QJnntpU ICam ^riynnl ICibraty KPNeOeelea '" ""'"^™"V Library Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022885481 WM.8.BENNET. COUNSELOR AT LAW, „ N*SS^U STREET, NEW V«nK. PRACXICK ATTACHMENT OF PROPERTY FOB THE STATE OF NEW YORK WITH COMPLETE FORMS. GEORGE W. BRADNER Author of *' Rules of Pleading^'' etc. ALBANY, N. Y. MATTHEW BENDER, LAW PUBLISHER, 511-513 Bkoadwat. 1895. 6'i^//6' Entered according to act of Congress, in the year eighteen hundred and ninety-four, Bv GEO. W. BRADNER, In the office of the I^ibrarian of Congress at Washington. PKESS OF WILLIAM BOYD, AI.BANT. N.Y. PREFACE. The object of this work is to present in^'a concise volume the rules and practice governing the various steps in attachment of property under the New York Code of Civil Procedure, so far as settled by the legis- lature and the decisions of the courts. In attempting to give an outline of the practice, we start with the fundamental principle that statutory proceedings must be strictly pursued, and that any particular variance from the letter of the statute is fatal. In these proceedings the latest decision of the court of last resort is regarded as the higliest evidence of the law, and earlier decisions are valued chiefly as they throw light upon the intent and effect of the latter. The decisions of the courts during the years 1889-1894 inclusive have worked great innovations in the practice in relation to attachments. The legislature has interfered for the putting an end to some disputed questions and granting new grounds for attachment. Thus in 1894 sections 376, 382, 636, 637, and 3017, of the Code of Civil Procedure were amended in respect to grounds of attachment and judgments of courts of inferior jurisdiction where a transcript is filed with the clerk of a court of record. The fundamental requisites of such a work is the separate and clear statement of each precise point, and the consistent classification of such points where they can be easily found. That every point in practice and attachment of property shall be fully, clearly, and accurately stated, that it may be sureli' and quickly found by anyone who seeks it in this volume, no matter how unskillful in searching, is the aim of the work. Radical differences exist between this work and its predecessors. IV PREFACE. Mere number of citations of cases is not the only nor the chief test of value in a law book, and the author has in this work carefully ruled out those that are clearly obsolete. There is much of the old practice which has become obsolete, and it is, consequently, omitted. No attempt has been made to state the old practice. In order to add to the utility of this work, we have used the familiar, but always serviceable device, of placing a table of contents at the head of each chapter, subdividing the context and giving the text at the head of each subdivision. I believe that I have neglected, among modern authorities, no source of information. Thanks to the thorough scrutiny by the courts of which the questions of practice in attachment of property have been sub- jected for the ten years last past, a problem that would formerly have been deemed impossible has reached a solution which leaves room for much uncertainty, but which is amply sufficient for the demands of the prac- titioner. All we propose to do is to collate the work of the legislature, and that of the courts and judges, and put it into a concise form for the use of the profession. December 1, 1894. Geo. W. Beadneb. TABLE OF CONTENTS. CHAPTER I. IN WHAT ACTIONS BEMEDT ALLOWED. PAGE I. — Attachment — nature of remedy 1 1. In general 1 2. In favor of, and against whom allowed 3 II.— In what actions 4 8. In general 4 4. Public offlcers, &c., for pecu- lation 5 5. Injury to personal property.. 7 III. — Causes of action that do not allow of attachment 8 6. Injury to person by negli- gence 8 7. Miscellaneous 8 8. National banks 9 rV. — Foreign corporation, or FAOB non-resident against a foreign corporation 10 9. In general 10 10. Affidavit 11 11. Unpaid subscription to for- eign corporation 12 V. — Procedure 12 12. Maturity of debt 12 13. Summons — issue of and commencement of action. 13 14. Debt not due — fraud in con- tracting it 13 15. Installment of debt of cred- itor not due — effect of 15 16. Action on a justice's judg- ment where transcript is filed within six years IS CHAPTER II. PROOF NECESSARY TO OBTAIN ATTACHMENT. I. — Affidavit for attachment . . 17 1. In general 17 2. What must be shown by 19 8. Office of 20 4. By whom to be made 21 5. Positive statements in, not necessary — when 21 II. — Agents — affidavits by 22 6. In general 22 7. Attorney of record — pre- sumption as to knowledge ... 26 III. — Reason why affidavit not made by plaintiff IV. — Complaint as affidavit. . . 27 v. — Affidavits in other cases may be used — when 27 VI. — Facts, how stated in 28 VII. — Personal knowledege — what is 30 VIII. — Jurisdictional facts 80 IX. — Prima facie case neces- sary 32 X.— Illustrations 33 VI TABLE OF CONTENTS. CHAPTER III. PROOF NECESSARY TO OBTAIN ATTACHMENT. FAQB I. — Statement of cause of action in affidavit 35 1. In general 35 2. Illustrations of 38 II. Counter-claim 40 8. Affidavit as to 40 III. — Conclusions — statement of 44 IV. — Satisfaction of judge — meaning of 45 PAGE v.— Information and belief ... 47 4. — Statements upon, vphen suf- ficient, and when not 47 5. Sources of information 51 5i. Telephone communications. 53 6. Belief — statement of, neces- sary when 54 7. Reason for not producing af- fidavit of informant 54 8. Filing of affidavits 56 CHAPTER IV. AGAINST WHOM REMEDY ALLOWED. I. — What must be shown under Code, subd. 2 of § 636 57 1. Assigned and disposed of property with intent to de- fraud creditors 57 2. What is not such disposition 59 3. Illustrations 63 4. Fraudulent transfer of prop- erty in another State 66 5. About to dispose of property with intent to defraud credi- tors 66 6. Concealment to avoid the service of summons 69 7. Absconding or concealed debtor 71 8. Non-residence 71 9. Written statement as to financial standing 74 10. Voluntary conveyance, &c. not sufficient, when 75 CHAPTER V. UNDERTAKING AND WARRANT. I.— Undertaking 77 1. Necessary to give judge jur- isdiction 77 3. Acknowledgment 78 8. Sureties 78 4. Form, aflidavit, justification, approval 79 5. Filing and service of 80 6. Householder — meaning of.. 80 7. Liability of sureties 80 IL— Warrant 82 8. Form and contents, jurisdic- tional 83 8i. Amendment of 87 9. To whom directed 88 10. Judge empowered to grant. 88 TABLE OF CONTENTS. Vll CHAPTER v.— (Continued). PAGE 11. At what time may Issue ... 89 III. — Summons must be served, when 89 IV. — Second attachment by same creditor 91 v.— Two or more warrants against the same defendant . 91 13. Preferences as to warrants. 91 13. Amount of levy 94 VI. — Personal property 94 FAGE 14. In general 91 VII. — How tangible personal property must be attached . . 95 15. In general 95 16. Money 95 17. Glioses in action, bonds, notes, &c 96 VIII.— Inventory 96 IX.— Legal title in debtor 96 X. — Property in Sheriff's hands 98 CHAPTEE VI. PROCEEDINGS UNDER WARRANT. I. — Goods on board vessel — how attached 99 1. Undertaking by plaintiff, to owner, &c., of vessel 99 II.— Real estate — levy on 101 2. Notice — Sheriff's duty as to 101 3. Contents of notice 101 III. — Service of attachment . . 103 4. How made 102 IV.— Exemptions of real prop- erty from levy and sale by. . 102 5. Land held by contract 103 6. Burying ground, exempt when 105 7. Homestead 106 8. Homestead of married wo- men 107 9. When exemption continues after owner's death 107 10. "When value of homestead exceeds $1,000 108 11. Omission of sheriff to file notice 110 V. — Inventory 110 VI. — Actual custody of Sheriff, meaning of Ill VII.— Priority of lien be- tween attachment and exe- cution creditors 113 12. Glioses in action and evi- dences of debt 113 VIII. — Delivering of copy of attachment papers, to per- son in possession of property 112 IX. — K^r-eping of property by Sheriff 113 13. In general 113 11. Paying money into court and restoring property 114 X. — Property in hands of re- ceiver may be taken, when.. 114 XI. — Perishable goods, and animals to be sold 114 15. In general 114 16. Perishable goods — what are 115 17. Illustrations 116 18. Indemnifying sheriff 116 XII. — Partnership property. . . 117 19. In general 116 20. Exempt when 118 31. Attachment of interest of one partner for firm debt — Effect of insolvency of firm.. 119 XIV. Money deposited with clerk of the court 130 vm TAHLE OF CONTENTS. CHAPTER VII. PU00EEDING8 UNDER WARRANT — (Continued). PAGE I. — Intangible property — how attached 121 1. Notice — in general 131 3. Form of, notice 121 8. Personal service of necessary 123 4. Pledged property, levy up- on, how made 124 6. Notice of claim attached. . . 126 II. — Presence of person or thing within the territory necessary 126 6. In general 126 7. Shares of a non-resident de- fendant in the stock of a foreign corporation 128 III. — Certificate of defendant's interest 130 8. When must be furnished. . . 130 9. Form of certificate 131 10. Refusal to make — examin- ation of party 131 PAGE 11. Order to deliver property.. 131 13. Examination of person giving certificate 132 IV. — What property is not at- tachable 133 13. In general 132 14. Limited partnership — property of special partner . 133 15. Assigned property when summons is personally ser- ved 134 V. — General assignment for benefit of ci'editors 136 16. In general 136 17. Fraud in assignment 137 18. Partnership property for debt of one partner 138 19. Trust property 138 20. Money deposited in name of another 138 CHAPTER VIII. EXEMPT PERSONAL PROPERTY. I. — Exempt personal prop- erty 140 1. In general 140 II. — Two classes of exemp- tions under Code, U 1390, 1391 142 2. Rights of debtor under 142 3. Householder —definition of 143 4. Having a family for which he provides 144 5. Proceeds of exempt prop- erty — exempt when 144 III. — Meaning of word " ne- cessary " in section 1391 of the Code 145. IV. — Judgment for purchase money of exempt property. 145 6. In general 145 7. For work performed in the family as a domestic 146 8. Partnership property 146 9. Contract not to claim ex- empiion — eflfect of. 146 10. Prospective agreement 147 TABLE OF CONTENTS. IX CHAPTER VIII.— (Continued). PAGE 11. Waiver of exemption 149 12. Alimony — exempt when.. 149 V. — Exemptions must be claimed when 151 13. Team 151 VI. — Identity of exemptprop- erty, necessary when 154 VII — Exemption of life in- surance money 154 VIII. — Exemptions, how af- PAGE fected by fraud 155 IX — Military pay, rewards, pensions, &c 155 14. In general 155 15. Property purchased with pension money 155 16. Pension money, after death of pensioner 157 X. — Illustrations — exempt property 158 CHAPTER IX. PKOCEEDINGS AFTER LEVY OF ATTACHMENT. I. — Liiens — priorities 160 1. In general 160 2. Vacating and restoring at- tachment — effect on prior- ity of lieu 162 3. Jurisdiction, when acquir- ed and how lost 163 4. When attachment ceases to be a lien 163 5. Joint debtors — service of summons on one good 165 II. — Domestic vessel — pro- ceedings on claim to 167 6. Appraisers — affidavit of, value by 167 7. Undertaking by claimant for discharge of vessel 167 8. Suit on undertaking 168 III.— Suit by plaintiff in name of himself and sheriff. 168 9. Leave to bring, how ob- tained 168 IV — Action by juniorplaint- iff jointly with sheriff. 170 10. In general 170 11. Blights of junior plaintiff in action by senior plaint- iff and sheriff 170 V. — Sheriff — power of in at- tachment I'i'l 12. All proceedings must be taken in name of 171 13. To collect 171 14. Where service of sum- mons is made by publica- tion and defendant does not appear 172 15. Trial of claim of title to chattels 173 16. Boudof indemnity— when title found in claimant 174 17. Claimant not prejudiced by finding of jury 174 VI.— Vessel to be sold when. 174 VII. — Foreign vessel 175 18. Proceedings on attaching. 175 19. Undertaking of plaintiff.. 175 20. Terms upon which de- fendant may claim vessel.. 176 21. When to be sold 176 22. Undertakingby junior at- taching creditor to prevent release 176 23. Rule as to subsequent at- tachment of foreign vessels. 177 24. Bights of third and other subsequent attaching cred- itors 178 TABLE OF CONTENTS. CHAPTER X. PROCEEDINGS TO REMOVE THE LIEN OF AN ATTACHMENT. PAGE I. — Eemedies of defendant and junior lienors 179 1. In general 179 2. Motion by receiver 181 3. By subsequent attaching creditors 181 II.— Merits of action on mo- tion to vacate 186 III —Defendant's remedies. . 187 4. In general 187 5. By undertalsing a matter of right 187 6. Undertaliing by one of two or more defendants 187 7. Filing undertaliing and justification of sureties 188 8. Vessel 188 IV. — Partnersliip property — interest of one partner. . . 188 9. In general 188 PAGK 10. Partner interest consists of what 189 11. Vessel or partnership chattels attached and re- leased under §§ 692, 694 of Code— effect of. 190 v.— UndertakingunderCode, § 688. No waiver of right to move to vacate 191 VI. — Who may move 191 12. In general 191 13. Before whom motion on original papers to be made. 193 14. When warrant is granted by the court 193 15. Laches of moving party. . 193 16. Grounds for vacating 193 17. Rule 25 of the Supreme Court 194 18. Defendant must show pre- ponderance of proof. 194 - CHAPTER XI. VACATING ATTACHMENT. I. — Motion to vacate or modify. 196 1. In general 196 3. Two motions proper, when. 197 3. MotioQ when complaint does not set forth a cause of act- ion mentioned in §§ 635 or 637 of the Code 198 4. Notice of motion 198 5. Motion on plaintiff's original affidavits — other affidavits of plaintiflC not admissible . . 198 6. When attachment will be vacated 199 II. — Affidavits on motion to vacate 200 7. In general 200 8. Ohjections to reading addi- tional affidavit by plaintiff — must be talcen when 300 9. Waiver of objection to read- iiiS aflftiJavit by plaintiff 201 10. Waiver of defect in attach- ment papers 201 11. Who bound by decision on motion 202 TABLE OF CONTENTS CHAPTER XI.— (Continued). XI PAGE 12. Questions on motion to va- cate 203 13. Defect in moving papers — how treated 203 III — Junior or subsequent at- tachingcreditorsand lienors. 203 14. Motion by to vacate prior attachment 203 15. Defenses to prior attach- ment 205 16. Practice on motion 206 17. Remedy of junior lienor. . . 206 PAGE 18. Grounds of motion 207 IV. — What cannot be shown by plaiutifiF, as amendment of his original affidavits 207 19. Amendment of plaintiff's original papers 209 V. — Appeals to Court of Ap- peals 210 20. By junior attaching credi- tor or lienor 210 31. Other cases 213 CHAPTER XII. JUDGMENT, EXECUTION, RESTORING PROPERTY, ETC. I. — Judgment in action, how satisfied 213 1. Sheriff entitled to execu- tion 213 2. Return as to property taken 215 11. — When judgment must be enforced against attached property 216 3. In general 216 4. Absconding or concealed debtor 2] 6 6. Difference between a non- resident and au absconding debtor 217 6. Purchaser under execution 217 III. — Disposition of attached property by sheriff. 218 7. Satisfactiori of judgment . . 218 8. Priority of execution and attachments against non- resident 218 9. Sale of attached personal property 221 10. Sale of personal property not attached, and real es- tate attached 222 11. Retaking personal prop- erty attached 223 12. Sale of debts, things in action, &c 233 IV. — Restoiiiig property to defendant 233 13. Ill general 223 14. Undertakings and other papers to be delivered to defendant 223 15. Defendant substituted for sheriff. &c 224 V. — Costs, charges and ex- penses legally chargeable to the defendant where at- tachment is vacated 224 VI. — Real property — cancel- ing notice, attaching 226 VII.— Return of sheriff 226 Xll TABLE OF CONTENTS. CHAPTER XIII. PROCEEDINGS IN NEW YOKK MAKINE COURT. PAGE I.— New York City Court. . . . 227 1. In general 227 2. Summons — contents and service of 228 3. Service of summons with- out tbe city or by publica- tion 228 4. Amendmeut of summons, when allowed 229 II.— Proof necessary to ob- tain warrant of attachment. 230 PAGE 5. In general 230 6. Having an office for the transaction of business in pei'sou 231 7. Adult proof of necessary. . . 331 8. Domestic corporation resi- dents 233 9. Undertaking necessary. . . . 232 10 Time for service of plead- ings limited 233 CHAPTER XIV. justices' and INFERIOR COURTS — ATTACHMENT IN. I.— District courts in New York city and Justices' Courts of the cities of Al- bany and Troy 234 II.— Justices' Courts gener- ally 236 1. In what actions warrant of attachment may be granted 336 2. Counter-claim 236 III. — What must be shown to entitle a party to a warrant 237 3. In general 237 4. Facts— how stated 288 6. Prima/wcie proof sufficient 240 IV -Undertaking 241 6. In general 241 7. Acknowledgment and jus- titication of sureties 241 8. Damages — meaning of. . . . 242 v.— Warrant 242 9. Form and contents of 2J2 10 How executed 248 VI. — Exempt property may be attached wlien 243 VII. — Priority of lien be- tween those of difTereut courts 245 VIII.— Summons and war- rant-how and when must be served 245 IX. — Defendant may retake the property when 246 11. Undertaking to plaintiff.. 246 X.— Claim of property by third person 246 12. Bond and delivery there- upon 247 13. Action on bond 247 14. When defendant may prosecute bond 247 XI. — Return of warrant 2J8 15. In general 248 16 Joint debtors 348 17. Return must comply with statute to give jurisdiction. 248 XII. — Vacating or modifying warrant 250 18. Motion for 250 19. Effect of vacating warrant 2jO XIII.— Defendant not per- sonally served 251 20. Proceedings before justice. 251 TABLE OF CASES. PAGE Abernathy Furniture Co. v. Armstrong 63 Ackroyd v. Ackroyd 34 Adams V. Hilliard 49 Adams V. Speelman 113 Adler v. American Fraternity CircleofB 11 Allen V. Meyer 199 Am.Exohange Bk.v. Voisin 13, 89 Andrews v. Mundy 162 Andrews V. Schwartz 47 Anthony v. Wood 95, 1 12 Appleton V. Speer 199 Arming v. Monteverde 29 Armstrong v. Lynch 160 Arnot p. Wright 84 Atkins V. Saxton 117, 190 Atlantic &c. Tel. Co. v. Balti- more R. R. Co 83 Atlas Fur. Co. v. Freeman et al. 66 Austin V. McLaurin loo Avery V. Sanders 37 Backus V. Kimball 173 Baker V. Brintnall 345 Baker v. Kenworthy 98, 120 Baker Wire Co. v. Kingman.. 4') Bank of California v. Boyd ... 18 Bank of Montreal v. Fidelity Nat. Bk 9 Barnes V. Buck 4 Barnet V. Kinney 8 Baron v. Brummer 154 Barry V. Fisher 13S Bartlett v. Spicer 173 Bascom V. Smith 349 Bateman v. Ramsay 205 Bales V. Pimstein 34, 43 Beamer v. Freeman 161 Bates V. Plonsky 137 PAait Beebe v. Parker 231 Belden v. Wilcox 36, 43 Bell wilier V. Marko 25, 41 Bennett v. Brown 81. 243 Bennett v. Edwards 23, 53, 55 Betzeman v. Brooks 194 Bicknel V. Speir 63 Bills V. Nat. Park Bk 97, 111 Bills V. Park Bk Ill Bishop V. Johnson 155 Bitting V. Vandenburg 158 Biissv. Molter 78 Blosom V. Estes 164 Blumenthal v. Hudson River B. &F. Mfg. Co 73,333 Bogart V. Dart 119 Bogart V. Sweezey 90 BdZPrt V. Perry 103 B illinger v. Gallagher 303 BouvierLawDict.il 115 Bowe V. Knickerbocker Life Ins. Co 113 Bowe V. TJ. S. Reflector Co.. . 326 Bowe V. Wilkins et al 324 Bowman v. Paine 231 Brackett V. Watkins 155 Brand V. Landenberget al.... 325 Brash v. Wielarsky 56 Brewer v. Tucker 192 Brewster v. Van Camp 50, 199 Brown v. Davis 153 Brown v. Keogh 64 Brown v. Wigton... 186 Brook V. Foster 113 Brooks V. Hathaway 153 Biuen V. Gillett 204 Buckingham v. Swezey 120 Buckingham V. While 131 Buchlerv. De Lemons 18,165 Buell V. Van Camp et al 33 XIV TABLE OF CASES. PAGE Buell V. Van Camp 37, 199 Buehlv. Ball 43, 199 Buller V. Woods 18 Bump V. Daheny 47,251 Bump V. May nard 158 Bunn V. Fonda 158 Burckle V. Eckart 11 Burrall v. The Bushwick R. R. Co 129 Burruss V. Grant 65 Bushnell v. Parker Bros. Co. . 19 Butler V. Woods 116 Butterworth v. Bontiler 30 Cammens v. Thompkins 71 Campbell v. Champlain & S. T. L. R. R. Co 11 Campbell V. Conner 101 Campbell v. Proprietors, &c . . 5 Cantrell V. Conner 144 Capital City Bank v. Parent. . 173 Cardan V. Garden 71 Carlisle v. Gunn 18 Carpenter v. Herrington 159 Carr v. Van Hoesen 137 Casey, Recr. v. Adams & Co... 3 Catlin V. Moss 90 Cattaraugus Cutl. Co. v. Case 37 Chamberlain v. Darson 144 Champion Card Paper Co. v. Searing 8, 37 Cheyenne F. Natl. Bk. v. Sloan 66 Citizens Bank of Perry v. Wilams 65 Claflin et al. v, Baere et al... . 194 Claflin V. Silberg 36 Clare v. Lockard 90 Clark V. Borell 8 Clearwater V. Brill 240 Clews V. Rockford 5 Coddington v. Gilbert 132 Cole Mfg. C). V. Jenkins 69 Collins V. Bcebe 84 Columbus Watch Co. v, Ho- denpyl 5 Colver V. VanValen 240 PAGE Connecticut Mut. Life Ins. Co. V. Cleveland R. Co 11 Corson V. Ball 5 Cox V. Dawson 14 Cox V. Stafford 148 Craft V. Curtiss 145 Crawford v. Lockwood 147 Cribben v. Schillenger 33 Cromwell v. Gallup 215 Cronin v. Crooks 85 Cross V. Fombey 160 Grossman v. Lindsley 8 Crow V. Leuhon & Co 69 Crowns v. Vail 23, 33, 37 Cudahy v. Rinehart 116 Cumberland Coal Co. v. Sher- man 11 Cunningham v. Van Pustan . . 7 Currie v. Riley 81 Cutler V. The James Gould Co. 133 Dains V. Prosser 158 Daniels V. Lindsley 150 Davidson v. Chatham Nat. Bk. 171 Davis V. Brooks 194 Dayv.Bach 137 Dayton v. The McElwee Mfg. Co 204 Demiel v. Sheveland. 16, 61, 90, 229 Delameter v. Byrne ^0. 243 Delancy V. Brett 84 Deposit Nat. Bk. v. Wickham 158 Dickerson V. Mayer 44 Dietlin v. Earan 186 Dintruflf V. Tuthill 44, 63 Dobbins v. Hanchett 160 Doctor V. Schnefif 252 Dolb^er V. Stout 87 Dol I ins V. Pollock 161 Dolson V. Saxton 515 Donnell v. Williams 81, 119 Douglass V. Haberstro 88 Duglass V. Phoenix Ins. Co.. 5, 13 Drake on Attachment 116 Dusseldorf v. Redlick 119 TABLE OF OASES. XV PAGE Eagan v. Moore SOS Eaves Costume Co. v. Pratt . ■ 73 Ebyv. Watkins 62 Edick V. Green. 64 Egbert v. Watson 346 Elliott V. Keith 73 Ellison V. Bernstein 31 Essex Co. Nat. Bk. v. Johnson 41 Evans v. Warner 66 Everritt v. Everitt Mfg. Go . . . 1T3 Farrell v. Furness 66 Farrel v. Higley 158 Farwell v. Importers, &c. Bk-. 124 Fink V. Fraenkle 143 Fiimen V. Wallory 159 First Nat. Bk. v. Brushwick Chem. Works 26, 83 First Nat. Bk. of Chicago v. Reinitz 113 Fishery. Langbein 164 Fisher v. Dougherty 808 Fisk V. Spring 115 Flatow V. Van Bremsen 198 Fleitmann V. Sickle 58 Flint V. Sargent 158 Floyd V. Blake 3 Ford V. Johnson 158 Fort Pitt Nat. Bk. v. Wil- liams 160 Foster v. Langbein 219 Freeman v. Alderson 173 Rreibei-g v. Freiberg 165, 305 Frost et al. v. Brisbin 73 Frost v.Mott 137 Furman v. Walter. . , 3 Gallev. Tode 63 Gait V. Providence Sav. Bk. . . 10 Garden v. Sabey 101 Garrison v. Marshall 240 Garson v. Brumberg 79 Gashene v. Apple 60 Gere v. Gundlach 3 German Bank of London v. Dash 47 PAGE German Bank v. Meyer 68 Gibbs v. Queens Ins. Co 127 Gibson et al. v. Nat. ParkBk.. 189 Globe Yarn Mills v. Bilbrough 41 Godbe Pitts Drug Co. v. Allen 195 Godfrey v. Godfrey et al 199 Godol 150 Golden Gate Con. Co. v. Jack- son 38 Goldschmidt v. Hirschon... .7, 61 Goodbar v. City Nat. Bk 26 Gray v. Blackwell 64 Green leaf V. Mumford 133 Gregory v. Adler 163 Grey v. Sheridan Elec. Li. Co. 113 Gribbon V. Back 21 Gribbon V. Freel 208 Gribbon v. Ganss 30, 4t Griesa v. Mass. Ben. Soc 11 Griffin v. Sutherland 144 Guenther v. Jacobs 150 Guilhon V. Lindo 8 Gutta Perch Rubber Co. v. MayorofN. Y 5 Gwalter v. New York Seal Plush&T. Co 195 Haeblerv.Bernharth 37,37,180, 183 Hall V. Brooks 131, 133 Hall V. Penny 158 Hallenbeck v. Coenen 66 Hallock V. Van Camp 18, 37 Bamberger v. Moeller 34 Hamilton V. Steck 37 Hancock v. Sears 145 Hankinson v. Paige 97, 113 Hanover Nat. Bk. v. "Stebbins. 72 Hanson V. Graham 72 Hardie v. Colvin 194 Harris v. Murray 134 Hart V. Bernatt 42 Hayden v. The Nat. Bk. of the Stateof N. Y 133 Head v. Wollner 19, 36, 69 Herman V. Knapp 61 Hertz V. Stewart 33 Hess V. Hess 117, 134 XVI TABLE OF OASES. PAGE Hibernia Nat. Bk. v. Lacomb.. 11 Hickox V. Fay... , 142 Higgins V. McConnell 103 Hill V. Knickerbocker 36, 48 Hillv. Wiggins 118 Hiller T. B. & W. R. Co 11 Huntner V. Bontilier et al 47 Hirsch v. Hutchinson 120 Hodgman v. Barker 44, 203 HoDg Kong & S. Bkg. Corp. V. Campbell 133 Hopper V. Hopper 4 Houghton V. Ault 2 Hoyt V. Van Alstyne 152 Hunt V. Hunt 217 Hurdv. H. &St. J. R. Co.... 78 Hutchinson v. Chamberlain . . 144 Ionia F. Nat. Bk. v. Steele 67 Ires V. Holden 192 Jackson V. Parker 103 Jackson v. Scott 103 Jacobs V. Hogan et al 30 Jacobs V. Tichenor 18 Jaffray V. Brown 101 Jaflray v. Nast 14, 68 Jayv. DeGroot 202 Jefferson Co. Saving Bk. v. McDermott 162 Johnson v. Adams Tobacco Co. 11 Johnson v, Buckel 58 Johnson V. Ferris 29 Johnsonv. Hardwood Door & Trim. Co 206 Johnson v. Moss 249 Jordan v. Richardson 26 Kahle V. MuUer 36 Keiher V. Shepherd 126 Kelly V. Countryman 90 Kerchner v. McCormac 179 Ketchin v. Landecker 12 Key West Bldg. & Loan Ass. V. Bk.of Key West 181 Kibbe v. Herman 69, 14 PAGE Kibbe v. Wetmore 66, 201 Kiefer V. Wester 29 Kilburn v. Woodworth 3 Kittredge v. GiflEord 161 Knapp V. O'Neill 145 Kneel le v. Ne wcomb 146 Knudson v. Matuska, &c. F. Co 204 Kokomo Straw Board Co. v. Inman . 36 Ladd V. Terre Haute C. & W. Co 90 Lafayette Ins. Co. v. French. . 128 Lampkin v. Donglass 25, 43 Lane et al v. Wheelwright et al 126 Lanier v. City Bk. of Houston 29 Lashaway v. Tucker 141 Lawrence v. The Bank of the Republic 134 LawBon v. Adlard 71 Lawson v. Lawson 200 Lawton v. Eeil 5 Lee V. Co-Operative L. & Ass. 31 Lee V. Homer 81 Lee V. Pfeffer 206 Leiser v. Rosman 18, 48 Lewis V. Douglass 56 Livermore v. Rhodes 60 Lock wood V. Younglove 143 Loomis V. Kasson 214 Lowenstein v. Beed 62 Lowenstein v. Salenger 186 Lud wig V. Blum 165 Lynch v. Crary 102 Lyon V. Blakesly 31 McCallister v. Bailey 96, 135 McBride v. Farmer's Bank. .4, 10 McCulloh V. Aeby 36 McDoel V.Cook 248 MacDonald v. Kieferdorf 83 McDonald v. Marquette F. Nat. Bk 10, 73 McEntee v. Aris et al 27 TABLE OB" OASES. XVll PAGE McGuire v. Ross 110 McEntire v. Wiegand 78 McKenney v. Collins 217 McLaughlin v. Wheeler 165 McTaggart v. The Putnam CorsetCo 61 McVicker v. Campanini 29 Madison First Nat. Bk. v. Greenwood 205 Mallory v. Allen 25 Mann V. Carter 26 Manton v. Poole 29, 44 Manufs. Nat. Bk. v. Hall 36 Marine Nat. Bk. of N. Y. v. Ward 43 Marinette Iron Works Co. v. Reddaway 18 Market Nat. Bk. v. Pacific Nat. Bk 194 Matter of Barber 157 Matter of Edwards 158 Matter of Fisher 78 Matter of Flandron . . ._ 124 Matter of Thompson 73, 79 Matter of Wrigley 73 Matthews v. Gilleran 74 Maxfield v. Taylor 172 Mechanics and Traders Nat. Bk. V, Loucheim 19, 117 Menagh v. Whitwell 64, 117 Miller v. Brinkerhofl 338 Miller V. Ferry 81 Milliken V. Dart 60 Millins V. Shafer 238 Mingo V. Purdy 63 Mojarrieta v. Saenz 27, 163 Moody V. Lucier 161 Moore v. Corley 14 Moore V. Neill 18 Moore v. Strye 194 Morgan V. Avery 71 Morris V. Talcott 340 Morrison V. Watson 7 Morse V. Gleason 117 Murphy v. Baldwin 74 Murphy V. Jack et al 53 PAGE Murray v. Hankin 24 Murry V. Hankin 25 Nason v. Brumbery 85 Naser et al. v. First Nat. Bk. . 114 Nassau Bk. v. Yandes 135 Nat. Bk. of Com. v. Whiteman P. &P. Co 55 Nat. Broader Bk. v. Barker.52, 127 200 212 Nat. Park Bk. v. Whitmore . . 303 Nat. S. & L. Bk. V. The Mech. Nat. Bk 193 Nealv. Sachs 192 Nelson V. Field 47 Nelson Distillery Co. v. Voss- meyer 67 Newman v. Beckwith 314 Newitter v. Mansell 67 New York and Oswego R. R. Co. V. Tan Home 325 Norfolk and N. B. Hosiery Co. V. Arnold .40 Northhampton Nat. Bk. v. Wylie 81 Northrup v. Garrett 243 O'Brien v. Mechanics & T. F. Ins. Co 132 Oliver v. The Walter Haywood Chair Mfg. Co 39 Orr and L. Shoe Co. v. Harris 68, 305 Orvis V. Goldsmith 119 Osborn v. McCloskey 83 Pach V. Gilbert 93, 96,160, 161, 163 Pach V. Orr 194 Pacific Nat. Bk. v. Mixter 9 Partridge v. Brown 13 Parsons v. Sprague 187 Patterson v. Delany. ...... 53, 340 Patterson v. Perry 94, 130 Peiffer v. Wheeler 87 People v. American Loan & T. Co 10 People's Bk. v. Mech, Nat. Bk. 192 xvin TABLE OF OASES. PAGE People, Tracey V. Blanchard.. 17 Perry v. Erie Transfer Co ... . 11 Phillips V. C.iok 117 Pickhardt v. Kuttroff 89 Pieffer v. Wheeler et al 87 Place V. Riley 216 Plimpton V. Bigelow 95, 128 Pomeroy v. Ricketts 38 Pride v. Indianapolis D. & W. R. Co 35 Quebec Bank v. Carroll 72 Ray V. Harcourt 245 Raynor et al. v. Pac. Nat. Bk. 10 Re Stonebridge 47 Read v. Livingstone 61 Ready v. Stewart 3 Reichenbach v. Spethman. ... 58 Reinsche v. Flecke 159 Remington Paper Co. v. O'Dougherty 8 Rennie v. Bean 136 Reynolds v. Horton 70 Rheinhart v. Grant 67 Richter v. Wise 29 Riley v. Skidmore 242 Rinchey v. Stryker 134, 137 Robinson's Case 158 Robinson v. Oceanic S. N. Co.. 4 Robinson v. The Nat. Bank of Ne wberne 9 Rodgers v. Bonner 110 Rogeis L. Wks. v. Kelly 138 Romaine v. Chauncey 151 Root V. Great W. R. Co 4 Rose V. Renton 60 Rosenthal v. Grouse 236 Rothchild v. Mooney 65 Rothchild v. Dintredge Flint Glass Co 232 Rumsey's Prac. 1 201 Ruppert V. Haug 42, 192 Ruser V. The Uu. Distilling Co. 165 Russell V. Dean 143 Ruthven v. Beckwith 73 PAGB Saddlesvene V. Arms 4 Salsbury v. Parsons 154 Saunders v. Reilly 117 Scharflf v. ChaflEe 205 Schilling V. Deau 13 Sohoonmaker et al. v. Spencpr. 31, 241 Sohranth v. The Dry Dock Sav Bk 202 Schumann v. Davis 63, 119 Sohwinger v Hickok 173 Scott V. Brandet 51 Scott V. Morgan 222 Seaman v. Luce 143 Sedalia Third Nat. Bk. v. Gar- ton 17, 202 Seligman v. Falk 133 Sheldon v. Knelt 41 Sheldon V. Sabine 82 Shellaborger v. Mottin 69 Shone v. Lucas 117 Sickles V. Richardson 132 Sickles V. Sullivan 32 Simon v. Sevrer County Co. of Asso 62 Skinner V. Stewart 3 Skinnion v. Kelly 46 Sloss Commission Co. v. Bond. 205 Smadbeok v. Sisson 31 Smith V. Arnold 23 Smith V. Boyer 67 Smith V. Davis 36 Smith V. Fogarty 217 Smith V. Luce 45, 239 Smith V. Orser II7 Smith V. Osgood 116 Smith V. Slade 143 Smith V. The Union Milk Co. . 12 Smith, Perkins & Co. V.Wilson 86 Smith V. Wilson 86 Snell V. Thorp 242 Snyder v. Davis 142 Sooiete Toiiceire et Agricole des Estats Unis v. Milliken . 18 Somerset & W. Sav. Bk. v. Huyck 80 TABLE OF OASES. XIX PAGE Staats V. Briston 117, 165 Stamp V. Herpick 7, 71 State, Moll v. Brockman 63 Steel V. Raphael 74 Steinhardt v. Lernau 65 Sternberger v. Bernheimer. . . . 166 Sterns Paper Co. v. Johnson . . 186 Sterrett et al. v. Third Nat. Bk. of Buffalo 118 Sterrett v. Third Nat. Bk. of Buffalo 171 Steuben Co. Bk. v. Alberger 13, 191 206 Steuben Co. Bk. v. Alberger et al 185 Stevens v. Middleton 89 Stevenson v. Stevenson 151 Stewart v. Brown 146 Stief V. Hart 133 Stoiber v. Thudium 39 Story's Confl. of Laws 127 Story on Part 118 Stow V. Stacy 33, 217 Strasberger V. Bachrach 64 Strauss v. Seaman 7 Street v. Smith 127 Strussguth V. Reigelman 48 Summers v. Oberndorf 18 Sutherland v. Bradner 208 Syracuse City Bk. v. Coville. . 15 Tarbell v. West Ill Tatum V. Colvin 194 Taylor V.Hull 45 Taylor v. Myers 64 Taylor v. Troncose 90 Tlialheim( r v. Hays 193, 198 Thames and Mercey M. Ins. Co. V. Dimraick 72 Third Nat. Bk. of Buffalo v. Elliott 215 Thomas v. Dickinson 51, 64 Thompson v. Dater 65, 239 Thorington v. Merrick 8 Tiffany v. Lord 333 Throop Grain Cleaner Co. v. Smith 97, 173 PAGE Thurber V. Blanck 97 Tillotson V. Wolcott 144 Tim V. Smith 28, 204 Trautmann v. Sohwahn 50 Travis v. Travis 78 Tread well v. Lawlor 61 Trow's Printing, &c. Co. v. Hart 207 Tuck V. Manning 162 TuUer v. Arnold 5 TuUer v. Beck 90 Turner v. Borthwick 40 Twinam v. Swart 143 Union Dime Saving Inst. v. Anderson 214 Union Distilling Co. v. Ruser.. 90 Union Distilling Co. v. Ruser 67, 90 Union, &c. Mining Co. v. Raht 8 United States Net. & T. Co. v. Alexander 41 United States v. Graff 5, 96 United Verde Copper Co. v. Tritle 89 Van Alstyne v. Erwine 71 Van Hesse v. Mackaye 95 Van Camp v. Searle 92, 218 Van Kirk v. Wilds 249 Van Loon v. Lyons 30 Van Wyck v. Hardy 32 Van Wyck v. Bauer 8 Victor V. Goldberg 76 Vorhis V. Michaelis 14 Wait on Fraud 64 Wallace & Sons v. Castle et al 74, 89 Wallingsford v. Wallingsford. 150 Walsh V. Adams 117 Walts V. Nicholos 35, 198 Warner v. Fourth Nat. Bk 125 Webster v. Lawrence 114 Wehle V. Conner 98 Wehle V. Spellman 96 Wells V. Sisson 238 Wentzler v. Boss 231 XX TABLE OP OASES. PAGE Wenzell v. Morriaey 34 Weasels v. Boetlcher 35 West Side Bank v. Meehau ... 58 White V. Eeiohert. 18 Whitehead v. Buffalo & L. H. R. Co 11 Whitney' v. Hirsch 7 Wickham v. Stern 68 Wilcox V. Hawley 153 Wilcox V. Howe 143 Wildman v. "Van Gilder 59 Willard v. Sperry 249 Williams v. Freeman 8 William Deering& Co. v. War- ren 17, 179 Wolf V. Farley 145 Wood V. Colvin 217 Woodhouse v. Todd 82 Woodmansee v. Rodgers 195 Woodward v. Murray 158 Woodwards v. Stearns 56 Worthington v. Dorset 88 Wright V. Douglass 103 Wyman v. Wilmarth 15 Yates V. North 21, 207 Yates County Nat. Bk. v. Car- penter 156 Yerkes v. McFadden et al 166 Zeregal v. Benoist 30 Zoller V. Grant 138 Code Civil Pro. Citations. Section 172 88 " 173 88 184, subd. 4 214 186 214 " 189 94 " 376 16 " 380, subd. 7 16 " 416 163 " 425 86, 90 " 428 227 430 231,288 " 438 89,216 " 440 78,239 PAGE Section 441 89,163 " 444 216 " 445 217,229 " 459 233 " 501, subd. 2 23 " 561, tit. 1 82 568 82 603 227 " 611 227 '■ 635, subd. 2, 3 4,247 " 636, subd. 1,2.... 4, 6, 47 " 637 6,197 " 638 13,88,164 639 56 " 640 78,233 " 641 82,127 " 643 81 " 644 101 '■ 645 102,104 " 646 12 " 647 127 " 648 96,111 " 649, subd. 1, 2, 3. . . 80, 95 '• 650 125 " 651 130 " 652 101 •' 653 100 " 654 96,110 •■ 655, subd. 1, 2 97. 134 " 656 115 " 657 176 " 658 174 " 659 174 " 660 167 661 167 " 662 167 " 663 168 " 664 168 •' 665 168 666 175 " 667 175 •■ 668 176 669 176 " 670 176 " 671 176 ' 672 175 TABLE OF OASES. XXI PAGE Section 673 176 " 674 113,176 " 675 114 " 676 114 677 94,168 " 680 169 681 110 '< 682 191 " 683 83, 191 " 686 193 " 687 187 " 688 188 " 689 188 " 69) 188 " 691 188 " 692 188 " 693 189 " 694 189 695 189 697 91,163 698 92,190 701 177 " 702 177 " 703 171 " 704 170 " 705 178 " 706 203,314 " 707 216,229 708 104,229 " 709 223 " 710 224 711 226 " 712 226 " 720 3,236 " 723 209 724 208 739 56 772 88 " 810 78,241 '• 811 78,241 812 79,242 " 813 79 " 819 80 " 827 227 " 8S5 55 «' 1013 227 PAGE Section 1015 227 " 1216 217 " 1217 217 " 1253 102 " 1362 88,239 1369 219 1370 104,216 1390 141 1390, subd. 4 237 " 1391 141 " 1392 153 " 1393 155 " 1394 144 " 1395 105 " 1396 106 1397 106 1398 107 " 1400 108 •' 1401 108, 163 " 1403 109,112 " 1406 91 " 1407 112,163 " 1759, subd. 2 150 " 1780 3, It " 1874,5 104 1932 166 1935 166 " 2463 142,145 2905 234 " 2906 234 " 2907 234 " 2908 234 2909 234 " 2910 234 •' 2911 246 " 2912 243 " 2913 243 " 2914 247 " 2915 248 2916 250 " 2917 250 " 2918 251 " 3017 16 " 3159 233 " 3165 227 3169 ^ 228 xxu TABLE OF OASES. PAGE Section 3170 229 " 3210 235 " 3211 235 3360 237 " 3268 227 3269 227 " 3343, subd. 7 95 " 3343, subd. 10 7,236 3343, subd. 11 2.3B 3343, subd. 18 20,283 U. S. Revised Statutes Cited. Section 5242 9 " 5798 212 " 4718 157 PAGE N. Y. Revised Statutes Cited. 1 R. S. p. 744, sec. 4 103 2 R. S. chap. 366, sec. 16 245 Supreme Court Rules Cited. Rule 4 153 " 25 194 Sessioii Laws Cited. 1880, chap. 245 104 1883, " 26 227 1887, " 503 60 1894, " 307 16 1894, " 736 6,33 IN ATTACHMENT OF PROPERTY. CHAPTER T. IN WHAT ACTIONS REMEDY ALLOWED. I.^ — Attachment — Nature of remedy. 1. In general. 2. In favor of and against whom allowed. II. — In what actions. 3. In general. 4. Public officer, &c., for peculation. 5. Injury to personal property. III. — Causes of action that do not allow of attachment. 6. Injury to person by negligence. 7. Miscellaneous. 8. National banks. IV. — Foreign corporation, or non-resident, against a foreign corpor- ation. 9. In general. 10. Affidavit. 11. Unpaid subscription to foreign corporation, v. — Procedure. 12. Maturity of debt. 13. Summons — Issue of, and commencement of action. 14. Debt not due — Fraud in contracting it. 15. Installment of debt of creditor not due — Effect of. 16. Action on a justice judgment where transcript is filed within six years. I. — Attachment — Nature of remedy. 1. In general. Attachments are provisional remedies provided by the Code, which a plaintiff in a proper case 2 PRACTICE IN ATTACHMENT OF PROPERTY. may resort to before judgment, that the object of hia action may not be defeated by the conduct of the defend- ant before he can obtain judgment. It is in effect an execution and a creditor' s bill. In practice, an attachment is a writ issued before judg- ment, by a court or judge, commanding the sheriff or other officer to seize any property, credit or right belong- ing to the defendant in whatever hands the same may be found, to satisfy any judgment which the plaintiff may obtain against him in the action ; Floyd v. Blake, 19 How. Pr. 542 ; Houghton v. Ault, 16 id. 77. It is an inverted process exercising the prerogatives of the execu- tion and doing in prescnti what otherwise could not be done except in future, and after due and orderly investi- gation; Pride v. Indianapolis, D. & W. R. Co., 21 N. Y. State Rep. 261 ; 4 N. Y. Supp. 15. It is a grasping process which in a summary way intervenes between the general creditors and the debtor's property. It is a proceeding at law in personam as to residents, but it is a proceeding in rem against non-residents. The attachment is not to bring the defendant into court; its object is to give the plaintiff a lien against the thing attached ; Kilburn v. Woodworth, 5 Johns. 37 ; it must, therefore, like other proceedings in rem, be prosecuted where the thing on which it is founded is situated; Casey, Receiver, v. Adams, &c., 102 U. S. 66; 21 Alb. L. J. 376. There seem to be three distinct forms of remedy : tlie first is the one provided by the act of 1826 ; the second by the act of 1831; the third by the Code of Civil Procedure. The first two remedies are distinct in their character from that provided by the Code. The first two are special proceedings by which the IN WHAT ACTIONS REMEDY ALLOWED. 3 action is commenced ; the last is a provisional remedy ; Gere v. Gimdlach, 57 Barb. 13 : Roughion v. Ault, 16 How. Pr. 77 ; Furman v. Walter, 13 id. 348 ; SMnner V. Stewart, 24 id. 489. 2. In favor of, and against whom allowed. While a plaintiff can in no case demand an attachment as a matter of right, and whether in any case an attachment should issue, rests in the discretion of the Supreme Court at General Term ; yet, as a general rule, any person, associ- ation or corporation allowed to maintain an action, in which an attachment can properly issue, can have an attachment against the property of the defendant in such action by complying with the requirements of the statute. Where the defendant interposes a counter-claim, and 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 cause of action stated in the complaint, and demanding the same judgment. And for the purpose of applying to such a case the provisions of this act, the defendant is deemed the plaintiff, the plaintiff is deemed the defend- ant, and the counter-claim so set forth in the answer is deemed the complaint ; Code, § 720. The non-residence of an attaching creditor cannot pre- judice his rights, in the absence of a positive statutory enactment; BarnetY. Kinney (Idaho), 24Pac. 624; Headp V. Stewart, 1 Code R. (JST. S.) 297. But where the defend- ant is a foreign corporation, a action cannot be brought against it by a non-resident plaintiff except as prescribed by § 1780 of the Code of Civil Procedure. The courts of the State have no jurisdiction, under this section, of an action by a non-resident against a foreign corporation upon a cause of action arising without the State and not 4 PRACTICE IN ATTACHMENT OF PROPERTY. specified in this section, and the defendant's appearance in such cases does not give the court jurisdiction ; Robin- son V. Oceanic 8. N. Co., 112 N. Y. 315 ; 20 N. Y. State Kep. 741 ; 19 N. E. Rep. 625 ; but see Boot v. Great W. B. Co., 65 Barb. 619 ; 55 N. Y. 636. In such action the complaint must allege that the action is upon a contract made, executed or delivered in this State, or that the subject thereof is situated therein ; Hopper V. Hopper, 125 N". Y. 400. But when a non-resident has assigned his demand to a resident of this State, the assignee may bring an action upon it and obtain an attachment against the defendant under subd. 2 of § 636 of the Code ; McBride v. Farmer^ s Bank, 26 N". Y. 450-458., II. — In -what actions. 3. In general. The Code of Civil Procedure author- izes the issuing of an attachment : 1. Where the action is to recover a sum of money only, as damages for breach of contract, express or implied, other than a contract to marry ; 2. Wrongful conversion of personal property, and for any other injury to personal property in con- sequence of negligence, fraud or other wrongful acts ; Code,g§ 635. It is enough that a cause of action exists against the defendant to recover a sum of money only, as damages, when the amount to which the plaintiff is entitled can be specified ; Saddlesvene v. Arms, 32 How. Pr. 280. It must be for such damages as may be ascertained by some legal rule of indemnification ; Barnes v. Buck, 1 Lans. 268. This includes actions at law and suits in equity. Thus an attachment may issue in an action to compel IN WHAT ACTIONS REMEDY ALLOWED. 5 the specific performance of a contract to purchase land, and to recover the purchase money contracted to be paid by the defendant ; Corson v. Ball, 47 Barb. 452. It must appear "that the cause of action exists" and not that it will exist ; Campbell v. Proprietors, &c., 18 How. Pr. 412. An action on a money judgment, whether recovered for a tort or upon contract, is an action to recover money as damages "for breach of contract, express or implied" within the meaning of section 635 of the Code of Civil Procedure. And this, whether the judgment is foreign or domestic ; Outta PercJia Rubber Co. v. Mayor, &c. of New YorTc, 108 N. Y. 276. So attachments maj'^ issue in actions on contracts for the recovery of unliquidated damages, when the proper disclosure of the grounds of the claim supplies practic- able means for determining its amount ; Lawton v. Meil- 34 How. Pr. 465 ; United States v. Graff, 4 Hun, 634 ; Clews V. Roclcford, B. 1. & St. L. R. Co., 2 id. 379. An attachment in another State of a debt due a resident of New York, from a domestic corporation, is invalid in New York, although authorized by the statute of the other State; Douglass v. Fhoenix Ins. Co., 63 Hun, 393 ; 44 N. Y. State Rep. 237 ; 18 N. Y. Supp. 259. Whether an attachment can issue in a suit for moneys payable by the terms of a contract in another State, quaere; Tuller v. Arnold, 93 Cal. 166; 28 Pac. 863. An attachment for a claim against an estate cannot issue against an executor without leave of the court, where an execution cannot ; Columbus WatcJi Co. v. Hodenpyl, 61 Hun, 557; aff'd 135 N. Y. 430. 4. Public officer, &c. Where the complaint demands judgment for a sum of money only ; and it appears, by b PRACTICE IN ATTACHMENT OF PKOPEETT . affidavit;, that the action is brought to recover money, funds, credits or other 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 muni- cipal or other public corporation, board, officer, castodian, 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 in the obtaining, reception, payment, conversion or disposi- tion of which, without right, he has aided or abetted, or to recover damages for so obtaining, receiving, paying, converting or disposing of the same, or the aiding or abetting thereof, or in an action in favor of a private person or corporation, brought to recover damages for an injury to personal property where the liability arose in whole or in part in consequence of the false statements of the defendant as to his responsibility or credit, in writing under the hand or signature of the defendant or his authorized agent, made with his knowledge and acqui- escence, a warrant of attachment against the defendant or defendants may be granted; Code, § 637. But the plaintiff must show by affidavit, to the satisfaction of the judge granting it, that a sufficient cause of action exists against the defendant for a sum, stated in the affidavit. Section 637, as amended by chapter 736 of the laws of 1894, is one of the most ambiguous sections of the Code of Civil Procedure. The grounds for an attachment under that section as originally inserted seemed to have been exclusively for peculation or fraud upon a munici- pal corporation by its agents, officers, servants, &c. As it now ai)pears, it is different and includes actions brought IN WHAT ACTIONS KEMEDY ALLOWED. 7 by private persons or corporations against somebody for an injury to personal property, where the liability arose, in whole or in part, in consequence of the false state- ments of the defendant as to his responsibility or credit. 5. Injury to personal property. An attachment is allowed in an action for an injury to personal property, in consequence of negligence, fraud or other wrongful act ; subd. 3, § 635, of the Code of Civil Procedure. An injury to property is an actionable act, whereby the estate of another is lessened, other than personal injury or the breach of a contract ; id. § 3343, subd. 10. Obtaining goods by means of false or fraudulent repre- sentations is an injury to property, within the meaning of the above sections ; Whitney v. Hirsch, 39 Hun, 325 ; Morrison v. Watson, 23 Week. Dig. 286 ; Cunningham V. Von Pustan, 9 N. Y. Supp. 255 ; 31 N. Y. State Kep. 255 ; but see Stamp v. Herpich, 8 id 446 ; Strauss v. Seaman, 13 id. 740 ; Ooldschmidt v. Herschorn, id. 560. Thus a person who has been induced to make advances upon forged bills, notes and acceptances, has sustained an injury to personal property, within the meaning of the above sections. In an action against a firm to recover damages for such an injury, upon proof that one of the two partners was guilty of the fraud, and that he has absconded, a warrant of attachment against the property of that partner may be granted, but not against the firm prop- erty ; Bogart v. Dart, 25 Hun, 395. An affidavit for an attachment, under either subd. 2 or 3 of section 635 of the Code, need not contain an averment that the claim made is due over and above all counter-claims, as subd. 1 of section 636 prescribes that such statement shall be made, only, when the action is O PRACTICE IN ATTACHMENT OF PROPERTY. to recover damages for a breach of contract ; Champion Card Paper Co. v. Searing, 47 Hun, 237. Ill, — Causes of action that do not allo-cc of attachment. 6. Injury to person by negligence. An attachment is allowed when the action is to recover for an injury to personal property, in consequence of negligence or other wrongful act, but not for an injury to the plaint- iff's person ; Clark v. Boreel, 21 Hun, 594. Nor where the complaint sets forth two or more causes of action, one of which is not included among those wherein a warrant can be granted ; Union, &c. Mining Co. v. RaM, 9 id. 208. 7. Miscellaneous. An attachment cannot be granted in an action brought to recover the costs of a former action prosecuted by the defendant in the name of a third person for the defendant' s benefit ; jRemington Paper Co. v. 0' Dougherty, 32 Hun, 255. Nor in an action for an accounting against a co-owner of a vessel ; Williams v. Freeman, 12 Civ. Pro. Rep. 334. Nor to compel a trustee to account and pay over to the cestui que trusts money due them, or to convey real estate collusively conveyed without authority of such cestui que trusts ; Thorington v. Merrick, 101 N. Y. 5. Nor in an action for foreclosure ; Yait WycJc v. Bauer, 9 Abb. N. S. 142. Nor in an action for the reconvey- ance of lands on the ground of fraud, and for money paid on account ; Crossman v. Lindsley, 42 How. Pr. 107. Nor for the infringement of a trade-mark ; Chiiil- hon v. Lindo, 9 Bosw. 601. 8. National banks. A law creating a corporation may impose upon parties dealing with it such restric- tions as the enacting power may deem proper, in apply- IN WHAT ACTIONS KEMEDY ALLOWED. 9 ing or subjecting the assets to the discharge of its obligations, and may provide that any one or more of the usual remedies of creditors shall in certain cases be withheld from them. Thus an attachment is prohibited against a national bank which is, or is about to become, insolvent ; and while it is held in Robinson v. TJie Na- tional BanTc of Newherne, 81 N. Y. 385, that the pro- vision of the National Banking Act (U. S. R. S. §§ 5242- 5798) prohibiting the issuing of an attachment, injunc- tion, or execution against the banking associations organized under it, or their jproperty before final judg- ment, applies only to an association which has become insolvent, or to one about to become so, and that State courts have jurisdiction over an action brought by a citizen of the State against a national bank located in another State ; and in such an action an attachment may be issued against the property of the defendant. The Supreme Court of the United States, in the case of the Pacific National Bank v. Mixter, 124 U. S. 721, say: "It stands now as it did originally, as the para- mount law of the land, that attachments shall not issue from State courts against national banks, and writes into all State attachment laws, an exception in favor of national banks." Since the act of 1873, all of the attachment laws of the State must be read as if they contained a provision, in express terms, that they were not to apply to suits against a national bank, and see Bank of Montreal v. Fidelity Natl. Blc, 17 N. Y. St. R. 88 ; 1 N. Y. Supp. 852. The act of Congress of July 12, 1883, providing that the jurisdiction for suits thereafter brought against national banks, shall be the same as for suits against State banks, and repealing laws inconsistent therewith, 10 PRACTICE IN ATTACHMENT OP PKOPEETY. did not repeal the law in regard to attachments, &c. ; * Baynor et al. v. Pacific National BanJc, 93 N. Y. 371. Since the decision in the case of the Pacific Natl. Bank v. Mixter, the court, in McDonald v. Marquette First Nat. BJc., 41 111. App. 388, says: "An attach- ment may be issued against the property of a solvent national bank located in another State." It seems, how- ever, that the decision in the case of Pacific National Bank v. Mixter, renders further discussion unprofitable, and shows that the previously accepted views of the profession are erroneous. IV — Foreign corporation, or non-resident against a foreign corporation. 9. In general. An action is not authorized to be brought by a foreign corporation, or by a non-resident against a foreign corporation, in the courts of this State, unless the cause of action shall have arisen, or the sub- ject of the action shall be situated, within this State, and the defendant's appearance does not give the courts jurisdiction ; Gait v. Providence Sav. B7c. , 18 Abb. N. C. 431. But an action against a foreign corporation may be maintained by a resident of the State or by a domestic corporation for any cause of action ; Code, § 1780; People v. American Loan & T. Co., 43 N. Y. State Rep. 332 ; 17 N. Y. Supp. 76. Where an action may be brought, an attachment may be granted against a foreign corporation. The resident assignee of a foreign corporation can maintain an action against a foreign corporation upon the cause of action assigned ; McBride v. Farmers Bk., 26 N. Y. 450. The place of performance of a contract made in a different place, governs as to where the cause of action IN WHAT ACTIONS KEMEDT ALLOWED. 11 arises ; Burckle v. Eckhart, 3 N. Y. 132 ; Johnson v. Adams Tolacco Co., 14 Hun, 89; Campbell v. CJiam- plain and St. L. B. M. Co., 18 How. Pr. 412. Tims, though both parties are foreign corporations, if bonds and coupons made in another State are payable here, the court has jurisdiction ; Connecticut Mut. L. Ins. Co. V. Cleveland E. Co., 26 id. 225 ; Hibernia Nat. BTc. V. Lacombe, 84 N. Y. 367; Hiller v. B. & M. R. Co., 70 id. 223 ; Grlesa v. Massachusetts Ben. Soc, 15 N. Y. Supp. 71 ; 39 K Y. State Rep. Ill ; Perry v. Erie Transfer Co., 7 N. Y. L. J. 639. The property attached is not the subject of the action. But the subject of the action is the claim asserted in the complaint and affidavit. Thus where the complaint implies a wrong, or a breach of duty, the relief demanded therein, if obtained, will be a remedy. The cause of action is the right to the remedy, and that right accrued and the cause of action arose when and where the wrong or breach of duty was done or suffered ; Cumber- land Coal Co. V. Sherman, 8 Abb. 243 ; 30 Barb. 159 ; Whitehead v. Buffalo and L. H. R. Co., 18 How. Pr. 218. 10. Affidavit. The affidavit on which an attachment proceeding against a foreign corporation is based, must state, to give the court jurisdiction under § 1780, Code of Civ. Pro., either that the plaintiff is a resident of the State, or that the action is brought to recover dam- ages for a breach of contract, made within the State, or that the cause of action arose within the State, and a defect in this respect cannot be cured by amendment ; Adler v. American Fraternity Circle of B. 19 N. Y. Supp. 885 ; 28 Abb. N. C. 233. And an affidavit and complaint in an action for breach of contract against 12 PRACTICE IN ATTACHMENT OF PROPERTY. a foreign corporation, which fails to show that the con- tract sued upon was made or that the cause of action arose in this State, or to state the plaintiff's residence, is insufficient to support an attachment as against a subsequent attaching creditor, whose writ is in all respects regular and founded on sufficient facts affirm- atively alleged, where there has been no personal service within the State upon, or appearance by, the corporation; Smith V. Union Milk Oo., 10 Hun, 348. 11. Unpaid subscription to foreign corporation. Under a warrant of attachment against a foreign corpor- ation, other than a corporation created by or under the laws of the United States, the sheriff may levy upon the sum remaining unpaid upon a subscription to the capital stock of a corporation, made bj'' a person within the county ; or upon one or more shares of stock therein, held by such a person, or transferred by him, for the purpose of avoiding payment thereof ; Code, § 646. v. — Procedure. 13. Maturity of debt. He who seeks to avail himself of the extraordinary remedy by attachment must be careful to comply strictly with all the conditions upon which it is allowed ; Ketchin v. LandecJcer, 32 S. C. 155. An attachment is in effect an execution and a creditor's bill, and until the Legislature shall interfere even the diligent creditor must conform his proceedings to the regulations of the statute ; Steuben Co. BJc. \. Alberger et al., 78 N. Y. 258. 13. Summons — Issue of, and conxmencement of action. While it is true that by section 635 of the Code the attachment is to be issued in an action, it has not been IN WHAT ACTIONS REMEDY ALLOWED. 13 required to be proceeded by the service of the sum- mons ; but on the contrary, it may, under the authority of section 638, be made to accompany the summons, or at any time after the commencement of the action and before final judgment. This construction is maintained by the further provision of the same section, that the service of the summons must be made upon the defend- ant, or an order of publication obtained, within thirty days after the warrant of attachment is granted. It is not necessary that the summons, as a matter of fact, must be issued or served before an action can exist in Avhich an attachment may be allowed. It requires no actual commencement of the action before an attachment may be issued, but that it shall be issued only in what shall in form be an action by one party against another. This requirement is fully satisfied when the summons has been made out and is in a condition to accom- pany the service of the attachment. And no authority has been found which is inconsistent with this construc- tion. In the case of Partridge v. Brown, 19 Week Dig. 434, the aflidavit evidently failed to show compliance with these sections of the Code ; American Excliange Nat. BJc. V. Yoisin, 44 Hun, 85. 14. Debt uot due — Fraud in contracting it. In case of a simple contract-debt, without any evidence of fraud in the contracting of it, the creditor cannot bring attachment, if no part of it is due ; ScMlling v. Bean, 36 111. App. 513. Thus there is no debt upon a policy of fire insurance payable at a specified time after proofs of loss, during the period between a fire and the making of proofs of loss ; Douglass v. Phoenix Insurance Co., 63 Hun, 393. The fraudulent contracting of a debt, or the fraudulent disposition of property, avoids the 14 PRACTICE IN ATTACHMENT OF PROPEETY. credit upon which the property is purchased, and is a sufficient basis for an attachment on the debt ; Jaffray V. Nasi, 32 K Y. State Rep. 250 ; 10 N. Y. Supp. 613 ; and for the purpose of immediately sueing upon a note or other indebtedness payable by its terms at a time sub- sequent to the time of the commencement of the action, and obtaining an attachment thereon, the affidavit and complaint must show, either that the money or property, for which the debt was contracted, was obtained by fraud, or that the debtor was disposing of his property to defraud the plaintiif. Where it is shown that fraud existed in procuring the money or property, the plaintiff has an election to sue, either upon the express contract, which would be the notes, &c., themselves, or upon the debt, or he can sue to recover damages for fraud ; in other words, he has an election to either sue upon the express contract, or sue for fraud. In the latter case, the debt would become immediately due, while in the former, the debt would become due according to the terms of the contract. Thus to maintain an attachment for a debt by its terms not due, the facts showing the reason for claiming that the debt is due, must be alleged in the affidavits and complaint, and proved upon the trial ; Gox v. Dawson (Wash.), 26 Pac. 973 ; Moore v. Corley (Tex. App.), 16 S. W. 787 ; VoorMs v. Michaelis 45 Kan. 255 ; 25 Pac. 592. Although a fraudulent disposition of property avoids the credit upon which goods are purchased, proof of actual ownership of the property must be given ; proof that the debtor represented to the creditor that he had the property is not sufficient; Kibbe v. Herman, 51 Hun, 438. And to sustain an allegation in an affi- davit that a debt was contracted, or property obtained, IN WHAT ACTIONS REMEDY ALLOWED. 15 under false pretenses, it is necessary to show that at the time the debt was contracted, or the property obtained, there was an intent on the part of the debtor to cheat or defraud. For that purpose some false pretenses must be designedly used, and the fraud must be accomplished by means of the false pretense ; or, if not wholly by that means, it must have had so material an effect upon the mind of the party defrauded, that without it he would not have parted with the money or property alleged to have been fraudulently obtained ; Wyman v. Wilmarth (S. D.), 46 N. W. 190. An affidavit for an attachment where the indebtedness arose out of a credit induced by fraudulent representa- tions, need not contain a statement as to the amount due over and above all counter-claims ; Champion Card & P. Co. V. Searing, 14 N. Y. State Rep. 258. There is no debt upon a policy of fire insurance pay- able at a specified time after proofs of loss, against which an attachment will lie, during the period between a fire and the making of proofs of loss ; Douglass v. Phcenix Ins. Co., 44 N. Y. State Rep. 237 ; 63 Hun, 393. 15. Installments of debt of creditor not due — Effect of. In an action upon debt, payable in installments, where there is only one installment due, and the plaintiff, before judgment, issues and seizes by attachment the property of the defendant, his lien as against other cred- itors acquiring an intermediate title or lien upon the property, is only to the extent of the amount actually due upon the debt at the time of the service of the attachment ; Syracuse City BTc. v. Coville, 19 How. Pr. 385. 16. Action on a justice judgment where transcript is filed within six years. An action may be brought 16 PRACTICE IN ATTACHMENT OF PROPERTY. upon a jastice's jadgment, or the judgment of any court not of record at any time within twenty years from the time it was rendered, provided that a transcript of such judgment is, within six years after its rendition, duly filed and the jugdment duly docketed in the manner prescribed by section 3017 of the Code of Civil Proce- dure, chapter 307, Laws 1894, section 376, and subd. 7 of section 380, Code of Civil Procedure. PROOF NECESSAKY TO OBTAIN. 17 CHAPTER II. PROOF NECESSARY TO OBTAIN ATTACHMENT. I. — Affidavits for attachment. 1. In general. 2. What must be shown by. 3. Office of. 4. By whom to be made. 5. Positive statements in, not necessary when. II. — Agent — Affidavits by. 6. In general. 7. Attorney of record — Presumption as to knowledge. III. — Reason why affidavit not made by plaintiff. IV. — Complaint as affidavit. V. — Affidavits in other cases may be used when. VI. — Facts, how stated in. VIT. — Personal knowledge, what is. VIII. — Jurisdictional. IX. — Prima fade case necessary. X. — Illustrations. I. — ACSdavits for attachment. 1. In general. An affidavit is an indispensable pre- requisite DO the issue of a writ of attachment; Code Civ. Pro., § f536 ; Sedalia Third Nat. Bank v. Garton, 40 Mo. App. 113 ; and no writ should issue without an affidavit containing one or more of the prescribed requisites as set forth in the statutes regulating attachments ; Wil- liam Deering & Co. v. Warren (S. D.), 44 JST. W. 1068. It should state the nature of the contract on which the debt is claimed to be due ; People Tracey v. Blan- chard, 61 Mich. 478. Original affidavits used in other applications made about the same time for attachments against the same defendant, in cases where other parties were the plaintiffs, may be used for the purpose of sup- 2 18 PRACTICE IN ATTACHMENT OF PROPERTY. porting the charge alleged ia plaintiflf's affidavit; Hal- lock V. Yan Gamp, 55 Hun, 1; 8 N. Y. Supp. 858; 28 N. Y. State Rep. 337. Each case must be disposed of upon its own facts, interpreted by the general rule of law on the subject. A void attachment cannot be made valid by an amend- ment of the affidavit upon which it is founded ; Moore v. Neill 86 Ga. 186 ; nor by a supplemental affidavit supplying omissions of material averments ; Jacohs v. Tichenor (Pa.), 27 W. N". C. 35 ; Carlisle v. Ounn, 68 Miss. 243. Uncontradicted affidavits will be construed with rea- sonable liberality ; White v. MeicJiert, 14 Week. Dig. 285; Leiser v. Rosman, 32 N. Y. State Rep. 739 ; 10 N. Y. Supp. 415. But they must state the facts required by statute to be shown and not leave them to be inferred from other facts alleged. Marinette Iron Works Co. v. Reddaway, 13 N. Y. Supp. 426. It is sufficient to aver that the debt is for money loaned at various times, without specifying the dates and amounts of the several loans ; Summers v. Oberndorf, 46 Fed. Rep. 437 ; so it seems it is sufficient to aver that there is a debt justly due plaintiff "upon express and implied contract;" BucMer\. DeLemos, 84 Mich. 554. Plaintiff's ownership of a note upon which the action is brought is sufficiently averred where the affidavits allege that the defendant is indebted to him by an express contract for the payment of money, namely, on a note, a copy of which is set out in the affidavit ; Bank of California v. Boyd, 86 Cal. 386 ; so an affidavit which follows the statute and alleges that the defendant is not a resident corporation, or is a foreign corporation, or Is acting as such, is sufficient ; Societe Tonceire et Agricole des Etats JJnis v. Milliken, 135 U. S. 304. PKOOF NECESSARY TO OBTAIN. 19 2. What must Ibe shown hy. To entitle the plaintiff to the warrant, he must show, by affidavit, to the satis- faction of the judge granting the same: 1. That the plaintiff has a cause of action against the defendant to recover a sum of money only, as damages either for breach of contract, express or implied, other than a con- tract to marry, or for wrongful conversion of personal property, or for injury to personal property, in conse- quence of negligence, fraud, or other wrongful act. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter- claims known to him. 2. That the defendant is either a foreign corporation, or not a resident of the State ; or, if he is a natural per- son and a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of summons, or keeps himself concealed therein with a like intent, or, if the defendant is a nat- ural person, or a domestic corporation, that he, or it, has removed, or is about to remove, property from the State, with intent to defraud his, or its, creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property with the like intent ; or, for the purpose of procuring credit, or the extension of credit, the defendant has made a false statement in writ- ing, under his own hand or signature, or under the hand or signature of a duly authorized agent, made with his knowledge and acquiesence as to his financial responsi- bility or standing ; Code, § 636. A "domestic corporation" is a corporation created by or under the laws of the State ; or located in the State, and created by or under the laws of the United States, 20 PRACTICE IN ATTACHMENT OF PKOPEBTY. or by or i^ursuant to the laws in force in the colony of New York, before the 19th day of July, 1775 ; every other corporation is a foreign corporation ; id. 3343, subd. 18; BusJinell \. Parker Bros. & Co., 37 N. Y. State Eep. 302 ; 13 IST. Y. Supp. 695. 3. Office of. The oflace of an attachment is to bring to the judge, or court, the knowledge of facts, and there- fore it should be confined to a statement of facts only, as they substantially exist, with all necessary circumstances of time, place, manner and other material incidents. In cases of ]Drovisional remedies it is to set forth the evidence from which the court may draw conclusions of fact, dif- fering in this respect radically from a complaint, which should only set forth conclusions of fact, and not the evi- dence of the correctness of these conclusions ; Mechanics & Traders Barik v. Loucheim, 55 Hun, 396. It is improper to state conclusions of law, or legal propositions, such as, that a legal service was made, or legal notice given, without stating the manner, but the affidavit should state particularly how the service was made, or notice given, that the judge may determine as to the legality. It must not state arguments nor draw inferences ; 3 Greenl. Ev. 342. It is not enough that a witness is willing to testify to a fact positively ; he will not be allowed so to testify when it is plain that he can have no actual knowledge on the subject. The sources of information must be given, so that the tribunal called upon to act can see that the facts sought to be proved are established by legitimate testimony. The ordinary witness does not, as a rule, discriminate between actual knowledge and information, and a party who readily be- lieves what it is his interest to believe should, in an ex- parie affidavit, show that he has knowledge, if he wishes PEOOF NECESSARY TO OBTAIN. 21 his statement to be taken as evidence ; Ellison v. Bern- stein, 60 How. Pr. 145. Thus, in Yates v. North, 44 N. Y. 274, the court say : " Neither a general statement of fraud, nor a statement on information and belief, with- out showing that the person from Avhom the information was obtained is absent, or that his deposition cannot be procured, is sufficient to authorize the granting of an attachment." 4. By whom to be made. Sec. 636 of the Code does not require that the af&davit shall be made by the plaintiff, or by one or more of several plaintififs. All that has been required is, that the requisite facts shall be shown by affidavit, that the amount claimed is over counter-claims, and that may be done by the individual through whose personal agency the property has been sold, or the debt has been otherwise created, when his principals have in no way participated in the transaction ; Grihhon v. Back, 35 Hun, 541. 5. Positive statements in, not necessary — When. In general, the facts should be stated upon positive knowl- edge, but where, from the circumstances of the case, they cannot be so stated, they may be stated upon informa- tion and belief, giving the names of the persons, and the sources from which the information is derived, and the reason why the affidavits of those having positive knowl- edge cannot be procured. If it should be held to be the inflexible rule that the affidavit or deposition of the per- son having positive knowledge of the facts must be pro- cured, it would, in most cases, defeat the remedy that the statute sought to afford. Persons seeking to defraud their creditors are not apt to advertise the scheme by which they propose to accomplish it. In many instances a few hours' time is all that they require. The creditor 22 PRACTICE IN ATTACHMENT OF PROPKBTY. oftimes has but a short notice of the intended fraud The attachment has to be procured at once or it is of no use ; Bennett v. Edwards, 27 Hun, 352. II.— Agents— Affidavits by. 6. In general. Where an affidavit in respect to a trans- action of his client, is made by one who is simply an attorney of record in the action, and who is, as far as the record shows, only the attorney for that action, the plain inference is, that such attorney has no personal knowl- edge of the facts as to which he affirms ; Crowns v. Vail, 51 Hun, 204. The affidavit in GriUben v. Scliillinger, 30 Hun, 248, was made by one of the attorneys of record, and the con- struction in that case of subd. 1 of section 636 of the Code does not apply to agents in fact of the plaintiff. If Cribhen v. ScJiillinger is to be followed in its con- struction of subd. 1 of 636 of tlie Code when the affidavit is made by an agent in fact, then proper and legal proof of knowledge of the plaintiff, or rather his ignorance, must be affirmatively established as a prerequisite to jurisdiction, and the pleader must beheld to the strictest proofs of the statutory requirements as to the non-exist- ence of a counter-claim. A counter-claim must be one of the two following causes of action : 1. A cause of action arising otit of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on con- tract, existing at the commencement of the action ; Code, §501. If the rule laid down in Cribbeny. ScJiillinger is to be applied, it is clear that the pleader must show that tlie plaintiff has no knowledge of both possible causes PEOOF NECESSAEY TO OBTAIN. 23 of action, and it is equally clear that no agent in the world can make an affidavit covering both causes of action on any recognized principle which governs statu- tory and jurisdictional requirements. I am well aware that the hardships of a rule at law does not establish its invalidity, but it is an element as tending to determine, in a certain degree, the interest of the legislature in enacting the statute. It is held in Btnith v. Arnold, 33 Hun, 484, and in other cases, that an agent can make an affidavit, and it is suggested that possibly the agent, being in sole and absolute charge of the business between the parties, could make it with even greater propriety than the plaintiff himself, but unfortunately all the information in the universe as to those transactions would be but one step in the proof of knowledge for non constat, but that there may still arise a cause of action under subd. 2 of section 501. It follows, therefore, that satisfactory proof must be produced before the court, that principals in Cuba or Germany, for instance, who have perhaps never heard the names of the defrauding debtors, are ignorant of any counter-claims. But what proof of such want of knowl- edge will be "satisfactory?" The only possible proof of ignorance of a possible fact requires a mental diag- nosis, which only the person himself can give. What creates in his mind his opinion as to the non- existence of any such claim, can be known only to him, but the very mental operations which produce such a result, are processes of ratiocination and intellectual deductions that constitute the only veritable "facts" that a court could consider as to the truth of one's knowledge or ignorance, and these no agent can give. To say that the court is not satisfied with the statement 24 PRACTICE IN ATTACHMENT OF PEOPEETT. of an agent because it is on information, and then to say that it is satisfied when the agent says he has been informed and gives no other circumstances as establish- ing the alleged fact, is reasoning in a circle. The words "known to plaintiff" must be held to virtually constitute an independent sentence in syntax, and to be an issuable allegation in law, considered by itself and within its strict letter, or else a mere limiting clause and non-essential in its character so far as affects the question of jurisdiction. The interpretation admits of no compromise as being subject to varying facts or conditions, and the court is bound to accept one or the other of these propositions. It seems that upon any principle of grammatical or legal construction the expression "known to plaintiff" presumes no such substantial character as is claimed for it in Grihben v. ScJiillinger. Its participle form is clearly designed to modify the effect of an unqualified affirmation that no possible counter-claim existed, whether made by the plaintiff or his representative. In Bates v. Pimstein, 7 Civ. Pro. Rep. 300-303, the affiant alleged that ' ' he was the agent and one of the salesmen for the plaintiffs, that at certain specified dates the plaintiffs sold and delivered to the defendant, at his special instance, goods of a certain value, no part of which had been paid, and said sum was due to plaintiffs from defendant over and above all counter- claims and offsets." The court in that case say : "This affidavit fulfills the requirements of the statute." This case does not fall within the rule in Murray v. HanMn, 3 Civ. Pro. Rep. 342. In that case the objection was taken that the affidavit of the agent stated that the plaintiff was entitled to recover a sum over all counter- PROOF NECESSARY TO OBTAIN. 25 claims to the knowledge of deponent ; and the court held "if the allegation had stated to the knowledge of the plaintiff, it would have been sufficient." In Cribhen v. Scliillinger the affidavit was made by- one of the plaintiff's attorneys, who alleged that "a sum was due over all counter-claims known to the plaintiff or to the deponent." An attorney at law is not presumed to be familiar with the every-day occurrences and general routine of the personal business of his clients, but an agent or salesman usually is so. For the same reason it is not necessary for him to account for his making the affidavit in consequence of his employer's absence from the State. In Mallary v. Allen, 7 Civ. Pro. Rep. 287 ; Lamplcin v. Douglass, 27 Hun, 517; and Bellwiller v. Marks, 21 €iv. Pro. Rep. 162, it was held that where the ngent's affidavit alleged that he was familiar with the trans- actions and circumstances, and that plaintiff was absent, that the positive statement that the sum named was due over and above all counter-claims, was sufficient, and that the statement Avas not defective because it was not qualified by the words "known to him" or "known to plaintiff." But the contrary was held in Murray v. JHankins, 30 Hun, 37. In Smith v. Arnold, 33 id. 484, the court say : ' ' Upon an application for an attachment it must be shown by affidavit that the plaintiff is entitled to recover a sum named over and above all counter-claims known to him. It is not sufficient, where the complaint is verified and the affidavit made by an agent of the plaintiff, to state that the sum is due over and above all counter-claims known to deponent; it was not made to appear by the affidavit or the complaint that the property' had been sold, or that the business had 26 PEACTIOE IN ATTACHMENT OF PEOPEETT. been conducted or managed by the agent, and conse- quently the limits of the knowledge of the agent on this subject cannot be held to be co-extensive with that of the plaintiffs themselves." 1. Attorney of record — Presumption as to knowledge. Where an affidavit in respect to a transaction of his client is made by one who is simply an attorney of record in the action, the plain inference is that such attorney has not personal knowledge of the facts as to which he affirms, and unless the affiant gives the sources of his information and the ground of his belief, the affidavit will not sustain an attachment. The rule that the state- ments in affidavits will be presumed to have been made on personal knowledge, unless stated to have been made on information and belief, does not apply in such a case, where it appears by fair inference that the statements could not have been, and were not, made on such knowl- edge ; Crowns v. Vail, 51 Hun, 206. The fact that the affiant states that he has an itemized statement of plaintiff's account in his possession, and one of the defendants had admitted to him that said claim is due and unpaid, does not tend to establish the non-existence of a counter-claim known to the plaintiff ; Jordan v. RicTiardson, 7 Civ. Pro. Rep. 411. But it is different when the attorney has the instrument upon which the action is brought, and he is reasonably sub- stantiated by facts within his knowledge ; I^irst Nat. Bk. &c. V. Buswick CTiem. Wlcs., 17 Civ. Pro. Rep. 229 ; Mann v. Carter, 54 N. Y. State Rep. 212. III. — Reason why affidavit not made by plaintiff. As a general rule, where the affidavits for an attach- ment are made by agents, they should state the reason PBOOP NECESSAET TO OBTAIN. 27 why they are not made by the plaintiff ; McEhitee v. Aris et al., 50 N. Y. State Rep. 541; Mann v. Garter, 54 id. 212 ; 71 Hun, 72. IV. — Complaint as a£Sdavit. Subdivision 11 of section 3343 of the Code provides that the word "affidavit" includes a verified pleading in an action. When so used, however, it should comply with the requirements of other affidavits as to the manner of stating the facts. In Haebler v. Bernharth, 115 N. Y. 459, the allegations in the complaint were positively stated, and the court there held, that where the complaint alleged breach of warranty, as to kind and quality, and that plaintiff was damaged in a certain amount, and the affidavit showed that defendant was a non-resident, and that plaintiff was entitled to recover the sum named in the complaint, over and above all counter-claims known to the affiant, a sufficient case was made for an attachment. V. — Affidavits in other cases may be used when. In support: of plaintiff's affidavit for an attachment, he may use original affidavits which have been used in previous applications which have been made before the same judge for attachments against the same defendant in cases where other parties were the plaintiffs, if such affidavits were so used at a time near to the time when the previous applications were made ; Halloclt v. Yan Camp, 55 Hun. 1 ; Mojarrieta v. Saenz, 80 N. Y. 547. In Buell V. Van Camp et al., 119 N". Y. 160; 28 N. Y. State Rep. 950, the court say: "We must assume that the affida- vits of Jerome and Kelsey, while not made in this action, 28 PKACTICE IN ATTACHMENT OF PKOPEKTT. were legally made ia some judicial proceeding, and that they were before the judge granting the attachment. The statements contained in those affidavits, therefore, all have the sanction of a legal oath. We are, therefore, of the opinion that the affidavit of Buell, which gave as the source of his information and the ground of his belief the averments contained in those affidavits, was sufficient." VI. — Facts — How stated in. Where a party has desposed to facts, of which, upon the face of the papers, it appears that he has not neces- sarily personal knowledge, it is necessary for him to state the facts which tend to show that he has such personal knowledge of the facts as authorized him to make the affidavit ; Buell v. Van Camp, 119 IST. Y. 160. Where an affiant does not necessarily have knowledge of, and where he cannot be presumed to know the several facts attempted to be established by his affidavit, such affidavit affords no legal evidence of their existence. In order to entitle the court to act upon the affidavit, legal evidence of the facts to be established must be furnished by such affidavit ; Tim v. Smiih, 93 N. Y. 87. It is not enough that the affidavit should be made upon information and belief, the sources of the information and grounds of the belief must be stated, and if the information is acquired from another, his affidavit must be furnished as the legal evidence of the fact, or its non-production excused by showing the impossibility of obtaining the affidavit. The office of an affidavit is to furnish evidence, and unless the affidavit contains legal evidence conferring jurisdiction upon the court, and unless it appears upon the face of the affidavit PROOF NE0E8SAEY TO OBTAIN. 29 that the court has jurisdiction to act, if action is taken upon such affidavit, it should be set aside ; Mc VicJcer v. Campanini, 5 N. Y. Supp. 577 ; 24 N. Y. State Rep. 643. Where the statute, as a preliminary to juris- diction, requires facts to exist, they cannot be presumed; Oliver v. Walter Haywood Chair Mfg. Co., 32 id. 542 ; ION. Y. Supp. 771 ; and a mere recital of facts, without a direct statement of their existence, is insufficient ; the facts out of which the cause of action arose must be stated, and it must appear that a cause of action exists in favor of the plaintiff ; Mauton v. Foole, 4 Hun, 638 ; Richter v. Wise, 3 id. 398. The statement of facts in the affidavit must be as specific as the statement of the same facts in the complaint ; Lanier v. City BTc. of Houston, 9 Civ. Pro. Rep. 161 ; and it is not required that the affidavits should state, in the precise language of the statute, that the cause of action was for a "breach of contract, express or implied, other than a contract to marry," if equivalent words are used ; Edickv. Green, 38 Hun, 202. Thus an allegation that an account was stated between plaintiff and defendant, "and upon such statement a balance of $300 was found to be due from the defendant to the plaintiff," sufficiently charges a breach of contract to sustain an attachment ; Johnson v. Ferris, 14 Daly, 302. So an affidavit which alleges that "defendants are indebted to us (the plaintiffs) in a sum named for goods sold and delivered for which they have promised but failed to pay," sufficiently states a cause of action ; Kiefer v. Wester, 6 Hun, 526 ; so a statement in the disjunctive is proper where the facts stated show that the case falls under one or another of the two clauses of a statute; thus, in Arming v. Montemrde, 8 IN". Y. State 30 PBACTICE IN ATTACHMEMT OF PROPERTY. Eep. 812, an affidavit was held to be sufficient, whicli averred that the money had been disposed of by said defendant with intent to defraud these plaintiffs, or is concealed by him with like intent. VII. — Personal knoT^ledge — f^hat is. Where an affidavit is made by an agent who avers that he is the manager of plaintiff's business, and as such has general charge and supervision of all affairs con- nected therewith, the facts set forth in the affidavit are prima facie stated on personal knowledge ; Gribbon v. Ganss, 45 N. Y. State Rep. 825 ; IS N. Y. Supp. 608. So an affidavit made by an agent is sufficient where it appears therein that he had knowledge upon the subject, as well as information bearing upon the essential points contained in the affidavit ; Butterwortli v. Boutilier, 50 N. Y. State Rep. 828 ; Mann v. Carter, 54 id. 212 ; 71 Hun, 72. VIII. — Jurisdictional facts. Jurisdictional defects which deprive the judge of power to issue the attachment, consist of the omission to state in the affidavit a cause of action, and to specify any of the grounds prescribed by subd. 2 of section 636 of the Code ; Jacobs v. Hagan et al., 85 N. Y. 243. The entire omission of one of the allegations required to be sworn to is not a mere irregularity, which can be amended nunc pro tunc, but constitutes a defect of juris- diction which cannot be remedied by amendment; Zeregal v. Benoist, 33 How. Pr. 134. The omission to give the security required by the Code is also a juris- dictional defect ; Van Loon v. Lyons, 61 N. Y. 22. So is the omission to state that there was a breach of con- PKOOF NKCESSAEY TO OBTAIN. 31 tract, where the action is upon a contract, express or implied ; SmadhecTc v. Slsson, 66 How. Pr. 222 ; or that the plaintiff is entitled to recover the sum specified therein, over and above all counter-claims known to him ; Donnell v. Williams, 21 Hun, 216 ; Lyon v. Blakesly, 19 id. 299 ; Lee v. Co-operative L. & Ass., 19 N. Y. State Rep. 879 ; 2 N. Y. Supp. 864. In regard to the affidavit, in order to defeat the jurisdiction of the judge, it must appear that there is a total want of evidence upon some essential point. The creditor is not required to furnish conclusive evidence of the facts relied on, but it is sufficient if the proof has a legal tendency to make out in all its parts a case for the issuing of an attachment, and as the question is one of jurisdiction, the same rule applies, whether the question is raised in a direct or collateral proceeding. If the facts and circumstances disclosed fairly call upon the judge f jr an exercise of his judgment upon the weight of the evidence, even if he err, the proceedings will not be void for want of jurisdiction, no matter in what form the question is presented. A creditor is not bound to negative all suspicion of honesty, and everything is not assumed in favor of the honesty of the debtor ; ScJioonmaJcer v. Spencer, 54 N. Y. 366. Diligent creditors are entitled to the remedies provided by law for their protection against the'acts of fraudulent debtors ; and where the facts and circumstances presented to a court or judge are such that the intent to defraud appears to be a fair and logical sequence from the facts shown, the protection will be extended and maintained. A statement as to defendant's departure from the country, made upon information and belief, without a 32 PKACTICE IN ATTACHMENT OF PEOPERTT. statement as to the sources of information and the grounds for belief is insufficient ; Sickles v. Sullivan, 5 Hun, 571. But where the place of a person's residence is unknown, information received from others is com- petent for the purpose of showing such residence ; Van Wyck v. Hardy, 39 How. Pr. 392. IX. — Prima facie case necessary. A plaintiff who asks for an attachment must make out a clear prima facie case, and that so that the judge granting the warrant can act judicially upon legal proof. It is not meant merely that the judge shall be jDerson- ally satisfied, but he must be satisfied judicially, and has no right to be satisfied unless upon legal proof ; Wood- house V. Todd, 10 Week. Dig. 28. But absolute cer- tainty is not required or expected ; the evidence is suffi- cient if convincing. All that is required is that the in- formation furnished by the affidavit shall be such that a person of reasonable prudence would be willing to accept and act upon it. The mere averment, however, of a fact upon information and belief, without more, is not sufficient, bat the sources of the information and the grounds of the belief must be stated so that the judicial officer, to whom the affidavit is presented, may judge whether the information and belief have a proper basis to rest on, and if he is satisfied that they have, then the affidavit is sufficient to invoke his jurisdiction. The rule that requires an affidavit to state the sources of the information and the grounds of belief, implies that with such statement, the affidavit will be sufficient, although the affiant hns no personal knowledge of the principal facts necessary to l)e established ; Buell v. Van Camp, 28 N. Y. Stare Rep. 947 : 55 Hun, 1. PEOOP NECESSARY TO OBTAIN. 33 Thus, a party relying upon the establishment of a cause of action, or right to a remedy against another, based upon the alleged commission of a fraud, must show affirmatively the facts and circumstances neces- sarily tending to establish the probability of guilt in order to maintain his claim, and where the evidence is capable of an interpretation which makes it equally as consistent with the innocence of an accused party as of his guilt, the meaning must be ascribed to it which accords with his innocence rather than that which imputes to him a criminal intent ; Stow v. Stacy, 30 N. Y. State Kep. 808 ; 9 N. Y. Supp. 1. The law does not allow the debtor' s property to be seized by attachment merely because he may be about to dispose of it and leave the State. It requires that it shall further be made to appear that he intended to do so for the purpose of defrauding his creditors. The intent is an important element, and it is not shown by the mere circumstance that the debtor intends to sell his property and go away ; Hertz V. Stewart, 3 Week. Dig. 332. It seems that where the application! is made on the ground that the person against whom the attachment is demanded, for the purpose of procuring credit, or the extension of credit, has made a false statement in writing, under his own hand or signature, or under the hand or signature of a duly authorized agent, made with his knowledge and acquiescence, as to his financial responsibility or standing (Chaper 736, Laws 1894), the party asking for the attachment must show facts and circumstances tending to show that the statement was false when made. X. — lUustrations. Stating that there is a large sum of money due from 3 34 PRACTICE IN ATTACHMENT OF PKOPERTY. defendant to plaintiff, but that deponent is unable to state the amount, is insufficient ; Ackroyd v. Ackroyd, 20 How. Pr. 93 ; but an averment in an affidavit by an attorney for services, that the services were performed between two definite periods of time, makes a positive averment and shows the existence of the statutory conditions ; Wenzell v. Morrisey, 15 Civ. Pro. Rep. 311 ; 115 N. Y. 665. Proof that large amounts of goods were purchased shortly before a general assignment and not paid for, and that judgments were confessed to preferred creditors and preferences made to the assignor's wife and other near relatives, exceeding in amount the value of the assets transfered by assign- ment, indicate fraudulent intent in making the assign- ment ; Hamberger v. Moeller, 4. N. Y. State Rep. 447. PROOF NECESSARY TO OBTAIN. 35 CHAPTER III. PROOF NECESSARY TO OBTAIN ATTACHMENT. I. — Statement of cause of action in affidavit. 1. In general. 2. Illustrations. II. — Counter-claim. 3. Affidavit as to. III. — Conclusions, — statement of. IV. — Satisfaction of judge — meaning of. V. — Information and belief. 4. Statements upon, when sufficient and when not. 5. Sources of information. 5i. Telephone communication. 6. Belief — statement of, necessary when. 7. Reason for not producing affidavit of informant. 8. Filing of affidavits. I. — Statement of cause of action in affidavit. 1. In general. It is necessary, in an affidavit, to obtain an attachment, that the plaintiff should set out in such affidavit a good cause of action, unless a com- plaint accompanying the summons is made a part thereof, in which complaint a good cause of action is set forth ; Wessels v. Boettcher, 69 Hun, 306 ; 53 N. Y. St. Rep. 313; 25 N. Y. Supp. 1121; Pride v. Indian- apolis D. & W. M. Co., 21 N. Y. St. Rep. 261 ; 4 N. Y. Supp. 15. A bare statement of the amount of the claim is not enough. The facts must be set forth showing the right to recover. It is not the intent of the statute to allow the property of the defendant to be attached upon a claim of nominal damages only ; Waliz v. Nichols, 32 Hun, 276. 36 PRACTICE IN ATTACHMENT OF PKOPERTY. In SmitJi V. Davis, 29 Hun, 306, the court say : "To authorize an attachment, the provisions of the Code require a cause of action to be shown by affidavit." Such statement may be made by the assignee of the demand, where, by reason of his employment and sur- roundings, he obtained such knowledge concerning the demand' of the assignor as enabled him to make the statement concerning it, of his own knowledge, and not merely on information ; Hill v. KnicJcerhoclcer El. L. & P. Co., 38 N. Y. State Rep. 417; 14 N. Y. Supp. 617. But it must be shown that plaintiff is entitled to recover a sum stated over and above all counter-claims ; Manu- facturers Nat. Bank v. Hall, 60 Hun, 466. An affidavit alleging that plaintiff's claims rests upon the sale by defendant to plaintiff of certain hides to be shipped from China to New York city, at prices and weights men- tioned, to be paid for while on the high seas and before their examination by plaintiffs, and that upon their arrival, they weighed and were worth much less than provided for by the contract, states facts authorizing an attachment ; GunningJiam v. Von Pustan, 31 N". Y. St. Rep. 255 ; 9 N. Y. Supp. 255; Clafiin v. Silberg, 29 N. Y. St. Rep. 362 ; 8 N. Y. Supp. 557 ; McCulloTi v. Aehy, 31 N. Y. St. Rep. 125; 9 IST. Y. Supp. 361; Kahlev. Muller, 57 Hun, 144; Kokomo Straio Board Co. v. Inman, 53 Hun, 39 ; Head v. WoUner, 63 Hun, 615 ; Belden v. Wilcox, 47 Hun, 331. An affidavit alleging that plaintiff is entitled to recover a sum named as damages for breach of con- tract ; that during the last two years plaintiff has advanced defendant money, and had an account with him as employee ; that the aforesaid sum has been paid to him over and above commissions on sales ; and that defendant is indebted to plaintiff on said advances to said amount, does not alone furnish any evidence of a PROOF NEOESSART TO OBTAIN. 37 cause of action, but is only an allegation of statement of the legal conclusion that a cause of action exists ; Cat- taraugus Cutlery Go. v. Case, 30 N. Y. St. Rep. 961 ; 9 N. Y. Supp. 862; Avery v. Sander, 77 Tex. 207. Where a complaint for an attachment alleges a breach of warranty as to the kind and quality of goods sold, and damages in a sum stated, an affidavit averring that the plaintiffs are entitled to recover that sum over and above all counter-claims is sufficient ; Haehler v. Bern- TiartTi, 115 N. Y. 459 ; 26 N. Y. State Rep. 230. So an affidavit stating that plaintiffs, who are non- residents of the State, sold goods to defendants; that affiant manages plaintiffs' business within the State ; that he has been informed by them that they have had no dealings with the defendants, except through affiant, as agent, and that plaintiffs are entitled to recover the sum sued for over and above all counter-claims known to plaintiffs or the affiant, and that one of the defendants is a non-resident, is sufficient : Hamilton v. Steele, 32 id. 150 ; 10 N. Y. Supp. 177. And an affidavit, where the indebtedness arose out of a credit induced by fraudulent representations, need not contain a statement as to the amount due over and above all counter-claims ; CJiam- pion Card & P Co. v. Searing, 14 N. Y. State Rep. 258. A creditor applying for an attachment need not swear as to counter-claims existing against an assignor of the claim ; Crowns v. Vail, 51 Hun, 204 ; and a cause of action upon which a suit is pending against the assignor of another cause of action is not a counter- claim against tlie assignee, which will constitute a cause for vacating an attachment obtained by him, although greater than his claim ; Bolheer v. Stout, 42 IST. Y. State Rep. 693 ; 17 N. Y. Supp. 186. Where, in an action on 38 PRACTICE IN ATTACHMEKT OF PROPERTY. nine notes, the complaint contained tlie allegation that plaintiff was induced to discount the notes by defend- ant's fraudulent representatations, but was on the express contract, no damages for the fraud being asked, a statement in the affidavit that only a part of the notes were due, was fatal to the attachment; Johnson v. Buckel, 65 Hun, 601. Where the affidavit shows a con- tract for the sale and delivery of goods, refused by the purchaser, when duly tendered by the seller, the sum alleged as the damage sustained must affirmatively appear to be the difference between the contract and the market price of the property at the time of delivery ; Golden Oate Con. Co. v. JacJison, 13 Abb. N. C. 476. 2. Illustrations of. In Pomeroy v. liiclcets, 27 Hiin, 242, the statement was that "the defendants owe my firm $1,808.17 over and above all counter-claims known to plaintiff and to me, for goods, wares and merchan- dise sold and delivered by my firm to defendants, who are copartners and were such during all the times herein iiientioned between June 8, 1880, and June 30, 1880. No part has been paid." This was held not to be a statement that the plaintiffs in fact had sold goods, wares and merchandise, to the defendants, of the value of the sum mentioned, or for which they agreed to pay that sum. In McCulloh V. Aeby & Co., 31 N. Y. State Rep. 125, 9 N. Y. Supp. 361, the affidavit made by the receiver of a corporation, consisted of general statements founded on information and belief that a cause of action existed against the defendant upon an agreement for the manu- facture of goods. In that case, the court say : " What should have been done was to have presented a statement of the facts, from which it could be seen by the perusal of PKOOF NECESSARY TO OBTAIN. 39 the affidavit that a cause of action did exist in favor of the plaintiff, as receiver of the company for which he had been appointed." In Kahle v. Muller, 57 Hun, 144, the affidavit vras made by an assignee of the alleged claim, and there vpas neither an allegation that he knew personally of the indebtedness, nor statements as to the sources of his information in regard to it, except as to the assignment. In that case, the court say: "The existence of the claim, itself the crucial point, is not sustained by proof which is accepted by the courts as sufficient to warrant the issuing of the process of attachment." In the Manufacturers Nat. BTc. v. Hall., 60 Hun, 466, one of the affidavits was made by the jjresident of the plaintiff, and alleged the sale of goods by the plaintiff to the defendants, which was to be paid for in cash, that no part thereof had been paid, and that the plaintiff was entitled to recover the amount thereof over and above all counter-claims known to deponent or to the plaintiff. In that case, the court say : ' ' The affiant nowhere states that he had any knowledge of the finan- cial affairs of the corporation, or that he had any con- nection with its active business, or that he ever saw its books or accounts, or that he had any such relation to the business of the corporation as would justify the inference of knowledge as to its pecuniary affairs." In the case of a trading corporation, with nothing to show what the duties of a president are, or that he has any knowledge whatever of the fiscal affairs of the corpo- ration or of its business transactions, the court cannot assume, simply from the fact of his being the president, that he has any personal knowledge in respect to the transaction whereof he is speaking. 40 PRACTICE IN ATTACHMENT OP PEOPEETY. II. — Counter-claim. 3. Affidavit as to. If the action is to recover damages for a breach of a contract, the aflBidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims known to him ; Code, § 636. A cause of action upon which a suit is pending against the assignor of another cause of action is not a counter- claim against the assignee which will constitute a cause for vacating an attachment obtained by him, although greater than his claim ; Dolbeer v. Stout, 42 N. Y. State Rep. 693 ; 17 N. Y. Supp. 186 ; and a creditor applying for an attachment need not swear as to counter-claims existing against an assignor of the claim ; Crowns v. Vail, 21 N. Y. St. Rep. 208; 51 Hun, 204; 4 N. Y. Supp. 324. At least an affidavit by an assignee of a cause of action is sufficient as to counter-claims when it states in the language of the statute that the sum claimed is due over and above all counter-claims known to him, without stating that there are no counter-claims known to his assignor or the sources of his knowledge ; Dolbeer v. Stout, 42 ]Sr. Y. State Rep. 214 ; 17 N. Y. Supp. 186. So an affiidavit where the indebtedness arose out of a credit induced by fraudulent representations need not contain a statement as to the amount due over and above all counter-claims ; Champion Card & P Co. v. Searing, 14 N. Y. State Rep. 258. But an affidavit in an action for damages for a breach of warranty, must state that a cause of action exists in plaintiff's favor over and above all counter-claims known to him ; Norfolk & N. B. Hosiery Co. v. Arnold, 46 N. Y. State Rep. 491 ; 18 N. Y. Supp. 910. Where the action is founded on distinct claims, the PROOF NECESSAEY TO OBTAIN. 41 affidavit need not allege that as to each item there is no counter-claim, but only that plaintiff is entitled to recover a sum stated over and above all counter-claims known to him ; United States Net & T. Go. v. Alexander, 42 KT. Y. State Rep. 668 ; 18 N. Y. Supp. 147. An affidavit made by the president of the plaintiff's bank, stating that there are no counter-claims against the cause of action alleged, is sufficient, as he will be presumed to have personal knowledge of all claims against it at ttie time the action was commenced ; Essex County Nat. BTi. v. Johnson, 40 N. Y. State Rep. 919 ; 16 JST. Y. State Supp. 71. So is the statement of the treasurer of a corporation who is acquainted with the facts, and who gives the source of information of all statements made on informa- tion and belief ; Olohe Yarn Mills v. Bilhrougli, 46 N. Y. State Rep. 273; 28 Abb. K C; 19 N. Y. Supp. 176. An affidavit made by plaintiff's agent, stating that he is familiar with the transactions in controversy and the circumstances concerning them, and also averring that plaintiffs are entitled to recover the sum sued for over and above all offsets and counter-claims, is sufficient without adding the words "Known to them;" Billwiller v. Maries, 16 N. Y. Supp. 541 ; 21 Civ. Proc. 162. While it seems that if the statement is full and explicit, the agent need not state the reason why it is not made by the principal, as is required in verifi- cations of pleadings ; Sheldon v. Ktoelt, 110 N. C. 408. In Grihion v. Oanse, 45 N. Y. State Rep. 825 ; 18 N. Y. Supp. 608, it was held that an affidavit made by an agent, attorney, manager, &c., of the plaintiff without excuse or reason why it is not made by 42 PRACTICE IN ATTACHMENT OF PROPERTY. plaintiff himself, is insufficient as to the statement that the plaintiff is entitled to recover the sum stated over and above all counter-claims known to him, since it is not the best evidence as to plaintiflf's knowledge of counter-claims. An affidavit which states that "giving to, defendant all proper credits, the said sum is justly due and owing and has not been paid," is insufficient to show the non-existence of counter-claims, as a coanter-claim may arise out of other or independent contracts ; Hart v. Bernau, 51 N. Y. St. Rep. 828; 22 N. Y. Supp. 296. The grounds are not strengthened in such case by an affidavit of plaintiff's attorney, stating that there are no counter-claims to the knowledge of plaintiff or deponent, where it appears that his only knowledge on the subject is derived from the plaintiff's affidavit. The words "known to him" in the above section are designed to modify the effect of an unqualified affirmation that no possible counter-claim existed whether the affidavit is made by the plaintiff or his representative, and need not be inserted in the affidavit in order to give the court jurisdiction; Rurppert v. Haug, 1 Giv. Pro. Rep. 411. Tlie expression was doubtless intended to be in relief of the conscience of the affiant, as possibly there might exist some counter-claims of which he was ignorant, but if he is willing to take the chances of such a sweep- ing affirmation, it does not rest with the defendant to complain, for all and more has been sworn to by him than is required by the statute ; LamTcin v. Douglass, 27 Hun, 518. In LampMiiY. Douglass, 63 How. Pr. 47, it is held that it is not sufficient to allege that a sum is due "over and above all discounts and set ofifs." The word "dis- PROOF NECESSARY TO OBTAIN. 43 counts" simply conveys the thought of something to be discounted or taken from the claim itself by reason of any agreement, express or implied, between the parties; and the words "set off " have acquired a special meaning as defined by our old statutes. The word counter-claims, used in the Code, is much broader and includes more than "discounts and set offs." The contrary was, however, held in Bates v. Pimstein, 7 Civ. Pro. Rep. 300. Where the affidavit is made by an agent or attorney of the plaintiff, it must give some excuse for the failure to furnish the affidavit of the plaintiff, or some sources of the affiant's infor- mation ; Belden v. Wilcox, 47 Hun, 331. When the affidavit is made by an agent, the statement in respect to the knowledge of the existence or non- existence of counter-claims must necessarily rest on information, unless he has such relation to the business of his principal as to justify the inference of his knowl- edge, and such is the presumption until something appears to qualify him to make his statement proof of, or upon, the fact for the consideration of the officer. This may come from his relation to, and knowledge of, the business of his principal, so as to enable him to depose positively, or he may state it on information and belief, derived from the requisite sources and means of information, but these circumstances, to support his deposition, must be presented to justify the granting of the process ; Bulil v. Ball, 41 Hun, 61. In the Marine Nat. Bk. of Neio TorTc v. Ward, 35 Hun, 395, the affidavit upon which the attachment was issued was made by the vice-president and a director of the plaint- iff. It stated that the i)laintiff is, as deponent is informed and verily believes, entitled to recover of the 44 PEACTICE IN- ATTACHMENT OF PROPERTY. defendants * * * the said sum of $7,000 over and above all counter-claims known to the plaintiff or to deponent, and it was held that ft was fatally defective in failing to show that the plaintiff was entitled to recover the sum stated therein, over and above all coun- ter-claims known to it, as required by section 636 of the Code. III. — Conclusions — statement of. The mere allegation in an affidavit, of the conclusion of fact of which proof is required by statute to be made to the satisfaction of the judge, is insufficient ; Dintruff V. Tuthill, 62 Hun, 591; and a mere recital of facts with- out a direct statement of their existence is insufficient ; Manton v. Pool, 4 Hun, 638. Thus, an affidavit made by the cashier of plaintiff's bank, alleging that plaintiff has a just cause of action against defendant, by reason of the latter' s fraud in procuring moneys on forged notes made and transferred by him to plaintiff, whereby plaintiff parted with moneys and was defrauded in a stated amount, states only simple conclusions of law, and is insufficient to support an attachment ; Hodgman v. BarJcer, 128 N. T. 601; 21 Civ. Pro. 121. So an affidavit for an attachment on the ground that defendant is about to transfer its property, in contempation of insolvency by means of judgments against it, must aver that such judgments were recovered by the active procurement of defendant or some officer of it ; DicTcson v. Mayer, 35 N. Y. State Rep. 616 ; 12 N. Y. Supp. 359. So an affidavit alleging that defendants are about to convert property into money and place it beyond reach of credi- tors, that they have property and rights in action, which PKOOF NECESSABY TO OBTAIN. 45 they conceal and have removed and disposed of, and are about to remove and dispose of property with intent to defraud creditors, is insufficient ; Baker Wire Co. v. Kingman (Kan.), 24 Pac. 476. So an attachment can- not be obtained upon an affivavit by one of the plaintiffs, that the defendant assigned and secreted his property with intent to defraud his creidtors, without disclosing any facts ; Glajiing v. Silberg, 29 IST. Y. State Rep. 362 ; 8 IS". Y. Supp. 557 ; Mechanics & T. BTc. v. Loucheim, 29 ]Sr. Y. State Rep. 188 ; 55 Hun, 396 ; 8 N. Y. Supp. 520 ; and an affidavit stating that defendant has transferred his farm to his wife, and gone to one of the western States ; that deponent has been informed by the defend- ant that he was about to leave for another State, and that defendant stated to deponent that he intended to eave this section of the country, the deponent also fur- nishing a copy of a letter showing that the defendant cannot pay his debts — is not sufficient to show a fraud- ulent intent ; Taylor v. Hull, 56 Hun, 90 ; 29 N. Y. State Rep. 635 ; 8 N. Y. Supp. 728. IV. — Satisfaction of judge — meaning of. Section 636 of the Code provides that the plaintiff must show by affidavit, to the satisfaction of the judge granting a warrant of attachment, the facts prescribed by said section. In order to satisfy the requirements of that section, the proof adduced must be such as judicially to satisfy him of the requisite facts, and the judge has no right to be satisfied unless upon legal proof of facts and circum- stances ; Smith V. Luce, 14 Wend. 237. The judge must require satisfactory proof and not mere surmise nor ground of suspicion of acts on the part of the debtor. 46 PEAOTIOE IN ATTACHMENT OF PROPERTY. Tims, when one swears that another has departed the State with intent to defraud creditors, it is not proof satisfactory unless the ground be disclosed by which the witness assumes to speak of the party's intent to defraud. A man is sometimes allowed to prove his own intent, that being within his own breast, but to make proof of another's intent by direct testimony that he entertained it, is going beyond the limit of human knowledge. But in this class of cases, where facts are preliminarily to be proved as the basis of the right to employ the process, if the proof has a legal tendency to make out the case required by the statute, although it be so light and inconclusive that, upon a direct proceed- ing to review it, the magistrate's action would be reversed, yet in a collateral action, the process will be deemed valid. It will be so deemed because the justice having proof presented to him, and being required by law to determine upon the weight of the proof, has acted judicially in making his determination. His •decision may be erroneous, but it is not void ; Slcinnion V. Kelly, 18 N. Y. 355. In Buell V. Van Gamp, 119 K Y. 160, the Court of Appeals say: "In collateral proceedings or mat- ters of practice where orders in the progress of actions are applied for, judges frequently act upon facts stated upon information and belief. In such proceed- ings absolute certainty is not expected ; the evidence is sufficient, if convincing and satisfactory. All tLat is required is, that the information furnished by the affidavit shall be such that a person of reasonable prudence would be willing to accept and act upon it." An attachment should not issue on the ground that the defendant has concealed or is about to conceal his PROOF NECESSARY TO OBTAIN. 47 property with intent to defraud his creditors, unless it clearly appears that but one construction is to be placed upon his acts — a construction unfavorable to honesty ; Andrews v. Schwartz, 55 How. Pr. 190. Where the action is for wrongful conversion of the plaintiff's property, it must be shown also that the defendant is either not a resident of the State, or that he has de- parted from it to defraud his creditors, or to avoid the service of summons, or conceals himself within it with that intent, or that he has removed or is about to remove property from the State, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, property with intent to defraud his creditors. His lia- bility for the conversion of the property is not suffi- cient ; ■ German BanJc of London v. Dash, 60 How. Pr. 124. V. — Information and belief. 4. Statements upon — When sufficient, and when not. The rule seems to be that the material averments neces- sary to entitle a plaintiff to a warrant of attachment, must be stated positively, unless the sources of informa- tion and grounds of belief are stated; Hintner v. Boutilier, 67 Hun, 203 ; 22 N. Y. Supp. 603 ; 51 N. Y. State Rep. 518. An affidavit which states the statu- tory grounds for attachment only upon belief, is insufficient, although the reasons for such belief are given ; Nelson v. Field, 89 Tenn. 466 ; 14 S. W. 1079 ; Bump V. Daheny, 36 N. Y. State Rep. 114 ; 12 N. Y. Supp. 901. So an affidavit for an attachment is insufficient where the grounds rest merely upon hearsay, information and belief ; Re Stonehridge, 25 N. Y. State Rep. 425 ; 33 48 PRACTICE IN ATTACHMENT OF PROPERTY. Hun, 545; 6 JST. Y. Supp. 311; and where, from the situation of the parties, the presumption is that the affiant has no personal knowledge of the facts alleged in his affidavit, the affiant must set forth the facts and cir- cumstances showing why he has personal knowledge ; Mechanic & T. Bk. v. Loucheim, 29 N. Y. State Rep. 188 ; 55 Hun, 396 ; 8 N". Y. Supp. 520. Thus an affidavit of an attorney, although stating in form the amount of the plaintiff's claim, is insufficient ; Strussguth v. Reigelman, 75 Wis. 212. But statements resting npon information and belief must be taken into consideration in connection with other matters ; Leiser V. Rosman, 32 N. Y. State Rep. 739 ; 10 N. Y. Supp. 415. The positive affidavit of the assignee of a demand may be accepted, where, by reason of his employment and surroundings, he obtained such knowledge concern- ing the demand of the assignor as enabled him to make the statement concerning it of his own knowledge, and not merely on information ; Hill v. Knickerbocker El. L. & P. Co., 38 id. 417 ; 14 N. Y. Supp. 517. The affidavit of the president of a corporation for goods sold and delivered by it, must show his relation to the corporation at the time the goods were sold, in order to raise the presumption that such sale was within his personal knowledge ; Manvfacturers Nat. Bank v. Hall, 60 Hun, 466. The positive statement of such presi- dent to the sale and delivery of goods by the corporation to defendant prima facie, imports personal knowledge of the transaction on his part, and is sufficient in that respect. The affidavit of plaintiff's salesman, made partly on knowledge and partly on information and belief, of facts which would justify an attachment if the affidavit were made by plaintiff, is sufficient to uphold PROOF NECESSARY TO OBTAIN. 49 the attachment on a motion to vacate the same where no counter affidavits are offered ; Leiser v. Mosman, 32 N. Y. State Rep. 739 ; 10 N. Y. Supp. 415. But an affidavit made by a cashier of plaintiff's bank, alleging that defendant fraudulently procured moneys on forged indorsements of notes made and transferred by him to the bank, is fatally defective in not showing that the affiant could have had any personal knowledge as to whether the notes were forged or not ; Hodgman v. BarTcer, 128 N. Y. 601 ; 38 N. Y. State Rep. 921. So an affidavit made by an attorney upon information received from telegrams from another attorney, who himself has no personal knowledge, is insufficient, as such attorney could not know that the plaintiff is entitled to recover a sum stated over and above all counter-claims ; Manufacturers Nat. Bh. v. Hall, 39 N. Y. State Rep. 463 ; 60 Hun, 466 ; 15 N. Y. Supp. 208. An affidavit of the plaintiff, upon information and belief, that the defendants are non-residents and reside at a place named ; that the information of plaintiff is derived from affidavits on file in an action of partition to which the defendants were parties, and affidavit of plaintiff's attorney that he has corresponded with several of the defendants, and is thereby satisfied that they are non-residents ; that he has placed the summons in the hands of the sheriff of his county for service, and has made due and diligent effort to secure service upon defendant in this State ; and that such sheriff was unable to make such service as appears by the certifi- cate of the sheriff annexed thereto, are sufficient ; Adams v. Hillard, 87 N. Y. State Rep. 314 ; 14 N. Y. Supp. 120. So an affidavit for an attachment is sufficient, if the 50 PEACTICE IN ATTACHMENT OF PROPERTY. information furnished is of sucli a cliaracter that a person of reasonable prudence would be willing to accept and act upon it ; Buell v. Yan Camp, 119 N. Y. 160 ; 28 N. Y. State Rep. 947. So, if the sources of information are given and inability to procure the affidavits of the informants is proved. Thus, affidavits stating that the defendant had gone away without the knowledge of his neighbors ; that his wife received a letter from him, and stating on informa- tion and belief that she told her sister that he had gone to Canada, are sufficient so far as they go. But it is not a sufficient excuse to state that it would be incon- venient to procure the affidavits of persons having personal knowledge ; Brewster v. Yan Gamp, 55 Hun, 603 ; 28 N. Y. State Rep. 591 ; 8 N. Y. Supp. 588. Nor is it sufficient to state that the plaintiff's knowl- edge and belief are derived from books, papers and accounts of the parties, and from knowledge of the affairs of the company acquired while he was in its employ as bookkeeper ; McGulloli v. Aeby, 31 N. Y. State Rep. 125; 9 N. Y. Supp. 361; 56 Hun, 461. So averments on information and belief as to a war- ranty of which a breach is claimed, furnish no basis for an attachment ; Norfolk & N. B. Hosiery Co. v. Arnold, 64 Hun, 635 ; 46 IST. Y. State Rep. 491 ; 18 N. Y. Sui)p. 910. So a positive statement of indebted- ness upon contract is insufficient when it states that such allegation is made upon information received from letters written to deponent by the plaintiff, and from a sworn statement of account in possession of deponent, and that deponent verily believes said information to be true; Tratdmann v. SchioaJm, 80 Wis. 275; 50 N. W. 99. PROOF NECESSAEY TO OBTAIN. 51 In Buell V. Van Camp, 119 N. Y. 160 ; 28 N. Y. State Rep. 947, the court say : "All that is required is, that the information furnished by the affidavit shall be such that a person of reasonable prudence would be willing to accept and act upon it. The mere averment, how- ever, of a fact upon information and belief, without more, is not sufficient, but the sources of information and the grounds of the belief must be stated ; so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest on." The judge should insist upon a full and clear state- ment of facts, bringing the case immediately within the statutory conditions, before granting the warrant. The issuing of process by which the property of a defendant may be impounded before judgment, should be attended with all reasonable safeguards to prevent imposition or oppression. It is a severe remedy and ought only to be employed in the cases and under the circumstances provided for by the statute. It is frequently difficult for creditors to bring their proofs up to the requisite standard, but that is their misfortune, and does * not justify the courts in legislating upon the subject and in departing from the standard established by the statute. 5. Sources of information. Where facts are stated on information, the affidavit should show its sources that the affiant believes such information, and that the informants are absent or that their depositions cannot be obtained; Scott v. Beauclet, 62 Hun, 50 ; 41 N. Y. State Rep. 675 ; 16 N. Y. Supp. 409. An affidavit alleging that defendant has bought $10,000 worth of property within three months, which he imme- diately hypothicated out of the regular course of business 52 PRACTICE IN ATTACHMENT OF PROPERTY. for 75 per cent, of its value, without paying anything to creditors, is not sulHcient when the affiant does not dis- close the source of information, or state that he was pres- ent at any of the transactions ; Thomas v. Dickinson, 58 Hun, 608 ; 33 JST. Y. St. Rep. 786 ; 11 N. Y. Supp. 436 ; so in an action for injury to personal property by fraud in obtaining money upon certain notes, allegations that the notes were forged and fraudulent, and that plaintiff was thereby defrauded out of the sum for which the attachment was issued, not appearing to be made upon the personal knowledge of the affiant, and unsupported by evidence, are insufficient to sustain the attachment, even if the same allegations are contained in the com- plaint ; National Broad. BTc. v. Barker, 127 N. Y. 549. But where the affidavit alleges that defendant resided in "M" and left there suddenly and clandestinely, with intent to defraud his creditors ; that he sent to "M" and employed help to assist in getting his goods to a railroad station to have them shipped to a place named without the State, and that such help were then engaged in packing up the goods, is sufficient to sustain an attachment ; Patterson v. Delany, 59 Hun, 626 ; 37 N. Y. St. Rep. 585 ; 14 N. Y. Supp. 100. So an affidavit averring defendant's non-residence on information alleged to have been derived from defendant' s bookkeeper, need not state that the informant's deposition cannot be obtained, since that fact may be reasonably inferred from the business relation which the informant bears to the defendant ; Scott v. Beaudet, 62 Hun, 50 ; 41 N. Y. State Rep. 675 ; 16 N. Y. Supp. 409. Copies of affidavits and papers which have been used in other cases may be read in support of the application for attachment, as indicating the source from which the PROOF NECESSARY TO OBTAIN. 53 plaintiff derived his information, when it appears that the original affidavit or paper cannot be produced, and the affiant makes the further statement that he believes the statements contained in the affidavits or papers of which he presents copies, are true ; Bennett v. Edwards, 27 Hun, 353 ; Brewster v. Van Camp, 55 id. 608 ; 28 N. Y. State Rep. 593 ; 8 N. Y. Supp. 588. 5 1-2. Telephone communications. The information upon which an attachment is based may be conveyed through the medium of the telephone, if it appears that the affiant knew, in some satisfactory way, that it was the plaintiff who was speaking with him. In Murphy v. Jack, 76 Hun, 356, the attachment was applied for upon information obtained by the plaint- iff's attorney, by a communication made through the telephone upon the morning of the day upon which the complaint and affidavit was sworn to, and his belief was based upon it, in making his statements concerning the facts constituting the cause of action, the absence of counter-claims, and the non-residence of the defendants. In that case the court say: "There would be no objection to the information having been conveyed through the medium of the telephone, if it had been made to appear that the affiant was acquainted with the plaintiff and had recognized his voice, or if it had ap- peared in some satisfactory way that he knew it was the plaintiff who was speaking with him. The perfection to which the invention of the telephone has been brought has immensely facilitated the intercommunication of individuals at distant points, and inasmuch as the voice of the speaker is heard, in most, if not in all cases, the identification of the speaker should be possible. The very facility of communication and of identification 54 PRACTICE IN ATTACHMENT OF PKOPEKTT. permits, and therefore imposes a duty upon the party who invokes judicial action upon the strength of in- formation so received to state his knowledge of his grounds for believing that it actually came from the party required to furnish it." It has been held that an attachment may be based upon facts reported to the affiant by means of a cablegram ; BeicTienbach v. Speth- man, 5 Mon. L. Bull. 42. In the case last cited an attachment was granted and sustained on information cabled from Europe to the affiant in New York. The case of MurpTiy v. Jack et al., 76 Hun, 356, at General Term, was reversed in 142 N. Y. 458, on the ground that the affiant failed to state that he knew the plaintiffs voice when he communicated to him over the telephone. It has been held that conversations, declarations, etc., received from a phonograph were competent evidence when the affiant swears that he recognized the defend- ant's voice. 6. Belief — statement of, necessary when. Where, in an affidavit, any statement is made upon information, the affiant must state that he believes such information to be true ; Brewster v. Van Camp, 55 Hun, 603 ; 8 N. Y. Supp. 598 ; 28 State Rep. 593. 7. Reason for not producing affidavit of informant. The rule is, that where facts are stated on information, the affidavit should show its sources, that the affiant believes such information, and that the informants are absent, or that their depositions cannot be obtained ; Scott V. Beaudet, 62 Hun, 50 ; 41 N. Y. State Rep. 675 ; 16 N. Y. Supp. 409 ; and mere inconvenience is not a sufficient reason for not producing the affidavits of per- sons who have personal knowledge of the facts relied upon to establish a case for the granting of an attach- PEOOP NECESSARY TO OBTAIN. 55 ment ; Brewster v. Yan Camp, 8 N. Y. Supp. 688 ; 28 N. Y. State Rep. 591. But in many cases the latter fact may reasonably be inferred from tlie relation which the informant bears to the defendant ; thus, when the affiant states that his informant is the father, brother, or employee of the defendant, he states a fact which of itself furnishes a reasonable ground for not applying for an affidavit. The law should not require so dangerous a formality as an application which might readily result in frustra- ing the plaintiff. A near relative of the defendant, or one in his employ, could scarcely be expected to make a hostile affidavit against him ; that, too, for the purpose of tying up the defendant's property. The request for such an affidavit would, in the nature of things, be com- municated to the defendant, and give him time to conceal or dispose of his property before it could be reached by attachment. In such cases, however, the safer practice is to aver, that the reason the informant's affidavit is not produced is that he is a relative or employee of the defendant, and affiant believed that he would refuse to make such an affidavit, and affiant also believed that the mere request therefor would be communicated to the defend- ant, and thus defeat the attachment ; Natl. BTc. of Com- merce V. Whiteman P. & P. Co., 67 Hun, 648 ; 50 N. Y. State Rep. 493 ; 21 N. Y. Supp. 748. Where the affidavit upon information and belief upon which an attachment is founded, states that the person having positive knowledge refuses to make affidavit, it is sufficient ; it is not necessary to take proceedings under section 835 of the Code to obtain the deposition of the informant ; Bennett v. Edwards, 15 Week. Dig. 250. 56 PKACTICE IN ATTACHMENT OF PROPERTY. 8. Filing affldaYits. Section 639 of the Code provides that the plaintiff must, within ten days after the grant- ing of the warrant, cause the affidavits upon which it was granted to be filed in the office of the clerk of the court. But the neglect to file such affidavits as required does not affect the validity of the warrant or the pro- ceedings under it ; Brash v. WielarsJcy, 36 How. Pr. 253 ; Woodward v. Stearns, 10 Abb. JST. S. 395 ; Lewis V Douglass, 53 Hun, 587. AGAINST WHOM REMEDY ALLOWED. 57 CHAPTER IV. AGAINST WHOM REMEDY ALLOWED. I.— What must be shown under Code, subdivision 2 of § 636. 1. Assigned and disposed of property with intent to defraud creditors. 2. What is not such disposition. 3. Illustrations. 4. Fraudulent transfer of property in another State. 5. About to dispose of property with intent to defraud creditors. 6. Concealment to avoid the service of summons. 7. Absconding or concealed debtor. 8. Non-residence. 9. Written statement as to financial standing. 10. Voluntary conveyance — not sufficient when. I. — What must be shovrn under Code, subd. 2 of sec. 686. 1. Assigned and disposed of property with intent to defraud creditors. Where the grounds for an attach- ment are either that the defendant is a non-resident or a foreign corporation, it is not a difficult matter to make a prima facie case. But the Code, § 636, requires, be- fore procuring a warrant upon the grounds prescribed by the last clause of subd. 2, that it should be shown that the defendant has assigned, disposed of, secreted, or is about to assign, dispose of, or secrete property with intent to defraud creditors. Where, therefore, an at- tachment is sought upon the theory of a fraudulent dis- position of all of a debtor's property, the affidavits should be directed to showing that the debtor has done either one or the other ; because the doing of both at the same time is necessarily inconsistent. In other words, if 58 PRACTICE IN ATTACHMENT OF PROPERTY. a debtor has assigned, or disposed of his property, it eliminates the idea that he is about to assign and dispose of it. It is true that the warrant could be granted upon showing that a portion of the property had been disposed of, and that as to the balance the debtor was about to dispose of it. If the affidavit sustains the recital that the defendant has removed and disposed of his property, it necessarily excludes the recital that he is about to remove and dis- pose of the same. Where the ground relied on is the fraudulent disposition of property, the affidavits should be directed to showing either that the property has been disposed of, or that the debtor is about to dispose of his property, or that with respect to some of it he has dis- posed of it, and with respect to other portions, he is about to dispose of it. But, as already said, it is inconsistent to assume the position that a debtor has disposed of his property, and in the next breath to assert that he is about to do so ; Johnson v. BucJcel, 65 Hun, 601 ; 20 JST. Y. Supp. 566 ; 48 N. Y. State Rep. 924. In Fleitman v. SicMe, 13 id. 399 ; 28 W. Dig. 219, the court says the truth of the charge made cannot be assumed upon its mere general statement, but must be supported by facts. The evi- dence must necessarily tend to establish a probability of guilt, and be inconsistent with innocence ; West Side Bk. V. Meehan, 66 Hun, 627 ; 49 N. Y. State Rep. 606. To entitle a creditor to an attachment on the ground that his debtor has disposed of his property with intent to defraud his creditors, the law does not require the disposition of all the debtor's property, or of any par- ticular portion of it, nor is it necessary that the intent be to defraud more than one creditor ; Wildman v. Van AGAINST WHOM REMEDY ALLOWED. 59 Oelder, 60 Hun, 443 ; 21 Civ. Pro. Rep. 143 ; 39 N. Y. State Rep. 162 ; 14 N. Y. Sapp. 914. Where the attachment is upon the ground that the defendant has assigned his property, to pay a debt, the plaintiff must show that it was not an honest debt, or that he assigned more than sufficient to pay the debt. 2. What is not such disposition. The legislature intended by the provisions of the statute with reference to attachments to allow them on the ground of fraud in those cases, and in those cases only, where the debtor has so disposed of his property, or manifested an intent to make that disposition of his property which will defeat the application of it which the law adjudicates should be made. Thus, an attachment cannot be granted upon the ground of the fraudulent disposition of the debtor's property, unless the charge is sustained by satisfactory evidence of the debtor's having been pos- sessed of such property. Evidence of a sudden and unexplained disappearance of property, even when accompanied with a specific allegation of removal and disposition of it, does not establish a ^rma/acz'e case for an attachment, unless the possession and ownership of the property by the debtor is proved. The distinction between the evidence relating to the representations as to property and those relating to the actual ownership thereof, must, in cases of this character, be kept constantly in mind, in considering the charge of the fraudulent dis- position of property ; Kibbe v. Herman^ 51 Hun, 438. A threat of a debtor that he will make a preferential assignment furnishes no ground for the issue of an at- tachment. A debtor has a legal right to make a prefer- ential assignment ; Evans v. Warner, 21 Hun, 574. So an assignment for the benefit of creditors, which 60 PRACTICE IN ATTACHMENT OF PEOPEETY. makes excessive preference under Laws 1887, chap. 503, is valid and give^ no ground for an attachment against the assigning debtor's property; Bose v. Ren- ton, 13 N. Y. Supp. 392 ; 31 N. Y. State Rep. 683, and the fact that a general assignment is rendered invalid as to the creditors of the assignor, by the insertion therein of provisions authorizing the assignee to compromise with the creditors and to sell on credit, does not of itself show that the assignor has assigned, disposed of, or secreted his property with intent to defraud his creditors ; Milliken v. Dart, 26 Hun, 24. Yet if the instrument wrongfully and illegally deprives a creditor of his just rights, e. /., conveys partnership property in payment of individual debts, it furnishes conclusive proof of the debtors' intent to defraud their creditors within the meaning of sec. 636 of the Code ; The Citizens Bk. of Perry v. Williams, 12 N. Y. Supp. 678 ; 128 N. Y. 77, reversing 35 N. Y. State Rep. 642. So, too, a threat to give preferences gives suspicion of fraudulent purpose, and with slight circumstances tending in the same direction, uphold a presumption of fraudulent intent ; OasTiene v. Apple, 14 Abb Pr. 64. In lAvermore v. Rhodes, 27 How. Pr. 506, the debtor made threats and the coui't remarked that the threats evinced an intention to dispose of property so as to baffle the creditors in the speedy collection of their debts. Where the affidavit states that the defend- ant has assigned his property without consideration, it is sufficient to sustain an attachment; Smith v. Luce, 14 Wend. 237. That is to say, if the defendant be indebted at the time of a voluntary settlement, it is presumed to be fraudulent in respect to such debts, and no circum- AGAINST WHOM KEMEDY ALLOWED. 61 stances will repel the legal presumption of fraud ; Read v. Livingston^ 3 Johns. Ch. 500. If the defendant has so assigned any single piece of his property, it is sufficient; Treadkiell v. Lawlor, 15 How. Pr. 8; Her- man V. Knapp, 22 Week. Dig. 310. Fi-audulent mis- representations cannot be made the basis for an attach- ment ; OoldscJimidt v. HerscTiorn, 13 N. Y. State Rep. 560; 28 Week. Dig. 160. The difference between the charge of obtaining goods by false representations and the fraudulent disposition of property should be kept constantly in view in cases of attachment. The former is wholly immaterial on an issue as to the fraudulent disposition or concealment ; Stamp v. Herpich, 8 N. Y. State Rep. 446. If the defendant has or is about to secrete any single piece of his property, it is sufficient and extends to all his property of every kind, because his single act shows a readiness and intent to extend the offense as far as may be necessary to promote his fraudulent designs ; Treadwell v. Lawlor, 15 How. Pr. 8. Stoppage of business and insolvency are not neces- sarily evidence of intent to defraud ; but these facts, coupled with removal of property and especially of machinery from a factory, add to the inference from the removal and justify a plaintiff in swearing to such intent, and are sufficient to authorize a warrant of attachment ; McTaggert v. The Putnam Corset Co., 55 Hun, 610 ; 8 N. Y. Supp. 800 ; 29 N. Y. State Rep. 552. In Beimel v. ScTieveland, 29 N. Y. State Rep. 713 ; 30 State Rep. 860 ; 16 Daly, 34 ; 9 N. Y. Supp. 482 ; id. 955, an affidavit stating that affiant was informed by defendant's bookkeeper that he had left the State, taking with him all the money he could raise, and that he did 62 PRACTICE IN ATTACHMENT OF PEOPEKTY. not intend to return, was held to make a prima fade case. Mere belief of a creditor that his debtor is about to dispose of his property with fraudulent intent, is not sufficient to sustain an attachment. Some facts or cir- cumstances must be shown tending to show that such fraudulent intent actually existed ; Mingo v. Purdy (Va.) 12 S. E. 970. Preferment by a debtor of certain creditors by payments, transfer of property, or chattel mortgages, is not sufficient ; Abernathy Furniture Co. V. Armstrong, 46 Kan. 270 ; 26 Pac. 693 ; State, Moll v. Brockman, 39 Mo. App. 131. But the making and delivery of a chattel mortgage comes within the meaning of the term about to convey, authorizing the issuing of an attachment ; Ehy v. Wafkins, 39 Mo. App. 27. So proof that an insolvent has shipped out of the State a material part of his property, without leaving enough therein to pay his debts, is sufficient prima fade evi- dence to sustain an attachment ; Simon v. Sevier County Go-Op. Asso., 54 Ark. 58; 14 S. W. 1101. But when it appears that the property was shipped to a com- mission merchant to be sold, and the proceeds applied to a debt due such merchant exceeding the value of the property, it is different; Lowenstein v. Bied, 68 Miss. 265 ; 24 Am. St. Rep. 269 ; 8 So. 674. 3. Illustrations. An absolute conveyance to one of the principal creditors and an officer of a corporation largely in debt, of all its property, is sufficient evidence of an intention to defraud creditors, to warrant the issuing of an attachment against the property, if there is no written agreement to restore the property, where the •creditor takes possession of the property and begins shipping some of it needed in the business, out of the AGAINST WHOM REMEDY ALLOWED. 63 State ; Bicknel v. Speir, 18 N. Y. Supp. 590 ; 45 N. Y. State Rep. 651. But an allegation that defendant disposed of his property in payment of certain debts at less than a fair market value for the sole and only purpose of preferring the transferee and preventing and leaving remediless the other creditors, without stating the market value, the price at which the property was applied, or whether the difference between such value and price was substantial or merely nominal, is insufficient to show a fraudulent intent ; Bintruff v. Tuthill, 43 id. 704 ; 62 Hun, 591 ; 17 N. Y. Supp. 556. A case of presumptive, fraudulent disposition of property sufficient to support an attach- ment, is made out by allegations that the defendant's business was sold out a few days after purchasing goods of plaintiffs, on an execution in favor of defendant's wife, who purchased on the sale, and that he remained in charge of the business, store and property, conduct- ing the business the same as before, without any visible change of possession ; Schumann v. Davis, 38 N. Y. State Rep. 191 ; 14 N. Y. Supp. 284 ; Galle v. Tode, 21 Civ. Pro. Rep. 147. Where the application was based on false and fraudulent representations as to solvency and on a fraudulent disposition of property, consisting of giving of mortgages by defendant, it was held, that if the representations were false, in that defendant was insolvent and was indebted to persons to whom the mortgages were given, a consideration for the mort- gages existed, and therefore a fraudulent disposition of property was not shown ; Johnson v. Buckel, 65 Hun, 601; 20 N. Y. Supp. 566; 48 N. Y. State Rep. 924. But a transfer by one partner of partnership property, to pay an individual debt, is fraudulent and void as 64 PBAOTIOE IN ATTACHMENT OF PROPEETY. against the firm creditors, unless the firm is solvent at the time; Wait on Fraud. Con., § 216; Menagh v. Whitwell, 52 N. Y. 146 ; EdicTc v. Green, 38 Hun, 202. Whenever a debtor makes a conveyance or sells his property for the purpose of avoiding the payment of his debts, if the conveyance was for the purpose of hindering and delaying creditors, an attachment will issue ; Gray V. Blackwell, 86 Ga. 188 ; 12 S. E. 363. The practitioner must keep in view the rule that to entitle the creditor to an attachment for the disposition of the debtor' s property, the law does not require the disposition of all the debtor's property or any particular portion of it, to defraud his creditors, but it has been provided in case it shall be made to appear that the debtor has assigned, disposed of or secreted, or is about to assign, dispose of or secrete "property," with intent to defraud his creditors, an attachment may issue ; Taylor v. Myers, 34 Mo. 81 ; and it is sufficient that it was done to defraud the plaintiff ; Wildman v. Van Gelder, 60 Hun, 443 ; 39 N. Y. State Rep. 162 ; 14 N. Y. Supp. 914. To warrant an attachment in a case where a husband's property is sold on an execution in favor of his wife, it must be averred in the affidavit either that the judgment was for more than the debt, or that the property was sold for less than its value, or bought by the judgment creditor ; Thomas v. Diclcenson, 58 Hun, 603 ; 33 N. Y. State Rep. 786 ; 11 N. Y. Supp. 436. The affidavit must state legal evidence of the fraud, and not mere conclusions drawn 1;herefrom, although such conclusions are stated positively and apparently upon the knowledge of the affiant ; Brown v. Keough, 14 N. Y. Supp. 915 ; 39 N. Y. State Rep. 225 ; Strasherger V. Bachrach, 36 id. 1006 ; 59 Hun, 624 ; 13 N. Y. Supp. AGAINST WHOM BEMEDT ALLOWED. 65 538. The intent to defraud need not be alleged in terms, if it presents facts from which it may be inferred ; Citizens BJc. v. Williams, 59 Hun, 617 ; 35 N. Y. State Eep. 542 ; 12 N. Y. Supp. 678, rev'd 128 N. Y. 77. An intent to defraud as ground for attachment can only be shown by the acts of the debtor upon which the creditor based his belief, and if such acts were such as to justify such belief, the debtor is liable ; Thompson V. Dater, 57 Hun, 316 ; Steinhardt v. Leman, 41 La Ann 835. But the creditor must prove reasonable and rational grounds for his allegations and belief ; Burruss v. Grant, 88 Va. 980 ; 14 S. E. 845. But it is sufficient to show that defendant was in charge of the business, store and property formerly owned by him, after a sale to his wife by the sheriff under an execution in her favor ; Schumann v. Davis, 59 Hun, 622 ; 38 N". Y. State Rep. 191 ; 14 N. Y. Supp. 284 ; and it seems that a prima facie case is made bj' an affidavit which states that defendant refuses to pay plaintiff's claim while admitting her ability, and refuses to give any information as to assets of the firm, although admitting its embarrassment, and that although she denied making any sales to certain relatives in the same busi- ness, her employees have taken goods from her store in a suspicious manner, and left them with such relatives ; Rothchild v. Mooney, 13 N. Y. Supp. 125 ; 36 N. Y. State Rep. 565 ; and an affidavit reciting that affiant has good reasoff to believe and does believe that defendant has assigned part of Ms property with intent to defraud creditors, is sufficient ; but where the ground of attach- ment is that defendant fraudulently contracted the debt or incurred the obligation, the affidavit must allege the 5 66 PEACTICE IN ATTACHMENT OF PROPERTY. facts showing the fraud ; Cheyenne F. Bat. Bk. v. Sloan, (Wyo.), 23 Pac. 743. 4. Fraudulent transfer of property in another State. It is immaterial where an alleged fraudulent transfer of property took place, if the courts of this State have jurisdiction of the action and the parties, the plaintiff is entitled to his remedy against the defendant's property within this State ; Kibbe v. Wetmore, 31 Hun, 424. 5. About to dispose of property with intent to defraud creditors. Where the attachment is founded upon the ground that the defendant is about to assign, dispose of, or secrete his property with intent to defraud his credi- tors, the intent to do the wrongful act must appear from the facts disclosed by the affidavit ; Thompson v. Dater, 10 N. Y. Supp. 63 ; 32 N. Y. State Rep. 361 ; 57 Hun, 316. A statement by a debtor, that if plaintiff undertook to collect his claim by suit he would get substantially nothing, as he would make an assignment preferring the claims of other creditors, does not establish a fraudu- lent intent to assign, dispose of or secrete his property ; Atlas Furniture Co. v. Freeman, 70 Hun, 413. A debtor has a right to make an assignment, preferring creditors, and the doing that which is lawful is not fraudulent ; Farrell v. Furness, 67 How. Pr. 188 ; HallenbecJc v. Coenen, 34 N. Y. State Rep. 689 ; 12 K". Y. Supp. 1 ; 20 Civ. Pro. 6 ; Fvans v. Warner, 21 Hun, 574. False representations made by a debtor in order to procure an extension of time within which to pay a creditor do not characterize threats subsequently made, that he would make an assignment so as to indicate a AGAINST WHOM REMEDY ALLOWED. 67 fraudulent intent ; Stamp v. Herplch, 8 N. Y. State Rep. 446. An affidavit of defendant's clerk that he had been offered defendant's business at much less than its value, and called a fool for saying that it appeared to be a fraud on creditors ; that the proceeds of the business was carried on her person by defendant's wife, who denied having money when called upon for payment ; and that she said, upon making a small payment, that it was the last the creditors would get, is sufficient to sustain an attachment ; Union Distilling Go. v. Ruser^ 14 N. Y. Supp. 908 ; 39 N. Y. State Rep. 128. An affidavit made on informationjand belief that defendants have ti'ans- ferred some of their goods to different parties to liqui- date their accounts and are about to make an assign- ment of all their property to defraud their creditors, is insufficient ; Newwitter v. Mansell, 38 N. Y. State Rep. 595; 14 N. Y. Supp. 506. To maintain an attachment on the ground of fraudulent conveyances, the intent to defraud must be found to exist as a fact ; lona F. Nat. B7c. V. Steele (Mich.), 45 N. W. 579; Rheinhart v. Chrant, 24 Mo. App. 154. But the sale by a merchant of his stock of goods, for a sum much less than its actual value, when the result is to make him insolvent, is sufficient on which to predicate fraud; Nelson Dis- tilling Co. V. Vossmeyer, 25 id. 578. So is the giving a mortgage by a debtor upon all his property to one creditor where the security is greatly in excess of the amount of the., debt ; Smith v. Boyer (Neb.), 45 N. W. 265. So stoppage of business and removal of propertj' to places unknown, by an insolvent debtor, will justify a plaintiff in swearing to the evil intent to defraud ; McTaggartv. Putnam Corset Co., 8 N. Y. Supp. 800; 68 PRACTICE IJSr ATTACHMENT OF PROPEETY. 29 N. Y. State Rep. 552. So Avill the secret and fraud- ulent sale of property by a bailee or mortgagee ; Ger- man Bank v. Meyer, 28 id. 278 ; 55 Hun, 86 ; 8 N. Y. Supp. 205. So will the fact that a firm becomes insol- vent jwithin a few weeks after representing that they were solvent and doing a prosperous business, without showing any unforseen misfortunes or reverses ; Wick- Tiam V. Stern, [9 N. Y. Supp. 803 ; 28 N. Y. State Rep. 154. So a confession of judgment npon a joint indebted- ness by a part of the members of a firm, operates as a fraud upon the partnership creditors, sufBcient to au- thorize the issuing of an attachment; Jaffray v . Nast, 10 N. Y. Supp. 280 ; 32 N. Y. State Rep. 260. A statement by a member of a firm, upon being pressed to furnish security, that the firm had a large sum in notes and accounts and would put the balance of accounts into notes and put them all into their pockets, is sufficient proof that the firm was about to dispose of their property to defraud creditors ; Orr & L. Shoe Co. V, Harris, 82 Tex. 273. So threats of a debtor to use his power of making an assignment with preferences to prevent plaintiff from obtaining anything on his demand in case suit is brought thereon, are sufBcient evidence of fi-audulent intent to sustain an attachment ; United States I^et. & T. Co. v. Alexander, 18 N. Y. Supp. 147 ; 42 N. Y State Rep. 668. But disposal by defendant of his property in pay- ment of bona fide obligations, when not so connected with a general assignment as to form part of the same transaction, is not a fraud upon creditors ; BinirvffY. luthill, 62 Hun, 591. The shipping by 'an insolvent debtor of property to AGAIKST WHOM REMEDY ALLOWED. 69 consignees without tlie State, for the purpose of raising funds against which he may draw, is such a removal of his property without the State as to subject him to attachment; Crow v. Lemon & G. Go. (Miss.), 11 So. 110. So the mortgaging of personalty, with the secret agree- ment that the mortgagor may sell the property and deal with it as his own, constitutes a fraudulent conveyance; Cole Mfg. Co. v. Jenkins,^ 47 Mo. App. 664. So is the giving of a mortgage by an insolvent debtor to his attorney to secure payment for future legal services ; Shellaborger v. Mottin, 47 Kan. 451 ; 28 Pac. Rep. 199. It is also sufficient, where, for the purpose of procur- ing credit, or the extension of credit, the defendant (or person against whom the attachment is asked) has made a false statement in writing, under his hand or signature, or under the hand or signature of a duly authorized agent, made with his knowledge and acqui- escence as to his financial responsibility or standing; chapter 736, Laws 1894. 6. Concealment to avoid the service of summons. Section 636 of the Code requires the party obtaining an attachment, upon the ground that defendant keeps him- self concealed to avoid the service of summons, to show by affidavit to the satisfaction of the judge granting the same, that the defendant keeps himself concealed with intent to avoid the service of a summons. The affidavit must make legal proof so as to judicially satisfy the officer who is called upon to issue an attachment ; Head V. Wollner, 53 Hun, 615 ; thus, an affidavit stating that affiant went to defendant's former store, which was in the hands of the sheriff' s agents, and was unable to find him there or at the place where such agents said he would be found, although he went to the latter place 70 PKACTICE IN ATTACHMENT OF PROPERTY. three or four times a day for several days, does not show a concealment to avoid the service of summons ; Thomas V. Dickinson, 11 N. Y; Supp. 436 ; 33 N. Y. State Rep. 786. It vFould be unsafe to establish as a rule that the fact that a debtor is absent from his place of business on the day when his creditor chances to call for payment, the place of business being open and the business being conducted therein in its usual course, the place being in charge of a clerk, who makes no apparent effort to con- ceal his employer's whereabouts, coupled with the fact that shortly before the creditor's call the debtor has withdrawn either the whole or a part of his deposit from a given bank, will not warrant the attachment of the debtor's goods ; Reynolds v. Horton, 67 Hun, 122 ; 51 N. Y. State Rep. 545. A defendant may as effectually conceal himself by shutting himself up in his own house, as though he had hid in some other place. It is concealment to avoid the service of a summons, no matter if such concealment be but for one hour. An affidavit of a sheriff is sufficient to give jurisdic- tion to issue an attachment when it sets forth that he has made diligent effort to serve defendant with a sum- mons and complaint at a place " where she had resided for years," but could not for the reason that she had left the State to avoid service, and that he was informed by the bookkeeper of her son, and by her daughter, that she had left the State to avoid such service ; National BanJc of Commerce v. The Whitman Pulp & Poper Co., 21 N. Y. Supp. 748 ; 50 N. Y. State Rep. 493. It would liave been safer for the plaintiff to have given the reason why the affidavits of the persons giving the infor- AGAINST WHOM REMEDY ALLOWED. 71 mation were not produced, but the failure to do so did not render the affidavits fatally defective. 7. Absconding or concealed debtor. An absconding debtor is one who has departed from the limits of the State with the intent to avoid the service of process or to defraud his creditors ; Morgan v. Avery, 7 Barb. 656. It is not necessary that the departure from the State should be secret if the intent to evade the service of process or to defraud be established. Neither is it necessary that the intent to defraud be established if the intent to evade the service of process is clear, either intent will be sufficient ; Code, § 636, subd. 2. No distinction is made between the debtor who departs from the State and the debtor who conceals himself within it, if the intent to evade the service of process or to defraud was the motive instigating the act, and a charge in the disjunctive that he has done one or the other is sufficient ; Van Alstyne v. Ermine, 11 N. Y. 331 ; and the length of time that the defendant was con- cealed is of no importance, if the intent to defraud, or to evade the service of process, is made out ; Cammans T. TompJcins, 12 Barb. 265. 8. Non-residence. It is the actual residence of the debtor and not his domicile, which determines the status of the parties ; thus, a debtor in the employ of the government, who has left his domicile and taken up an actual residence in another State, cannot show an intention to return and assume his former residence when his employment ceases, in order to defeat an attachment ; Garden v. Garden, 107 N. C. 214 ; Lawson V. Adlard (Minn.), 48 N". W. 1019. Thus, where a man has a settled abode for the time being in another State, 72 PRACTICE IN ATTACHMENT OP PROPEETT. for the purpose of business or pleasure, he is a non- resident: Hanson v. Oraham, 82 Cal. 63 ; 23 Pac. 56. A person may be domiciled in one State and a resident in another ; Frost et al. v. BrisMn, 19 Wend. 11. His domicile is the place to which he intends eventually to return and there to remain ; Matter of Thompson, 1 id. 43 ; while his residence comprehends no more than a fixed abode for the time being as contradistinguished from a place of temporary sojourn ; Matter of Wrigley, 8 id. 134. The word " residence," as used in sec. 636 of the Code, means the abode or place where one actually lives, and not his legal domicile. In other words, a reading of this section will show that it was intended to supply a method for the collection of debts by appropri- ating property of the debtor to be found within the State, when proceedings against the debtor personally are impossible or liable not to be made effectual, and thus it allows the use of the process in rem when ^xo- cess in personam could not be served; Hanover Hat. BTc. V. SteUins, 69 Hun, 308 ; 53 N. Y. State Rep. 351. Undisputed and voluntary acts and declarations of the defendant, tending to show his non-residence, will out- weigh the defendant' s denial of such non-residence ; Qwebec BanJc v. Carroll (S. D.), 47 N. W. 397. Where a purpose exists to remove from the State, the scheme may be carried out in one, two, three, or several weeks or months ; Elliott v. Keith, 32 Mo. App. 579. Where a person leaves the State with the intention not to return, an affidavit for attachment against his property should aver that he is a non-resident. Thus, where the aifidavit shows that the defendant has been tried and convicted of an offense, and has fled to some other country, it should not state that he departed from AGAINST WHOM REMEDY ALLOWED. 73 the State with intent to defraud creditors, but that he has departed with intent not to return ; Thames & Mer- sey M. Ins. Go. V. BimmicJc, 22 N. Y. Supp. 1096 ; 51 N. y. state Rep. 41. In the Eaves Costume Co. v. Pratt, 50 N. Y. State Rep. 763 ; 22 N. Y. Supp. 74 ; 2 Miss. Rep. 420, the defendant's domicile of origin was in Missouri. While an infant, the family moved to Con- necticut for the purpose of completing the son's educa- tion. In 1890 he came to New York, opened an office, and after boarding at different places for about two years, hired apartments for a few months, when he aban- •doned them, stored his furniture and left the State for his summer's vacation. In that case it was held that the facts showed that he was not a resident of this State ; that without satisfactory evidence that defend- ant at the time the attachment issued, had a fixed place of abode within the State, his residence must be pre- sumed to be at the place of his domicile. An attach- ment may be issiied against the property of a solvent national bank located in another State ; McDonald v. MarguetteF. Nat. Bit., 41 111. App. 368. The princi- pal place of business of a corporation within a statute relating to attachment on its property is that stated in its articles of incorporation to be such, although it has opened an office at another place, at which a greater part of its business is transacted ; Blumenthal v. Hud- son River B. & 8. Mfg. Co., 22 Civ. Pro. 217; 40 N. Y. State Rep. 232 ; Ruthven v. BeckioWi (Iowa), 51 N". W. 153. So the fact that a debtor who resides in another State, has a place of business within this State, does not make him a resident of this State so as to prevent the issuing •of an attachment against him as a non-resident ; Wal- 74 PRACTICE IN ATTACHMENT OF PKOPEETT. lace & Sons v. Castle etal, 68 N. Y. 370; Murphy v. Baldwin, 41 How. Pr. 270. A positive averment that the defendant is a non-resi- dent is sufficient, though the place of residence is stated upon information and belief ; Steel v. Raphael, 37 N. Y. State Rep. 623, 13 N. Y. Supp. 664. An affidavit is sufficient if it shows deponent's knowledge of defend- ant, and the latter' s residence in another State ; that he has property in New York, and is indebted to plaintiff, and that service cannot be made of the summons in New York, because he cannot be found therein ; Matthews v. Oilleran, 35 N. Y. State Rep. 269, 12 N. Y. Supp. 74. So an affidavit by plaintiff alleging that he was informed by defendant's bookkeeper that defendant had left the State, taking with him all the money he could raise, and that he did 'not intend to return, corrobor- ated by affidavits of the bookkeeper and others to the effect that defendant had left the city and his busi- ness without anyone in charge, makes oat a prima facie case for an attachment ; Deimel v. ScJieve- land, 9 N. Y. Supp. 482; 29 JST. Y. State Rep. 713. The essential charge is, that he is not residing or living in tlie State — that is, that he has no abode or home within it where process may be served so as effectually to reach him ; Hanover Nat. BJc. of N. T. v. StebMns, 69 Hun, 388. 9. Written statement as to financial standing. By the amendment of subdivision 2 of section 636 of the Code of Civil Procedure, an attachment may issue where it appears by affidavit, &c., that the defendant or person against whom the attachment is desired, for the purpose of procuring credit, or the extension of credit, AGAINST WHOM KEMEDT ALLOWED. 75 has made a false statement in writing, under his hand or signature, or under the hand or signature of a duly authorized agent, made with his knowledge and acquies- ence as to his financial responsibility or standing. 10. Toluntary conveyance — Not suiflcient when. Affidavits for an attachment on the ground that de- fendant has disposed of his property with intent to defraud his creditors, must contain a lawful averment of some fact from which it can be*legally presumed that the defendant was insolvent at the time of the convey- ance. Thus the fact that a deed is without consider- ation, is not of itself a conclusive presumption of fraud as to creditor of the grantor. Nor is it sufficient as to creditors, by reason of express statutory provision, because in order to make it fraudulent, there must be competent legal evidence that the grantor was insolvent at the time of the conveyance. When a conveyance by a debtor is without consideration, and voluntary, it is more than evidence, it is a fact from which a fraudulent intent may be inferred, provided the affidavit contains a lawful averment of some fact from which it can be legally presumed that the grantor was insolvent at the time of the voluntary conveyance. It is the established rule of evidence that proof that a judgment had been obtained against an alleged fraudulent grantor, upon which execution had been duly issued and returned unsatisfied, is prima facie evidence of the insolvency of such grantor at the time of the conveyance, even though made months before, provided that the debt upon which the judgment was recovered was incurred by the grantor prior to his conveyance, and this is the rule, even against a voluntary grantee who had no notice of the 76 PEACTIOE IN ATTACHMENT OF PEOPERTT. insolvency. So permitting commercial paper to be dis- honored by one engaged in commerce, and his property to be attached in an action in which judgment is subse- sequently recovered by default, is evidence, and, if unexplained, is proof of insolvency; Victor v. Gold- berg, 56 N. Y. State Rep. 620; 25 N. Y. Supp. 1005; 6 Misc. 46. UNDERTAKING By PLAINTIFF TO OBTAIN. 77 CHAPTER V. UNDERTAKING BY PLAINTIFF TO OBTAIN. I. — Undertaking. 1. Necessary to give judge jurisdiction. 2. Acknowledgment. 3. Sureties. 4. Form, afiSdavit, justification, approval. 5. Filing and service of. 6. Householder — meaning of. 7. Liability of sureties. II. — Warrant. 8. Form and contents, jurisdictional. 8J. Amendment of. 9. To whom directed. 10. Judge empowered to grant. 11. At what time may issue. III. — Summons must be served when. IV. — Second attachment by same creditor. V. — Two or more warrants against the same defendant. 12. Preferences as to warrants. 13. Amount to levy. VI. — Personal property. 14. In general. VII. — How tangible personal property must be attached. 15. In general. 16. Money. 17. Choses in action, bonds, notes, &c. VIII. — Inventory. IX. — Legal title in debtor. X. — Property in sheriflTs hands. I. — Undertaking. 1. Necessary to give judge jurisdiction. Except in actions brought by municipal corporations, in order to give the judge jurisdiction to issue a warrant of attach- ment, the plaintiff must present to the judge, at the time of making his application for the warrant, an 78 PEACTICE IN ATTACHMENT OF PBOPEETY. undertaking with sufficient sureties, to tlie effect that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs, which may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which must be at least two hundred and fifty dollars ; Code, § fi40. 2. Acknowledgment. Although section 810 of the Code prescribes that an undertaking must be acknowl- edged, or proved and certified in like manner as a deed to be recorded, an omission to acknowledge or swear to the jurat is a mere irregularity which may be waived; Melntire v. Wiegand, 24 Abb. N. C. 312; 30 N. Y. State Rep. 386 ; 10 N. Y. Supp. 3. The undertaking cannot be acknowledged or sureties justify before an attorney in the case ; Bliss v. Molier, 58 How. Pr. 112. ' 3. Sureties. The party giving the undertaking need not join in the execution thereof, and the execution thereof by one surety is sufficient, although the word "sureties" is used. And where a fidelity or surety company authorized by law shall execute the under- taking by the hand of its officers or attorney, and a certified copy of a resolution of their directors, under the seal of said company, shall be filed with the under- taking, it shall be equivalent to the execution of such undertaking by two sureties, provided the same is approved by a judge of the court in which such under- taking is given ; Code, § 811 ; Travis v. Travis, 48 Hun, 343 ; 15 N. Y. State Rep. 874 ; 14 Civ. Pro. Rep. 307 ; 1 N. Y. Supp. 357; Matter of Fisher, 11 Abb. N. C. 107. A surety company signing as surety on an under- taking, if excepted to, must justify through its officers UNDERTAKING BY PLAINTIFF TO OBTAIN. 79 or attorney like other sureties ; Hitrd v. H. & Si. J. R. Co., 67 How. Pr. 516. 4. Form, affldaTit, justification, approval. Tlie under- taking must, where two or more persons execute as sureties, be joint and several in form ; it must be accom- panied with the affidavit of each surety subjoined thereto, to tlie effect that he is a resident of and a householder or a freeholder within the State, and is worth the penalty of the bond, or twice the sum specified in the undertaking, over all the debts and liabilities which he owes or has incurred, and exclusive of prop- erty exempt by law from levy and sale under an execu- tion. The undertaking must be approved by the judge granting the vrarrant or a judge of the court in which the action is brought, and such approval must be indorsed upon the undertaking ; Code, § 812. Where two sureties are required, unless each justifies in the full penalty, there should be two sets of justifica- tion, each in such penalty — that is, each set being unitedly worth the full penalty, but if in less than double the amount, the undertaking is not thereby invalidated ; Code, § 812. When the penalty of the undertaking, or twice the sum specified therein, is five thousand dollars or upwards, the court or judge may allow the sum in vi^hich a surety is required to justify, to be made up by the justification of two or more sureties, each in a smaller sum. But in that case, a surety cannot justify in a sum less than five thousand dollars, and where two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum for more than one of them ; Code, § 813 ; Matter of Thompson, 6 Dem. 56 ; 19 N". Y. State Rep. 900. 80 PRACTICE IN ATTACHMENT OF PEOPERTY. 5. Filing and service of. Although the Code does not prescribe that a copy of the undertaking be delivered to the defendant with a copy of the affidavits and warrant of attachment (Code, § 649), the better practice is so to do. Rules 4 of the Supreme Court prescribes that the attorney presenting or procuring an undertaking shall forthwith file the same with the proper clerk, and in case such undertaking shall not be so tiled, the opposite party shall be at liberty to move the court to vacate the proceedings as if no bond or undertaking had been given. A defendant may excejjt to the form of the under- taking and to the sufficiency of the sureties, and may serve a notice of exception upon the plaintiff's attorney, who must serve upon the defendant's attorney notice of justification of the sureties, before a Judge of the court or a county judge, at a specified time and place, the time to be not less than five nor more than teu days thereafter, and the place to be within the county where the action is triable. 6. Householder — Meaning of. In Somerset & TF. 8av. Bk. V. Huyck, 33 How. Pr. 323, and in Delamater v. Byrne, 59 id. 71, it is held that a person who is engaged in business, and who rents and occupies a place of busi- ness within the State and owns property therein, is to be deemed a "householder" within the meaning of section 819 of the Code of Civil Procedure, although he is unmarried, without immediate relatives, and boards. 7. Liability of sureties. It is not a defense to an action upon an undertaking, given upon granting a warrant of attachment, that the warrant was granted improperly for want of jurisdiction or for any other 4 UNDEETAKING BY PLAINTIFF TO OBTAIN. 81 cause ; Code, § 642. Thus, whatever may be the irregu- larities in the undertaking, and whatever may be their effect on the proceedings in the attachment suit, those signing it will be bound by its terms, and the liability of the obligors is not confined to the proceedings in the court in which the attachment suit is brought, but extends to the final result of the case; Bennett v. Brown, 20 N. Y. 99. A surety's engagement is absolute, and no demand on the principal debtor is necessary before beginning an action against the surety. The expenses incurred by proceedings to vacate the attachment are damages for which the sureties in the undertaking are liable, although no property is taken under the attachment ; Currie v. Riley, 14 Week. Dig. 407. So the sureties are liable for the costs of the action awarded to defendant in the action, although the attach- ment be not formally vacated ; Lee v. Homer, 37 Hun, 634 ; 109 N. Y. 630 ; 14 N. Y. State Kep. 921. But the sureties are not liable for loss by depreciation of stock attached during the continuance of the suit ; Miller v. Ferry, 50 Hun, 256 ; 19 N. Y. State Rep. 387 ; 2 N. Y. Supp. 863 ; so the sureties are not liable for the lees of extra counsel or extra witness's fees ; Northamp- ton Nat. BJc. V. Wylie, 22 N. Y. State Rep. 476 ; 26 id. 286 ; 52 Hun, 146 ; 16 Civ. Pro. Rep. 326 ; 4 N. Y, Supp. 907. Bat it is different as to expenses for counsel in an action in a Justice's Court; Northrup v. Garrett, 17 Hun, 497. The sureties are liable to the owners of bank funds for the excess of interest which the owners could have real- ized therefrom over and above the rate allowed by the bank during the continuance of the levy. But where 6 82 PRACTICE IW ATTACHMENT OF PKOPEETT. the attachment is vacated in part only, the sureties do not become liable ; Sheldon v. Sabin, 4 Civ. Pro. Rep. 4. II. — Warrant. 8. Form and contents jurisdictional. Section 641 of the Code provides that the warrant must be subscribed by the judge and the plaintiff's attorney and must recite the grounds of attachment. The amount of the plaint- iff's demand must be specified in the warrant, as stated in the affidavit. The requisites of the warrant are thus prescribed, and it is manifest from the language of the statute that the legislatui'e intended that unless these provisions are complied with the warrant should be void. This view is in accord with that of the codifiers, whose reasons for the additional requirements which now appear in section 641, are stated by Mr. Throop in his notes on the new Code at page 129, and in which he says that the additions to this section are modelled upon a corresponding section in title 1 (sec. 561). In the note to sec. 561 he says the second and third sentences have been added, and that the former expressly requires the order to state the grounds of arrest, so as to harmon- ize the provisions with similar provisions relating to other provisional remedies, and with sec. 568, whereby the plaintiff, in opposing a motion to vacate an order of arrest, made upon proof on the part of the defend- ant, is in general confined to the grounds of arrest recited in the order. While sec. 561 was amended in 1877, so as to omit this requirement, it can make no difference in the reason given by the codifiers. It was manifestly their intention to require the grounds to be recited in the TJNDEKTAKING BY PLAINTIFF TO OBTAIN. 83 warrant of attachment, as sec. 683 expressly provides that, upon a motion to vacate an attachment made upon additional affidavits, new proof upon the part of the plaintiff may be made tending to sustain any ground for the attachment, recited in the warrant and no other, and the general rule is, I. That where the form of a mandate is prescribed by the Code, it must be substantially followed, otherwise the paper will be Jurisdictionaily defective and void ; Osborn v. McCloskey, 55 How. Pr. 345 ; Worthington v. Dorset, 6 N. Y. State Rep. 861; Place v. Riley, 98 N. Y. 1. II. But where the substantial rights of the defendant have not been violated nor the rights of third persons prejudiced, the defect may be disregarded or supplied by amendment ; Atlantic, &c. Tel. Co. v. Baltimore, &c. R. Co., 46 Supr. Ct. 377. III. Where the paper purporting to be a mandate recites the necessary jurisdictional facts, the same will not be set aside because of erroneous recitals therein, particularly if the defect is not pointed out in the notice of motion as a ground of vacating the attachment ; First Nat. Bk. v. BushwicJc CJiem. Wks., 25 N. Y. State Eep. 830 ; 6 N. Y. Supp. 318 ; 17 Civ. Pro. 229. IV. That sheriffs, in an action against them to enforce an alleged liability as bail, cannot attack the form of the mandate placed in their hands for enforcement ; Douglass v. Haberstro, 88 N. Y. 611. A recital in a warrant that the defendant has departed from the State is not a compliance with sec. 641 of the Code, as this is not one of the grounds specified for the granting of an attachment; McDonald v. Kieferdorf, 84 PRACTICE IN ATTACHMENT OF PEOPEKTY. 46 N". Y. State Kep. 176 ; 22 Civ. Pro. Rep. 105 ; 18 N. Y. Supp. 763. So a warrant of attachment which follows the lan- guage of the statute and recites the facts in the alter- native, is clearly defective. Thus in Dintruff v. TutMll, 62 Hun, 591 ; 43 N. Y. State Rep. 704 ; 17 N. Y. Supp. 556, the warrant of attachment contained, by way of recital, a statement that it appeared by the affida- vit of the plaintiff " that the defendant has removed or is about to remove property of the said firm from the State with intent to defraud creditors of the said firm, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, the property of said firm with like intent." In tliat case the court say : " The warrant was clearly defective * * * * The requirement of the Code is positive that the warrant must briefly recite tlie grounds of the attachment." In Arnot v. WrigM, 29 K. Y. State Rep. 425 ; 55 Hun, 561 ; 9 N. Y. Supp. 15, a similar statement in an affidavit, following the language of the statute in the disjunctive, was held to be insuffi- cient. The court said the statement in the affidavit was in the alternative, and hence alleged neither one fact nor the other ; and see Collins v. Beebe, 54 Hun, 318 ; 27 N. Y. State Rep. 4 ; 7 N. Y. Supp. 442. It seems that all jurisdictional facts, such as the cause of action, the giving of a sufficient undertaking, &c., should be embodied in the recital ; Delaney v. Brett, 1 Abb. N. S. 421 ; 51 N. Y. 78. It seems that when the warrant is issued on the ground that the defendant has made a false statement in writing as to his financial standing for the purpose of procuring credit or the extension of credit, such state- ment should be inserted in the warrant, chapter 736, UNDEETAKING BY PLAINTIFF TO OBTAIN. 85 Laws of 1894. As to what statement should be inserted in a warrant issued on the grounds inserted into sec. 637 of the Code by the amendment of 1894, qucere. If it appears upon the face of the warrant, and is stated in it, that the defendant has assigned or disposed of his property with intent to defraud his creditors, it is a sufficient recital of the grounds of attachment to meet the requirements of sec. 641 of the Code. Or if ifc recites that he is about to assign, secrete or dispose of his property with intent to defraud his creditors, such recital is sufficient. Or if the recital unites both these grounds by a copulative conjunction, that is a compli- ance with the provision of that section ; because that is a recital of one or more of the grounds upon which an attachment may issue. But by disjunctively uniting two grounds, either of which, when standing alone, would be sufficient, or both of which, when coupled, would be a good ground, that which would be a positive assertion, or copulatively connected, becomes an equivocal or alternative assertion, leaving the ground in doubt, and, therefore, fails to be a recital of the "grounds of the attachment" such as is required by sub-division 2 of sec. 636 of the Code of Civil Pro- cedure ; Cronin v. CrooTcs, 76 Hun, 120 ; 27 N. Y. Supp. 822 ; 57 N. Y. State Rep. 475. But a recital in an attachment that " the defendant has assigned, disposed of, or secreted his property with intent to defraud his creditors" sufficiently satisfies the requirement of sec. 641 of the Code in this respect. In neither of the cases of EothscMld v. Mooney, 13 N. Y. Supp. 125 ; 36 N. Y. State Rep. 565 ; DintruffY. Tuthill, 43 id. 704; 62 Hun, 591 ; 17 N. Y. Supp. 556; Nason v. Brumbery, 75 Hun, 336 ; Cronin v. Crooks, 76 Hun, 120 ;, 86 PRACTICE IN ATTACHMENT OF PKOPEETY. 57 N. Y. State Rep. 475 ; 27 N. Y. Supp. 822, is it determined that a recital like the one above is insuffi- cient. In the Cronin case the recital in the attachment was that the defendant "has assigned and disposed of, or is about to assign or dispose of, her property with intent to defraud her creditors." In DlntrvffY. TutMll, the recital was that the defendant had removed or was about to remove property from the State with intent to defraud creditors, or had assigned, disposed of or secreted, or was about to assign, dispose of or secrete his prop- erty with the like intent. This was a statement in the alternative of distinct classes of the causes for which a warrant of attachment could be granted; Smith, Per- kins & Co. V. Wilson, 76 Hun, 565. The removal of property with the intent to defraud creditors is one ground, and the assignment of it Avith like intent is another ; but they are based on different facts, and both cannot well be included in or established by the same facts, while under the other provision of the Code, the intent to defraud creditors or to avoid the service of a summons may be established from the same facts. It appears that this last subdivision of the section may properly receive a construction which allows the grounds to be stated in the attachment in the alternative ; other- wise the clause can be of very little benefit, for where the debtor has secreted himself, either by departing from the State or by hiding himself within the State, the creditor, if compelled to establish which, will in most cases be powerless to do so, for reasons which are obvious. As many grounds may be alleged for an attachment as are within the terms of the law, but in doing so the several grounds should be stated cumulatively, and not UNDERTAKING BY PLAINTIFF TO OBTAIN. 87 in the disjunctive. When the disjunctive "or" is used, not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact attended with the same results, it would be different. A case may be so circumstanced that, although it may be conclusively shown that the debtor has left his place of residence in order to defraud his creditors by depriving them of their remedies, yet it may be impossible even to conjecture whether he has continued his flight beyond the boundaries of the State, or has resorted to some place of concealment in it ; Garson v. Brumbery, 76 Hun, 336. 8 1-2. Amendment of. In Peiffer v. Wheeler, 76 Hun, 280 ; 59 N. Y. State Rep. 106, the court say : "There is no reason to doubt the power of the court, in a proper case, to allow an amendment to a war- rant of attachment correcting the amount stated therein. It cannot be, that where a party has inno- cently and in good faith made an averment in regard to the amount of the indebtedness of the defendant in the attachment to him, he must lose his whole lien because he has inadvertently made an error. No such arbitrary and rigid rule has yet obtained, and, in view of the liberal provisions of the Code in regard to amend- ments, we do not think it will. The only case which has been found to support any such view is that of Buhl V. Ball, 41 Hun, 62 ; 2 State Rep. 270, where the court held that, upon a motion to vacate an attachment upon the papers upon which it was granted, no affidavit could be received to fortify the allegations contained in the original papers. This arose from the rule of the Code that, where such motion is made upon the papers upon which the warrant was issued, no additional affi- 88 PRACTICE IN ATTACHMENT OF PROPERTT. davits can be read in support thereof. Neither do we think that Kihbe v. Wetmore, 31 Hun, 424, is an author- ity for the proposition that an amendment can be allowed where an objection is taken to the proof of the facts justifying such amendment upon the hearing of the motion to discharge the attacliment. In that case the facts justifying the amendment were presented to the court without objection, and the court conformed the process to the proofs. In order, however, to justify the court in making such an amendment, the utmost good faith upon the part of the plaintiff should be shown, and in this regard we think the plaintiff entirely failed." 9. To whom directed. Warrants may issue at the same time to sheriffs of different counties. The warrant may be directed, either to the sheriff of a particular county, or generally to the sheriff of any county. It must require the sheriff to attach and safely keep so much of the property within Ms county, which the defendant has, or which he may have at any time before final judgment in the action, as will satisfy the plaintiff's demand, with costs and expenses ; Code, § 641. In an action to which a sheriff of a county in a party, a coroner of the same county has all the power and is subject to all the duties of a sheriff, in a cause to which a sheriff is not a party, and the mandate must be directed either to a particular coroner, or generally to the coroner of that county ; id. 172, 173, 1362. 10. Judge empowered to grant. Section 638 of the Code provides that the warrant may be granted by a judge of the court, or by any county judge. But sec. 772 provides that such orders can be made only by the UNDERTAKING BY PLAINTIFF TO OBTAIN. 89 county judge of the county where the action is triable, or in which the attorney for the applicant resides. 11. At what time may issue. The warrant may be granted to accompany the summons, or at any time after the commencement of the action, and before final judg- ment therein ; Code, § 638 ; American Exchange Bk. v. Voisin, 44 Hun, 85 ; 7 N. Y. State Rep. 381 ; 26 N. Y. Week. Dig. 471. The affidavit need not show affirma- tively that an action has been commenced or a summons issued. It suffices that this has been actually done ; Wallace & Sons V. Castle, 68 N. Y. 370 ; Stevens v. Middleton, 26 Hun, 470 ; Pickliardt v. Kuttroff, 27 id. 69 ; Stoiber v. TTiudium, 4A id. 70 ; 26 N. Y. Week. Dig. 308. III. — Summons must be served 'when. Personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof, or else before the expiration of the same time service of the summons by publication must be commenced, or service thereof must be made without the State pursuant to an order obtained therefor ; Code, § 638. Personal service made without the State, pursuant to an order obtained therefor, as prescribed by sees. 438, 440 of the Code is a sufficient compliance with the law ; United Verde Copper Co. v. Tritle, 20 Abb. N. C. 57. A request on the part of the defendant to suspend legal proceedings does not excuse a failure on the part of the plaintiff to cause the summons to be served or published as prescribed by sec. 638 ; Marrieta v. Saenz, 80 N. Y. 547. A general appearance by the defendant is equiv- alent to personal service of the summons upon him ; 90 PKACTICE IN ATTACHMENT OF PKOPEKTT. Clare v. LocTcard, 122 N. Y. 263 ; 33 N. Y. State Rep. 328. But a general appearance by the defendant after the thirty days allowed for the service of the summons does not revive the jurisdiction which attached upon granting the warrant ; Blossom v. Bstes, 84 N. Y. 614 ; 22 Hun, 472 ; 59 How. 387. The commencement of the publication of a summons on the thirtieth day after granting of the warrant is too late; Union Distilling Co. v. Buser, 16 N. Y. Supp. 50 ; 40 N. Y. State Rep. 689 ; 62 Hun, 625 ; Taylor v. Troncoso, 76 N. Y. 599 ; except when the thirtieth day comes on Sunday, it must be excluded, and service on the next day meets the requirement ; Oribhon v. Freel, 93 id. 93. The fact that the defendant died and proceed- ings were had bringing in his representatives, does not extend the time prescribed by the statute for serving the summons ; Kelly v. Countryman, 15 Hun, 97. But the appearance of the defendant in the action and his waiver of farther publication of the summons after the publica- tion has been duly commenced, is sufficient to cure any irregularity as to service ; Tuller v. BecTc, 108 N. Y. 355 ; Catlin v. Moss, 2 Civ. Pro. Rep. 201. The publi- cation, in order to preserve the lien of the attachment, must be made under a valid order ; Ladd v. Terre Haute C. & M. Co., 13 Week. Dig. 209. But the amend- ment of the summons and the continuance of its publi- cation in its amended form is a sufficient compliance with the statute ; Beimel v. ScTiemland, 9 N. Y. Supp. 482 ; 29 HT. Y. State Rep. 713 ; 30 id. 860. A substituted service within the thirty days, pursuant to section 425 of the Code, is not sufficient to satisfy the requirements of the statute ; Bogart v. Sweezey, 26 Hun, 463. tTNDEETAKIKG BY PLAINTIFF TO OBTAIN. 91 IV. — Second attachment by same creditor. A plaintiff, after having obtained one warrant of attachment and order of publication, may abandon them and take out a new attachment and order, provided this course is not pursued for the mere purpose of vexation. Several attachments may be issued in the same action to different counties ; Code, § 641 ; and if one should be defective, or fail for any reason, there is nothing which prohibits an application for a new one, and the same aflBdavit that was used on the application for the first attachment may be used on the application for the second ; Morjarrieta et al. v. Saenz et al., 80 N. Y. 551. V. — Two or more irarrants against the same defendant. 12. Preferences as to warrants. Section 697 of the Code of Civil Procedure provides that "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, has been made under a junior warrant are the same, as where two or more executions against the property of the same defendant are delivered to the sheriff of the same county to be executed." Section 1406 provides that "where two or more executions against property are issued out of the same or different courts of record against the same judg- ment-debtor, the one first delivered to an officer to be executed has preference, notwithstanding that a levy is first made by virtue of an execution subsequently delivered." While the first section quoted provides for the order of preference where two or more warrants of attach- 92 PRACTICE IN ATTACHMENT OF PBOPERTT. ment are delivered to the sheriff, and the second, where two or more executions are issued to him. Section 1407 makes provision for a situation presented by the de- livery to the sheriff of executions and warrants of attachment. It declares that "where there are one or more executions and one or more warrants of attachment against the property of the same person, the rule pre- scribed in the last section (1406) prevails in determining the preferences of the executions or warrants of attach- ment, the defendant in the warrants of attachment being for that purpose regarded as the judgment- debtor." Thus by statute it is made the duty of the sheriff to give preference in the application of the pro- ceeds of a sale under junior executions to a prior war- rant of attachment, although no levy be made there- under ; PacTi V. OilherU 124 N. Y. 612 ; 37 N. Y. State Rep. 218. Where a second warrant, against the same defendant, 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 ; Code, § 698. In Yan Camp v. Searle, 61 N. Y. State Rep. 358, a question arose in respect to the proceeds of accounts collected by the sheriff, and the sale of real property, and the order in which the attaching creditors were entitled to payment — whether in the order of the receipt of the attachments by the sheriff or the levy of them upon such property, and upon that subject the court say: "The statute provides that, where two or more warrants of attachment against the same defendant are deli vered to the sheriff to be executed, their respective preferences are the same as where two or more execur TJNDEKTAKING BY PLAINTIFF TO OBTAIN. 93 tions against the property of the same defendant are delivered to the sheriff. And as to the executions, it is provided that the one first delivered to the sheriff to be executed has preference notwithstanding the levy is first made by virtue of an execution subsequently delivered to him. Sucli is the rule applicable to personal pro- perty subject to levy of execution. But as the sheriff cannot take real property into his custody, it is neces- sary, to constitute tlie levy of an attachment upon it, that he file with the clerk of the county in which it is situated, a notice of the attachment, stating the names of the parties to the action, the amount of the plaintiff's claim, as stated in the warrant, and a description of the property levied upon, the notice to be also subscribed by the plaintff's attorney. The levy of the attachment is essential to make it available as a lien. And it is the duty of the sheriff, to whom an attachment is delivered, to immediately levy it upon the property, personal and real, of the defendant. He is thus required to levy them, if there be more than one, in the order in which they are received by him ; and, for his neglect to levy such pro- cess, he may be liable to the plaintiff for the conse- quences. In view of the duty imposed upon the ofiicer, in levying attachments, it was evidently contemplated by the statute, that they would be levied in the order of their receipt by him, and for that reason there is no distinction in that respect made in its application to personal and real property, * * * . And as an actual levy is necessary to create the lien of an attach- ment upon property, it would seem, that when several of them are levied upon the same real property of a defend- ant, the order of preference or priority would be the same, and founded upon the like reason, as that applic- 94 PEACTICE IN ATTACHMENT OF PROPERTY. able to levy of attachments on his personal property, in the absence of any different rule upon the subject. * * And, therefore, the liens of the attachments levied upon the real property of Van Camp are entitled to priority in the order in which they were delivered to the sheriff;" Warner v. ITotcrtTt Nat. Bank, 115 N. Y. 251 ; 26 N. Y. State Rep. 213. 13. Amount to levy. An attachment directs the sheriff to safely keep so much of the property attached as will satisfy the attachment demand, with costs and ex- penses ; Code, § 641. He has the right to a reasonable judgment as to the amount to be held. He is responsible to both parties for the exercise of a sound and reason- able discretion in performing his daty. The plaintiff has no authority to dictate the extent of the levy any more than the defendant has to limit it. How long the attachment suits will continue before final determination, how much of interest and costs will accumulate upon the debt, it is impossible to foresee ; WeTile v. Conner, 83 N. Y. 231. VI. — Personal property. 14. In general. Whatever may be levied on and sold under execution, may be attached ; Patterson v. Perry, 10 Abb. 82. And in addition to such property, the rights and shares which the defendant has in the stock of an association or corporation, together with the interest and profits thereon, may be levied upon; Code, § 677; and under a warrant of attachment against a foreign corpor- ation other than one created by or under the laws of the United States, the sheriff may levy upon the sum remain- ing unpaid upon a subscription to the capital stock of the corporation, made by a person within the county ; UNDERTAKING BY PLAINTIFF TO OBTAIN. 95 id. 646. Bat shares owned by a non-resident defendant in the stock of a foreign corporation, cannot be reached ; Plimpton V. Bigelow, 93 N. Y. 592. A domestic cor- poration is a corporation created by or under the laws of the State, or located in the State, and created by or under the laws of the United States, or by or pursuant to the laws in force in the colony of New York before the 19th day of April, 1775 ; Code, § 3343, subd. 18. VII. — How tangible personal property must be attached. 15. In general. Section 649 of the Code, subd. 3, provides how tangible personal property is to be attached. It says that under a warrant of attachment a levy must be made upon a bond, promissory note or other instrument for the payment of money, by taking the same into the sheriff's actual custody. The debt represented by these instruments, therefore, cannot be recovered disregarding these evidences of the debt. A bond, note, &c., can be attached in no other manner than by taking the same into actual custody, being expressly excepted from the provision whereby other obligations, not similiarly evidenced, may be attached, namely, by leaving a certified copy of the warrant, &c., with the person against whom such demand exists; id. sudb. 3 ; and "further evidences of debt" are expressly defined to be "personal property;" Code, §3343, subd. 7; Anthony v. Wood, 96 N. Y. 180; Nassau Bank v. Yandes, 44 Hun, 55 ; 8 N. Y. State Rep. 422 ; 26 N. Y. Week. Dig. 486 ; Von Hesse v. MacTcaye, 55 Hun, 365 ; 29 N. Y. State Rep. 228 ; 8 N. Y. Supp. 894 ; 121 N. Y. 694. 16. Money. There can be and is no levy upon money under an attachment, until the officer executing the writ 96 PRACTICE IN ATTACHMENT OF PROPERTY. takes the money into his custody ; McAllister v. Bailey, 14 Civ. Pro. Rep. 401. So no lien can be secured upon personal property tangible in its character unless there be a manual seizure ; United States v. Groff, 67 Hart, 304 ; PacTi v. Gilbert, 17 Civ. Pro. Rep. 399 ; 127 N. Y. 583 ; 40 N. Y. State Rep. 317 ; 16 id. 484. The attachment of the principal debt carries with it all collateral security, and it is not necessary to attach the collaterals separately; WeMe v. Spellman, 75 N. Y. 585. 17. Choses in action, bonds, notes, etc. An attach- ment may be levied upon a cause of action arising upon contract, including a bond, promissory note, or other instrument for the payment of money only, negotiable or otherwise, whether past due or yet to become due, which belongs to the defendant, and is found within the county ; Code, § 648. VIII. — Inventory. Sec. 654 of the Code prescribes that the sheriff must, immediately after levying under a warrant of attachment, make, with the assistance of two disinterested freeholders, a just and true inventory of the personal property upon which it was levied, and of the books, vouchers and other papers taken into his custody, stating therein the estimated value of each article of personal property, enumerating such 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 the clerk of the county where the property is attached. IX. — Legal title in debtor. An attachable claim must be a legal debt, and abso- UNDERTAKING BY PLAINTIFF TO OBTAIN. 97 lutely payable afc present or in the future, and not dependent upon any continji-ency ; Bills v. Nat. Park BTc., 89 N. Y. 343; 47 N. Y. Supr. 302. Debts and choses in action are to be regarded under the attachment laws, as legal assets, whenever the attachment acts directly upon a legal title, but when they are so situated as to require the exercise of the equitable powers of the court to place them in that situation, they are to be treated as equitable assets only. Where the service of the summons is personal, no authority is conferred to institute actions to reach mere equitable assets, or to bring in other parties for the purpose of attacking trans- fers of such property as fraudulent, in such cases ; that is the office of a creditor's bill, founded upon a judg- ment and execution ; Thurher v. Blanck, 50 N. Y. 80. In short, the ojDeration of the process is confined to legal debts contradistinguished from equitable demands ; HanMnsan v. Page, 19 Abb. N. C. 274 ; 12 Civ. Pro. Rep. 279. Thus the bona fides of the transfer of a debt can only be raised by a judgment-creditor of the trans- ferer in the action to enforce the equity of the creditors of such transferer. This equity is not the subject of a levy under an attachment; Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83. But it is different where the summons is served by publication or without the State, and there is no appearance by defendant ; in such a case the sheriff may bring an action before judgment to reach the equitable interest of the debtor or to set aside any assignment of the claim ; Code, § 655, subd. 2. X. — Property in sheriff's hands. The doctrine that money actually collected and in the 7 98 PEAOTICE IN ATTACHMENT OF PEOPEETY. sheriff's hands should not be attached, if adopted by the courts, would graft upon the enactment of the legis- lature an exception which that body has not seen fit to make. In WeJile v. Conner, 83 N. Y. 238, the sheriff had collected an execution against the defendant in the execution, and while the money was in the sheriff's hands, the defendant, who had paid the money, obtained an attachment against the property of the plaintiff in the action in which the execution was issued, and attached the money which he had paid the sheriff. In that case the court say : "The attachments were issued for the purpose of preventing the collection by plaintiff of her judgments. It is said it was a scheme to nullify a valid process of the court, but if so, it was done by another valid process of the court, an event not at all of uncommon occurrence. That the judgment-debtor was also the attaching creditor is a fact pressed upon our attention. It is a fact in the case. The question asked is, whether it is allowable. We are unable to see why it is not. The law which permits the issue of such attach- ment awards it to all creditors who bring themselves within its provisions. The case of Baker v. Kenworthy, 41 N. Y. 215, held that as an execution directs the taking of the goods and chattels of the defendant, and that money not yet paid over to him, though he has the right to have payment of it, is not his goods, there can be no caption of it as such. PROCEKDINGS UNDER WARRANT. 99 CHAPTER VI. PROCEEDINGS UNDER WARRANT. I. — Goods on board vessel — how attached. 1. Undertaking by plaintiff, to owner, &e., of vessel. II. — Keal estate — levy on. 2. Notice — sheriff's duty as to. 3. Contents of notice. III. — Service of attachment. 4. How made. IV. — Exemptions of real property from levy and sale by. 5. Land held by contract. 6. Burying ground, exempt when. 7. Homestead. 8. Homestead of married women. 9. When exemption continues after owner's death. 10. When value of homestead exceeds $1,000. 11. Omission of sherifTto file notice. V. — Inventory. VI.— Actual custody of sheriff — meaning of. VII. — Priority of lien between attachment and execution crditors. 12. Ohoses in action and evidences of debt. VIII.— Delivery of copy of attachment papers, to person in posses- sion of property. IX. — Keeping of property by sheriff. 13. In general. 14. Paying money into court and restoring property. X. — Property in hands of receiver may be taken, when. XI. — Perishable goods and animals to be sold. 15. In general. 16. Perishable goods, what are. 17. Illustrations. 18. Indemnifying sheriff XII.— Partnership property. 19. In general. 20. Exempt when. 21. Attachment of interest of one partner for firm debt — effect of insolvency of firm. XIII.— Money deposited with clerk of the court. I, — Goods on board vessel — hoTv attached. 1. Undertaking by plaintiff to owner, &c., of vessel. Except where the owner or master of a vessel, on board 100 PRACTICE IN ATTACHMENT OP PROPERTY. of which goods of a defendant against whom a warrant of attachment is issued, have been shipped for trans- portation, without reshipment, or transhipment, in the State, to a port or place without the State, before the shipment, has actual information of the granting of the warrant against the defendant, or when he has connived at, or been privy to, the ship- ment thereof, for the purpose of screening the de- fendant's goods from legal process, or of hindering, delaying, or defrauding his creditors, he may transport and deliver such goods, according to their destination; unless the plaintiff gives such master, or owner, an undertaking, 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 subjected, for unlading the goods from the vessel, and for all necessary detention of the vessel for that pur- pose ; Code, §§ 652, 653. The Code carries out to some extent the common-law rule, by making it lawful for the master to proceed on the voyage, notwithstanding the issuing of any attach- ment, unless a bond is given conditioned to pay all expenses, damages and charges which may be incurred. Both the common-law and the statute recognizes the right of the master or ship owner to a lien for freight, expenses and charges, and for liability upon outstand- ing bills of lading, and they are co-extensive with the value of the goods. An attachment cannot be levied. The sheriff is commanded to levy the goods of the defendant in the action. Goods on shipboard for trans- portation are not his goods. A lien, in the nature of a special property, exists in favor of the vessel. Neither the shipper nor sheriff has any more right to seize the PEOCEEDINGS UNDEE WARRANT. goods, without furnishing indemnity, than any stranger> The condition precedent to the sheriff's right to inter- fere with the property is the indemnity which the law requires, and without furnishing this indemnity, he is a trespasser, unless he can show one of the facts men- tioned in section 653 of the Code. Where the plaintiff in the attachment furnishes the undertaking required by section 652, he is only liable for actual damage ; Campbell v. Conner, 70 N. Y. 424. II. — Real estate — Levy on. 2. Notice — Sheriff's duty as to. By section 644 of the Code, the obligation is on the sheriff to immediately execute the warrant, by levying on so much of the personal and real property of the defendant, within his county, and not exempt, as will satisfy the plaintiff's demand, &c. Section 649, subd. 1, prescribes how a levy must be made on real estate, and the filing of the notice is an essential part of it. It cannot be completed with- out it. The filing is, therefore, within the direct line of the official duty of the sheriff. The fact that the attorney must sign the notice does not make it the duty of the attorney to make or complete tl e levy. The notice in the question takes the place of the notice of pendency under the old Code, Lewis v. Douglass, 53 Hun, 587 ; 6 JST. Y. Supp. 888 ; 25 N. Y. State Rep. 240. 3. Contents of. The notice must set forth the names of the parties to the action, the amount of the plaintiff's claim as stated in the warrant of attachment, and a description of the particular property levied upon. It is not sufficient to describe the property as "all the real estate of the defendant, or in which he may have an interest, situate in Oswego county;" Jaffray v. Brown, 17 Hun, 575 ; 74 N. Y. 393. 102 PRACTICE IN ATTACHMENT OF PROPERTY. III.— Service of attachment. 4. How made. Section 644 of the Code prescribes that the sheriff must immediately execute the warrant by- levying upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff's demand, with the costs and expenses. He must take into his custody all books of account, vouchers and other papers relating to the personal property attached, and all the evidences of the defendant's title to the real property attached. He may levy from time to time, and as often as is necessary, until final Judgment in the action, notwithstanding the expiration of his term of office ; Lynch v. Crary, 52 N. Y. 181. Where the levy is made under subd. 2 of § 649, the officer must, without delay, deliver to the person from whose possession the property is taken, if any, a copy of the warrant, and of the affidavits upon which it was granted. IV. — Exemptions of real property from levy and sale by. 5. Land held by contract. Section 644 of the Code permits the levy of an execution or attachment only upon property "not exempt from levy and sale by virtue of an execution," and § 1253 provides that "the interest of a person holding a contract for the purchase of real property is not bound by the docketing of a judgment, and cannot be levied upon nor sold by virtue of an execu- tion issued upon a judgment." Section 645 provides that ' ' the real property, which may be levied upon by virtue of a warrant of attachment, includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant." This was a new PROCEEDINGS UNDEE WARRANT. 103 provision, introduced by the Code, and was evidently intended, as indicated by the revisor's note to the section, to extend the provisions of § 644 to all cases of alienable legal title or interest in lands, though not vested. It did not remove the restrictions imposed by sec. 644, and sec. 1253, nor change the rule vs^hich existed under the Revised Statutes and the Code of Civil Pro- ceedure, to the effect that the equitable interest in question vpas not subject to levy by execution, and could be reached by a creditor only by proceedings in the nature of a creditor's bill after judgment, and the return of an execution unsatisiied. But the interest of a defendant under a contract for the purchase of land, upon vrhich he has made partial payments, and is in possession and entitled to a conveyance upon completing his payments, can be levied upon by virtue of an attach- ment duly issued against him in a court of record ; Higgins v. McConnel, 130 N. Y. 482. The question whether the interest of a person holding a contract for the purchase of land was bound by a judg- ment and could not be sold upon execution, was, prio.t to the Revised Statutes, the subject of frequent and con- flicting decisions. The Court of Errors in 1819, on Bogert V. Perry, 17 Johns. 351, held that it could not be, but the Supreme Court subsequently held that it could be, if the holder of the contract was in possession ; Jackson V. ParTcer, 9 Cow. 73 ; Jackson v. Scott, 18 Johns. 94. Tlie Revised Statutes provided that such an interest should not be bound by the docketing of any judgment or decree, nor sold by execution issued thereon, 1 R. S., m., p. 744, § 4. The question, as we learn from the revisor's notes, was one of public policy, and in order to mitigate the injustice of the rule adopted, the following 104 PKACTJCE IN ATTACHMENT OF PKOPEETY. sections provided that sucti an interest might be readied by means of an action in the nature of a creditor's bill. These provisions are substantially re-enacted in sees. 1253, 1874-5 of the Code of Civil Procedure ; the corre- sponding provisions of the revised statutes were repealed by chapter 245, Laws 1880. Sectipn 1253 provides that "The interest of a person holding a contract for the purchase of real property is not bound by the docketing of a judgment, and cannot be levied upon or cannot be sold by virtue of an execution issued upon a judgment." It is hence argued that the interest cannot be attached. But the argument is unten- able if this section and sec. 645 are reconcilable one with the other. It does not necessarily follow that a provision as to the effect of a judgment and execution, in the absence of an attachment, controls other provisions as to their effect when aided by an attachment. Section 1370 pre- scribes the requisites of an execution where a warrant of attachment issued in the action has been levied by the sheriff. Section 708, subd. 2, prescribes the duty of the sheriff to whom such an execution is issued. He does not relevy upon any of the attached property ; the execu- tion simply authorizes him to sell it. There are valid reasons why an attachment should reach the interest of a holder of a contract for the pur- chase of land. He may be a non-resident and never come within the State so that personal service can be made upon him. In such case the personal judgment which must precede a judgment-creditor's action cannot be obtained. But if his interest can be seized upon attachment, jurisdiction of that interest can be obtained and it can be disposed of to satisfy the domestic creditor; PROCEEDINGS UNDEE WAERANT. 105 Code Civ. Pro., &c. The reasons which withdraw the interest in question from the binding force of a judg- ment and execution are technical, and the relaxation of the rule in the case of attachments seem to be in the interest of substantial justice. The letter of sec. 645 per- mits this attachment ; other provisions show the policy of the law to be to extend the scope of this remedy ; it can scarcely be doubted that when the framers of sec. 645 employed the words " any interest in real property" to indicate what was attachable, that this peculiar interest which had engaged the attention of the courts and legis- lature was considered ; and if we concede that it was not, it would still remain to be held that, if it had been considered, the language of the section would have been different. It was held in WrigJit v. Douglass, 2 N. Y. 376, in reference to the provision for the attachment, " all the estate, real and personal, of such corporation," that "the statute in terms applies to an equitable as well as legal interest in lands." Section 645 does not appear to be less comprehensive, and we see no reason why it should be narrowed by construction. 6. Burying ground. Section 1395 of the Code of Civil Procedure prescribes that land, set apart as a family or private burying ground, and heretofore designated, as prescribed by law, in order to exempt the same, or hereafter designated for tliat purpose, as prescribed in the next section, is exempt from sale by virtue of an execution, upon the following conditions only : 1. A portion of it must have been actually used for that purpose. 2. It must not exceed in extent one-fourth of an acre. 3. It must not contain, at the time of its designation, or at any time afterwards, any building or structure, 106 PRACTICE IN ATTACHMENT OF PROPERTY. except one or more vaults, or other places of deposit for the dead, or mortuary monuments. In order to designate land, to be exempted as pre- scribed in the last section, a notice, containing a full description of the land to be exempted, and stating that it has been set apart for a family or private burying ground, must be subscribed by the owner ; acknowl- edged or proved, and certified in like manner as a deed to be recorded in the county where the land is situated ; and recorded in the office of the clerk or register of that county, in the proper book for recording deeds, at least three days before the sale of the land, by virtue of the execution; Code, § 1396. 7. Homestead — when exempted. A lot of land with one or more buildings thereon, not exceeding in value one thousand dollars, owned and occupied as a residence, by a householder having a family, and heretofore desig- nated as an exempt homestead, as prescribed by law, or hereafter designated for that purpose, as prescribed in the next section, is exempt from sale bj'^ virtue of an execution, issued upon a judgment, recovered for a debt contracted after the thirtieth day of April, eighteen hundred and fifty : unless the judgment was recovered wholly for a debt or debts contracted before the desig- nation of the property, or for the purchase money thereof. But no property heretofore or hereafter desig- nated as an exempt homestead, as prescribed by law, or by the next section, shall be exempt from taxation, or from sale for non-payment of taxes or assessments ; Code, § 1397. In order to designate property to be exempted as pre- scribed in the last section, a conveyance thereof, stating in substance that it is designed to be held as a home- PROCEEDINGS UNDER WARRANT. 107 stead, exempt from sale by virtue of an execution, must be recorded, as prescribed by law ; or a notice, contain- ing a full description of the property, and stating that it is designed to be so held, must be subscribed by the owner, acknowledged or proved, and certified in like manner as a deed to be recorded in the county where the property is situated ; and must be recorded in the office of the clerk of that county, in a book kept for that pur- pose, and styled the "homestead exemption book;" Code § 1398. 8. Married women's homestead — when exempted. A lot of land, with one or more buildings thereon, owned by a married woman, and occupied by her as a residence, may be designated as her exempt homestead, as pre- scribed in the last section ; and the property so desig- nated is exempt from sale, by virtue of an execution, under the same circumstances, and subject to the same exceptions as the homestead of a householder having a family. Code, §1399. 9. When exemption continues after owner's death. The exemption prescribed by the last three sections, continues, after the death of the person in whose favor the property was exempted, as follows : 1. If the decedent was a woman, it continues, for the benefit of her surviving children, until the majority of the youngest surviving child. 2. If the decedent was a man, it continues, for the benefit of his widow and surviving children, until the majority of the youngest surviving child, and until the death of the widow. But the exemption ceases earlier, if the property ceases to be occupied as a residence, by a person for whose 108 PEACTICE IN ATTACHMENT OF PKOPEETY. benefit it may so continue, except as otherwise pre- scribed in the next section ; Code, § 1400. The right to exemption, of a person entitled thereto, as prescribed in the last four sections, is not affected by a suspension of the occupation of the exempt property as a residence, for a period not exceeding one year, which occurs in consequence of injury to, or destruction of, the dwelling house upon the premises ; Code, § 1401. 10. When value of homestead exceeds $1,000, lien attaches to surplus. The exemption of a homestead, otherwise valid under the provisions of this article, is not void, because the value of the property, designated as exempt, exceeds one thousand dollars. In that case the lien of a judgment attaches to the surplus, as if the property had not been designated as an exempt home- stead ; but the property cannot be sold by virtue of an execution, issued upon a judgment, as against which it is exempt. After the return of such an execution, the owner of the judgment may maintain a judgment- creditor' s action to procure a judgment, directing a sale of the property, and enforcing his lien upon the sur- plus ; Code, § 1402. Where the judgment, in a judgment-creditor's action, brought as prescribed in the last section, or in any other action affecting the title to an exempt homestead, directs the sale of the propertj^ the court must so mar- shal the proceeds of the sale that the right and interest of each person in the proceeds shall correspond, as nearly as may be, to his right and interest in the prop- erty sold. Money, not exceeding one thousand dollars, paid to a judgment debtor, as representing his interest in the proceeds, is exempt for one year after the pay- PROCEEDINGS UNDEK WAEKANT. 109 ment, as the property sold was exempt, unless, before the expiration of the year, he causes real property to be designated as an exempt homestead, as prescribed in section 1398 of this act ; in which case, the exemption ceases, with respect to so much of the money as was not expended for the purchase of that property ; and the exemption of the property so designated extends to every debt against which the property sold was exempt. Where the exemption of property, sold as prescribed in this section, has been continued after the judgment debtor's death, or where he dies after the sale, and before payment to him of his portion of the proceeds of the sale, the court may direct that portion of the proceeds which represents his interest to be invested for the benefit of the laerson or persons entitled to the benefit of the exemption, or to be otherwise disposed of as justice requires; Code § 1403. The owner of real property, exempt as prescribed in this article, may, at any time, subscribe a notice, and personally acknowledge the execution thereof, before an officer authorized by law to take the acknowledgment of a deed, to the effect that he cancels all exemptions from levy or sale by virtue of an execution, affecting the property, or a particular part thereof, fully described in the notice. The cancellation takes effect when such a notice is recorded as prescribed in this article for recording a notice to effect the exemption so canceled. Any other release or waiver, hereafter executed, of an exemption of real property allowed by this article or of an exemption of a homestead, or private burying ground, allowed by the provisions of law heretofore in force, is void. A mortgage hereafter executed upon property so exempt is ineffectual, until the exemption 110 PRACTICE IN ATTACHMENT OF PROPERTY. has been canceled as prescribed in this section ; except that such a mortgage is validate the extent of the pur- chase money of the same property secured thereby; Code, § 1404. 11. Omission of sheriff to file notice. Ifc seems that an omission to file notice as prescribed by section 644 of the Code, until after another creditor has obtained a judg- ment against the defendant, will not have the effect to render the lien of the judgment prior to the lien of the attachment. Such notice, or want of it, only afEects a subsequent purchaser, or incumbrancer, whose convey- ance or incumbrance is afterwards executed or recorded ; Rodgers v. Bonner, 55 Barb. 9 ; 45 N. Y. 379. V. — Inventory. Section 654 of the Code prescribes that the sheriff must, immediately after levying a warrant of attach- ment, make, with the assistance of two disinterested freeholders, a description of the real property, stating therein the estimated value of each parcel attached, or of the interest of the defendant therein, which inventory must be signed by the sheriff and the appraisers, and filed in the clerk's oflBice of the county where the property is attached, within five days after the levy ; and section 681 provides that "upon the appli- cation of either party, and proof of the neglect of the sheriff, the court or judge may, by order, require the sheriff to return an inventory, and that disobedience to such an order may be punished as a contempt of the court." But as the inventory is for the benefit of the creditor, it seems that the omission to make and return such inventory would not of itself invalidate a levy under attachment, if otherwise sufficient; McGuirey. PROCEKDINGS UNDEK WARRANT. Ill jRoss, 11 Abb. Pr. (N. S.) 20. It seems that if the filing of an inventory within five days after the levy of the attachment was intended as a jurisdictional requirement, the law makers would not have provided for the enforce- ment of the return thereof as prescribed by section 681 of the Code. For the purpose of a levy of an attach- ment upon real estate, it is not necessary that the officer should go upon or even see the land ; and it seems that the lien of an attachment in the sheriff's hands takes precedence to a judgment docketed, after the attachment is placed in the sheriff's hands, but before the filing of the notice prescribed by subd. 1 of sec. 649 ; Rodgers v. Bonner, 45 N. Y. 379. VI, — Actual custody of sheriff — meaning of. Where the property sought to be attached is "capable of manual delivery, the sheriff must take it into his actual custody." It was said in Bills v. Nat. Park B7c., 89 N. Y. 351, to be the law that a debt evidenced by a negotiable security can be attached while in the hands of the attachment debtor, by serving the attachment upon the maker of the security, but the effect of sees. 648, 649 of the Code was not considered. Section 649 prescribes that the levy must be made "by taking the property into the sheriff's actual custody, who must, therefore, without delay, deliver to the person from whose possession the property is taken, if any, a copy of the warrant and of the affidavit upon which it was granted." No other mode is prescribed. Nothing else will constitute the levy. Until the officer has obtained the actual custody, he has made no levy, and can make none. He is armed with power to get such custody. He may proceed by action, or special proceeding, to 112 PEACTIOE IN ATTACHMENT OF PROPERTY. reach that result, but until he has reached it he has made no levy, and can make none. The courts have nothing to do with the wisdom of the rule, and can only- en force it as it is plainly written. In Anthony v. Wood et al., 96 JST. Y. 187, the court says that until a sheriff takes a note, bond or mortgage, into his actual custody, he acquires no title to, or lien upon it, whether before or after the assignment thereof. The same rule applies to all other instruments which are unilateral contracts for the payment of money only ; Ilankinson v. Page, 19 Abb. N. C. 274 ; 12 Civ. Pro. Rep. 279. No formal levy or notice is needed where the property is already in the sheriff's hands. VII. — Priority of lien bet^veen attachment and execution creditors. 12. Choses in action and evidences of debt. Sections 1406 and 1407 of the Code regulating the order of pref- erence among execution and attaching creditors, does not apply to cases where choses in action or equitable interests are taken under attachment, for the reason that they cannot be taken under an execution. The judg- ment creditor has an effectual remedy by supplementary proceedings under sec. 2441 ; First Nat. Bk. of Chicago V. Beinitz, 24 N. Y. State Rep. 740 ; 16 Civ Pro. Rep. 307; 4 1^. Y. Supp. 801. VIII. — Delivery of copy of attachment papers, to persons in possession of property. The last clause of subd. 2 of sec. 649 of the Code pro- vides that the officer must, without delay, after taking actual custody of chattels, deliver to the person from whose possession the property is taken, if any, a copy of the warrant and of the affidavit upon which it was PROCEEDINGS UNDER WARRANT. 113 granted. This clause seems to be directory merely. Had the language been to the effect that the levy shall be made by taking the property into the actual custody of the sheriff, and by his delivering a copy, &c., the case would have been different. But that is not its effect. The clause requiring the delivery of a copy of the papers is not a part of the original section. It was not intended to add to what was previously required to constitute a levy, but it imposed upon the sheriff a duty to be performed, without delay, after the levy was made ; Adams v. ^eelman, 39 Han, 35 ; 124 N. Y. 666. IX. — Keeping of property by sheriff. 13. In general. The sheriff must keep the property attached by him, or the proceeds of the property sold, or of a demand collected by him, to answer any judgment that may be obtained against the defendant ; Code, § 674. It was held in Oray v. Sheridan Electric Light Co., 19 Abb. N. C. 152, that a sheriff cannot, under attachment against machinery in use, lock up the prem- ises and exclude the defendant therefrom ; and in Garden v. 8abey, 10 Week. Dig. 33, it was held that a sheriff who, by virtue of an attachment, seizes books pertaining to the defendant's biisiness, has no right to submit them to the examination of plaintiff, nor to experts acting in behalf of plaintiff, nor to examine them himself, except for the purpose of his trust, and only as is necessary to execute the process. But the plaintiff, by leave of the court, may examine them, so far as is necessary to enable him to enforce the attach- ment ; BrooTc v. Foster, 20 Abb. N. C. 200. 14. Paying money into court, and restoring property. An order may be obtained by either party to the action, 8 114 PRACTICE IN ATTACHMENT OF PROPERTY. directing the sheriff to pay into court the proceeds of a demand collected, or property sold, or to deposit them in a designated bank or trust company, to be drawn out only upon the order of the court ; Code, § 675 ; and where the proceeds of the property sold, and of the demands collected by the sheriff, exceed the amount of the plaint- iff's demand with the costs and expenses, and of all other warrants of attachment or executions in the sheriffs 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 ; Code, §676. X. — Property in hands of receiver may be taken — when. Where the property of a partnership or other associa- tion has been placed in the hands of a receiver, upon the application of a member thereof, the receiver is a mere liquidator of the parties, and such property may be taken on a warrant of attachment against the firm or association; Webster v. Lawrence, 47 Hun, 565; 15 W. Y. State Rep. 140. So funds in the hands of a collection agent may be attached ; Naser v. First Nat. BTc., 116 N. Y. 492. XI.— Perishable goods and animals to be sold. 15. In general. If property attached, other than a vessel, is perishable, the court or judge may, by an PKOCEEDINGS UNDER WARRANT. 115 order made with or without notice, direct the sheriff to "" sell it at public auction, and thereupon the sheriff must sell it accordingly. If it consists of live animals, the court may, upon notice to the parties to the action, make an order directing their sale. The order in either case must prescribe the time and place of sale, and notice must be given in such manner, and for such time, as is prescribed in the order ; Code, § 656. This provision was intended to prevent loss either to the debtor or creditor, by the depreciation of attached property, and should be construed to further its object and purpose ; the con- struction approved in Fisk v. Spring, 62 How. Pr. 510, is too circumscribed. 16. Perishable goods — what are. Perishable goods are those which are lessened in value and become worse by being kept ; 2 Bouveer Law Die. 330. Speedy sales of perishable property proceed upon the principle of necessity. To permit property to deteriorate or become worthless by the law's delay, would be to impair, if not defeat, the object of the attachment. To keep property until it deteriorates in value is to do an injury to all con- cerned, and this is certainly not tlie policy of the law. The purpose of the attachment is to realize money ; the net amount received is credited to the defendant, and it is to the interest of all that the attached goods be sold while in their best condition, and calculated to bring the best prices. Excepting a vessel from the term, "perishable" property implies that, but for the exception, a vessel might be sold as perishable property. The language certainly indicates that the term ' ' perishable ' ' property was to receive a liberal and not a literal, technical, or narrow construction. 116 PKACTICE IN ATTACHMENT OF PEOPERTY. In Schuman v. Davis, 34 N. Y. State Rep. 698 ; 26 Abb. N. C. 125 ; 13 N. Y. Supp. 575 ; 19 Civ. Pro. Rep. 348, it was held that goods which are liable to dete- riorate and become of less value by being kept, such as woolen goods which are liable to become hard and unfit for use, moth-eaten, and injured by dust and dirt, are perishable property. 17. Illustrations. Upon the death of a plaintiff in an attachment suit, an order of sale of attached perishable property can legally be made before the action is revived ; Butler v. Woods, 48 Mo. App. 494. It seems that the title of a purchaser of attached personal prop- erty sold under the court's order as perishable cannot be assailed in a collateral action ; Butler v. Woods, 43 Mo. App. 494. 18. Indemnifying sherilf. Attaching creditors who refuse to indemnify the sheriff cannot claim the avails of the attached property as against creditors holding subse- quent attachments who have furnished indemnity ; Gudahy v. Rinehart, 133 N. Y. 248 ; 28 Abb. N. C. 327. Thus when there are several attaching creditors of the same property, the title to which is in dispute, and on demand, some give indemnity to the sheriff and others refuse to do so, the latter will be precluded from claim- ing the avails of the attached property, though their attachments may be prior to that of those who give indemnity ; Smith v. Osgood, 46 N. H. 178 ; Drake on Attachment, § 189. XII. — Partnership property. 19. In general. A member of a copartnership, severally, has no individual interest in the firm property, except in the surplus that should remain after adjustment and PEOCEEDINGS UNDER WARRANT. 117 settlement of the partnership affairs. And if the firm is insolvent, the individual members have no attachable interest ; Staats v. Bristow, 73 N. Y. 264 ; Menagh v. WMtwell, 52 id. 146 ; Morse v. Oleason, 64 id. 204 ; TorUll V. West, 86 id. 280. The right of property for the purpose of paying the partnership debts, as against the appropriation of it to the payment of debts of the individual member, whether voluntary on their part or by means of legal process, in behalf of their creditors, may be asserted by the firm ; and it is through the equities of the members in support of such right, that the partnership creditors may, by their action, take the preference in respect to its property ; Saunders v. lieilly, 105 N". Y. 12. Solvency imports adequate means of a party to pay his debts, which embraces within its meaning the oppor- tunity to convert and apply to such purpose. In other words, a person is deemed insolvent who at the time in question is unable to pay his debts in the ordinary course of business ; Shone v. Lucas, 3 Dow & Ry. 218. There is a conflict of authority in different States in respect to the right of the officers making the levy and sale on the individual property of a member of parner- ship to take the property, and to deliver it into the possession of the purchaser. In Phillips v. CooTc, 24 Wend. 389, it was held that the property may be deliv- ered to the purchaser, who takes the place and relation of a tenant in common, and who may have an accounting of the partnership matters to ascertain the debtor partners' interest in the surplus, if any , of the partner- ship assets. This has the support of other causes in this State ; Walsh v. Adams, 3 Denio, 125 ; Smith v. Orser, 42 N. Y. 136 ; Atkins v. Saxton, 11 id. 195. Bnt 118 PRACTICE IN ArrACHMENT OP PEOPEBTY. it seems that the officer making the levy has no right to remove the property or to deliver it to the purchaser; Sterrett v. TJiird Nat. BTc. of B., 46 Hun, 30; 122 N. Y. 659 ; 34 N. Y. State Rep. 241. If a partnership owning, as its entire assets, a drove of cattle or a quantity of diamonds or any other property easily scattered and hard to identify, should have an insolvent member, whose interest in the iirm was over- drawn, it would be a harsh and oppressive remedy to allow the entire effects of the concern to pass into the actual possession of many different purchasers under an execution issued against the property of the insolvent partner only. Such purchaser might be insolvent ; the property might be scattered beyond reach or indemnifi- cation ; innocent persons might purchase it without notice, and the interest of the firm creditors and the other partners be thus placed in so hazardous a position that an action for an accounting, even with its attendant remedies, would be an inadequate protection. It is therefore proper that when the interest of a partner is sold upon execution against him, the remaining partners shall have the possession and control of the firm property and apply it in payment of its debts. The right acquired by the purchaser is simply the interest of such copart- ner in the surplus when ascertained by an accounting ; Hill v. Wiggins, 31 N. H. 202; Story on Part. 262; Menagh v. Whitwell, 52 N. Y. 146. 20. Exempt when. The provisions of the Code have provided for the remedy by attachment only because of some specified delinquency on the part of the person or persons whose property is to be seized. They do not, because other persons may be connected in business with the party guilty of the misconduct, allow their PBOCEEDINGS UNDER WARRANT. 119 property to be seized because of this act. But they provide for the issuing of the attachment against the property of one or more of the defendants who are shown to have committed one of the acts subjecting him or them to this remedy. And it is only against the person or persons who have been shown to have done what the statute, in this connection, has intended to prohibit, that the attachment can properly be issued. When it is issued it must be against the property of the person or persons who are shown to have done that which, according to subd. 2 of sec. 636 of the Code, can only be made the foundation of such a proceeding. What the Code has provided in this connection is a remedy against the party whose misconduct has brought himself within its provisions. They are personal in their character, and render the individual alone liable to be so proceeded against who has been guilty of one or more of the acts intended to be redressed by this mode of pro- ceeding. The fact that one of two partners has been guilty of fraudulent acts, and has thereafter absconded from the State, will not authorize the granting of an attachment against the firn property, where it appears that the other partner has remainded in this State, engaged in carrying on his business, and has been guilty of no actual mis- conduct ; Bogart v. Dart, 25 Hun, 395. And in Donnell V. Williams, 21 id. 216, it was held that the failure to serve the summons on all the partners within the time prescribed by the Code, releases the lien of the attach- ment. The same rule prevails in any case against joint debtors ; Orvis v. Qoldschmidt, 2 Civ. Pro. Rep. 314. 21. Attachment of interest of one partner for firm debt 120 PRACTICE IN ATTACHMENT OF PROPEETY. — effect of insolvency of firm. Where, in an action to recover a debt due from a firm, an attachment is issued against the property one partner only, on the ground that he has absconded, junior attaching firm creditors cannot, on proof that the firm is insolvent, vacate the attachment, on the ground that the partner against whose property the attachment was issued had no inter- est in the firm properly upon which the attachment could be levied ; BucTcUngham v. Swezey, 25 Hun, 84. So an attachment may be granted in favor of a creditor on a joint demand for goods sold and delivered, when one of two copartners, who are jointly and individually insolvent, makes a fraudulent transfer of his interest in the^firm to his copartner ; HirsTi v. Hutchinson, 64 How. Pr. 366. XIV, — Honey deposited with clerk of the court. While property in the custody of an officer of a court cannot be removed by a sheriff holding an attachment against the depositor, the depositor has an interest in the money which is subject to be attached. That is the residuary interest in it or what is left after the purposes of the deposit have been served. The oflBicer holding the money may be required to furnish a certificate. There are numerous and respectable decisions which tend to sustain a contrary doctrine. In this class is Baker v. Kenworthy, 41 N. Y. 215. But they go upon the ground that an execution directs the taking of the goods and chattels. PKOCEEDINGS UNDER WARRANT. 121 CHAPTER VII. PROCEEDINGS UNDER WARRANT {cOTlUnUed). I. — Intangible property — how attached. 1. Notice with copy of warrant necesary. 2. Notice — form of. 3. Personal service of, necessary. 4. Pledged property — levy upon, how made. 5. Notice of claim attached. II. — Presence of person or thing within the territory necessary. 6. In general. 7. Shares of a non-resident defendant in the stock of a foreign corporation. III. — Certificate of defendant's interest. 8 When must be furnished. 9. Form of certificate. 10. Refusal to make — examination of party. 11. Order to deliver property. 12. Examination of person giving certificate. IV. — Property not attachable. 13. In general. 14. Limited partnership — property of special partner. 15. Assigned property, when summons is personally served. V. — General assignment for the benefit of creditors. 16. In general. 17. Fraud in assignment. 18. Partnership property for debt of one partner. 19. Trust property. 20. Money deposited in name of another. I. — Intangible property — how attached. 1. Notice with copy of warrant necessary. Subd. 3 of sec. 649 of the Code provides that personal property, incapable of manual delivery, must be levied upon, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same, or, if it consists of a demand other than instruments for the payment of money, with the person 122 PEACTIOE IN ATTACHMENT OF PEOPEETT. against whom it exists ; or, if it oonsists of a right or share in stock of an association or corporation, or interest or profits thereon, with the president or other head of the association or corporation, or the secretary, cashier or managing agent thereof. 2. Form of notice. The court, in G'Brienv. Meclmnics & T. F. Ins. Co., 56 N. Y. 52, says : "The sheriff by his action and the notice he gives, acquires no actual dominion over the property. It is as much beyond his personal control as before the levy ; and there is no particular magic in the act of giving the notice that affects the status, or the right of any one save as pre- scribed by statute, or changes the character or actual condition or possession of the property. The notice is but an act of caution to the individual upon whom it is served, intended to operate solely to prevent his paying the debt or delivering the property to the debtor, and impounding it to answer the judgment. It answers all the purposes which the law contemplates if it notifies the individual that a warrant of attachment has been issued against his creditor, or the owner of the property in his possession, or that the sheriff claims to levy upon the debt owing by him, or the property in his posses- sion. A notice by the sheriff that he attaches all prop- erty, debts and effects and all rights and shares of stock, &c., in the possession of, or under the control of, the individual served is sufficient. A particular de- scription of the property and debts supposed to be in the possession of or owing by him, is not necessary for the information of the party served, and would not more satisfactorily show to him the property intended to be attached. A notice by the sheriff that he attaches all the bonds, and mortgages, and promisory notes, belong- PROCEEDINGS UNDER WARRANT. 123 ing to the attachment-debtor, in the possession of an individual, would be good without specifying the particular securities and the names of the debtors, and if perchance there should be but one bond and mort- gage, the excessive claim would not vitiate. To require the particular description of the rights, debts and choses in action, which would identify and distinguish them from all others of a like kind, would be to render the remedy by attachment, in a great many cases, abortive as a process against property of this character. Neither the pursuing creditor nor the sheriff can ordinarily know the precise character of the dealings between the debtor proceeded against and third persons, and if no levy can be made, until by proceed- ings the particulars can be ascertained, it is quite evident that this provisional remedy, would in many cases, be of but little practical value ;" and see Green- leaf V. Mumford, 30 How. Pr. 30. The case of O'Brien v. Mechanics & T. Ins. Co.., was, however, criticised in Hayden v. The Nat. BJc. of the State of N. T., 130 N. Y. 146 ; 41 N. Y. State Eep. 263, where the court says : " It is to the notice that the holders of the property must look to as certain what property is attached, and upon what paper he must base his action." The holder of attached loroperty must derive his knowledge of the object in serving him from the notice, and knowledge or information received from other sources is of no importance. 3. Personal service of necessary. The service is made by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding 124 PRACTICE IN ATTACHMENT OF PROPERTY. the same, or, if it consists of a demand, with the person against whom it exists ; Code, § 649, subd. 3. In the one case the attachment must be served upon the debtor, in the other upon the individual actually having the bonds, goods or tangible evidence of the debt in his possession. It seems that a notice served upon an attorney or agent actually holding the prop- erty, would be sufficient; Matter of Flandrow, 20 Hun, 36. 4. Pledged property — levy upon — how made. As to what constitutes an effectual levy, under a warrant of attachment, upon personal property consisting of prom- issory notes and other similar instruments, negotiable in their nature, and which are held under pledge for the security of a debt, is now well settled. The pledgee is entitled to the possession of pledged property, so long as the debt subsists for the payment of which it was pledged. The title to property may remain in the pledgor ; but the pledgee has a lien or special property in the pledge, which entitles him to its possession against the world. Under a pledge of such property as com- mercial paper, the title so far passes as to clothe the pledgee with power to collect it as it falls due, and the money thus collected stands in the place of the paper ; Farwell v. Importers, &c. Bic., 90 N. Y. 483. In such a case the pledgee's position invests him with the authority to do all acts which are necessary and usual on the part of the holder of commercial paper. His rights are subject at all times, of course, to the pledgor's right to have back his property upon payment of the loan, and the pledgee can be compelled to account for his acts and to pay over any surplus or return any of the property remaining after payment of the debt. PROCEEDINGS UNDER WARRANT. 125 While the debt remains undischarged the pledge blongs to the pledgee, and while held by him the pledgor's title is subject to the pledgee's lieu and right of possession, but the pledgor's residuary interest in the pledge con- stitutes a claim or demand upon the pledgee, which is property and hence may become the subject of attach- ment. It is the subject of attachment as a demand against the person within the spirit of the language of the Code. But such property, being intangible, is natu- rally incapable of manual delivery. The very language of the third subdivision of sec. 649 of the Code, in mentioning a "demand other than as specified in the last subdivision," involves the under- standing that the demand may as well consist in some right in or to the pledged property, at law or in equity, as of a claim for its immediate possession. Section 650 of the Code provides that "upon the application of the sheriff holding a warrant of attach- ment, * * * * a person holding property, including a bond, promissory note or other instrument for the pay- ment of money, belonging to the defendant, must furnish to the sheriff a certificate under his hand, specifying * * * * 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. Ihis provision contemplates the very case of a third per- son having the possession, under some claim or right, of the property of the defendant, which he is not obliged to yield, and which the sheriff may sufficiently cover by his levy so as to protect to the plaintiff in attachment, the defendant's residuary interest or other claim ; Warner v. Fourth Nat. Bk., 115 N. Y. 251; 26 N. Y. State Rep. 126 PRACTICE IN ATTACHMENT OF PROPERTY. 213; Laneetal. v. Wheelwright et al., 23 N. Y. Supp. 576 ; 58 N. Y. State Kep. 368 ; 69 Hun, 180. 5. Notice of claim attached. An attachment levied upon a right of action in favor of a firm is invalid where the notice to the debtor indorsed theron specifies property of only one partner ; Hayden v. National Bank of State of N. Y., 130 N. Y. 146; 41 JST. Y. State Rep. 263. II. — Presence of the person or thing -v^ithin the territory necessary. 6. In general. Section 647 of the Code, which allows the plaintiff to attach the rights or shares which the defendant has in a corporation, is to be construed in view of the fundamental principle upon which all attach- ment proceedings rest, that the res must b3 actually or constructively within the jurisdiction of the court issu- ing the attachment, in order to any valid or effectual seizure under the process. In the case of tangible property, capable of actual manucaption, it must have an actual situs within the jurisdiction. But credits, choses in action, and other intangible interests, are made by statute susceptible of seizure by attachment. The same principle, however, applies in this case as in the other, the res — that is, the intangible right or inter- est, to be subject to the attachment, must be within the jurisdiction. But it is manifest from the nature of this species of property that it mnst be constructive or statu- tory presence only, founded upon some characteristic fact which determines its locality. Where the defend- ant, who owns the credit, is within the jurisdiction, there is no difficulty through proceedings in personam, in reaching and applying it in discharge of his debt to the PROCEEDINGS UNDER WARRANT. 127 plaintiff. But where it is out of the jurisdiction, and the debt or duty owing to him, or the right he possesses exists against some person within the jurisdiction, attacliment laws fasten upon that circumstance, and by- notice to the debtor or person owing the duty or repre- senting the right, impound the debt, duty or right, to answer the obligation which the attachment proceedings is instituted to enforce. In the case supposed, the debt, duty or right, for the purpose of attachment proceeding, is deemed to have its situs or locality in the jurisdiction. The general principle that attachment proceedings can be effectual only against property within the jurisdiction, is clearly recognized in the provisions of the Code regu- lating proceedings by attachment. They authorize the attachment of debts, choses in action, rights in contract, and by section 647, shares of the defendant in a corpo- ration, subject, however, to the limitation that the property attached must be within the jurisdiction. Section 641 prescribes that the warrant shall require the sheriff to attach the property of the defendant within his county, and by section 644 it is made the duty of the sheriff to execute the warrant by levying upon the property of the defendant within his county. These provisions leave no doubt of the intention of the legisla- ture to confine the process of attachment within its legitimate limits. They recognize the principle found in the Codes of all enlightened nations, that jurisdiction, to be rightfully exercised, must be founded upon the pres- ence of the person or thing, in respect to which the jurisdiction is exerted, within the territory ; Story's Confl. of Laws, §§ 532, 592 a ; Oibis v. Queens Ins. Co., 63 IST. Y. 114 ; 20 Amer. Rep. 513 ; Street v. Smith, 7 W. & S. 447. 128 PEACTICE IN ATTACHMENT OF PROPEETT. 7. Shares of a non-resident defendant in the stock of a foreign corporation. Whether the shares of a non- resident defendant in the stock of a foreign corporation can be deemed to be within this State by reason of the fact that the president or other officers of the corpora- tion is here engaged in carrying on the corporate busi- ness, was settled in Plimpton et al. v. Bigelow, 93 N. Y. 592. It was there settled : 1. That the right which a stockholder in a corporation has by reason of his own- ership of shares, is not a debt or duty of the corpora- tion existing in a foreign jurisdiction wherever the officers of the corporation may be found engaged in the prosecution of the corporate business. 2. That a corpo- ration, by having its officers and by transacting business in a State other than its domicile of origin, is not deemed to be itself present as an entity in such foreign State, to the same extent and in the same sense as it is present in the State which created it. 3. That a corpo- ration has its domicile and residence alone within the bounds of the sovereignty which created it, and that it is incapable of passing personally beyond that jurisdic- tion. 4. That suits by or against foreign corporations are not maintained on the theory that the corporation litigant is here in person, or that the corporate entity attends its officers in their migration from one State to another, or that it is itself present wherever its property may be or its business may be transacted, but rests upon the, ground that, as a corporation must act by agents, it may through its agent subject itself to the jurisdiction of a foreign tribunal ; Lafayette Ins. Go. v. French, 18 How. (U. S.) 404. The proceeding authorized by section 647 of the Code is not an action against a foreign corporation, or to PROCEEDINGS UNDER WARRANT. 129 enforce any contract or liability of the corporation, but a proceeding in an action against a defendant owning shares therein, and where the jurisdiction depends upon the shares which are attached being within the State. The right which a shareholder in a corporation has by reason of his ownership of shares, is a right to partici- pate according to the amount of his stock in the surplus profits of the corporation on a division, and ultimately on its dissolution in the assets remaining after the payment of its debts ; Burrall v. The Bushwick R. R. Co., 75 N. Y. 211. It is this right and interest which is made liable to attachment under the section referred to. The right of the shareholder is derived from the corporation under its charter, or the laws of the State which created it. It seems impossible to regard the stock of a corporation as being present for the purpose of judicial proceedings, except at one of two places, viz., the place of residence of the owner, or the place of residence of the corporation. The foreign corporation is not here because its agents are here nor because it has property here, nor is the stock here because the corpo- ration has property or is conducting its business in this State. The individual members of a corporation are not the owners of the property of the corporation nor of any part of it. The abstract entity — the corporation — is the owner and only owner of the property. The shares, for the purpose of attachment proceedings, may be deemed to be in the possession of the corporation which issued them, but only at the place where the cor- poration by intendment of law always remains, to wit, in the State or country of its creation. In all other places it is an alien. It may send its agents abroad or transact business abroad as any other inhabitant may do, without 9 130 PRACTICE IN ATTACHMENT OF PROPERTY. passing personally into the foreign jurisdiction or chang- ing its legal residence. It, therefore, follows that the fundamental condition of attachment proceedings, that the res must be within the jurisdiction of the court^in order to an effectual seizure, is not answered in respect ito shares in a foreign corporation by the presence here of its officers, or by the fact that the corporation has property and is transacting business here, and section •647 of the Code must be construed as applying to domestic corporations only ; FUmpton v. Bigelow, 93 IS". Y. 592. III. — Certificate of defendant's interest. 8. When must be furnished. Section 650 does not qualify subd. 3 of sec. 649 of the Code, or aid in deter- mining whether the application by the sheriff for a certificate is to be made before or after he serves a cer- tified copy of the warrant and notice upon the person holding the property or owing the demand. It does enable the sheriff, in his discretion, to apply for a cer- tificate of the particular property of the debtor, in the possession of the party to whom the application is made, and in case of refusal authorizes an examination under sec. 651, but the refusal does not prevent a levy until the examination is had. If the application was made and a certificate refused, it would clearly indicate that the levy should be made at once and the examination had afterwards. If the certificate is given, the sheriff is not bound by it, but may attach any property liable to attachment; O'Brien v. Mechanics & T. F. Ins. Co., 56 N. Y. 60. 9. Form of certiiicate. Section 650 of the Code pro- vides that upon the application of the sheriff, holding PEOCEEDINGS UNDER WAEEANT. 131 a warrant of attachment, the head of an association or corporation, or the secretary, cashier, or managing agent thereof, or a debtor of the defendant, or a person holding property belonging to the defendant, must fur- nish the sheriff a certificate, under his hand, specifying the rights or number of shares of the defendant in the stock of the association or corporation, with all divi- dends declared, or encumbrances thereon, or the amount, nature and description of the property held for the benefit of the defendant, or of defendant's inter- est in property so held, or of the debt or demand owing to the defendant. 10. Refusal to make — examination of party. Where the person, association or corporation, refuses to make a certificate upon the application of the sheriff, the ^lourt or a judge thereof, or a county judge of the county to which the warrant is issued, may make an order, directing him to attend before the judge granting the order or a referee therein named, and submit to an examination under oath concerning the same ; Code, § 651. After such examination, there seems to be no authority to compel the party to make a certificate ; BucTcingham v. White, 1 Civ. Pro. Kep. 365. 11. Order to deliver property. Where upon an exam- ination of a person having property of the defendant, because of his refusal to furnish a certificate, it appears that such person has property of the defendant in his possession or under his control, the judge or court may make an order requiring such person to deliver the property to the sheriff; Hall v. Brooks, 25 Hun, 577. 12. Examination of person giving certificate. Section 651 of the Code provides that if it is made to appear by 132 PRACTICE IN ATTACHMENT OF PEOPEETT. affidavit to the court, or a judge thereof, or the county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given is untrue, the court or judge may make an order directing the person giving such certificate to attend at a specified time and place, and submit to examination, under oath, concerning the same. In Seligman v. Folk, 13 Civ. Pro. Kep. 77 ; 8 N. Y. State Kep. 443, it is held that where the certificate is not a bona fide compliance with the demands made, the attaching creditor is not bound to take the statement of the defendant's debtor, but is entitled to an examination. While in Hong Kong & 8. BJcg. Corp. v. Campiell, 35 id. 639; 13 N. Y. Supp. 122, the court say, "There must be reason to suspect that the certificate given was untrue, or that it fails fully to set forth the facts required to be shown, it would seem that a very strong case should be presented before such scrutiny should be allowed ; indeed, some proceeding in the name of the attachment-debtors should be required to be inaugurated in order that the issues, whatever they might be, as to the ownership of the property supposed to be held, could be determined in the ordinary course of procedure to which litigants are subjected." IV. — What property is not attachable. 13. In general. Bonds of a corporation cannot be attached until they have been delivered, for until deliv- ered they have no more validity than the undelivered note of an individual ; Sickles v. Richardson, 23 Hun, 564 ; Coddington v. Oilbert, 17 N. Y. 489. So the right of a mortgagor to redeem a chattel taken by a mort- gagee, is not the subject of attachment where the PROCEEDINGS XJNDEE WAKKANT. 133 summons in the attachment suit is personally served ; Cutler V. The James Oould Co., 43 Hun, 516. The debt represented by note, bond, mortgage or other evidence of debt, after assignment of the same by the debtor to a third person, cannot be made subject to the lien of an attachment against the debtor though the sherriff may obtain actual possession thereof. This is because an attachment reaches and becomes a lien only upon such debts as at the time belonged to the debtor by a legal title, and for the recovery of which he could maintain an action at law, and as a consequence where, before the levy of the attachment, he parts with the legal title, even if with intent to defraud his creditors, there remains in him for their benefit only an equity which the attachment can- not reach, and so the sheriff cannot assail the transfer as fraudulent ; Anthony v. Wood, 96 N. Y. 186. 14. Limited partnership — property of special partner. The statute prohibits any interference by the special partner with the management of the property of the firm or the withdrawal of any part of the original capital, and even of the receipt of interest on his advances, if such payment would reduce the original amount of such capital. As the special partner cannot interfere with the pro- perty, it follows that the sheriff on an attachment has no such power. He cannot, on an execution against such partner, do anything with the partnership property that the special partner could not do ; Stiefv. Hart, 1 N. Y. 20. The provisions of the Code on this subject are singularly confused and obscure, owing apparently to an attempt to embrace in a few brief sentences a subject requiring much detail. But it seems that the interest of such 134 PRACTICE IN ATTACHMENT OF PROPERTY. partner may be readied in a creditor's suit ; Harris t. Murray, 28 id. 574. 15. Assigned property, when summons is personally served. The Court of Appeals, in Rinchey v. Strylcer, 26 How. Pr. 75, decided that a sheriff holding an attach- ment has a right to seize personal chattels which has been disposed of to defraud creditors, and that when pro- secuted by the claimant, the sheriff may show before judgment in the attachment suit that the title of the purchaser was fraudulent and void as against the attach- ing creditor, and that such creditor is not regarded as a creditor at large, but one having a specific lien upon the property attached. In Lawrence v. The Bank of the Republic, 35 N. Y. 320, it was held that the proceeds deposited in a bank, of property fraudulently assigned in the name of the fraudulent assignee, could not be attached as a debt due the assignor, and that the sheriff could not bring an action under the Code to recover such deposit or subject it to the attachment. In the Supreme Court the decisions on this subject have been very con- flicting. By the Code of Civil Procedure, the warrant of attach- ment requires the sheriff to attach so much of the real and personal estate of the debtor, including debts, credits and effects as will be sufficient to satisfy the plaintiff's demand, with costs, and, subject to the direc- tion of the court or judge, to collect and receive into his possession all debts, credits and effects of the defendant, and. for that purpose may take such legal proceedings as may be necessary ; Code, §§ 644-655, subd. 1 ; Hess v. Hess, 111 N. Y. 306 ; 27 N. Y. State Rep. 346. The attachment, if levied upon debts or other property PROCEEDINGS UNDER WARRANT. 135 incapable of manual delivery, is to be executed by leaving a certified copy of the attachment with the debtor or individual holding such property, with a notice of the property levied upon. In the case of personal chattels, the sheriff seizes the property and takes it into his pos- session, and he acquires by such seizure a specific lien, and he may defend the lien obtained by the attachment and levy, and thus litigate the title of the claimant to the property ; Hess v. Hess, 117 N. Y. 306 ; 27 N. Y. State Rep. 346. In the case of choses in action and debts, the lien is constructive and cannot operate through an intermediate legal title. Thus, in case of attachment of a bond, note or mortgage, which has been assigned to a third person, the title is in the third person, and the property cannot be interfered with. At law, no debt is owing to the defendant, and there is nothing for the attachment to operate upon. To reach the title of a bond, note or mortgage after assignment, an affirmative action in equity is necessary to set aside the assignment which prevented the lien of the attachment from taking effect. Except where the summons is served by publication or out of the State, and the defendant has not appeared, neither the sheriff nor the plaintiff is authorized to bring such an action ; and such a right of action cannot be attached. The transfer was void as to creditors, if made fraudulently, but only as to such creditors as are in a position to assail it ; Anthony v. Wood, 96 N. Y. 180 ; Nassau BanJc v. Tandes, 44 Hun, 557. Thus money real- ized by an assignee of property of the attachment-debtor, upon a sale thereof, cannot be attached ; McAllister v. Bailey, 127 N. Y. 583 ; 40 N. Y. State Rep. 317. 136 PRACTICE IN ATTACHMENT OF PROPERTY. v. — General assignment for benefit of creditors. 16. In general. Yoluntary assignments by insolvent debtors for the benefit of creditors, in and by which certain creditors or class of creditors have been preferred over other creditors or classes, have not been favored instruments in the courts, nor have business men looked upon them without suspicion. The secrecy with which they may be made, the facility which they afford to fraud, the unjust preferences they often secure, require that they should be watched with the greatest vigilance and scrutinized with the greatest care. It is in the power of the debtor and his assignee to put forward one of these instruments at such time as will most effectively give effect to their own purpose, to ante ov post date it, to alter the schedules, to increase or lessen the number of preferred creditors, to prefer a friend or non-prefer an enemy, to increase or lessen the amount of property to be passed under the assignment ; these and other fraudulent and dishonest acts may be done without any opportunity being afforded to the creditors to prevent or punish them. A general assignment for the benefit of creditors must, in order to vest the property in the assignee, be in writ- ing, duly acknowledged by the assignor, must have thereon the assent of the assignee, duly subscribed and acknowledged by him, and must have been duly recorded. Without a compliance with such require- ments the assignment is void as against attaching creditors ; Rennie v. Bean, 24 Hun, 123. But choses in action in the hands of an assignee for the benefit of creditors cannot be levied upon under an attachment issued in an action brought against an assignor, even PROCEEDINGS UNDEK WARRANT. 137 though the assignment was made to defraud the assignor's creditors ; id. 257. 17. Fraud in assignment. Goods and chattels fraudu- lently assigned by a debtor to hinder, delay and defraud creditors, are attachable in the hands of his voluntary assignee at the suit of a creditor defrauded by the assignment ; Garr v. VanHoesen, 26 Hun, 316 ; Rinchey V. StryJcer, 28 N. Y. 45 ; Bates v. PlonsTcy, 2 Civ. Pro. Eep. 389 ; 28 Hun, 112 ; Frost v. Mott, 34 N. Y. 258. The rule which prevents the levy of an execution under similar circumstances upon equitable assets, or choses in action, proceeds upon peculiar grounds not applicable to chattels of which there can be a manual tradition. Where a sheriff or another party is sued for attaching such property in the hands of an assignee, he can defend the taking by showing that he took the goods under a valid attachment against the debtor, and that the assign- ment was fraudulent as to the plaintiff in the attach- ment suit; if the attachment is void, it affords no protection to the party suing it out, whether vacated or not. But if valid, the process protects both the party and the officer for what has been done under it before it is vacated, the liability of the property to seizure being shown. The case of Day v. Bach, 87 N. Y. 56, is a decisive authority that trespass will not lie for the seizure of goods under a valid attachment subsequently vacated for error. The process is a protection to the officer or party for whatever is done under it while in force. The vacation of the process for error does not convert into a trespass that which was legal until it was set aside ; Hess v. Hess, 117 N. Y. 306 ; 27 N. Y. State Rep. 346. 138 PKACTICE IN ATTACHMENT OF PEOPEETT. The fact that an assignment is rendered invalid by the insertion therein of provisions authorizing the assig- nee to compromise with the creditors and to sell on credit, does not authorize an attachment. MilUTcen v. Pa^t, 26 Hun, 24. 18. Partnership property for debt of one partner- The seizure and levy by a sheriff, under an attachment against one person, upon the entire property of a firm, as the sole property of the debtor, is not justified by showing that the debtor has an interest in the property as a copartner. The power of the sheriff for the purpose of rendering the levy upon the interest of one partner in the copartnership effectual to take possession of the whole property is merely incidental to the right to reach the debtor's interest, and is to be exercised as far as possible in harmony, without hostility to the rights of the other partners ; Zoller v. Grant, 56 N. Y. Supr. Ct. 279 ; 19 N. Y. State Rep. 311 ; 3 K Y. Supp. 534. It is held in Barry v. Fisher, 39 How. Pr. 521, that partnership credits can in no case be taken by garnish- ment to pay the individual debt of oae member of the firm. 19. Trust "property. Funds placed by a debtor in the hands of a trustee for the benefit of certain of his credi- tors, under an agreement so to do, cannot be reached- Rogers L. Wks. v. Kelly, 19 Hun, 399. 20. Money deposited in name of another. Where the money of a debtor is voluntarily deposited by him in a bank in the name of another, it cannot be attached in an action against such debtor. The deposit creates no debt from the bank to the attachment debtor, which he could enforce against the bank. If such deposit was made for PROCEEDINGS tTNDEK WARRANT. 139 the express purpose of defrauding creditors, the legal title to the debt is in the person in whose name the money is deposited, and any equitable right existing in favor of the creditors of the depositor can be enforced only through an action in equity. Gibson et al v. Nat. Park BTc., 98 N. Y. 87. 140 PRACTICE IN ATTACHMENT OF PEOPERTT. CHAPTER VIII. PROPERTY EXEMPT PROM LEVY AND SALE. I. — Exempt personal property. 1. In general. II. — Two classes of exemptions under Code, ?? 1390, 1391. 2. Bights of the debtor under. 3. Householder — definition of. 4. Having a family for which he provides. 5. Proceeds of exempt property — exempt when. III. — Meaning of word " necessary" in section 1391 of the Code. IV.— Judgment for purchase money, of exempt property. 6. In general. 7. For work performed in the family as a domestic. 8. Partnership property. 9. Contract not to claim exemption — effect of. 10. Prospective agreement. 11. Waiver of exemption. 12. Alimony — exempt when. V. — Exemptions must be claimed when. 13. Team. VI. — Identity of property, exempt when. VII. — Exemption of life insurance money. VIII. — Exemptions, how affected by fraud. IX. — Military pay, rewards, pensions, &c. 14. In general. 15. Property purchased with pension money. 16. Pension money, after death of pensioner. X. — Illustrations — exempt property. I. — Exempt personal property 1. In general. At common law, neither a judgment debtor nor his family had any way of exempting any portion of his property from execution for his or their benefit, so that any privileges that he may now have in that direction must be sought for in the statutory law, and in this State the laws which exempt from execution the judgment debtor's personal property are to be found PEOPEETY EXEMPT FEOM LEVY AND SALE. 141 iu the Code of Civil Procedure. Section 1390 of the Code provides that the following personal property, when owned by a householder, is exempt from levy and sale by virtue of an execution ; and each movable article thereof continues to be so exempt while the family, or any of them, are removing from one residence to another : 1. All spinning-wheels, weaving looms, and stoves, put up, or kept for use, in a dwelling-house, and one sewing-machine. 2. Books not exceeding in value fifty dollars. Also all family pictures and school books. 3. Seat or a pew in a church. 4. Ten sheep with their fleeces, and the yarn or cloth manufactured therefrom ; one cow ; two swine ; the necessary food for these animals ; all necessary meat, fish, flour, groceries and vegetables, actually provided for family use, and neces- sary fuel, oil and candles for the use of the family for sixty days. 5. The tools and implements of a mechanic not exceeding in value twenty-five dollars. 6. All wearing apparel, beds and household furniture ; Lash- away V. Tucker, 15 N. Y. Supp. 490 ; 61 Hun, 6 ; 39 N. Y. State Rep. 680. And sec. 1391 provides for an addi- tional exemption of necessary household furniture, working tools and team, professional instruments, furni- ture and library, not exceeding in value two hundred and fifty dollars, and necessary food for the team for ninty days. The property mentioned in the last named section is not exempt where the execution is issued upon a judgment recovered wholly upon one or more demands, either for work performed in the family, as a domestic, or for the purchase money of one or more articles exempt as prescribed in either sees. 1390 or 1891. 142 PRACTICE IN ATTACHMENT OF PKOPEBTY. Section 1392 of the Code provides that where the judg- ment debtor is a woman, she is entitled to the same exemptions, from levy and sale, by virtue of an execu- tion, subject to the same exceptions, as prescribed in sees. 1390 and 1391. It is not necessary that a woman should be a house- holder to be entitled to such exemptions ; Finlc v. Fi-anJcle, 39 N. Y. State Rep. 195 ; 14 N. Y. Supp. 140. The earnings of a debtor for his personal services ren- dered within sixty days of the levy of an attach- ment are under certain circumstances exempt ; Code, § 2463. Thus the harsh rule of the common law which stripped judgment debtors of everything except the clothes upon their backs, has been mollified by statutory provisions as a protection for poor and destitute families, to mitigate the consequences of men's thoughtlessness and improvi- dence. The word " wholly " has been added to section 1391 of the Code after "judgment recovered" in order to render final the ruling in Hickox v. Fay, 36 Barb. 9 ; and the words "one or more articles exempt as prescribed in this or the last section," having been substituted for the enumeration of the articles, in order to settle, in the affirmative, the disputed question whether one article of exempt property can be levied upon where the demand is for the purchase money of another article of exempt property ; Hickox v. Fay, 36 Barb. 9 ; Smith v. Slade, 57 id. 637 ; Snyder v. Davis, 1 Hun, 350 ; 3 S. C. (T. & C.) 596 ; 47 How. Pr. 147. II— Two classes of exemptions under Code, §§ 1390, 1391. 2. Bights of the debtor under. There are two classes PROPERTY EXEMPT EEOM LEVY AND SALE. 143 of exemptions provided for by the Code. One relates to certain articles, which are specifically enumerated and absolutely exempted ; Code, § 1390. The other is limited to the sum of $250, and there may be claimed under it, property of the kind mentioned in § 1391, to that amount, but to that amount only. The latter exemption is limited and indefinite, and where the debtor has property of that character of greater value than $250, it is dependent upon his election as to the particular property that may be retained by him as exempt. If property consists of the articles mentioned in section 1390, it is absolutely exempt if the owner is a householder, and the officer has no right to levy upon it. Thus, no article exempted by this section, can be levied upon to satisfy any judgment whatever, not even though it be a judgment recovered for the purchase price of the article itself ; Cox v. Stafford, 14 How. Pr. 519. If, however, the property is of the description mentioned in sec. 1391, the exemption is a qualified one, and the debtor must claim it and notify the officer of his claim before he can properly maintain an action either for its conversion or to recover its possession, especially where there is other property to which such exemption might apply ; Russell v. Dean^ 30 Hun, 242 ; Turner v. BorthwicJc, 20 id. 119 ; Twinam v. Swart, 4 Lans. 263 ; Seaman v. Luce, 23 Barb. 240 ; Lockwood v. Younglove, 27 id. 505 ; Wilcox v. Howe, 59 Hun, 268 ; 36 N. Y. State Eep. 303 ; 12 N. Y. Supp. 783. 3. Householder — definition of. The term householder as used in the statute has a very well defined meaning, and imports the master or head of the family who reside together and constitute a household. It has been held that a person living in a hired house and keeping ser- 144 PRACTICE IN ATTACHMENT OF PROPERTY. vants and boarders is a householder ; Hutchinson v. Chamlerlain, 11 N. Y. Lg. Obs. 248. But a man having a house and no family is not a householder ; Chamber- lain V. Darrow, 46 Hun, 48. The word ''householder" does not simply signify a housekeeper, but imports the master or head of a family as well. The fact that a person has temporarily given up housekeeping does not deprive him of the benefits of the statutes; Griffin v. Sutherland, 14. Barb. 456. 4. Having a family for which he provides. The exemptions under sec. 1391 of the Code are given not only to the householder, but one " having a famUy for which he provides." The terms of the statute referred to are in the alternative, and a person who has a family for which he provides, is as much within the provisions of the act, and entitled to the benefits conferred by it, as if he were, strictly speaking, a householder ; Cantrell V. Conner, 51 How. Pr. 45. Although section 1390 of the Code does not in words provide that the articles therein mentioned are exempt when owned by a man having a family for which he provides, unless he is a householder, the construction placed on that section by the courts give him such exemptions. 5. Proceeds of exempt property — exempt when. Section 1394 of the Code provides that a right of action to recover damages, or damages awarded by a judgment for taking or injuring personal property exempt by law from levy and sale by virtue of an execution, are exempt for one year after the collection thereof from levy and sale by virtue of an execution and from seizure in any other legal proceeding. And see Tillotson v. Walcott, 48 N. Y. 188. PEOPERTY EXEMPT EEOM LEVY AND SALE. 145 III.— Meaning of word "necessary" in section 1391 of the Code. In Wolf V. Farley, 40 N. Y. State Rep. 808 ; 16 N. Y. Supp. 168, the court say, that in Wilcox v. Hawley, 31 N. Y. 648, it was held tliat the word "necessary," as used in tlie statute, applies only to the household furni- ture, and qualifies the extent to which that is exempt. But all that the court in that case did say, was, "The word necessary, as used in the statute, applies to the household furniture and qualifies the extent of that furniture exempted." In Knapp v. O'Neill, 46 Hun, 317; 12 N. Y. State Rep. 349, the court say, "We think the trial judge was correct in his instruction to the jury, that the burden of proof was upon plaintiff, in respect to the facts essential to carry the case within the provisions of the statute," although in that case, Hardin, J., quotes the words of Da vies, J., in Wilcox V. Hawley, that the word "necessary," as used in the statutes, applies to the household furniture, and quali- fies the extent of that furniture exempted. Where a debtor desires to claim his earnings for his personal services rendered within sixty days next pro- ceeding the levy of an attachment, the burden is on him to show that those earnings are necessary for the use of a family wholly or partly supported by his labor ; Code, § 2463 ; Hancock v. Sears, 93 N. Y. 79. IV. — Judgment for purchase money of exempt property. 6. In general. It is provided by sec. 1391 of the Code that the property mentioned in said section is not exempt, as against an execution issued upon a judg- ment, recovered wholly upon one or more demands, either for work performed in the family as a domestic, 10 146 PRACTICE IN ATTACHMENT OF PKOPERTT. or for the purchase money of one or more articles exempt as prescribed in that or by sec. 1390. Thus any article exempted by sec. 1391 may be levied upon to satisfy the judgment recovered for the purchase price of that arti- cle, or for the purchase ijrice of any other article ex- empted either by that section or sec. 1390 ; but no article exempted by sec. 1390 can be levied upon to satisfy any judgment whatever, not even though it be a judgment recovered for the purchase price of that article itself ; Gox V. Stafford, 14 How. Pr. 519. Thus all the articles mentioned in sec. 1391 are exempt except for a debt con- tracted in the purchase of property which was itself exempt from execution in the hands of the vendor before sale ; Kneettle v. Newcomh, 22 N. Y. 253. This clause was inserted for the further protection of poor and destitute families, and to allow a man who sells his last cow to collect the purchase price of the purchaser out of his property exempted by sec. 1391 ; Craft V. Citrtiss, 25 How. Pr. 163. 7. For work performed in the family as a domestic. Property exempted by sec. 1391 of the Code can be taken upon an execution issued upon a judgment recovered wholly upon one or more demands for work performed in the family as a domestic. 8. Partnership property. The provisions of the exemption act extend to property owned by the debtor as a member of a partnership ; Stewart v. Brown, 37 N. Y. 350. IV^. Contract not to claim exemption — effect of. 10. Prospective agreement. It seems that a person contracting a debt cannot agree with the creditor that, in case of non-payment, he shall be entitled to levy his PEOPERTY EXEMPT FROM LEVY AND SALE. 147 execution upon propertj'^ exempt from levy by the gen- eral laws of the State ; Crawford v. Lockwood, 9 How. Pr. 547. The statutes which allow a debtor, being a householder and having a family for which he provides, to retain, as against the legal remedies of his creditors, certain articles of prime necessity, to a limited amount, are based upon views of policy and humanity which would be frustrated if an agreement entered into in connection with the principal contract, waiving such exemption, could be sustained. A few words contained in any note or obligation would operate to change the law between those jDarties, and so far disappoint the intentions of the legislature. If effect shall be given to such contracts it is likely that they will be generally inserted in obligations for small demands, and in that way the policy of the law will be completely overthrown. Every honest man who contracts a debt expects to pay it, and believes he will be able to do so without having his property sold on execution. N"o one worthy to be trusted would, therefore, be apt to object to a clause subjecting all his property to levy on execution in case of non-payment. It was against the consequences of this over confidence, and the readiness of men to make contracts, which may deprive them and their families of articles indispensible to their comfort, that the legisla- ture has undertaken to interpose. When a man's last cow is taken on an execution on a judgment rendered upon a contract in which there is a clause waiving its exemption, it is no sufficient answer to say that it was done pursuant to his consent freely given when he contracted the debt. The law was designed to protect him against his own improvidence in giving such consent. The statutes contain many examples of legislation based upon the 148 PKACTICE IN ATTACHMENT OF PROPEKTT. same motives. The laws against usury, those of deeds given as security for the payment of a debt, and those which allow a redemption after the sale of land on execution. In these cases the law seeks to mitigate the consequences of man's thoughtlessness and im- providence ; and it does not allow its policy to be evaded by any language which may be inserted in the contract. It is not always equally careful to shield persons from those acts which, instead of being promis- sory in their character and prospective in their oper- ation, take effect immediately. One may turn out Lis last cow on execution, or he may release an equity of redemption, and he will be bound by the act. And while the statutes stand between an exempt homestead and a moitgage upon the same, given by the owner of tlie land subsequent to its becoming exempt, except such mortgage is given for the purchase money of the property, there is no such statutory protection even for the chattels exempt under sec. 1390 of the Code of Civil Procedure ; and there is no decided cases, so far as appears, as to whether such a mortgage of exempt chat- tels would be void as against public policj'. It is said in KtieettleY. Newcomb, 22 N. Y. 251, that "In thus dis- criminating, the law takes notice of the readiness with which sanguine and incautious men will make improvi- dent contracts which look to the future for their con- summation, when, if the result were to be presently realized, they would not enter into them at all. If, with the consequences immediately before them, they will do the act, they will not generally be allowed to retract, it being supposed, in such cases, that valid reasons for the transaction may have existed, and that at all events, the PROPERTY EXEMPT PROM LEVY AND SALE. 149 party was not under the influence of the iUusion which distance of time creates." 11. Waiver of exemption. A waiver is not, and bears no analogy to, a contract. No consideration is necessary to support a waiver. It is in this respect like a gift. Gifts can only be made to take effect in presenti. Of course, then, a gift must be of something in esse at the time. To give implies, ex mtermini, a present transfer of the thing. To waive, no less than to give, imports a present act. If I say "I waive" some right which I may have next week, this can mean nothing more than that when the time arrives I will not insist upon the right. It cannot extinguish a right not yet in esse. It may, if without consideration, be retracted at any time. A right not yet in being, but which depends upon a con- tingency, cannot be the subject of a waiver. There is no estoppel in pais ; there is no fact involved in the trans- action of which either party is ignorant. It is a matter of contract and not a matter of fact ; Crawford v. LocJcwood, 9 How. Pr. 547. 12. Alimony — exempt when. Alimony awarded to a wife cannot be regarded as an ordinary debt due by one person to another, which may be reached by Judgment creditors in the ordinary way. The nature of alimony must not be overlooked. It is not the wife's property nor her separate estate. It is simply a provision com- pulsorily made for her support by her husband. The law thus enforces the obligation assumed by the hus- band at marriage, and the alimony becomes a substitute for the maintenance which is the wife's due, and which she would receive directly from the husband, and in his home, but for the dissolution of the marriage contract. This was the doctrine of the common law, and the rule 150 PRACTICE IN ATa'ACHMENT OF PROPERTY. was substantially codified both in the Revised Statutes and the Codes of Procedure. At common law alimony properly signified nourishment or maintenance when strictly taken ; Grodol, Ab. 508. It is not a portion of the husband's estate assigned to the wife and subject to her control or to be sold at her pleasure, but a provision for her support to be continued during their joint lives or so long as they live separate ; WalUngsford v. Walling s ford, 6 Har. & J. 485. "Alimony," says Mr. Bishop, "is not a sum of money nor a specific portion of the husband's estate given absolutely to the wife, but is a continuous allotment of sums payable at regular periods for her support from year to year. ' ' In Daniels V. Lindley, 44 Iowa, 567, it was said that the claim of the wife for alimony was not in the nature of a debt, and that she was not a creditor of her husband. So in Guenther v. Jacobs, 44 Wis. 364, it is said that alimony is not an estate, and, therefore, not separate property of the wife. It is an allowance for the maintenance of the wife, varied and revocable. The language of the Code is equally explicit. "The court may, in the final judgment dissolving the mar- riage, require the defendant to provide suitably for the education and maintenance of the children of the mar- riage, and for the support of the plaintiflE as justice requires, regard being had to the circumstances of the respective parties ; Code, § 1759, subd. 2. The mainten- ance of the children of the marriage and the support of the wife are thus treated as obligations of a like char- acter to be enforced, not as creditors enforce the contract obligations of their debtors, but by specially coercive proceedings looking not only to the sequestration of the husband's property, but to compulsory payment from PROPERTY EXEMPT FROM LEVY AND SALE. 151 even his current earnings, and to imprisonment in case of disobedience to the judicial mandate. It is quite clear that the provisions thus made for the wife's support is non-assignable. And what, it may be asked, could an assignee of alimony take ? Could he take a provision made for the support of the wife, payable from time to time in future, and determinable by the death meantime of either of the parties ? And if he could take such a provision, will it be pretended that the assignment would carry with it the same right to enforcement and the same remedies in that regard which the law has afforded to the wife ? The question carries with it the negative answer. In the case of Stevenson v. Stevenson, 34 Hun, 157, the judgment was recovered subsequently to the decree of divorce and seems to have been for necessaries furnished the wife upon the faith of the alimony judgment. It is reasonable that a provision made for the support of the wife and children should be charged with that very support furnished by a trades- man on the strength of the decree. But to charge the alimony provision with a judgment having no relation whatever to the wife's support, would simply be to nullify the statute and to permit the wife to starve while the husband, instead of supporting her, is forced to pay her old debts. Public policy also demands that a woman whose husband is bound to support her shall not become a public charge, and that the provision ordained by law shall be scrupulously applied to the single pur- pose for which it was intended ; Romaine v. GJiauncey, 129 N. Y. 566 ; 42 N. Y. State Rep. 267. V. — Exemptions must be claimed -vrhen. 13. Team. A team consists of one horse or two 152 PRACTICE IN ATTACHMENT OF PEOPERTT. horses, one mule or two males, one ox or two oxen, together with the harness or yoke, and the vehicle to which they are customarily attached for use. A vehicle or harness, if exempt, is exempt because it is embraced in the description of a team ; Brown v. Bams. 9 Hun, 43. In Wilcox v. Hawley, 31 N. Y. 648, it was held that it was sufficient for the plaintiff to show that the horse claimed as exempt constituted his team ; that he was a housholder, and that his household furniture, working tools and team, did not, in the aggregate, exceed in value the sum of two hundred and fifty dollars. In Hoyt v. VanAlstyne, 15 Barb. 568, it was held that evidence that the plaintiflE was a householder, having a family for which he provided, and that the mare was all the team he had, and that it was used in the prosecution of the business in which he was engaged, was enough to entitle him to the exemption. In Seaman v. Luce. 23 Barb. 240, it appeared that the debtor had more than two horses, which were worth in the aggregate more than the exempt value fixed by the statute, and it was held that the officer levying on one of them was not a trespasser, unless the debtor claimed at the time that the horse levied on was exempt. In SmitJi v. Slade, 67 Barb. 637, it was held that it was not necessary for the plaintiff to show affirmatively that he had not other articles exempted by statute of the value of $250, or which, with the articles mentioned in the complaint, exceeded that sum. Lockwood v. Younglove, 27 Barb. 506, seems to hold the same doctrine. The case of Frost v. Mott, 34 N. Y. 253, related to property which was specifically and absolutely exempt under the Revised Statutes. In Russell v. Bean, 30 Hun, 242, a constable levied upon a span of mules owned and used by the PEOPERTY EXEMPT PEOM LEVY AND SALE. 153 debtor in his business of farming and boating. He was a householder and had no other team. It did not appear what other property he then had. He did not at the time the levy was made, or at any other time, claim that the mules were exempt. In that case the court say: "We think the correct conclusion is that it not having appeared either that the plaintiff had not other property exempt under sec. 1391. of the value of $250, or that he at any time claimed the property in question to be exempt, such property must be deemed to have been in fact liable to execution. Assuming that he had other property which was exempt under sec. 1391, he waived his claim to the statutory provision in his favor in respect to the property in question by omitting to assert it. In Turner v. BortJiwick, 20 Hun, 119, it was held that all personal property of a judgment debtor is liable, in the first instance, to levy and sale on execution, and that in some form the execution debtor must make his claim to exemption to the officer making the levJ^" The court disposed of the case of Frost v. Molt, 34 N. Y. 253, by saying, ' ' The language used by the j udge, to the effect that it was the officer' s duty to select and leave with the debtor such exempt property as he was entitled to, does not appear to have been called for in the disposal of the case, and was not warranted by any fact shown to exist. ' ' In Brooks v. Hathaway, 8 Hun, 290, it was held that where the" judgmentdebtor has other property, appa- rently exempt or which might be exempt under this act, he must, within a reasonable time after knowledge of the levy, make his election and give notice to the officer that he claims as exempt the property levied upon. In Wilcox V. Howe, 59 Hun, 268 ; 12 N. Y. Supp. 783 ; 36 N. Y. State Rep. 303, the court says, "If it were to 154 PRACTICE IN ATTACHMENT OF PROPERTY. be held that an officer could not levy upon any property of the description mentioned in sec. 1391, without becoming liable to an action for its recovery when no demand was made nor claim that it was exempt asserted by the owner, it would follow that all property of that character would be practically exempt from levy under an attachment, although it greatly exceeded in value the limit provided by that section." Where the con- trary has been held, the property was either absolutely exempt or known by the officer to be exempt when the levy was made. VI. — Identity of exempt property — necessary -when, Asa general rule, property exempt from levy and sale on execution only remains so, so long as it maintains its identity and is kept intact. A horse, under certain circumstances, may be exempt, but, if sold and the pro- ceeds taken and invested in guns, they would not be exempt ; Salsbury v. Parsons, 36 Hun, 17. VII. — Exemption of life insurance money. The proceeds of a policy on the life of a husband for the benefit of his wife cannot be reached either by his creditors or hers. In Baron v. Brummer, 100 N". Y. 375, the court say, "Under these various provisions oE " the statutes, it was the intention of the legislature, that such policies should not be subjected to the lien of cred- itors, either of the husband or the wife, as to the former by the express words of the statute, and as to the latter by the determination of the courts." Exemption laws are not designed to protect creditors or to advance their interests, but to furnish protection against their writs and actions. They are remedial in their nature PROPERTY EXEMPT FROM LEVY AND SALE. 155 and must be liberally constrned to advance their spirit and purpose, wliich are in the interest of humanity to protect familes from improvidence and distress ; Austin V. McLauri.n, 1 N. Y. Supp. 209; 16 N. Y. State Kep. 806. VIII. — Exemptions, ho^v affected by fraud. It seems that where a debtor has reduced himself to exempt property, in order to defraud his creditors, he cannot claim exemption for the property remaining unaffected by such transfers ; Bishop v. Johnson, 15 IST. Y. State Kep. 579 ; BracTcett v. WatTcins, 21 Wend. 68. IX. — Military pay, re-rrards, pensions, &c. 14. In general. It is provided by section 1393 of the Code that the pay and bounty of a non-commissioned officer, musician or private, in the military or naval ser- vice of the United States ; a land warrant, pension oi' other reward, heretofore or hereafter granted by the United States or by a State, for military or naval services; a sword, a hoi'se, medal, emblement or device of any kind, presented as a testimonial for service rendered in the military or naval service of the United States ; and the uniform, arms, and equipments wliich were used by a person in that service, are exempt from levy and sale by virtue of an execution, and from seizure for non-pay- ment of taxes, or in any other legal proceedings. 15. Property purchased with pension money. It has been seen that section 1393 of the Code exempts a pen- sion from levy and sale by virtue of an execution, and from seizure for non-payment of taxes, or in any other legal proceedings. That statutes of this character are to be liberally construed, with a view of promoting the 156 PRACTICE IN ATTACHMENT OE PROPERTY. object of the legislature, is established by a uniform coarse of authority ; and that their force and effect are not to be confined to the literal terms of the act has also been held in numerous cases. Like other statutes, the section in question must be construed according to the meaning and intent of the law makers, and so to effectu- ate their intention, so far as the language of the act will permit it to be done. In the Yates County Nat. Bk. v. Carpenter, 119 N. Y. 550 ; 30 jST. Y. State Rep. 121, the court say, "Did the legislatui-e intend to limit the force of their exemption to a pension so long only as it remained an obligation of the government, or consisted of cash in the hands of the pensioner, or did they also intend to protect it after it had been expended in the purchase of articles of property, designed to administer to the comfort of and support of such pensioner and his family ? If the latter was intended, we must ascribe to the law makers the absurd intention of granting pen- sions for the purpose of satisfying claims against pensioners, and not to provide for the care and comfort of invalid or aged soldiers. If the soldier is not pro- tected in the act of exchanging his pension for the necessaries of life, its only effect would be to enable his creditors to take it in satisfaction of their claims. No benefit is conferred if the protection is not extended beyond the possession of the money itself, for its only value consists in its purchasing power, and if the soldier is deprived of that, the pension might as well, so far as he is concerned, have remained ungranted. The jilaiu purpose of the act was to promote the comfort of the soldier, to secure to him the bounty of the government free from the claims of creditors, and to insure him and his family a safe, although modest, maintenance so long PKOPEIiTY EXEMPT EliOM LEVY AND SALE. 157 as their needs required it. We entertain no doubt that where the receipts from a pension can be directly' traced to the purchase of property, necessary or convenient for the support and maintenance of the pensioner and his family, such property is exempt under the provisions of the Code. Where such moneys can be clearly identified, and are used in the purchase of necessary articles, or are loaned or invested for the purpose of increase or safety, in such form as to secure their available use for the benefit of the pensioner in time of need, we do not doubt but that they come within the meaning of the statute, but where they have been embarked in trade, commerce or speculation and become mingled with other funds so as to be incapable of identification or seperation, we do not doubt but the pensioner loses the benefit of the statutory exemption." 16. Pension money after death of pensioner. Section 4718 of the United States Revised Statutes provides that, "if any pensioner has died, or shall hereafter die, * * * * iiis widow, or if there is no widow, the child or children of such person, under the age of sixteen years, shall be entitled to receive the accrued pension to the date of the death of such person. Such accrued pension shall not be considered as a part of the assets of the estate of deceased, nor liable to be applied to the payment of the debts of said estate in any case whatever; but shall inure to the sole and exclusive benefit of the widow or children." This section only exempts the "accrued pension" not received by the pen- sioner. It seems that the exemption created by sec. 1393 of the Code has no application after the pensioner's death ; Matter of Barber, 20 N. Y. State Rep. 136. 158 PKACTICE IN ATTACHMENT OF PKOPEETY. X. — Illustrations — exempt property. The fleeces, or the yarn or cloth manufactured from the fleeces, of ten sheep, are exempted from execution while in the hands of a houseliolder, whether he be or be not the owner of the sheep from which it was taken ; Hall V. Penny, 11 Wend. 45; Code, § 1390, subd. 4. The restriction to sixty days in subd. 4 of sec. 1390 only applies to fuel, oil, and candles ; Farrel v. Higley, Hill & Denio, 88. In the Matter of Edlands, 35 Hun, 367, it was held that a cheap watch and chain, a trunk, and the necessary clothing of an unmarried man, who was a clothing cutter, were exempt. But see TTie Deposit Nat. Bk. v. WicTcham, 44 How. Pi'. 421, and Bitting v. VanderburgJi, 17 id. 80. A wagon is a part of a team, and as such is exempt ; Dains v. Prosser, 32 Barb. 290 ; so is a sleigh and har- ness ; Smith v. Slade, 57 Barb. 637 ; Mint v. Sargent, 6 Week. Dig. 339 ; Wolf v. Farley, 40 N. Y. State Rep. 808. It seems that a threshing machine is not exempt ; Ford V. Johnson, 34 Barb. 364. Professional books and surgical instruments may be exempt; Hobinson's case, 3 Abb. 466 ; so may shares in a law institute ; Keiher v. SUpherd, 4 Civ. Pro. Rep. 274. "Wheat" is not "flour" within the meaning of the words, "flour and vegetables actually provided for family use;" Salisbury y. Parsons, 36 Hun, 12. The father and husband, who had left the State, leaving his wife and children living together, is a "householder;" Woodward v. Murray, 18 Johns. 400. The necessary wearing apparel of every debtor is ex- empt from levy and sale on execution ; Bumpas v. Maynard, 38 Barb. 626. A non-resident is entitled to the exemption laws ; Bunn v. Fonda, 2 Code R. 70. PEOPEETY EXEMPT FKOM LEVY AND SALE. 159 The exemption in the statute was not made to depend on the pecuniary ability of the debtor ; Smith v. Blade, 57 Barb. 637 ; Reinsche v. FlocTce, 35 N. Y. Supr. 491. Where a judgment debtor has three horses, or two cows, or twenty sheep, and some of the property is levied upon, the debtor may at the time of the levy or within a reasonable time after he has notice thereof, elect to claim two of such horses as exempt. If he fails to make such election, he cannot maintain replevin against the officer ; Seaman v. Luce, 23 Barb. 240. The debtor may claim any piece of property not exceeding in value $250; Firmin v. Mallory, 33 N. Y. Supr. 382 ; Brooks T. Hathaway, 8 Hun, 290. Potatoes and other vegetables planted for family use are exempt from execution before they are taken from the ground, the same as when taken out of the ground and laid up in store ; Carpenter v. Herrington, 25 Wend. 370. 160 PBACTICE IN ATTACHMENT OF PROPERTY. CHAPTER IX. PROCEEDINGS AFTER LEVY OF ATTACHMENT. I. — Liens — priorities. 1. In general. 2. Vacating and restoring attachment — effect on priority of lien. 3. Jurisdiction, when acquired and how lost. 4. When attachment ceases to be a lien. 5. Joint debtors — service of summons on one good. II. — Domestic vessel — proceedings on claim to. 6. Appraisers — affidavit of value by. 7. Undertaking by claimant for discharge of vessel. 8. Suit on undertaking. III. — Suit by plaintiff in name of himself and sheriff. 9. Leave to bring, how obtained. IV. — Action by junior plaintiff jointly with sheriff. 10. In general. 11. Eights of junior plaintiff in action by senior plaintiff and sheriff. V. — Sheriff — power of in attachment. 12. All proceedings must be taken in name of. 13. To collect. 14. Where service of summons is made by publication and defendant does not appear. 15. Trial of claim of title to chattels. 16. Bond of indemnity — when title found in claimant. 17. Claimant not prejudiced by finding of jury. VI. — Vessel to be sold when. VII. — Foreign vessel. 18. Proceedings on attaching. 19. Undertaking of plaintiff. 20. Terms upon which defendant may claim vessel. 21. When to be sold. 22. Undertaking by junior attaching creditor to prevent release. 23. Rule as to subsequent attachment of foreign vessels. 24. Rights of third and other subsequent attaching creditors. I. — Liens — priorities. 1. In General. An attaching creditor acquires by his writ no title to the goods attached, and no right of action PKOCEEDINGS Al'TER LEVY OE ATTACHMENT. 161 against a third person who may take them from the officer or destroy them ; Dobbins v. Hanchett, 20 111. App. 396. But the sheriff has an interest in the property to the amount due upon the writs, with legal costs ; Aryisirong v. Lynch (Neb.), 45 N. W. 274. Attachment creditors cannot oppose equities which are valid against their debtor and are only void as against persons who have dealt with the debtor on the faith of recorded titles, &c. ; Fort Pitt Nat. Bank v. Williams, 43 La Ann, 418 ; 9 So. 117. An attachment, like an execution, becomes a lien upon the property of the defendants, liable to execution from the time the order comes to the hands of the officer, if it is afterwards levied on the property, as against a chattel mortgage executed before the order is received by the officer, but not filed until afterwards ; Cross V. Fomby, 54 Ark. 179 ; 15 S. W. 461 ; Beamer v. Freeman, 84 Cal. 554 ; 24 Pac. 169. The lien of an at- tachment is not destroyed by a non-suit if a new trial is granted ; DoUlns v. PollocTc, 89 Ala. 351. So an attach- ment set aside after delivery, to a sheriff, and subse- quently restored to validity upon appeal from the oi'der setting it aside, is entitled to priority of payment from the proceeds of sales under executions delivered to the sheriff after it was set aside, and before its validity was restored, though the levy originally made under it was released when it was set aside ; PacJi v. Gilbert, 124 N. Y. 612 ; 37 N. Y. State Rep. 218 ; 20 Civ. Pro. Rep. 300 ; 27 N. E. 291. But it seems that if a creditor, through want of regularity in his proceedings, loses a priority once acquired, it will not be restored by amendment ; Kittredge v. Qifford, 62 N. H. 134 ; Moody v. Lucier, id. 584. An attachment does not become merged in the 11 162 PEACTICE IN ATTACHMENT OF PROPERTY. judgment obtained in the suit and the execution issued thereon ; Tuck v. Manning, 63 Hun, 345 ; 44 N. Y. State Rep. 391 ; 17 K Y. Supp. 915. It seems that the lien of an attachment first placed in the hands of the sheriff is prior to that of one subsequently delivered to him, but served first ; Gregory v. Adler, 56 Ark. 292 ; 19 S. W. 921. But the lien is subordinate to a lien in favor of creditors who have commenced a suit or proceedings supplementary to execution to reach the property by service of process prior to the time the attachments are placed in the sheriff's hands for service ; Jefferson County Sav. BJc. v. McDermott (Ala.), 10 So. 154. An attachment for a firm debt upon the firm property of a partnership composed of one resident and one non-resi- dent partner, issued upon the ground of non-residence, gives no priority to the attaching creditor over other creditors, except as to any special or superior interest which the non-resident partner may have in the firm property. Andrews v. Mundy, 86 W. Va. 22 ; 14 S. E. 414. 2. Yacating and restoring attachment — eifect on priority of lien. It was held in PacJi v. Gilbert, 124 N. Y. 612 ; 20 Civ. Pro. Rep. 300 ; 30 IST. Y. State Rep. 486, that where an attachment is levied on property of the debtor and the warrant is afterwards vacated, and the sheriff releases the levy and then receives execations in other cases upon which he sells the said property, and afterwards the order vacating the warrant is set aside, that the last order revived the warrant as of the date it was granted, so that it is the process first delivered to the sheriff, and takes preference in the application of the funds realized on the sale, although the execution on the judgment in the attachment action was the last received. PEOCEEDINGS AFTER LEVY OP ATTACHMENT. 163 The lien of an attachment is distinct from the actual possession of the goods by the sheriff. If the sheriff is deprived of his actual possession by fraud or artifice, the lien or right nevertheless will continue to exist. Sec- tions 697, 1406, 1407, put warrants of attachments on an equality with executions as to the rule for determining their respective preferences. 3. Jurisdiction, when acquired and how lost. It is provided by sec. 416 of the Code that from the time of granting a provisional remedj^, the court acquires juris- diction and has control of all subsequent proceedings, but that this jurisdiction is conditional and liable to be divested when made by special provision dependent upon some act to be done after the granting of the pro- visional remedy. It is questionable whether the lapse of thirty days, without publication of the summons, ousts the jurisdiction of the court, or abates the action, or merely avoids the attachment, for it is provided by section 441 that where an action is brought against a non-resident, and an order of publication is made, the first publication or the service out of the State must be made within three months after the order of publi- cation is granted ; Mojarrietta et al. v. Saenz et al., 80 N. Y. 548. 4. When attachment ceases to he a lien. Section 416 of the Code provides "that a civil action is commenced by the service of a summons, but from the time of the granting of a provisional remedy, the court acquires jurisdiction and has control of all the subsequent pro- ceedings. Nevertheless, jurisdiction thus acquired is conditional and liable to be divested in case where the jurisdiction of the court is made dependent, by special provision of 164 PUACTICE IN ATTACHMENT OF PEOPEETY. law, upon some act to be done after the granting of the provisional remedy. The act required to be done by sec. 638 of the Code is either the service of the summons personally or by publication within thirty days. In Blossom V. Estes, 84 N. Y. 617, Danfoeth, J., says : "An attachment can issue only in an action, * * * there could be no action until the actual service of a summons. Here is a plain condition upon which the validity of the attachment depends. It was good when issued, but remained so for thirty days only, unless within that time one or the other of the two steps were taken. At the end of that time the statutory bar falls, and with it the attachment. Ihe jurisdiction, which attaches upon allowance of the warrant, ceased, and as to that proceed- ing, it is as if the statute had been repealed." In Fisclier v. Langhein, 103 id. 84; 2 IST. Y. Stale Rep. 768, the court say: "Void process is such as the court has no power to award, or has not acquired juris- diction to issue in the particular case, or which does not in some material respect comply with the legal requis- ites of such process, or which loses its validity iu consequence of non-compliance with a condition sub- sequent, obedience to which is rendered essential." Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises, and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void and afford no justification to the parties instituting them as against parties injuriously affected thereby. There is a great difference between erroneous process and irregu- lar process. PROCEEDINGS AFTEE LEVY OF ATTACHMENT. 165 The first stands A^alid and good unless it is reversed, the latter is an absolute nnllity from the beginning ; Ruser v. The Union Bistilling Co., 53 id. 319. Service of the summons upon one or two or more joint debtors is sufficient ; Bueliler v. DeLemos, 84 Mich. 554. An attachment falls upon the death of the defendant within thirty days, and before service made or publication com- menced, although due diligence is used to effect service and the defendant conceals himself, notwithstanding sec. 755 of the Code provides that an action is not abated by any event if the cause of action survives ; Ludioig v. Blum, 43 K Y. State Rep. 616; 63 Hun, 631; 18 N. Y. Sapp. 69 ; McLaughlin v. W/ieeler (S. D.), 50 N. W. 834. If the effect of an attachment for an aniount in Excess of that to which the plaintiff is entitled, is to hinder, delay or defraud other creditors, it is void in toto as to such other creditors ; Freiberg v. Freiberg, 74 Tex. 122. Where, in an action bronght against a firm, an attach- ment is issued, and thereafter one of the partners is served with the summons, but the others are not, nor are proceedings to serve them therewith by publication com- menced within the thirty days required by the statute, the attachment ceases to be a lien upon che firm prop- erty ; Donnel v. Williams, 21 Hun, 216 ; Staats v. Bristow, 73 IST. Y. 264. The same rule prevails in an action against joint debtors of any kind ; Orvis v. Oold- schmidt, 2 Civ. Pro. Rep. 314. 5. Joint-debtors — service of summons on one good. In an action against joint debtors, service of summons on one authorizes judgment against all, which may be enforced by execution against the joint property, although the other defendants are not served, and do 166 PRACTICE IN ATTACHMENT OF PROPERTY. not appear in the action ; Code, §§ 1932 to 1935 inclu- sive ; Sternberger v. Beenheimer, 121 N. Y. 194 ; 30 N". Y. State Rep. 75). The same rule applies in case of an attachment ; Terlces v. McFadden et al., 56 id. 672 ; 141 N. Y. 136 ; 36 N. E. Rep. 7. Where an attachment issues against the property of several defendants in an action on a joint liability, it may be executed by a siezure of the joint property, and although the summons is served on but one of the defendants within the time prescribed, and no service is made or publication commenced against the other defendants, the attachment cannot be vacated as to them for that reason. The attachment and lien continues, and if the plaintiff obtains judgment on the joint lia- bility; the joint property seized on the attachment may be sold on the execution. The right to seize the joint property on an attachment in an action against joint debtors, although the summons is served on one only, is the same as in case of an execution on a joint judg- ment under similar circumstances ; Smith v. Orser, 42 N. Y. 132. The case of Statts v. Bristow, 73 id. 264, has no bearing upon this question. There, in an action brought for a copartnership debt, an attachment was issued against the property of one of the copartners only, on the ground that he was a non-resident, on which his interest in the copartnership property was levied upon. The copartnership at the time was insolvent. After the seiz- ure on the attachment the firm made a general assignment for the benefit of creditors, and subsequently, on obtain- ing judgment in the attachment action, the interest of the attachment debtor in the firm property was sold on execution. An action was brought to determine the respective rights of the purcbaser on the execution sale PROCEEDINGS AFTEK LEVY OF ATTACHMENT. 167 and the assignee for creditors in the property, and it was held that the plaintiff acquired nothing by his levy and sale, because the interest of the attachment debtor in the property was nothing, as the firm was insolvent, and that the assignee acquired title to the corpus of the property under the assignment. When the attachment is against the joint property, if good as against one of the defendants, it is good against all. The lien is not lost, nor can the attachment be vacated as against any of the defendants, where there has been a valid service of the summons within the time prescribed by sec. 638 of the Code, upon one of the defendants ; TerJces v. McFad- den et al., supra. II. — Domestic vessel — proceedings on claim to. 6. Appraisers — affidavit of value by. When 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 threej indifferent persons to make a valuation thereof. The valuation must be in writing and sub- scribed 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 deponent's belief. This sworn appraisal must be returned to the court or judge ; Code, §§ 660, 661, 662. 7. Undertaking by claimant for discharge of vessel. Within two days after the valuation is returned, the claimant or his agent may execute an undertaking to the sheriff, with sufficient sureties approved by the court 168 PRACTICE IN ATTACHMENT OF PROPERTY. 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 will 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 defendant or his personal representatives. 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 ; Code, §§ 660, 661, 662, 663. 8. Suit 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, and if the warrant of attachment is vacated or annulled, the defend- ant in the attachment, his assignee or jjersonal represen- tatives, may commence an action upon the undertaking, or may be substituted in place of the sheriff in an action pending thereupon . In such 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 ; Code, §§ 664, 665. III. — Suit by plaintiff in name of himself and sheriff. 9. Leave to bring, how obtained. Section 677 of the Code provides that the attaching creditor may bring and maintain, in the name of himself and the sheriff jointly, any action which by the provisions of title 3, chap. 7, Code of Civil Proceedure, may be brought by PROCEEDINGS AFTER LEVY OF ATTACHMENT. 169 the sheriff to recover properly attached or the value thereof, and the attaching creditor may, as stated above, maintain any action that the sheriff might maintain under subd. 2, § 655 of the Code ; Lane et al. v. WJieel- wright et al., 69 Hun, 180; 53 N. Y. State Rep. 368; 23 N. Y. Supp. 676. Upon due notice of applicaticn to the sheriff, and to the plaintiff in any other warrant, against the same defendant, the court or judge must grant leave to the plaintiff to bring and maintain, in the name of himself and the sheriff jointly, by his own attorney and at his own expense, any action which may brought by the sheriff, to recover property attached, or the value thereof, or a demand attached, or upon an undertaking given as prescribed by the Code, by a person other than the plaintiff'. The plaintiff, in his own name and the sheriff's jointly, may also bring and maintain any action which, by section 665 of the Code, may be brought by the sheriff. The sheriff must receive the proceeds of such an action, but he is not liable for the costs and expenses thereof ; costs may be awarded in such an action against the plaintiff in the warrant, but not against the sheriff; Code, § 677. Where the plaintiff might have procured leave to bring the action, he may by leave of the court or jndge be joined with the sheriff in an action brought by the sheriff. The court or judge may require the plaintiff to provide for the expenses in the action already incurred by the sheriff ; id. 680. The court or judge may, upon the application of the sheriff or of the defendant in the warrant, during the pendency of the action brought as prescribed in the last three sections, direct as to the conduct, discon- tinuance or settlement of the same ; Code, § 680. 170 PKACTICE IN ATTACHMENT OF PROPERTY. IV. — Action by junior plaintiff jointly with sheriff. 10. In general. 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 maintain, 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 main- tain such an action in the name of himself and the sheriff jointly, with like effect as if his were the first warrant ; Code, § 704. 11. Rights of junior plaintiff in action ]^ senior plaintiff and sheriff. Where the plaintiff in a warrant of attachment has commenced an action in the name of himself and the sheriff jointly, as prescribed in this title, a plaintiff in a junior warrant may apply to the court or judge to direct as to the conduct, discontinuance or set- tlement of the same, or to impose terms, conditions and regulations as to the continuance thereof, in the interest of the applicant, and such order may be made thereupon as justice requires. If the first warrant is vacated, or the attachment thereunder is released or discharged without affecting 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 PR0CET5DINGS AFTER LEVY OF ATTACHMENT. 171 upon an application for leave to bring such an action ; Code, § 703. V. — Sheriff — power of in attachment. 12. All proceedings must be taken in name of. Sec- tion 655, subd. 1 of the Code provides that in executing an attachment, the sheriff may maintain an action or special proceeding in his own name, or in the name of the defendant, to reduce to his actual possession an article of personal property capable of manual delivery, but of which he has been unable to obtain possession. The attaching creditor has no power or authority to institute any such action or proceeding ; Hall v. Brooks, 89 N. Y. 33. But by leave of the court or judge, the attaching creditor maj^ bring and maintain any action in the name of himself and the sheriff jointly ; Lane v. WheelwrigJit, 69 Hun, 180 ; 53 N. Y. State Rep. 368 ; 23 N. Y. Supp. 576 ; Code, § 677. 13. To collect. Section 655 provides that the sheriff must, subject to the direction of the court or judge, collect and receive all debts and effects, and things in ac- tion, attached by him. He may maintain any action or special jDroceeding in his own name, or in the name of the defendant, which is necessary for that purpose. It is not necessary to allege in the complaint that the action had been brought by the direction of the court or judge. It seems that it is not necessary to obtain positive and affirmative directions of the court or judge. The sheriff should proceed to collect the demands at once ; David- son V. Chatham Nat. BJc., 32 Hun, 138. The sheriff cannot discontinue an action brought by him, except by leave of the court or judge, and a sheriff will not be allowed to discontinue such action, even though the 172 PRACTICE IN ATTACHMENT OF PROPERTT. defendant is willing to pay all that has become due to the plaintiff in the attachment, when the debtor will be prejudiced thereby ; Bowe v. Knickerhocker Life Ins. Co., 27 Hun, 312. The sheriff, as incidental to the right to bring actions for recovery of debts seized, is entitled to be allowed the expenses incurred in such actions ; Maxfield v. Taylor, 20 Week. Dig. 121. 14. Where service of summons is made by publication, and defendant does not appear. The sheriff may, before judgment, where the summons was served by publica- tion or without the State, and the defendant has not appeared in the action, maintain an action against the attachment debtor, and any other person or persons, or against any other person or persons, to compel the dis- covery of any thing in action or other property belong- ing to the attachment debtor, and of any money, thing in action or other property due to him, or held in trust for him, or to prevent the transfer thereof or the pay- ment or delivery thereof to him or any other person, and the sheriff may, in aid of such attachment, also maintain any other action against the attachment debtor and any other person or persons which may now be maintained by a judgment creditor in a court of equity, either be- fore the return of an execution in aid thereof or after the return of an execution unsatisfied. The amendment of 1889 added the second subdivision to section 655 of the Code. The purpose of an amend- ment was to provide a remedy where it was necessary and proper. It had been held that an action could not be brought in aid of an attachment to reach property frauduently transferred by the attachment debtor ; Thurbher v. Blanclc, 50 N. Y. 80 ; Anthony v. Wood, 96 id. 180 ; Throop & Co. v. Smith, 110 id. 80. PROCEKDINGS AFTER LEVY OF ATTACHMENT. 173 It followed from this holding that where a non-resi- dent, owning property in this State, frauduently trans^ fered it and then was sued for the money upon contract, by service of the summons without the State, or by pub- lication pursuant to an order, and he did not appear in the action, but made default, no jurisdiction was ac- quired. The person of the defendant was not brought within the jurisdiction of the courts of this State, for the law of the State cannot reach beyond its territorial limits ; Freeman v. Alderson, 119 U. S. 185. The fraudulently transferred property could not be at- tached, the court had neither person nor thing within its power ; Schwinger v. Hickok, 53 N. Y. 280 ; Bartlett v. Spicer, 75 id. 528. The amendment enables the court to establish the non- resident debtor's title to the property and thereby to establish its jurisdiction of it. If the non-resident debtor holds the legal title, then jurisdiction of the property is acquired by levying the attachment by seizing it, or if incapable of manual delivery, in the manner already pointed out ; Bacus v. Kimball, 62 Hun, 122 ; 41 N. Y. State Rep. 446 ; 16 N. Y. Supp. 619. Jurisdiction is not obtained out of the property attached. If, there- fore, anything is levied upon under the attachment, the plaintiff's remedy is limited to it, and whatever action in aid of the attachment is proper must be brought by the sheriff ; The Capitol City BanTc v. Parent, 134 N. Y. 527. 15. Trial of claim of title to chattels. If goods or effects, other than a vessel, attached as the property of the defendant are claimed by or in behalf of another person as his property, the sheriff, may impanel a jury to try the validity of the claim ; Code, § 657. 174 PBACTICK IN ATTACHMENT OF PROPEETY. 16. Bond of indemnity — when title found in claimant. If the jury find the proijerty of the goods or effects to have been in the claimant, at the time of the levy, the sheriff must deliver them to him or his agent, unless the plaintiff gives an undertaking with sufficient sureties to indemnify the sheriff for the detention thereof. In the county of New York, where the plaintiff gives a bond of indemnity, the sheriff must, within two days, cause the same to be filed in the office of the court, and serve upon the claimant and attaching creditor, or his attorney, a copy of the said bond with the notice of the justification of the sureties thereon. The justification must take place before a judge of the court out of which the attach- ment was issued, at a time to be specified in the notice, which must not be less than two nor more than five days after the serving of said notice. Each of the sureties mast attend before the judge at the time and place mentioned in the notice and be examined on oath on the part of the claimant. If the judge finds the sureties sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause the same to be filed with the clerk of the court. Thereupon the sheriff is released and dis- charged from all further liability, by reason of the taking and detention of the property seized ; Code, § 658. 17. Claimant not prejudiced by finding of jury. If the property is found to be in the defendant, the finding does not prejudice the right of the claimant to bring an acton to recover the goods or effects, or the value thereof; Code, § 659. VI, — Vessel to be sold, tcrhen. If a claim is not made by the owner within the thirty days allowed by law after it is attached, or if the proper PROCEEDINGS AFTEK LEVY OF ATTACHMENT. 175 undertaking is not executed by the claimant, the vessel, share or interest, may be sold by the sheriff, under an order of the court or judge, upon the application of the plaintiff or of a joint owner or his agent ; Code, §§ 672, 673. VII. — Foreign vessels. 18. Proceedings on attaching. Where a foreign vessel or a share or interest therein is attached, the court or judge, on the application of a person who makes affi- davit to the effect that he is the owner thereof, or that he is the agent of a person, naming him and his resi- dence, whom he believes to be the owner of the vessel, share or interest, must appoint three indifferent persons to make a valuation thereof. Such notice of the ajjpli- cation must be given to the plaintiff, as the court or judge deems reasonable. The appraisal must be in writing, subscribed by the appraisers with their affi- davits attached, 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 deponent's belief. The valuation must be returned to the court or judge ; Code, §§ 666, 667. 19. Undertaking by 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 twice the appraised value, to the effect that they will 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 ap- proval of the undertaking, if it appears therein that the 176 PRACTICE IN ATTACHMENT OF PROPERTY. vessel, share or interest, belonged, at the time of attach- ing it, to the person in whose behalf the claim is made ; Code, § 668. Unless such an undertaking is given, the court or judge must grant an order discharging the vessel, share or interest, so claimed from the attach- ment ; Code, § 669. 20. Terms upon which defendant may claim vessel. If after the plaintiff has given an undertaking, the warrant of attachment is vacated or annulled, or the attachment is discharged as to the vessel, share or interest, the defendant 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 undertak- ing given by the plaintiff has been discharged, or giving to the plaintiff an undertaking, with sufficient sureties, 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 his undertaking ; Code, § 670. 21. When to be sold. If the undertaking of the plaint- iff is not discharged, or he is not indemnified, within one month after the defendant becomes entitled to claim the vessel, share or interest, it may be sold by the sheriff, upon an order of the court or judge, and the proceeds of the sale must be paid to the persons who executed the undertaking, for their indemnity. So, if a claim is not made, by or in behalf of the owner, within the thirty days allowed for such purpose, the vessel, share or interest, may be sold by the sheriff, under an order of the court or judge, upon the applica- tion of the plaintiff or a joint owner, or his agent ; Code, §§67J, 672, 673. 22. Undertaking by junior attaching creditor to pre- PEOCEEDINGS AFTER LEVY OP ATTACHMENT. 177 vent release. Where a foreign vessel, or a share or interest therein, has been attached and valued, as pre- scribed by sec. 666 of the Code, 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 plaintiff in the second warrant, then in the sheriff's hands for execution, an extension, if not more than three days thereafter, within which to furnish an undertaking, in all respects like the one to be furnished by the first plaintiff, and if he furnishes it within that time, he has the same rights and privileges, and is sub- ject 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 ; Code, §701. 23. Eule as to subsequent attachment of foreign vessels. If a foreign vessel, or a share or interest there- in, has been attached and afterAvards 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 shall 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 fur- nished. But it may be again attached under a subse- quent warrant against the same defendant, in which case the plaintiff therein and the plaintiff in each war- rant subsequently delivered to the sheriff, have the same rights and privileges and are subject to the same duties and liabilities, with respect to the vessel and its pro- ceeds, and the subsequent proceedings relating thereto, as if the warrant under which it was attached was the first warrant ; Code, § 702. 12 178 PRACTICE IN ATTACHMENT OF PKOPERTT. 24. Rights of third and other subsequent attaching creditors. Where there are more than two warrants of attachment against the same defendant the plaintiffs in the third and each subsequent warrant have, according to their respective priorities, the same rights and privileges as against the plaintiffs in all senior war- rants, which the plaintiff in the second warrant has as against the plaintiff in the first, and are subject lo the same duties and liabilities, except that a second exten- sion of the time within which to furnish an undertaking to prevent the release of a foreign vessel, or share or interest therein, shall not be granted. And the plaint- iffs 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 subse- quent warrant of attachment, provided that it does not interfere with the preferential or other right of an intermediate plaintiff ; Code, § 705. PROCEEDINGS TO REMOVE LIEN. 179 CHAPTER X. PROCEEDINGS TO REMOVE THE LIEN OP AN ATTACHMENT. I.— Remedies of defendant and junior lienors. 1. In general. 2. Motion by receiver. 3. By subsequent attaching creditors. II.— Merits of action on motion to vacate. Ill —Defendant's remedies. 4. In general. 5. By undertaking a matter of right. 6. Undertaking by one of two or more defendants. 7. Filing undertaking and justification of sureties. 8. VesseL IV.— Partnership property — interest of one partner. 9. In general. 10. Partner inierest consists of what. 11. Vessel or partnership-chattels attached and released under §§ 692, 694 of Code— effect of. v.— Undertaking under Code, § 688. No waiver of right to move to vacate. VI. — Who may move. 12. In general. 13. Before whom motion on original papers to be made. 14. When warrant is granted by the court. 15. Laches of moving party. 16. Grounds for vacating. 17. Rule 25 of the Supreme Court. 18. Defendant must show preponderance of proof. I. — Remedies of defendant and junior lienors. 1. In general. An attachment may be vacated either when it has been irregularly issued, i. e., where the facts alleged are insufficent, or where it has been impro- vidently issued, i. e., where the facts alleged are untrue; Kerchner v McCormac, 25 S. C. 461 ; William Deering & Co. V. Warren (S. D.), 44 N. W. 1068. 180 PRACTICE IN ATTACHMENT OF PROPERTY. As a general rule an attachment will be vacated where the allegations upon which it was granted are fully an- swered and explained ; Smith v. Fowler, 14 N. Y. Supp. 940 ; and where any part of the sum to enforce the pay- ment of whicli an attachment is sued out, is ficti- tious, the whole attachment is vitiated as to subsequent attaching creditors ; Goodbar v. City Nat. Bk. , 78 Tex. 461 ; so an attachment should be vacated where the amount sued for is materially less than that stated in the affidavit and writ; Moore v. Corley (Tex. App.), 16 S. W. 787. Where the motion to vacate is made upon the original papers upon which the writ was granted, other affidavits cannot be used to supply deficiences ; Kahle v. Muller, m Hun, 144 ; 11 N. Y. Supp. 26 ; 32 N. Y. State Rep. 448. But it is different where defendant has been guilty of laches in making his motion to vacate ; Haehler v. BernTiarth, 31 N. Y. State Rej). 407 ; 58 N. Y. Supr. Ct. 165 ; 9 N. Y. Supp. 725. The question is not one of jurisdiction of the officer who granted it, but upon the facts presented, the court is to determine whether the attachment ought to issue ; Brewster v. Van Camp, 28 N". Y. State Eep. 591 ; 8 N. Y. Supp. 588 ; 55 Hun, 603 ; and where the affidavits upon which the writ was issued, show circumstances strongly tending to establish fraud, in the absence of any explanation by defendants, where, all the facts being peculiarly within their knowledge, instead of basing the motion to vacate upon affidavits, thej' rest upon those upon which the attachment was granted, all legitimate deductions and inferences must be construed against them for the purpose of sustaining the attach- ment ; Jaffray v. Nast, 57 Hun, 585 ; 10 N. Y. Supp. 280 ; 32 N. Y. State Rep. 250. A motion to vacate may PROCEEDINGS TO REMOVE LIEN. 181 be made by the debtor at any time before the actual ap- plication of the attached property or the proceeds there- of to the payment of the judgment recovered in the action ; Kalile v. Muller, id. 448 ; 57 Hun, 144 ; 11 N. Y. Supp. 26. 2. Motion by receiver. A receiver of property, taken under attachment after his apointment, cannot move to vacate simply on the ground that his property has been seized, as that section is limited to possession acquired after levy ; Key West Bldg. & L. Asso. v. Bank of Key West, 63 Hun, 633 ; 44 N. Y. State Rep. 152 ; 18 N. Y. Supp. 390. 3. Subsequent attaching creditoi's. The last clause of section 698 of the Code of Civil Proceduie provides that where a second warrant against the same defendant is delivered to the same sheriff, he must execute it by levy- ing upon property within his county, and he must there- upon take the same proceedings as if the levy was made under the first warrant, and a motion to dissolve an at- tachment by one claiming a subsequent attachment lien upon the same property is properly refused where the affidavit to prove the lien is upon information and belief, by one having no personal knowledge of the facts, and no excuse is given for not procuring affidavits of those having knowledge ; Hodgman v. BarTcer, 128 N. Y. 601 ; Nat. Broadioay Bli. v. BarTcer, 38 N. Y. State Rep. 921 ; 16 N. Y. Supp. 75 ; 20 Civ. Pro. Rep. 338 ; 60 Hun, 578. A junior attaching creditor must show that he has a valid levy on the same i^rojjerty, in order to give him a standing in court ; Everitt v. Everitt Mfg. Co., 58 Hun, 604; 33 K Y. State Rep. 996; 11 N. Y. Supp. 508. The general rule that no appeal lies from an order of 182 PEACTICE IN ATTACHMENT OF PROPERTY. the general term vacating an attachment, notwithstand- ing there was jurisdiction to grant the writ upon the papers presented on the application therefor, does not in reason apply where the attachment is vacated on the motion of a subsequent attaching creditor or lienor. The general rule proceeds on the ground that a plaintiff in an action has no absolute legal right to the issuance of an attachment against the property of a defendant. The , court, or officer to whom an application for an attach- ment is made, may deny the application, although a formal case may be made, either because the facts are stated with too much generality, or the case made in not in the opinion of the court or Judge sufficiently plain to justify this extraordinary remedy, or instead of denying the application absolutely, the court or officer may require additional proof of the jurisdictional facts, although there is not an entire absence of evidence of the existence in the proofs presented. Where an attachment is granted, the defendant may appeal to the general term, and upon such an appeal the general term may review the discretion exercised in granting the attachment as well as the question of juris- diction. If the general term vacates the attachment on the appeal of the defendant in the action, it will be deemed to have acted in the exercise of its discretion, unless its decision is placed solely on the question of power, and there the matter ends and no further review can be had. But where the proceeding to vacate tbe attachment is taken by a subsequent lienor and not by the defendant in the action, and the appeal to the general term is taken by him, the question before the general term is one of strict legal right, and no question of discretion is pre- PROCEEDINGS TO REMOVE LIEN. 183 sented. The sole point then to be determined is as to priority, in point of law, of the liens of the respective parties. It is then purely a question whether there was jurisdiction to grant the attachment on the papers pre- sented. It would be an anomaly that a court would exercise a discretion as to which of two contesting creditors it would award priority of lien. In Haehler v. BernJiarth, 115 N. Y. 459, the court say: "The order of the general term in this case, which affirmed the order of the special term vacating the plaintiff's attachment at the instance of a subsequent creditor, is therefore appealable to this court. We think the papers presented to the judge, upon which the attachment was granted, contained some evidence to establish all the necessary jurisdictional facts, and justi- fied the granting of the writ. These papers consisted of a complaint, verified by the plaintiff, and a separate affidavit made by him. The complaint set forth a cause of action on contract for breach of warranty on the sale of beans. It alleges that between the 30th day of Jan- uary and the 4th day of February, 1888, the plaintiffs bought of the defendants one thousand bags of beans, to be shipped from France, and the purchase price was paid March 22, 1888 ; that the defendants warranted that the beans should be a kind and quality equal to a sample furnished at the time of the purchase ; that the beans delivered under the contract were of a kind and quality not equal to the sample, but were greatly inferior thereto ; that by reason of the breach of war- ranty the plaintiffs were damaged in the sum of $1,064.51. The affidavit states the purpose of the action ; that 184 PRACTICE IN ATTACHMENT OF PROPERTY. the defendants are non-residents of this State, and reside at Havre, France, and that the plaintiffs are entitled to recover from the defendants the sum of $1,064.51, over and above all counter-claims known to the aflGlant. Section 636 of the Code prescribes the conditions of procuring an attachment. By subdivision 1 of that sec- tion, the plaintiff must show by affidavit, to the satis- faction of the judge, that one of the causes of action specified in the last section (sec. 635) exists against the defendant. If the action is to recover damages for breach of contract, the affidavit must show that the plaintiff is entitled to recover a sum stated over and above all counter-claims known to him. The case comes under this subdivision. Objection is taken that the contract on which the action is brought is not alleged with sufficient definite- ness in the complaint ; but the principal objection is that no facts are shown upon the papers from which it can be seen that the plaintiffs have sustained damages from a breach of the warranty to the amount of $1,064.51, or, indeed, in any amount beyond nominal damages. The complaint contains all the necessary elements of a cause of action for breach of warranty. It alleges a sale, a warranty, a breach of the warranty, and damages conse- quent thereon, in a sum stated. The affidavit supple- ments the statement of the amount of damages in the complaint, by the averment that the plaintiffs are entitled to recover that sum for the breach of the war- ranty over and above all counter-claims. The rule of damages upon the facts stated is the difference in value between beans of the kind and quality of the sample and those of the kind and quality delivered. The com- plaint does not distinctly show upon its face that upon PROCEEDINGS TO REMOVE LIEN. 185 this rule the damages would be the sum stated. But it cannot be inferred that beans greatly inferior in quality to those warranted would be worth but a nominal amount less than beans of greatly superior kind and quality. The di£ference in the value of the different kinds of merchandise is in very many, perhaps in most, cases a mere matter of opinion. The allegation in the complaint that the damages were the sum stated is an averment of a fact in form, but really of the opinion of the plaintiffs that the damages were so much, and this they verified. The complaint and aflBdavit upon this point is undoubtedly very general, and is open to criticism. But dealing here solely with the question of jurisdic- tion, we think the affidavits did tend to show a cause of action on the contract and a liabilitiy of the defendants to the amount stated, and this was enough to sustain the attachment ; Steuben Co. Bank v. Alberger, 78 N. Y. 358. Many cases have been cited upon the point that affidavits to procure an attachment should make a plain case, and attachments have been frequently vacated because the facts were loosely, or argumentatively, stated in the affidavits. It is certainly reasonable that the judge should insist upon a full and clear statement of facts, bringing the case immediately within the statutory conditions, before granting the warrant. The issuing of the process by which the property of a defend- ant may be impounded before judgment, should be attended with all reasonable safeguards to prevent imposition or oppression. If the order vacating the attachment from which this appeal is taken had been obtained on the application of 186 PRACTICE IN ATTACHMENT OP PROPERTY. the defendant in the action, this court could not inter- fere. But as the action of the special and general terms is divested of any element of discretion, and the only inquiry is whether the affidavits conferred jurisdiction to grant the warrant, the conclusion that jurisdiction existed determines the appeal." II. — Merits of action on motion to vacate. Although the merits of an action will not ordinarily be determined upon a motion, an attachment will be vacated upon such merits when the facts are undisputed and the legal conclusion certain ; Lowenstein v. Salinger, 62 Hun, 622 ; 42 N. Y. State Rep. 414 ; 17 N. Y. Supp. 70. But the defendant is not entitled, as matter of law, to have an attachment vacated because the facts stated in his affidavit make out a complete defense to plaintiff's cause of action and are uncontradicted, since, being the evidence of an interested party, it maj' be disbelieved ; Dietlin v. Eagan, 19 N. Y. Supp. 392 ; 46 N. Y. State Rep. 762 ; 22 Civ. Pro. Rep. 398. So a motion to vacate will not be granted where the allegations of the complaint dispute the affidavits of the defendant that plaintiff has no cause of action; Brown\. Wigton, 63 Hun, 633 ; 18 N. Y. Supp. 490 ; 45 N. Y. State Rep. 135. Nor where the defendant's affidavit avers that no such debt is due as i^ claimed in the com- plaint, as that question can only be disposed of upon the trial ; Stearns Paper Co. v. Johnson, 44 id. 916 ; 18 N. Y. Supp. 490 ; 63 Hun, 633. III. — Defendant's remedies. 4. In general. There are two remedies provided for the defendant for relief from the presence of an attach- PROCEEDINGS TO REMOVE LIEN. 187 ment, one of them being by motion, which may be made at any time before the actual application of the attached property or the proceeds of it to the payment of the judgment, and the other by application before final judgment, which must rest upon an undertaking ; Code, § 668 ; Parsons v. Sprague, 30 Hun, 20. 6. By undertaking a matter of right. The defendant may at any time after lie has appeared in the action, and before final judgment, apply to the judge who granted the warrant, or to the court, for an order to discharge the attachment as to the whole or a part of the property attached. Upon such an application the defendant must give an undertaking, with at least two sufficient sureties, to the effect that he will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specified in the undertaking, with interest. The sum so specified must be at least equal to the amount of the plaintiff's demand, as specified in his affidavit, or, at the option of the defendant, equal to the appraised value, according to the inventory of the property attached, or, if the application is to discharge the attachment as to a part only of the property attached, to the appraised value of that portion ; Code, § 687. 6. Undertaking by one of two or more defendants. Where there are two or more defendants and an application is made as prescribed above, by one or more, but not by all of them, the undertaking must provide for the payment of any judgment which may be recovered against any of the defendants in the action, unless the applicant makes proof by affidavit, to the satisfaction of the court or judge, that the property, with respect to which the application is made, 188 PRACTICE IN ATTACriMBlirT OF PKOPEETY. belongs to him separately, in which case the under- taking 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. At least two days' notice of the application by one of two or more defendants, with a copy of the affidavit, must be served ujjon 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 ; Code, §§ 687, 688, 689. 7. Filing undertaking and justification of sureties. The undertaking must be filed with the clerk and a copy thereof, with a notice of the filing, forthwith served upon the plaintiff's attorney, who may, within three days tliereafter, give notice to the sheriff, that he excepts to the sufliciency of the sureties. Thereupon, the sureties must justify, upon the like notice, and in like manner, as bail upon an arrest, or a new undertaking must be given, witli new sureties, who must justify in like man- ner. If the plaintiff does not except in the time allowed, he is deemed to have waived all objections to the sureties ; id. § 690. 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 above, or they or new sureties justify ; id. § 691. 8. Tessel. The above provisions apply where a vessel, or a share or interest therein, is attached ; id. § 692. IV. — Partnership property — interest of one partner. 9. In general. Where an attachment is levied upon the interest of one or more partners in goods of a part- PROCEEDINGS TO REMOVE LUDN. 189 nersbip, partners who are not defendants in the action may at any time before final judgment obtain a dis- charge of the attachment. But the partner must give an undertaking to pay any judgment which may be recovered against tlie partner who is defendant in the action, or which may be recovered against him in any other action, wherein a warrant of attachment or an execution may come to the sheriff's hands at any time before the warrant of attachment which was so levied is vacated or annulled, not exceeding a sum specified in the undertaking which must not be less than the value of the interest of the defendant in the goods or chattels seized, by virtue of the attachment, as fixed by the court or judge, or such as the court or judge determines. And for the purpose of fixing tlie sum the court or judge may take testimony or direct a reference ; id. §§ 693, 694, 695. The court or judge may direct that the plaintiff have notice of the proceeding. 10. Partners' interest consists of what. The interest of a member of a copartnership in the firm assets is the share to which he is entitled under the copartner- ship agreement, in the surplus, after all the partnership debts are fully paid ; Menagh v. Whitehall, 52 N. Y. 146 ; and an attaching creditor is only entitled to such surplus ; Staats v. Bristow, 73 N. Y. 264. It seems that a seizure and levy by a sheriff, under an attachment or execution against one person upon the entire property of a firm, as the sole property of the debtor, is not justi- fied by showing that the debtor has an interest in the property as copartner. The power of the sheriff, for the purpose of rendering the levy upon the interest of one partner in the copartnership property effectual, to take possession of the whole property, is merely incidental 190 PRACTICE IN ATTACHMENT OF PEOPEKTY. to the right to reach the debtor's interest, and is to be exercised as far as possible in harmony with, not in hostility to, the rights of other partners. When, there- fore, the sheriff exceeds this limit and, instead of levying on the debtor's interest, levies upon and seizes the prop- erty as the sole property of the debtor, he is a tres- passer ; Atkins v. 8axton, 77 id. 195. In Sterrett et al. V. Third Nat. Bk of Buffalo, 122 N. Y. 657, it was held that sections 693, 695, of the Code of Civil Procedure is not available when the firm is insolvent, or when the debtor partner has no interest left. So where, in an action brought against a firm, an attachment is issued and one of tlie partners is served with a summons, but the others are not, nor proceedings to serve them there- with by publication commenced within the thirty days required by the statute, the attachment ceases to be a lien upon the firm property ; Bonnell v. Willams, 21 Hun, 216. But see BucMngTiam v. Sweezy, 25 id. 84. 11. Tessel or partnership chattels attached and released under sections 692, 694, of Code — eifect of. Where a domestic vessel, or sLare or interest therein, has been attached and afterwards released, as prescribed in sections 692 and 694 of the Code, or where the personal property of a partnership, of which the defendant was a member, has been attached, and the attachment after- wards discharged, upon the application of another partner as prescribed by section 693, another warrant against the same defendant cannot be levied upon the same property until the iirst warrant has been vacated or annulled ; Code, § 698. Junior attaching creditors are protected by the undertaking given to the sheriff as prescribed by section 694. Such undertaking is to the effect that the sureties will pay to the sheriff the amount PROCEEDINGS TO KEMOVE LIEN. 191 of any judgment which may be recovered against the partner, who is defendant in the action, in any action wherein the other partners are not defendants, wherein a warrant of attachment, or an execution, may come to the sheriff's hands at any time before the war- rant of attachment, which was so levied, is vacated or annulled. V. — Undertaking under Code, § 688. No waiver of right to move to vacate. The giving of an undertaking under Code, § 688, is not a waiver of the right to have the security given upon the issuing of the attachment increased, or vacating the attachment in pursuance of sec. 682 ; Dusseldorf v. Red- lich, 16 Hun, 624. Such a motion may be made after a judgment has been entered in the action and an execution has been issued thereon, provided the attached property or the proceeds thereof has not been actually applied to the payment of the judgment ; Parsons v. Sprague, 30 id. 9. VI. — Who may move. 12. In general. As a general rule, no one but a party injuriously affected by it can move to set aside an attachment. The word "defendant" in that portion of the Code, § 683, declaring that the application " may be founded upon proof by affidavit on the part of the defendant, designates the party asking the motion, whether a party to the record or a lienor; Steuben County BTc. v. Alberger, 75 N. Y. 179 ; 56 How. Pr. 345 ; and where the attachment is issued against a firm, either defendant may move alone to vacate the same so far as affects firm property; Waltz v. NicJiols, 32 Hun, 192 PRACTICE IN ATTACHMENT OF PROPERTY. 276. So a person moving to vacate attachment proceed- ings is not required to become a party to the action ; Peoples BTc. v. Mechanics Nat. B7c., 62 How. Pr. 422. The fact that defendant has made an assignment of all his property in trust for creditors, either before or after the issuing of the attachment, does not preclude him from moving to set the attachment aside ; Breioer v. TucTcer, 13 Abb. Pr. 76. So a receiver, or assignee, ap- pointed after the issuing of an attachment, may move to set aside the attachment without being made a party to the action ; Nat. S. & L. BTc. v. The Mechanics Nat. BTc.. 89 N. Y. 440. 13. Before whom motion on original papers to be made. Section 683 of the Code provides that if the war- rant of attachment is granted by a judge out of court, a motion to vacate the same, founded only on the papers upon which the warrant was gianted, ma5^ be made to such judge, in court or out of court, and with or without notice, as he deems proper. Under this portion of the section a county judge, or special county judge, or any officer having the power of a Supreme Court judge, at chambers, may entertain a motion upon notice to vacate a warrant of attachment granted by him. But see Ives v. Holden, 14 Hun, 402. The provisions of sec. 68? of the Code distinguish between court and judge, provide that the application to V icate must be made to the court, in which case the moving party becomes subject to the usual practice as to notice, and time and place of hearing, or to a judge, and in that event to the judge who granted the attachment whether he is in court or out of court, and subject to his direction, whether the application shall be heard ex- parte ox wpon notice; Rupert v. Havg, 87 N. Y. 141. PROCEEDINGS TO REMOVE LIEN. 193 Where a warrant of attachment is granted by a jndge out of court, a motion to vacate it, founded upon proof by affidavit, on the part of the defendant or subse- quent lienor, may be made to any judge of the court upon notice ; Code, § 683. 14. When warrant is granted by the court. It seems that when a warrant of attachment is granted by the court, a motion to vacate it must be made upon notice to the court. 15. Laches of moving party. Where persons who have acquired a lien junior to that of an attachment, make a motion to have such attachment set aside on the merits, the charge of laches is not available as an objec- tion to the motion, as long as the attached property or its proceeds remain unapplied to the payment of the judgment in the action in which the attachment was issued ; Woodmansee v. Rogers, 82 N. Y. 88 ; 20 Hun, 285. But where the purpose of the motion is to set aside the attachment for irregularity, the lapse of time with- out the aid of a legitimate excuse would be a reason for denying the motion on the ground of laches; Thal- Tieimer v. Hays, 15 N. Y. State Rep. 662 ; 14 Civ. Pro, Rep. 282 ; 28 Week. Dig. 468. An appeal from an order denying a motion to vacate an attachment may be taken after the attached property or the proceeds thereof have been applied under an execution to the payment of the judgment, provided the motion to vacate was made be- fore the property had been so applied. Market Nat. BTc. V. Pacific Nat. BTc., 80 Hun, 50. 16. Grounds for vacating. Attachments will be set aside because of collision and combination between the debtor and attaching creditors, where the former, a day 13 194 PKACTICE IN ATTACHMENT OF PEOPEETY. or two before they were sued out, notified the attaching creditors bj' letter of his embarrassed condition, and stated that if they wished to attach his property, it would be all right with him ; Moore v. Sirye, 13 Ky. L. Rep. 948 ; 18 S. W. 1019. A failure to serve the sum- mons within thirty days from time of issuing of warrant is fatal to the lien of the attachment ; Betzemann v. Brooks, 31 Hun, 271. So where in an action brought against a firm, some of the partners are personally served with the summons, but the others are not, nor proceedings to serve them commenced within the thirty days required by the statute, the attachment ceases to be a lien upon the firm property ; Donnell v. Williams, 21 Hun, 216 ; 59 How. Pr. 68. The same rule prevails in an action against joint-debtors ; Orvis v. GoldscTimidt, 2 Civ. Pro. Rep. 314. So an attachment will be vacated where the material statements in the afl[idavit on which it is founded, are upon information and belief ; Clajlin et al. V. Baere et al., 57 How. Pr. 78. The discharge of an attachment under sec. 687 of the Code does not pre- vent the vacating or modifying of the warrant under sec. 682. 17. Rule 25 of the Supreme Court. It has been held that rule 25 of the Supreme Court does not relate to an application for an attachment, being a process of the court, but applies only to orders made in an action pend- ing ; Davis v. Brooks, 4 Law Bull. 49 ; Pach v. Orr, 17 ]Sr. Y. State Rep. 367 ; 112 N. Y. 670. 18. Defendant must show preponderance of proof. A defendant who alleges the untruthfulness of plaint- iff's aflidavit for an attachment, must make out the charge by a fair preponderance of proof ; Hardie v. Col- vin, 43 La Ann. 851 ; Tatum v. Colvin, id. 855. But after PROCEEDINGS TO EEMOVE LIEN. 195 the defendant has negatived the cause assigned for suing out the writ, the burden is again shifted to the plaintiff to show cause why the attachment should not be discharged ; Godbe Pitts. Drug Go. v. Allen, 8 Utah 117 ; 29 Pac. 881. An attachment will not be dis- turbed when the affidavits showing that the goods were sold on an unexpired credit are met by the plaintiff with other affidavits charging and tending to prove fraud in the original sale ; Owalter v. New York Seal Plush & T. Co., 46 N. Y. State Rep. 137 ; 22 Civ. Pro. Rep. 214 ; 19 N. Y. Supp. 49. 196 PRACTICE IN ATTACHMENT OF PROPERTY. CHAPTER XI. VACATING ATTACHMENTS. I. — Motion to vacate or modify. 1. In general. 2. Two motions proper, when. 3. Motion when complaint does not set forth a cause of action mentioned in sections 635 or 637 of the Code. 4. Notice of motion. 6. Motion on plaintiff's original aflSdavits — other aflBdavits of plaintiff not admissible. 6. When attachment will be vacated. II. — Affidavits on motion to vacate. 7. In general. 8. Objections to reading additional affidavits by plaintiff must be taken when, 9. Waiver of objection to reading affidavit by plaintiff. 10. Waiver of defect in attachment papers. 11. Who bound by decision on motion. 12. Questions on motion to vacate. 13. Defects in moving papers — how treated. III. — Junior or subsequent attaching creditors and lienors. 14. Motion by, to vacate prior attachment. 15. Defenses to prior attachment. 16. Remedy of junior lienor. 17. Practice on motion. 18. Grounds of motion. rv. — What cannot be shown by plaintiff, as amendment of his original affidavits. 19. Amendment of plaintiff's original papers. V. — Appeals to Court of Appeals. 20. By junior attaching creditor or lienor. 21. Other cases. I. — Motion to vacate or modify. 1. In general. The defendant or a person who has acquired a lien upon or interest in his property, after it was attached, may, at anytime before the actual applica- tion of the attached property, or the proceeds thereof, VACATING ATTACHMENTS. 197 to the payment of a judgment recovered in the action, apply to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief together, or in the alternative; Code, § 682. 2. Two motions proper when. Section 683 of the Code provides that a motion to vacate an attachment may be, 1, founded only upon the papers upon which the warrant was granted ; 2, upon proof, by affidavit, on the part of the defendant, in which case it may be opposed by new proof, by affidavit, on the part of the plaintiff tending to sustain any ground for the attach- ment recited in the warrant and no other. Thus, under sec. 683, the motion to vacate may be founded upon the affidavit and proofs u.pon which the warrant was granted, and can be made to the court or to the judge, who granted the same, without notice ; or the motion can be made upon proof by affidavit on the part of the lienor, in which case it must be upon notice, and can be made to the court or to the judge who granted the warrant, and in that case, the motion may be opposed by new proof by affidavit on the part of the plaint- iff, tending to sustain any of the grounds upon which the attachment was granted, as recited in the warrant. One motion is summarj'^ in its character and is based upon the insufficiency of proofs, and no notice is required to be given of the application on the supposi- tion that the same was granted improvidently by the officer. The other is in the nature of a trial, where the parties produce proofs on each side of the question in dispute, and the opposing party is entitled to be heard upon notice, and the questions involved may be entirely 198 PEACTICE IN ATTACHMENT OF PKOPEBTT. distinct from those which can be investigated on the ex- parte application. Thus, under the provisions of sec. 683, an interested party may, as a matter of right, move to dismiss the attachment upon the merits founded upon affidavits disproving or explaining the case, made by the plaintiff, although a motion to vacate has been denied, founded upon plaintiff's affidavits used in procuring the attachment. These are essentially different proceed- ings ; Thalheimer v. Hays, 42 Hun, 93. 3. Motion when complaint does not set forth a cause of action mentioned in section 635 or 637 of the Code. It is provided by sec. 686 of the Code, that the denial of a motion to vacate an attachment under sec. 683 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 applica- tion to set forth any of the causes of action mentioned in sec. 635 and sec. 637 of such Code ; Flatow v. Yon Bremsen, 33 N. Y. State Rep. 26 ; 19 Civ. Pro. Eep. 121 ; 11 N. Y. Supp. 677. 4. Notice of motion. Where the defects objected to relate to the merits, and not to mere irregularities, it is not necessary to specify them in the notice of motion to vacate the attachment ; Waltz v. Nichols, 32 Hun, 276. 5. Motion on plaintiiPs original affidavits — other affi- davits of plaintiff not admissible. Sec. 683 of the Code gives to the moving party the option to make his appli- cation to vacate the attachment, either upon the papers alone upon which it was granted, or upon proofs upon his part, and confines the plaintiff in the one case to the original affidavits, and allows him in the other to sus- tain, by new proofs, his right to attachment upon any of the grounds stated in the warrant. This section allows VACATING ATTACHMENTS. 199 a judge to hear the motion, without notice, when it is made on the papers upon which the warrant was granted, in which case the plaintiff would have no opportunity to present fresh affidavits. An affidavit by the moving party simply showing the existence of his lien, does not make the motion one founded upon proof by affidavit within the meaning of this section, so as to entitle plaintiff to support the attachment by new affidavits ; the additional affidavit simply establishes a preliminary fact necessary to be shown to give the court Jurisdiction; Pachy. Orr, 112 ]!^. Y. 670; 15 Civ. Pro. Rep. 176 ; 17 N. Y. State Eep. 367 ; Steuben County Bank v. ATberger, 75 N. Y. 179 ; Head v. Wollner, 53 Han, 616 ; 25 N. Y. State Rep. 645 ; 6 N. Y. Supp. 916. But where a motion is based in part upon "proofs by affidavits" attacking allegations in plaintiff's origi- nal affidavits, it is sufficient to let in new proofs on the part of plaintiff, although the allegations are not of material importance ; the right of plaintiff to new proof does not depend upon the directness or force of the lienor's proof ; Godfrey v. Godfrey et al., 75 N. Y. 434 ; Ives V. Holden, 14 Hun, 402 ; Buell v. Van Camp, 119 N. Y. 160. 6. When attachment will he vacated. Where in an affidavit for attachment the facts relied upon are stated on information and belief, and the sources of the infor- mation are not given, the attachment will be vacated ; Appleton V. Speer, 57 Supr. Ct. 119 ; 25 N. N. State Rep. 816 ; 6 N". Y. Supp. 511 ; Pride v. Indianapolis D. & W. R. Co., 21 N. Y. State Rep. 261 ; BuM v. Ball, 41 Hun, 61 ; and upon a motion to vacate, the question is not one of jurisdiction of the officer who granted it, but upon the facts presented the court is to determine 200 PRACTICE IN ATTAOHMKNT OF PROPERTY. whether tl)e attachment ought to issue, and this is so when the motion is founded upon the alleged insuffi- ciency of the affidavits upon which the attachment was granted ; and a decision upon such a motion by the special term is reviewable upon tlie merits at general term ; Brewster v. Van Camp, 28 N. Y. State Rep. 591 ; 8 N. Y. Supp. 588 ; Allen v. Meyer, 73 N. Y. 1. II. — AfBdavits on motion to vacate. 7. In general. While it is within the discretion of the Supreme Court to determine the sufficiency of the affidavit to vacate the attachment or to grant the attach- ment originally, the general rule is that a motion to vacate an attachment will be denied where the affidavit to show grounds therefor is made on information and belief ; National Broadway BTi. v Barker, 21 Civ. Pro. Rep. 120 ; 38 N. Y. State Rep. 597 ; 14 :^r. Y. Supp. 529; Neal V. Sachs, 15 Week. Dig. 476 ; and upon a motion upon affidavits to vacate, defendant can only present facts in denial of the grounds upon which it was issued except when he relies upon a discharge in bankruptcy or exoneration granted in insolvency proceedings, or that the attachment has ceased to be a lien for the want of some necessarj'^ act on the part of tlie plaintiff, as where he has failed to cause the summons in the action to be served as required by statute, or where the plaint- iff had no right to an attachment, as in a case against a national bank; Lawson v. Lawson, 12 Civ. Pro. Rep. 437. 8. Objections to readuig additional affidavits by plaint- iff must be taken when. Upon a motion to vacate an attachment, if the plaintiff offers to read incompetent affidavits, the moving party must object to the same, and VACATING ATTACHMENTS. 201 have his objection made a jjart of the order made upon the motion. If no objection is made, the moving party will be regarded as having consented that the afladavits be received and fully considered by the court; Kihbe v. Wetmore, 31 Hun, 424 ; 1 Rumsey's Prac. 554; Pac7i v. On; 112 N. Y. 670; 17 N. Y. State Rep. 367; 15 Civ. Pro. Rep. 176. Thus, where an order granting an appli- oation under the Code by a lienor, to vacate or modify an attachment, recites the reading of certain affidavits specified, including new affidavits on the part of the plaintiff, without noticing any objections thereto, the only question for the general term upon appeal is whether, upon all the papers before the special term, its order was justified, and upon appeal to the Court of Appeals, the lienor cannot raise the question that plaint- iff should have been confined to his original affidavits, and that affidavits supplying defects were improperly admitted on the hearing of the motion ; Godfrey v God- frey et al., 75 N. Y. 434. 9. Waiver of objections to reading affidavit by plaintiff. Where a motion is made to set aside an at- tachment on the original papers, and the plaintiff offers additional affidavits in support of his original papers, or where a motion is made to vacate an attachment upon affidavits, and the plaintiff offers affidavits as to matters not tending to sustain any ground for the attachment recited in the warrant, the moving party waives any ob- jections thereto, unless he objects to the reading of the affidavits on the hearing of the motion, and it is too late to raise it for the first time on appeal ; Pach v. Orr, 112 N. Y. 670 ; 17 N. Y. State Rep. 367 ; Godfrey v. Godfrey et al., 75 N. Y. 434. 10. Waiver of defect in attachment papers. Consent 202 PRACTICE IN ATTACHMENT OF PROPERTY. of jjarties cannot confer jurisdiction in attachment pro- ceedings, and appearing and pleading does not make a void process valid ; Sedalia Third Nat. BJc. v. Oarton, 40 Mo. App. 113. But where there is an appearance and trial on the merits, an attachment will not be held to be void from the fact that the affidavit did not set out the defendant's non-residence; ^oZZmp'er V. GallagTier^ 144 Pa. 20.5. 11. Who hound hy decision on motion. In Jay v. De Groot, 2 Hun, 205, it was held that where the court allows any person to appear and be heard upon the argument of a motion, in the decision of which he is interested, such hearing is as effectual as though such person had received notice of the motion and had been named as a formal party to it, and he is fully concluded by the disposition which the court may make of such motion. In Schrantli v. Tlie Dry Dock Savings BanTc, 8 Daly, 109, it was held that any person who is allowed by the court to appear and to be heard on the argument of a motion, is as fully concluded by the disposition which the court makes of such motion as if he had been named a personal party to it and received notice of the motion; The National Park BanJi v. Witmore, 7N. Y. State Rep. 466. 12. Questions on motion to vacate. At general term, upon a motion to vacate an attachment under the Code, the question is not one of jurisdiction of the officer who granted it, but upon the facts presented, the court is to determine whether the attachment ought to issue, and this is so when the motion is founded upon the alleged insufficiency of the affidavits upon which the order for the attachment was made, and a decision upon such a motion by the General Term is reviewable upon the VACATING ATTACHMENTS. 203 merits in the Court of Appeals ; Allen v. Meyer, 73 N. Y. 1. In the Court of Appeals the rule is that if the affidavit shows any fact, however slight, which tends to show the existence of the statutory conditions, the judge granting the attachment acquires jurisdiction, and it will not interfere, but aiSrm the order ; Steuhen County Bk. v. Alberger, 78 N. Y. 252. The rule laid down in 1 Rumsey's Practice, 556, is limited to the question in the Court of Appeals ; Brewster v. Van Camp, 28 N. Y. State Rep. 591 ; 8 N. Y. Supp. 588. 13. Defects in moving papers — how treated. Where the papers of one moving under sec. 682, Code of Civil Procedure, to vacate an attachment, are as defective as those upon which the original attachment was granted, the motion must be denied. Thus, where upon an appli- cation by a junior attaching creditor to vacate a prior attachment, he fails to state tlie contents of his notice of attachment, and there is nothing to show that it complied with sec. 649 of the Code, there is no proof that the attachment of the moving creditor has ever been duly levied, and that as the motion depends upon a matter of strict right, it must be denied ; Hodgonan V. Barker, 128 N. Y. 601 ; 60 Hun, 156. III. — Junior or subsequent attaching creditors and lienors. 14. Motion by, to vacate prior attachment. A junior attaching creditor is bound, when he moves to vacate a prior attachment, to show that his warrant was granted upon papers sufficient to confer jurisdiction ; in other words, both parties should, on the motion to vacate, occupy the same position in regard to the papers upon which their warrants were respectfully granted, and the attacking party must disclose his own position as well 204 PRACTICE IN ATTACHMEKT OF PROPERTY. as that of his adversary ; Tim v. SmitTt, 93 N. Y. 87. That is to say, a junior attaching creditor, who seeks to destroy the lien of a prior attachment, because of juris- dictional defects, must come into court upon papers showing that every step in his procedure was sufficient to confer jurisdiction. He must, therefore, present the papers upon wliich his attachment was granted and prove that such attachment was actually levied upon the property covered by the prior attachment. It is only when these facts are made to appear that h.e shows himself to be "a person who has acquired a lien upon or interest in the defendant's property," within the meaning of sec. 682 of the Code of Civil Procedure. What is there meant is, of course, a valid lien, /. e., a lien resulting from the existence of all the necessary jurisdictional facts. Upon both principle and authority it is reasonable to require the moving party to present such jurisdictional facts as a prerequisite to his attack upon the prior attachment. The plaintiff in a prior attachment should not be called upon to look up the papers upon which the junior attachment was granted, and to present them in opposi- tion to a motion to vacate, for the reason that he makes no affirmative attack upon such junior attachment; Dayton v. The McElwee Mfg. Co., 46 N. Y. State Eep. 139; 22 Civ. Pro. Rep. 227; 19 N. Y. Supp. 46. Whether such subsequent lienor has such a lien is a question which the prior attaching creditor may dis- pute, and if the facts be decided against the moving party, his motion must fail ; Bruen v. Oillett, 44 Hun, 298 ; Knudson v. Matuska, &c., F. Co., 7 Civ. Pro. Rep. 86. VACATING ATTACHMENTS. 20& In short, junior attaching creditors, to question the validity of a prior attachment, must tirst show that they have procui'ed a levy under such circumstances as to give them a right to the property; 8charff\. Chaffe, 68 Miss. 641. 15. Defenses to prior attachment. As a general rule, a junior attaching creditor or a subsequent lienor cannot urge defenses personal to the defendant, such as irregu- larity of the affidavit, the insufficiency of the attach- ment bond, or other irregularities in the proceedings, but is limited to the assertion of his own right ; Sloss Commission Co. v. Bond (La. Am.), 11 So. 220. And it seems that a junior attaching creditor cannot controvert the existence of the grounds for attachment alleged by a senior attachment creditor ; the right to do so is given to the attachment debtor alone ; Madison F. Nat. Bk. V. Greenwood, 79 Wis. 269 ; 45 N. W. 810. But a junior attaching creditor has a right to attack the former attachment by showing that it is fraudulent ; Bateman v. Ramsay, 74 Tex. 689. He may also inter- vene for the purpose of testing the validity of the debt upon which the first attachment is founded. An attach- ment is fraudulent when purposely sued out for a greater sum than was justly due, although defendant was indebted to plaintiff therein, and being fraudulent in part, is fraudulent as a whole ; Frieherg v. Frieberg (Tex.), 19 S. W. 791. That the grounds stated in the affidavit for an attach- ment were false, is not a sufficient ground for setting it aside as against subseqiient attaching creditors, if the plaintiff in the prior attachment believed, and had prob- able ground to believe, the grounds stated in the affidavit to be true ; Ott and L. Shoe Co. v. Harris, 82 Tex. 273. 206 PKACTIOE IN ATTACHMENT OF PEOPEKTY. 16, Remedy of junior lienors against claims by senior lienors. While upon a motion by a junior lienor, to va- cate an attachment, the court will not try the cause itself and determine the merits thereof, the rights of such j iinior lienors can be protected by being made a defend- ant, and contest the validity of the plaintiff's claim in the ordinary manner, by answer and trial ; Lee v. Pfeffer, 25 Hun, 98 ; Johnson v. Hardwood Door & Ih-im. Co., 79 id. 407. 17. Practice on motion. The rule prohibiting split- ting up a single demand and bringing separate actions at law, has no application to proceedings to vacate an attachment. So, also, the doctrine that a motion once denied cannot be renewed as a matter of right, and with- out leave of the court, except upon facts arising subse- quent to the decision, does not apply to a case where the party proceeds in the second motion upon a distinct property interest and right from that involved in the first motion ; Steuben Co. Bk. v. Alberger, 83 N. Y. 274. So a mere levy under an execution upon property which has been attached is not such an ' ' actual application of the attached property or the proceeds thereof to the pay- ment of a judgment recovered in the action within the meaning of section 682 of the Code, as will bar a subse- quent lienor of the right to move to vacate the attach- ment. The section means an actual and real application as distinguished from a constructive one ; Woodmansee V. Rodger s Weil et al., 82 N. Y. 88. The right of third persons to move is not confined to persons who have acquired liens or interests, by proceedings in invitum, against the defendant in the attachment. An assignee of the property or any part thereof, from the defendant, may make the motion; such assignee or transferee VACATING ATTACHMENTS. 207 stands in the place of the defendant in respect to the right to question the validity of the attachment. The motion may be made by one who has acquired a lien or interest in part only of the attached property. But the relief in such case will be limited to vacating the attach- ment as to such part ; Trow' s Printing, &c. Co. v. Bart, 85 id. 500. 18. Grounds of motion. In Steuben Go. BanTcY. Alber- ger, 78 N". Y. 256, the motion was made by a subse- quent execution creditor of the defendant, and the grounds stated in the notice of motion was that the at- tachment was issued without proof of any fact or circum- stance tending to establish any ground or reason there- for. The grounds upon which the warrant was issued were that the attachment debtor was ' ' about to assign, dispose of, or secrete his property with intent to de- fraud his creditors." All of the material facts were stated on information and belief only, and the court say: " They show no essential facts, and consequently none from which an inference can be drawn. If it were otherwise, if it was conceded that the matters now stated on information would be sufficient if properly verified, it would not aid the plaintiff, for they are given on in- formation only, and are unavailing because it is not shown that the persons from whom the affiants profess to have obtained the information, are absent or that their depositions cannot be procured;" Tates v. North, 44 N. Y. 271. IV. What cannot be shown by plaintiff as amendment of his original a£Sdavits. An original defect in the affidavits of plaintiff, upon 208 PEAOTIOE IN ATTACHMENT OF PROPERTY. which the attachment was issued, cannot be remedied by proving by other affidavits produced upon a motion to vacate, that the facts refered to really existed ; Apple- ton V. Speer, 57 Supr. Ct. 119 ; 24 N. Y. State Rep. 962 ; 6 N. Y. Supp. 511 ; and this cannot be done by a direc- tion to file the subsequent affidavits nunc pro tunc, as of the date of filing the original affidavit. It is impossible, even in these days of extraordinary triumphs in ingenuity and skill, to say with truth that a paper not in existence at the time an attachment was granted, formed a part of the proofs, and satisfied the judicial mind that it should issue ; SutJierland v. Bradner, 34 Hun, 519. In Fisher v. Dougherty, 42 id. 169, an order was made by the special term, that on the plaintiff paying to the defendant ten dollars, the plaintiff have leave to amend his proceedings by filing the affidavits of George A. Fisher and William Douglass, nunc pro tunc, as of the 25th day of March, 1885, and that the order and other proceedings be amended so as to conform thereto. The ten dollars was immediately paid to defendant's attorney and accepted by him. In that case the court say : "Section 724 of the Code confers upon the court power in its discretion to allow an amendment of proceedings had, and allow such amendments nunc pro tunc, although such order is not operative as against persons who are not parties to the action. Defendant, having accepted the money paid to comply with the terms of the order, and in the discretion of the court deemed proper, ought not to be heard to complain of the course the discretion of the court took ;" Eagan v. Moore, 2 Civ. Pro. Rep. 300 ; Gribbon v. Meet, 93 N. Y. 93. In Kibbe v. Weimore, 31 Hun, 424, VACATING ATTACHMENTS. 209 Oil motion by defendant to vacate the attacUmeut on the plaintiff's original papers, the plaintiff read opposing affi- davits tending to show, among other things, thai at the time ot issuing the warrant and previously thereto, the defendant had disposed of his property with intent to defraud his creditors, and had kept himself concealed with like intent, and with intent to avoid service of process. Thereupon, upon motion of the plaintiff, the court made an order allowing the attachment to be amended by inserting therein the latter grounds above stated on payment of defendant's costs. In that case the court say: "The power of amendment is given by section 723, which is broad enough to cover the case." 19. Amendment of plaintiff's original papers. In Kih- iey.Wetmore, 31 Hun, 424, the warrant of attachment was issued upon the ground that the defendant was a non-resident of the State, and that ground only was stated in the attachment. The defendant moved at special term to vacate the attachment on afhdavits tend- ing to show that he was a resident of the State. The plaintiff read opposing afhdavits tending to show, among other things, that at the time of issuing the said war- rant and previously thereto, the defendant had disposed of his property with intent to defraud his creditors and had kept himself concealed with like intent, and with intent to avoid service of process. Thereupon, on motion of planintiff, the court made an order allowing the attachment to be amended by insert- ing therein the latter grounds above stated, on payment of defendant's costs, and denying the motion to vacate, without prejudice to a renewal thereof. In that case, the court say: " Section 683 of the Code of Civil Procedure provides that a motion to vacate an attachment founded 14 210 PRACTICE IN ATTACHMENT OP PKOPEKTY. upon proof, by affidavit upon the part of the defendant, may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground for the attacliment recited in the warrant and no other, unless, &c. The contention of the appellant is that the section referred to deprives the court of power to allow the amendment. The power of amendment is given by sec- tion 723, which is broad enough to cover the case. Section 683 does not relate to the power of amendment, but its provisions relate to the x>ractice to be pursued upon a motion to vacate an attachment. It was doubt- less competent for the defendant to object to the reading of so much of the plaintiff's affidavits in opposition to his motion as tended to establish grounds other than those specified in the attachment. But the appeal book does not show that any such objection was made, and therefore the defendant is to be regarded as having consented that the affidavit in ques- tion be received and fully considered by the court. The defendant cannot now be heard to object for the first time that the affidavits were improperly received, and that the order allowing the amendment should therefore be reversed. There can be no doubt that the court, or the judge holding it, had power to grant a fresh attach- ment on the affidavits ex-parte. As between the parties, that was the only effect of the amendment. There being no intervening lienors, so far as the case shows, the granting of the amendment was in furtherance of jus- tice." V. — Appeal to Court of Appeals. 20, By junior attaching creditor or lienor. The gen- eral rule that no appeal lies to the Court of Appeals from VACATING ATTACHMENTS. 211 an order to the general term vacating an attachment, not- withstanding there was jurisdiction to grant the writ upon the .papers presented upon tiie application therefor, does not apply where the attachment is vacated in the motion of a subsequent attaching creditor or lienor. The general rule proceeds upon the ground that a plaintiff in an action has no absolute legal right to the issuance of an attachment against the property of a defendant. The court or officer to whom an application for an attachment is made, maj?^ deny the application, although a formal case may be made, either because the facts are stated with too tnuch generality or the case made is not in the opinion of the court or judge suffi- ciently plain to justify this extraordinary remedy. Where an attachment is granted, the defendant may appeal to the general term, and upon such appeal the general term may review the discretion exercised in granting the attachment, as well as the question of jurisdiction. If the general term vacates the attach- ment on the appeal of the defendant in the action, it will be deemed to have acted in the exercise of its dis- cretion, unless its decision is placed solely on the ques- tion of power, and there the matter ends and no further review can be had. But where the proceeding to vacate an attachment is taken by a subsequent lienor, and not by the defendant in the action, and the appeal to the general term is taken by him, the question before the general term is one of strict legal right, and no question of discretion is presented. The sole point then to be determined is as to priority in point of law of the liens of the respective parties. It is then purely a question whether there was Jurisdiction to grant the attachment on the papers presented; Harhler v. BeriihartTi, 115 N. Y. 459. 212 PRACTICE IN ATTACHMENT OP PEOPBRTT. 21. Other cases. An order refusing or vacating an order granting an attachment is not appealable to the court of appeals in any case, unless the order shows that it was refused or vacated for want of power, and an order granting an attachment is not appealable unless it presents a question of law or absolute legal right. If the order is granted in a case not authorized, or if there is an entire absence of facts proved justifying it, the case would present a question of law, and the order would be appealable. It is only when no construction which might be given to the facts would justify the order that it can be said to be against law ; Allen v. Meyer, 73 N. Y. 1. KESTORING PEOPEKTY, ETC. 213 CHAPTER XII. JUDGMENT, EXECUTION, RESTORING PROPERTY, ETC, I.— Judgment in action, how satisfied. 1. Slieriflf entitled to execution. 2. Return as to property taken. II. — When judgment must be enforced against attached property. 3. In general. 4. Absconding or concealed debtor. 5. Difference between a nou-resident and an absconding debtor. 6. Purchaser under execution. III. — Disposition of attached property by sheriflT. 7. Satisfaction of judgment. 8. Priority of execution and attachment against non- resident. 9. Sale of attached personal property. 10. Sale of personal property not attached, and yeal estate attached. 11. Retaking personal property attached. 12. Sale of debts, things in action, &c. IV. — Restoring property to defendant. 13. In general. 14. Undertakings and other papers to be delivered to defendant. 15. Defendant substituted for sheriff, &c. v.— Costs, charges and expenses legally chargeable to the defendant. 16. When attachment is vacated. VI.— Real property — canceling notice, attaching. VII.— Return of sheriff. I. — Judgment in action, bow satisfied. I. Sheriff entitled to execution. 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 expira- tion of the term of office of the sheriff who made the 214 PRACTICE IN ATTACHMENT OF PROPERTY. 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 ; Code, § 706. Notwithstandig the election or appointment of a new sheriff, the former sheriff must return in his Own name each mandate which he has fully executed ; and must proceed with and complete the execution of each man- date which he has begun to execute in the manner pre- scribed by subdivision 4 of section 184 of the Code; Code, § 189. If a sheriff having an attachment dies, his under-sheriff must complete the execution thereof ; Code, § 186. Thus when a sheriff who, at the expiration of his term of office, has in his hands process not fully executed, dies before the complete execution thereof, his late under-sheriff becomes substituted in his place, assumes all his duties and liabilities in respect to such process, and for money collected by him, by virtue thereof, is personally liable. For the purpose of per- forming the unfinished business he has all the power of a full sheriff. He may levy on property, and sell on execution. He may, if resisted, call on ''the power of the county to" aid him. He is liable for his mistakes ; punishable for extortion or misfeasance in office as a sheriff is. He is quasi sher- iff, and whenever a "vacancy occurs in the office" of the former, or now quasi sheriff, his former under-sher- iff shall execute his duties, and carry on the unfinished business to completion. It will be observed that the coroner, under-sheriff, and " person specially author- ized" are grouped together ; whatever position the cor- oner holds is also maintained by the under-sheriff; Newman v. BeckwWi, 61 N. Y. 212. EESTOllING PROPERTY, ETC. 215 A judgment of foreclosure directing the sale of mortgaged premises by tlie sheriff is a "mandate" in his hands within the meaning of the provisions of the Code of Civil Procedure prescribing the duties of the outgoing sheriff, and an advertisement of the premises for sale is a "seizure" within said provisions; Union Dime Sav. Inst. v. Anderson, 83 N. Y. 174. 2. Return as to property taken. When an officer makes a return to a process placed in his hands, and files the same in the proper clerk's office, it becomes a record of the mode and manner in which such process was executed by the officer, and so long as it remains of record it is conclusive upon the officer as to his own acts under and by virtue of the process. The sheriff can always defend his return nuUa-bona to an execution placed in his hands by proving the fact that the defend- ant in the execution has no property out of which the same can be made ; Loomis v. Kasson, 43 Barb. 373 ; Dolson V. Saxton, 11 Hun, 565 ; Cromtcell v. Gallup, 17 id. 61. If a sheriff levies upon property as that of the defend- ant and then makes a I'eturn nulla-iona, in an action by the plaintiff for making a false return, the burden of proof is upon him to establish as a matter of fact that the property levied upon did not belong to the defend- ant, and thus maintain the truth of his return; Third Nat. Bk. of Buffalo v. Mlioit, 42 Hun, 121 ; 114 N. Y. 622. II. — When judgment must be enforced against attached property. 3. In general. Where a defendant, who has not appeared, is a non-resident of the State, or a foreign cor- 216 PRACTICE IN ATTACHMENT OF PKOPEETY. poration, and the summons was served without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed by sections 438-444 of the Code, 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 ; Code, § 707. But this section does not declare the effect of such a judgment, with respect to the application of any statute of limitation. The execution is limited in the same way. Thus it is provided by section 1370 of the Code that "where a warrant of attachment, issued in the action, has been levied by the sheriff, the execution must substantially require the sheriff to satisfy the judgment, as follows : 1. Where the judgment debtor is a non-resident or a foreign corporation, and the summons was served upon him or it, without the State, or otherwise than person- ally, pursuant to an order obtained for that purpose, and the judgment debtor has not appeared in the action, out of the personal property attached, and, if that is insufficient, out of the real property attached. 2. In any other case out of the personal property attached, and if that is insufficient, out of the other per- sonal property of the judgment debtor ; if both are insufficient, out of the real property attached ; and if that is insufficient, out of the real property belonging to him at the time when the judgment was docketed, or at any time thereafter. An execution that does not conform to the requirements of the above section is void ; Place v. Riley, 98 N. Y. 5. i. Absconding or concealed debtor. The evident inten- tion of the second subdivision of section 1370 of the Code was to prevent resort to the real estate of an absconding eestorinct property, etc. 217 or concealed debtor, for the satisfaction of a judgment obtained in an action in which an attachment had been issued and levied upon his real estate, until after the remedy against his personal property, both attached and unattached, had been exhausted. The law provides the form of the execution, and it would be extremely dan- gerous to make the validity of an execution which omits a material provision, designed for the benefit of the defendant, to depend on an inquiry whether an actual injury resulted from the omission ; Place v. Eiley. 98 N. Y. 1. 5. Difference between a non-resident and an abscond- ing debtor. Whether or not a judgment is in rem or in personam depends entirely upon the fact of defendant's residence or non-residence at the time of the service of the summons, and not upon the manner of the service ; Hunt V. Hunt 72 N. Y. 237; Gibbs v. Queens Ins. Co., 63 id. 124 ; McKinney v. Collins, 88 id. 216. 6. Purchaser under execution. It seems that wliere the attachment, judgment and execution are regular, a bona fide purchaser on sale acquires a good title, although after a conveyance to him the defendant is allowed to come in and defend, as authorized by the Code, § 446, and succeeds in his defense. Under a void process, however, no title can be acquired, and a bona fide purchaser as against the owner of the property stands in no better position than one purchasing with full knowledge of the invalidity; Wood v. Colvin, 2 Hill, 566. A judgment under sections 1216 and 1217 of the Code of Civil Procedure cannot be taken, except as therein provided ; Stow v. Stacy, 14 Civ. Pro. Rep. 45 ; Smith V. Fogarty, 6 id. 366 ; Plympton v. Bigelow, 2 Abb. N. C. 180 ; McKinney v. Collins, 88 N. Y. 216. 218 PRACTICE IN ATTACHMENT OF PROPERTY. III.— Disposition of attached property by sheriff. 7. Satisfaction of judgment. It is provided by section 708 of the Code, that where an execution against prop- erty 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 perishable prop- erty, 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 tliereof as is necessary to satisfy the judgment. 8. Priority of execution and attachment against non- resident. Van Camp v. Searle, as sheriff, 79 Hun, 134, was an action to dermine the rights of attaching creditors to the proceeds of the property of an absconding debtor. The plaintiffs in the action attempted to attack the pay- ment of the executions of the defendants Blood, on the ground that their warrants of attachment had not the sup- port of affidavits sufficient to justify their issue, and that the order for service of the summons by publication was not predicated upon proof necessary to give the judge jurisdiction to grant it. In regard to the affidavits in the Blood cases, the court say: "The affidavits to obtain these attachments were alike in their provisions, and while they stated that Van Camp had departed from this State with intent to defraud his creditors, and to avoid the service of a summons upon him, they failed to state any facts tending to support such charges, and were therefore insufficient to protect the attachments against a motion to vacate them. But no such motion was made, and as the money has been paid upon their judgments and executions, in discharge of the lien, the KESTORING PROPERTY, ETC. 21& question of the insufficiency of the affidavits is not, as against those parties, available to the appellants. As the summons, in each of those actions, were served by publication, the sufficiency of the affidavits was essential to bring the actions within the jurisdiction of the court; and if they did not come up to the statutory requirement in support of the order of publication, the judgments were void, and the plaintiifs in them acquired no rights under or through mesne or final process in their actions;" Foster v. Langiein, 103 N. Y. 84; Woodmansee v. Eager s, 82 N. Y. 88. The first executions in the Blood cases were general executions pi'ovided for by sec. 1369 of the Code, and the sheriff paid them. The Bloods aftei'wards refunded the amounts so paid to them to the sheriff, and issued special executions to the sheriff under sec. 1370. These the sheriff paid. On this latter point the court said : " The former were irregular, and the latter were regular ujjon their face, for the purpose of collection or payment from the proceeds of the attached property. The error was cured by refunding of the money, and the issue of the executions in proper form, and the satisfaction of them, although, by expiration of the term of office, the defendant Searle had ceased to be sheriff at the time the second executions were issued to him." In the attachment of the defendant Bidelman it was recited that it appears by the affidavit " that the said defendant has absconded from the county of Orleans, the place of his residence, with intent to defraud his creditors." In regard to that recital the court say: "The recital in the Bidelman attachment is not a statu- tory ground for the issue of such process. In the affi- davit upon which it was issued, the ground stated for 220 PRACTICE IW ATTACHMENT OF PROPERTY. the applica,tion is that Van Camp had departed this State, where he resided, with the intent to defraud his creditors ; and some facts and circumstances are there mentioned intended to support that allegation, and, although somewhat slender, thej^ are such as to justify that conclusion, and give support to the attachment. For that reason the incomplete recital in the process is not fatal to its validity." The execution issued upon the judgment recovered by the defendant Bruner was issued in the form prescribed by sec. 1369 of the Code. The court held that it was irregular and void, as the provisions of sec. 1370 are im- peratively applicable to an execution issued upon a judgment recovered in an action in which an attachment is issued and levied, and the summons not personally served;" Place v. Riley, Q8 N. Y. 1. The sheriff, therefore, was not justified in making payment upon that execution. The execution of the attaching credi- tors Keeler and Salisburv and Kelsey were on the day of and prior to the sale withdrawn from the sheriff, and immediately after the sale, executions upon their judg ments were placed in his hands. As to those executions the court say : "Their attachment liens were prior to those of the other attaching creditors, and although the real estate of the judgment debtor was sold upon the executions issued upon the judgments of subsequent attaching creditors, the sale was such as to vest title, when perfected, in the purchaser, free from the liens of the prior attaching creditors, and it would seem that tlie proceeds of the sale, for the purpose of the liens of 'the attachments, became the substitute for the property upon which they were levied, else there would be no remedy for those attaching creditors whose executions RESTORING PROPERTY, ETC. 221 were not in the sheriff's hands tit the time of the sale, other than that of redemption. This would practically deny to them any benefit of the lien of their attach- ments. The purpose of the levy of an attachment upon real property is to create a lien as of that time, and such is the effect of it ; so that, when a jadgmetit is recovered in the action, it, for the purpose of the execution of such lien, has relation to the time the attachment was levied, and, when the property is sold by the sheriff upon an execution issued on a judgment which is a prior lien to that of the attachment, the lien of the latter is available, in its relative order, upon the proceeds of the sale, for the purpose of satisfying the judgment of the attaching creditor, or so much of it as the fund applicable to its payment will satisfy '■ * * *. And therefore the creditors whose executions were withdrawn * * * * were not, by the witlidrawal of them, prejudiced in their rights to take payment from the funds in the order of the lien of their attachments." 9. Sale of attached personal property. If any balance remains due, after the application of the money in the Sheriff's hands, 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 attached, if any, by a government, State, county, public ofiicer, or municipal or other corporation, which is in terms negotiable, or payable to the bearer or holder, the principal whereof is not then payable, but not includ- ing any other debt or thing in action. 222 PRACTICE Ilf ATTACHMENT OF PKOPEETT. 10. Sale of personal property not attached, and real estate attached. If the proceeds of the attached personal property are insufficient to satisfy the judgment, and the execution requires the Sheriff to satisfy it out of any other personal 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 insufficient 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 thereafter, before resorting to any other real property. 11. Retaking personal property attached. 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, and the attachment has not been discharged as to that property, 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 person who wilfully conceals or withholds such jjroperty from him, and the Sheriff is unable to gain possession thereof, is liable to double damages at the suit of the party aggrieved ; Scott V. Morgan, 94 N. Y. 508. 12. Sale of debts, things in action, &c. At any time after levying the attachment, the court, upon the peti- tion 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. EESTOEIKG PKOPEKTT, ETC. 223 showing that he has used dilligence in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected, may direct 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 on the defendant, and he did not appear, the court must make such order as to the service of notice as it thinks proper, or may grant the application without notice ; Code, § 708. IV. — Restoring property to defendant. 13. In general. Section 709 of the Code provides that where a warrant of attachment is vacated or annulled, or an attachment is discharged, upon the application of the defendant, the sherifE must, except in a case where it is otherwise specially prescribed by law, deliver over to the defendant, or to the person entitled thereto, upon reason- able demand, and upon payment of all costs, charges and expenses, legally chargeable by the sheriff, all the attached personal property remaining in his hands, or that portion thereof as to which the attachment is dis- charged, or the proceeds thereof, if it has been sold by him. 14. Undertakings and other papers to be delivered to the defendant. The sheriff must also deliver to the defendant, unless otherwise specially directed by the court or judge, all books of account, vouchers, evidences of.debt, muniments 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 proceedings, and which 224 PBACTIOE JN ATTACHMENT OF PROPERTY. 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 acknowl- edged, 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 ; Code, § 710. 15. Defendant substituted for sheriif, &c. Upon the application of the defendant he must be substituted in place of the sheriff, or the sheriff and the plaintiff jointly, in an action brought as prescribed by the Code ; but the court or judge may impose, as a condition of granting the order of substitution, such terms as justice requires, with respect to indemnity and payment of expenses. The defendant's rights, with respect to property attached and not disposed of, and an undertaking 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 especially defined or regulated by law ; Code, § 710. V. — Costs, charges and expenses, legally chargeable to the defendant ■where attachment is vacated. Section 709 of the Code provides that, upon the vacat- ing of the attachment, the defendant is entitled to his property upon the payment to the sheriff of all costs, charges and expenses legally chargeable b}" tlie sheriff. What costs, charges and expenses are legally charge- able to the defendant in such a case has never been settled by the Court of Appeals, although in Bowe v. Wllklns et al., 105 N. Y. 330, the court say: "Assume that the sheriff would be entitled to all these privileges, BESTORING PROPERTY, ETC. 225 even including his costs (which he as to the latter prob- ably would not be in case of the writ being vacated). And see Brand v. Vandenburg et al., 70 Hun, 388. An attachment is as to the defendant in the action an adverse proceeding, and the defendant enters into no obligation or duty to pay the plaintiff's costs, charges or expenses. Without the defendant's consent his property is taken under the attachment and placed in the possession of the sheriff, and to permit the sheriff to hold it after the attachment is vacated, until his costs, charges and expenses have been paid, and sell it for their payment, would be to allow him to hold and dispose of the property of one party to pay the debt exclusively of another. This has not been considered to be within the authority of the legislature. This was generally considered in New TorTc & Ostoego R. R. Co. v. Van Horn, 57 N. Y. 473, where it was held that the legislature never can take the prop- erty of one individual, without his consent, and give it to another. That is precisely, where an attachment has been vacated, what section 709 of the Code has pro- vided may be done with the property of the defendant, when it has been seized under an attachment, if that section means that the defendant must pay all the sheriff' s fees in the case before he can obtain his prop- erty. It seems that the words "legally chargeable by the sheriff" means only such costs, &c., as are in such cases legally chargeable against the defendant. It is no answer to the protection which the provisions of the constitution were designed to afford, that the person whose property may be taken from him, and held by the sheriff, until he shall pay his costs, charges and expenses, may reimburse himself for the amounts paid by a suit 15 226 PRACTICE IN ATTACHMENT OF PEOPERTY. upon the undertaking. For that will ordinarily afford him no equivalent for the loss and destruction of his business after it has been brought about in this manner ; Bowe V. United States Reflector Co., 36 Hun, 407. VI. — Real property — canceling notice> attaching. 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, upon the application of any party aggrieved, and upon such notice as it deems just, direct that any notice, filled for the purpose of attaching the property, be canceled of record by the clerk of the county where it is filed and recorded. The cancelation must be made by a note to that effect, on the margin of the record, referring to the order ; Code, § 711. VII. — Return of eheriff. Where a warrant of attachment has been vacated or annulled, the sheriff must forthwith file, in the clerk's office, the warrant, with a return of his proceedings thereon ; Code, § 712. An attachment is not merged in, discharged, super- seded or in any way affected by the judgment. The court may require a sheriff who has wrongfully returned an attachment to the county clerk's office, as "merged in the judgment and execution," to take the same from the files of the county clerk, together ]with the execution, cancel the returns on them, and proceed thereon accord- ing to law. A sheriff is not required to return an attach- ment, excepting only whore it has been vacated or annulled, as provided by section 712 of the Code ; TucTc V. Manning, 63 Hun, 346 ; 44 N. Y. State Rep. 391 ; 17 N. Y. Supp. 915. PROCEEDINGS IN NEW YORK MARINE COTTRT. 227 CHAPTER XIII. PROCEEDINGS IN NEW YORK MARINE COURT. I.— New York City Court. 1. In general. 2. Summons — contents and service. 3. Service of summons without tlie city or by publication. 4. Amendment of summons, when allowed. II'— Proof necessary to obtain warrant of attachment. 5. In general. 6. Having an office for the transaction of business in person. 7. Adult proof of necessary. 8. Domestic corporation residents. 9. Undertaking necessary. 10. Time for service of pleadings limited. I.— New York City Court. 1. In general. By chapter 26 of the laws of 1883, it is declared that the Marine Court shall after July 1, 1883, be designated as the City Court of New York. Sees. 438 and 603, sees. 611 to 619, both inclusive, and sees. 636, 827 10] 3 and 1015 of the Code do not apply to an action or special proceeding brought in the Marine Court of the city of New York, or before a justice thereof, or to any proceeding therein. Sees. 3268 and 3269 of the Code do not apply to an action in that court, prosecuted as prescribed in article third of sec. 3165 of the Code. A plaintiff, in an action brought in that court, who has an office for the regular trans- action of business in person, within the city of New York, is deemed a resident of that city, within the meaning of sees. 3268 and 3269 of the Code ; Code, § 3160. 228 PRACTICE IN ATTACHMENT OF PEOPEETT. 2. Summons, contents and service. The summons, in an action brought in the New York City Court, must state that the time within which the defendant must serve a copy of his answer is six days after the service thereof, exclusive of the day of service, except in one of the following cases : First, a justice of the court may, upon satisfactory proof by affidavit that either the plaintiff or the defendant resides without the city of New York, or, where there are two or more plaintiffs, or two or more defendants, that all the plaintiffs or all the defendants reside without that city, direct, by an order, that the defendant be summoned to answer within a shorter time, specified therein, not less than two days after the service of the summons, exclusive of the day of service ; whereupon the summons must correspond to the order. The order must be indorsed upon or annexed to the summons ; and a copy thereof must be delivered with a copy of the summons. The justice maj', in his discretion, as a condition of granting the order, require the plaintiff to give an undertaking, with one or more sureties, to the effect that the plaintiff will pay any judgment which may be rendered against him in the action ; Code, § 3165. 3. Service of summons without the city or hy publica- tion. An order, directing the service of summons, either without the city of New York or by publication, may be granted by the court or by a justice thereof ; but only in a case where a warrant of attachment has been issued as prescribed in sec. 3169 of the Code, and personal service of the summons cannot be made with due diligence within that city. The plaintiff, when he applies for such an order, must show by affidavit, to the satisfaction of the court or justice, that the case is PROCEEDINGS IN NEW YORK MARINE COURT. 229 witliin this section. When an order is granted, as pre- scribed in this section, service of the summons without that city may be made as directed in the order, either within or without the state. Sections 440 to 445, both inclusive, and sections 638, 707 and 708 of the Code, apply to the service or publication, pursuant to such an order, and to the proceedings relating to the same, and subsequent thereto; substituting the words "the city of New York" in place of the words "'the State," wherever the latter words occur. If the defendant is a resident of the city of New York, the order must also direct that a copy of the summons, complaint, and the order be left at his residence, specifying it, with a per- son of suitable age and. discretion, if, upon reasonable application, admittance can be obtained, and such a person found who will receive it; or, if admittance can- not be obtained, nor such a person found, by affixing the same to the outer door of the residence so specified ; Code, § 3170. 4. Amendment of summons, when allowed. Where an order directing service of the summons without the city of New York, or by publication, is granted, the sum- mons must state that the time within which the defend- ant must serve a copy of his answer is ten days after service thereof, exclusive of the day of service. If a summons, requiring the defendant to answer within a shorter time, has been issued before an order for service by publication is granted, the justice granting such an order may direct that the summons be amended accord- ingly ; and thereupon the summons published, or served without that city, pursuant to the order, must correctly state the time ; Code, sec. 3165, subd. 12. In Dennel v. ScTieveland, 16 Daly, 34, it was held that a six days' 230 PRACTICE IN ATTACHMENT OF PKOPERTY. summons issued in an attachment suit in the City Court of New York, instead of a ten days' summons in case of service by publication, may be amended after publication commenced ; OriUbon v. Freely 65 How. Pr. 273. II. — Proof necessary to obtain Trarrant of attachment. 5. In general. In order to entitle the plaintiff to a warrant of attachment against property, he must show by affidavit, to the satisfaction of the justice granting it, that a sufficient cause of action exists against the defend- ant, to recover damages for one or more causes specified in sec. 635 of the Code, to an amount stated in the affi- davit ; which, if the action is to recover damages for breach of a contract, must be stated to be over and above all counter-claims known to the plaintiff ; and also that the case is within one of the following subdivisions : ) 1. That the defendant is a foreign corporation, or a domestic corporation, whose principal place of business is not within the city of New York. 2. That the defendant is not a resident of the State. 3. That the defendant, being a resident of the State, is not a resident of the city of New York ; and he has not an office within that city, where he regularly trans- acts business in person. 4. That the defendant, being an adult and a resident of that city, has departed therefrom, with intent to defraud his creditors, or to avoid service of the sum- mons ; or keeps himself concealed therein with the like intent ; or that after proper and diligent effort to ascer- tain the place of the sojourn of such a resident adult defendant, the same cannot be ascertained. 5. That the defendant, being an adult, has removed, or is about to remove, property from that city, with PROCEEDINGS IN NEW YORK MARINE COURT. 231 intent to defraud his creditors, or that he has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, property, with the like intent. 6. That the defendant, being an adult and a resident of the city, has been continuously without the United States more than six months next before the granting of the warrant, and has not made any designation of a person upon whom to serve a summons in his behalf, as prescribed in section 430 of the Code ; or a desig- nation so made no longer remains in force ; Code, § 1369. 6. Having an office for the transaction of business in person. In Bowman v. Ferine, 7 N. Y. Supp. 156, it was held that a person who resides in the State of New York, outside of the city of New York, having a place of business therein where business is done for him in his name, on his capital and at his risk, by his clerks and servants, and who personally appeared at the place of business and exercised no active or continued control over the same, had not an office in the city of New York where he regularly transacted business in person, and that a warrant of attachment could be issued against his property under subdivision 3 of sec. 3169. But a person who has an office for the transaction of business in person, in New York city, is a resident whether he resides in this State or another ; Beeie v. Parser, 24 N. Y. State Rep. 120. 7. Adult, what proof of necessary. It seems that it is not necessary to allege positively, in an application for an attachment under subdivision 4 of section 3169 of the Code, that the defendant is an adult; Wentzler v. Hoss, 50 How. Pr. 397. An affidavit which stated that "a short time ago he (defendant) represented himself to 232 PRACTICE IN ATTACHMENT OP PROPERTY. be a man of means," was held clearly to indicate that he had arrived at mature age and that he was an adult, and that it was a sufficient compliance with subdivision 5 of section 3169 ; Doctor v. Schneff, 2 How. N. S. 52 ; 1 Civ. Pro. Rep. 144. 8. Domestic corporation — resident. A domestic cor- poration whose certificate of incorporation is filed in the office of the clerk of Dutchess county, and states " that the names of town and county in which the operations of said company are to be carried on are Poughkeepsie, county of Dutchess, State of New York," and whose cer- tificate of incorporation has not been in any respect mod- ified, amended or enlarged, "is a non-resident of the city of New York," and an attachment is properly issued out of the City Court of New York against its property on the ground of such non-residence ; Blumenthal v. Hudson B. & F. Mfg. Co., 40 N. Y. State Rep. 232 ; 20 Civ. Pro. Rep. 217 ; 15 N. Y. Supp. 826. The question whether a corporation has its principal place of business within the city of New York becomes, when controverted, a question of fact to be determined on the proofs sub- mitted ; and the naming by the corporation in its certifi- cate of incorporation of the particular county as that within which its principal office is located, merely estops it from claiming a principal place of business elsewhere, until it has changed its place of business in the manner provided by statute ; RothscMld v. Dithredge Flint Glass Co., 22 Civ. Pro. Rep. 314. 9. Undertaking necessary. Section 8159 of the Code of Civil Procedure provides that "each of the provisions of this act, which is made by chapter twenty-second of this act, applicable to the Marine Court of the city of New York, or generally to courts of record, is subject to PROCEEDINGS IN NEW YORK MARINE COURT. 233 the qualifications and exceptions expressed or plainly implied in this article. Section 3160 specifies the sec- tions that do not apply to the City Court, and as section 640 is not one of those, it follows that such section applies to attachment jjroceedings in the City Court of New York. So under the former statute it was held to be necessary to give an undertaking, in order to give the court jurisdiction to issue an attachment ; Tiffany v. Lord, 65 N. Y. 310. 10. Time limited for service of pleadings. The time within which a defendant, in a case specified in section 469 of the Code, must demand a copy of the com- plaint, and the time within which the plantiiJ must serve the same, after demand thereof, as prescribed in that section, and the time within which a copy of a pleading, subsequent to the complaint, must be served after the service of a copy of the preceding pleading, is the number of days, as stated in the summons, within which the defendant is required to serve a copy of his answer after service of the summons ; Code, § 3166. 234 PRACTICE IN ATTACHMENT OF PEOPBBTT. CHAPTER XIV. justices' and INPEEIOE COUETS — ATTACHMENT IN. I.— District courts in New York city and Justices' Courts of the cities of Albany and Troy. II. — Justices' Courts generally. 1. In what actions warrant of attachment may be granted 2. Counter-claim. III.— What must be shown to entitle a party to a warrant. 3. In general. 4. Facts — how stated. 5. PHwa/aeie proof sufficient. IV. — Un dertaking. 6. In general 7. Acknowledgment and justification of. 8. Damages — meaning of. V. — Warrant. 9. Form and contents of. 10. How executed. VI. — Exempt property may be attached when. VII. — Priority of lien between those of different courts. VIII. — Summons and warrant — how and when must be served. IX. — Defendant may retake the property when. 11. Undertaking to plaintiff. X. — Claim of property by third person. 12. Bond and delivery thereupon. 13. Action on bond. 14. When defendant may prosecute bond. XI. — Return of warrant. 15. In general. 16. Joint debtors. 17. Return must comply with statute to give jurisdiction. XII. — Vacating or modifying warrant. 18. Motion for. 19. Effect of vacating warrant. XIII. — Defendant not personally served. 20. Proceedings before justice. I. — District courts in NeTT York city, and Justices' Courts of the cities of Albany and Troy. Sections 2905 to 2918, inclusive, of the Code, apply to an action brought in either of the district courts of the ATTACHMENT IN INFERIOR COURTS. 235 city of New York, and to Justices' Courts in the cities of Albany and Troy, except that where the warrant of attachment is issued out of a district court of New York city, against a non-resident defendant, the said warrant must require the marshal! to attach the property, on or before a day therein specified, which must be not less than two nor more than four days before the return day of the summons ; Code, § 3210. Sec. 3211 provides that the manner of applying for, of granting and of executing an attachment, and the proceedings there- upon, and with respect thereto, as prescribed by sec- tions 2905, 2918, shall be subject to those unrepealed statutes, specially applicable to district courts, that prescribe the duties of justices and of clerks, and that regulate "the mode of transacting business" in an action in the district courts. The method of applying for a warrant, and the duties that fall upon the justice and the clerk respectively, remain the same as they were under the district court act of 1857. The proceedings incident to the application for the granting and the execution of the warrant of attach- ment, and the duties of the justice and the clerk, with respect to the proceedings, are now the same as are pre- scribed by the district court act ; but if we wish to ascertain when, and for what causes, an attachment may be granted, for what reason it may be dissolved and what effect upon the action will be produced by the vacating of the attachment, we must look to §§ 2905, 2918 of the Code. The attachment is now only a provisional remedy. It seems that sec. 2917 radically and entirely changes the practice that prevailed under the district court act. Under that act, the setting aside of the attachment necessitated the dismissal of the action. 236 PEACTICK IN ATl'ACHMENT OF PEOPEETT. The attachment was original process, and if that were set aside, the suit fell with it, for the defendant could not be held to answer a process that had been annulled, and held for naught. Now the warrant is only a pro- visional remedy, the disposition of which does not involve the merits of the action or the process by which the defendant is brought to the court. It seems that there is no remedy where a district court errs in uphold- ing or in vacating a provisional remedy ; RosentTiral v. Grouse, 7 N. Y. Civ. Pro. Eep. 135. II. — Justices' courts generally. 1. In what actions warrants of attachment may he granted. In an action before a justice of the peace, a warrant of attachment against the property of one or more defendants must be granted, upon the application of the plaintiff, as prescribed in sections 2906, 2908 and 2910 of the Code, where the action is brought upon a judgment, or to recover for one or more of the following causes : 1. Breach of contract, express or implied. 2. Wrongful conversion of personal property. 3. Any other injury to personal property, in consequence of negligence, fraud, or other misconduct ; Code, § 2905, The above section is substantially the same as sec. 635. The definition " in jury to property " is found in subd. 10 of sec. 3343 of the Code. 3. Counter-claim. Where the defendant interposes a counter-claim, and thereupon demands an affirmative judgment against the plaintiff, his right to a provi- sional remedy is the same as in an action brought by him against the plaintiff, for the cause of action stated in the counter-claim, and demanding the same judgment. And for the purpose of applying the provisions of sees. ATTACHMENT IN INFERIOR COURTS. 237 2905, 2918 of the Code, the defendant is deemed the plaintiff, the plaintiff is deemed the defendant, and the counter-claim so set forth in the answer is deemed the complaint ; Code, § 720. HI- — What must be shown to entitle a party to a warrant. 3. In general. To entitle a party to a warrant of attachment, he must show, by affidavit, to the sat- isfaction of the justice : 1. That a sufficient canse of action exists in his favor against the party against whom the attachment is demanded, to recover dam- ages for one or more of the causes of action speci- fied in section 2905 of the Code. If the action is upon a judgment, or to recover for a breach of contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him. 2. That the defendant is either a foreign corporation or not a resi- dent of the State ; or, if the defendant is a natural person, and a resident of the State, that he has departed, or is about to depart, from the county where he last resided, with intent to defraud his creditors, or to avoid the service of a summons, or keep himself concealed with like intent, or, if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the county where the defendant, being a natural person, last resided, or, being a corporation, last kept its principal office, or from the county in which the action is brought, with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, disposed of, or secrete, property, with like intent ; or that the defendant, for the purpose of procuring credit, or the extension of credit. 238 PRACTICE IN ATTACHMENT OF PEOPERTT. has made a false statement in writing, under his hand or signature, or under the hand or signature of a duly authorized agent, made with his knowledge and acquiescence, as to his financial responsibility or stand- ing ; chapter 736, Laws 1894 ; or that the defendant, being a natural person of full age, and a resident of the State, has been continually without the United States for the space of six months or more, immediately before the application, and either that he has not made a desig- nation of a person upon whom to serve a summons in his behalf, as prescribed in section 430 of the Code, or that service upon a person so designated cannot be made, with due diligence, in the county where the person making the designation resides ; Code, § 2906. The affidavits miist be filed with the justice when the warrant is granted. 4. Facts — how stated. The same rule prevails as to the manner of stating facts, in affidavit for an attach- ment in a justices' or other inferior court as does under the same circumstances where the attachment is applied for in a court of record. Thus on the application for a warrant the person applying shall state the facts and circumstances within his knowledge, showing the grounds of the application, whereby the justice may the better judge of the necessity and propriety of issuing such warrant ; Wells v. Sisson, 14 Hun, 267. Where the proof, though slight and inclusive, legally tends to establish all the essential facts, the process will be valid, when questioned collaterally, and can only be avoided by a direct proceeding to set it aside ; Miller v. Brinlcerhoff, 4 Den. 120. In Millius v. Shafer, 3 id. 60, it is held that if the witness be sworn, and the justice take down and certify the testimony, it is a sucfficient affidavit. ATTACHMEIfT IN INFERIOR COURTS. 239 The plaintiff is bound to prove to the satisfaction of the justice the facts and circumstances which entitle him to the attachment: 1. That the plaintiff has such de- mand as the Code describes, and 2nd, he must bring his case within some of the conditions prescribed by sec. 2906 of the Code. The belief of the affiant is neither a fact nor circumstance upon which the justice can exer- cise his judgment. It is not sufficient that the affiant is satisfied of the unlawful acts or intentions of the defendant. The justice must be satisfied, and he must be so satisfied from proof, facts and circumstances ; not the belief of anyone. Facts must be shown to the justice which shall leave no reasonable doubt in his mind that the defend- ant has committed, or is about to commit, the fraudu- lent acts mentioned in the Code ; for instance, if the affi- davit alleges positively that the defendant has declared his intention to remove his property, to avoid the pay- ment of his debts, or that he has assigned or secreted his property, being indebted at the time, and setting forth the circumstances, such as want of consideration for an assignment, or any other circumstance which usu- ally indicates fraud, such affidavit would be proof upon which the justice could act judicially, and draw his own conclusion whether the defendant had done the acts, or was about to do them, which would authorize the issuing an attachment. The justice must be satisfied judicially, and has no right to be satisfied unless upon legal proof — proof of facts and circumstances, not belief alone ; Smith v. Luce, 14 Wend. 237. In TJiompson v. Bater, 57 Hun, 316 ; 32 N. Y. State Rep. 363 ; 10 N. Y. Supp. 63, it was said: "Attachments are not to be granted on belief and suspicions. They operate to give 240 PRACTICE IN ATTACHMENT OV PROPERTY. an advantage to one creditor over others, and some w^rongful act, or the evident intent to do some vyrongful act, must be shown to justify them." In Morris v. Talcott, 96 N. Y. 107, it was said: "A party mast show aflBrmatively facts and circumstances necessarily tending to establish a probability of guilt." And an aflSdavit stating facts indicating an intent to defraud is insufficient, unless in addition it adds a belief of a fraudulent intent ; Clover v. Van Valen, 6 How. Pr. 102. In Clearwater v. Brill, 61 IST. Y. 625, it was held that the statement of the grounds of the application did not tend to prove the ' existence of the facts, and that the facts stated failed entirely to show any wrongful intent. That the affidavit should have stated that the defendant was a resident of the county, and had departed there- from; GarrisouY. Marshall, 4A How. Pr. 193. Where the affidavit shows an indebtedness arising upon contract for a definite sum, over and above all counter-claims known to the plaintiff, that defendant had been a resident of the county, and had departed from the county where he last resided, with the intent of defrauding his creditors ; that he had left the county quietly and clandestinely and had gone to Boston, Mass. ; that he had sent to his former place of residence and employed help to assist him in the removal of his household goods in order to have them shipped to Boston, and that this help at the time of making the affidavit was actually engaged in packing the goods, is sufficient ; Patterson v. Delaney, 20 Civ. Pro. Rep. 427 ; 37 N. Y. State Rep. 585 ; 14 N. Y. Sapp. 100. 5. Prima facie proof sufficient. The creditor is not re- quired to furnish conclusive evidence of the facts relied on, but it is sufficient if the proof had a legal tendency ATTACHMENT IN INFERIOR COURTS. 241 to make out in all its parts a case for the issuing of an attachment; and if the facts and circumstances dis- closed fairly call upon the magistrate for the exercise of his judgment, the proceedings are not void ; Schoon- maker v. Spencer^ 54 N. Y. 366. IV.- Undertaking. 6. In general. Before granting the warrant, the justice must require a written undertaking to the defend- ant, on the part of the plaintiff, with one or more sure- ties, approved by the justice, to the effect that, if the defendant recovers judgment, or the warrant of attach- ment is vacated, the plaintiff will pay all costs that maybe awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceed- ing the sum specified in the undertaking, which must be at least two hundred dollars, and that if the plaintiff recovers judgment, he will pay to defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment and interest thereupon ; Code, § 2908. 7. Acknowledgment and justification of sureties, 'ihe undertaking must be acknowledged or proved, and certi- fied in like manner as a deed to be recorded ; Code, § 810. A party need not join with his sureties ; id. 811. The undertaking must be accompanied with the affidavit of each surety subjoined thereto, to the effect that he is a resident of, and a householder or a freeholder within the State, and is worth the penalty of the bond or twice the sum specified in the undertaking, over all the debts and liabilities which he owes or has incurred, and exclu- sive of property exempt by law from levy and sale under 16 242 PRACTICE IN ATTACHMENT OF PROPERTY. an execution ; id. 812. As to who are householders, see Delajnater v. Byrne, 59 How. Pr. 71. 8. Damages — meaning of. A justice of the peace has power to permit an amended undertaking to be filed nunc pro tunc; Riley v. Skidmore, 24 IST. Y. State Rep. 724 ; 6 N. Y. Supp. 107. In an action upon an under- taking given to authorize the issuing of an attachment, the measure of damage is not the mere taxable costs in the attachment suit ; the obligee may recover his damages at large for the seizure, detention and deterioration of his goods, his time and trouble in defending the suit, expense of employing counsel, &c. It also covers the costs of an appeal ; Northrup v. Garrett, 17 Hun, 497; Bennett v. Brown, 20 N. Y. 102. But it covers only the damages actually sustained in consequence of the attachment; Snell v. Thorp, 16 N. Y. State Eep. 84. V. — Warrant. 9. Form and contents of. The warrant must be granted by the justice who issues the summons, at the time when the summons is issued, and it must be endorsed there- upon or annexed thereto ; it must be subscribed by the justice and must briefly recite the ground of the attach- ment ; it must require the constable to whom the sum- mons is delivered, to attach, on or before a day specified therein, which must be at least six days before the return day of the summons, and safely to keep, as much of the defendant's goods and chattels within his county as will satisfy the plaintiff's demand, with costs and expenses, and to make return of his proceedings there- on to the justice at the time when the summons is returnable. The amount of the plaintiff's demand must be specified in the warrant, as stated in the aflBdavit ; Code, § 2907. ATTACHMENT IN INFERIOR COURTS. 243 10. How executed. The constable to whom the war- rant of attachment is delivered, must execute it at least six days before the return day of the summons, by levy- ing upon and taking into his custody so much of the goods and chattels of the defendant, not exempt from levy and sale by virtue of an execution, including money and bank notes, which he finds within his county, as will satisfy the plaintiff's demand, with the costs and expenses. He must safely keep the property attached, to be dis- posed of as prescribed by sees. 2912, 2916, of the Code, and must immediately make an inventory thereof, stat- ing therein the estimated value of each item or article ; Code, § 2909. VI. — Exempt property may be attached when. Sec. 1390 of the Code provides that certain specified articles of personal property, when owned by a house- holder, shall be exempt. Sec. 1 391 provides that ' ' in addition to the exemptions allowed by the last section, necessary household furniture, working tools, and team, professional instruments, furniture and library, not ex- ceeding in value $250, * * * are exempt from levy and sale by virtue of an execution when owned by a person being a householder, or having a family for which he provides, * * *." There are two classes of exemp- tions provided for by the statute ; one relates to certain articles which are specifically enumerated and abso- lutely exempt. The other is limited to the sum of $250, and there may be claimed under it property of the kind mentioned in sec. 1391 to that amount, but to that amount only. The latter exemption is limited and in- definite, and where the debtor has property of that 244 PRACTICE IN ATTACHMENT OF PKOPERTT. character of greater value than $250, it is dependent upon his election as to the particular property that may be retained by him as exempt. Construing the provisions of sec. 2909 in the light of the provisions of sees. 1390 and 1391, the inquiry pre- sents itself whether the provision that a constable must execute an attachment by levying upon the property of the defendant, not exempt from levy and sale under execution, in effect forbids the officer to levy upon any property that might be exempt under either section, or whether it relates only to the property specifically exempted by sec. 1390, and such as is claimed by the defendant or known to the officer to be exempt under sec. 1391. If it were to be held that an officer could not levy upon any property of the description mentioned in sec. 1391, without becoming liable to an action for its recovery when no demand was made, nor claim that it was exempt asserted by the owner, it would follow that all property of that character would be practically exempt from levy under an attachment, although it greatly exceeded in value the limit provided by that section. No such construction should be given to this statute. If property consists of the articles mentioned in sec- tion 1390, it is absolutely exempt if the owner is a householder, and the officer has no right to levy upon it. If, however the property is of the description men- tioned in sec. 1391, the exemption is a qualified one, and the debtor must claim it and notify the officer of his claim before he can properly maintain an action either for its conversion or to recover its possession, especially when there is other property to which such exemption ATTACHMENT IN INFEEIOE COURTS. 245 might apply ; Russell v. Dean, 30 Hun, 242 ; Turner v. BorthwicTc, 20 id. 119 ; Twinams v. Smart, 4 Lans. 263 ; Seaman v. Luce, 23 Barb. 240 ; Lockwood v. Tounglove, 27 id. 505 ; Bains v. Prosser, 32 id. 290 ; Baker v. Brintnall, 52 id. 188 ; TFj7co£c v. ^owe, 59 Hun, 268 ; 36 N. y. State Rep. 303 ; 12 IST. Y. Supp. 783. VII. — Priority of lien between those of different courts. By statute, 2 R. S. 366, sec. 16, any execution or attachment issued out of any court, not being a court of record, if actually levied, shall have preference over any other execution issued out of any court, whether of record or not, which shall not have been previously levied. In the case of conflict between executions from courts of record, and from justices' courts, the statute has abolished the lien of the former, if it ever existed, from the time thej' come into the hands of the sheriff, and has made the levy the test of priority. What con- stitutes a levy, according to the practice in this State, has been very well settled, and is not open to dispute. The officer must take actual possession, and for this purpose good should be within his view, and subject to his dispositon and control. It is not necessary that he should remove them, or leave an assistant in possession ; they may be left with the defendant at the risk of the plaintiff, or the officer, or security for a delivery at a future day may be taken ; Ray v. Harcourt, 19 Wend. 495. VIII, — Summons and -warrant — how and when must be served. The constable must, immediately after making the inventory and at least six days before the return day of the summons, serve the summons, together with the war- 246 PRACTICE IN ATTACHMENT OF PROPERTY. rant of attachment and inventory upon the defendant, by delivering to him personally a copy of each, if he can, with reasonable diligence, be found within the county ; or, if he cannot be so found, by leaving a copy of each, certified by the constable, at the last place of residence of the defendant in the county, with a person of suitable age and discretion ; or if such a person cannot be found there, by posting it on the outer door, and also depositing another copy in the nearest post-office, enclosed in a sealed post-paid wrapper, directed to the defendant at his residence ; or, if the defendant has no place of residence in the county, by delivering it to the person in whose possession the property attached is found ; Code, § 2910. Great care should be taken to serve the papers as pre- scribed by the above section ; Egbert v. Watson, 21 How. Pr. 429. IX, — Defendant may retake the property -when, 11. Undertaking to plaintiif. The defendant, or his attorney or agent in his behalf, may, at any time before judgment is rendered in the action, execute and deliver to the constable an undertaking to the plaintiff, in a sum specified therein, at least twice the value of the property attached, as stated in the inventory, with one or more sureties, approved by the constable, or by the justice who issued the warrant ; and to the effect that, if judg- ment is rendered against the defendant, and an execution is issued thereupon, within six months after the giving of the undertaking, the property attached shall be pro- duced to satisfy the execution. Thereupon the constable must re-deliver the property to the defendant ; Code, § 2911. ATTACHMENT IN INFERIOR COURTS. 247 X. — Claim of property by third person. 12. Bond and delivery thereupon. If a person, not a party to the action, claims any property attached, which is not reclaimed, by the defendant, as prescribed by sec. 2911, of the Code, he may, at any time after the seizure, and before execution is issued upon a judgment rendered in the action, execute and file with the justice a bond to the plaintiff, with one or more sureties, approved by the constable or by the justice, in a penalty at least twice the value of the property claimed, and conditioned that, in an action upon the bond, to be commenced within three months thereafter, the claimant will establish that he was the general owner of the property claimed, at the time of the- seizure ; or, if he fails so to do, that he will pay to the plaintiff the value thereof, with interest. The constable must thereupon deliver the property claimed to the claimant ; Code, § 2912. 13. Action on bond. A judgment for the plaintiff, in an action upon a bond given as prescribed in sec. 2912 of the Code, must award to him the value of the property seized and delivered to the claimant, with interest thereupon from the time of the delivery. If the amount so recovered exceeds the amount which the plaintiff recovers, in the action in which the warrant of attachment was issued, he is liable to the defendant in that action for the excess ; Code, § 2913. 14. When defendant may prosecute bond. If the war- rant of attachment is vacated or annulled, the defendant may maintain an action upon the bond, specified in sec- tions 2912, 2913, in his own name, in the same manner and with like effect as the plaintiff might have done, if the warrant had remained in full force ; Code, § 2914. 248 PRACTICE IN ATTACHMENT OF PROPERTY. XI. — Return of warrant. 15. In general. The constable executing the warrant of attachment must, at the time when and the place where it is returnable, make a return thereto, under his hand, stating all his proceedings thereupon. He must deliver to the justice, with the return, each bond or undertaking delivered to him pursuant to sections 2908, 2911, and 2912 of the Code, and a certified copy of the inventory of the property attached. The return must state the manner in which the warrant and inven- tory were served, and, if they were served otherwise than by delivering a copy thereof to the defendant per- sonally, the reason therefor and the name of the person to whom the copy was delivered, unless his name is unknown to the constable ; in which case the return must describe him so as to identify him, as nearly as may be ; Code, § 2915. 16. Joint delbtors. In a suit prosecuted against two persons as joint debtors, the justice has no right to proceed and render judgment where the return of the constable only shows a service of the attachment on one of the defendants, but is silenced as to service on the other, and where the defects is not cured by an appear- ance ; McDoel v. OooTc, 2. N. Y. 110. 17. Return must comply with statute to give juris- diction. Before a justice is authorized to proceed with an action, it is neccessary that he should have the officer's return to the attachment showing a service of it in the manner provided by the statute ; and where it is served otherwise than personally, the different steps prescribed should be accurately followed ; for it is the only manner in which the justice can acquire jurisdic- tion. The return of the office is the only evidence to be ATTACHMENT IN INTERIOR COURTS. 249 furnished to the justice that the statute has been com- plied with. In cases where the process is not personally- served, the provision is an important one, which requires that a copy of the attachment, with an inven- tory of the property seized, shall be left with the person in whose possession the goods and chattels shall be found ; for the inference is a natural one that the owner will leave his property in the hands of one who is charged with the duty of protecting his interest in it. Leaving a copy of the attachment with a man' s wife, without an inventory or any statement that property had been seized under it, would be no notice to her or any one else that his property was to be affected by the proceedings, or that any steps were necessary for the protection of the owner' s interest in it, even if it were in her actual possession. The rule is well settled, that where a statute prescribes a new mode of procedure, either unknown to the com- mon law, or contrary thereto, the statute so far at least as those parts of it essential to ]'urisdiction are concerned, must be not only proved, but shown to have been strictly pursued, or the proceeding will held a nullity. The same rule applies to courts of limited and special jurisdiction, as justices' courts. Nothing is presumed in their favor, so far as it respects jurisdiction, and the party seeking to avail himself of their orders, must show affirmatively that they had jurisdiction ; Willard v. Sperry, 16 Johns. 121. It seems, however, that when a return is attacked by a third party, a less strict construction of the statute is required; Bascom v. ^mith, 31 IST. Y. 595 ; Johnson v. Moss, 20 Wend. 144 ; Van KirTc v. Wilds, 11 Barb. 520. 250 PRACTICE IN ATTACHMENT OF PROPEKTY. XII. — Vacating and modifying -vrarrant. 18. Motion for. A defendant, whose property has been attached, may, upon the return of the summons, apply to the justice who issued the warrant of attachment, to vacate or modify it, or to increase the plaintiff's security. Such an application may be founded upon the papers upon which the warrant was granted, or upon proof, by affidavit, on the part of the defendant, or upon both. If it is founded upon proof on the part of the defendant, it may be opposed by new proof, by affidavit, upon the part of the plaintiff, tending to sustain any ground for the attachment, recited in the warrant, but no other. The justice may, upon the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attach- ment upon his own motion, if he deems the papers upon which it was granted, insufficient to authorize it ; Code, § 2916. 19. EflFect of vacating warrant. Vacating the warrant does not affect the jurisdiction of the justice to hear and determine the action, where the defendant has appeared generally in the action ; or where the summons was personally served upon him ; or where judgment may be taken against him, as being indebted jointly with another defendant, who has been thus summoned or has thus appeared. In every other case the justice who vacates a warrant of attachment against the property of a defendant, must dismiss the action as to him ; Code, § 2917. An attachment is only a provisional remedy, and an error of the justice in regard to such a remedy will not cause a reversal of the judgment if the action was pro- perly decided upon its merits ; Rosenthal v. Grouse, 7 ATTACHMENT IN INFERIOR COURTS. 251 Civ. Pro. Rep. 135 ; and where the defendant has been personally served and appears generally, an error of the justice in refusing to vacate an attachment granted in the action will not vitiate a judgment rendered on its merits ; Bump v. Dehaney, 36 N. Y. State Rep. 114 ; 12 N. Y. Supp. 901. XIII. — Defendant not personally served. 20. Proceedings before justice. Where the defendant has not appeared and the summons has not been person- ally served upon him, and property of the defendant has been duly attached, by virtue of a warrant, which has not been vacated, the justice must proceed to hear and determine the action ; but, in an action subsequently brought, the judgment is only presumptive evidence of indebtedness, and the defendant is not barred from any counter-claim against the plaintiff. The execution issued upon a judgment so rendered must require the constable to satisfy it out of the property attached, with- out containing a direction to satisfy it out of any other property ; Code, § 2918. APPENDIX OF FORMS. No. 1. SUPREME COURT. F— H- vs. Affidavit for Attachment. Code, § 636. J— P- County of , ss.: F — H — , being duly sworn, says : that the plaintiff is a corporation is a duly organized under the laws of this State, and doing business at under the name of That deponent is, and for years last past has been, the manager of said company, and has done all the sell- ing of the said compan3''s goods and the collection of the pay for the same. That a summons has been issued herein, a copy of which is hereto annexed and forms a part of this affidavit. That this action is for the recov- ery of money only, by the above named plaintiff against the above named defendant, (as appears by the com- plaint hereto annexed which forms a part of this aflBl- davit). That the contents of said complaint is true to the knowledge of deponent. Deponent further says, that on or about the day of 189 , this deponent, as manager of the plaintiff, sold and delivered to the defendant goods of the value, and upon the agreed price of $ . That on or about the day of , 189 , as manager as aforesaid, he sold and delivered to the defendants goods of the value and upon the agreed price of $ . That no term of credit was given the defendant upon such sale and that before the issuing of the summons herein, the said debt became due and payable, and remains v(^holly unpaid. That on or about the day of , 189 , deponent demanded payment for said goods of the defendant, and APPENDIX OP FORMS. 253 said defendant refused and neglected and still refuses and neglects to pay the same. That there is actually due and payable upon said demand from the defendant to the plaintiff the sum of $ over and above all counter-claims known to the plaintiff or this deponent. That deponent's information upon the status of the dealings between the plaintiff and the defendant is derived from (set forth the sources of in- formation). (That the defendant, for the purpose of procuring credit, or the extension of credit, did, on the day of , 189 , execute a writing or paper (or caused a paper to be madeand signed by , who then was his duly authorized agent); (or, on the day of , 189 , , who was then the authorized agent of the defend- ant, signed a written paper, with the knowledge and acquiescence of the defendant, as to his financial responsi- bility) which said paper was delivered by said to , and is hereto annexed and forms a part of this affidavit. That the statements so made in such written statement were false when made to the knowledge of the party signing it. That at the time of making said statement the de- fendant (here allege all the facts necessary to show the falsity of the statement). That the plaintiff, relying upon said statement, gave the defendant credit (here set forth what was done on the faith of the statement); (or that the defendant, relying upon the said statement, ex- tended the terms of credit upon a certain account or note, etc.) (here state what was done). That the defendant is not a resident of this State, but resides at , as deponent is informed by (here set forth the sources of information and the grounds of be- lief), and as deponent verily believes (or, that the de- fendant is a foreign corporation, created under the laws of the State of , having their place of business at That the plaintiff is a resident of this State. That the defendant has property within this State, at , viz. : (describe property) ; (or, that the defendant, who is a resident of this State, has departed therefrom, or keeps himself concealed therein, with intent, as deponent be- lieves, to defraud this plaintiff and his creditors, or to avoid the service of a summons, and the grounds of de- ponent's belief are as follows: (state all the facts and circumstances on which belief is grounded). That the reason that the depositions of deponent's in- formants are not produced, is that said informants and 254 APPENDIX OF FOKMS. each and every of them are relatives of defendant, and are in sympathy with his movements (or that is in the employ of the defendant); (or, that defendant is about to leave this State, and reside elsevs^here, and take his property with him for the purpose of defrauding his creditors, as deponent is informed and verily believes, and the sources of deponent's information and the grounds of his belief are as follows) : (set forth all the facts and circumstances on which the plaintiff relies); (or, that defendant has assigned and disposed of his property with intent to defraud his creditors, as depon- ent is informed and verily believes, and the sources of deponent's information and the grounds of his belief are as follows : (here state all the facts and circumstances relied upon). That the reason that the deposition of said is not produced is (Signature of aifiant.) Sworn to before me this ' day of , 189 . No. 2. SUPKEME COUET. The Village of J Affidavit for Attachment under § 637 of the Code. County of , ss. : — — , being duly sworn, says : He is the duly elected, qualified and acting president of the vil- lag of ; that said village is a duly incorpor- ated municipal corporation of this State ; that on or about the day of , 189 , the defendant was duly elected collector of said village, and on or about said time! he duly qualified and entered upon the duties of his office. That as such collector defendant received as taxes for said village the sum of $ , which said sum of money he has failed and neglected to pay over to the treasurer of said village, or to any other person authorized to receive APPENDIX OF FORMS. 255 the same. That the warrant for the collection of said money expired on about , 189 . That more than three months have elapsed since the defendant received said money. That since said time deponent has often demanded said money of the defend- ant, and he has neglected and refused to pay the same or any part thereof to the treasurer of said village or to the plaintiff, and has v^rongfully converted the same to his own use. (See the amendment of § 637, by-laws of 1894.) That a cause of action exists in favor of said plaintiff against said defendant, for which said action is com- menced, or is about to be commenced, as appears by the summons and complaint hereto annexed, and which form a part of this affidavit, and that the amount of the plaintiff's claim in said action is fifteen hundred dollars, and interest from , 189 , over and above all counter- claims known to plaintiff. That all the facts alleged in the aforesaid complaint are true to the knowledge of deponent. That deponent has had personal charge of the said matter between the plaintiff and the defendant, and all said matters are within the personal knowledge of deponent. (Verification. ) (No undertaking is required where a municipal corpo- ration is plaintiff.) No. 3. SUPREME COURT. F— H— J— P— Undertaking under § 640 of the Code. Whereas, the above named F — H — , as plaintiff, has commenced (or is about to commence) an action for the recovery of money against the above named defendant, and has made (or is about to make) application for an attach- ment according to the provisions of the Code of Civil Procedure, against the property of the defendant ; Now, therefore, we, A — B — , , of by occupation a , and E — D — , of , by occupation a , do 256 APPENDIX OF FOBMS. hereby, jointly and severally, undertake and agree, to and with the defendant, that if the defendant recovers judgment, 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 he may sustain by reason of the attachment, not exceeding the sum of f . (It must be at least two hundred and fifty dollars.) Dated the day of , 189 , (Signatures.) No. 4. (Acknowledgment. ) State of New York, County of ' f ^^•• On this day of , 189 , before me personally appeared A — B — , and E — D — , to me personally known to be the persons described in and who executed the above undertaking, and severally acknowledged that they executed the same. (Officer's signature.) No. 5. (Justification of sureties.) State of New York, ) County of P®" A — B — and E — D — , being severally sworn, each for himself says: He is a resident of and a holder within the State of New York, and that he is worth the sum of $ over all debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. (See Code, § 811.) (Jurat.) (Signatures of sureties.) No. 6. (Approval by judge.) I certify that I find the sureties in the above under- taking sufficient, and do approve and allow the same. (Signature of judge.) APPENDIX 01 FORMS No 7. SUPEEME COURT. F— H — vs. - Warrani J— P — 257 The People of the State of New York, to the Sheriff of any county, greeting : "Whereas, it appears to my satisfaction by the affidavit of that the plaintiff, F — H — , has a cause of ac- tion to recover a sum of money only, as damages for a breach of contract (or for the wrongful conversion of personal property, in consequence of negligence, fraud, etc., etc., etc.) against the defendant. That the amount of the plaintiff's said claim is $ over and above all counter-claims, and that defendant is a non-resident of this State, and has property vpithin this State ; (or that the defendant is a foreign corporation) ; (or that the de- fendant is a natural person and resident of this State, and that he has departed therefrom -with, intent to de- fraud his creditors, or to avoid the service of a summons, or keeps himself concealed with a like intent). (III.) That the defendant is a natural person (or a domestic corpora- tion) ; that he (or it) has removed from the State (or is about to remove) with intent to defraud his (or its) cred- itors. (lY.) Or has assigned, disposed of, or secreted (or is about to assign, dispose of, or secrete) property, with intent to defraud his creditors.) (V.) That for the pur- pose of procuring credit (or for the purpose of obtaining the extension of credit) the defendant made a false state- ment in writing, under his hand and signature (or, under the hand and signature of , a duly authorized agent of defendant, and made with his (defendant's) knowledge and acquiescence, as to his financial responsibility or standing); And whereas, the plaintiff presented to me, with his said affidavit, a summons in the above entitled action, and an undertaking in due form approved by me ; Now, therefore, you are hereby commanded and re- quired to attach and safely keep so much of the property, within your county, which The defendant has, or which he may have at any time before final judgment in the action, as will satisfy the plaintiff's demand, with costs 17 258 APPENDIX OP FOEMS. and expenses, as security for the satisfaction of such judgment as said plaintiff may recover in said action, and return this warrant as required by law. Dated ,189 . (Signature of judge.) (Signature of plaintiff's attorney.) No. 8. SUPREME COURT. F— H— vs. J— P— Notice of levy of warrant of attachment, on real property; Code, § 649, subd. 1. Notice is hereby given, that an action has been com- menced in this court by the above named plaintiff, against tlie above named defendant, to recover a judg- ment for money only, and that a warrant of attachment tinder the Code of Civil Proceedure was on the day of , 189 , duly issued in this action against the prop- erty of the defendant, by and directed to the Sheriff of the county of That the amount of the plaintiff's claim, as stated in the said warrant, is the sum of dollars. That the real property levied upon and taken by virtue of said warrant is described as follows : (here insert description of property). Dated , 189 . G— H— G— , A — A — . Sheriff, Plaintiff's attorney, M— , N. Y. Xo. 9. SUPREME COURT. F— H— 1 [ Attachment of intangible prop- ^*- r erty, &c., under Bubd. 3 of § I 649 of the Code. ''" J Take notice, that by virtue of a warrant of attachment, a certified copy of which is hereto annexed, I have levied APPENDIX OF FOEMS. 259 upon the interest of the defendant in now held by you as a pledge ; (or, as collateral security for the pay- ment of a debt), (or, your indebtedness to the defendant, amounting to about $ ); (or, for the sum of $ , re- maining unpaid upon a subscription to the capital stock of the defendant, made by you); (or, upon shares of stock of the defendant, held by you ; Code, § 646); (or, the rights or shares which the defendant has in the stock of your association or corporation, together with the interest and profits thereon ; Code, § 647.) Dated , 189 . (Signature of Sheriff.) To John Doe. No. 10. (Certificate to be attached to copy of warrant.) (Title of action.) State of Few York, ] County of P^" * I, — — , Sheriff of , do hereby certify that I have compared the annexed copy attachment with the original in my possession, and that the same is a true copy of such original and each and everj'^ part thereof. Dated , 189 . (Signature of Sheriff.) No. 11. SUPKEME COURT. F— H- vs. Demand of certificate under § 650 of the Code. J— P— To— By virtue of a warrant of attfachment in the above entitled action, a copy of which is herewith served upon you (or, a copy of which has been heretofore served upon you), I hereby demand that you immediately execute and deliver to me a certificate specifying the rights or 260 APPENDIX OP FORMS. number of shares of the defendant in the stock of your association or corporation, with all dividends declared, or incumbrances thereon ; (or the amount, nature and de- scription of the property held by you for the benefit of the defendant, or of the defendants interest in property so held, or of the debt or demand owing by you to the de- fendant, as prescribed by section 650 of the Code of Civil Procedure). Dated , 189 . (Signature of Sheriff.) No, 12. SUPREME COURT. F— H— vs. J— P— Certificate under § 650 of the '' Code. In obedience to the application of the SheriflE of , and to the provisions of section 650 of the Code of Civil Pro- cedure, I, , hereby certify that it appears by the books of that the defendant has shares of or interest in the stock of , with dividends, and that said stock or interest is encumbered as follows : (or that I hold the following property of the defendant, viz.: , and that the defendant's interest in said prop- erty is as follows : ); (or, that I am indebted to the de- fendant as follows : ). Dated 189 . (Signature of officer, debtor, &c.) No. 13. SUPREME COURT. F— H— vs. J- P— J AflSdavit upon application for order of examination, where party refuses to give certifi- cate ; Code, § 651. County of , ss.: — — , being duly sworn, says : He is a deputy of the Sheriff of county ; that on the day of , 189 , APPENDIX OP FORMS. 261 ^^ » ^- Y., he delivered to and left with person- ally a certified copy of the warrant of attachment herein, together with a notice of levy on , and a demand that said make and deliver to such Sheriff a certificate as prescribed by section 650 of the Code of Civil Procedure, copies of which are hereto annexed and form part of this affidavit. That at divers times since the service of such papers upon , this deponent has orally requested said to execute and deliver such certificate as afore- said. That the said has neglected and refused, and still neglects and refuses, to furnish such certificate. Wherefore, deponent prays for an order for the exam- ination of said , as prescribed by section 651 of the Code of Civil Procedure. (Signature of affiant.) Sworn to before me day ) of , 189 . [ (The order seems to be ex-parte.) No. 14. SUPREME COURT. F— H — vs. J— P — I Order for examination under ^ § 651 of the Code. It having been made to appear to me, by the affidavit of , that a certified copy of the warrant of attachment in this action, together with the notice prescribed by sec- tion 649 of the Code of Civil Procedure, and a written application for a certificate by the Sheriff of was duly served upon , on the day of .189 , and that said has refused and neglected to furnish a certificate upon such application ; It is hereby ordered, that appear before me at my chambers, in the , on the day of , 189 , at 10 A. M., and submit to an examina- tion as prescribed in section 651 of the Code of Civil Pro- cedure, or that , of be and he hereby is appointed a referee herein to take the examination of the said It is further ordered, that the said appear before the said , referee, at his office in , on the day of 189 , at A. M., and at such other times and places as such referee shall by his summons direct and appoint, 262 APPENDIX OF POEMS. and submit to an examination concerning the property of the defendant. Dated , 189 . (Signature of judge.) No. 15. SUPREME COURT. F— H — P — AfiSdavit for examination where plaintiflE is dissatis- fied with certificate ; Code, §651. County of , ss. : — — , being duly sworn, says : He is the in the above entitled action ; that upon the application of the Sheriff of , one furnished to said Sheriff a cer- tificate herein, which said certificate is hereto annexed and forms a part of this affidavit. That deponent is informed and verily believes that the said certificate is untrue, or that it fails fully to set forth the facts re- quired to be shown thereby. And the following are the sources of deponent's information and the grounds of his belief : (set forth all the facts and circumstances, also annex the affidavits of parties from whom the informa- tion IS derived) . Wherefore, the deponent prays that an order may issue for the examination of the said , as prescribed by section 651 of the Code of Civil Procedure. (Signature.) Sworn to before me this ) day of , 189 . ) No. 16. !(Notice of motion.) (Title of action.) Take notice, that upon the within aflSdavit, the written demand of the Sheriff upon for a certificate under section 650 of the Code of Civil Procedure, the certificate furnished by said in obedience to said demand, and APPENDIX OF FORMS. 263 upon all the pleadings and proceedings in this action, the undersigned will move before Hon. , at his cham- bers, in , N. Y., on the day of , 189 , at A.M. of said day, for a rule or order, I, requiring the said to appear and be examined as prescribed by sec- tion 651 of the Code ; 11, for such other, further or different relief as to the court may seem meet. Dated , 189 . Yours, &c., — — , Attorney for plaintiff, To , N. Y. No. 17. SUPREME COURT. F— H— vs. J— P— Order for examination after the " furnishing of a certificate ; Code, § 651. It appearing to my satisfaction from the affidavit of that there is reason to suspect that a certiiicate of furnished to the Sheriff under section 650 of the Code of Civil Procedure, in the above entitled action, is untrue, or that it fails fully to set forth the facts required to be shown thereby ; Ordered, that appear before me at my chambers, in the city of , on the day of , 189 , at 10 A. M., and submitt to an examination concerning said matter ( or, that , of , be and he hereby is appointed a referee herein to take the examination of the said It is further ordered, that the said appear before the said referee at his office in on the day of , 189 , at A. M., and summit to an examination under oath concerning the matter aforesaid. Bated , 189 . (Signature of judge.) 264 APPENDIX OF FORMS. No. 18. SUPREME COURT— County of F— H- Petition by plaintiff for leave i- to take property; Code, §§ ■ 652, 653. J To Hon. The petition of respectfully shows : That he is the plaintiff in the above entitled action ; that on or about day of , 189 , a warrant of attachment in the above entitled action against the goods of the defendant was duly issued herein and delivered to the Sheriff of . That certain goods of the defendant, viz: are now upon the vessel of in this county; that said goods are claimed by the said owner of said vessel to have been shipped by the defendant for transportation, without reshipment or transhipment, in the State, to a port or place without the State; yonr petitioner therefore prays that upon giving the undertaking required by section 652, 653 of the Code of Civil Procedure, the said goods may be taken by the sheriff upon the aforesaid warrant of attachment in favor of your petitioner. (Signature of petitioner.) County of , ss.: , being duly sworn, says : He is the petitioner in the above entitled action ; that he has read the foregoing petition, and that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged upon information and belief, and as to such matters he believes them to be true. (Signature of petitioner.) Sworn to before me this 1 day of , 189 . ) No. 19. (Order to show cause.) (Title of action.) Upon the annexed petition and all the pleading, and proceedings in this action, let and the defendant herein show cause before me at my chambers, in , on the day APPENDIX OP POEMS. 265 of ,189 , at A. M., why the plaintiff should not be allowed to take the goods and property mentioned in the annexed petition upon his warrant of attachment in this action. Let this order and the annexed petition be served upon and the defendant herein personally on or before six o'clock P. M., on the day of , 189 , and such service shall be deemed sufficient. Dated , 189 . (Signature of judge.) No. 20. SUPREME COURT— County op F— H— J— p— Order for leave to take property on a vessel ; Code, §§ 653, 653. An order to show cause having heretofore been granted herein, returnable at this time, why the plaintiff should not be allowed to take certain property of the defendant, claimed to have been shipped by the defendant with for transportation, without reshipment or tranship- ment, in the State, to a port or place without the State ; Now, upon reading and filing the petition of , veri- fied on the day of , 189, and the order to show cause, and after hearing , of counsel for plaintiff, and , of counsel for defendant. Ordered, that the plaintiff may, and he hereby is al- lowed to take the property mentioned and described in the petition herein, upon his executing and delivering to an undertaking in the penalty of $ , approved by me, as prescribed by sections 652 and 653 of the Code of Civil Procedure. It is further ordered that the sureties upon such under- taking justify before me. at my chambers, in the of , on the day of , 189 , at A. M. (Signature of judge.) 26f) APPENDIX OF FORMS. No. 21. SUPKEME COURT. F— H- vs. J— P— Inventory under § 654 of the Code. T, , Sheriff of the county of , and and , two disinterested freeholders of said county, hereby certify that the following is a description of the real property, and a just and true inventory of the personal and real property and of the books, vouchers and other papers seized by the said Sheriff, on a warrant of attachment issued in the above entitled action by Hon. , one of the justices of this court, (or county judge of county), together with the estimated value of each parcel of real property attached, and of each article of personal prop- erty, and also a true statement of such articles thereof as are perishable, as the same has been appraised by us. (Here give a description of each parcel of real property attached, and an itemized statement of the personal property seized, setting the value opposite each item.) The following property mentioned in the above inven- tory is perishable, viz : (Give the items of perishable property.) Dated ,189 . A -R ) ■p. -Q > Appraisers. A— A—, Sheriff. No. 21H. SUPREME COURT, H — J— p— Undertaking to hold eoods on board vessel ; §§653, 653 Code. Know all men by these presents : That we, A — B — , of the of , by occupation a , and C — D — , of the of , by occupation a , are held and firmly bound in the sum of dollars, to be paid to , for which payment well and truly to be made, we bind our- APPENDIX OF FOEMS. 267 selves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents. Sealed vrith our seals, and dated this day of , 189 . Whereas, the plaintiff has, by virtue of a warrant of attachment in the above entitled action, levied upon cer- tain goods of the defendant, on board a vessel owned or claimed by and on which said goods are claimed to have been shipped for transportation, without reship- ment or transhipment, in the State, to a port or place without the State. Therefore the condition of this obligation is such that if the above named plaintiff shall pay to all expenses, damages, and charges which may be incurred by him, or to which he may be subjected, for unlading the goods from the vessel. and for all necessary detention of the vessel for that purpose; in case the plaintiff shall fail to show that said goods were placed upon said vessel after the master or owner of the vessel had actual information of the granting of the warrant ; or that he has in some wise con- nived at or been privy to the shipment thereof, for the purpose of screening them from legal process, or of hindering, delaying, or defrauding creditors ; then this obligation to be void, otherwise to remain in full force and virtue. (Signatures.) Sealed and delivered in ) the presence of ( (Justification, acknowledgment, and approval.) No. 22. SUPREME COURT— CoTJNTy of — — -,j I H— J— P— Petition for leave to commence r action ; Code, § 655. The petition of respectfully shows that is the plaintiff in the above entitled action; that heretofore, and on or about the day of , an action was commenced in this court, in which was plaintiff and was de- fendant. That on or about the day of ,189 , a 268 APPENDIX OF FORMS. warrant of attachment was duly issued in said action against the property of defendant therein, and de- livered to , Sheriff of county. That the summons in said action was served without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed by law ; and the defendant has not appeared in said action but has made default. That the amount of the indebtedness from the said defendant to the said plaintiff, as set forth in the war- rant of attachment, is the sum of $ . That a short time before the commencement of the said action, and after the contracting of the debt on which the warrant of attach- ment was founded, the said defendant assigned all his property to , to wit : that the said assignment and transfer was made by the said defendant to the said without consideration and with the intent to delay, hinder, and defraud his creditors. That the defendant has no other property out of which to satisfy the claim of your petitioner. Your petitioner therefore prays that an action may be commenced by , the Sheriff holding the aforesaid attachment, either alone or with the plaintiff, against the said to set aside said transfer, in order to apply said property to the payment of said plaintiff's claim. (Signature of petitioner.) County of , ss. : , being duly sworn, says he is the petitioner above named ; that he has read the foregoing petition, and that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged upon information and belief, and as to such matters he believes them to be true. (Signature of petitioner.) Sw'orn to before me this ) day of , 189 . \ No. 33. (Order for leave to sue.) (Title of action.) Upon the annexed petition and all the pleadings and proceedings in this action, leave is hereby given to to commence and prosecute an action in his official name as . Complaint in action by sheriff r under subd. 2 of § 655 of the Code. APPENDIX OF FORMS. 269 Sheriff of either solely or with the plaintiff in this action against to , as he may be advised in the premises as prescribed in sec. 655 of the Code of Civil Procedure. (Signature of judge.) No. 24. SUPREME COURT. A — B — , as SherifE of County, vs. J— P— , C— D— et al. The plaintiff complains of the defendant and alleges : 1. That the plaintiff is and for the last year has been the duly elected and qualified and acting Sheriff of the county of That on or about the day of ,189 , an action was commenced in this court, in which one F^ — H — ■ was plaintiff, and the defendant J — P — was defend- ant, which said action is now pending, and no judgment his been entered therein. Tliat on or about the day of , 189 , a warrant of attachment was duly issued in said action of H — against P — , against the property of the defendant therein, and delivered to this plaintiff, who is now in possession thereof. That the summons in the said action of H — against P — was served without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed by law ; and the defend- ant has not appeared in the said action, but has made default. That the amount of the indebtedness from the said P — to said H — , as set forth in the warrant of attachment, is the sum of dollars. That a short time before the commencement of the said action of H — against P — , and after the contracting of the debt on which the warrant of attachment is founded, the said P — assigned all his property to the defendants . That the said assignment was made by the said P — without consid- eration and with the intent to delay, hinder and defraud his creditors, which said fact was known to the defend- ant at the time of such assignment. That the pretended indebtedness set forth in said as- 270 APPENDIX OF FOEMS. signment as due from the defendant P- — to defend- ant D — , is fictitious. That the defendant P has no other property out of which to satisfy the claim of the said H — . II. The plaintiff, for a second cause of action, makes the facts alleged in folios 1 and 2 of the first cause of action a part of this cause of action; and further al- leges that subsequent to the contracting of said debts, and on or about the month of , 189 , the defendant P — , in anticipation of failure in business, conspired with the defendant and the defendant to dispose of his property in fraud of his creditors, and to conceal or cover up the sale, so that his creditors could not reach them, and, in pursuance of this scheme, and with intent to delay and defraud the said creditors, the said defend- ants mutually arranged and agreed that after the transfer should be made, the said property should be sold and purchased in their inetrest by the defendant ; and that the said should execute and deliver a note therefor to . That in pursuance of this agreement the defend- ant made a fi.ctitiou8 sale of said property to the defend- ant , who gave him a note therefor, which said note was given up to the said That the defendant P — has no other property out of which the claim of said H — can be satisfied. III. The plaintiff, for a third cause of action, makes the facts set forth in folios 1, 2 and 3 of the first cause of ac- tion a part hereof ; and further alleges that prior to the issuing of the attachment herein, but after the indebt- edness upon which the said warrant of attachment was founded had accrued, the defendant P — authorized a judgment to be entered, on confession, against him, in favor of the defendant , for dollars, for a pre- tended indebtedness. That thereafter, and about the day of , 189 , execution having been issued upon the said judgment, personal property of the said de- fendant P — , consisting of (describe property) , of the value of dollars, was thereunder sold, and was struck off to said defendant , at about dol- lars, a sum far less than its real value ; who thereupon took possession and is now in pos- session of the same. That thereafter, and on or about the day of , 189 , real property of said defendant P — , consisting of (describe property) was sold, under an execution issued upon said judgment, and was struck off to the said defendant , also at a APPENDIX OF FORMS. 271 price much below its real value. That the said last- mentioned judgment was fraudulently confessed by the said P — to the said , and for the purpose of cover- ing up his said property, and defrauding the plaintiff, H — in the collection of his demand. That said defendant P — was not indebted to the defendant to the amount claimed, but said judgment was con- fessed, and the sale of the property was made with the intention on the part of both of defrauding the creditors of the defendant P — , and of transferring the ostensi- ble ownership and possession of the property of said P — , liable to execution, to said defendant , so as to prevent the creditors of said P — from reaching it. Wherefore, the plaintiff demands judgment against the defendants. I. That the said sale by the defendant P — to the said , and the said assignment by the defendants to the defendant may each be declared void as against this plaintiff. II. That the said judgment in favor of the defendant , and the proceedings and sale under it, be set aside and declared void. III. That the defendants, and each of them, be ad- judged to account for all the property received by them, or either of them, under either the sale, confession of judgment or assignment, and for all the proceeds arising from the sale thereof, and that the same may be taken upon the warrant of attachment held by plaintiff. IV. For such other, further or different relief as to the court may seem meet. Plff's Att'y, M , N. Y. No. 25. SUPREME COURT. A — A — , as Sheriff of County, and F— N— Complaint in action by plaintiff vs. }■ jontly with Sheriff, Code §§ ■ 655, 677. J- P- J The plaintiff complains and alleges: That the plaintiff A— A — , as Sheriff of , was at all the times herein- 272 APPENDIX OF FORMS. after mentioned the duly elected, qualified and acting Sheriff of That heretofore and on or about the day of , 189 , in an action in court, in which the plaintiff was plaintiff and was defendant, a warrant of attachment was duly issued against the property of the said and deliveied to said Sheriff, who by virtue thereof did on or about the day of , 189 , duly levy upon the following property, viz.: (insert descrip- tion of property). That said property at the time of such levy was and now is the property of , the defendant in the action in which the said warrant of attachment was issued. That at the time of the levy of the said warrant as aforesaid the said property was (set forth a cause of action against the defendants). That on the day of , 189 , upon application duly made on his behalf, the plaintiff was by an order made by Hon. granted leave to prosecute this action in the name of himself and the said Sheriff jointly. Wherefore the plaintiffs demand judgment (here insert demands for judgment or relief). (Signature of attorney for the plaintiff F— H— .) (Verification.) No. 26. SUPREME COURT— Cdtjnty op F— H— ~j Petition of Sheriff for leave to J ' discontinue action ; Code, § 655. J— P— The petition of respectfully shows that he is Sheriff of the county of ; that on or about the day of , 189 , an order was obtained from Hon. , one of the justices of this court, allowing your petitioner to commence an action against the above named defend- ant, reference to which said order is hereto had and the same is made a part of this petition. Your petitioner further shows that in pursuance of saidoj'deron or about the day of , 189 , he duly commenced the above APPENDIX OP FOKMS. 273 entitled action, and has since prosecuted the same, as prescribed by sec. 655 of the Code of Civil Procedure. That since the commencement of this action, the claim mentioned and described in the warrant of attachment, for the collection of which this action was brought, has been fully paid and satisfied. Your petitioner therefore prays that he may have an order allowing him to discontinue such action, and for such other, further or different relief as to the court may seem meet. (Verification of petition.) (Signature of petitioner.) No. 27. SUPREME COURT— County op ~1 I Order to show cause why the I Sheriff should not be allowed [ to discontinue action; Code, J- P- § 655. Upon the annexed petition and all the pleadings and proceedings in this action, let show cause before me at my chambers, in the of , on the day of , 189 , at A. M., why the plaintiff in this action should not have leave to discontinue the above entitled action. Let this order and the annexed petition be personally served upon , on or before six P. M., on the day of , 189 , and such services shall be deemed sufficient. (Signature of judge.) No 28. SUPREME COURT— CotJNTT op F— H— j ! Order allowing discontinuance ^*- j of action; Code, § 655. J— P— An order to show cause having been heretofore issued, returnable at this time and place, requiring to show 18 274 APPENDIX OF FORMS. cause why the plaintiflf herein should not have leave to discontinue the above entitled action, Now, upon reading and filing the petition verified on the day of , 189 , the order to show cause with proof of service thereof, and after hearing , of counsel for plaintiff, and , of counsel for , Ordered, that the plaintiff may and is hereby allowed to discontinue the above entitled action upon his paying to the sum of $ , (or upon his paying to the costs of this action, to be taxed by the clerk of this court as prescribed by law). (Signature of judge.) No. 29. SUPREME COURT. H— J— P- Affidavit for order for sale of perishable propertv; Code, § 656. County of , ss.: — — , being duly sworn, says: That he is ; that certain property taken by the Sheriff upon a warrant of attachment heretofore issued in this action, is perishable, as appears by the inventory made and filed, reference to which is hereto had and the same is made a part of this affidavit. That the value of said property will depreciate by keeping, and that it does not; nor does any part of it, consist of a vessel. That the following parties are junior attaching creditors, viz.: ; wherefore, your deponent prays that an order may be granted directing the Sheriff to sell said personal property. (Signature of affiant.) Sworn to before me, this day of , 189 . No. 30. (Notice of motion.) (Title of action.) Take notice, that upon the annexed affidavit, the inventory made and returned herein, and all the plead- APPENDIX or FOKMS. 275 ings and proceedings in this action, the undersigned will apply to Hon. , the judge who granted the warrant of attachment herein, at his chambers, in the city of , on day of , 189 , at 10 A. M., for an order for the sale of the perishable property mentioned in the inventory made and returned by the Sheriff herein. Dated , 189 . To . (Signature of attorney.) No. 31. SUPREME COURT. F— H— vs. J— P— Order for sale of perishable property; Code, g 656. It appearing to me, by the inventory made and returned under the warrant of attachment herein, and by the affi- davit of , that the following property mentioned in said inventory and affidavit as perishable, viz. : (describe the property). It also appearing that notice of the application for this order has been given to ; It is therefore, ordered, that the said property be sold by the Sheriff at public auction, at the , in the city of , on the day of , 189 , at 10 A. M. of said day, after advertising the said sale for days in the newspaper, and written notice thereof being posted in three conspicuous places in said for at least ten days before such sale. Dated , 189 . (Signature of judge.) No. 32. SUPREME COURT. F- - H— J- vs. Notice where a third - claims the property; 657, 658. person Code. §§ Take notice, that E— D— makes claim to the property taken by me under the warrant of attachment issued in 276 APPENDIX OP POEMS. this action, in favor of the plaintiff against the defend- ant, and that I shall proceed to try the claim of the said E — D — before a jury to be summoned for that purpose on the day of , 189 , at 10 A. M., at the Yours, &c., j^ ^ Sheriff of ToE— D— , claimant ; F— H— , plaintiff, and J— P— defendant. No. 33. (Oath to jurors.) You and each of you do swear that you will well and truly try the claim of E — D — to the following prop- erty : (describe property), and a true inquisition make according to the evidence. So help you Grod. No. 34. (Oath to witnesses.) You do swear that the evidence that you shall give in the matter of the claim of E — D — , to the personal prop- erty mentioned in the inventory of the property attached to this action, to wit : (describe property), shall be the truth, the whole truth and nothing but the truth. So help you Grod. No. 35. SUPREME COURT. 1 I I F— H— vs. V J- P— ► Inquisition under Code, § 658. We, the undersigned, being a jury summoned and sworn by A — A — , the Sheriff of county, under sec- APPENDIX OF FORMS . 277 tions 657, 658 of the Code of Civil Procedure, to try the claim of E— D— to the property taken by said Sheriff, under a warrant of attachment, in favor of F— H— against J— P— , to wit : (describe the property in dispute), do say upon our oaths that the title to the said property is in the said Witness our hands and seals this day of , 189 . (Signature of jurors.) No. 36. SUPREME COURT. F— H— vs. J— P— Undertaking of indemnity; ^ Code, § 658. Know all men by these presents, that we, J- — H — and H — E — , are held and firmly bound unto A — A — , Sheriff of county, in the penal sum of dollars, to be paid to the said A — A — , or to his representatives or assigns, for which jjayment, well and truly to be made, we bind ourselves, our representatives and heirs, jointly and severally by these presents. Sealed with our seals. Dated the day of , 189 . Whereas, a warrant of attachment in favor F — H — was issued in this action, against J — P — , for dol- lars, to the said A — A — , Sheriff of , county ; and, whereas, the said A — A — , as such Sheriff, did levy upon certain goods and chattels, under such warrant, supposed by him to belong to the said defendant, J — P — , but which were claimed by E — D — , and a jury duly called for that purpose having found that the title of said property was in the said claimant, and the said plaintiff refusing to assent that said property be released from such levy, but insisting that the said Sheriff should retain such levy under Ms warrant; Now, therefore, the conditions of this obligation is such that if the above bounden J — B — and H — D — shall at all times well and truly keep and save harmless, and indemnify the said A — A — , Sheriff as aforesaid, and all and_ every person or persons aiding and assisting him in the premises, from and against all damages, costs, charges, 278 APPENDIX OF FORMS. trouble and expense of whatsoever nature, which he, they or any of them may be put to, sustain or suffer by reason of such levy, then this obligation to be void, otherwise to remain in full force. Sealed and delivered in ) (Signature of sureties.) the presence of ) (Add acknowledgment, affidavit of sureties and approval.) No. 37. SUPREME COURT. F— H — vs. J— P — Notice of justification of sure- ties ; Code, § 658. Take notice of an undertaking filed in the County Clerk's office, of which the within is a copy; also take notice that the sureties upon said undertaking will jus- tify before Hon. , at his chambers in , on the day of , 189 , at 10 A. M. of said day. Yours, &c., j^ ^ Sheriff of ToF — H — , plaintiff's attorney, E — J) — , claimant. No. 88. SUPREME COURT. I Claim to domestic vessel at- ' tached ; Code, § 660. J To The petition of respectfully shows : That he is the owner of , a vessel belonging to , a port or place in the United States ; that heretofore and on or about the day of , 189 , the said vessel was seized and F- - H — vs. J — P— APPENDIX OF FORMS. 279 taken by virtue of a warrant of attachment in favor of J— M — against J— F— . Your petitioner therefore prays that three indifferent persons be appointed to make valuation of said vessel, and the interest of your petitioner therein. (Signature of petitioner.) County of , ss.: — — , being duly sworn, says he is the above named petitioner ; that he has read the foregoing petition, and that the same is true to the knowledge of deponent. (Signature of petitioner.) Sworn to before me this " day of , 189 . No. 39. (Notice of motion.) (Title of action.) Take notice that upon the annexed petition, and all the pleadings and proceedings in this action, the under- signed will apply to Hon. , at his chambers, in the city of , on the day of , 189 , at A. M. for the appointment of three indifferent persons to make valuation of , a domestic vessel attached in this action. Dated , 189 . Yours, &c., S— J— . To F — H — , plaintiff's attorney, and J — P — , defend- ant. No. 40. SUPREME COURT. F— H— ■us. J— P— Order appointing appraisers; Code, § 660. A warrant of attachment having been granted in this action against the property of the defendant, and the , a vessel belonging to a port or place in the United 280 APPENDIX OF' FORMS. States, or a share or interest therein, having been seized by the Sheriff of under and by virtue of such war- rant, wliich vessel or share is claimed by of as his property ; It is hereby ordered, that A — B — , B — C — and E — D — , three indifferent persons be and they hereby are appointed to make a valuation thereof, as prescribed by section 661 of the Code of Civil Procedure. Dated , 189 . (Signature of judge.) No. 41. SUPREME COURT. H- J— P- Certificate of valuation of do- mestic vessel and oath of appraisers; Code, § 661. The undersigned having been appointed by an order of , dated the day of ,189 , to make a valua- tion of , a vessel, or a share or interest therein, as prescribed by section 661 of the Code of Civil Procedure, do hereby certify that we have examined the said vessel, and have appraised and fixed the value of the same, and the share or interest of the claimant J — B — , and the value of each share or interest, and we find ,the value to be as follows: (specify the value of the whole or the shares). (Signatures of appraisers.) County of , ss. : A — B — , C — D — , and E — F — , being severally sworn, each for himself deposes and says: That the valution of , the vessel, share or interest set forth in the above certificate subscribed by him, is in all respects Just and fair, and that the value of the vessel, share, or interest is truly stated therein, according to the depo- nent's belief. (Signatures of appraisers.) Sworn to before me this ' day of , 189 . APPENDIX OF FORMS. 281 No. 42. SUPREME COURT. F— H— 1 ^,s_ I Undertaking by claimant of I domestic vessel; Code, § 662. iiZi J Know all men by these presents : That we, J— B— , of the , by occupation a , and E— D— , of , by occupation a , and G— B— , of , by occupation a , are held and firmly bound in the sum of dollars, to be paid to the people of the State of New York, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and assigns, jointly and severally. Sealed with our seals, and dated this day of , 189 . The condition of this obligation is such that if the above bounden J — B — shall, in an action to be brought on this undertaking, establish that he was the owner of , a vessel, share or interest therein, heretofore seized under a warrant of attachment, granted by Hon. , at the time of such seizure ; or in case said J — B — shall fail to establish such ownership on his part, as aforesaid, if he shall pay on demand the sum of dol- lars, the amount fixed as the valuation, with interest from the date of the undertaking, to the Sheriff of the county of ; or, if the warrant is vacated or annulled, to the defendant or his personal representative, then this obligation to be void, otherwise to remain in full force and virtue. (Signatures of sureties.) Sealed and delivered in ) presence of j (Acknowledgment, justification and approval.) No. 43. SUPREME COURT - -County of J- H- vs. ^Peti r do J— p- Petition for order of discharge of domestic vessel; Code, § 663. The petition of respectfully shows that he is the owner of , a vessel belonging to , a port or place in 282 APPENDIX OF FORMS. the United States; that heretofore and on or about the day of , 189 , the said vessel was seized and taken by virtue of a warrant of attachment, in favor of against ; that on or about the day of , 189 , your petitioner obtained an order from Hon. appointing appraisers to make valuation thereof, as prescribed by section 661 of the Code of Civil Procedure, which said order is hereto annexed and forms a part of this petition. That on or about the day of , 189 , the said appraisers appraised and fixed the value of said vessel, which said appraisement, with the oaths attached thereto, is hereby annexed and forms a part of this petition. Your petitioner further states that on or about the day of , 189 , he caused an undertaking, as pre- scribed by section 662 of the Code of Civil Procedure, to be duly executed and delivered, as therein prescribed, a copy of which undertaking is hereto annexed and forms a part of this petition. Your petitioner, therefore, prays for a rule or order discharging the said warrant of attachment from said vessel. (Signature of petitioner.) County of , ss.: . being duly sworn, says that he is the petitioner above named; that he has read the foregoing petition, and that the same is true to the knowledge of deponent, except as to matters therein stated to be alleged upon information and belief, and as to such matters he believes them to be true. (Signature of petitioner.) Sworn to before me, this ' day of , 189 . No. 44. SUPREME COURT — County op 1 H- Order to show cause for release of domestic vessel. Upon the annexed petition and all the pleadings and proceedings in this action, let show cause before APPEKDIX OF rOBMS. 283 me at my chambers in the of on the day of , 189 , at A. M., why the in this action should not have an order discharging , a domestic vessel. Let this order and the annexed petition be per- sonally served upon on or before six P. M., on the day of , 189 , and such service shall be deemed sufficient, (Signature of Judge.) No. 45. SUPREME COURT— County of F— H- J— P— 1 Order for discharge of domes- tic vessel. An order to show cause having been heretofore issued, returnable at this time and place, requiring to show cause why herein should not have an order discharg- ing the vessel, in his said petition described, from the warrant of attachment herein ; Now, upon reading and filing the petition of , verified on the day of , 189 , the order to show cause with proof of service thereof, and after hearing , of counsel for plaintiflF, and of counsel for , Ordered, that the vessel be and it hereby is dis- charged from the lien of the aforesaid attachment. (Signature of judge.) No. 46. (Sheriff's release.) (Title of cause. ) By virtue of the within order, I do hereby release the , a domestic vessel, from a warrant of attachment held by me, in an action entitled court, F — ■ H — against J — D — . Dated , 189 . J. B., Sheriff of 284 APPENDIX OP POEMS. No. 47. SUPREME COURT. F— H— vs. J— P- Applioation for prosecution of )- undertaking under Code, § 664. The ijetition of respectfully shows that he is the plaintiff in the above entitled action ; that heretofore and on the day of , 189 , a warrant of attachment herein was duly issued and delivered to , Sheriff of county ; that by virtue of said warrant the said Sheriff seized , a vessel, belonging to a port or place in the United States, or a share or interest therein, as that of the defendant herein. That afterwards and on or about the day of , 189 , on the application of one J — P— , claiming title thereto, an order was duly made by appointing , and , three indifferent - persons to make valuation thereof, and afterwards and on or about the day of , 189 , said persons made valuation of said vessel or the share or interest taken upon said warrant of attachment, and made a report as prescribed by section 661 of the Code, and returned the same to the court (or judge). That thereafter and on or about the day of , 189 , the said J — P — caused an undertaking to be executed to the said Sheriff, as pre- scribed in section 662 of the Code, copies of which said valuation and undertaking are hereto annexed, and form a part of this petition. That upon the giving of said undertaking an order was duly made by direct- ing the said vessel (or share) to be discharged from the attachment. Your petitioner, therefore, prays for a rule or order directing the said Sheriff to commence an action upon the said undertaking, and for such other and further relief as to the court may seem meet. Dated , 189 . (Signature of petitioner.) (Add verification. ) APPENDIX 01 FOBMS No. 48. SUPREME COURT. F— H — vs. Order fo r takin J— P- 285 taking under Code, § 664. It appearing to me by the petition of , the plaintiff, that a certain vessel known as , or a share therein, was heretofore seized by the Sheriff of , upon a warrant of attachment in the above entitled action ; that it was af- terwards claimed by one J — P — , and that the value thereof was afterwards duly fixed by the appraisal of three indifferent persons as prescribed by sections 660, 661 of the Code ; that afterwards the said J — P — caused an undertaking, as prescribed by section 662 of the Code, to be executed and delivered to the said Sheriff ; Now, upon reading and filing the petition of , and upon motion of , attorney for the plaintiff, ordered, that , Sheriff of , be and he hereby is directed to commence an action upon the undertaking, in his name as Sheriff, upon the plaintiff's executing and delivering to said Sheriff a bond of indemnity with one surety ap- proved by me, in the penal sum of two hundred dollars,, for the costs of said action. (Signature of judge.) No. 49. SUPREME COURT. A — A — , as Sheriff of Complaint in action by Sheriff^ vs. }- upon undertaking ; Code, § 664. J— P— , E— R— , and C— D— . The plaintiff complains of the defendant and alleges : 1. That at the time of the issuing of the warrant of attachment hereinafter mentioned, the plaintiff was and is now the Sheriff of the county of . That on or about the day of , 189 , in an action brought in this court, in the county of , by one , as plaintiff. 286 APPENDIX OF FORMS. against , defendant, a warrant of attachment in favor of said plaintiff against the property of the said defend- ant was duly issued by , and delivered to this plaintiff. That thereafter and on or about the day of , 189 , by virtue of said warrant of attachment, this plaintiff duly levied upon a vessel, belonging to a port or place in the United States, or a share or interest therein. That thereafter and on or about the day of , 189 , one made claim to said vessel, share or interest, and such proceedings were therein had that on or about the day of , 189 , an order was duly made by appointing three indifferent persons, as appraisers, to fix the value of said vessel, share or interest therein levied upon as aforesaid. That there- after the said persons appointed to fix the value of said vessel made as aforesaid and returned to the said , the value of the said vessel (or the share or interest attached). That thereafter and on or about the day of , 189 , the defendants executed and delivered to this plaintiff an undertaking, a copy of which is hereto annexed, and forms a part of this complaint. That afterwards, and on or about the day of , 189 , upon the application of the attaching creditor , an order was duly made by directing this plaintiff to prosecute said undertaking, which said order is hereto annexed and forms a part of this complaint. That the value of the said vessel, share or interest, attached, was fixed by the said at dollars, and the said value is fixed at said value by the said undertaking. That by reason of the premises the defendants became and are indebted to the plaintiff in the sum of dol- lars, which before the commencement of this action became due and payable and remains wholly unpaid. Wherefore the plaintiff demands judgment in his favor and against the defendants for dollars, with interest on the same from the day of , 189 . E— D— , Plaintiff's Attorney, ]S^. Y. APPENDIX OF POEMS. 287 No. 50. SUPREME COURT— County op F— H— 1 1 vs. 1 y Answer under Code, § 665, J— P— The defendant answers the plaintiff's complaint herein as follows : 1st. The defendant denies the said complaint and each and every allegation therein contained, except as herein- after expressly admitted. 2nd. The defendant admits that the plaintiff is the Sheriff of the county of ; admits that on or about the day of , 189 , in an action brought in this court, in the county of , by one , as plaintiff, against defendant, a warrant of attachment in favor of said plaintiff against the property of said defendant was daly issued and delivered to the plaintiff herein ; admits that on or about the day of , 189 , the plaintiff duly levied upon a vessel, belonging to a port or place in the United States ; admits that defendant made a claim to said vessel, share or interest, and such pro- ceedings were thereafter had that on or about the day of , 189 , the value of said vessel was duly fixed by appraisers duly appointed for that purpose ; admits that thereafter and on or about the day of , 189 , this defendant executed and delivered to the plaintiff herein an undertaking and thereupon obtained an order discharging said vessel from the lien of said warrant of attachment. 3rd. The defendant, for a third answer herein avers that at the time the said warrant of attachment was levied upon said vessel he was the owner thereof and of the share and interest attached. Wherefore the defend- ant demands judgment for the dismissal of plaintiff's complaint with costs. J— B— , Defendant's Attorney, , N. Y. 288 APPENDIX OF FORMS. No. 61. SUPREME COURT — County of F— H — vs. J— P — Application by claimant of foreign vessel ; Code, § 666. To The petition of respectfully shows that he is the owner of , as appears by the annexed affidavits (or that he is the agent of , of , whom he believes to be the owner of the vessel). Your petitioner therefore prays that three indifferent persons be appointed to make valuation of said vessel as prescribed by sections 660, 661 of the Code of Civil Pro- cediire. (Verification.) (Signature of petitioner.) No. 52. SUPREME COURT. H— J— P— Affidavit for order to fix valua- J- ation of foreign vessel; Code, S 666. County of , ss. : , being duly sworn, says he is the agent of A — B — of , who resides at , and is not now within this State. That the belongs to the said A — B — , as deponent is informed, and the following is deponent's information (insert information, &c.). That J — P — , the defendant in the above entitled action, has not now, had not at the time the attachment in the above entitled action was issued, and never had any right, title, claim, share or interest in or to the said vessel or appurtenances. That on or about the day of 189 , the Sheriff of seized upon the said vessel, and claims to hold the same by virtue of a warrant of attach- ment in this action. That the said vessel belongs to a foreign port, to wit, to the port of APPENDIX OF FORMS. 289 The deponent, therefore, prays that an order be granted herein, appointing three indifferent persons to make valuation of the said vessel, as prescribed by section 661 of the Code of Civil Procedure." (Signature of affiant.) Sworn to before me this " day of , 189 . No. 63. (Notice of Motion.) (Title of action. ) Take notice, that upon the annexed affidavits, and upon all the pleadings and proceedings in this action, the undersigned will apply to Hon. , at his chambers, in the city of on the day of , 189 , at 10 A. M., for an order appointing three indifferent persons to make value of the vessel described in the annexed affidavit, as prescribed by section 661 of the Code of Civil Pro- cedure. Dated , 189 . Yours, &c., A— B— . To F— H— , plaintiff, J— P— , defendant. (Order the same as No. 40.) SUPREME COURT. No. 54. F— H — vs. J— P — - Undertaking by plaintiff to hold foreign vessel ; Code, § 668. Know all men by these presents : That we, A — B — , of , by occupation a , B — C — , of , by oc- cupation a , and D — E— , of , are held and firmly bound unto (claimant) in the sum of dollars, for which payment, well and truly to be made, we bind ourselves, our heirs and representatives, jointly and severally. 19 290 APPENDIX OF FORMS. Sealed with our seals, and dated the day of , 189 . Whereas, the above bounden F — H — has commenced an action against J — P — , in which action a warrant of attachment has been issued against the property of the said J — P — under the Code of Civil Procedure ; And whereas, the Sheriff of has, under said warrant, seized a certain vessel called the , claimed to belong to a for- eign port, to wit, the port of , and which vessel the said claims to be the owner ; And whereas, upon such claim having been made in due form of law, three indifferent persons were appointed by , who have fixed the value the said vessel, with her appurtenances, as re- quired by sections 661 and 666 of the Code of Civil Pro- cedure, at the sum of dollars, and three days not having elapsed since such valuation was made ; Now, therefore, the condition of this obligation is such that if the said shall pay such damages as may be recovered for seizing the vessel, share or interest attached, in an action brought against the Sheriff, or the plaintiff in the attachment, within three months from the approval of this undertaking, if it appears therein that the above named was the owner of the said vessel at the time the said warrant of attachment issued ; then this obliga- tion to be void, otherwise to remain in full force and vir- tue. (Signature of sureties.) Sealed and delivered ) in presence of f (Acknowledgment, justification, and approval. ) No. 55. SUPREME COURT. F— H- vs. J— P- Order discharging foreign ves- " sel for want of undertaking, Code; § 669. On reading and filing the return of the three indiffer- ent persons appointed by , to value the , a foreign vessel, as prescribed by sections 661 and 666 of the Code of Civil Procedure, and upon proof of service of such appraisal upon the plaintiff' s attorney, and it appearing APPENDIX OF FORMS. 291 by the affidavit of that the undertaking prescribed by section 668 of the Code has not been furnished within three days after such service; It is ordered, that the said vessel be and it hereby is discharged from the warrant of attachment of the SherijBf of , and the Sheriff is directed to deliver said vessel to or his agents, according to law. Dated , 189 . (Signature of judge.) No. 56. SUPEEME COURT. F— H— I Petition by defendant for pos- j session of vessel ; Code, § 670_ Iz J To The petition of respectfully shows that he is the defendant above named. That heretofore and on or about the day of ,189 , a warrant of attachment in this action was duly issued and levied upon a vessel named , as the property of your petitioner. That after- wards and on or about the day of , 189 , upon the application of one , claming the said vessel, an order was duly made by appointing three indifferent persons to make the value of the vessel, share or interest, attached, and afterwards the said appraisers made and returned their appraisal of said vessel, as prescribed by section 661 of the Code, whereupon the plaintiff exe- cuted and delivered to said an undertaking as prescribed by section 668 of the Code ; that afterwards and on or about the day of , 189 , the warrant of attachment under which said vessel, share or interest, was seized, was duly vacated, or annulled, or discharged as to such vessel, share or interest, attached. (That prior to the vacating of such attachment the said vessel, or share or interest, attached was, by an order of this court, sold, and the proceeds thereof is held by the Sheriff of .) Your petitioner therefore prays for an order directing the said Sheriff to deliver the said to your petitioner, 292 APPENDIX OF POEMS. upon his delivering to the Sheriff an undertaking as prescribed by section 670 of the Code of Civil Procedure. Dated , 189 . (Signature of petitioner.) (Add verification.) No. 57. (Notice of motion.) (Title of action.) Take notice, that upon the annexed petition and upon all the pleadings and proceedings in this action, the under- signed will apply to , at his chambers, in the city of , on the day of , 189 , at A. M., for an order directing the Sheriff of to deliver to defend- ant the , a vessel attached by vou. Dated , 189 . (Signature of defendant's attorney.) To F— H— , Plaintiff's attorney. A— A—, Sheriff. No. 58. SUPREME COURT— County of F— H— vs. J- P- Order directing foreign vessel delivered to defendant; Code, §671. Upon reading and filing the petition of , verified on the day of , 189 , the notice of motion veith proof of service thereof upon , the affidavit of , verified on the day of , 189 , and after hearing , of counsel for the petitioner, and , of counsel for the plaintiff ; Ordered, that , a foreign vessel, be and the same is hereby discharged from the warrant of attachment herein. It is further ordered, that upon the service of a copy of this order upon , Sheriff of , the said Sheriff deliver to the petitioner a certificate discharging said vessel as aforesaid. (Signature of judge.) APPENDIX OF FOEMS. 293 No. 59. SUPREME COURT. F— H— J— p— Petition for sale of vessel ; Code, g§ 671, 673, 673. J To The petition of F— H— respectfully shows : That heretofore and on or about the day of , 189 , upon a warrant of attachment duly issued in this action and delivered to , Sheriff of county, the said Sheriff seized . That afterwards upon the applica- tion of one claiming said vessel to belong to a foreign port, three indifferent persons were duly appointed to make the valuation thereof, as prescribed by section 661 of the Code of Civil Procedure ; that afterwards and on or about the day of , 189 , the persons so ap- pointed made and returned an appraisal of said vessel, whereupon your petitioner caused an undertaking, as prescribed by section 668 of the Code, to be executed and filed. That more than one month has elapsed since said undertnking was approved by , and said undertaking has not been discharged, nor has your petitioner been indemnified, by the defendant as prescribed by section 670 of the Code. Wherefore, your petitioner prays for an order direct- ing the said Sheriff to sell said vessel, and pay the pro- ceeds of such sale to the sureties upon your petitioner's said undertaking for their indemnity. (Signature of petitioner.) (Verification.) No. 60. SUPREME COURT. 1 F— H- vs. J— P- 1 Order for sale of vessel; Code, I S 671. §671. It appearing to me, by the petition of , that, by virtue of a warrant of attachment in this action, the Sheriff of county duly seized a vessel named the 294 APPENDIX OF FORMS. That afterwards upon the application of , claiming that said vessel did not belong to any port of the United States, but that it belonged to , such proceedings were thereupon had, that the value of said vessel was duly made, as prescribed by section 661 of the Code, and afterwards the plaintiff gave to said an undertaking, as prescribed by section 670 of said Code ; that more than thirty days have elapsed since said undertaking was approved and said undertaking is not discharged, and the plaintiff has not been indemnified. After hear- ing , of counsel for petitioner, in favor of an order directing that said vessel be sold by the Sheriff of county, and , of counsel for , opposed ; Ordered, that the be sold by at public auction, and the proceeds, after paying the expenses of the sale, be paid to . It is further ordered, that notice of said sale be published in for six weeks prior to said sale, and copies of said notice posted in ten conspicnous places in the city of , fifty days prior to the time of said sale. (Signature of judge.) No. 61. SUPREME COURT. F— H— Application by plaintiff for leave vs. 1- to sue in name of himself and Sheriff ; Code, §§ 677, 678. J— P— To The petition of F — H — respectfully shows : That on or about the day of , 189 , in the above entitled action, upon an application made by your petitioner, a warrant of attachment was duly granted by , and delivered to , as Sheriff of , and the said Sheriff holds said warrant. That by virtue of said warrant, the said Sheriff levied upon certain property of the defend- ant, in the possession of one ; that said now has the possession of said property, and claims some interest in the same. That the said Sheriff has demanded of him that he deliver the said property (Set forth any of the causes mentioned in section 655 of the Code of Civil Procedure), but he refuses to do so. APPENDIX OF FORMS. 295 That your petitioner has fully and fairly stated the case to , his counsel, who resides at , in the , and that he, said Sheriff, has a good and substantial cause of action thereupon against said , as he is advised by his said counsel after such statemeni, and verily believes. That said cause of action more fully appears by the complaint hereto annexed, and which forms a part of this petition. Your petitioner further shows that notice of an appli- cation for an order allowing plaintiff to bring an action against , jointly with the Sheriff, has been duly served upon , junior attaching creditors, as appears by the affidavit of , hereto annexed. Your petitioner further shows that , the Sheriff aforesaid, is willing that your petitioner may have an order giving him leave to bring an action, as provided by section 677 of the Code of Civil Procedure, as appears by the consent of said Sheriff hereto annexed, and which forms a part of this petition, (or annex notice to the Sheriff and proof of service thereof upon him). Wherefore, your petitioner asks that he may have a rule or order giving him leave to bring and maintain, in the name of himself and the said Sheriff jointly, by his own attorney, and at his own expense (the action al- leged in the annexed complaint), an action against , for Dated , 189 . (Signature of petitioner.) (Verification as of a pleading.) No. 62. SUPREME COURT. F— H— J— P— Order for leave to sue jointly " with Sheriff ; Code, §§ 677, 678. On reading and filing the petition of , verified on the day of , 189 , for leave to prosecute an action jointly with the Sheriff of , against , as prescribed by section 677 of the Code of Civil Procedure, notice of such application to and proof of service thereof, and 296 APPENDIX OF FOEMS. on hearing , of counsel for the petitioner, and , of counsel for , Ordered, that the petitioner be per- mitted to prosecute said action in the name of himself and the said Sheriff jointly, by his own attorney, and at his own expense. It is further ordered, that the proceeds of said action, if any, other than costs recovered therein must be paid to the said Sheriff ; and that the said Sheriff shall not be liable for the costs or expenses of said suit. It is further ordered (here insert any condition as to undertaking to indemnify the Sheriff or other party). Dated , 189 . (Signature of judge.) No. 63, SUPREME COURT. F— H— J— P— I Affidavit by defendaot to vacate y attachment upon the plaint- I iff 's papers ; Code, § 683. J County, ss.: J — P — , being duly sworn, says : He is the defendant above named ; that heretofore and on or about the day of , 189 , a warrant of attachment was granted in this action and delivered to the Sheriff of ; that said Sheriff claims that by virtue of said warrant of attach- ment he did on or about the day of , 189 , levy upon and seize deponent's property ; that on the day of , 189 , the said Sheriff delivered to deponent copies of said warrant, and the papers upon which it is alleged that it was granted. (Signature of affiant.) Sworn to before me this day of , 189 . No. 64. (Notice of motion.) (Title of cause.) Take notice, that upon the annexed affidavit and upon all the pleadings and proceedings in this action, includ- APPENDIX OF FOKMS. 297 ing the papers and affidavit upon which a warrant of attachment in this action was heretofore granted the undersigned will move at a special term of this court, set down to be held at the court house, in the city of on the day of , 189 , at A. M. of said day, for a rule or order, I. Vacating the warrant of attachment issued herein. II. Setting aside said warrant of attachment upon the ground that (state irregularity). III. For such other, further or different relief as to the court may seem meet, with costs of this motion. Dated , 189 . Yours, &c., (Signature of defendant or his attorney.) To , Plaintiff's attorneJ^ No. 65. (Application by defendant to discharge warrant ; Code, §687. (Title of cause.) To The petition of respectfully shows : That he is the defendant above named ; that he has duly appeared herein ; that heretofore and on or about the day of , 189 , a warrant of attachment was issued in this action against your petitioner's property, and delivered to the Sheriff of ; that said Sheriff, claiming to act by virtue of said warrant, did on or about the day of , 189 , seize the following property of your peti- tioner, viz : (insert description of property). That your petitioner has caused to be executed an undertak- ing, as prescribed by sectioil 688 of the Code of Civil Procedure, which said undertaking is hereto annexed and forms a part of this petition. Wherefore, your petitioner prays for an order discharg- ing said property from the lien of said warrant of attach- ment, and for such other, further and different relief as to the court may seem meet. (Signature of petitioner.) (Verification as in case of a pleading.) 298 APPENDIX OF FORMS No. 66. (Notice of motion.) (Title of cause.) Take notice, that upon the annexed petition and all the pleadings and proceedings in this action, the undersigned will apply to Hon. , at his chambers, in the city of , on the day of , 189 , at A. M., for an order discharging the warrant of attachment in this ac- tion on giving security according to the provisions of section 688 of the Code of Civil Procedure. Dated , 189 . Yours, etc., (Signature of defendant or his attorney.) To , Plaintiffs attorney. No. 67. COURT. TT XT I I Undertaking by partner to re- ! lease the interest of a copart- ( nerfrom thelevyof an attach- T p I ment ; Code, § 694. , ^I_Zl J Whereas, the above named defendant and one , own the following property as copartners, viz : (describe the property attached), and whereas, the value of the interest of the defendant in said goods and chattels has been fixed at the sum of dollars ; and whereas, the said interest of the defendant has been levied upon by the Sheriff of , by virtue of a warrant of atta,chment issued in this action, In favor of the plaintiff herein ; and whereas, the said desires a discharge of said attach- ment from said goods and chattels on giving the security required by section 694 of the Code of Civil Procedure; Now, therefore, we,. A — B — , of , by occupation a . , and C — I) — , of , by occupation a , do jointly and severally undertake that we will pay to Sheriff of , on demand, the amount of any judgment which may be recovered against , defendant, in the action in which the said attachment was issued, or which may be recovered against him, in any other action, wherein the said (claimant, is not defendant, and wherein a warrant of attachment, or an execution, may come to APPENDIX OF FORMS. 299 the said Sheriff's hands, at any tine before the warrant of attachment in this action is vacated or annulled, nat exceeding the sum of dollars. Dated , 189 . (Signature of sureties.) (Add acknowledgment, justification and approval.) No. 68. (Order discharging warrant of attachment on security.) (Title of cause.) On reading and filing the petition of , the defend- ant in the above entitled action, asking for the discharge of the warrant of attachment herein, notice of applica- tion and proof of service thereof upon the plaintiff herein, and upon motion of , of counsel for defend- ant. Ordered, that the warrant of attachment issued in this action be and the same is hereby vacated, upon the defendant giving an undertaking in the penal sum of dollars, with two sufficient sureties approved by me, in the form and for the purpose provided by sec- tion 678 of the Code of Civil Procedure. It is further ordered, -that upon a copy of such undertaking and of this order being duly served upon the Sheriff of , that he pay and deliver to the defendant any and all property levied upon and all proceeds of sales and moneys collected by him. (Signature of judge.) No. 69. COURT. A— B— . as Sheriff of County, vs. J— P— , C— D— et al. : Petition of partner for release of " property attached ; Code, §§ 693, 694. To The petition of respectfully shows : That he is a partner of the defendant, in the ownership of the following goods and chattels : (describe the goods). 300 APPENDIX OF FORMS. That heretofore and on or about the day of , 189 , the said goods were levied upon by a warrant of attachment, issued in this action in favor of the plaint- iff against the defendant. That final judgment has not been taken herein. That the defendant has only a one-fourth interest in said goods and chattels, and your petitioner is the owner of a three-fourths interest in the same. That the value of the defendant's interest in said goods and chattels does not exceed the sum of dollars. Wherefore, your petitioner prays that he may have an order discharging the said warrant of attachment from the said goods so attached, upon his giving an under- taking as prescribed by section 694 of the Code of Civil Procedure. Dated , 189 . (Signature of petitioner.) (Verification as of a pleading.) No. 70. (Notice of motion.) (Title of action.) Take notice, that upon the annexed petition and upon all the pleadings and proceedings in this action, the undersigned will apply to Hon. , at his chambers, in the city of , on the day of 189, at A. M., for a rule or order discharging the warrant of attach- ment herein from the property of the defendant, men- tioned in the said petition, upon the petitioner giving an undertaking as prescribed by section 694 of the Code of Civil Procedure. Dated , 189 . Yours, &c., (Signature of petitioner or his attorney.) To , plaintiffs attorney, and , defendant. APPENDIX OF FOBMS. 301 No. 71. COURT. F— H— J— P— Reference to fix value of the in- terest of a, partner in part* nership property attached ; Code, § 695. Application having been made to me for an order discharging a levy of a warrant of attachment upon the interest of the defendant in certain partnerships prop- erty, and that the same may be delivered to I hereby order, that it be referred to to ascertain the value of the interest of the attachment debtor in said property attached. (Signature of judge.) No. 72. COURT. 1 F— H— I Undertaking for discharge of vs. y warrant of attachment ; Code, J— P— Whereas, the property of , the defendant above named, has been levied upon under a warrant of attach- ment issued in this action in favor of the plaintiff herein; and whereas, the defendant has obtained an order dis- charging said warrant, upon his giving security accord- ing to section 688 of the Code of Civil Procedure ; Now, therefore, we, , of , by occupation a , and , of , by occupation a , do jointly and seve- rally undertake to and with that, if the said warrant be discharged, we will on demand pay to the said plaint- iff the amount of judgment that may be recovered against the defendant, in the said action, not exceeding the sum of dollars. Dated , 189 . (Signatures of sureties.) (Add acknowledgment, justification and approval.) Take notice of an undertaking filed in the county clerk's office, of which the within is a copy. Dated , 189 . Yours. &c., (Signature of defendant's attorney.) To , Plaintiff's attorney, M , N. Y. 302 APPENDIX OF FORMS. No. 73. COURT. F— H- vs, J— P- Exception to sufficiency of sureties ; Code, § 690. Take notice, that the plaintiff excepts to the suffici- ency of the sureties, in the undertaking given by the defendant for the discharge of the warrant of attach- ment held by you. Dated , 189 . Yours, &c., (Signature of plaintiff's attorney.) To , Sheriff, &c. No. 74. COURT. F— H- vs. J— P- Notice of justification of sureties Code, §690. Take notice, that , the sureties upon the under- taking given by defendant for the discharge of the war- rant of attachment herein, will justify before Hon. at his chambers in the city of , on the day of , 189 , at A. M. of said day. Dated , 189 . Yours, &c., (Signature of defendant's attorney.) To , Plaintiff's attorney. COURT. No. 75. F— H — vs. J- P — - Junior attaching creditor. Un- dertaking to prevent release of foreign vessel ; Code, § 701. Whereas, a certain vessel named the was hereto- APPENDIX OF FORMS. 303 fore attached in an action in which was plaintiff, and was defendant; and, whereas, upon the appli- cation of , claiming that said vessel did not belong to any pore or place in the United States, but that it be- longed to ; the value of said vessel was made as pre- scribed by sections 661-666, of the Code of Civil Proce- dure ; And, whereas, the plaintiff failed and neglected to give the undertaking prescribed by section 668 of the Code within the time allowed ; and, whereas, the said vessel was duly attached by virtue of a warrant of attachment in this action issued in favor of the plaintiff against the defendant herein subsequent to the time of the seizure thereof under the first named attachment ; and, whereas, by an order of this court, the plaintiff in this action was given two days in which to furnish an undertaking as pre- scribed by section 668 of the Code ; 'Now, therefore, we , A — B — , of , by occupation a , and C — D — , of , by occupation a , do jointly and severally undertake that he will pay such damages as may be recovered for seizing the vessel, share or interest aforesaid,, in an action against the Sheriff, or the plaintiff in the attach- ment, within three months from the approval of this 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. Dated , 189 . (Signatures of sureties.) (Acknowledgment, justification and approval.) No. 76. COURT. F— H- J— P— Petition by junior attaching . creditor for leave to sue in the " name of himself and Sheriff jointly ; Code, §§ 703, 704. To The petition of respectfully shows that he is the plaintiff in the above entitled action; that heretofore and on or about the day of ,189 , a warrant of attachment was duly issued herein against the property of 304 APPENDIX OP FORMS. the above named defendant, and delivered to the Sheriff of That by virtue of said warrant the said Sheriff duly- levied upon . [Describe property, and the person having said property, or owing the debt to defendant.) Your petitioner further shows that prior to the levy of your petitioner's warrant of attachment as aforesaid, a warrant of attachment was issued in an action in this court in which one was plaintiff, and the defendant in this action was defendant, and which said warrant was in the hands of said Sheriff at the time your peti- tioner's warrant was delivered to the said Sheriff. That your petitioner jointly with the said Sheriff has a good cause of action against the said , as appears by the complaint hereto annexed; that your petitioner has read the said proposed complaint, and the facts therein stated are true to the knowledge of your petitioner. Your petitioner fiurther shows that hetetotore and on or about the day of , 189 , he served upon the said a paper writing, a copy of which is hereto annexed and forms a part of this petition. (Annex request to plaintiff in first attachment to join with the Sheriff in action, &c.) That said has neglected and refused to join with the Sheriff in an action against the said ; (or that heretofore and on or about the day of , 189 , by leave of this court, , a plaintiff in case of commenced an action in the name of himself and the Sheriff jointly, against the defendant , as appears by the complaint in said action, a copy of which is hereto annexed and forms a part of this petition ; that after- wards and on or about the day of , 189 , the war- rant of attachment in said action was duly vacated, as appears by an order, a copy of which is hereto annexed). Wherefore, your petitioner prays that he may have an order, purmitting him to commence and prosecute, in the name of himself and the Sheriff of jointly, an action, as prescribed by sections 655, 677, 704, of the Code of Civil Procedure; (or that your petitioner may be substituted in the place and stead of , , as plaintiff in an action commenced by said in his name jointly with the Sheriff). (Signature of petitioner.) (Verification as of a pleading.) APPENDIX OP rOEMS. 305 No. 76 %. (Execution against a non-resident or foreign corporation where summons is not personally served ; Code, section 707). The people of the State of New York, to the Sheriff of County : Whereas, by virtue of a warrant of attachment issued out of our Court, against the property of in an action wherein was plaintiff, and the said was de- fendant, certain real and personal property of the said defendant was duly levied upon ; and whereas, the sum- mons in said action was not personally served upon the defendant therein ; and whereas, said defendant was a non-resident of the State or foreign corporation, and the summons was served without the State, or by publica- tion ; iand whereas, judgment was duly rendered in said action in favor of said plaintiff against the said defend- ant on the day of , 189 , for the sum of $ , and the judgment roll in said action was duly filed, and the judgment duly docketed on said day in the oflSce of the clerk of County ; and whereas, a transcript of said judgment was duly filed and said judgment duly dock- eted in your county on the day of ,189 , and the sum of $ is now actually due thereon ; Therefore, we command you that you satisfy the said judgment out of the personal property of the defendant attached, or if there is not sufiicient personal property attached, then out of the real property of the defendant attached in your county belonging to such judgment debtor, on the day when such attachment was levied, and return this execution within sixty days after its receipt by you, to the clerk of county of Witness Hon. , one of the justices of this our Court, this day of , 189 . , Clerk. Attorney for , , N. Y. No. 77. (Execution to Sheriff who attached property; Code, § 706.) The people of the State of New York, to , late Sheriff of the county of : Whereas, by virtue of a warrant of attachment, dated 20 306 APPENDIX OF FOEMS. on the day of , 189 , issued out of our Supreme Court against the property of , in an action wherein was plaintiff, and the said was defendant, and ■delivered to the said , then Sheriff of , the follow- ing property of said was duly levied upon and taken into the custody of said Sheriff : (describe the property as in the inventory) ; and by virtue of said warrant of attachment the following real property of said defend- ant was levied upon, viz : (describe the real estate as in notice of attachment); and whereas, the defendant has not been personally served with the summons herein and lias not appeared in said action ; and whereas the said defendant, at the time of issuing of said warrant of attachment, was an, now is a non-resident of the State ; and whereas, judgment was rendered in said action on the day of , 189 , in favor of the said and against the said defendant for the sum of dollars, and the judgment roll in said action was duly tiled, and the judgment duly docketed on said day in the office of the clerk of county, and whereas, a transcript of said judgment was duly filed, and the said Cudgment duly docketed in your county on the day of , 189 , and the sum of dollars is now actually due thereon ; Therefore, we command you that you satisfy the said judgment out of the personal property so attached, by a sale of said property, and if the personal property so attached be not sufiicient, then out of the real property so attached as aforesaid, by a sale of said property, or so much thereof as shall be sufficient to satisfy the said judgment, and return this execution within sixty days after its receipt by you to the clerk of Witness Hon. , one of the justices of our said court at , on the day of , 189 . , Clerk. Plaintiff's attorney, , N. Y. No. TS. COURT. F— H — vs. J— P — Indorsement on execution. To , late Sheriff of : Levy $ , with interest APPENDIX OF FOEMS. 307 from the day of , 189 , besides your fees, and re- turn this execution within sixty days after its receipt by you to the clerk of county. Dated , 189 . , Plaintiff's Attorney. No. 79. (Execution against an absconding debtor, &c., not per- sonally served with summons.) The People of the State of New York, to the SherifE of county : Whereas, by virtue of a warrant of attachment issued out of our Supreme Court, against the property of , in an action wherein was plaintiff, and the said was defendant, certain real and personal property of the said defendant was duly levied upon ; and, whereas, the summons in said action was not personally served upon the defendant therein ; and, whereas, judgment was duly rendered in said action on the day of , 189 , in favor of the said plaintiff against the said defendant for the sum of dollars, and the judgment roll in said action was duly filed, and the judgment duly docketed on said day in the office of the clerk of county ; and, whereas, a transcipt of said judgment was duly filed and said judgment duly docketed in your county on the day of , 189 , and the sum of dollars is now actually due thereon ; Therefore, we command you that you satisfy the said judgment out of the personal property of the defendant attached, or if there is not sufficient personal property attached, then out of any personal property of the said judgment debtor within your county ; or if sufficient per- sonal property cannot be found, then out of the real property of the defendant attached ; or if the real estate of the defendant so attached is not sufficient, then out of any other real property in your county belonging to such judgment debtor, on the day when said judgment was so docketed in your county, or at any time thereafter, and return this execution within sixty days after its receipt by you to the clerk of Witness, Hon. , one of the justices of this our court, this day of , 189 . , Clerk, , N. Y. , Plaintiff's attorney. '■) 808 APPENDIX OP PORMS. No. 80 JUSTICES' COURT. F— H— V8, ■ J— P— Affidavit for an attachment; Code, § 2906. County, ss.: , being duly sworn, says he is the , that the plaintiff is about to commence an action against the defendant, as appears by the summons hereto annexed, that , the defendant above named, is indebted to the plaintiff in the sum of dollars, over and above all counter-claims known to plaintiff, the grounds of which appear in the complaint in this action hereto annexed, all the statements contained in which are true to the knowledge of this deponent. That a cause of action exists in favor of the plaintiff against the defendant above named, arising out of the following facts, viz : (I.) That on the day of , 189 , this deponent was and now is the owner of one horse, of the value of $ ; that on the day aforesaid, the defendant wrong- fully took, carried away and converted said property to to his own use, to the plaintiff's damage of $ (II.) That a cause of action exists in the plaintiff's favor against the defendant, for obtaining property of the plaintiff's, by fraud, as appears by the complaint hereto annexed, all of the allegations of which are true, to the personal knowledge of deponent. That the value of said property is $ , and the deponent was injured by said acts of the defendant in the sum of $ (III.) That a sufficient cause of action exists in favor of the plaintiff against the defendant, for negligently in- juring plaintiff's property , as more fully appears by the complaint hereto annexed, all the allegations of which are true, to the personal knowledge of deponent. That the defendant is a foreign corporation, created under the laws of the State of That after said indebtedness accrued and on or about the day of , 189 , the defendant obtained an ex- tension of credit thereon by means of a written state- ment subscribed by him, which said statement is hereto annexed and forms a part of this affidavit. That such statement was false when made to the knowledge of the APPENDIX OF FORMS. 309 defendant. That the defendant has property within this State at , consisting of . That the plaintiff is a resident of this State, to wit, of the town of That the subject of the action is situated within this State (set oat deponent's knowledge and information) ; that said plaintiff is about to commence an action against the defendant, and has issued the summons hereto an- nexed. (IV.) That the defendant is not a resident of this State, but resides at , in the State of , and the deponent's knowledge and information of said facts are as follows : (here set out all sources of information and grounds of belief), and that deponent believes such infor- mation to be true. (V.) That defendant is a resident of this county, to wit, of , but cannot be found therein, as deponent is informed by , and verily believes (set forth depon- ent's information). That deponent believes the defend- ant has departed from the said county of to the county of , with intent to defraud his creditors, or to avoid the service of a summons ; and the grounds of his belief are as follows : (set out the facts and circum- stances upon which deponent's belief is founded ; or that deponent's information and the grounds of his be- lief is founded upon the affidavit of , hereto an- nexed). (VI.) That the defendant is a natural person, who resides at , in the county of ; that he or it has removed or is about to remove property from the county where he last resided, with intent to defraud his credi- tors, and the deponent's knowledge and sources of infor- mation and the grounds of his belief are as follows : (set forth the grounds of belief). (VII.) That the defendant is a natural person, and a resident of the county of , and that he has as- signed, disposed of or secreted some of his property, and is about to assign, dispose of, or secrete other parts of his property, with intent to defraud his credi- tors ; and the sources of deponent's knowledge and the grounds of his belief are as follows : (set forth the grounds of knowledge and the sources of belief). (VIII.) That the defendant, being a natural person of full age, and a resident of this State, has been contin- uously without the United States for the space of six months or more, immediately before this date, and that 310 APPENDIX OF FORMS. h« has not made a designation of a person, upon whom to serve a summons in his behalf, as prescribed in sec- tion 630 of the Code of Civil Procedure. (IX.) That the indebtedness above mentioned was contracted by the defendant by means of an untrue written statement subscribed by him, which said state- ment is hereto annexed and forms a part of this affi- davit). (Signature of affiant.) Sworn to before me this ) day of , 189 ( No. 81. JUSTICES' COUKT. A — A — , as Sheriflf of County, and F — N — Undertaking by plaintiff upon ■''*• r granting an attachment; Code^ T p I §2908. Whereas, the plaintiff, . has applied for a warrant of attachment in the above entitled action against the property of the above named , in one of the cases provided by law ; Now, therefore, we F — H — , plaintiff, of the village of , by occupation a , and , of , by occupation a , do jointly and severally undertake, pursuant to sec- tion 2908 of the Code of Civil Procedure, that if the above named defendant recovers judgment, or the warrant of attachment be vacated, the plaintiff will pay all costs which may be a,warded to the defendant, and all dam- ages which he may sustain by reason of the attachment, not exceeding the sum of dollars (not less than $200) ; and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him from property taken by virtue of the warrant of attach- ment, or upon any bond given therefor, over and above the amount of the judgment, and interest thereupon. (Signatures of sureties.) (Add acknowledgment, justification and approval.) APPENDIX OF FORMS. 311 No. 82. JUSTICES' COURT. F— H — vs. J— P — Warrant of attachment ; Code, § 2907. The People of the State of New York, to any constable of the county of : Whereas, an application has been made to the under- signed by , plaintiff, for a warrant of attachment against the property of , defendant, in this action, in one of the cases provided by section 2905 of the Code of Civil Procedure ; and, v^hereas, a summons has been duly issued in this action, which is hereto annexed ; and, whereas, it appears to my satisfaction by affidavit, that a cause of action exists against the said , defendant, for the sum of dollars, and the plaintiff is a resident of this State, and that said is a foreign corporation, having property within this State; (or, that the defend- ant is not a resident of the State); (or, that the defendant is a natural person and a resident of this State, and that he has departed or is about to depart from the county where he last resided, with intent to defraud his credi- tors), or keeps himself concealed therein with like intent; (or, that the defendant has removed and is about to remove propertj' from the county, where he has resided (or from the county in which the action is brought), with intent to defraud his creditors); (or, that the defendant has assigned, disposed of, or secreted his property with intent to defraud his creditors); or, is about to assign, dispose of, or secrete property, with intent to defraud his creditors). That the applicant has given the undertaking pro- vided by the Code of Civil Procedure; Now, therefore, you are hereby required to attach on or before the day of , 189 , and safely keep as much of the defendant's goods and chattels within your county as will satisfy the plaintiff's demand, with the costs and expenses, and make return of your proceed- ings thereon to me, at the time when the annexed sum- mons is returnable. Dated . 189 (Signature of justice.) 312 APPENDIX OF FOKMS. No. 83. JUSTICES' COURT. F— H— ^'S- r Inventorv. tZ= J " I, , a constable of the county of , do hereby cer- tify that the following is a true inventory of all the prop- erty seized by me, on a warrant of attachment, issued in the above entitled action by , a justice of the peace, and the value of each article of personal property (list of items of property, setting value opposite each). Dated , 189 . (Signature of constable.) No. 84. (Certificate of constable.) I, , constable of , do hereby certify that I have compared the within summons, warrant of attachment and inventory with the originals in my possession, and that they are true copies thereof and of all of said originals. Dated , 189 . (Signature of constable.) No. 85. .JUSTICES' COURT. F— H- ] I Return of constable, aa to ser- vs. \- vice of papers in attachment ; Code, 8 2910. ] I, , constable of , do hereby certify that, at , on the day of , 189 , I served the within sum- mons, warrant of attachment and inventory upon the defendant by 'delivering to and leaving wirli him person- ally copies thereof; (or. that on tlie day of ,189 , APPENDIX OF FOKMS. 313 at , he served the within summons, warrant of attach- ment and inventory upon the defendant, , by leaving certified copies thereof and of each of said papers, at the last place of residence of the said , in the county of , with , whom he knew to be the wife of said de- fendant (or, whom he knew to be the of the defend- ant, and who appeared to be fifteen years of age), and who received the same ; that prior to leaving said copies as aforesaid I made inquiries of the neighbors of the said defendant, and of his relatives as to his whereabouts, and I also made other efforts to find him, but I was unable, after such search and inquiry, to find the said defendant within my county ; (or, that on the day of , 189 , at , the annexed summons, warrant of attachment and inventory, being in my possession for service, I went to the last place of residence of the defendant, and to the person with whom the property attached was found, and made due and diligent efforts and inquiries to find the said defendant, but was unable to do so. That no one could be found at the last place of residence of the de- fendant in the county with whom a copy of said papers •could be left. And upon said day I served the said sum- mons, warrant and inventory upon the defendant by posting certified copies thereof on the outer door of the last place of residence of the defendant, in the county of , and also by depositing copies thereof in the post-office at , in a duly sealed post-paid wrapper directed to the defendant at , that being his post- office address and his last place of residence of the de- fendant in the countv). Dated , 189 . (Signature of constable.) No. 86. JUSTICES' COURT. F- - H- vs. J- - P— Undertaking by defendant to release property ; Code, § 2911. Whereas, the property of the above named defendant, , has been levied upon and taken in this action by virtue of a warrant of attachment ; 314 APPENDIX OF FORMS. Now, therefore, we , of , by occupation a ^ and , of , by occupation a , jointly and sev- erally undertake, that if the said warrant of attachment be discharged, and judgment is rendered against the defendant, and an execution is issued thereupon, within six months after the approval of this undertaking, the property attached shall be produced to satisfy the ex- ecution, or in default thereof we will pay to the said plaintiff the amount of the said execution, not exceeding dollars. Dated , 189 . (Signatures of sureties.) (Add acknowledgment, justification and approval.) JUSTICES' COURT. No. 87. F— H— vs. J- p— } } Order discharging attachment A warrant of attachment having been heretofore and on the day of , 189 , duly issued by me in the above entitled action, and the same having been duly ser- ved as required by the Code of Civil Procedure, and after- wards and on or about the day of , 189 . the defendant caused an undertaking to be executed as required by section 2911 of the Code of Civil Procedure, and filed the same with me; Now, upon reading and filing said undertaking and upon motion of , Ordered, that the said warrant of attachment be and the same is hereby vacated. It i& further ordered, that the officer holding said warrant return the property taken thereunder to the defendant herein. Dated , 189 . Justice. APPENDIX OF FORMS. 815 No. 88. JUSTICES' COURT. F— H— 1 , Claim to property by third per- *"*• r son. Undertaking ; Code, § 2912. J— P— Whereas, certain property mentioned in an inventory made by , was heretofore and on or about the day of , 189 , attached in this action as the property of , the defendant herein ; And, -whereas, the value of said property was fixed by said inventory at the sum of dollars, and said prop- erty has not been reclaimed by the said defendant ; And, whereas, the said property is claimed by ; Now, therefore, we , of , by occupation a , and , of by occupation a , jointly and severally undertake, that in an action upon this undertaking commenced within three months after the approval thereof , the claimant above named will establish that he was the general owner of the property claimed, at the time of the seizure aforesaid ; or, if he fails so to do, that he will pay to the plaintiff the value of said property, with interest from the date thereof, not exceeding dollars. Dated , 189 . (Signatures of sureties.) (Add acknowledgment, justification and approval.) INDEX. About to assign property. page with intent to defraud creditors 59, 66, 75 fraudulent intent of debtor necessary 58, 67, 76 " " " " how proved 68, 75 " " •' '■ what sufficient evidence of 66, 69 " " " " must appear from facts disclosed by affidavit 66, 68, 75 About to dispose of property. with intent to defraud creditors 59, 64 fraudulent intent of debtor necessary 64, 67 " " " " how proved 63, 69 " " " " must appear from facts disclosed by affidavit 68 fraudulent intent of debtor, what sufficient evidence of 69 About to secrete property. with intent to defraud creditors 59, 75 fraudulent intent of debtor necessary 60, 67 " " " " howproved 68, 75 " " " " what sufficient evidence of 62, 69 " i<