corporate charters. See sections 1787 and 1803 of the Code of Civil Procedure, and Howe V. Deuel, 43 Barb. 504. Mclvor V. MoCabe, 16 Abb. Pr. 319, n. Corporations may be restrained by the enjoining order of the court, when a proper case is presented therefor, and they may be fined for a violation of such order. Mayor v. N. Y. and S. I. Ferry Co., 64 N. Y. 623. An injunction will not lie against a corporation at a stock- holder's suit, wherein he complains only of the inequitable acts of the directors. Attorney-General B. Utica Ins. Co., 3 Johns. Ch. 371. Verplanok v. Mercantile Ins. Co., 1 Edw. 84. Mickler ». Rochester Bank, 1 Paige, 118. N. Y. Printing Establishment v. Fiteh, Id. 97. Belmont v. Erie Railway, 53 Barb. 637. INJUNCTION. 95 Nor at the suit of a stockholder, who intervenes 'or the pur- pose of interfering with the general management of the corpo- rate business, unless there be a clear violation of law, or a wide departure from its charter powers. Bach V. Pacific Steamship Co., 12 Abb. N. S. 373. The temporary injunction m.ay be resorted to, however, to prevent such acts upon the part of the directors, as will result in the practical termination of the corporation ; or in the effec- tual destruction of the purposes for which it was formed. Abbot V. American Rubber Co., 33 Barb. 578. And the corporation may therefore be restrained from carry- ing into effect the vote of its directors making sale of any por- tion of its property which is essential to the transaction of the business for which it was organized. Abbot V. American Rubber Co., supra. The executive committee of a corporation may be restrained from carrying into execution a vote by which they are given an amount beyond their regular compensation. Blatchford ®. Ross, 5 Abb. Pr. N. S. 434. The officers of a corporation cannot be restrained from the performance of the general, ordinary and proper duties of their office. People V. Alb. & Sus. R. R., 7 Abb. Pr. N. S. 265. S. C, 57 N. Y. 161. Officers of a corporation maybe enjoined from issuing bonds, when such issue is part of a fraudulent device to increase the stock. Belmont d. Erie Railway, 52 Barb. 637. Railroad corporation may be restrained, at suit of the own- ers of lands, from laying its tracks in front of their property, when the corporation has not acquired the absolute right. Milhau ». Sharp, 37 N. T. 611. yo PROVISIONAL REMEDIES. The injury to the plaintiff's property, however, must be such as to be incapable of adequate compensation at law. Ibid. A preliminary injunction may be granted to restrain the in- vasion of premises adjacent to the elevated roads, by steam, smoke, and noxious gases. Elevated Railroad Cases, 3 Abb. N. C. 366. But a plaintiff who invokes the equity powers of the court must not rest on his rights, and where he has suffered the cor- poration to proceed with the erection of costly structures, he cannot afterward interfere. Elevated Railroad Cases, 3 Abb. N. C. 848. A stage company running its vehicles regularly, and in rivalry to a street-car line, may be enjoined from using the defendant's tracks. Buffalo Street Ry. v., Leighton, 10 Rep. 149. Injunction will be refused to restrain the exercise of corpo- rate rights on the ground of the forfeiture of its charter, except at the suit of the people. Haight 9. N. Y. Elevated Ry., 49 How. Pr. 20. For other cases in which injunction has been granted against a railroad corporation, see People ». Albany & Vt. Ry., 37 Barb. 216. Weetjen t>. St. Paul Ry. Co., 4 Huu, 539. And for instances in which it has been refused: Waterbury ». Dry Dock Ry., 32 How. Pr. 193. New York &H. Ry. «. Forty-second St. Road, 33 How. Pr. 481. Dry Dock Railroad «. N. Y. & H. R. R., 54 Barb. 388. Troy & Boston, &c. R. R. ». Boston, &c. R. R. Co., 13 Hun, 60. Baucus J). Albany Northern, 8 How. Pr, 70. Baxter ». Spuyteii Duyvil R. R,, 61 Barb. 438. INJUNCTION. , 97 Jteligious corporation will be enjoined at suit of a minority of its trustees, to prevent the diversion of its property to uses not contemplated to the organization. First Presb. Church e. Bowder, 10 Abb. N. C. 1. As to rights of pew-owner to have the powers of the chan- cery court exercised in his behalf, to prevent changes in the pews, see Solompn V. Cong. B'nai Jeshurun, 49 How. Pr. 363. Foreign corporations, created uiider English statutes, may be enjoined from proceeding with an arbitration in this state under a stipulation, that they shall proceed under an English act, and their award be made a rule of Queen's Bench. U. S. Cable Co. v. Dominion Tel. Co., 84 N. Y. 154. To restrain the issuing of bonds by a foreign corporation, and the execution of a mortgage for their security, it must appear that the execution of such mortgage would be an injury to, or an obstruction of, the rights of the plaintiff. Rogers ii. Michigan Southern, &c. R. R., 28 Barb. 539. The chancery courts of this state have jurisdiction in actions brought by citizens of this state as stockholders of railroad cor- porations created under the laws of foreign states, to stay the acts of such foreign corporation as are ultra vires. Fisk V. Chicago, &c. R. R., 36 How. Pr. 31. A foreign corporation has no right to issue certificates pur- porting to represent its capital stock, when in fact such stock has not been subscribed and paid for, and the court will prevent the placing of such stock upon the iiarket. Fisk V. Ohicngo, &c. R. R., supra. O'Brien ». Same, 36 How. Pr. 34. This restraining order is granted in accordance with the rule, tha,t a citizen of this state can maintain an action against a for- 7 98 PROVISIONAL REMEDIES. eign corporation for any cause connected with the recovery of, or protection to his property or rights in such corporation. Griffiths v. Scott. Fisk v. Chicago, &c. R. R, supra. The chancery powers of the court will not be exercised, how- ever, where the party aggrieved has an ample remedy in the state in which the corporation has a legal existence ; in such case, the court of this state will decline to exercise their jurisdiction. Howell V. Chicago, &c. Railway, 51 Barb. 378. See, Dart v. Farmers' Bank, 27 Barb. 337. Cumberland Coal Co. v, Hoffmao, &c., 30 Barb. 159. Municipal corporation will be restrained when the inter- ference of the court is necessary to prevent abuse, injustice or oppression, the violation of a trust, or the consummation of a fraud. ' Davis ». M:iyor, 1 Duer, 451. People i>. Sturtevaot, 9 k. Y. 263. People V. Mayor, 33 Barb. 102. The improper expenditure of public moneys may be enjoined, in cases which call for the exercise of the equity powers of the court. Reynolds v. Mayor, 8 Barb. 597. Christopher «. Mayor, 13 Barb. 567. Da Baun v. Mayor, 16 Barb. 392. Dolan 1). Mayor, 9 Abb. Pr. N. S. 397. Goretoa v. Griffin, 4 Abb. Pr, N. S. 310. Pullman i). Mayor, 49 Barb. 57. Ayers v. Lawrence, 59 N. Y. 192. The taxpayer has a right to the maintenance of an action, and to the remedy by injunction under' the Laws of 1872, ch. 161. Hnrlburt v. Banks, 1 Abb. Pr. N. S. 157. People ». Banks, 67 N. Y. 568. A person who has conveyed lands to a municipal corporation in trust to be left as a public street, may enforce the execution of such trust by enjoining the corpoi-ation from the diversion of the property to other uses. Lawrence v. Mayor, 2 Barb. 577. INJUNCTIOJT. 99 A street commissioner may be restrained by preliminary injunction, from the performance of acts that tend to deprive plaintiff of rights to which he is entitled by legislative author- ity. Brooklyn: City Road v. Fury, 4 Abb. Pr. N. S. 864. The erection and maintenance of an obstruction for private purpose in a public street — as an awning-^may be restrained by a person who suffers injury therefrom. Trenor ®. Jackson, 15 Abb. Pr. N. S. 515. The performance of acts by a municipal corporation in rela- tion to the execution of a contract, which calls for the exercise of rights which the corporation does not possess, will be restrained. ' People ». Mayor, 32 Barb. 35. The unlawful interference with plaintiff's rights to the use of water. Cromwell v. Stevens, 3 Abb. Pr. N. S. 26. And an unauthorized method of procedure to abate a nuisance. Babcock «. Buffalo, 56 K T. 208. The court declined to issue a preliminary injunction to restrain a municipal corporation from passing an ordinance granting permission to a railroad company to run steam cars on its streets ; it not appearing that the passage, of the ordinance would work immediate injury. Whitney v. Mayor, 38 Barb. 233. And from the exercise of discretion upon the part of the municipal officers, in the granting of ferry privileges, and the fixing of rates of ferriage. People ». Mayor, 32 Barb. 102. Forinstances in which the court has declined to grant the relief prayed for by the process, upon application for prelimi- nary injunction, or has regarded that relief as improper, see, Gray v. Brooklyn, 7 Hun, 633. Dry Dock Railroad ». Mayor, 55 Barb. 298. 1^0 PKOVISIOSTAL EEMEDIES. Lewis V. Oliver, 4 Abb. Pr. 121. Buroli e. Cavanaugh, 13 Abb. Pr. N. S. 410. ^ ' Roberts i>. Mayor, 5 Abb. Pr. 41. , People o. Lowber, 7 Abb. Pr. 158. Koifi 1). Green, Id. 108. Tifit V. Buffalo, 65 Barb. 460. And for instances in which it has deemed it improper to interfere in restraint of the discretionary acts of officers of cor- porations, — municipal and private. Patterson v. Mayor, 1 Paige, 114. Philips fl. Wickham, Id. 490. Woodruff a. Fisher, 17 Barb. 334. Leigh p. Westervelt, 3 Duer, 518. N. Y, Life Ins. Co. i>. Supervisors, 4 Duer, 193. Contracts. The jurisdiction by iWfekl/|fW7. Interlocutory injunction to restrain the relation oir*iO^mW^i'0% p^^.di upon the necessity of protecting the legal right, an4-4£^fe3s«!iSM for the prevention of irreparable mischief. Hilliard on Inj. § 695. Morris «. Society, &c., 1 Halst. Ch. 303. Fraudulent representations and oppressive conduct in obtain- ing an agreement or contract, will afford a ground for this relief. Dale ». Roosevelt, 5 Johns. Ch. 174. And the attempted diversion of funds, subscribed for a specific -purpose, to other uses, will be restrained. Hascall ». Madison University, 8 Barb. 174. Parties covenanting not to carry on a particular trade or business within certain limits, may be enjoined from the viola- tion of this contract. Vincent v. King, 13 How. Pr. 234. Shearman «. Ilart, 14 Abb. Pr. 358. INJUNCTION. Actors may be enjoined from violating contracts of exclusive service and covenants not to perform for others for specified terms. Daly t. Smith, 38 Supr. 158. , Hayes v. "Willis, 11 Abb. Pr. N. S. 167. This rule, however, was not formerly followed in this state, and in a series of decisions the relief was refused in such con- tract. Hamlin v. Dinneford, 3 Edw. 529. Sanquirice v. Benedetti, 1 Barb. 315. Butler V. Galletti, 21 How. Pr. 465. Frederick v. Mayor, 13 How. Pr. 566. De Pol V. Sohlke, 7 Rob. 280. The transfer of negotiable paper maybe enjoined when it was given for a designated purpose, and the defendant is about to divert it to other uses. Clark V. Gallagher, 20 How. Pr. 308. Farrington ®. Frankford Bank, 31 Bafb. 183. And, where a person has negotiable securities in his posses- sion, under a void contract, and is not of sufficient responsibilify to answer for their value, the negotiation of them may be restrained. Delafield v. Illinois, 2 Hill, 159. A preliminary injunction may issue to prevent the negotia- tion of bills of exchange^ for the cancellation of which plaintiff asks a decree. Schieflelin s. Hawkins, 1 Daly, 289. And the same rule is applicable to deeds and other written instruments. N. T. & N. H. R. R. n. Schuyler, 17 N. T. 592. Copyrights and Trademarks. The courts of the United States have exclusive jurisdiction over copyrights and patents, and the courts of the state cannot issue injunctions to restrain a violation of them. Dudley v. Mayhew, 3 N. T. 9. Potter V. McPhersoD, 21 Hun, 559. Continental Store Co. v. Clark, 7 K.T.Civ.Pro. 183. 102 PEOVISIONAL REMEDIES. A trademarh will be protected whenever there is an appar- ent or proven design to defraud purchasers by an imitation of the owner's design calculated to deceive. Amoskeag Manf. Co. v. Spear, 3 Sandf. 599. Gillott V. Kettle, 3 Duer, 624. Williamson v. Johnson, 3 Bosw. 1. Morgan's Sons v. Ti-oxell, 23 Hun, 633. Same v. Schwachofer, 5 Abb. Pr. N. S. 365. . The owner is entitled to this remedy whenever the public is in fact misled, whether intentionally or otherwise. Amoskeag Manf. Co. «. Spear, supra. The proof of a fraudulent intent is unnecessary where the ' proprietary right, which the injured person has in a particular device, by which his goods are designated, has been actually invaded. American Grocer Pub. Co. v. Grocer Pub. Co., 25 Hun, 598. Hier v. Abrahams, 83 N. Y. 519. To authorize the issuance of the injunction, it must appear that there is an imitation of some device that can be legally appropriated as a trademark. Morgan's Sons v. TroxeH, supra. The resemblance need not be entire and perfect; it is suffi- cient that the intent of misleading the public as to the owner- ship or origin of the goods is apparent. Williams b. Johnson, 3 Bosw. 1. Popham !). Wilcox, 14 Abb. Pr. N. S. 206; affirmed, 66 N. Y. 69. Clark «. Clark, 35 Barb. 76. Williams «. Spence, 25 How. Pr. 366. And that the devices adopted are such as would ordinarily lead persons dealing in the particular goods to suppose them the goods of another. Tallcott ». Moore, 6 Hun, 106. Lea ». Wolf, 15 Abb. Pr. N. S. 1. Cook ». Starkweather, 13 Abb. Pr. N. 8. 393, iisrjuNCTiow. 103 But words, marks and devices thai denote simply the nature, kind or quality of the article in which a person deals, and do not refer to the particular goods, property or place of pursuits of the plaintiff, do not confer such an ownersliip as will authorize an injunction. Stokes V. L^ndgraff, 17 Barb. 608. Corwin V. Daly, 7 Boaw. 232. Von Biel «. Prescott, 1 Law Bui. 54. Ayer v. Rushton, 7 Daly, 9. Instances of particular words and phrases, in which the court has recognized such a right as to entitle the original proprietor thereof to the aid of a court of equity, appear in the^ following cases. Burnett ». Phaloa, 19 How. Pr. 5B0. Hazard v. Caswell, 57 How. Pr. 1. Christy v. Murphy, 13 How. Pr. 77. McCardel v. Peck, 38 How. Pr. 120. Royal Baking Powder Co. v. Sherrill, 59 How. Pr. 17. Collins V. Reynolds Card Co., 7 Abb. N. C. 17. American Grocers' Pub. Ass. v. Grocers' Pub. Co., 25 Hun, 398. Matsell ®. Flanagan, 2 Abb. Pr. N. S. 459. Stephens v. De Conto, 4 Abb. Pr. N. S. 47. In the following cases the court has declined to interfere, on the ground that the devices were of such a nature, that no exclusive ownership could be acquired therein. Stokes u. Landgraff, 17 Barb. 608. VoD Biel V. Prescott, supra. Ayer v. Rushton, nupra. Manuscripts. The general principles upon which is founded the jurisdiction of equity over the piracy of trademarks, are likewise extended to literary publications ; and an author or publisher acquires a right of property in the title of his work, or the use of his name in connection therewith, for the violation of which he may properly apply to a court of equity for relief. Hilliard on Inj. § 684. 104 PEOVISIONAL RKMEDIES. Bell B. Locke, 8 Paige, 75. Bartlett v. Crittenden, 5 McLean, 33. Hogg V. Kirby, 8 Yes. 215. Palmer v. De Witt, 36 How. Pr. 233. And the rule is applicable to private letters, without refer- ence to their literary merit or value. Woolsey v. Judd, 4 Duer, 379. Thompson on Pro. Rem. 356. And to an author's rights in plays and similar literary works. French ». Magiiire, 55 How. Pr. 471. Isaacs V. Daly, 89 N. Y. Supr. 511. Siiook V. Daly, 49 How. Pr. 366. Nuisance. The jurisdiction of courts of equity to interfere to protect persons injured m the enjoyment of their property by a private nuisance, is ancient and well established. Gardner ». Newburgh, 3 Johns. Ch. 163. Though to warrant the interference of the court by the exer- cise of its chancery powers, a case of imperative necessity must be shown; or the nuisance must be in derogation of long estab- lished rights. Van Bergen v. Van Bergen, 3 Johns. Ch. 383. It is well settled that restraining orders will be granted whenever a business or occupation, however lawful in itself, becomes obnoxious to buildings upon lands adjacent or neigh- boring, and so interferes with the reasonable and proper enjoy- ment thereof, by noises, offensive odors, or otherwise. Catlin V. Valentine, 9 Paige, 575. Brady v. Weeks, 3 Barb. 157. Hutchins v. Smith, 63 Barb. 351. Peck V. Elder, 3 Sandf. 136. Howard v. Lee, 3 Sandf. 381. McKeon v. See, 51 N. Y. 300. Mullignn V. Elias, 13 Abb. Pr. N. S. 259. INJTJK-CTION. 105 And to restrain occupations that by reason of noxious gases or otherwise injure the vegetation of contiguous owners, and it matters not that the vegetation be merely ornamental. Campbell v. Seaman, 63 N. T. 568. Damming g, stream, whereby a pond is created, in which unwholesome matter collects and poisons the atmosphere. Adams ». Popham, 76 N. Y. 410. Or so that water is raised to such a height as to prevent the running of plaintiff's mill. Rothery v. Rubber Co., 34 Hun, 173. It is no answer to the injunction suit, that the nuisance existed before the plaintiff's ownership of the land. Campbell a. Seaman, 63 N. Y. 568. To vesivaJm public nuisances ; as interference with navigable streams. People V. Vanderbilt, 36 N. Y. 387. People V. Horton, 64 N. Y. 610. Del. & Had. Canal Co. «. Lawrence, 3 Hun, 163. People V. Meaoh, 14 Abb. Pr. N. S. 439. Burbank v. Fay, 65 N. Y. 57. Injunction granted to prevent the floating of logs in a stream, upon the application of a riparian owner, where the injury to the lands might be permanent. Meyer v. Phillips, 97 N. Y. 485. Whether a prescriptive right to the floating of logs, and the use of the river's banks for that purpose can be acquired, quwre ? Meyer v. Pliillips, supra. Munson v. Hungerford, 6 Barb. 365. Curtis D. Keesler, 14 Id. 511. Clements «. West Troy, 10 How. Pr. 199. Relative to a seat in the stock exchange, and the right of the owner thereof. Piatt V. Jones, 96 N. Y. 34. McCabe v. Emmnns, 51 Supr. 319, 106 PROVISIONAL EEMEDIES. The erection of poles for electric illuminating purposes, and when the same may be enjoined. Tiffany v. U. S. Illumiiiatiug Co., 51 Supr. 280. To restrain the erection of si(^n boards and the use of the sidewalk, so as to obstruct the light and obscure the the view of the plaintiff. Hallock 1). Scheyer, 33 Hun, 11 1, Jaques v. J^ational Exhibit Co., 15 Abb. N. C. 250. The remedy by injunction was refused to restrain the con- tinued use of a hawdy house on neighboring premises, on the ground that it created no physical discomfort or tangible injury to the applicant. ^ Anderson v. Doty, 33 Hun, 160, 4th Department, Barker, J., dissenting, and sustaining his dis- sent by copious references. Noise of steam whistle and machinery, to constitute such a nuisance as will authorize the interference of the court, must be unusual, ill-timed and deafening. Butterfield ». Klaber, 53 How. Pr. 255. Partners. Injunction may be granted on application of one member of a firm, to restrain a copartner from interfering with the part- nership property, when the facts are such as to warrant the dis- solution — or when a dissolution has actually taken place. Smith V. Joyes, 4 Beav. 503. Jackson v. De Forest, 14 How. Pr. 81. Law 11. Tord, 2 Paige, 810. It may be granted to enforce covenants in the articles of copartnership, that neither will carry on business within a specified distance. Shearman v. Hart, 14 Abb. Pr. 358. To prevent the misapplication of funds in the hands oJ a liquidating partner on dissolution. Deveau «. Fowler, 3 Paige, 400. INJUNCTION-. 107 It will not be granted to stay the execution of an individual judgment against firm property, as only the partner's interest, after payment of firm debts, passes to the purchaser. Moody B. Payne, 2 Johns. Ch. 548. Phillips V. Cook, 24 Wend. 389. Hergman v. Dettleback, 11 How. Pr. 46. Mowbray «. Lawrence, 23 How. Pr. 107. May be granted to prevent the use of the firm name after dissolution. Reeves e. Deuioke, 12 Abb. Pr. N. S. 93. Bininger v.. Clark, 10 Abb. Pr. N. S. 3^4. Peterson v. Humphrey, 4 Abb. Pr. 394. Fenn v. Bolles, 7 Abb. Pr. 202. Where there is no immediate danger of injury to the prop- erty, and there is a denial of the partnership, the court has frequently refused to restrain interference with the funds. Goulding v. Bain, 4 Sand. 716. Dunham v. Jarvis, 8 Barb. 88. And generally the breach of partnership agreement that does not seriously endanger its future success, does not constitute sufficient grounds for equitable relief. Henri « Walsh, 2 Ed. Ch. 139. Trespass. The commission of a mere trespass will not be restrained, but the plaintiff will be left to his remedy at law. This is the general rule. Marshall v. Peters, 13 How. Pr. 318. Sixth Ave. R. R. v. Kerr, 38 How. Pr. 383. Murray v. Knapp, 62 Barb. 566. Howe V. Rochester Iron Co., 66 Barb. 593. Leach v. Day, 27 Cal. 643. There must be some particular tort committed ; some wrong, which thej remedy at law is insufficient to redress. Livingston v. Livingston, 6 Johns. Ch. 497. N. Y. Printing Est. v. Fitch, 1 Paige, 97. Jerome v. Ross, 7 Johns. Ch. 315. Hart V. Mayor of Albany, 3 Paige, 218. Livingston v. Hudson R. R., 3 Code R. 143. 108 PEOVISIOWAL REMEDIES. To prevent an apprehended trespass, the court will intervene only in extreme cases, and preliminary injunctions, in cases of threatened trespass are seldom, if ever, allowable. Mayor ». Conover, 5 Abb. Pr. 178. Mayor v. Conover, Id. 353. Taylor ». Brookfaan, 1 Abb. Pr. N. S. 169. Sixth Ave. R. R. v. Kerr, 38 How. Pr. 382. I Q-entil v. Arnaud, 1 Sweeny, 641. Though where the wrongful acts are continued, and there is danger of their further continuance, the court will interfere ; as its interposition may prevent a multiplicity of suits. • Johnson V. Rochester, 13 Hun, 385. Waldron i>. Marsh, 5 Cal. 119. Hicks ». Compton, 18 Cal. 303. Grigsby i>. Barnett, 31 Cal. 406. Leach v. Day, 37 Cal. 643. Trespasses of a personal nature , against a franchise may be enjoined. Broadway Stage, &c. «. Society for Prevention, &e., 15' Abb. Pr. N. S. 51. Will not lie for a, threatened illegal arrest. Burch ». Cavanaugh, 13 Abb. Pr. N. S. 410. Murphy i). Police, 63 How. Pr. 396. Injunction to restrain trespass for removal of ores and pro- ducts of mines granted. Howe «. Rochester, &c. Co., 66 Barb. 593. And to protect the title of, and preserve the property in a mine; during the pendency of litigation. Hess ». Winder, 34 Gal. 370. Where the premises are held under a Federal patent, an injunction may be granted to prevent the mining operations of private individuals. Boggs V. Merced Mining Co., 14 Cal. 379. Henshaw v. Clark, Id. 460. INJUNCTION. 109 Waste. Injunction will be granted against defendant in possession, even where the title is in dispute, if the commission of waste will be attended with irreparable mischief, oi- if the plaintiff from the nature of the particular case can obtain no relief at law. Spear ». Cutter, 5 Barb. 463. Rodgers v. Eodgers, 11 Barb. 595. Winship «. Pitts, 3 Paige, 359. The rule, however, formerly forbade the issuing of restrain- ing orders against defendant in possession claiming under an adverse title. Lansing ». North River, &c. Co., 7 Johns. Ch. 164. Storm V. Mann, 4 Johns. Cli. 31. Person seized in remainder or reversion may have injunction, notwithstanding an intervening estate for life, or for a term of years. Van Deusen v. Young, 29 N. Y. 9. A mortgagee may have the remedy to stay waste ; particu- larly when the security is insufficient. Brady v. Waldron, 3 Johns. Ch. 148. Ensign v. Colburn, 11 Paige, 503. Herman ». Stewart, 5 Week. Dig. 408. Farmington «. Birdsall, Id. 431.* So, purchaser of part of mortgaged estate against an assignee for benefit of creditors of the mortgagee of another part. Johnson v. White, 11 Barb. 194. Ordinarily, the injunction is granted to prevent future waste, and not to control the disposition of wood already out ; but against an insolvent defendant, the order may forbid the removal of wood already cut. Watson V. Hunter, 5 John?. Ch. 169. Spear b. Cutter, supra. Against the working of a mine by one who is not the owner. We§t Point Iron Co. ®. Reymert, 45 N. Y. 703. 110 PKOVISIOWAL REMEDIES. Tenants in common will not be enjoined from cutting timber where insolvency is not averred, and it is not shown that they are cutting more than the share properly belonging to each. Hihn «. Peck, 18 Cal. 640. § 604. Id. When the right thereto depends npon facts not incidental to the cause of action. In either of the following cases, an injunction order may also be gi'anted in an action : 1. Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing, or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act, in violation of plaint- iff's rights, respecting the subject of the action, and tend- ing to render the judgment ineffectual, an injunction order may be granted to restrain liim therefrom. 2. Where it appears, by affidavit, that the defendant, during the pendency of the action, -threatens, oris about to remove, or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted, to restrain the removal or disposition. This section was taken substantially from the Code of Pro- cedure, §219, — subdivisions two and three being respectively one and two of the present section. The commissioners proposed the insertion of the clause, " and the case is not one where a warrant of attachment could be granted,'''' immediately after the words " to defraud the plaint- iff," in the last subdivision. This change was proposed to settle the question, whether a simple contract creditor should be permitted to enjoin his debtor from disposing of his property pending an action to establish his debt ; the commissioners citing, as tending to establish the affirmative of this proposition, Mott ». Dunn, 10 How. Pr. 235. Mitchell V. Bittman, 25 Barb. 408. INJUNCTIOJ!T. Ill And as opposed thereto, Perkins v. Warren, How. Pr. 341 Sebring«. Lant, Old. 346. Reubens v. Joel, 13 N. Y. 488. This clause relates to some right respecting the subject of the action, and is applicable to causes where there is danger that the subject of the action may be injured or destroyed. Thompson on Pro. Rem. 313. Whitehead v. BufEalo, &c. R. R., 18 How. Pr. 218. As in the case of a foreclosure of mortgage upon premises that are, or may be inadequate security for the mortgage debt, unless the mortgagor be restrained pending the litigation from the commission of waste. Brooks V. Stone, 19 How. Pr. 395. The acts to be prevented must tend to render the judgment which is sought to be obtained ineflEectual. Hovey v. McOrea, 4 How. Pr. 31. Malcolm v. Miller, 6 Id. 456. Olssen V. Smith, 7 Id. 481. Power V. Alger, 13 Abb. Pr. 284. And must be done or threatened during the pendency of the litigation, to bring the application within the provision of this section. Sebring v. Lant, 9 How. Pr. 346. Perkins v. Warren, 6 Id. 841. Malcolm v. Miller, 6 Id. 456. Merritt v. Thompson, 3 E. D. S. 288. The restraining order Avas granted in an action for divorce a TOe?iS«, which, contained a prayer for maintenance, when the defendant threatened to dispose of his property and remove from the State. Vermilyea v. Vermilyea, 14 How. Pr. 470. The refusal to pay a debt and a threat to make an assign- ment for benefit of creditors, and to prefer others,- does not afford sufficient ground for the order. Pomeroy ». Hindmarsh, 5 How. Pr. 437. 112 PROTISIOXAL REMEDIES. 4 ,Tho intent to defraud h a material element iu the application, and this intention must be shown to authorize the restraint. Brewster 11. Hodges, 1 Duer, 009. The court will exercise its discretion in granting an injunc- tion, and will refuse it, if the justice of the claim for which the suit is brought is involved in serious doubt. Reubens v. Joel, 13 .N". Y. 488. Perkins v. AVarren, C How. Pr. 341. § 605. Injunction against State officers. Where a duty is imposed by statute upon a State .officei-, or board of State, officers, an injunction order to restrain him or them, or a pel'son employed by him or them, from the performance of that duty, or to prevent the execution of the statute, shall not be granted, except by the Supreme Court, at a G-eneral Term thereof, sitting in the department in which the officer or board is located, or the duty is required to be performed ; and upon notice of the application therefor to the officer, board, or other person to be restrained. Laws of 1851, ch. 488. As tQ the issuance of injunction to restrain proceedings under a statute which the court deems unconstitutional, see Thompson e. Commrs. &c., 3 Abb. Pr. 351. People i>. Draper, 14 How. Pr. 233. Hartwell v. Armstrong, 19 Barb. 175. Hall V. Commrs. &c., 31 How. Pr. 331. An order against officers sued individually is not binding on their successors in office. Magee «. Cutler, 43 Barb. 339. § 600. By whom injunction may be granted in other eases. Except where it is otherwise specially prescribed by law, an injunction order may be granted by the court in INJUNCTION. 113 which the action is brought, or by a judge thereof, or by any county judge ; and where it is granted by a judge, it may be enforced as the order of the court. Code of Procedure, § 218. The order may be granted by the Supreme Court at general term. Drake v. Hud. &c. R. R. Co., 3 Code R. 67. Guilford v. Cornell, 4 Abb. Pr. 220. A judge related to either party to the action within the degree of affinity that would disqualify him as a juror, cannot grant an injunction. N. Y. & N. H. E. R. V. Schuyler, 28 How. Pr. 187. An act limiting the right to issue injunctions to a single tribunal, against railroad corporations, is unconstitutional. Story D. New York Elevated, &c., 3 Abb. N. C. 478. The granting of injunction orders rests within the discretion of the court, that has original jurisdiction. See cases cited on page 83, ante. Motion for the continuance of an injunction may be return- able before the judge who granted it, although the action is triable in a district other than that in which the judge resides. Harold v. Hefferman, 43 How. Pr. 241. After the denial of an application for an injunction, a second application cannot be made to another court on the same state of facts. Mayor v. Conover, 5 Abb. Pr. 253. Nor to the same judge after the dissolution of the first, upon the same papers. Schaughnessy v. Reilly, 41 How. Pr. 383. 8 114 PROVISIONAL REMEDIES. § 607. Proof necessary to procure injunction. The order may be granted, where it appears to the court or judge, by the affidavit of the plaintiff, or any other person, that sufficient grounds exist therefor. Part of section 220 of the Code of Procedure. The affidavit. It is indispensable that the grounds for the application should be set forth by aiEdavit. Milliken v. Cary, 5 How. Pr. 272. Chatterton ». Kreitler, 2 Abb. N. C. 452. An unsupported affidavit resting entirely upon information is, in general, insufficient to authorize the issuing of an injunc- tion. Campbell v. Morrison, 7 Paige, 157. Bank of Orleans v. Skinner, 9 Id. 305. WoodruflE V. Fisher, 17 Barb. 224. Livingston v. Bank of New York, 26 Barb. 304. Eoome v. Webb, 3 How. Pr. 327. Middleton v. Rondout R. R., 43 How. Pr. 481. Crocker «. Baker, 3 Abb. Pr. 182. Levy V. Ley, 6 Id. 89. People V. Mayor, 9 Id. 253. Roberts v. Mathews, 18 Id. 199. Joslyn ». Pacific Mail S. S. Co., 12 Abb. N. S. 329. Pidgeon v. Oatman, 3 Robt. 706 Where facts are stated on information and belief, the source of such information must be set forth. Crocker PROVISIONAL KEMEDIES. Nor, in case of the abatement of the action by death of the plaintiff. Johnson ». Elwood, 82 N. Y. 363. An omission to file the undertaking will entitle the defendant to a dissolution of the injunction. Johnson «. Casey, 28 How. Pr. 493. O'Dounell «. McMurn, 3 Abb. Pr. 391. Inadequacy of the sureties may afford ground for dissolving the restraining order, unless the security be increased. Eyckman ». Coleman, 31 How. Pr. 404. Willett «. Stringer, 15 How. Pr. 310. §621. Special cases excepted. The foregoing provisions of this article do not affect any special statutory provision, whereby security upon granting an injunction order may be dispensed with, in a particular case, or the security to be given in a partic- ular case is otherwise regulated. This section is new. Section 622 was repealed in 1877. It was intended, the commissioners reported, " to clear up some doubts that exist as to the meaning of the snovAs finally decide." § 623. Damages ; how ascertained. The damages, sustained by reason of an injmiction, may be ascertained and determined by the court, or by a referee, appointed by the court, or by a writ of inquiry, or otherwise, as the court shall direct ; and the decision of the court thereupon, or an order confirming the report of the referee, is conclusive, as to the amount of those INJUNCTION. 129 damages, upon all the persons who have executed the undertaking, unless it is reversed upon appeal. The court may, in its discretion, direct that the sure- ties have notice of the hearing, or of an appeal, and may prescribe the time and manner of giving them notice. The Code of Procedure, sections 222 and 224, embraced, practically, the provisions hereof. The assessment of damages. The clause, usually inserted in the undertaking, providing for an assessment by a referee or otherwise, is now unnecessary. This provision was necessary under the old chancery practice, but the insertion of the substance of the chancery rule relative thereto, renders it no longer essential. Higgins v. Allen, 6 How. Pr. 30. Garcie v. Sheldon, 3 Barb. 232. It can be made only after a Jinal determination that the plaintiff is not entitled to the injunction. Shearman b. N. Y. Cent. Mills, 11 How. Pr. 269. Neugent v. Swan, 61 How. Pr. 40. Methodist Churches ». Barker, 18 N. Y. 463. Benedict v. Benedict, 76 N. Y. 600. Not until after a final entry of judgment in the action. Lawton v. Green, 64 N. Y. 326. Roberts v. While, 73 N. Y. 375. Weeks v. Southwickes, 12 How. Pr. 170. But a reference to ascertain the amount, by consent of the parties, waives any objection there may have been upon that ground. Lawton •b. Green, supra. An irregularity in this particular may also be waived by per- mitting the referee to proceed to a final report without objec- tion, or if, after having made objection, the party liable pro- ceeds upon the reference. Roberts 9. White, 73 N. Y. 875. 130 PROVISIONAL REMEDIES. A discontinuance by consent, is equivalent to the entry of a final judgment, and the same is ti'ue of a dismissal of the com- plaint. Taacks v. Schmidt, 19 How. Pr. 413. Coates V. Coates, 1 Duer, 664. Waterbur^ e. Bouker, 10 Hun, 263. Jacobs . Joel, 15 How. Pr. 320. Disbrow v. Garcia, 52 N. Y. 654. Rose ». Post, 56 N. T. 603. Newton ®. Russell, 87 N. Y. 527. But see the opinion of the United States Supreme Court, denying the right to include counsel fees in the amount properly recoverable upon an injunction bond. Oelrichs v. Spain, 15 Wall. 211. Such fees incurred on the trial of the cause are not to be embraced in the assessment. McDonald v. James, 88 Supr. 76. Disbrow v. Garcia, 53 N. Y. 654. Unless the expanse of the trial was caused or materially increased by the issuance of the order. Hovey v. Rubber Pencil Co., 50 N. Y. 335. Taacks v. Schmidt, 18 Abb. Pr. 307. A party cannot lay a foundation for a claim for damages by employing an unnecessary number of counsel; and only one counsel fee should be allowed on this ground, on the reference. Hotchkiss ®. Piatt, 8 Hun, 46. The allowance of a proper counsel fee, however, on the refer- ence is too well settled to admit of doubt. Rose s. Post, 56 N. Y. 603. Edwards ®. Bodiae, 11 Paige, 224. < Aldrich«. Reynolds, 1 Barb. Ch. 613. Andrews v. Qlenville, 50 N. Y. 283. , Hovey «. Rubber Tip Co., Id. 335. INJUNOTION. 133 Costs cannot be allowed in addition to the stipulated sum of the undertaking. Lawton v. Green, 64 N. Y. 326. Appeal may be taken by sureties, who appeared upon notice to oppose the assessment, although they were not parties to the action. Hotchkiss V. Flatt, supra. § 624. Damages sustained by a third person. Where the defendant enjoined was an officer of a cor- poration, or joint stock association, or a bailee, agent, trustee, or other representative of another, and the dam- ages sustained by him, are less than the sum specified in the undertaking, the court or the referee may also sepa- rately ascertain and determine the darnages sustained, by reason of the injunction, by the corporation, association, or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking ; and those damages may be recovered in a separate action, brought as prescribed in the next section. Not in Code of Procedure. § 625. Action on the undertaking. Where the damages have been ascertained by the decision of the court, or the confirmation of a referee's report, as prescribed in the last two sections, any person, entitled to the benefit of an undertaking, executed pur- suant to the provisions of this title, may bring an action thereon, without further leave of the court. See Andrews v. Glenville 'Wooleii Co., 50 N. Y. 388. 134 PKOVISIONAX KEMEDIES. This section was not in the Code of Procedure, and was intended to settle the questions presented in Griffing «. Slate, 5 How. Pr. 205. Higgins V. Allen, 6 Id. 30. N. y. C. Ins. Co. V. Saflord, 10 Id. 344. Wilde s. Joel, 15 Id. 320. § 626. Application to vacate or modify injunction, without notice. Where the injunction order was granted without notice, the party enjoined may apply, upon the papers . upon which it was granted, for an order vacating or modifying the injunction order. Such an application may be made, without notice, to the judge who granted the order, or who held the term of the court where it was granted ; or to the general term of the court. It cannot be made without notice, to any other judge or term, unless the apphcant produces proof, by affidavit, that, by reason of the absence or other disabUity of the judge who granted the order, the application cannot be made to him ; and that the applicant will be exposed to great injury, by the delay required for an apphcation upon notice. The affidavit must be filed with the clerk ; and a copy thereof, and of the order vacating or modi- fying the injunction order, must be served upon the plaintiff's attorney, before the order takes effect. This section is new. An injunction order granted in a case in which the court has jurisdiction, if erroneously granted, is voidable only, and until set aside, is entitled to obedience. Davis V. Sturtevant, 3 Seld. 263. Peck B. Yorks, 32 How. Pr. 408. Erie R. R. v. Ramsey, 45 N. Y. 637. Mayor v. N. Y. & S. I. Ferry Co., 64 N. T. 622. INJUNOTIOW. 135 As an order broader than the complaint, and liable to be set aside for that reason, is not void, and must be obeyed till regu- larly vacated. Mayor v. N. Y. & S. I. Ferry Co., supra. An objection for defect of parties affords no ground for dis- regarding the injunction. Tradesman's Bank v. Menitt, 1 Paige, 303. Shulten v. Lord, 4 E. D. Smith, 2oG. This section is intended to apply only to applications made upon the papers in the case, and without notice ; it was not the intention to afford a hearing to the parties. Coffin B. Prospect Park, &c. R. K., Gl How. Pr. 105. The power possessed by a judge to vacate or modify his restraining orders ex parte, should only be exercised in rare cases and with extreme caution, and to guard against serious loss. Bruce v. Del. & Hudson Canal Co., 8 How. Pr. 440. Peck ■». Torks, 41 Barb. 547. Nat. Gaslight Co. v. O'Brien, 38 How. Pr. 271. On an ex parte application, the plaintiff's papers will be taken as true, for the purposes of the application, and the order should stand, if they present a prima facie case. Hathorn «. Hall, 4 Abb. Pr. S37. §627. Vacating injunction order upon notice. Where the injunction order was granted without notice, or where it was granted upon notice with Jeu ve- to apply to vacate or modify it, the party en omed may also apply, upon notice, to the judge who granted it, or to the court, at a term where a contested motion in Iho action may be heard, for an order^ vacating or mod'f ;. - ing the injunction order. Su;h an application may be founded upon the papers upon which the injunction was granted ; or upon proof, by affidavit, on the pait of 136 PROVISIONAL REMEDIES. the defendant ; or both. Where it is founded upon proof on the part of the defendant, it may be opposed by new proof^ by affidavit, on the part of the plaintiff, tending to sustain the injunction. This section contains the substance of sections 225 and 223 of the Code of Procedure with additional provisions. Who may apply. A defendant who has moved for a dissolution upon the papers, may renew the motion for facts that are extrinsic. Hazard v. Hudson River Bridge, 27 How. Pr. 396. Section 628, infra. A person enjoined who has disobeyed the injunction order, and who is in contempt therefor, may move when the continu- ance of the order affects his substantial rights. Smith V. Reno, 6 How. Pr. 134. Field «. Hunt, 23 Id. 329. McCardel i). Peck, 38 Id. 120. But a defendant who has willfully violated the injunction is not in a situation to ask the court to exercise its discretion, to relieve him from the restraining order. Hilton V. Patterson, 18 Abb. Pr. 345. Krom V. Hogan, 4 How. Pr. 335. A party who has not been, in terms, restained, but who has been affected in his rights by the issuance of the order, may move to vacate it. Landers «. Fisher, 34 Hun, 648. This right he possesses by a reasonable construction of the Code, as well as by the general principle that will relieve a person who is embarrassed in the enjoyment of his rights by an order improvidently made by the court. Landers ». Fisher, mpra. Lowber v. Mayor, 5 Abb. Pr. 335. Dwight's Case, 15 Abb. Pr. 359. Oould V. Mortimer, 16 Abb. Pr. 448. IKJUNOTION. - 137 Attaching creditors who have caused attachments to be levied upon the assets of a corporation prior to the appointment of a receiver, may move to dissolve the injunction granted upon the receiver's appointment, so as to be allowed to perfect their judg- ment. Woerishoeffer v. North River Const. Co., 6 N. T. Civ. Pro. 113. When the motion may be made. It may .be made at any time before the service of defendant's answer. Middletown v. Rondout & Oswego R. R., 43 How. Pr. 144. Under ' the former practice this was not the rule, and the motion cpuld only be made after answer, unless the plaintiff had been guilty of delay in taking the requisite steps to expedite the cause. Mallett V. Weybossett Bank, 1 Barb. 316. Depeyster ®. Graves, 3 Johns. Ch. 148. Schemerhorn v. Merrill, 1 Barb. 511t Papers which may be used on the hearing. The verified complaint which was before the judge at the time of the issuing of the order, may be used to supply omis- sions in the affidavit. Turner v. Thompson, 2 Abb. Pr. 444. Counter affidavits in denial of new matter set up by defend- ant, may be read by the plantiff. Shearman v. Hart, 14 Abb. Pr. 358. Society, &c. Juvenile Del. v. D^ers, 60 Barb. 152. Answer may be used as an affidavit. See section 630, supra. Krom V. Hagan, 4 How. Pr. 225. Schoonmaker v. Dutch Church, 6 Id. 265, 'J38 PKOVISIOIfAL REMEDIES. As to the effect of an answer, upon the motion to dissolve, prior to the adoption of the present Code, see Rogers v. Rogers, 1 Paige, 436. "Wakefield v. Gillespy, 5 Paige, 113. Roberts «. Anderson, 3 Johns. Oh. 303. Bank of Monroe v. Schermerhorn, 1 Clarke Ch. 303. Perkins v. Warren, 6 How. Pr. 341. Depositions taken before a consul in a foreign country may be read by plaintiff to show the sources of the information upon which the complaint is founded. Zellenkoffi v. Collins, 33 Hun, 156. When motion to dissolve will be granted. Where the answer contains a full and explicit denial of the ■whole equity of the complaint, as a general rule, the injunction •will be dissolved. Pinnegan ®. Lee, 18 How. Pr. 186. Ryckman v. Coleman, 31 How. Pr. 404. Hazard . Kelly, 81 Hun, 75. Personal property capable of manual delivery. Personal property, tangible in its character, can only be attached by the sheriff's taking it into his actual manual custody. United States v. Graff, 4 Ilun, 634; 67 Barb. 804. Haggerty a. Wilber, 16 Johns. 387. GoU v. Hinton, 8 Abb. Pr. 130. Smith 1). Oi'ser, 43 N. Y. 133. Marshall e. McGregor, 59 Barb. 519. Anthony e. Wood, 96 N. Y. 180; 67 How. Pr. 434. ATTACHMENT. 189 « This provision merely changes the mode of making a levy but doesnot alter the character of the property sought to be attached. Anthouy v. Wood, 96 N. Y. 180. • And where the legal title to a note has been transferred to a third person and the debtor has no legal title therein, the manual taking of the instrument by the officer accomplishes nothing. Ibid. An actual custody of the instrument is absolutely necessary to the perfection of the attachment, and until the officer has secured such custody, he has made no levy. Ibid. A check is an " instrument for the payment of money " within the purview of this section, and must be attached by a manual caption. Casper ». Wallace, 50 N. Y. Supr. 147 ; affirmed on appeal, Feb. 9, 1886. Partnership property must be taken into custody to secure the lien by attachment upon a warrant in favor of a member of the copartnership. Smith V. Orser, 42 N. Y. 132. And the debtor's interest therein may be sold, and the prop- erty delivered to the purchaser. Marshall v. McGregor, 59 Barb. 519. The purchaser in such case takes the property as joint tenant with the other partners, and is liable to account to them in the same manner as the debtor would have been. Phillips V. Cook, 34 Wend. 389. Walsh V. Adams, 8 Denio, 135. Burrall v. Acker, 23 Wend. 606. Other personal property. Under section' 235 of the Code of Procedure, an attachment upon shares of bank stock, and other property incapable of manual delivery, can only be executed, where the property is 190 PBOVISIONAL KEMISDIES. held by a corporation, by leaving a certified copy of the warrant with the oflScera or managing agent of such corporation. Pardee v. Leitch, 6 Lans. 303. Leaving such copy and notice at the place of business of the debtor with some third person there, is not a sufficient service of the notice by the sheriff. Oiser V. Grossmau, 11 How. Pr. 530. Wilson V. Duncan, 11 Abb. Pr. 3. Kuhlmane. Orser, 5 Duer, 243. Clarke v. Goodrjdge, 41 N. Y. 210. In attaching a judgment in favor of an attachment debtor, the attachment is not properly executed by service of a copy of the warrant upon one of the attorneys for the debtor, in the action wherein the judgment was rendered ; and a purchaser at sheriff's sale under execution and order of the court in the attachment suit acquired no title. To subject a judgment to an attachment the warrant must be served upon the judgment debtor. Matter of Flandrow, 84 N. Y. 1. The attorney for the successful party in an action in which judgment was procured, is not an "individual holding such property," within the meaning of the Code. Idem. Nor is a person named as executrix in a will, the validity of which has not been established. Same Estate, 93 N. Y. 256. In an action by a judgment creditor upon an undertaking given to stay proceedings pending an appeal, where the judg- ment has been regularly attached at the suit of creditors of the judgment creditor and the attachments are still in force, it is not necessary to attach the undertaking separately, as it is an incident of the judgment, not an independent liability of the sureties. Wehle V. Spellman, 75 N. Y. 585. ATTACHMENT. 19 i Merely handing a copy of the attacliment order to a person in charge of the property and informing him of the character of the paper, does not constitute an actual levy. Miles »■. Brown, 38 N. Y. Supr. 400. The property of the principal in the proceeds of sales and collections in the hands of his agent is " property incapable of manual delivery." Greentree «. Rosenstock, 61 N. T. 583; affi'g 34 N. Y. Supr. 505. So property under pledge or consignment. Clarke v. Goodridge, 41 N. Y. 210. The notice need not specify particularly the property or debts sought to be attached. A general notice by the sheriff that he attaches all property, debts, etc., belonging or owing to the defendant in the attachment suit, in the possession or under the control of the individual served, is sufficient. O'Brien «. Mech. & Trad. Fire Ins. Co., 56 JST. Y. 52; 15 Abb. Pr. N. S. 232; 86 N. Y. Supr. 110; 14 Abb. N. S. 314, and note; affl'g 44 How. Pr. 213. Thurber k Blanck, 50 N. Y. 80. McGinn ». Ross, 33 N. Y. Supr. 346 ; 11 Abb. Pr. N. S. 20. Greenlcaf v. Mumford, 19 Abb. Pr. 469. See as to construction under the Code of Procedure : Kulilman v. Orser, 3 Duer, 242. Wilsons. Duncan, 11 Abb. Pr. 3. Orser ». Grossman, 11 How. Pr. 530. Harman ». Remseu, 2 Abb. Pr. N. S. 272. Where the sheriff fails to give notice of the levy to the debtor, a debt due on account to the defendant in the action cannot be reached by attachment. Clark V. Warren, 7 Lans. 180. It seems that where the sheriff himself holds the execution, it is not necessary to serve notice of the property levied on as required by section 235 of the Code of Procedure, in order to make a valid levy by virtue of the attachment. Wehle V. Conner, 69 N. Y. 546 ; again, 83 N. Y. 231. 193 PR0VI8I0KAL REMEDIES. § 650. Certificate of defendant's interest to be furnished, Upon the application of a sheriff, holding a warrant of attachment, the president or other head of an associa- tion or corporation, or the secretary, cashier, or manag- ing agent thereof, or a debtor of the defendant, or a person holding property, including "a bond, promissory note, or other instrument for the payment of money, belonging to the defendant, must furnish to the sheriff a certificate, under his hand, specifying the rights or num- ber of shares of the defendant, in the stock of the associ- ation or corporation, with all dividends declared, or incumbrances thereon ; or the amount, nature, and description of the property, held for the benefit of the defendant, or of the defendant's interest in property so held, or of the debt or demand owing to the defendant, as the case requires. Code of Procedure, section 236; with additions and changes calculated to render the section more explicit. Before a sheriff can demand a certificate, under this section, he must disclose the fact that he has in his hands an attachment , or execution. Schieb v. Baldwin, 13 Abb. Pr.469 ; 33 How. Pr. 378. Where a sheriff has attached certain shares of stock in a manufacturing corporation, and received a certificate showing defendant's interest, there is still a right after judgment to examine an officer of the corporation in relation to said certifi- cate. Smoot «. Helm, 1 N. Y. Civ. Pro. 308. On a levy of an attachment a receiver cannot be required to furnish the sheriff with a certificate. The plaintiffs, relying on the notice to the receiver of their lien, must seek redress upon the judgment recovered in the proper tribunal. Lehman i>. Williams, 1 Law Bull. 58. ATTACHMENT. 193 A bailee of goods having a lien thereon for an amount exceeding their value, who certifies in good faith that he holds no goods of the defendant, does not forfeit his lien thereby. Bk. of Mut. Redemp. v. Sturgis, 9 Bosw. 660. Where a person, supposed to have property of the defendant in his hands, furnishes to the sheriff a certificate designating the amount and description of the property of the defendant, admit- ted to be held by the person served, such certificate is conclusive, and no further examination for the discovery of other property can be had. Hopkins v. Snow, 4 Abb. Pr. 368. But a certificate of a negative character, — e. g., that the party served has no property of defendant, is not a certificate desig- nating the amount and description of the property, and the party may be examined under oath to show that he has property of the defendant. Hopkins ®. Snow, supra. See next section and note. Where such third person has given the sheriff a certificate of the amount of the fund in his hands, he is not estopped from showing, in an action against him, that there was a mistake in giving the certificate. Almy ». Thurber, 13 Abb. N. C. 459. Wright 11. Cabot, 47 Super. Ct. 229; 89 N. Y. 570. §651. Examination of person refusing certificate. If a person, to whom application is made, as prescribed in the last section, refuses to give such a certificate ; or, if it is made to appear, by affidavit, to the satisfaction of the court, or a judge thereof, or a county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given by him is untrue, or that it fails fuUy to set forth the facts, required to be shown thereby ; the court or judge may make an order, directing him to attend, at a specified time, and at a 194 PROTISIOITAL KEMEDIES. place within the county, to which the warrant is issued, and submit to an examination under oath, concerning the same. The order may, in the discretion of the court or judge, direct an appearance before a referee named therein. Substituted for provisions contained in the second sen- tende of section 236, Code of Procedure, applicable to the same subject matter. Speakihg of this section the Commissioners say : " One of the amendments is for the purpose of changing the ruling in Carroll p. Finley, 26 Barb. 61 ; Reynolds y. Fisher, 48 Id. 146; Hoagland v. Stodolla, 1 Code R. N. S. 210; the substantial effect of which is that if a certificate is given, there can be no examination, although it is false." Where an examination is had, it must be conducted in the same manner, and subject to the same rules, as the examination of a third person upon supplementary proceedings. Hopkin^ V. Snow, 4 Abb. Pr. 36S. A refusal to give a certificate does not suspend action upon the attachment or prevent a levy until an examination is had. The sheriff is not bound by the certificate, if given, but may attach the property described by the certificate and all other property liable to attachment in the possession of the party. O'Brien v., Mech. & Trad. F. Ins. Co., 56 N. T. 53. Hall V. Brooks, 25 Hun, 577. If the certificate is refused, the plaintiff's remedy is to exam - ine the person refusing the certificate. And the person so examined cannot, after the examination has been had, be ordered to make such certificate. Buckingham v. Wliite, 1 N. T. Civ. Pro. 365; 35 Hun, 441. Where a debtor of the defendant, on account of his refusal to give a certificate for the benefit of the attaching creditor, was required by order to appear and be examined, an affidavit of such debtor, stating that the fupds in his hands are held in trust and ATTACHMENT. 195 cannot be applied in payment of the plaintiff's debt, will not vacate such order. The attaching creditor is not bound by the statement of the debtor, but is entitled to an examination. Baxter v. Mo., Kansas & Texas R. E. Co., 4 Htin, 630; 67 Barb. 283. Glen Cove M'f g Co. v. Gotthold, 1 N. T. Civ. Pro. 366, n. Denial of defendant's title to the goods will not end the sxamination. He may be punished for contempt if he refuses to produce papers in his possession showing that the goods do not belong to defendant. Rutter e. Boyd, 3 Abb. N. C. 6. §652. Goods attached on shipboard. Exdept as otherwise prescribed in the next section, the owner or master of a vessel, on board of which goods of a defendant, against whom a warrant of attachment is issued, have been shipped for transportation, without reshipment or transshipment in the State, to a port or place without the State, may transport and deliver them according to their destination, notwithstanding the war rant ; unless the plaintiff, his agent or attorney, executes to the owner or the master of the vessel, a written under- taking, with sufficient sureties, in a sum specified therein, to pay him all expenses, damages, and charges, which may be incurred by him, or to which he may be sub- jected, for unlading the goods from "the vessel, and for all necessary detention of the vessel, for that purpose. The undertaking must be approved, with respect to its form, the sum specified therein, and the suiSciency of the sureties, by a judge of the court, or the county judge of the county whei-ein the vessel is situated, or, in the city and county of -New York, by a judge of a superior city court within that city and county. Based upon Laws of 1841, c. 343. 196 PROVISIONAL REMEDIES. Goods shipped for transportation, for which bills of lading Lave been issued, cannot be seized by the sheriff under process against the shipper, without giving indemnity. Neglect to do this will render him liable for the value of the goods. ' Campbell v. Conner, 70 N. Y. 424. 653. When foregoing section is not applicable. The last section does not apply, where the owner or master, before the shipment of the goods, had actual information of the granting of the warrant, or where he has, in any wise, connived at, or been privy to, the ship- ment thereof, for the purpose of screening them from legal process, or of hindering, delaying, or defrauding creditors. Laws of 1841, c. 342, § 2. § 654. Inventory upon levy. The sheriff must, immediately after levying under a warrant of attachment, make, with the assistance of two disinterested freeholders, a description of the real prop- erty, and a just and true inventory of the personal prop- erty, upon which it was levied, and of the books, vouch- ers, and other papers taken into his custody, stating therein the estimated value of each parcel of real prop- erty attached, or of the interest of the defendant therein, and of each article of personal property, enumerating such of the latter as are perishable. The inventory must be signed by the sheriff and the appraisers ; and must, within five days after the levy, be filed in the office of clerk of the coimty, where the property is attached. ATTACHMENTS. 197 2 R, S. 4, § 8, contained the substance of the above ; embracing, however, only personal property, and requiring a return within four days of the inventory. Although the property be appraised at iqore than enough to satisfy the plaintiff's demand, the sheriff will be liable for the deficiency, if there was other property which he might have seized. Ransom «. Halcott, 9 How Pr. 119. ' And if it appear, at the time of making the inventory or thereafter, that the property is insufficient, a further levy may be made. Denvrey v. Fox, 33 Barb. 533. Peck V. Tiffany, 3 N. T. 451. The levy, if otherwise sufficient, will not be invalidated by the neglect of the sheriff to make and return an inventory of property, as the provision requiring an inventory is for the ben- efit of the creditor at whose suit the property is attached, and can be enforced by him alone. McGiaa v. Ross, 11 Abb. Pr. N. S. 30 ; 33 N. T. Supr. 846. The sheriff is not required to make this inventory on the day, or immediately after the day on which he serves the attach- ment. ^ Greenleaf «. Mumford, 30 How. Pr. 30. See Kuhlman v. Orser, 5 Duer, 343. Where a specific description of a lot of land was omitted by mistake, the return of the attachment and inventory may be amended, by inserting such description. Vanderheyden v. Gary, 38 How. Pr. 367. As to the right to amend, see : Richards s. Varnnm, 8 How. Pr. 79. Smith v. Hudson, 1 Cow. 430. Wright V. Hooker, 4Id. 415. Hunt V. Grant, 19 Wend. 90. Bixly V. Mead, 18 Id. 611. 198 PROVISIONAL KEMEDIES. § 655. Actions may be maintained by sheriff. The sheriff must, subject to the direction of the court or judge, collect and receive all debts, effects, and things in action, attached by him. He may maintain any action or special*proceeding, in his own name, or in the name of the defendant, which is necessary for that pur- pose, or to reduce to his actual possession an article of personal property, capable of manual dehvery, but of which he has been unable to obtain possession. And he may discontinue such an action or special proceeding at such time and on such terms as the court or judge directs. Code of Procedure, § 232. It is the right and the duty of the sheriff to bring a suit to collect a demand attached by him, without waiting for the deter- mination of the action in which the judgment was issued, or for any order ordirection of the court or judge. Davidson v. Chatham Nat. Bk., 33 Hun, 188. Kelly V. Breusing, 33 Barb. 601. The attaching creditor has no authority to make a motion ordering a person holding property of the attached debtor to deliver it to the sheriff. The proceeding for that purpose must be instituted by the sheriff in accordance herewith. Hall V. Brooks, 2 N. T. Civ. Pro. 198. Neither the attaching creditor nor the sheriff can bring an action against an assignee for the purpose of setting aside an alleged fraudulent assignment by the debtor of a bond and mortgage which the sheriff had attempted to attach by leavmg with the obligor a certified copy of the attachment with notice, and to subject the bond and mortgage to the operation of the attachment. Thurber v. Blanck, 50 N. Y. 80. Contra, Mech. & Trad. Bk. v. Dakin, 51 Id. 519. ATTACHMENT. 199 The proceeds of a sale by assignees of assigned property are not subject to levy and sale on oxecntion, and the sheriff cannot institute a creditor's suit to subject them to the attachment. Lawrence v. Bank of Republic, 35 N. Y. 320; 31 How. 503, rev'g D Rob. 143. An action cannot be maintained to create a lien on a deposit in a bank by a person who acts in collusion with the debtor ; no lien having been acquired by the attachment ; and such fund can not be attached. Greeuleaf ». Mumfnrd, 35 How. Pr. 148. Rinchey v. Stryker, 38 N. Y. 45 ; 26 How. Pr. 75. Kelly V. Downing, 43 N. Y. 71. Kelly 1). Lane, 38 How. Pr. 138. Heaye v. BoUes, 33 How. Pr. 266. Hall «. Stryker, 37 N. Y. 596. Frost «. Mott, 34 N. Y. 258. It is questionable whether the provisions of the Code author- ize an action by the sheriff to reach the unadjusted interest of a beneficiary, under a deed of trust, which will involve the deter- mination of conflicting claims and liens, and which must be dis- posed of before it can be ascertained whether the defendant has an interest. Kelly V. Whiting, 51 How. Pr. 301. Where the subject of attachment is in litigation the ofE.cer may continue the action in the name of the plaintiff, or may be substituted as plaintiff. Russell «. Ruckiiian, 3 E. D. S. 419. O'Brien v. Glenville Woolen Co., 50 N. Y. 128. W'here several attachments have been issued, the prosecution of such actions by one of the attaching creditors does not bar the claims of the others. Until the debts are collected and appi'opriated to the payment of the attaching creditors in the order of their priority, the sheriff is the proper party to bring action against the adverse claimants to settle their rights, or another of the attaching creditors may do so. O'Brien v. Glenville Woolen Co., aupra. 200 PROVISIONAL EEMEDIES. The remedies given by this section to the sheriff are merely cumulative, and designed to give a more summary process in cases where it can be made effectual, and do not deprive credi- tors of their right to enforce their lien by a suit in equity. Skinner ». Stuart, 13 Abb. Pr. 443. Kelly ». Lane, 18 Abb. Pr. 329. Klnchey «. Stryker, 38 N. Y. 45. Mech. Bk. of Jersey City v. Dakin, 50 Barb. 587. Greenleaf v. Mumford, 35 How. Pr. 148. Where a discontinuance would work injustice to the defend- ant in the attachment suit, the sheriff will not be permitted to discontinue. Bowe V. Knickerbocker L. Ins. Co., 37 Hun, 313. O'Brien ». Merchants' Ins. Co., 16 Abb. N. S. 313. §656. Sale of property liable to depreciation. If property attached, other than a vessel, is perish- able, the court or judge may, by an order made with or without notice, as the urgency of the case in its or his opinion requires, direct the sheriff to sell it at pubhc auction, and thereupon the sheriff must sell it accord- ingly. If it consists of live animals, the same proceed- ings may be had, but such notice shall be given to the parties to the action, of the application for the order as the court or judge presci'ibes. The order directing the sale must prescribe the time and place of the sale, and notice thereof must be given in such manner, and for such time as is prescribed in the order. The sheriff must retain in his hands the proceeds of the sale, after deducting his expenses as allowed by the court or judge. Code of Procedure § 233, and additions. It is essential that the property shall appear to be inherently liable to deterioration and decay. Fisk V. Spring, 25 Hun, 867. ATTACHMENT. 201 As to what may be considered " perisbable " property, see the note at the end of Fisk V. Spring, 1 N. Y. Civ. Pro. 178. And also Davis V. Ainsworth, 14 How. Pr. 346. §657. Trial of the validity of a claim. If goods or effects, other than a vessel, attached as the property of the defendant, are claimed by or in behaK of another person, as his property, the sheriff may, in his discretion^ impanel a jury to try the validity of the claim. 2 R. S. 4, § 10. This section confers upon the sheriff no right to impanel a ?ury to try the validity of a claim, except where the goods have been levied upon. Hallen v. Reilly, 9 Daly, 271. It is questionable whether the oflBcer may summon a jury to advise himself of the rights of the defendant, in goods pointed out to him as defendant's property ; and whether this section supersedes the common law rights of the sheriff. Ibid. §658. Proceedings, if claimant succeeds. If, by their inquisition, the jury find the property of , the goods or effects to have been in the claimant, at the time of the levy, the slieriff must forthwith deliver them to him or his agent ; unless the plaintiff gives an under- taking, with sufficient sureties, to indemnify the sheriff for the detention thereof. If the undertaking is given, 202 PROVISIONAL EEMEDIES. i the sheriff must detain the goods or effects, as the prop- erty of the defendant. R. S. 4, § 11, the word " undertaking" being substituted for « bond." § 659. Claimant's right to bring action not prejudiced by finding. If the property is found to be in the defendant, the finding does not prejudice the right of the claimant to bring an action, to recover the goods or effects, or the value thereof. New. §660. Claim to domestic vessel. Where a vessel, belonging to a port or place in the United States, or a share or interest therein, is attached, the court or judge, on the application, within thirty days thereafter, of a person claiming title thereto, or of his agent, must appoint three indifferent persons to make a valuation thereof. '2R. S. 5, §13. " Must " was substituted for " may." - § 661. Appraisal and valuation to be returned. A valuation of a vessel, or of a share or interest therein, made as prescribed in this article, must be in writing, and subscribed by the appraisers ; each of whom must take and subscribe an affidavit, annexed thereto, to the effect, that the valuation is, in all respects, just and fair, and that the value of the vessel, share, or interest, is truly stated therein, according to the depon- ent's belief. The valuation must be immediately ATTACHMENT. 203 returned to the court or judge ; and, after an under- taking is given, or after the expiration of the time to give an undertaking, as prescribed in the next section, it must be delivered to the sheriff. New. §662. Undertaking. Within two days after the vahiation is returned, the claimant or his agent may execute an undertaking to the sheriff, with sufficient sureties, approved by the ' court or judge, who must justify in twice the appraised value, to the effect, that, in an action to be brought on the undertaking, the claimant will establish that he was the owner of the vessel, share, or interest, at the time of the levy thereupon ; and that, in case of his failure to do so, he wiU pay the > amount of the valuation, with interest from the date of the undertaking, to the sheriff ; or, if the warrant is vacated or annulled, to the defend- ant, or his nersonal representative. 2 R. S. 5, § 14, adapted to the existing mode of pro- cedure. For definition of "annulled," see section 3343, subd. 12. §663. \71ien vessel to be discharged. Upon such an undertaking being executed and delivered to the sheriff, the court or judge must make an order, directing the vessel or share to be discharged from the attachment. Thereupon the sheriff must dis- charge the same accordi'ngly. 211. S. 5, § 15, the word "undertaking" substitute* for " bond." 204 PBOVISIONAL KEMEDIES. § 664. Action on undertaking. The court or judge may, upon the application of either party, at any time before the warrant is vacated or annulled, direct the sheriff to commence an action upon the undertaking, upon such terms and conditions, and under such regulations, between him and the apph- pant, as it or he deems just. And if the warrant of attachment is vacated or annulled, the defendant in the attachment, his assignee or personal representative, may commence and maintain an action upon the undertaking, or may be substituted, in place of the sheriff, in an action pending thereupon. Founded upon 2 R. S. § 16. §665. Defense to action ; plaintiffs recovery. ■♦ In such an action, the claimant may show, in bar of a recovery, that he was the owner of the vessel, share, or interest, at the time when it was attached. If judg- ment passes against him, the plaintiff is entitled to recover the amount of the valuation, with interest from the date of the undertaking. 2 R. S. 5, § 17, amended verbally, and by substituting " when the same was attached," for " of issuing such war- rant." § 666. Valuation of foreign vessel. Where a foreign vessel, or a share or interest therein, is attached, it must bo valued, as prescribed in sections six hundred and sixty, and six hundred and sixty-one of this act, upon the application of a person, who makes ATTACHMENT. 205 afQdavit, to the effect that he is the owner thereof, or that he is the agent of a person, nataing him and his residence, whom he beheves to be the owner of the ves- sel, share or interest attached. 2 R. S. 5, § 18. § 667. ITotice of application. Such notice of the apphcation must be given to the plaintiff, as the court or judge deems reasonable. 2 R. S. 5, § 19. § 668. Undertaking required from plaintiff. ^ Within three days after the valuation is returned, the plaintiff must give, to the person in whose behalf the claim is made, an undertaking, with sufficient sureties, approved by the court or judge, who must justify in t-wice the appraised value, to the effect that they wiU pay such damages as may be recovered for seizing the vessel, share, or interest, in an action brought against the sheriff, or the plaintiff in the attachment, within three months from the approval of the undertaking, if it appears therein that the vessel, share, or interest belonged, at the time of attaching it, to the person in whose behalf the claim is made. The commissionera say : " Proposed as a substitute for 2 R. S. 5, § 20. The amendments are merely verbal, and to adapt this section to the existing mode of procedure ; except that we have omit- ted, "as unnecessary, the condition of the bond that the attachment shall be prosecuted to effect, and have added a clause extending the undertaking to actions against the sheriff." ?06 PROVISIONAL KEMEDIES. §669. When vessel to be discharged. Unless such an undertaking is given, the court or judge must grant an order discharging the vessel, share, or interest so claimed, from the attachment ; whereupon the sheriff must discharge the same accordingly. 2 R. S. 6, § 21, with the substitution of "undertaking" for « bond." § 670. Claim by defendant to vessel; terms upon which it may be granted. If, after such an undertaking is given by the plaint- iff, the warrant is vacated or annulled, or the attachment .is discharged as to the vessel, share, or interest, the defendant or his agent is entitled to claim the same, or the proceeds thereof, if it has been sold, only upon his showing, to the satisfaction of the court or judge, that the undertaking has been discharged ; or giving to the plaintiff an undertaking, with sufficient sureties, approved by the court or judge, who must justify in twice the appraised value, to the effect, that they will indemnify the plaintiff against all charges and expenses, in consequence of the undertaking. 2 R. S. 5, § 23, wilh amendments to adapt it to the existing mode of procedure. Speaking of the above, the commissioners say : "We doubt the justice of this provision, but retain it from an unwillingness to propose any radical changes not imperatively required. The reviser's note to the original sectiop justifies it on the ground that otherwise, after the attachment is discharged, 'the debtor would have the right to demand the vessel, and the creditor would be obliged to pay the valuation to the claimant, if he established that the vessel did not belong to the debtor.' " ATTACHMENT. 307 §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 under- taking, for their indemnity. 2 R. S. 5, § 24, verbally amended. The remarks appended to the last section apply also to this section. §672. Sale of vessel when claim is not made within thirty days ; upon plaintiff's application. 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, oi' 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. 2 K. S. 5, § 25, amended. §673. Same; upon application of joint owner. Where a share or interest in a vessel, foreign or domeatic, is attached, if the proper claim to it is not 208 ' PEOVisioisrAL remedies. 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. 2 R. S. 5, § 26. §674. Property to be kept by sheriff. The sheriff must keep the property attached by him, or the proceeds of the property sold, or of a demand col- lected by him, to answer any judgment that may be obtained against the defendant in the action. Code of Procedure, part of § 232, with the addition of the clause " or of a demand collected by him." An action against a foreign corporation was commenced by attachment, and moneys on deposit in a Trust Ccfmpany were levied upon. The attachment was not discharged, nor did the sheriff collect the deposit, and pending the action the Trust Company failed. Held, that the moneys attached and lost were not to be regarded as paid upon the plaintiff's judgment. The laches, if any, were chargeable to the defendants. McBride v. Farmer's Branch Bk., 7 Abb. Pr. 347; 28 Barb. 476; affi'd, see 24 How. Pr. 611, n. • The sheriff by his lien acquired a qualified or special title, and he is authorized to' hold possession until the demands for which the attachment issued are paid, or until the property seized is sold. Rhoads ». AVoods, 41 Barb. 471. McKay*. Hanower, 37 Id. 463. He has no right to examine or copy partnership books or papers taken by him under attachment. Hergmau ». Dettlebach, 11 How. Pr. 48. Gorden v. Sabey, 10 Week. Dig. 33. ATTACHMENT. 209 Nor IS he bound to allow an examination of books by the parties to whom they belong. McCartan v. Van Syckel, 10 Bosw. 694. See Garden v. Sabey, supra. Where a sheriff received rents from real property which he bad attached, the court ordered the amount so received to be applied on incumbrances upon the property, the plaintiff's security appearing to be suifioient without it. Fitzgerald v. Blake, 28 How. Pr. 109. §675. Direction to sherifif to pay money into court. But the court, upon the apphcation of either party to the action, may direct the sheriff, either before or after the expiration of his term of ofSce, to pay into court the proceeds of a demand coUected, 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. Not in the Code of Procedure. "It was held in Dodge --^ Porter, 13 Abb. Pr. 253 ; 8 Bosw. 696, that the court could not direct the sheriff to pay in or deposit moneys in his hands. The foregoing sec- tion 18 intended to change the rule, with respect to a sheriff whose term of office has expired ; because otherwise it may well happen that the money will remain in his hands after his sureties are discharged. It is worthy the consideration of the legislature, whether the provisions should not also be made applicable to sheriffs in office." Commissioners' Report, under this section. This section provides a method by which the sheriff may be compelled to pay into court the proceeds of a demand collected, and, by implication, gives him the right to maintain an action for its recovery, without order of court. Davidson v. Chatham Nat. Bk., 32 Hun, 138. 13 210 PROVISIONAL EEJTEDIES. 676. Direction to sheriff to release or deliver surplus 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. Not in Code of Procedure. § 677. When and how plaintiff may sue. The plaintiff, by leave of the court or judge, procured as prescribed in the next section, may bring and main- tain, 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 sheriff must receive the proceeds of such an action, but he is not liable for the costs or expen- ses thereof. Costs may be awarded, in such an action, against the plaintiff in the warrant, but not against the sheriff. Substituted (in connection with the next thi-ee sections) for C'O, Proc. § 238. It having been claimed by some slier. ATTACHMENT. 211 iffs that § 238 was permissive merely, and that they may refuse to allow an action to be brought, except upon such terms as they see fit to impose, even if the undertaking required is tendered. This section was so drafted as to allow the plaintiff to bring such actions as he pleases, but at his own risk as to costs ; requiring him to procure leave to do so, only to guard against collusive actions, and to pro- tect the rights of the defendant in the attachment, and of junior attachment creditors. This dispenses with the neces- sity of any undertaking to the sheriff. These changes render inapplicable the decision in Skinner v. Stuart, 39 Barb. 206. In an action by an attaching creditor under this and the two following sections, where a defense is interposed of an assign- ment prior to the levy, the attaching creditor may attack the assignment on the ground of fi-aud. Troop Graia Co. v. Edwards, 34 Hun, 91. The power given to the sheriff by section 655 is cumulative merely, and does not deprive the creditor of his right to main- tain an action for the enforcement of his lien. Skinner «. Stuart, 13 Abb. Pr. 443. Greenleaf ». Mumford, 35 How. Pr. 148. §678. Upon what terms, leave to sue granted. The court or judge must grant leave to bring such an action, where it appears, that due notice of the apphca- tion therefor has been given to the sheriff ; but, before doing so, the court or judge may require that notice of tlie application be given to the plaintiff, in any other war- rant against the same defendant. And such terms, con- ditions, 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 aU per- sons interested in the disposition of the proceeds of the action. i^ubstituted with the preceding and two following sec- tions lor Co. Pro. § '238. 212 PEOVISIONAL EBMEDIES. §679. Plaintiff may join with sheriff, after action begun. Leave may, in like manner and with 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 ixiight have procured leave to bring the action, as prescribed in the last two sections. Upon an appUca- tion 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 mak- ing 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. See preceding note. §680. Court or judge may direct conduct of action. The court or judge may, upon the appHcation 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 apphcation or disposition of the money or property recovered therein, as justice requires. See note under section 677, ante. §681. Return of inventory ; how it may be compelled. Upon, the application of either party, and proof of the neglect of the sheriff, the court or judge may, "hj order. ATTACHMENT. 213 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, § 66. The validity of the attachment is not affected by the neglect to return an inventory. Watts V. Clevelan(3, 3 E. D. Smith, 553. Both V. Wells, 29 N. Y. 471. Bond V. Willett, 31 N. T. 102. §682. Motion to vacate or modify warrant ; or increase security. The defendant, or a person who has acquired a hen 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 pay- ment 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. Prior to 1857, the only method by which an attachment could be discharged was by the giving of security ; by the amendment of that year the defendant was permitted to move for a discharge of an attachment " as in the case of other provis- ional remedies." Code of Procedure, § 241. Under this section the defendant was the proper person to move, and third parties could not avail themselves of irregular- ities in the plaintiff's proceedings. Purman v. Walter, 13 How. Pr. 350. Isliani V. Ketchum, 46 Barb. 43. Ketchum «. Ketchum, 1 Abb. Pr. N. S. 157. 214 PEOVISIONAL REMEDIES. And a defendant could not, if he had parted with all his interest in the suit, or unless he sustained an actual injury. Furman t. Walker, supra. Matter of Griswold, 13 Barb. 413. By whonji application may be made. Assignor for benefit of creditors may move to vacate ; and this was allowed under the provisions of the Code of Pro- cedure. Dickinson v. Benham, 12 Abb. Pr. 158. Brewers. Tucker, 13 Abb. Pr. 76. Gaslierie v. Apple, 14 Abb. Pr. 64. A person, claiming under a voluntary transfer, stands in the position of the original defendant. Trow's Printing Co. s. Hart, 85 N. T. 500. Judgment creditor who has acquired a lien subsequent to the attachment, by execution and levy, may take the necessary steps to vacate. Euppert ». Haug, 87 N. Y. 141 ; 1 N. Y. Civ. Pro. 411. Junior attaching creditor may move to vacate a prior attach- ment ; and in such case, the plaintiff in the process which is attiicked lin,-- a right to claim that legal evidence of the subse- quent claim bo furnished before he can be called upon to justify his own proceedings. Williams i>. Waddell,, 5 N. Y. Civ. Pro. 193. Knurison ». Matnska, 7 N. Y. Civ. Pro. 86; 1 How. Pr. N. S. 153. Tim ». Smith, 93 N. Y. 87. A receiver of an insolvent bank, appointed after the issuing of the attachment, may move under this section, without being a party to the action. Nat. Slioe & Leather Bk. ■». Mech. Bk., 15 Week. Dig. 55. People's Bank v. Same, 63 How. Pr. 423. ATTACHMENT. 215 Sncb, however, was not the case under the pirovisions of the former Code. Allen V. Scandinavian Nat. Bk., 46 How. Pr. 71. A person who has acquired a lien upon, or interest in, the property after it has been attached, may found his motion upon the insufficiency of the papers upon which the warrant was granted. Marine Bank v. Grant, 35 Hun, 395. Steuben Bank v. Alberger, 78 N. Y. 253. Jacobs V. Hogan, 85 N. Y. 343. A subsequent lienor need not be made a i:>arty to enable him to make the motion. People's Bank ?j. Mechanic's Bank, 63 How. Pr. 433. And a defendant may move without making a general appearance. Manice ■b. Gould, 1 Abb. Pr. N. S. 355. A subsequent lienor who has acquired but a partial interest in the property, may have a dissolution of the attachment so far as applicable to his interest, but cannot ask for a total vaca- tion. Trow's Printing Press Co. ■». Hart, 85 K. Y. 500. A subsequent attaching creditor must show some lien or interest in the attached pi'operty, acquired by virtue of his attachment. Davis V. Brooks, 14 Week. Dig. 454. And an allegation in the moving papiers, upon information and belief, that a warrant of attachment has been duly levied by the sheriff, does not afford sufficient proof of his lien to enable him to maintain a motion. Davis V. Brooks, supra. The right to move is not waived by giving an undertaking to discharge the attachment. Carrie v. Riley, 14 Week. Dig. 407. Garbutt v. Hanflf, 15 Abb. Pr. 189. 216 PROVISIONAL EEMEDIES. When the motion may be made. The provision that the application may be made " before the actual application of the attached property " has reference to the real and not the constructive application ; and in case the property is not such that it can be directly applied upon the judgment, it includes the sale and final appropriation of the proceeds. Woodmangee v. Rogers, 83 N. Y. 88. Consequently, the motion may be made after judgment. Thompson i). Culver, 24 How. Pr. 288. Zeregal v. Benoist, 33 How. Pr. 139. And after the issuance of the execution thereon. Bowen i). First Nat. Bank, 34 How. Pr. 408. The application may be made to vacate after giving the bond provided in section 6S8, post. Garbutt v. Hanff, supra. Rowles V. Hoare, 61 Barb. 266. * Clajlin V. Baore, 57 How. Pr. 78. §683. Motion to vacate. How application made and opposed. 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 gi'anted 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 pi:oof , by affidavit, on the part of the defendant ; in which case, it must be made to the court, or, if the warrant vras granted by a judge out of court, to any judge cf the court, upon notice ; and it may be cppoceJ by new proof, by afnd^ivit, on the part of the plaintiff, tending to sustain any ground for the attach- ment, recited in the wari'ant, and no other, u.nless the ATTACHMENT. 217 defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceed- ings ; in which case, the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial. See note to preceding section. The Code of Procedure did not jjrovide the method by which the motion could be made or answered. Application on the papers only. Where a motion is made upon the papers upon which the warrant was granted, the plaintiff cannot have recourse to other affidavits or paper in support of the statement. Trow's Printing Co. ii. Hart, 85 N. T. 500. Dickinson v. Benham, 13 Abb. Pr. 158. A nuno pro tunc order is not permissible under the provisions of this section, to allow the plaintiff to file additional papers as of the date of the attachment, after the warrant has been granted ; even though the application therefor be made before the motion to vacate. Steuben Co. Bank v. Alberger, 78 N. T. 353. Sutherland v. Bradner, 34 Hun, 519. An application on the papers " in the attachment proceed- ings " docs not permit the use of other papers included in the judgment-roll. Trow's Printing Co. o. Hart, supra. Defects in the affidavit upon which the warrant was granted must be specified in the motion to vacate. Stevens?). Middieton, 14 Week. Dig. 126. Affidavits used for the purpose of obtaining an order to show cause, in order to procure a shorter notice than eight days, do not entitle plaintiff to use additional proofs. Brewer «. Tucker, ] 3 Abb. Pr. 76. 218 PROVISIONAL EEMEDIE3. So, of affidavits by a subsequent lienor which simply estab- lish his right to move. Trow's Printing Co. o. Hart, supra. Steuben Co. Bank v. Alberger, supra. A person who acquired an interest in the property after the granting of the warrant, may move to dissolve attachment for insufficiency of the original papers. Marine Bank «. Grant, 35 Hun, 395. Jiioobs ®. Hogan, 85 N. Y. 243. Application on proof. " On the part of the defendant " means on the part of the person who makes the motion, whether he be a party to the record or not, and includes any lienor. Steuben Co. Bank c. Alberger, 75 N. T. 179. If defendant offers proof which puts in issue any of plaint- iff's allegations, it authorizes the introduction of proof on the part of the latter, although the allegations so controverted are immaterial. Godfrey v. Godfrey, 75 N. T. 434. Ives V. Holden, 14 Hun, 402. Defendant may disprove any allegation essential to the validity of the attachment. Boscher ». Roullier, 4 Abb. Pr. 396. Matter of Warner, 3 Wend. 434. And where the essential allegations were all controverted by the moving affidavits, it was held that the attachment was properly vacated. Van Allen v. Sampson, 5 Week. Dig. 388. And so, where the pl.aintiff's statements are denied abso- lutely, and it appears that he could not have known j^ositively the facts to which he made affidavit. O'Reilly V. Frcel, 37 How. Pr. 272. ATTACHMENT. 219 Or, where the allegation of th'e amount due was made upon information and belief. Dean«. Bell, 1 Law Bull. 42. Where the vacation of an attachment is asked for as a matter of right and does not involve any question of discretion, an appeal will lie to the Court of Appeals from an order of the General Term refusing to vacate an attachment. Tracy v. First Nat. Bank of Selma, 37 N. T. 533. Appeal may be taken from an order denying a motion to vacate an attachment upon the papers. Achelis v. Kalman, 60 How. Pr. 491. An order vacating an attachment is appealable to the Court of Appeals. Yates V. North, 44 N. Y. 371. §§ 684, 685. The8e sectigns were repealed in 1877. § 686. When subsequent motion not prejudiced by prior motion. The denial of such an application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint which had not been filed or served at the time of the former apphcation, to set forth any of the causes of action mentioned in section 635 and section 63T of this act. Not in Code of Procedure. 220 PROVISIONAL BEMEDIES. § 687. Application for discharge of attachment, in whole or in part. The defendant may, at any time after he has appeared m 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. Part of section 240, Code of Procedure, and additions. It was holden under the former Code that a part of the goods could not be released from the levy ; and the final clause of this section was intended to obviate this difBculty. Eoyal Ins. Co, v. Noble, 5 Abb. Pr. N. S. 54. A discharge of the attachment agreeably to the provisions of this section, does not bar an application to vacate the warrant Claflin V. Baere, 57 How. Pr. 78; affi'd, 80 N.T.643. The order should state whether the discharge applies to the whole or a part only of the property attached ; and if the latter, as to what part. Ellsworth B. Scott, 3 Abb. N. C. 11. For a resume of the proceedings in obtaining a discharge under this section, see the last cited case. §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 ATTACHMENT. 221 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. Code of Procedure, § 241, in part, with additions. Pormal requisites of undertaking. Need not recite a consideration,. Bildersee v. Aden, 12 Abb. Pr. N. S. 824. Must be acknowledged. Bliss V. Molter, 8 Abb. N. C. 241. One instrument cannot include two attachments. . Walton V. Daly, 17 Hun, 601. Liabilities thereon. The obligors are not relieved from liability when other parties are brought in and the pleading and summons amended accordingly. Christal v. Kelley, 88 N. Y. 288. Nor can the obligors traverse the allegations of the instru- ment ; they being estopped by the recitals. Higgins V. Hesily, 47 Supr. 207. See Coleman ». Bean, 32 How. Pr. 370. Sureties are not relieved by the discharge of the principal in bankruptcy. McCombsa. Allen, 82 N. Y. 114. Nor by an order on the principal to furnish further security. .Jewett V. Crane, 13 Abb. Pr. 97. But they are not liable on an undertaking which was void for want of jurisdiction. Coleman v. Bean, supra. 222 PROVISIONAL EEMEDIES. After judgment for the plaintiff has heen recovered in an action in which an attachment has been levied on defendant's property, defendant is not entitled to a discharge of the attach- ment on giving an undertaking, even though the execution of the judgment has been suspended by an appeal, which is still undetermined. Spencer v. Bogers' Locomotive Woi-ks, 13 Abb. Pr. 180. Coleman v. ,Bean, 33 How. Pr. 870. Lynch v. Crary, U Abb. Pr. N. 8. 85. §689. Application by one defendant. Where 'there are two or more defendants, and an application is made, as prescribed in the last two sec- tions, by one or more, but not by all of them, the under- taking 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 affi- davit, 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 undertak- ing must provide for the payment of any judgment, which may be recovered in the action against the appli- cant, either alone or jointly with any other defendant. Where an application is made, as prescribed in this sec- tion, at least two days' notice thereof, with a copy of the affidavit, must be sei'ved 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. New. § 690. Justification of sureties. An undertaking, given as prescribed in the last two sections, must be forthwith filed with the clerk. A copy ATTACHMENT. 223 thereof, with a notice of the fihag 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. Tliereupon the sureties must justify upon the like notice, and in like manner, as bail upon an arrest ; or a new uirdertakiug must be given, with new sureties, who must justify. If the plaintiff does not except, as prescribed in this section, he is deemed to have waived all objection to the sureties. Compare Code of Procedure, § 241, and as to practice under that Code, see Thompson on Pro. Rem., under this section. § 691. Retention of property by sheriff 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. ■ See note to above section. As to rights of officer under the former Code, see Moses V. Waterbury Button Co., 46 How. Pr. 538. § 692. Application of foregoing sections to vessels. The last five sections are applicable, where a vessel, or a share or interest therein is attached. If it is neces- sary, to enable the defendant to discharge the attach- ment, the court or judge may, by order, stay any pro- ceedings specified in article second of this title, or extend the time to do any act therein specified. New. 224 PROVISIONAL EEMEDIES. § 693. Application by partners for discharge of attachment. If a warrant of attachment is levied upon the interest of one or more partners, in goods or chattels of a part- nership, the other partners, who are not defendants in the actioij, or any of them, may at auy time before final judgment, apply to the judge who granted the warrant, or to the court, upon an aflidavit shownig the facts, for an order to discharge the attachment, as to that interest. New. Under the former practice the officer must take the entire property into his custody, on a warrant against one partner. Smith 1). Orser, 43 N. Y. 1.B2. Marsliall ,;. McGregor, 59 Barb. 519. The attachment against a partner reaches only the surplus remaining after extinguishment of firm debts. Staats V. Bristow, 73 N. Y. 3G4. Donuell v. Williams, 31 Hun, 216. Buckingham v. Swezey, 35 Hun, 84. § 694. TTndertaking by partner. Upon such an apphcation, 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 anytime before the warrant of attachment, which was so levied, is vacated ATTACHMENT. , 225 or annulled ; not exceeding a sum, specified in the under- taking, 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. New. § 695. Ascertainment of amount. 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. New. § 696. Notice to plaintiff, when necessary. The court or judge may direct that the plaintiff have notice of an appHcation 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, when notice has been given, the application may be dismissed or denied. New. §697. Various warrants. Preferences. Where two or more warrants of attachment, against the same defendant, are delivered to the sheriff of the same county to be executed, their respective preferences, and the rules, where a levy, or a levy and sale, ha've been made under a junior warrant, are the same as where two or more executions, against the property of the same 15 226 PROvisrowAL remedies. defendant, are delivered to the sheriff of the same county, to be executed. New. Compare 2 R. S. 366, § 14. §698. Levy on second warrant ; when made. Where a domestic vessel, or a share or interest therein, has been attached, and afterwards released, as prescribed in this title ; or where the personal property of a partner- ship, of which the defendant was a member, has been attached, and the attachment afterwards discharged, upon the apphcation of another partner, as prescribed in this title ; another warrant, against the same defendant, shall not be levied on the same property, by the sheriff of the same or of any other county, until after the first warrant has been vacated or annulled. But, except as thus pre- scribed, where a second warrant, against the same defend- ant, is delivered to the same sheriff, he must execute it, by a levy upon property within his county, and he must thereupon take the same proceedings, as if the levy was made under the first warrant. New. §§ 699, 700. Sections 699 and 700 repealed in 1877. § 701. Second creditor may prevent release of foreign vessel, upon first attachment. 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 ATTACHMENT. 227 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 hke the one to be furnished by the first plaint- iff. 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. New. §702. Subsequent attaclunent 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 shaU not be again attached, under a 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 privi- leges, and are subject to the same duties and habilities, with respect to the vessel and its proceeds, and the sub- sequent proceedings relating thereto, as if the warrant under which it was attached, was the first warrant. New. § 703. Intervention by plaintiff in junior warrant in sheriff's action. Where the plaintiff in a warrant of attachment has commenced an action, in the name of '.imself and the sheriff jointly, as prescribed in this title, a plaintiff in a 228 PROVISIONAL REMEDIES. 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 apph- cant ; and such order may be made thereupon, as justice requires. If the first warrant is vacated, or the attach- ment thereunder is released or discharged, without affect- ing 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 apphcation for leave to bring such an action. New. §704. Action by plaintiff in junior suit and 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 main- tain, 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 bis was the first warrant. New. §705. Attaching creditors subsequent to the second. Where there are more than two warrants of attach- ment, against the same defendant, the plaintiffs in the ATTACHMENT. 229 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 plaint- iff 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 imtermediate plaintiff. New. § 706. Execution to issue to the sheriff who levied attachment. 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 and 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. New. §707. Enforcement of judgment against non-resident. Effect of. 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 publica- 230 PROVISIONAL REMEDIES. tion, 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 appUcation of any statute of hmitation. New. The principle established by this sectioij is that non-residents should only answer by the attached property. Place V. Riley, 4 N. Y. Civ. Pro. 395. § 708. ■ Method of satisfying the judgment. Where an execution against property is issued upon a judgment for the plaintiff, in an action in which a warrant of attachment has been levied, the sheriff must satisfy it as follows : 1. He must pay over to the plaintiff all money attached by him,, and the proceeds of all sales of perish- able 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 ; including 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 princi- pal whereof is not then payable ; but not including any other debt or thing in action. If the proceeds of that ATTACHMENT. 231 property are insufficient to satisfy the judgment, and the execution Requires him to satisfy it out of any other per- sonal 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 iusufiicient 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, a] id the attachment has not been discharged, as to that prop- erty, 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. A psrsou who willfully conceals or withholds such property from him, is liable to double damages, at the suit of the party aggrieved. 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 direst 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 333 PROVISIONAL REMEDIES. 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 apphcation without notice. Altered from section 237 of Code of Procedure. § 709. Upon discharge of attacliiiient, property restored to defendant. Where a warrant of attachment is vacated, or annul- led, or an attachment is discharged, upon the apphcation of the defendant, the sheriff must, except in a case where it is otherwise speciaUy prescribed by law, deliver over to the defendant, or to the person entitled thereto, upon reasonable demand, and upon payment of aU costs, charges, and expenses, legally chargeable by the sheriff, aU the attached personal property remaining in his hands, or that portion thereof, as to which the attach- ment is discharged ; or the proceeds thereof, if it has been sold by him. Compare sections 237, 239, 240 of Code of Procedure. So far as the foregoing section attempts to compel a defend- ant to pay costs, charges and expenses incurred by the sheriff in levying upon his property under an attachment issued in an action brought by a third person, and upon an attachment which was vacated, it is unconstitutional and void, as depriving defend- ant of his property without due process of law. Bowe V. U. S. Reflector Co., 36 Hun, 407. §710. Delivery of property to defendant. Where the sheriff is required, by this title, to deliver attached property, or the proceeds thereof, to the defend- ant, he must also deliver to him, unless otherwise speci- ally directed by the court or judge, all books of account, ATTACHMENT. 233 vouchers, evidences of debt, iminiments 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 proceed- ings, 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, 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 con- dition of granting the order of substitution, such terms as justice requires, with respect to indemnity and pay- ment of expenses. The defendant's rights, with respect to property attached and not disposed of, and an under- taking, 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. New. § 711. Cancellation of notice upon attachment of real property. At any time after the warrant of attachment has been vacated or annulled, or the attachment has been dis- charged 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 234 PROVISIONAL KEMEDIE3. 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. New. §712. Return of warrant by sheriff. Where a warrant of attachment has been vacated or annulled, the sherifif 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 vof the sheriff's neglect, the court may direct him so to do, forthwith, or within a specified time. Compare Code of Procedure, § 242, Being merely directory, a non-compliance herewith is not available in a collateral action. Rodgers v. Bonner, 35 Barb. 0; 45 N. Y. 879. RECEIVERS. §713. In what -cases a receivership as a provisional remedy may be had. / 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, a superior city court, or a county court, may be appointed by the court, in either of the following cases : 1. Before final jiidgment, 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 bo remove;! beyond the jurisdiction of the court, or lost, materially injured, or destroyed. 2. By or after the final judgment, to carry the judg- ment into effect, or to dispose of the property, according to its directions. 3. After final judgment, to preserve the property, during the pendency of the appeal. The word "property," as used in this section, includes the rents, profits, or other income, and the increase, of real or personal property. This section is a substitute for Code of Procedure, section 244, subdivisions 1 and 2 and a part of 3. That section included receivership in proceedings supplementary to execution, which is now embraced in section 24C4 of the present Code ; and in [235] 236 PKOVISIOI'TAL REMEDIES. actions for the dissolution of corporationa, contained iil sections 1788 and 1810. The words " or ' interest in," in the first subdivision, are inserted to avoid the possible exclusion of mortgage and part- nership cases, which might result from the use of the words " apparent right " alone. Comms. Report, under proposed section 696. Nature of the office. A receiver is an olBcer of the court, and as such represents all the parties to the controversy, and is bound to act in the interest of all litigants. Porter v. "Williams, 9 K. Y. 142. Curtis V. Leavitt, 15 N.Y. 13. Gillet V. Moody, 3 Cotnst. 479. Corey v. Long, 43 How. Pr. 497. King v. Cutts, 24 Wis. 637. But not in the interest of strangers to the action. Howell 1). Eipley, 10 Paige, 43. The fund with which he is entrusted is regarded as custodia legis, for the benefit of him, who may be found ultimately enti- tled thereto. Booth ». Clark, supra. Lottimer v. Lord, 4 E. D. Smith, 183. Hunt v. "Wolf, 3 Daly, 303. Devendorf v. Dickinson, 31 How. Pr. 375. Hooper «. "Winston, 34 111. 353. He is " the hand of the court,'' and his appointment does not determine any -"ight or affect the title of either party, in any manner. "Williamson ». "Wilson, 1 Bland (Md. Ch.) 418. Ellicott B. Warford, 4 Md. 80. And any interference with, or resistance to his possession is a contempt of court ; whether this be done forcibly or by legal EECEiyEES. 237 proceedings taken without permission of the court by which the appointment was made. Wiswall «. Sampson. 14 How. U. S. 65. Visser ii. Blackstoae, 6 Blatch. C. 0. 335. Noe V. Gibson, 7 Paige, 513. Hall V. Thomas, 3 Edw. Cli. 336. The receiver may in cases of doubt or difficulty make appli- cation to the court for instructions ; and it is his duty frequently BO to do. Curtis ». Leavitt, 1 Abb. Pr. 374. Matter of Van Allen, 37 Barb. 325. Smith V. K. Y. Cons. Stage Co., 38 How. Pr. 377. The court has power to order settlement of claims, and a reference to ascertain the same. Guard Sav. Inst. v. Bowl. Green Sav. Bk., 65 Barb. 375. And to direct receiver as to the disposition of funds in his hands. Clark V. Bininger, 75 N. Y. 344. A receiver ordered to pay money in a particular manner can- not withhold it because of a personal claim. McGarry ®. Smith, 3 Law Bui. 7. Principles that govern the appointment. The court may call to its aid a receiver, in a variety of exigencies ; either for the prevention of fraud ; to save the sub- ject of litigation from material ipjury ; or to rescue it from inevitable destruction. Williamson v. Wilson, 1 Bland (Md. Ch.) 418. Skip V. Harwood, 3 Atk. 564. The court will not interfere by the exercise of the extraordi- nary power where the applicant has a full and adequate remedy at law. Parmly v. Tenth Ward Bank, 3 Edw. Ch. 395. Corey ®. Long, 43 How. Pr. 497. Winkler «. Winkler, 40 111. 179. Sherman v. Clarke, 4 Nev. 138. 238 PROVISIONAL REMEDIES. The appointment of a receiver being governed, in this respect, by the same rules that are applicable to injunctions. High on Inj. § 10. The court will never appoint, simply because the receiver- ship will be productive of no harm, and an affirmative reason must always be shown therefor. Orphan Asylum v. McCartee, Hopk. Ch. 429. Corey ®. Long, supra. The person seeking the relief must show at least a probable interest in the property, and that there is danger of its being lost ; the element of danger being an inlportant consideration. Goodyear t>. Betts, 7 How. Pr. 187. Hamilton v. Access. Trans. Co., 3 Abb. Pr. 255. Patten v. Same, 4 Abb. Pr. 235. McCarthy «. Peake, 9 Abb. Pr. 164. Gregory v. Gregory, 33 Supr. 1. A remote danger will not suffice, and a well founded appre- hension of immediate injury must exist. Kean v. Colt, 1 Halst. Ch. 365. The appointment is without prejudice to the ultimate rights of the parties, and does not anticipate the final decision upon the merits of the controversy. Leavitt v. Yates, 4 Edw. Ch. 162. Brown v. Northrup, 15 Abb. Pr. N. S. 333. The appointment of a receiver pendente lite, like other pro- visional remedies, rests in the discretion of the court, and is to be governed by the peculiar circumstances of the case in which the application is made. Hamburgh Mfg. Co. o Edsall, 4 Halst. Ch. 141. PuUan i>. Cincinnati, &c., R. R., 4 Bissell, 47. Whelpley v. Erie R. R. Co., 6 Blatch. C. C. 271. Verplank i). Gaines, 1 Johns. Ch. 57. Fellows ». Heermans, 18 Abb. Pr. N. S. 1. Copper Hill Mining Co. v. Spencer, 25 Cal. 13. EECEIVERS. 239 The power should be exercised with extreme caution, as the plainest, most temperate and best guarded forms of judicial pro- ceedings are liable to be abused and be made instruments of malice. Williamson v. Wilson, 1 Bland (Md. Ch.) 433. Choice and Eligibility of receiver. Prior to the adoption of the Code, the practice in this State followed the custom which prevailed under the English Chancery- Rules ; of a reference to a master in chancery to make the selection. ire re Eagle Iron Works, 8 Paige, 385. See, as illustrative of the English practice : WJlkins I). Williams, 3 Yes. 588. Tharpe v. Tharpe, 13 Ves. 317. Wynne v. Newborough, 15 Ve.i. 383. And a reference may now be directed for the recommenda- tion of a suitable person. Wetter v. Schlieper, 7 Abb. Pr. 93. Code'of Civ. Pro. § 837. Should be a disinterested person, or at least one whose interests do not conflict with those of the estate which he is to administer. Tripp V. Chard Ry., 11 Hare, 360. Nor one who occupies a position that may give rise to com- plications in the adjustment of the estate ; as a Master whose duty it is to audit and check the receiver's accounts. Benneson ». Bill, 63 111. 408. Or a person who acts as the legal adviser of the complainant. Baker ». Backus, 33 111. 79. ' Garland v. Garland, 3 Ves. Jr. 137. But the solicitor for the petitioning creditors in bankrupt proceedings was held not to be disqualified. Matter of Glairmont, 1 Bank. Reg. 43. 240 PROVISIONAL REMEDIES. A party may be appointed, tbough not upon his own nomi- nation, nor should he receive compensation for his services. McCarthy v. Peake, 9 Abb. Pr. 168. Fenn v. BoUes, 7 Abb. Pr. 203. Blakeney v. Dufaur, 15 Beav. 40. HofEman v. Duncan, 18 Jur. 69. Belationship to parties does not disqualify. Wetter v. Schlieper, 7 Abb. Pr. 93. A person who is privileged from arrest by the ordinary pro- cess of the court, should not be appointed. Att. Gen. v. Gee, 2 Ves. & Bea. 208. Wynne v. Newborougli, 15 Ves. 383. The court may appoint a director, trustee or other officer or a stockholder of a corporation a receiver of its property on pro- ceedings for a voluntary dissolution. Code of Civ. Pro. § 3429. See, In re Eagle Iron Works, 8 Paige, 885. In re Bowery Bank, 16 How. Pr. 56. But such appointment is not proper in actions for dissolu- tion brought by the attorney general. Attj. G-eneral ». Columbia Bank, 1 Paige, 511. People V. Third Av. Bank, 50 How. Pr. 22. A trustee, to whom is entrusted the management of the estate should not be appointed receiver, the two capacities being incompatible. Anonymous, 3 Ves. 515. Sykes ». Hastings, 11 Ves. 363. Sutton ». Jones, 15 Ves. 587. Although this rule is not inflexible, and admits of exception when the interest of the estate will be evidently promoted thereby. Kewport «. Bury, 23 Beav. 30. And it has been questioned whether the mortgagee could properly act as receiver, as he occupies the position of trustee of the equity of redemption. Edwards on Receivers, 68. EE0EIVEE9. 241 Thpugh such an appointment was permitted ; the position and duties of receiver being held to be paramount to those of mortgagee. In re Stuyvesant Bank, 5 Benedict, 5G0. A creditor may be receiver of the debtor's property. Chamberlain ■». Greenleaf, 4 Abb. N. C. 92. A clerk, deputy clerk, special deputy clerk or assistant in a clerk's office in a court of record in New York and King's counties, cannot be appointed. Code of Civ. Pi-o. § 90. Where the same property is involved in several suits, the same person should be appointed receiver in all the suits. Osboru V. Heyer, 2 Paige, 332. Howell 1). Ripley, 10 Paige, 43. Cogger V. Howard, 1 Barb. Ch. 868. Lottimer u. Lord, 4 B. D. S. 183. But this rule does not apply where the 'parties are not the same in all the suits. Cagger v. Howard, supra. Powers and duties of the receiver. It is the general rule that a receiver is a mere custodian of the fund, and his powers are limited to those conferred by the order of his appointment. Verplanck v. Mercantile Ins. Co., 2 Paige, 453. Negus ». Brooklyn, 1 N. Y. Civ. Pro. 471. Hooper v. Winston, 24 111. 368. Grant e. Davenport, 18 Iowa, 194. Fincke ». Funke, 25 Hun, 616. Should make an immediate demand for the property upon the persons in possession. Green ». Green, 2 Sim. 430. Panton «. Zebley, 19 How. Pr. 394. 16 242 PROVISIONAL KHMEDIES. And if the possession be withheld, he should apply to the court for appropriate process to enforce his rights thereto. People 1). Rogers, 2 Paige, 103. Parker «. Browning, S Paige, 388. , Matter of Cohen, 5 Cal. 494. Property of which a receiver has been appointed, levied upon by the sheriff, between the appointment of receiver, and his filing security, was ordered by the court to be returned to the receiver. Steele v. Sturges, 5 Abb. Pr. 443. Eutter v. Tallis, 5 Sand. 610. Contra: Rich V. Loutrel, 9 Abb. Pr. 356; 18 How. Pr. 121. Re N. Am. Gutta Percha Co., 17 How. Pr. 549. Receiver obtains his authority to bring actions from the court. Foster e. Townshend, 2 Abb. N. C. 39; 68 JT. T. 203; rev'g 13 Abb. Pr. N. S. 469. MerrittB. Lyon, 16 Wend. 405. Smith ». Woodruff, 6 Abb. Pr. 65. Green ». Hunter, 1 Johns. Ch. E. 60. In re Merritt, 5 Paige, 130. Having general authority to commence actions, the receiver may select his own tribunal, and is not confined to the court by which he was appointed. Rockwell V. Merwin, 45 N. T. 166 ; affi'g 1 Sweeny, 484; 8 Abb. Pr. N. S. 430. A receiver is bound to sue after permission has been obtained, and cannot be enjoined by a court other than the one granting such permission. Winfleld v. Bacon, 24 Barb. 154. He may maintain in his own name actions for usurious premiums paid by the judgment debtor for whom he is receiver. Palen i). Bushncll, 18 Abb. Pr. 801. BE0EIVEB8. 243 A receiver appointed in another State may sue as such in this State. Runk V. St. John, 39 Barb. 485. N. J. Protection Bk. •». Thorpe, 6 Cow. 46; 1 Seld. 341. Provided his claim does not conflict with the rights of cred- itors in this State. Barclay v. Quicksilver Min. Co., 6 Lans. 35. Pugh V. Hurtt, 53 How. Pr. 33. Contra: Hope Mut. L. Ins. Co. ®. Taylor, 3 Rob. 378. A receiver who is sued as such, without leave of court, is entitled to an order perpetually restraining the plaintiff from proceeding in the action. De Groot v. Jay, 9 Abb. Pr. 364. An action against a receiver should not be restrained on the ground that a former judgment has disposed of the matters involved in the action, but the receiver should be left to set that up as a defense. Jay's Case, 6 Abb. Pr. 393. A person, not a party to the action in which a receiver was appointed, cannot maintain an action against him to recover funds collected by him, although derived from premises claimed by plaintiff. Sheridan ». Jackson, 10 Hun, 89; affi'd, lT N. Y. 170. A temporary receiver of the firm property, appointed in an action brought by the solvent partner to have the firm dissolved and its affairs settled, has not such a title to the firm assets as will authorize him to bring an action against a creditor, to whom a chattel mortgage has been so given, to recover the goods he has taken by virtue of it. Ogden V. Arnot, 39 Hun, 146. A receiver of the property of a judgment-debtor may main- tain an action against the debtor himself for a conversion of property, the title to which had vested in the receiver. ' Gardner v. Smith, 39 Barb. 68. 244 PROVISIONAL REMEDIES. He may compel two persons claiming the same fund in his hands, to interplead. Wiiifield V. Bacon, 24 Barb. 154. It is within the discretion of the court appointing a receiver whether permission to sue him be granted. In re Piatt, 41 N. Y. Super. 513. Bringing an action against receiver without such permission is a contempt of court, and the proceedings in such an action will be stayed. Taylor v. Baldwin, 14 Abb. Pr. 166. De Groot v. Jay, 30 Barb. 483; 9 Abb. Pr. 364. Such permission is generally granted as a matter of course, and at any stage of the action. Hubbell V. Dana, 9 How. Pr. 434. Parker v. Browning, 8 Paige, 888. Iri:egularity in suing receiver without leave of the court is waived by appearance in the action without objection. Hubbell V. Dana, supra. Under the English Chancery practice, the receiver could distrain, in his own name, for rent accruing during a tenancy created by an attornment of tenants to him in that capacity. Evans «. Mathias, 7 El. & Bl. 590. White ». Smale, 33 Beav. 73. May determine tenancies by the ordinary statutory methods^ Daniel's Chancery Practice, and cases there cited, section 1750. But a suit to evict the tenant is not maintainable without an order of court. Wynne v. Newborougli, supra. May compromise disputed claims under the direction of the court, and by its authority. Matter of Croton Ins. Co., 3 Barb. Ch. 643. EECEIVEKS. 245 Payments should ordinarily be made by order of court, but the officer of the court will not be denied reimbursement for sums necessarily incurred, without such order. Adams v. Wood, 15 Cal. 206. Hooper «. Winston, 34 111. 353. Thornhillj). Thonihill, 14 Sim. 600. Must take, and upon his final accounting, produce receipts or proper vouchers, and will be subject in this behalf to the same rules as all the accounting parties. Daniel's Oh. Pr. 1586. Kerr on Receivers, 203. He may receive debts before they become due when it is for the interest of the estate so to do. Olcott V. Heermans, 3 Hun, 481. Heermans v. Clarkson, 64 N. Y. 171. Liabilities. Must keep trust moneys separate and distinct from his personal funds, otherwise he is liable to be charged with interest. Utica Ins. Co. ». Lynch, 11 Paige, 530. And for loss, if it ensue therefrom ; either by reason of the failure of the bank or otherwise. Wren ®. Kirton, 11 Ves. 381. Where loss has happened through the fault of another, the receiver's liability depends largely upon the question, whether his own negligence or default contributed thereto ; and where the loss occurs without fault on his part, and while acting with evident caution, he is not liable. Knight V. Plimouth, 3 Atk. 480. He cannot make a profit out of the funds of the estate of which he is custodian. Jewett v. Miller, 10 N. T. 403. If a, receiver, when sued personally, desires the protection of the court that appointed him, he should apply for an injunction. 246 PEOVISIONAL EEMEDIES. If he neglects to do this, the action may proceed as though per- inission to sue had been obtained from the court. Camp u. Barney, 4 Hun, 373. Receiver is personally liable for costs if he brings action without leave of the court and fails. Smith 1). Woodruff, 6 Abb. Pr. 65. Phelps V. Cole, 3 C. R. 157. But see Devendorf v. Dickenson, 31 How. Pr. 375. Or, if he brings an action in a matter personal to himself. Chapin v. Thompson, 4 Hun, 779. If receiver prosecutes an action in good faith, he is not liable for costs for not proceeding to trial where a good reason is shown for not trying in pursuance of a notice or stipulation. St. John «. Denison, 9 How. Pr. 343. Receiver appointed under section 50 of the National Bank- ing Act is not liable for costs in an action to which he was not made a party. Ocean Nat. Bank o. Oarll, 7 Hun, 337. But if he continues an action commenced before his appoint- ment he is liable as if he were plaintiff. Columbian Ins. Co. «. Stevens, 4 Abb. Pr. N. S.133; 37 N. T. 586; 35 How. Pr. 101. Receiver is personally liable for loss or injury sustained by or through his own neglect or misconduct. But for the neglect or misconduct of those employed by him in the performance of the duties of his office, he is only liable in an action brought against him as receiver, and any judgment recovered therein must be made payable out of funds in his hands as such receiver. Camp i>. Barney, 4 Hun, 378, Cardot v. Barney, 63 N. Y. 381. Receiver cannot employ counsel at the expense of the fund except by leave of court. Corey v. Long, 13 Abb. Pr. N. S. 437; 43 How. Pr. 492; affi'd, 53 N. Y. G41. RECEIVERS. 247 Receiver may, without impropriety, be represented by the attorney of a party, unless the interests of the receiver and such party are adverse. Smith V. Consol. Stage Co., 18 Abb. Pr. 419; 38 How. Pr. 208. Unless parties object, attorney of one party may be employed. Warren «. Sprague, 11 Paige, 300. Of what property, receiver may be appointed. AM personal property which may be taken in execution at law, is subject to a receivership. Hudson ». Plets, 11 Paige, 183. A.nd all property that is considered as assets in equity. Blanchard v. Cawthorne, 4 Sim. 573. To appoint a receiver of chattel property held by a mort- gagee in possession, except in case of necessity to secure the rights of other parties, is to impair the obligations of the eon- tract between snch mortgagee and the mortgagor, and so is beyond the constitutional powers both of the court and the legislature. Patten v. Accessory Trans. Co., 4 Abb. Pr. 235; 13 How. Pr. 502; rev'g 4 Abb. Pr. 139. Bayaud v. Fellows, 38 Barb. 451. BoIlesB. DuflE, 35 How. Pr. 481. But if anything is due the mortgagee in possession, he will not be deprived of such possession by any appointment of a receiver. BoUes ». Duff, 35 How. Pr. 481. Edwards on Receivers, 53. 1 Hillard on Mort. 441. Trenton v. Woodruff, 3 Green, 210. Quinn v. Brittain, 3 Edw. 314. Bayaud v. Fellows, supra. Where a j)artnership has become insolvent, no doubt can exist as to the power of a court of equity, upon the application 248 PROVISIONAL REMEDIES. of either partner by a proper complaint, to appoint a receiver to take charge of the partnership assets and close up its affairs. Wetter*. Sclilieper, 6 Abb. Pr. 123. Levy !). Ley, Id. 89; 15 How. Pr. 395. Whitewright v. Stimpson, 3 Baib. 879. Lachalse v. Maiks, 4 B. D. S. 610; 1 Abb.' Pr. 213. Law 1). Ford, 3 Paige, 310. Egbert v. Wood, 5 Id. 517. Martin ®. Vaa Schaick, 4 Id . 471. The mere fact of a disagreement between the parties to a ' copartnership is not sufficient to authorize the appointment. , McElvey i>. Lewis, 76 N. Y. 373. In an action for the settlement of partnership affairs, upon a positive denial of the partnership, and upon its being made to appear, that a very small proportion, if any, of the capital was contributed by the plaintiff, and that by the injunction and receivership a large flourishing business will be arrested, it is proper for the court to rescind the injunction and receivership granted in the first instance, upon the defendant's giving adequate security t6 pay the plaintiff any sum that may be found due to him on final settlement. Popper 11. Scheider, 7 Abb. Pr. N. S. 56. Buchanan v. Comstock, 57 Barb. 568. A receiver will be appointed as a matter of course upon the application of one of several partners to close up a partnership where there is a right to dissolve. Jackson i). De Forest, 14 How. Pr. 81. Law V. Ford, 2 Paige, 310. , Martin v, Van Schaick, 4 Paige, 479. Innes «. Lansing, 7 Id. 583. Henn ». Walsh, 2 Edw. 129. Llorens v. Costa, 5 Week. Dig. 484. -White V. Colfax, 33 N. Y. Super. 297. McElvey o., Lewis, 76 N. Y. 378. A receiver will not be appointed of property held by one partner without objection by the other to such possession. Smith V. Lowe, 1 Edw. 83. EEOEIVERS. 249 Where on a creditor's bill against two partners, one of -(rbom has assumed the debts, the other has a right to demand that the receivership be extended to the copartnership effects, and to the individual property of the owner primarily liable. Henry v. Henry, 10 Paige, 314. Where an action is brought in a State court between part- ners, to obtain a dissolution of the partnership, and receivers are appointed, who take possession of the partnership property, the power of an assignee in bankruptcy, appointed in the United States District Court, in proceedings subsequently commenced, to administer the bankrupt estate, is subject to a lien of the State court. Clark V. Binnlnger, 39 How. Pr. 363. A receiver of partnership assets, intervening to defend an action by a creditor, may impeach a contract not impeached by the partners. Honegger «. Wettstein, 47 Super. Ct. 125. Motion to compel payment to receiver of partnership. Murphy v. Du Berg, 11 Abb. N. C. 112. Alfoid V. Beikele, 39 Hun, 638. The receiver of partnership property may be authorized to carry on the business until a sale can be made, when it is clearly best. Jackson v. Be Forest, 14 How. Pr. 81. Dayton®. Wilkes, 17 Id. 510. Garretson d. Weaver, 3 Edw. 385. Heatherton ». Hastings, 5 Hun, 459. Marten v. Van Schaick, 4 Paige, 479. But in general court should not so authorize. Jackson ®. De Forest, supra. Person carried on partnership in his individual name, and made a personal contract in his individual name. Held, not a firm contract, and receiver of firm could not recover on it. Marvin v. Buchanan, 63 Barb. 468. 250 PROVISIONAL EEMEDIES, Unless the plaintiff is clearly entitled, by some equitable grounds, to the rents and profits as such, or unless their scques- ti-ation is necessary to his protection, a receiver cannot be appointed in an action to recover the possession of real property. People «. Mayor, 10 Abb. Pr. Ill; rev'g 8 Abb. Pr. 7; 38 Barb. 340; 17 How. Pr. 57. Rogers «. JI:iriliall, Abl). Pr. N. S. 457; 38 How. Pr. 413. Ireland «. Nichols, 37 How. Pr. 222. Huerstel «. Lorillard, 7 Hob. 251; affi'g C Id. 200. Congdea v. Lee, 3Edw. 304. Tliompson «. Sherrard, 13 Abb. Pr. 437; 35 Barb. 593. The plaintiff cannot demand the appointment of a receiver of property in which he has no interest. Smith ». Wells, 30 How. Pr. 158. A receiver should not be appointed of property in another State, belonging to a person who has not been brought within the jurisdiction of the court. Field «. Ripley, 20 How. Pr. 36. In an action to set aside conveyance of real estate as obtained by fraud, where a receiver has been appointed to receive the rents during the accounting, the court may order the receiver to pay over the rents collected to the plaintiff. Piatt «. Piatt, 66 N. T. 360. "Where an action is brought by a judgment creditor on behalf of all other judgment creditors, as well as himself, to set iaside fraudulent conveyances of the debtor's real estate, a judg- ment is not improper adjudging the appointment of a receiver to take a conveyance of and to sell the real estate. Shand© Hanley, 71 N. T. 319. Nor in such case as to interfere with the rights of creditors having a legal or equitable lien upon the fund, under an execu- tory contract; and the fact, that under the contract they may EEOEIVERS. 251 yet become part owners, does not entitle tlie present owner to a receiver against thera. Field V. Kipley, supra. 'Not in an action to recover tlie possession of real estate from one in possession thereof under a contract of sale. Guernsey v. Powers, 9 Hun, 78. Nor in action to stay waste. Robinson v. Prcswick, 3 Edw. 346. In action to have dower set off, receiver may be appointed. Bgan V. Walsh, 43 N. Y. Super. 403. Court held that a receiver should be appointed where the defendants, who were alleged to be holding the premises under a defective title, were irresponsible and premises were going to ruin, &c. Rogers v. Marshall, 38 How. Pr. 43; 6 Abb. Pr. N. S. 457. Peoples. Mayor, 10 Abb. Pr. 117. ' Keceiver of rents and profits, pending suit, must be appointed by the court, not by a judge at chambers. Ireland v. Nichols, 7 Robt. 476. Effect of judgment against executors upon receiver of rents and profits pending construction of will. People V. McAdam, 84 N. T. 387. On motion for the appointment of receiver in partnership cases, the court cannot determine what is partnership property as between the partners and third persons. In case of dispute the proper course to determine it is by action either against or in favor of receiver. Higgins V. Bailey, 7 Robt. 613. Receivers should not be appointed in mortgage cases, unless the security is inadequate or rents pledged for the debt. Warner v. Gouverneur's Exr., 1 Barb. 36. Shotwell V. Smith, 3 Edw. 588. 352 PEOVISIOWAL REMEDIES. Sea Ins. Co. ». Stebbins, 8 Paige, 565. Burlingame b. Parce, 12 Hun, 144. Gunning v. Bowers, 1 Law Ball. 11. Wall St. F. Ins. Co. v. Loud, 20 How. Pr. 95. Where the premises are admitted to be an inadequate security for the money duo on the mortgage and the persons liable are insolvent, a receiver will be appointed if the debt is due. Smith B. Tiffany, 13 Hun, 671. Bk. of Ogdi'nsburgh v. Arnold, 5 Paige, 38. Howell ». Ripley, 10 Id. 43. Astor V. Turner, 11 Id. 486. Syracuse City Bk. v. Tallman, 31 Barb. 301. It is discretionary with the court to appoint a receiver of rents in foreclosure, and although it has the power to compel the owner of the premises to pay the rents obtained by him to the receiver, it is not obliged to exercise such power. Eider ». Bagley, 84 N. Y. 461; affi'g 13 Hun, 17. Where a receiver is appointed in a foreclosure suit, the plaintiff obtains an equitable lien upon the unpaid rents ; the right to receive the rents before such appointment rests with the owner of the equity of redemption. Eider v. Bagley, 84 N. Y. 461 ; affi'g 12 Hun, 17. Lofsky V. Maujer, 3 Sandf. Ch. 69. Howell V. Ripley, 10 Paige, 43. Aator ». Turner, 11 Id. 436. Mitchell V. Bartlett, 51 N. Y. 447. Argall V. Pitts, 78 Id. 343. Eider v. Vrooman, 12 Hun, 399. It is discretionary with the court whether to compel sucli owner to pay the rents to the receiver after his appointment. Rider ». Bagley, 84 N. Y. supra. The plaintiff, as junior mortgagee, procured the receivership of the rents of the mortgaged premises for his own benefit. By his superior diligence he acquired a specific lien upon the rents BEOBIVERS 253 in question, superior to any equities of the first mortgagee, and is entitled to retain them to apply upon his mortgage. Ranney v. Peyser, 83 N. Y. 1. Wash. L. Ins. Co. v. Pleiscliauer, 10 Hun, 117. Howell i\ Ripley, 10 Paige, 43. Post V. Door, 4 Edw. Ch. 412. If a receiver is the ostensible person liable for an injury, the court should provide, in ordinary cases, for the satisfaction of the injured party, out of the fund. Morris «. Hiler, 57 How. Pr. 332. A receiver of rents and profits takes no title to the real estate. He is merely entitled to possession and the rents and profits. Foster v. Townsend, 3 Abb. N. C. 39. His remedy against an adverse claim to rents and profits is by an order for the examination of the claimant pro interesse suo ; and such proceedings as would adjust the rights of the parties. Foster v. Townshend, supra. The rents which come from the undei'-tenants of a judg- ment-debtor into the hands of a receiver, are not subject to dis- tribution among the creditors until the claim of the original landlord for rent has been extinguished. Riggs V. Whitney, 15 Abb. Pr. 388. "Where property in the possession of a receiver is claimed by a third person, the proper course for the latter is, to apply to the court which appointed the receiver, for an order to pay or deliver it over to the party to whom it righfully belongs. Chautauqua Co. Bank v. Risley, 19 N. Y. 869. Riggs V. Whitney, supra. Noe V. Gibson, 7 Paige, 513. Parker v. Browning, 8 Id. 888. Albany City Bk. v. Schermerhorn, 9 Id. 373. A mortgagee in possession, having been adjudged to be in possession as such, and appointed receiver, cannot be removed 254' PROVISIONAL REMEDIES. by another judge for any cause existing before the order of his appointment was made, but his administration of the trust may be controlled. Bolles V. Buff, 35 How. Pr. 481; Id. 37 Id. 162. Appointment of receiver not to be vacated merely because of a change in the grounds supporting it. White V. Colfax, 33 N. T. Supr. 397. Where it appears that the appointment of a receiver of the assets of a corporation was made collusively, and for the purpose of defrauding the plaintiff in another action brought against the trustees of the corporation, to which the receiver is a party, the court may make an order in such second action, on notice, vacat- ing the appointment of the receiver and appointing another in his pl^ce. Wilson V. Barney, 5 Hun, 357. McArdle v. Barney, 50 How. Pr. 97. Where receiver was appointed in foreclosure after mortgagor had filed a petition to be declared bankrupt, the plaintiff, in a suit begun before the petition was filed, upon the ground of inadequficy of security, and not the assignee of defendant in bankruptcy, subsequently appointed, was entitled to the moneys collected by the receiver. Hayes v. Dickinson, 9 Hun, 377. Where the assignee of the owner of the equity of redemption, prior to the appointment of a receiver in foreclosure, collects the rents and refuses to pay them over to the receiver, the latter cannot proceed against him as for contempt, unless he be made a party to the suit, or the tenants attorn to the receiver. Bowery Sav. Bank v. Richards, 8 Hun, 366. Upon an express stipulation contained in the mortgage that the mortgagees should be entitled to a receiver after a default and upon commencement of proceedings to foreclose, the court held the appointment of a receiver good, because the defense was not positively sworn to. Knickerbocker Life Ins. Co. v. Hill, 3 Ilun, 080. EE0EIVEE8. 255 Where the title to a public office is in dispute, a receiver will not be appointed of the fees thereof. Tappan v. Gray, 7 Hill, 259; affi'g 9 Paige, 507. Nor in a creditor's suit if the remedy at law has not been exhausted. Star v. Rathbone, 1 Barb. 70. Adee v. Bigler, 81 N. Y. 349. As to the right of appointment in an action for the enforce- ment of a mechanic's lien, see Gallagher ». Kams, 15 Week. Dig. 217. Meyer v. Seebald, 11 Abb. Pr. N. S. 326, n. Webb i>. Van Zandt, 16 Abb. Pr. 314, n. Receiver of a corporation occupies the position of a trustee of the corporate funds, for the benefit of persons interested therein, Kimberly «. Stewart, 22 How. Pr. 281. McParlandi). Baio, 26 Hun, 38. Fowler's Petition, 9 Abb. N. 0. 268. « Where an action is brought by the attorney general, to effect a forfeiture of the charter of a corporation for non-user of its powers within a year, it seems a receiver cannot be appointed until judgment in the action. Gilman v. Green Point Sugar Co.; 4 Lans. 482. The appointment of a receiver of a corporation, and the con- sequent control of its affairs by the court, does not amount to a recognition of its corporate existence. People V. Reasselaer Ins. Co., 38 Barb. 333. Where the executive committee of a company voted moneys to themselves, in addition to their regular compensation, for extra services previously rendered, or in consideration of their retirement, it was held that a receiver should be appointed to recover back such moneys for the benefit of the company. Blatohford v. Ross, 5 Abb. Pr. N. 8. 434. After judgment on failure to answer, in an action by a receiver of a corporation, defendant moved to set aside the judg- 253 PROVISIONAL REMEDIES. ment on the ground, among others, to enable him to/set up as a defense that the plaintiff was not duly appointed receiver.. Held, that as the plaintiff was acting under an order of the court acquiesced in by the company of whose assets ho was appointed receiver, the defendant, a debtor to the company, could not object to the irregularities, if there was enough in the original proceedings to give the court jurisdiction. Jay -0. De Gioot, 17 Abb. Pr. 36, n. Whittlesley ». Frautz, 74 N. Y. 456. In creditor's suit to sequestrate assets of corporation ; notice to attorney-general of application. Whitney v. N. Y. & Atlantic Ry. Co., 32 Hun, 164. Receiver of corporation cannot be appointed upon motion after execution is returned unsatisfied. Such appointment must be by the Supreme Court on notice and in an action. Clinch «. South Side B. R. Co., 1 Hun, 636; 4 T. & C. 334. » Loders. N. Y. Utica, &c. R. R. Co., 4 Id. 23. Palmer ». Clark, 4 Abb. 2Sr. C. 35. A receiver will not be appointed of a corporation, when the dissolution thereof is not shown to be a right. Denike ». N. Y. & R. Lime, &c. Co., 80 N. Y. 599. Belmont «. Erie Ry. Co., 53 Barb. 637. In respect to the voluntary dissolution of corporations, receiver cannot be appointed before return of order to show cause. Chamberlain «. Roch. S. P. V. Co., 7 Hun, 557. Receiver will not be appointed in a contest between parties claiming to hold property as trustees of an association, unless danger to the fund or bad faith is shown. "Willis V. Corlies, 3 Edw. 281. Under the provisions of the statute relating to proceedings by and against corporations (2 R. S. 463, § 39, et seq.), an appli- BECEIVERS. 257 cation may be made by a stockholder, without the intervention of the attorney-general, to restrain an insolvent insurance corpo- ration from exercising its corporate rights, and for the appoint- ment of a receiver. Osgood V. Maguire, 61 N.Y. 534; affi'g 61 Barb. 54. Even vchen a court in one judicial district has power to remove a receiver appointed in an action pending in another judicial district, it has no power to appoint his successor. To accomplish this the proceedings must be remitted to the district in which the action is pending. Attrill V. Rockaway Imp. Co., 25 Hun, 376, 509. In regard to receivers of life insurance companies, see People V. Globe Mat. L. Ins. Co., 60 How. Pr. 57. Attorney-General ». Atlantic Mut. L. Ins. Co., 74 N. Y. 177. The receiver of an insolvent corporation stands as the representative of both creditors and stockholders, and should protect the interests of both. Gillet 11. Moody, 3 N. Y. 479; rev'g 5 Baib. 185. Conro V. Gray, 4 How. Pr. 166. Talmage v. Pell, 7 N. Y. 328. Brouwer v. Hill, 1 Sand. 629. Osgood v. Laytin, 48 Barb. 463; affi'd, 5 Abb. Pr. N. S. 1 ; 3 Keyes, 521 ; 37 How. Pr. 63. Libby «i. Rosekrans, 55 Barb. 203. Atty-Genl. «. Kortli Amer. L. Ins. Co., 83 N. Y.182. Bockes 11. Hatlioin, 78 N. Y. 222. Van Cott V. Van Biuiit, 3 Abb. N. C. 283. A receiver of the assets of an insolvent life insurance com- pany, appointed under the act ). Robinson, 94 N. Y. 415. REOEIVBKS. ' 259 The receiver acquires a right over all the property of a cor- poration, arid has full power to sell and dispose of the same, and it cannot be taken on execution by a judgment creditor. Chapmiin ». Douglas, 5 Daly, 244. Atty-Genl. v. Guardiau L. Ins. Co., 77 N. Y. 272. Verplanck v. Mercantile Ins. Co., 3 Paige, 438. In proceedings for voluntary dissolution, the title of receiver vests upon his filing his bond, and a creditor of the corporation may obtain a lien by judgment or attachment, on the assets of the corporation, between the appointment ahd the filing of the bond of the receiver. Chamberlain v. Roch. S. P. V. Co., 7 Hun, 557. A receiver of an insolvent insurance company, appointed under chapter 463 lof the Laws of 1853, is not entitled to have transferred to him the securities deposited by the company with the superintendent of the insurance department. Matter of Guardian Mut. L. Ins. Co., 13 Hun, 115; . affl'd, 74 N. Y. 617. Ruggles B. Chapman, 59 N. Y. 168. People V. Chapman, 64 Id. 557. What proceedings give jurisdiction to the Supreme Court, under 2 Rev. Stat. 436, § 36, to appoint a receiver of a corpora- tion on petition of a judgment creditor of such corporation. Bangs V. Mcintosh, 23 Barb. 591. A receiver of an insolvent corporation may apply to the court, at any time for instructions, when the fund, over which he has control, is in danger, through his error, of being unfairly distributed. People 0. Sec. L. Ins. Co., 79 N. Y. 367. Matter of Van Allen, 37 Barb. 335. A receiver of a railroad is an officer of the court, and a trustee of the stockholders and creditors, who, on reasonable application, are entitled to an inspection of the books and accounts relating to the receivership. Fowler'a Petition, 9 Abb. N. C. 268. 260 PROVISIONAL KEMEDIES. A receiver, appointed by the comptroller of the currency under section 50 of the national banking act, is not an officer of, and cannot be controlled by the court. Oceim Nat. Bk. v, Carll, 7 Hun, 237. To prove the authority of the receiver of a corporation to sue, it is suflicient to produce the petition, the order appointing him receiver, and his official bond. Palmer v. Clark, 4 Abb. N. C. 25. An ex parte order, directing the receiver of a mutual life insurance company, to sue for the whole unpaid balance due on premium notes, does not operate to entitle the receiver to recover in an action brought before the necessary, assessments have been made. Williams ». Lakey, 15 How. Pr. 206. A trustee of a savings bank is liable to the corporation for misapplication of the funds of the bank, and a receiver can enforce such liability. Van Dyck «. McQuade, 57 How. Pr. 62. If the receiver is directed to collect all moneys due the cor- poration, and the order of sequestration embraces the things in action and effects of the company, such proceedings place all such claims in the hands of the court, and beyond the reach of individual creditors. Rankin i). Elliott, 14 How. Pr. 339. The provision of the Revised Statutes directing receivers to sue for unpaid subscriptions for stock, has no application to notes given by members of a mutual insurance company. The same conditions of assessment, &c., are necessary in the receiver's action on such notes, as if the action were by the com- pany. Shaughnessey v. Rensselaer Ins. Co., 21 Barb. 605, Devendorf D. Beardsley, 23 Id. 656. Williams v. Babcock, 25 Id. 109. Williams «. Lnkcy, 15 How. Pr. 206. Savage ». Medbury, 19 2Sr. Y. 36. RECEIVERS. 261 A receiver of a manufacturing corporation may maintain an action to set aside a mortgage executed by it without the requisite assent of stockholders. Vail V. Hamilton, 85 N. Y. 453. Of the power of a court of equity to authorize the receiver of an insolvent corporation to sue all the stockholders upon their individual liability for the benefit of the oreuitors. Story V. Fuvman, 25 N. Y. 314. Mason v. N. Y. Silk Mfg. Co., 14 Week. Dig. 451. The court having appointed a receiver has full power to order the reference of a claim against him without action, and it is not necessary, on a motion for such reference, to require an agreement to refer. Guardian Sav. Inst. v. Bowling Green Sav. Bk., 65 Barb. 275. Leave to sue, improvidently granted, may be revoked. Atty-Genl. d. North Amer. L. Ins. Co., 6 Abb. N.C. 294. Receiver of foreign corporation not to be sued. ' Killmer v. Hobart, 8 Abb. N. C. 436. Receiver of an insolvent firm is not obliged to redeem stock which the firm had pledged, by paying the debts secured by such pledge. Chamberlain «. Greenleaf, 4 Abb. N. C. 178. A lease to a corporation ia not terminated by its dissolution, and its covenant to pay rent does not thereupon cease to be obligatory. A receiver of the dissolved corporation is author- ized to retain out of it^ assets sufficient to cancel and discharge such open and subsisting engagements. People V. Nat. Trust Co., 82 N. Y. 283. 262 PEOVISIOWAL KEMEDIES. A receiver of an insurance company cannot be compelled to pay a check drawn by the company as satisfaction of loss, before his appointment, out of the funds on which the check was drawn, where such funds were withdrawn from the bank by the receiver before the presentation of the check. Attorney-General ». Cout! L. Ins. Co., 71 N. T.325; rev'g 10 Hun, 604. Section 48, chap. 371, of Laws 1875, — providing that all the assets of any insolvent bank shall, after the payment of its cir- culating notes, be applied to the payment of any moneys deposited with it by any savings corporation,— applies only to deposits, properly so called, and not to any other form of indebtedness. The receiver of the savings bank is estopped from questioning the acts of the bank officers in converting the deposit into a call loan. Rosenback v. M. & B. Bank, 10 Him, 148; affl'd, 69 N. Y. 358. Where a receiver of an insurance company is appointed pending an action in which the company is plaintiff, the receiver may continue the action in the name of the original party. Albany Ins. Co. v. Van Vraiiken, 43 How. Pr. 381. Claflin v. Farm. & Citizen's Bk., 54 Barb. 328. Talmage s. Pell, !) Paige, 410. Phoenix Wavehousing Co. ■». Badger, 6 Hun, 298. See sections 1788, 1810, 2429 of Code of Civil Procedure. A receiver of the property of an insolvent corporation will be appointed, whenever, in the exei-cise of a sound discretion, it is apparent to the' court, that the property ought to be placed in indifferent and impartial hands, to secure its preservation during the controversy. Patten v. Accessory Trans. Co., 4 Abb. Pr. 139. But in an action against a manufacturing corporation by a creditor at large, for a dissolution and for a distribution of its assets, the court has no authority to appoint a receiver. Galwey v. U. S. Steam Sugar Ref. Co., 13 Abb. Pr. 311; 31 How. Pr. 313; affl'd, 36 Barb. 637. EECEIVEES. 263 When a receiver of the property of corporations, other than moneyed corporations, can be appointed. Galwey v. U. S. Steam, &c. Co., 36 Barb. 256. His consent necessary before compromise can be effected. Attorney Genl. v. Life & Pire Ins. Co., 4 Paige, 234. And a person having propertj' of corporation in his possession or indebted to the corporation may be brought before him, by a ■warrant, for examination. Noble v. Halliday, 1 N. Y. 330; rev'g 1 Barb. 137. It is sufficient for receiver under 2 R. S. 464, sections 41, 42; Id. 469, sections 68, 72; Id. 43, section 12, to swear to the facts on information and belief. Noble V. Halliday, supra. Claim of counsel for professional services rendered in com- pany's interest is included under order directing receiver of rail- road company to pay debts " owing to the laborers and em- ployes " of the company. Gurney v. Atlantic & G. W. Ry. Co., 58 N. Y. 358; rev'g 2 T. & C. 446. Receiver may require solvent stockholders to pay up the balance due from them on their stock, where he has reason to believe it will be needed to pay debts. Pentz V. Hawley, 1 Barb. Ch. 122. See Nathan v. Whitlock, 9 Paige, 153. A director is estopped from denying the existence of the corporation or the validity of his subscription. Phcenix Warehousing Co. v. Badger, 6 Hun, 293; svffi'd, 67 N. Y. 294. Buggies V. Broclc, 6 Hun, 164. Receiver should collect the deposit notes of a mutual insur- ance company unless excused by the court. Van Buren v. Chenango Co., 13 Barb. 671. 264 PROVISIONAL EEMEDIES. Upon being indemnified for costs and expenses he should enforce any legal liability existing against directors of an insur- ance company for the benefit of all interested. People V. Security Ins. Co., 6 Weekly Dig. 196. Chaper 378 of Laws of 1883, — requiring the accounts of the receiver of an insolvent insurance company to be filed with the General Term of the Supreme Court, — does not require that court to pass upon their correctness or to determine whether or not they should be approved. It only requires that they be placed upon the files of the court. People ». Knickerbocker Ins. Co., 31 Hun, 623. Receiver of a railway corporation has not the power, without an order of court, to grant the privilege of crossing the railway of the corporation he represents, especially at a different grade. Hewlett ®. N. T. West Shore, &c. Co., 14 Abb. N. C. 328. Supplementary proceedings. Proceedings that are supplementary to execution are regula- ted hj sections 2464, et seq. of the Code of Civil Pi'ocedure, and do not properly fall within the province of this work, and there- fore only those decisions that are illustrative of the general principles that govern receiverships therein are collated. The appointment of the receiver may be made upon facts dis- closed in the examination of a third person, before the return of the execution. De Vivier v. Sniyth, 1 How. Pr. N. S. 48. Must be made on personal notice whenever this is practicable, and the order must contain a recital of the fact, when the case falls within the statutory exception. Morgan ■». Von Knhnstamm, 60 How. Pr. 161. Whitney ». AVelch, 3 Abb. N. C. 442. And such notice must be in writing. Ashley V. Turner, 22 Hun, 336. EEOEIVERS. 265 A tliird person cannot avail himself of an irregularity in the appointment. Tyler o. Willis, 33 Barb. 337. Underwood ». Sutcliffe, 10 Hun, 453. Morgan «. Potter, 17 Him, 403. Property of the debtor vests in the receiver from the time of filing and recording of the order. Rogers i). Corning, 441 Barb. 229. Cliautauqua Co. Bli. ». Risley, 19 K Y. 869. And it so vests by virtue of the appointment and without the execution of any conveyance or assignment. Manning ®. Evans, 19 Hun, 500. Wing v. Disse, 15 Hun, 190. Hayes v. Buckley, 53 How. Pr. 178. For property that passes to the receiver, see Code of Civil Procedure, § 2468. Exempt property does not pass, and the receiver cannot interfere therewith; the debtor is protected by the statutory provisions and need not apply to the court for a modification of an order which includes it. Finnin v. Malloy, 33 N. Y. Super. 382. Property acquired after the institution of pi-oceedings, does not pass. Merritt ». Sawyer, 6 T. & C. 160. GrafE v. Bonnett, 25 How. Pr. 470. Receiver may maintain an action to set aside a fraudulent conveyance. Bostwick V. Menck, 40 N. Y. 383. Underwood v. Sutclifie, 77 N. Y. 58. And may be substituted in a pending action brought by the judgment debtor from which assets may be obtained for the creditor's benefit. Matter of Wilds, 6 Abb. N. C. 307. 266 PROVISION'AL EEMEDIES. Thougli he cannot be substituted in an action of tort for per- sonal injuries. Ten Broek v. Sloo, 2 Abb. Pr. 2-34. Da^euport v. Ludlow, 4 How. Pr. 337. Accounting. A receiver is to render an account to the court, not to a party. Musgrave v. Nash, 3 Edw. 172. Unless receiver has filed bis accounts or presented a state- riient of them, with application for a reference, a reference to pass his accounts and determine compensation is improper, People 1). Columbiii Ciir Spring Co., 13 Hun, 585. A creditor may apply to be made a party in suit, in which order was made for the purpose of reviewing the settlement of receiver's accounts, on ground that fictitious claims were allowed. Sclienck v. Ingraham, 5 Hun, 397. When receiver mixes trust fund with bis own, or uses or loans the money, be may be charged interest. Utica Ins. Co. d. Lynch, 11 Paige, 520. Attorney-General i\ N. A. L. Ins. Co., 36 Hun, 294. The fact that a receiver against whom a judgment for costs has been recovered, has bad in hand funds sufiicient to pay it, and has paid other claims larger in amount, is not a ground for compelling bira to pay such judgment on motion. Deveudorf ;-. Dickinson, 31 How. Pr. 375. The receiver who takes possession of goods upon wbicli the sheriff had levied an execution prior to the receiver's appoint- ment is bound to account to the sheriff therefor; and the motion of the execution-creditor and sheriff for an order requiring him to pay to the sheriff the proceeds, so far as necessary to satisfy the execution, should be granted. Rich V. Loutrcl, 9 Abb. Pr. 850, EECEIVEES. 267 A receiver is entitled to commissions at the rates prescribed by 2 Rev. Stat. 93, section 58, and he is also entitled to be repaid actual disbursements, prudently made or incurred, in the case of the trust property. Howes V. Davis, 4 Abb. Pr. 71. The court appointing a receiver has power to fix hia com- pensation according to the circumstances of the case. Gardiner v. Tyler, 4 Abb. Pr. N. S. 463, Matter of "Woven Tape Skirt Co., 85 N. T.506. Attorney-Q-enl. «. N. Amer. L. Ins. Co., 26 Hun, 394. People ®. McCall, 94 N. Y. 587. People ®. Nat. Trust Co., 31 Hun, 30. Baldwin ®. Eazler, 34 N. Y. Super. 374. In the absence of proof as to the amount of labor performed by a receiver, the reasonable rate of allowance for his commis- sion and expenses is according to the rate fixed by the statute for executors. Muller V. Pondir, 6 Lans. 473. Full commissions are not allowed a second receiver upon funds collected and turned over to him by his predecessor. Attorney-Genl. v. Cont. L. Ins. Co., 33 Hun, 333. The trustees of a corporation whose existence is attacked should be afforded the means of resistance so far as the circum- stances of the case justify, and will be permitted to use a reasonable amount of the corporate funds therefor. Matter of Atlantic Mut. Life Ins. Co., 3 How. Pr. N. S. 146. A receiver appointed in an action commenced, when a former action, between the same parties and on the same subject niatter was pending in another court, expended moneys in the matter of the receivership. Held, on granting a motion to stay pro- ceedings and to vacate the order for his appointment, that it should be done on condition that his expenses and compensation be paid by the moving party. McCarthy v. Peake, 9 Abb. Pr. 164. 268 PROVISIONAL EEMEDIES, §714. Application for receivership before judgment. 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 appear- ance 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 tem- porary receiver, to receive and preserve the property, "without notice, or upon a notice given by pubhcation or otherwise, as it thinks proper. The first clause of this section was proposed by the commis- sions as being in accordance with prevailing practice; but, as ex parte appointments had been sometimes made, which had attracted " merited censure," it was thought best to prevent the possibility of such appointments in the future. The last clause was added by an amendment of 1879. As illustrating the practice under the Code of Procedure, in regard to notice of application, see People ». Norton, 1 Paige, 17. Sanford v. Sinclair, 3 Edw. 393. Field B. Ripley, 20 How. Pr. 36. McCarthy v. Peake, 9 Abb. Pr. 164. People v. Albany R. R., 7 Abb. Pr. N. S. 365. A receiver will not be appointed unless the applicant shows some interest in the property and unless the property is in danger. Hamilton v. Accessory Trans. Co., 13 How. Pr.108; 3 Abb. Pr. 255. Goulding d. Bain, 4 Sand, 716. And the appointment will not be made where there is au adequate remedy at law. Lowry v, McLane, 63 Cal. 616. EECEIVEES. 269 Personal notice of the application for appointment of receiver has always been required, unless defendant could not be found or delay would entail loss and destruction of property. People V. Albany & Susq. B. R. Co., 55 Barb. 344; 38 How. Pr. 238. Or, unless there was a voluntary appearance; and this applies to a corporation voluntarily appearing in an actionjby attorney- general to dissolve it. Attorney-Genl. v. Guardian L. Ins. Co., 77 N.Y.272. For the procedure upon an application for appointment of a receiver of a corporation, and his duties under such appointment, see Laws of 1883, ch. 378, as amended by Laws of 1885, ch. 40. A receiver cannot be appointed under proceedings for the voluntary dissolution of a corporation until the final order dis- solving the corporation. Matter of E. M. Boyntow Saw Co., 1 How. Pr. K8. 69; 34 Hun, 369. The appointment of a receiver involves, in effect, an injunc- tion, and is therefore to be directed with great caution and only in cases of pressing and apparent necessity. Patten v. Accessory Trans. Co., 4 Abb. Pr. 285. Wetter ,«. Schlieper', 7 Id. 93. People v. Mayor, &c., 19 How. Pr. 289. Janeway ii. Green, 16 Abb. Pr. 215, n. Application should always be made for the appointment of a receiver, by a creditor, who has obtained an injunction against the judgment debtor, to protect his property and effectuate his lien. Webb ». Overmaiin, 6 Abb. Pr. 93. People ». JIayor, &c., 8 Id. 7. State Bank of Syracuse i>. Gill, 33 Hun, 410. Lent e. McQueen, 15 How. Pr. 313. The order appointing a receiver cannot, as against third persons, date or relate back beyond the order appointing him. 270 PROVISIONAL REMEDIES. It is irregulai' and improper to insert such a clause in the order appointing the receiver. Artisaa's Bank v. Treadwell, 34 Barb. 553. An order for the appointment of a receiver, under section 298 of the Code of Procedure, founded on the voluntary appearance and examination of a judgment debtor, is valid. Bingham v. Disbrow, 14 Abb. Pr. 251. Order appointing in foreclosure, with power to pay, &c., is permissive and not mandatory. Ranney ». Peyser, 83 N. Y. 1. Nealis v. Bussing, 9 Daly, 305. HoUenbeck v.. Donnell, 94 N. Y. 343. Smith V. Kolley, 31 Hun, 387. A receiver may be appointed before trial, even when other receivers of the same funds have previously been appointed by other courts in separate actions. But the later appointment must be subject to the exercise of the powers of the previously appointed receiver, or any other prior judicial authority under which the funds in controversy are held. Bailey v. Belmont, 10 Abb. Pr. N. S. 270. Pending an appeal from judgment, a receiver may be appointed by the court, on the appellant's motion, to take charge of property, to the possession of which the respondent would otherwise be entitled to under the judgment. Fullows V. Heermans, 13 Abb. Pr. N. S. 1. In proceedings to appoint a receiver of an insolvent bank, the fact that no otHcer of the bank could be found on whom ser- vice of notice of a motion for the appointment of a receiver could be served, leaves the court at liberty, in its discretion, to, appoint a receiver, without notice to the bank. Dayton v. Borst, 7 Bosw. 118. Where two receivers are appointed on the same day and both claim the right to act, one being in possession, the court, on the application of the other receiver for the removal of the EEOEIVEES. 271 one in possession, must regard it as a question of legal priority and must take notice of the fractions of the day upon which such appointments were made. Peoples. Cent. City Brink, 53 Barb. 413; 35 How. Pr. 428. Bank of Mut. Redemp. v. Sfcurgis, 9Bosw. 608. When an order is made for the appointment of a receiver of particular property, this amounts by operation of law to a sequestration of such property, and when the receiver is subse- quently appointed the title to such property vests by relation from the date of the order to the same effect as if such receiver was named in, and appointed by, such order. Van Alstyne v. Cook, 25 N. Y. 489. Eutter s. Tallis, 5 Sandf. 610. Porter v. Williams, 5 Seld. 143. Fairfield v. Weston, 2 S. & S. 96. Deming v. N. Y. Marble Co., 13 Abb. Pr. 66. Clark V. Brockway, 3 Keyes, 13. Steele v. Sturges, 5 Abb. Pr. 442. Smith V. Cous. Stage Co., 28 How. Pr. 377. Artisan's Bank v. Tread well, 34 Barb. 553. People «. Central City Bank, 53 Id. 413; 35 How. Pr. 438. His title is subject to any attachment levied prior to his appointment. Dunlop V. Paterson Fire lus. Co., 13 Hun, 637; affi'd, 74 N. Y. 145. The vacation of the order appointing receiver should be made, where it was obtained without notice to all the parties, and property was sold at private sale before defendants had been served with summons. Simmons v. Wood, 45 How. Pr. 262. The entry of a judgment in favor of the defendant ends the functions of the receiver, although he is not discharged without special order. Ireland v. Nichols, 9 Abb. Pr. N. S. 71. 272 PROVISIONAL EEMEDIES. The appointment' of receiver can only continue during the existence of a final jndgment. Rodbourn ». Utica Ry. Co., 28 Huq, 309. A receiver is not generally relieved upon his own application, unless his duties are ended, or some good reason is given by him for such discharge. Beers v. Chelsea Bank, 4 Edvv. 277. A receiver is not discharged by the discontinuance of an action, but on its discontinuance, he may apply for a discharge. Whiteside v. Prendergast, 2 Barb. Ch. 471. The court may, at any time before the appointment of a receiver which they have directed is consummated, revoke such appointment and appoint another. Siney v. N. Y. Consol. Stage Co., 18 Abb. Pr. 435; 28 How. Pr. 481. People V. Church, 2 Lans. 459. Motion to vacate receivership should be made on notice, and should not be granted exparte. Coburn ®. Ames, 57 Cal. 201. Williamson i>. Wilson, 1 Bland (Md. Ch.) 423. Order appointing receiver is not appealable. Emerio ®. Alvarado, 64 Cal. 529. Matter of Real Estate Associates, 58 Cal. 529. McKelsey v. Lewis, 3 Abb. N. C. 61. Fellows ». Heermans, 13 Abb. Pr. N. S. 1. §715. Security by receiver. A receiver, appointed in an action or special proceed- ing, 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 EECEIVEES. 273 court, judge, or referee, making the appointment, condi- tioned 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. The provisions , of the Code of Procedure relative to the appointment of receivers did not contain this section. §716. Beceivers of corporations may hold real estate upon petition for voluntary dissolution. A receiver, appointed by or pursuant to an order or a judgment, in an action in the supreme court, a superior city court, or a county court, or in a special proceeding for 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. Taken substantially from Laws of 1845, ch. 112, section 1. 18 DEPOSIT, DELIVERY OR CONVEY- ANCE OF PROPERTY. § 717. When court may order. 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 another party, or which belongs or is due to arlother pai-ty, the court may, in its discretion, grant an order, upon notice, that it be paid into, or deposited in court, or dehvered to that party, with or without security, subject to the further direction of the court. §718. When sheriff may take. Where the court has directed a deposit or delivery, as prescribed in the last section ; or where a judgment directs a party to make a deposit or delivery, or to con- vey real property ; if the direction is disobeyed, the court, besides punishing the disobedience as a contempt, maj^, by order, require the sheriff to take, and deposit or deliver the money or other personal property, or to convey the real property, in couiormity with the direc- tion of the court. [374] MISCELLANEOUS PROVISIONS. §719. Concurrent remedies. Where an application for an order of arrest, an injunction, and a warrant of attachment, or two of them, is made, in the same action, against the same defendant ; and it satisfactorily appears, that, under the particular circumstances of the case, two or aU of them are not necessary for the plaintiff's security, thb court or judge may, in its or his discretion, require the plaintiff to elect between them. Where an apphcation is made, to obtain, vacate, modify, or set aside an order of arrest, injunction order, or warrant of attachment, the court or judge must finally decide the same, within twenty days after it is submitted for decision. §720. Defendant may have the remedies. Where the defendant interposes a counterclaim and I thereupon demands an affirmative judgment against the plaintiff, his right to a provisional remedy is the same as in an action brought by him against the plaintiff, for the [375] 276 PEOVISIOIiAL BEMEDIES. cause of action stated in the counterclaim, and demand- ing the same judgment. And for the purpose of apply- ing to such a case the provisions of this act, the defendant is deemed the plaintiff, the plaintiff is deemed the defendant, and the counterclaim so set forth in the answer is deemed the complaint. FORMS ADAPTED TO THE REQUIREMENTS OP THE SEVERAL METHODS OP RBLIEP, OFFERED BY THE CODE AS PROVISIONAL REMEDIES. AEEEST. AFFIDATIT WHERE THE RIGHT DEPENDS TPON THE NATURE OP THE ACTION. § 549. ITitle.] City and County of New York, ss. A. B. being duly sworn says : I. That this cause has been commenced by the service of a summons on the defendant herein, as appears by the annexed affidavit of service, which is made a part of this affidavit. [If the order is asked to accompany the summons under sec- tion 558, substitute the following : " That the summons hereto annexed has been issued for service in this action."] II. That a sufficient cause of action exists herein, in favor of the plaintiff against the defendant, and that the facts, upon which the same is based, are as follows : [Set forth a cause of action embraced in section 549, either by a specific statement of fitcts or by reference to a complaint annexed and made part of the affidavit.\ [277] 278 ^EOVISIONAL REMEDIES. [If the arrest is sought under subdivisiSn 4 of section 546, add :] III. That the defendant herein was guilty of a fraud in con- tracting the liability aforesaid, and that the facts which consti- tute such fraud, are as follows : [Set forth the fraudulent acts with particularity.] IV. That no previous application for an order of arrest has been made herein. A.B. Sworn to before me, this 1st ,day of March, 1886. J. S. D., Notary Public. 11. AFFIDAVIT WHERE THE RIGHT DEPENDS UPON EXTRINSIC FACTS. § 550, subd. 1. Title.] City and County of New York, ss. A. B. being duly sworn says : I. That he is plaintiff in this action, and that a sufficient cause of action exists herein in his favor against the defendant, and that the facts upon which it is based, are as follows : [State the facts specifically or by reference to a complaint annexed.] II. That this action was commenced on the 1st day of Feb- ruary, 1886, as appears by the affidavit of service hereto annexed and made a part hereof, for the recovery of a chattel as set forth above. III. That the plaintiff complied with all the requirements of the Code of Civil Procedure, to entitle him to the specific recovery of said chattel ; copies of the affidavit and requisition therefor are annexed hereto. IV. That since the commencement of this action, said chattel has been removed by defendant so that it cannot be found by the sheriff, and with intent that it should not be so found, and with intent to deprive the plaintiff of the benefit thereof. V. That the facts upon which deponent founds his knowl- edge of such removal, are as follows : [State the facts loith particularity, and annex a return by the officer of his inability to take the property, and that the same has been removed, die.] FORMS. 279 VI. That no previous application has been made for an arrest herein. A. B. Sworn to this 1st day of March, 1886, before me. C. D., Notary Public. III. SAME; under § 550, subd. 2 and 3. I. [As in paragraph I. of preceding form.'\ II. That this action was commenced on the first day of Feb- ruary, 1886, as appears by the affidavit of service hereto annexed, for the cause set forth above. Hi That since the making of the contract upon which this action was brought, the defendant has removed his. property with intent to defraud his creditors; and that the facts in rela- tion thereto are as follows : [/Stote particularly the circum- stances. If the arrest is asked under subdivision 3, this para- graph should be varied, of course, to conform thereto.^ IV. That no previous application has been made for an order of arrest. A. B. [ VerificationJl IV. SAME ; under § 550, subd 4. Forms for an affidavit on arrest, in an action for divorce, are fully given in Gardiner v. Gardiner, 3 Abb. N. G. 1, and Jamieson v. Jamieson, Id. 3. 280 PEOVISIOITAL REMEDIES. V. UNDERTAKING ON AKEEST {Title of court.'] A. B., Plaintiff, against . C. D., Defendant. The above named plaintiff having applied to one of the judges of this court, for an order of arrest against the above named defendant C. D., in an action brought under section of the Code of Civil Procedure, for the following cause : We of No. Street, in the City of New- York, and of No. Streetf in the City of New York, do jointly and severally undertake, pursuant to the statute in such case made and provided, in the sum of two hundred and fifty dollars \at least] that if the defendant recovers judgment in this action, qr if it is finally decided that the plaintiff was not entitled to said order of arrest, the plaint- iff will pay all costs which may be awarded to the defendant and all damages which the defendant may sustain by reason of the arrest, not exceeding the above sum mentioned. Dated New York, March 1st, 1886. E. F. G. H. City and County of New York, ss. E. F., bekig sworn says, that he is a resident and a free- holder within the State of New York, and worth twice the sum specified in the above undertaking, over all the debts and liabil- ities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. E. F. Sworn to before me, this 1st day of March, 1886. J. K., Notary Public. City and County of Now York, ss. G. II. being sworn says, that he is a resident and a house- iioldcr within the State of New York, and worth twice the sum POEMS. 281 specified in the above undertaking, over all the debts and liabil- ities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. G. H. Sworn to before me, this 1st day of March, 1886. , J. K., Notary Public. I certify, that on this first day of March, 1886, before me personally appeared the above named E. P. and G. H., known to me and to me known to be the individuals described in, and who executed the above undertaking, and severally acknowl- edged that they executed the same. J. K., Notary Public. VI. ORDER OF ARREST. [Title qfcoicrt.] A. B., Plaintiff, against C. D., Defendant. ■ Order to arrest hold to bail. and To the Sheriff of the county of New York : It having been made to appear to me by the afiidavit of A. B., that a suflBcient cause of action exists against the defend- ant C. D., and that the case is one of those mentioned in article 1st, chapter 7, title 1, of the New York Code of Civil Procedure, and that the ground of arrest is [state the grounds upon which the arrest is asked specifically.^ You are required forthwith to arrest C. D., the defendant in this action, if he is found within your county, and to hold him to bail in the sum of , and to return this order, with your proceedings thereunder, as prescribed by law. Dated New York, March 1st, 1886, , Judge. H. O., Plaintiff's Attorney. 282 PROTISIONAL REMEDIES. VII. BAIL. UNDERTAKING. § 575. [Title.] The above named defendant C. D. having been arrested by the sheriff of the county of New York, upon an order dated the 1st day of March, 1886, in the action aforesaid : Now, we E. F. of No. street, and G. H., of No. street, both of the Cily and County of New York, hereby jointly and severally undertake in the sum of dollars, [that the said defendant will obey the direction of the court or of an appellate court, contained in an order or a judg- ment requiring him to perform an act specified in the order of arrest; or, in default of his so doing that he will at all times, render himself amenable to proceedings to punish him for the omission.] If the arrest is under the second subdivision of section 575, insert ijistead of the clause in brackets the folloxeing : [That the defendant will deliver the chattel, which is the subject of this action, to the plaintiff, if delivery thereof is adjudged in the action; and will, also, pay any sum recovered against him in the action.] If the action falls under the third subdivision of this section i?isert in place of the clause in brackets : [That the defendant herein will, at all times, render himself amenable to any mandate which may be issued to enforce a final judgment against him in this action.] The acknowledgment, by the obligors ; and the justification, are in the usual form. See V. of these precedents. VIII. MOTION TO TACATE ORDER OF ARREST. {Title.] On the papers filed and served, and on the aflSdavit of C. D. annexed hereto, on motion of H. O., attorney for defendant. It is OEDEKEr, That the plaintiff herein show cause on the first Monday of roBMS, 283 April, 1886, at a special term of this court, wLy the order of arrest granted on the first day of March, of the current year, in favor of the plaintiff and against the defendant, should not be vacated fpr the reasons specified in the affidavit. [ Verification.] IX. AFFIDAVIT IN SUPPORT OF COMPLAINT ON APPLICATION FOR INJUNCTION. [The exigencies that may arise in the varied causes that call for equitable relief cannot be anticipated; and any attempt to formulate hypothetical cases will simply occupy space without affording aid. A general form is, therefore, given, which the practitioner must accommodate to the circumstances of the particular case, in which the remedy is asked.] [Title.] City and County of New York, ss. A. B., being duly sworn, says: I. That he resides in the city of New York, and has acted as legal adviser of the plaintiff in the matters from which this litigation has arisen, and is now the plaintiff's attorney herein. II. That he is acquainted with the facts set forth in the com plaint, and believes that the allegations of this complaint are true, and that the plaintiff is justly entitled to the relief therein demanded. [ Or, without reference to the complaint, state speci- fically the facts upon which the injunction is ashed ; and, if it be desired for facts extrinsic to the cause of action, recite suc- cinctly the act or acts in violation of plaintiff's rights, which defendant is doing or which he threatens to do; together with the sources of deponent's knowledge.] III. That no previous application for a restraining order has been made herein. A. B. Sworn to before me, this 1st day of March, 1886. B. C, Notary Public, 284 PEOVISIOWAL REMEDIES. X. INJUNCTION ORDER. § 610. [Title.] As APPLiCATioiT having been made, upon the verified com- plaint herein and the affidavit of the plaintiff, for an order restraining the defendant from the performance of the acts here- inafter set forth; and it appearing from said complaint and affi- davit that the grounds upon which such restraining order is asked are as follows : [Insert a brief recital of the grounds of the injunction^ and a proper and sufficient undertaking hav- ing been given ; Now, upon the papers specified above, and on motion of D, and L., attorneys for the plaintiff, It is oedbeed. That the defendant C. D., his attorneys, agents and servants, he and they, and each of them, are hereby required to refrain from [purticularite, with care the acts sought to be enjoined] until the further order of this court. G. C. B., New York, March 1st, 1886. Justice Supreme Court. D. & L., Attorneys for Plaintiff, 261 Broadway. XL INJUNCTION ORDER DURING THE PENDENCY OF AN ORDER TO SHOW CAUSE. [Tnsert the recitals as in the preceding form.] It is oedbeed. That the defendant show cause at a special term of this court, to be holden at the county court-house in the City of New York, on March 5th, 1886, at eleven o'clock in the forenoon, why the defendant, his attorneys, agents and servants, should not be restrained from [specify the acts sought to be enjoined] and until the hearing and determination of this order It is fuethee oedeeed, That the defendant, his attorneys, agents and servants be FORMS. 285 restrained from the commission of the acts above specified ; and that service of this order on or before March 2d, 1886, shall be a sufficient service. G. C. B., New York, March 1st, 1886. Justice Supreme Court. D. & L., Attorneys for Plaintiff, 261 Broadway. XII. UNDERTAKING ON INJUNCTION, GENERAL FORM. [Title of Court.] A. B., Plaintiff, agaitist C. D., Defendant. The above named plaintiff having applied to one of the just- ices of this court for an injunction in the above entitled action, restraining the defendant from , negotiating, transferring or assigning a certain promissory nolie purporting to be signed by the plaintiff for the sum of one thousand dollars, and payable to the defendant's order and bearing date the 1st day of January, 1886 ; as is provided in said order. Now therefore, pursuant to the statute in such case made and provided, E. P., of No. Street, in the City of New York, and G. H., of No. Street, in said City, jointly and severally undertake [in the sum of twelve hundred dollars, that the plaintiff will pay to the defendant so enjoined, such damages, not exceeding the before mentioned sum, as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto;] such dam- ages to be ascertained and determined by the court, or by a referee appointed by the court, or by a writ of inquiry or other- wise as the court shall direct. Dated New York, March 1st, 1886. E. F. G. H. 286 PKOVISIOI-TAL REMEDIES. City and County of New York, ss. E. P. being sworn says, that he is a resident and a free- holder within the State of New York, and worth double the sum specified in the above undertaking, over all the debts and liabil- ities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. E. F. Sworn to before me, this let day of March, 1885. Ji S. D., Notary Public. City and County of New York^ ss. Q. H. being sworn says, that he is a resident and a house- holder within the State of New York, and worth double the sum specified in the above undertaking, over all the debts and liabil- ities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. G.H. Sworn to before me, this 1st day of March, 1 886. J. S. D., Notary Public. ^ City and County of New York, ss. I Ceetift, that on this 1st day of Mai-ch, 1886, before me personally appeared the within named E. F. and G. H., known to mo to be the individuals described in and who executed the within undertaking, and severally acknowledged that they e?;ecuted the same. J. S. D., Notary Public. XIII. UNDEBTAKING TO STAY TRIAL OF ACTION. § 611. , Insert in lieu of the clause of the preceding form, which is enclosed in brackets, the following : "To and with the defendant, that the plaintiff will pay to the defendant herein, or his representative, all damages and costs, which may be received by him in the action stayed by the injunction, not exceeding the sum of one thousand dollars ; FOKMS. 287 and, also, all damages and costs that may he awarded to Mm in this action in which the injunction order is granted." XIY. UNDERTAKINCt TO STAT PKOCEEDINGS AFTER TRIAL AND. BEFORE JUDGMENT. § 612. In place of the bracketed clause in Form XII., insert the following condition : " To and with said defendant, pursuant to the statute, that the plaintiff will pay the sum of one thousand dollars with inter- est from the day of , 1886, and all costs of said action to the^defendant, or his representative, in case the court shall finally decide that the said plaintiff was not entitled to the injunction ; and all damages and costs that shall be awarded to said defendant in this action in which the injunction order is granted." XY. UNDERTAKING TO STAY MONET JUDGMENTS, INCLUDING THE UNDERTAKING IN LIEU OF PAYMENT INTO COURT. § G13. In place of the clause in brackets in Form XII., insert : " To and with the said defendant, pursuant to the statute that the plaintiff will pay tlie sum of dollars, (being the full amount of the judgment, with interest and costs),' with interest from the day of , 1886 ; and also, that said plaintiff will pay to tlie defendant all damages and costs that may be awarded to him by the court in this action, in which said injunction is granted, not exceeding the sum of dollars, in addition to the amount hereinbefore specified." 388 PROVISIONAL EEMEDIE3. XVL UNDERTAKING TO STAY PROCEEDINGS IN EJECTMENT OE DOWER. § 616. Insert in place of the condition in Form XII., enclosed in brackets, the following : " To and with the defendant above named, that the plaintiff will pay to said defendant, or his representative, all damages and costs, not exceeding the sum of dollars which may be awarded to him, said defendant, in this action." XVII. AFFIDAVIT UPON APPLICATION TO VACATE EX PARTE INJUNCTION. § 626. [Title.] City and County of New York, ss. C. D. being duly sworn says : — I. That he is the defendant herein, and was served with the injunction order and papers upon which the same was granted, on the day of , 1886. II. That said injunction was granted upon the ex parte appli- cation of the plaintiff on the day of its date. III. That said injunction order was not founded upon the papers which the provisions of the Code of Civil Procedure pro- vide, in this ; that the injunction seeks to restrain the trial of an action in which a money judgment is demanded, and the undertaking given by the plaintiff hei-ein does not stipulate for the payment of all damages and .costs which may be recovered by the defendant in the action stayed by the injunction. IV. That defendant is entitled to a vacation of the order aforesaid ; and that to protect his rights in the premises the order vacating the same should be made without notice. V. That the reason for which deponent desires the vacation of the restraining order, without notice, is that the cause pend- ing in the City Court of New York, proceedings in which are enjoined he^'ein, is upon the day calendar of that court and will be called for trial to-morrow morning, and that if it be not per- FORMS. 289 mitted to proceed at that time the defendant herein, who is plaintiff in that suit, will be subjected to serious loss ; and against such loss the undertaking given herein affords no remedy. VI. [If the application be made to a judge otJier than the one who granted tlie injunction, the reasons therefor should be stated. ] VII. [Affidavit of merits is desirable. It may be made in the usual form and annexed or incorporated herein.] VIII. That no 'previous application has been made for a vacation of this injunction. . Dated New York, March 1, 1886. [ Verifcation.] XVIII. ORDER TACATING INJUNCTION, EX PARTE. [Title.] Upon the affidavit of C. D. hereto annexed and upon the papers herein ; on motion of Mathies and Overington, attorneys for defendant and appellant, It is oedbbed, That the injunction order granted herein on the day of the current month, by which the defendant was restrained from the prosecution to trial of a suit between the parties hereto pending to the City Court of New York, be and it hereby is vacated. N. D., P. Justice Supreme Court Dated New York, March 1, 1886. 19 290 PROVISIOB'AL REMEDIES. XIX. AFFIDAVIT TO OBTAIN WARRANT OF ATTACHMENT. A. B., Plaintiff, against C. D., Defendant. City and County of New York, ss.' A. B. being duly Bworn, says : — I. That a cause of action exists in favor of the plaintiff against the defendant for the following breach of contract, to wit ; that the above named defendant is indebted to the above named plaintiff in the sum of on-e thousand dollars and interest as hereinafter set forth ; that on the 1st day of January, last past, at the City of N«w York, defendant made his promissory note for the sum of one thousand dollars, payable to the order of one K., in thirty days from date, at the Third National Bank of the City of New York ; that said note was indorsed there- after, on the same day to the plaintiff for a valuable considera- tion, and the plaintiff is still the owner thereof ; that the same was duly presented at maturity and payment demanded and refused. II. That the plaintiff is justly entitled to recover the sum aforesaid, w:ith interest from the maturity of the note, over and above all counter-claims, discounts and set-offs known to plaintiff. III. That the summons has been issued herein and is hereto annexed. IV. And this deponent further says, that the defendant is not a resident of this State, but resides at Boston, in the State of Massachusetts. [State means of knowledge.] V. That no previous application has been made for an attachment by him. A. B. Sworn to before me, this 1st day of March, 1886. Notary Public. FORMS. 291 XX. UNDERTAKING ON ATTACHMENT. § 640. [Title of Court] A. B., Plaintiff, against C. D., Defendant. The above named plaintiff having applied to one of the justices of this court, for a warrant of attachment against the property of the above named defendant C. D., as a non-resident debtor. We E. F., of KTo. Street, in the City of New York, and Gr. H., of No. Street, in the City of New York, do jointly and severally undertake, pursuant to the statute in such case made and provided, in the sum of two hundred and fifty dollars, that if the defendant recover judgment in this action, or if the warrant of attachment is vacated, the plaintiff will pay all costs which may be awarded to the defendant and all damages which the defendant may sustain by reason of -the attachment, not exceeding the sum above mentioned. Dated New York, March I, 1886. E. F. G. H. City and County of New York, ss. E. F. being sworn says, that he is a resident and a free- holder within the State of New York, and worth double the sum specified in the above undertaking, over all the debts and liabil- ities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. E. F. Sworn to before me, this 1st day of March, 1886. , Notary Public. City and County of New York, ss. G. H. being sworn says, that he is a resident and a house- 292 PROVISIONAL REMEDIES. liolder within the State of New Yorlc, and worth double the sum speoified in the above undertaking, over all the debts and liabil- ities which he owes or has incurred, and exclusive of property exempt by law from levy and sale.under an execution. G. H. Sworn to before me, this Ist day of March, 1886. '■ , Notary Public. City and County of New York, ss. I Cebtift, that on this first day of March, 1886, before me personally appeared the above named E. F. and G. H., known to me, and to me known to be the individuals described in, and who executed the above undertaking, and severally acknowl- edged that they executed the same. , Notary Public. XXL WAKEANT OF ATTACHMENT. § 641. The People of the State of New York, to the Sheriff of the City and County of New York, Geeeting : Whereas, an applicatioi^ has been made to the judge granting thisivarranl by , plaintiff, for a warrant of attachment against the property of C. D., defendant in an action in the Supreme Court, and it appearing by affidavit to the satis- faction of the judge granting this warrant that one of the causes of action specified in section 635 of the Code of Civil Procedure exists against the defendant to recover a sum of money only, to wit : the sura of one thousand dollars, and interest from Janu- ary 1st, 1886, as damages for the breach of a contract arising as follows : [Insert as in affldavit] and the affidavit showing that the defendant is not a resident of this State ; and that be is a resident of the State of Massachusetts, and the plaintiff having also given the undertaking required by law ; Now Tou ARE HERBBT COMMANDED, to attach and safely keep so much of the pi-operty within your county which the defendant C. D. has, or which he may have at any time before FOEMS. 293 final judgment in the action, as will satisfy plaintiff's demand of one thousand dollars and interest aforesaid, together with costs and expenses, and that you proceed hereon in the manner required of you by law . Witness, Hon. George C. Baeebtt, one of the justices of the Supreme Court, at the City of New York, this first day of March in the year one thousand eight hundred and eighty-six. Geoege C. Baeeett, Judge. C. T. H., Attorney for Plaintiff, XXII. NOTICE OF ATTACHMENT. I HEEEBT CEETIPT that the within is a true copy of th« original warrant of attaphment issued in the within mentioned action, and that the attachment of which the within is a copy is now in my hands, and that by it I am commanded to attach the estate, real and personal, including monej' and bank notes, bonds, promissory notes and other instruments for the payment of money, of the defendant C. D., within named within my county (except articles exempt from execution), and to take into my custody all books of account, vouchers, and papers relating to the property, debts, credits and effects of said defendant, together with all evidences of title to real estate, and that all such property, debts, credits and effects, and all rights and shares of stock, with all interest and profits thereon, and all divi- dends thereon or therefrom, of the said defendant now in yon: possession or under your control, are, and those which mav come into your possession or under your control, will be liable to said warrant of attachment, and are hereby attached by me, and you are hereby required to deliver all such moneys, bank notes, bonds, promissory notes, and other instruments for the payment of money, books, vouchers, papers, debts, credits, effects, evidences of title to real estate, shares of stock, interest, profits, and dividends thereon, and all property capable of manual delivery, into my custody without delay. I hereby require you to furnish me with a certificate, as required by tlie Code of Civil Procedure, of any rights, shares, debts, or other property of said defendant incapable of 294 PEOVISIONAL EEMEDIES. manual delivery. And in default hereof you will be liable to the examination and attachment in such case provided by law. Hugh J. Geant, H. P. Mulvany, SherifE. Deputy. H. L. Luques, . Attorney for Attaching Creditor. XXIII. INTENTORT UNDER SECTION 654. New York Supreme Court. A. B., against C. D., Plaintiff, Defendant. The warrant of attachment was issued in this action March Ist, 1886. D. & L., Plff's Att'ys. Inventory of the property of the defendant C. D., in the above action, so far as the same has come to the hands, posses- sion or knowledge of the sheriff of the City and County of New York, by virtue of a warrant of attachment issued by the Hon. '.(jrEOKGE C. Bakrett, taken with the assistance of two disinter- ested freeholder^, summoned and sworn by the said sheriff to assist in taking the same this first day of March, 1886, \^State specifically the property attached^] And that the aggregate value thereof as estimated by us is appraised by them at the sum of [one thousand] dollars. E. F. ) . » r TT ( Appraisers. City and County of New York, ss. E. F. anil G. H. being severally duly sworn, each for himself says that he will well and truly make a full and just inventory, and well and truly appraise the property of the defendant C. D., in the above- entitled action, seized by the sheriff of the City and FORMS. 295 County of New York by virtue of the warrant of attachment issued in the said actioil, according to the best of my ability. E. F. G. H. Subscribed and sworn to before me, this 1st day of March, 1880. H. P. MuLvAinr, Deputy of the Sheriff of the City and County of New York. New York, March 1st, 1886. City and County of New York, ss. I Certify that the foregoing is the inventory and appraisal of the property levied on and attached by me this day, as the property of the defendant C. D., under and pursuant to the v,rarrant of attachment issued in above action by the Hon. Gboege C. Baeeett, one of the justices of the said court. Hugh J. Geant, Sheriff of the City and County of New York. H. P. MULVANT, Deputy. INDEX. ABATEMENT, unlawful, of nuisance, injunction against, 99, ACCOUNT, arrest for balance of, 4. ACCOUNTING, arrest in action for, 33. receipts by receiver on, 245. by receiver, 266. ACKNOWLEDGMENT of undertaking, 35, 127. amendments of, 169, 170. ACTION, arrest in, 1. by assignee, 3, for a chattel, 17. on foreign judgment, 25. on recognizance of bail, 54. to enforce sherifE's liability as bail, 67. by sheriff against bail, 69. only remedy on bail bond, .75. when brougbt against bail, 75, 76. defenses in action against bail, 77, 78. injunction to restrain, 88, 89. before judgment, 88. after judgment, 89. in another court, 88. State, 88. removal of, 89. security on, 119, 120, 131. before trial, 119. after trial, 130. after judgment, 120, 121. to enforce security on injunction bond, 133. of tort, attachment in, 146. by sheriff in aid of attachment, 198, 199, 200, 201, 203. on undertaking in attachment, 204. defenses to, 204. by plaintiff to enforce attachment, 210. how leave granted, 311. joinder with sheriff, 312. conduct of action, 213. [297] 298 INDEX ACTION, by junior attacMng creditor, 228. by receiver, 243, et seq. ] derives authority from court, 243. may select own tribunal, 243. in his own name, 242. foreign may sue, 343. agaitfst' debtor for conversion, 243. against receiver, restrained, unless by leave of court, 243. leave is discretionary, 344. contempt to bring without leave, 244. compromise of, 244. ACTOR, enjoined from violation of contract, 101. ADVERSE USER, see Presckiptidn. ADVISER, legal adviser not appointed receiver, 239. AFFIDAVIT on arrest, 29, 30, 31', 32, 33. should be specific, 29. state facts, 29. complaint regarded as, 33. on information and belief, 31, 33. must be consistent with complaint, 88. copies to be delivered to defendant, 37. on motion to vacate, 47, 48. on injunction, 114, 115, 116. indispensable, 114. on information and belief, 114. must state specific facts, 114. complaint may be, 1113, 137. answer, 137, 140. what to contain, 115. motion to v.icate, 137, 138. foreign deposition, 138. on attachment, 148, et seq. requisites of, 148. must show cause of action, 149. set forth subject of action, 150. state facts specifically, 151. on information and belief, 153. should state the issuance of summons, 153. counter-claim, 154. by agent, 155. filing of, 168. on- motion to dissolve attachment, 217, 318. must specify defects, 217. AGENT, arrest of, acting in fiduciary capacity, 20. when restrained by injunction, 87. aflldavit by, 155, AGREEMENTS, see Covenants. ALIMONY, arrest where it has been ordered, 23. INDEX. 299 ALLOWANCE of bail, 63. AMENDMENT of order of arrest, 37. ■warrant of attachment, 173. undertaking, 169. ANSWER, defendant to have twenty days after arrest, 43. APPEAL, discretion on granting injunction cannot be reviewed on appeal, 88. by sureties from damages on bond, 133. none from ex parte order, 138. from order denying motion to vacate attachment, 319. vacating attachment, 319. receiver pending appeal, 370. none from order appointing receiver, 273. APPRAISAL of domestic vessel, 303. foreign vessel, 304. APPROVAL of bond by judge on arrest, 36. ARREST, only as prescribed by Code, 1. construction of statute, 1. not granted in case of doubt, 3. is incident of the remedy, 2. discretionary, 2. personal liability necessary, 3. actual guilt must be shown, 3.' of joint debtor, 3. partner, 3. by assignee of claim, 3, 4. for creditors, 3. none, where improper joinder is made, 4. for balance of amount, 4. foreign judgment, 4. second, not allowed, 5. for fine or penalty, 7. personal injury, 7. libel, 7. seduction, 6, 7. nmlicious prosecution, 8. divorce, 8. Injury to property, 6, 8. common carrier, 8. innkeeper, 9. money lost at play, 9. conversion, 9, 10. of firm property, 9. negligence, 9. real property, 10, 11. misconduct in office, 6, 11. director, 11. officer of foreign government, IL 300 ISDEX. ARREST, misconduct of register, 11. professional employment, 6, 11. attorney, 11. fraud or deceit, 6, 11, 13. of agent, 12. false entry of goods, 12. omission of assets from schedule, 13. conspiracy to defraud, 13. in con.tracting liability, 6, 13. not traversable, 13. false representations, 14, 15. concealment, 15. complaint for, 15. for extrinsic facts, 16. to recover chattel, 17. removal of property, 18. trust property, 18. fiduciary capacity, 19-32. ne exeat, 23. order of, 33. when and how granted, 34, 28, 29. at what time issued, 33. foreign judgment, 35. exemption of woman, 36. representative, 27. discharge of non compotes, 37. security on, 34, 35, 36. service of order, 37, 38. by whom made, 38. where made, 38. what constitutes, 39. privilege from, 39, 40. defendants' time to answer after, 43. vacation of order, when made, 44, 45. how made, 46, 47, 48. granted conditionally, 49. discharge from by bail or deposit, 53, 55. form of bail, 55, 56, 57. when Illegal arrest may be restrained, 89. ASSESSMENT, not restrained for illegality, 00. when enjoined, 90, 91. complaint asking injunction, 93. of damages on undertaking, 139. ASSIGNED PROPERTY, attachment of, 178. ASSIGNMENT of claim carries right of arrest, 3, 7 attachment for threat to make, 159. cannot be attacked by suit by sheriff, 193, ASSIGNEE, arrest by, 8. INBEX. 301 ASSIGNEE, when exempt from arrest, 27. attachment by, 144. sheriff cannot maintain action against to avoid the assign- ment, 198. ASSIGNOR may move to vacate attachment, 214. ASSAULT AND BATTERY, arrest for by wife, 8. ATTACHMENT, in what actions granted, 141. the remedy provisional only, 143. nature of remedy, 143. not matter of right, 143. strictly statutory, 143. who is entitled to, 144. non-resident, 144. assignee of demand, 144. against whom, 144, 156. partner, 144, 145. foreign receiver, 145. corporation, 156. non-resident, 164. in what actions, 145. not in equitable, 145, 146. foreclosure, 145. breach of contract, 146. actions of tort, 146. for conversion, 147. for injury to personalty, 147. , upon what proof issued, 148. affidavit, 148, 149, 150, 153. on information and belief, 153. counter-claim, 154. when issued, 155. jurisdiction attaches, 163. service of summons, 163, 165. waiver of, 166. by publication, 166, 167. filing of affidavit, 168. security, 168. form and requisites of, 169. amendments, 169. validity of undertaking, 174 i sureties, rights of, 171. warrant, 172, ei seq. to whom directed, 173. contents, 173. requisites of, 173. how -executed, 174, 175, 176, 177. property liable to levy, 178, 179, 180, 181, 183. real property, 183. 302 INDEX, ATTACHMENT, subscription to foreign corporation, 183. chose in action, 184, 185, 186. Hietliod of, 187. real, 187, 188. personal, capable o/ manual delivery, 178, 188. cbock, 189. oilier personal, 187, 189. certificate of interest, 193. examination of person refusing certificate, 193. goods on sliipboard, 195, 196. inventory, 196. amendment of, 197. action by sheriff, 198, 199, 200. property liable to depreciation, 300. trial of claim, 201. domestic vessel, 203. undertaking, 203. discbarge of, 303. action on, 304. foreign vessel, 204. valuation of, 204. undertaking, 305. discbarge of, 206. claim to, 306. sale of, 207, 208. property to be kept by sheriff, 208. payment of money into court by, 209. suit by plaintiff, 210. terms upon leave to bring, 311. who joined in, 313. under direction of court, 212. by junior plaintiff, 238. return of inventory, 313. vacation of warrant, 813. • by whom motion made, 214, 215. when made, 316, 230. how made, 316. on papers only, 317. on proof, 318. second motion, 219. undertaking, 320, 222. application by one of several, 222. retention of property by sheriff, 333. vessels, 233. by partners, 334, 335. various warrants, 23.5. levj' under, 22G. second creditor's rights, 236, 337. INDEX. 303 ATTACHMENT, to whom execution should issue, 329. execution against non-resident, 239. satisfaction of judgment, 2iJ0. restoration of property to defendant, 283. cancellation of notice, 233. return of warrant, 234. jfTTORNEY, arrest of, 11. must subscribe order of arrest, 37. privilege of from arrest, 43. cannot be bail, 60. affidavit on attachment by, 155. must subscribe warrant, 172. service of notice on does not attact judgment, I9O. AUTHOR, injunction to protect, 104. BAHi, does not waive right to vacate order of arrest, 33, 45. when defendant may give, 53. election to give or make deposit, 55. sheriff liable as, for escape, 53, 66. for refusing, 53. amount of, discretionary, 54. action on recognizance, 54. undertaking of, 55. examination of, 57, 58. acceptance or rejection of, 58. qualification of, 59, 60, 61. justification of, 61. allowance of. 62. deposit instead of, 63. substituted for deposit, 64. proceedings on judgment against sheriff, 68. liable to sheriff, unless Ihey justify, 69, may surrender prineipul, 72. action on undertaking, 75. defenses in, 77. relief of, when principal committed for crime, 78. exonerated bj' death of principal, &c., 79. BANK, see Cokpokation; Foreign Cohpoeation. BANKER, do not act in fidutdary capacity, 20. BANKING ASSOCIATION, see Cobporation. BANKRUPTCY, arrest not waived by proof in, 16. surety on bail bond not discharged by, 66. nor on attachment, 221. BAWDY HOUSE, injunction against, 106. BILLS OF EXCHANGE, when transfer of restrained, 101. attachment of, 184. BOOKS, taken into custody on attachment, 175. BREACH of contract, uttachment for, 141. 304 INDEX. BREACH of contract, what is included in, 146. customs duties, 146. to marry, no arrest, 6. no attachment, 141. BROKER, does not act in fiduciary capacity, 20. BUILDING, rights to break for enforcement of warrant, 174, CANCELLATION of undertaking, 123. notice of attachment, 233. CAUSE OF ACTION, arrest by assignees of, 3. foreign judgment does not change, 25. attachment of , 184. CERTIFICATE of interest in property attached, 193, 193. examination for refusal, 193, CHATTEL, arrest in action for, 17. attachment, nature of, 143. CHECK, attachment of, 189. CHOSE IN ACTION, attachment of, 184, 185, 186. CLAIM, attachment of, 186. trial of validity to attached goods, 201. to domestic vessel, 203. to foreign vessel, 304, 305, 206. compromise by receiver, 244. against receiver by third person for the fund, 253. CLERK, deputy and assistants not eligible as receivers in New York, 241. COLLUSION, vacating receivership for, 254. COMMON CARRIER, arrest of, 8. attachment against, 147. COMMISSION MERCHANT, does not act in fiduciary capacity, 19. COMPENSATION of receiver, 266, 267. COMPLAINT for fraud in contracting, 15, 16. when should state facts, 31. see also Injunction. CONCEALMENT to permit arrest, intent necessary, 17. by woman, 36. affidavit of, 30. attachment, 158. CONDITION, may be required on vacating arrest, 49. CONFUSION of goods, will justify levy, 176. burden upon attaching officer to show, 176. duty of owner to Identify, 176. CONGRESSMEN privileged from arrest, 40. CONSIGNED GOODS, attachment of, 179. CONSTRUCTION OF STATUTE, arrest, 1. injunction, 83. CONTEMPT, interference with receiver is, 236. suit against receiver without leave, 344. CONTRACT, arrest for fraud in contracting, 13, 14. INDEX. 305 CONTRACT, injunction to restrain unauthorized municipal, 99. principles relating to, 100. as to trade, 100. actors, 101, negotiable paper, 101. deeds, 101. attachment, see Breach of Contkact. CONVERSION, arrest for, 9, 10. attachment for, 141. wrongful, 147. COPIES of afiBdavit on arrest to be delivered, 37. failure does not avoid arrest, 38. on injunction, 118. COPYRIGHTS, exclusive jurisdiction of Federal courts, 101. CORPORATIONS, arrest by assignee of, 3. for libel, 7. injunctions against dissolution, 94. railroad, 95, 96. stage, 96. religious, 97. foreign, 97. attachment against for fraudulent disposition of prop erty, 147. of interest in, 183. receiver of, 255, 256, 257, 258, 259, 260, 261. vvliea appointed, 255, 356. efEect of, 255. powers and duties, 258, 263, 264. insurance, 257, 258, 259, 363. railroad, 259. national banls; act, 260. savings bank, 260. manufacturing corporation, 201, 262. foreign corporation cannot be sued, 261. COSTS, receiver's liability to, 246. COUNTER-CLAIM, statement of in affidavit on attachment, 154. COUNTY J UDGE, includes judges of common pleas, 28. COURT only, can grant ne exeat, 23. see titles of various remedies. COVENANTS relating to the really, enforced, 92, 93. CREDITOR, may be receiver of debtor's property, 341. CREDITOR'S SUIT, appointment of receiver in, 350, 255. CRIM. CON., arrest for, 7. DAMAGES, injunction on undertaking, 134, 131. how ascertained, 128. by third person, 133. DEATH of principal exonerates bail, 79. 306 INDEX. DEBTOR, joint, arrest of, 3. DEDICATION. , DEEDS, injunction restraining transfer, lOl. DEFENSES in action against bail, 77. to undertaking on attachment, 174. of vessel, 204. DELIVERY of property to plaintiff, 40. DEMAND, receiver sliould malie immediate, 241. DEPOSIT on arrest, 53, et seg. di-scharge from arrest on, 53. election to give bail or make deposit, 55. instead of bail, 62. when applied to judgment, 63. payment into court, 63. substitution of bail for, 64. disposition of, 64. ■wlien paid to third person, 65. injunction, 132. undertaking in place of, 125. attachment deposit, 180. of property in litigation, 273, 274. DEPOSITION, foreign may be used, 138. DIRECTOR of corporation, arrest of, 11. injunction against, 95. may be receiver, 240. DISCHARGE from arrest, non compotes, 27. infant, 27. person sued as representative, 27. for delay in entering judgment, 51. may be vacated for mistake, and rearrest made, 52. upon bail or deposit, 53, 67. of sherifE from liability as bail, 66, 67. vessel attached, 203, 204, 206. receiver, 272. DISCRETION, arrest as matter of, 2. 23. imposing conditional; not reviewable, 49. injunction, rests in, 83. governed by the facts of each case, 84. of municipal officers, when not interfered with, 99, 100. sherifE, as to payment into court, 209. appointment of receiver is matter of, 238, 251. DISCONTINUANCE of action by sUeriil in aid of attachment, 200. DISPOSAL OF PROPERTY, fraudulent, arrest for, 18. attachment for, 147. DISOBEDIENCE. DISTRAINT by receiver, 344. DISSOLVING order of arrest, 44, 45. injunction, 184, 135. INDEX. 307 DISSOLVING order of attachment, 313. DIVOECE, arrest in, 8. DOMICIL, distinction between and residence, 161. circumstances that determine,' 158, 159. DOWER, security on injunction, 134. receiver in action for, 351. DWELLING, what constitutes, 39. officer cannot breali, 39. EASEMENTS, injunction to prevent infringement of, 93. EJECTMENT, undertaking on injunction, 134. ELECTORS privileged from arrest, 41. ELECTRIC LIGHT, restraint of erection of poles, 106. EMBEZZLEMENT, arrest for, 17, 18, 19. EXAMINATION of bail, how made, 58. person refusing certificate of attachment, 193. EXCEPTION, see Justification of Bail, 56. SUBETIES, 332. ' EXECUTION from U. 9. court, 13. delay to issue dischargee arrest, 51. what necessary to charge bail, 75. sheriff's duty on, 77. to issue to officer making attachment, 239. EXECUTORS exempt from arrest,, 37. service of notice upon does not attach judgment, 190. EXEMPTION from arrest, see Pkivilegb. of goods from attachment, 176. EXONERATION of bail, 73. on voluntary surrender, 73. by death, &c., 79. FACTOR, acts In fiduciary ^capacity, 21. FALSE IMPRISONMENT, included in "personal injury," 7. condition may be required on vacating order, 49. FALSE REPRESENTATIONS, arrest for, 14. affidavit of, 30, 31. attachment for, 160. against partner, 160. FEMALES liable to arrest for willful injury only, 36. married, may cause arrest for enticing husband, 7. FEES of counsel allowed as damages on injunction, 133, 133. attachment, 171. FERRY, injunction against city from fixing rates, denied, 99, FICTITIOUS NAME, order of arrest may issue in, 37. FIDUCIARY CAPACITY, conversion of property held in, 19. commission merchant, 19. broker, 30. 308 INDEX. FIDUCIARY CAPACITY, agent, 20. factor, 21. guardian, 31. FILING- of papers on arrest, 58. . if bail is not given, 70. on attachment, 168. PINAL ACCOUNTING. FINAL JUDGMENT, definition of, 24, 44. motion to vacate arrest made before, 44. appointment of receiver before, 235. after, 235. FIRM NAME, injunction to restrain use of, 107. FORECLOSURE, no attachment in, 145. appointment of receiver in, 254. FOREIGN CORPORATION, injunction against, 97, 98. attachment against by non-resident, 144. when issued, 156. of unpaid subscription in, 182. FOREIGN JUDG-MENT, arrest upon, 4, 35. how action brought on, 35. FOREIGN VESSEL, see Vessel. FORMS, arrest under § 549, 377. / § 55,0, 1. 2 and 3, 278. 4, 279. undertaking, 280. order, 281. bail, 383. motion to vacate, 283. Injunction, affidavit, 283. order, 384. on order to show cause, 284- vndertaking, general form, 285. " stay before trial, 386. after trial, 287. judgment, 387 dower, 288. affidavit to vacate, 288. order to vacate, 289. Attachment, affidavit, 290. undertaking, 291. warrant, 393. notice by sheriff, 293. inventory, 294. FRAUD, arrest for, 6, 11, 12. of agent, 13. INDEX. 309 FRAUD, arrest of agent, in contracting liability, 6, 13. complaint for, IS. FRAUDULENT conversion by woman, 26. assignment, attachment for, 160. FUND, receiver's title to, 236. GUARDIAN, acts in fldiiciary capacity, 21. HIGHWAY, see Stkebts. HUSBAND AND WIFE, see MABEnsD Wokas. INFANT, discharge from arrest, 27. liability to attachment, 147. INFORMATION AND BELIEF, affidavit for arrest, 31, 32. injunction, 114. attachment, 153. INJUNCTION, writ abolished, 82. nature of remedy, 83, 83, 84. a statutory remedy, 83. preventive, 83. discretionary, 83. refused, in case of doubt, 84. > unless delay will prejudice applicant's rights,84. when there is a remedy at law, 85. for laches, 86. not retroactive, 86. person liable to, 86. agents, 86, 87, chamberlain of city, 87. when it depends on nature of action, 87. for continuing injury, 87. actions at law before judgment, 88. after judgment, 89. assessment and taxes, 90. , real covenants, 92. corporations, 94, 95, 96, 97, 98, 99, 100. railroad, 65, 96. stage, 96. religious, 97. foreign, 97. ferry, 99. municipal, 98, 99, 100. to protect copyright and patents, 101. trademark, 102. manuscripts, 103. nuisance, 104. partners, 106. trespass, 107. Illegal arrest, 108. 310 INDEX. mJTINCTION, to protect waste, 198. upon extrinsic facts, 110. mortgage. 111. disposal of property, 111 intent necessary, 118. against State officers, 113. by whom order granted, 113, 113. proof necessary, 114, 115. when granted, 116. how granted, 116. requisites of order, 117, 118, 119. security on, 119, 180, 131, 133, 134, 133, 136, 137, 128. cancellation of bond, 133. damages, 184, 188, 139, 130, 133. vacation of, 134, 135. upon notice, 135. by whom, 136. when, 137. on what papers, 138. when granted, 138, new application, 139. security, 139. ESTJURY, personal, 7. to property, 8. injunction for continuing, 87. INNKEEPER, arrest of, for negligence, 9. INSTRUCTION TO RECEIVER may be given in difficult cases, 337. ' disposition of funds divested, 837. order to, to pay money, 337. INSOLVENCY, arrest for false representations in regard to, 15, 16. INTENT, must be shown to permit arrest, 17, 18. INVENTORY upon levy, 196. levy not invalidated by neglect to file, 197. amendment of, 197. return of, 313. JOINDER OF CA.irSES, no arrest for improper, 4, 7. no attachment for, 143. JOINT OWNERS, sale of vessel on application, 307. JUDGE cannot grant ne exeat, 33, 84. except in 1st Dist., 34. order of arrest by, 88. disqualified by relationship, 113. JTTDGMBNT, (see Final Judgment.) delay to enter discharges arrest, 51. security on injunction to stay, 180. how attached, 190. creditor, may move to vacate attachment, 814. INDEX. 311 JUDGMENT against non-resident, 229. satisfaction of, 230. JUNIOR CREDITOR may move to vacate attachment, 314. ■JURISDICTION, vrant of vacates arrest, 47. wlien it attaclies, 1G3. JUSTIFICATION of bail, 56, 53, 61. lime may be extended, 59. liable to sheriff, without, 69. sureties on vacation of attachment, 223. "KNOWN TO HIM " on affidavit for attachment, 154 LACHES, injunction denied for, 86. LAND, see Realty. LARCENY, arrest of woman for, 26. LEGAL PROCEEDINGS, injunction in restraint of, 88, 89. LETTERS, injunction to restrain publication, 104. LEVY of vfarrant, 174, 175, 176, 177, 236. property liable to, 178, 179, ei seq. method of, 187, 188, 189, 190. inventory on, 196. LIABILITIES of receiver, 245, et &eq. LIBEL, arrest for, 7. LIGHT AND AIR, injunction to prevent infringements, 94. LITTORAL, injunction to protect rights, 105. MALICIOUS PROSECUTION, arrest for, 8. MANUSCRIPTS, injunction to restrain publication, 103. applies to private letters, 104 to plays, &c., 104. MARRIAGE, see Breach op Contract. MARRIED "WOMAN, arrest by, for enticing husband, 7. attachment against, 161. MECHANIC'S LIEN, receiver in, 255. MEMBERS of congress exempt from arrest, 41. MILLS, diverting water of, 99, 105. MINES, injunction against removal of ores, 198. to prevent working by person not owner, 109. MINOR, see Infant. MISAPPROPRIATION of trust funds, arrest for, 18. MONEY, attachment of, 180. due public officer, 183. MORTGAGE, injunction relative to, 109. when granted, 111, 118. attachment not issuable in foreclosure, 145. receivership in foreclosure, 247. when security is inadequate only, 251. MORTGAGEE should not be appointed receiver, 240, 241. 812 INDEX. MORTGAGEE may have injunction against waste, 109. as "receiver, removal of, 253. MORTGAGOR, interest of, m cliattel attachable, 181. MOTION to vacate arrest, when made, 44. how made, 40? to whom, 46. waiver of, 30, 43. removal of, 45. on the papers, 47. new papers, 47. MUNICIPAL CORPORATION, injunction against, 98. binds agents and offi- cers, 87. at suit of tax-payer,98. public street, 98. unauthorized contract, 99. ordinance, 99. , NATURE of receivership, 236. NAVIGABLE STREAM, injunction to prevent interference with, 105. NB EXEAT, abolished, 1. existed under Co. Proc, 5. when permitted, 32, 33. NEGLIGENCE, arrest for, 9. NEGOTIABLE INSTRUMENTS, transfer may be restrained, 101. NEGATIVE CONTRACTS may be restrained, 101. NON-RESIDENT, attachment in favor of, 144. against, 157, 158. judgment against, 229. NOTES, see Negotiable Papek. attachment of, 187, 188. NOTICE, when required, on motion for injunction, 116. not required to vacate, 134. necessary, 135. of appearance, waives summons, 166. attachment, requisites of, 191. application to discharge warrant, 235. cancellation of notice of attachment, 333. NUISANCE, injunction to prevent unlawful abatement, 99. abate private, 104, 105. public, 105, 106. relative to water rights, 105. navigable stream, 105. logs, 105. electric poles, 106. sign boards, 106. bawdy liouse, 106. INDEX. 313 NTJISANCE, injunction, steam whistle, 108. NUNC PRO TUNC ORDER, not allowaljle to file papers on attachment, 217. OFFICERS, what, may arrest, 38. of courts of record, privileged from arrest, 43. of corporation, injunction against, 95. State officer, injunction against, 113. ORDER of arrest, not granted in doubtful case, 3. how granted, 23. ^ after judgment by default,, 34. by whom granted, 34, 38. proof necessary for, 39. when granted, 33. security upon, 84, 36. requisites of undertaking, 35, 36. contents and execution, 36, 37. Service of, 37. vacation of, when made, 44. how made, 47. on injunction, 113. by whom granted, 113. second application, 113. proof necessary, 114. when granted, 115. notice necessary, 116. requisites of, 117. vacation of, 134, et seq. PARTNER, arrest of, 3, 3. injunction by one, 106. use of firm name, 107. breach of agreement, 107. attachment by one, 144, 145, 146. against one, 160. dissolution of by one, 324. undertaking, 334. receiver, upon application of, 348. may carry on business, 248. PARTNERSHIP, see Partneks. attachment of property of, 180. method of, 189. receivership on dissolution, 347. when appointed, 248. as miiltpr of course on dissolution, 348. PARTIES TO SUIT to enforce attachment, 213. PATENTS, jurisdiction of U. S. court, exclusive, 101. PAYMENT, receipt of on account, wsiives arrest, 33. 814 INDEX. PAYMENT of deposit into court, 63. discretion of sheriff, 2Q9. receiver's, by order of court, 245. PECULATION, attachment against public officer, 161. PENALTY, arrest in action for, 6, 7. PERISHABLE PROPERTY, sale of, 200, 201. PERPETUAL INJUNCTION, principles of, unchanged by Code, 83. PERSONAL PROPERTY, injury to, arrest for, 8, 9, 10. attachment for, 147. what is liable to attachment, 178. method of attachment, 187, 188. what liable to attachment, 189, 190, 191. PEW, owner of, injunction in favor of, 97. POLICE privileged from arrest, 41. PRESCRIPTION, see Water-Couhses. Navigable Streams. Riparian Owners. PRINCIPAL, when liable to arrest for agent's act, 12. attachment of property in hands of agent, 191. PRIVILEGE from arrest, who entitled to, 39. members of congress, 40. legislature, 40. court attendants, &o. , 40, 43. electors, 41. policemen, 41. witnesses, 41. time of, 41. application for discharge, how made, 48. PROFESSIONAL MISCONDUCT, arrest for, 6. PROFIT, receiver cannot make from fund, 245. PROPERTY, injury to, 9, 10, 11. removal of, enjoined, 110. what, liable to levy, 178. assigned, 178. consigned, 179. bonds, 179. bill of lading, 179. deposit, 180. money, 180. due public officer, 183. partnership, 180. mortgagor's intent, 181. real, 182. unpaid subscription, 182. interest in corporation, 183. chose in action, 184, method of attachment, 187. real, 188. INDEX. 316 PROPERTY, method of attachment, capable of manual delivery, 188. other personal property, 189. to be kept by sheriff, 208. when restored to defendant, 232. delivery, to defendant, 232. property defined, in receivership, 235. over what, receiver may be appointed, 247. personalty, 247. equitable assets, 247. chattel mortgage, 247. partnership, 247, 248, 249. real, 250. claim to, by third person, 253. PUBLIC OFFICE, receiver cannot be appointed of fees, 255. PUBLIC OFFICER, arrest of, 6. injunction against, 112. attachment against, 161. PUBLICATION of manuscript restrained, 103. private letters, 104. plays, &c., 104. notice, after attachment, 167. PURPRESTURB, see Streams. Water-Couksks. Navigable Rivkb. QUALIFICATION of bail, 59, 60. receiver, 289, 240. RAILROAD, arrest for conversion of shares, 10. see COBPOEATION. REALTY, arrest for injury 1o, 10, 11. attachment of, 182, 186. receivership of, 250. when receiver of corporation may hold, 273. RECEIPTS, receiver should produce on accounting, 245. RECEIVER, foreign receiver, liability to attachment, 145. may move to vacate attachment, 214. ■when appointed, 285. before final judgment, 235. after final judgment, 235. nature of the office, 236. is "the hand of the court," 236. interference with, contempt, 236. may apply to court for instructions, 237. appointment of, 237. applicant for must show intent, 238, 250. discretionary, 238. eligibility to, 239. disinterested person, 239. 316 INDES. RECEIVER, eligibility to legal adviser, 239. rc4ative, 240. director of corporation, 240. trustee, 340. mortgagee, 240. creditor, 241. clerk and assistants in New Tork, 241. ^ in several suits, 341. powers and duties, 241. custodian of funds, 341. to make immediate demand, 341. actions by, 241. ■' may compel interpleader, 344. action against, only by leave of court, 344. distraint for rent by, 244. eviction of tenant, 344. may compromise claims, 244. suit for unpaid subscriptions, 260. to set aside mortgage, 261. of foreign, cannot be sued, 361. may continue action, 363. of moneyed corporations, 363. to the payment of what debts liable, 263. supplementaiy proceedings, 364, 365. appointment of, 354. notice of, 264. third person cannot question regularity, 265. property that vests in, 365. when, 365. action to set aside conveyance, 365. accounting, 366, 367. application for appointment of before judgment, 268. applicant must show intent, 268. personal notice, 269, 370. vacation of order, 271. discharge of, 272. order of appointment not appealable, 273. make payments by order of court, 345. collect debts, 245. liabilities, 245. for mingling funds, 245. loss without fault, 245. can make no profit from funds, 245. for costs of unauthorized action, 246. loss from negligence, 246. employment of counsel by, 346. over what property appointed, 247. , INDEX 317 RECEIVER over personal property, 247. chattel mortgage, 247. partnership, 247, 248, 249. may carry on business. 249. rents and profits, 250, 351, 253. property in another State, 250. judgment creditor's action, 250. not in action to stay waste, 251. dower, 251. mortgage foreclosure, 251, 252, 254. discretionary, 252. claim by third person against property, 253. not, over fees of public office, 255. when in creditor's suit, 255. mechanic's lien, 255. of corporation, nature of, 255, 258. how appointed, 256, 257, 261. duties, 257, 358, 263. rights, 258, 278. when title vests, 259, 271. may apply for instructions, 259. is an officer of the court, 259. proof of authority to sue, 260. RECOGNIZANCE of bail, action on, 54. REFERENCE to ascertain facts on motion for injunction, 116. / / on injunction undertaking, 131. on appointment of receiver, 239. REFUSAL to permit certificate on attachment, 193, 194. RELATIONSHIP does not disqualify for receiver, 240. RELIGIOUS CORPORATION, injunction against, 97. REMOVAL of property, attachment for, 158. RENTS and profits, receiver of, 235, 250. appointed by court, 251. rents collectible by receiver, 244, 252, 253 receiver of takes e o title of real estate, 253. REPLEVIN, section 550, subd. 1, has reference to, 17. arrest in action to recover chattel, 17. REPORT of referee on Injunction damages, 131. RESIDENCE, circumstances that determine, 158, 159. firm cannot have, 161. distinction between and domicile, 161. RETURN of inventory on attachment, 212. warra,nt, 234. RIPARIAN OWNER, injunction to protect rights of, 105. by, against floating logs, 105. RIVER, Injunction to prevent damming, 105. interference of mill, 105. 318 INDEX. SALE of perishable property, 200. vessel, 207. on plaintiff's application, 207. joint owners, 207. SATISFACTION of judgment, 230, 231. SCIRE FACIAS to revive action, stayed by injunction, 122. SECOND ARREST not allowed, 5. by sheriff who is bail, 68. warrant of attachment, 226. creditor may prevent release of vessel, 236. SECURITY on arrest, not conforming to statute, void, 56. not void for duress, 57. on injunction, 119, 120, 121. on attachment, 168, 169, 170, 171. by receiver, 272. SEDUCTION, arrest for, 7. SEIZURE of exempt goods, liability of officer for, 176. SERVICE of order of arrest, 37, 38. injunction, 117. of summons, within thirty days, 162. SERVITUDES, see Basembnts. SEQUESTRATION, see Corporation. SHERIFF may arrest, 37. liable as bail, for escape, 53, 54, 66. for refusing bail, 53, 54 may surrender debtor, 54. proceedings on judgment against, 68. right of, when liable as bail, 73, 74. what constitutes arrest, 39. when made, 38. injunction to stay sale by, 121. must execute warrant of attachment, 174. method of levy, 175, 176. when protected by his process, 176. notice of attachment by, 191, et aeq. to return inventory, 196. action maintained by, 198. property attached to be kept by, 208. sheriff cannot copy partnership books, 208. to return warrant, 234. ^ SHIP, see Vessel. SIGN, restraint of erection of, 106. SOLICITOR of petitioning creditor, appointed receiver, 239. STATE OFFICER, injunction against, 112. see Pdblic Officer. STIPULATION not to sue, on vacating order, 49. STOPPAGE IN TRANSITU. STOCK EXCHANGE, rights to a seat therein, 105. IWDEX. 319 STOCKHOLDER, injunction at suit of, 97. STREAM, see Watek-cotjksbs. Navigable Stream. STREET, unauthorized use may be enjoined, 98. injunction against commission, 99. to prevent obstruction, 99. SUBSCRIPTION, attachment of unpaid, 182. SUIT. SUMMONS, must be served in thirty days after attachment, 168. failure invalidates attachment, 165. SUNDAY. SUPERIOR CITY COURTS, jurisdiction of, 164. SUPERSEDEAS of arrest for delay in entering judgment, 51. SUPPLEMENTARY PROCEEDINGS, see Rbceiteks. when receiver appointed, 364. on what notice, 364. property that vests, in, 265. SURETIES on bail bond, 55, 66. justification, 56. liabilities and rights, 56, 57. appeal by, from damages on bond, 133. on attachment, liabilities of, 171, 221. for counsel fees, 171. no demand necessary, 171. SURPLUS PROPERTY, surrender of, 210. SURRENDER of defendant by bail, 70, 71. how made, 73. voluntary, 78. exonerates principal, 79. TAXES not restrained for mere illegality, 90. when enjoined, 90, 91. complaint demanding injunction, parties, 93. TEMPORARY INJUNCTION, see Injukctioh-. TENANT in common, when injunction refused against, 110. evicted by receiver, 244. termination of term by receiver, 244. TIMBER, injunction to prevent waste, 110. TITLE, trial of, in attachment, 201. TRADE, contracts in restraint of, 109. TRADE-MARK protected by injunction, 103. fraudulent intent necessary to obtain, 103. what device is necessary, to restrain, 103. , when court will not interfere, 103. TRESPASS, injunction to restrain, 107, 108. personal, 108. illegal arrest, 108. 320 INBEX. TKESPAS8, injunction to restrain removal of ores, 108. liability of sheriff for, 175, 176. TRIAL of validity o£ claims, 301. TRUST PROPERTY, arrest for conversion of, 18. TRUSTEE, when exempt from arrest, 37. should not be appointed receiver, 346. UNDERTAKING on arrest, plaintiff need not execute, 35. foreign minister may give for g07ernment;35. acUnowledgmeut, 85. informality may be cured, 35. judge's indorsement, 36. of ba,il, contents, 55. must confoim to statute, 56, 57. a,ctionon, 75. assignable, 76. transitory, 76. on injunction, 130, et seq. stays trial, 130. after judgment, 130. judgment, 131. in place of deposit, 133. cancellation of, 133. in ejectment, 134. form and requisites, 136, 127, 138. action on, 133. new undertaking, 139. on attachment, 168, et seq. form of, 168. amendments to, 169. construction of, 170. rights of sureties, 171. . additional, 173. validity of, 174. goods on shipboard, 195. of vessel, domestic, 303. action on, 304. ^ - foreign, 205. on discharge of, 330. requisites of, 331. liabilities upon justification, 233. by partner, 324. VACATION of order of arrest, for insufficient complaint. 33. not waived by bait, 33, 45. application for, when, 44, 45. how, 47. upon condition, 49. INDEX. 321 VACATION of injunction, without notice, 134, 135. upon notice, 135. ■who may move, 136. when, 137. upon what, 137. when granted, 138. of attachment, 213. by whom made, 214. when made, 216. how made, 216. on the papers, 217. proof, 218. VALUATION of vessel, domestic, 202. foreign, 204. VARIOUS WARRANTS, suit by creditor in one does not bar othera, 199. VESSELS, goods attached on, 195. indemnity for, 195, 196. attachment of domestic, 202. proceedings to release, 202, 203. of foreign, 204, 227. proceedings to release, 204, 205, 223. claim to, 206. sale of, 207. VOID PROCESS, liability for attachment under, 177. WAGES, exemption of from atlachibent, 186. WAIVER of riglit to arrest, 10, 30. by proof of debt, 16. suing on contract, 30. purtiiU payment, 30. of motion to vacate, bail is not, 80. privilege from arrest, 43. motion to dissolve injunction not waiver of irregularity, 138. defendant may waive service of summons, 165. appearance waives irregularity in suit, 244. giving undertaking to discharge attachment does not waive right to vacate, 215. WARRANT of attachment, 161, et seq. against public officer, 161. by whom granted, 162. security on, 168. contents of, 172, 173. how executed, 177, et seq. property liable to, 178, et teq. real property liable to, 182. return of, 234. WASTE, injunction to restrain, 109. who entitled to, 109. 21 322 INDEX, WASTE, injunction of damages in, 134 receiver in action for, 251. WATER, injunction against interference with, 09, 105. WATERCOURSE, injunction against damming, 106. for interference with mUl, 105. floating of logs, 105. , WIFE may arrest husband for assault, 8. lor enticing husband, 7. WILLFUL INJURY, arrest of woman for, 26, WITNESS privileged from arrest, 41, 43. foreign, entitled to privilege, 43. WOMAN, arrest of, only for willful injury, 26, WRONGFUL conversion^ arrest for, 18, 19.