TITLE 3. Rights of third and other sub sequent attaching an action, or to comply with the terms, conditions, and regulations, imposed, either upon granting him an order for that purpose, or upon the hearing of an application, made as prescribed in this section, the court or judge may grant to the plaintiff in the second warrant, leave to bring and maintain such an action, in the name of himself and the sheriff jointly, with like effect, as if his was the first warrant. § 705. 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 creditors. rights and privileges, as against the plaintiffs in all senior warrants, which the plaintiff in the second warrant has, as against the plaintiff in the first, and are subject to the same duties and liabilities; except that a second extension of the time, within which to furnish an undertaking to prevent the release of a foreign vessel, or a share or interest therein, shall not be granted. And the plaintiffs in two or more junior warrants of attachment, may, by agreement among themselves, take jointly, and for their common benefit, any proceeding, permitted by this title to be taken, by the plaintiff in a second or subsequent warrant of attachment; provided that it does not interfere with the preferential or other right of an intermediate plaintiff. Execution to issue to ARTICLE FIFTH. PROCEEDINGS AFTER JUDGMENT; RIGHTS OF PARTIES AND DUTIES OF THE SHERIFF, SECTION 706. Execution to issue to sheriff who has levied. 707. Only attached property bound when summons not personally served. 708. Judgment in the principal action; how satisfied. 709. When attachment discharged, etc., property to be restored to defend ant. 710. Additional provision for his relief. 711. Cancelling notice attaching real property. 712. When sheriff to return warrant and his proceedings. § 706. Where a levy, under a warrant of attachment in an action, sheriff who has been made, an execution against property, upon a final judgment has levied. in favor of the plaintiff therein, recovered after the expiration of the term of office of the sheriff, who made the levy, must nevertheless be directed to an 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. Only attached property bound, when sum mons not personally served. Judgment in the prin cipal ac tion; how satisfied. § 707. Where the summons was served upon the defendant, without the State, otherwise than personally, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, and he has not appeared in the action, the judgment can be enforced only against the property which has been levied upon, under the warrant of attachment, at the time when it is entered. But this section does not declare the effect of such a judgment, with respect to the application of any statute of limitation. § 708. Where an execution against property is issued upon a judgment for the plaintiff, in an action in which a warrant of attachment has been levied, the sheriff must satisfy it, as follows: 1. He must pay over to the plaintiff the money attached by him, or in his hands, as the proceeds of the sale of perishable property, or of a vessel, or a share or interest therein, sold by him, or of debts or other things in action collected by him; or so much thereof as is necessary to satisfy the judgment. 2. If it is insufficient to satisfy the judgment, 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 interest coupons annexed, by a government, State, county, public officer, or municipal or other corporation, which is in terms negotiable, or payable to the bearer or holder, the principal whereof is not then payable; but not including any other debt or thing in action. If the proceeds of that property are insufficient to satisfy the judgment, and the execution requires him 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 afterwards, before resorting to any other real property. 3. If personal property attached, belonging to the defendant, has passed out of the hands of the sheriff, without having been sold or converted into money, 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 property from him, is liable to double damages, at the suit of the party aggrieved. 4. Until the judgment is paid, he may collect the debts and other things in action attached, and prosecute any undertaking, which he has taken in the course of the proceedings, and apply the proceeds thereof to the payment of the judgment. 5. Where six months have expired, since the rendering of the judgment, the court, upon the petition of the plaintiff, accompanied with an affidavit, specifying fully all the proceedings of the sheriff, since the levy under the warrant, the property attached, and the disposition thereof; and the affidavit of the sheriff, showing that he has used diligence, in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected; may 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 may direct service of notice, as it thinks proper; or may grant the application without notice. ART. b. discharg 8709. Where a warrant of attachment is vacated, or annulled, or an When atattachment is discharged, upon the application of the defendant, the tachment sheriff must, except in a case where it is otherwise specially prescribed ed, etc., by law, deliver over to the defendant, or to the person entitled thereto, property as the defendant's representative, upon reasonable demand, and upon stored to 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 discharged; or the proceeds thereof, if it has been sold by him. defendant. Additional § 710. Where the sheriff is required, by this title, to deliver attached property, or the proceeds thereof, to the defendant, he must also deliver provision TITLE 4. for his relief. Cancelling notice attaching erty. to him, 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 have not been fully satisfied; except an undertaking, given by the defendant, upon the discharge of property. He must also deliver a written assignment duly acknowledged, of each undertaking, so delivered, and of each other instrument, to which the defendant is thus entitled, an assignment of which is necessary to perfect or protect the defendant's title thereto. The defendant must also, but upon his own application only, be substituted in the place of the sheriff, or the sheriff and the plaintiff jointly, in an action brought as prescribed in this title; but the court or judge may impose, as a 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 specially defined or regulated by law. § 711. At any time after the warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property real prop- attached, the court may, in its discretion, upon the application of any person aggrieved, and upon such notice as it deems just, direct, that a notice, filed for the purpose of attaching the property, be cancelled of record, by the clerk of the county where it is filed and recorded. The cancellation must be made by a note, to that effect, on the margin of the record, referring to the order; and, unless the order is entered in the same clerk's office, a certified copy thereof must, at the same time, be filed therein. When sherif to § 712. Where a warrant of attachment has been vacated or annulled, return war- the sheriff must forthwith file, in the clerk's office, the warrant, with a want and return of his proceedings thereon. Upon the application of either ceedings. party, and proof of the sheriff's neglect, the court may direct him so to do, forthwith, or within a specified time. his pro ART. 2. § 713. In addition to the cases, where the appointment or a receiver Receiver; is specially provided for by law, a receiver of property, which is the when ap subject of an action, in the supreme court, a superior city court, or a pointed. county court, may be appointed by the court, in either of the following cases: 1. Before final judgment, on the application of a party who establishes an apparent right to, or interest in, the property, where it is in the possession of an adverse party, and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed. 2. By or after the final judgment, to carry the judgment into effect, or to dispose of the property, according to its directions. 3. After final judgment, to preserve the property, during the pendency of an appeal. The word,"property," as used in this section, includes the rents, profits, or other income, and the increase, of real or personal property. § 714. Notice of an application, for the appointment of a receiver, Notice of in an action, must be given to the adverse party, unless he has failed applica to appear in the action, and the time limited for his appearance has expired. § 715. A receiver, appointed in an action or special proceeding, must, Security. before entering upon his duties, execute and file with the proper clerk, a bond, with at least two sufficient sureties, in a penalty fixed, and to an obligee designated by the court, judge, or referee, making the appointment, conditioned for the faithful discharge of his duties as receiver. And the court; or, where the order was made out of court, the judge making the order, by or pursuant to which the receiver was appointed; or his successor in office; or, where the office is vacant, or the judge is absent from the State, or unable to act, or disqualified from acting, the supreme court; may, at any time, remove the receiver, or direct him to give a new bond, with new sureties, with the like condition. But this section does not apply to a case, where special provision is made by law, for the security to be given by a receiver, or for increasing the same, or for removing a receiver. receivers § 716. A receiver, appointed by or pursuant to an order or a judg- Certain ment, in an action in the supreme court, a superior city court, or a may hold county court, or in a special proceeding for the voluntary dissolution real propof a corporation, may take and hold real property, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof. erty. ARTICLE SECOND. DEPOSIT, DELIVERY, OR CONVEYANCE OF PROPERTY. SECTION 717. Court may order a deposit or delivery of property in certain cases. 718. When sheriff may take and convey, etc., property. order a de § 717. Where it is admitted, by the pleading or examination of a Court may party, that he has, in his possession or under his control, money, or posit or deother personal property capable of delivery, which, being the subject livery of of the action or special proceeding, is held by him as trustee for another certain party, or which belongs to another party, the court may, in its discre- cases. tion, grant an order, upon notice, that it be paid into, or deposited in property in TITLE 4. When take and convey, erty, prop court, or delivered to that party, with or without security, subject to the further direction of the court. § 718. Where the court has directed a deposit or delivery, as presheriff may scribed in the last section; or where a judgment directs a party to make a deposit or delivery, or to convey real property; if the direction is disobeyed, the court, besides punishing the disobedience as a contempt, may, by order, require the sheriff to take, and deposit or deliver the money or other personal property, or to convey the real property, in conformity with the direction of the court. Arrest, injunction, ment; when not ARTICLE THIRD. GENERAL AND MISCELLANEOUS PROVISIONS. SECTION 719. Arrest, injunction, and attachment; when not to be granted together. 720. Motions relating to provisional remedies to be decided in twenty days. § 719. Where an application for an order of arrest, an injunction, and attach- and a warrant of attachment, or two of them, is made, in the same action, against the same defendant; and it satisfactorily appears, that, to be grant- under the particular circumstances of the case, two or all of them are ed togeth- not necessary for the plaintiff's security, the court or judge may, in its or his discretion, require the plaintiff to elect between them. But this section does not apply to an action specified in subdivision third of section five hundred and forty-nine, or in section six hundred and thirty-seven of this act. er. Motions relating to § 720. Where an application is made, to obtain, vacate, modify, or provisional set aside an order of arrest, injunction order, or warrant of attachremedies ment, the court or judge must finally decide the same, within twenty days after it is submitted for decision. to be de cided in twenty days. 136 |