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TITLE 1.

Notice of

first war

rant; proceedings thereon.

Duty of offcer issuing warrant.

warrant had been issued by the officer who granted the first warrant.

13 B., 452.

$ 40. The officer who issued such first warrant, shall, on the application of any creditor, subscribe and deliver to him, a notice in writing, directed to the sheriff having such subsequent warrant, of the fact of a prior warrant having issued; and upon such notice being served on such sheriff, he shall return to such officer an inventory of the property seized by him under such subsequent warrant, with all his proceedings thereon, in the same manner as if the same had been issued by such officer; and all proceedings on the subsequent warrant shall be conducted, in all respects, as if the same had been issued by the officer, who issued the first warrant.

$41. The officer who issued such subsequent warrant, shall subsequent transmit the petitions and affidavits upon which such warrant was founded or relating thereto, to the officer who issued the first warrant, upon receiving from such officer a certificate of the time of his issuing the same; and after the service of such notice, the officer who issued the subsequent warrant, shall cease to exercise any authority by virtue of the application made to him.

Rights and obligations

of creditors

in such lat

ter warrant,

&c.

Petition for

sconding or concealed

debtor.

[10]

$42. The creditors making the subsequent application, or who shall have filed a petition and affidavit with the officer issuing the subsequent warrant, desiring to be deemed attaching creditors, shall be entitled to all the benefits and advantages, and subject to the same responsibilities and obligations, as the creditor at whose instance the first warrant issued.

13 B., 452.

$ 43. Every person proceeded against as an absconding or hearing ab- concealed debtor, may, at any time before the appointment of trustees as herein after mentioned, present a petition by himself or his attorney, verified by his oath or that of some other person, to the officer who issued the warrant against him, stating that he is a resident within this state, and was not at any time within thirty days before the issuing of such warrant, or at any time thereafter, an absconding or concealed debtor within the intent of this Article; and may therein pray that his allegations in that behalf, may be heard and determined by the supreme court, or the court of common pleas of the county in which such officer resides.

Ib. Nonresident

debtor.

1 R. L., 157, § 7; 4 H., 599; 11 How. P. R., 227.

S 44. Every person proceeded against as a non-resident debtor, and any person in his behalf, may, at any time before the appointment of trustees as herein after mentioned, present a petition verified by the oath of the person presenting the same, to the officer who issued the warrant against such debtor, stating that at the time of issuing such warrant, the debtor so proceeded against was a resident of this state; and may pray that the allegations in such petition may be deter

mined by the supreme court, or the court of common pleas of the county.

5 N. Y., 429; 11 How. P. R., 227.

ART. 1.

given.

$45. Such debtor in either of the cases before mentioned, Bond to be or his agent, shall, at the time of presenting the petition, deliver to the officer who issued the warrant, a bond to the attaching creditors in the penal sum of one hundred dollars, with such security as shall be approved by such officer, with a condition, (preceded by a recital of the petition,) that such debtor shall prove to the supreme court, or to the court of common pleas of the county, whichever shall be inserted by such officer at his discretion, at the next term thereof, the facts set forth in such petition.

11 N. Y., 335; 5 N. Y., 429.

ceiving pe

bond to re

$ 46. The officer with whom such petition and bond shall be officer refiled, shall report his proceedings, with the affidavits presented tition and to him in relation to such proceedings, to the court named in port. the condition of such bond, on the first day of the next term thereof.

5 N. Y., 429.

ings of

$47. The court to which such report shall be made, shall Proceedproceed to hear the proofs and allegations of the parties in a court on resummary way, and shall determine whether the allegations in port. such petition have been satisfactorily proved; unless the court shall deem it a proper case to be submitted to a jury, in which case, the court may in its discretion, award a venire to try the same, in such manner as the court shall direct.

when to be

$48. If the court determine that the allegations in the Ib Warrant petition are proved, it shall grant an order, cancelling the bond discharged. given by or in behalf of the debtor, and discharging the warrant or warrants that may have been issued against him, and thereby releasing all property which shall have been attached under such warrants; which order shall terminate all proceedings upon such warrants.

5 N. Y., 429.

[11]

$ 49. The court shall tax the costs and expenses of the debtor, incurred in obtaining such order, and shall cause Ib. Costs. the same to be paid by the attaching creditor, and may enforce the payment thereof by attachment.

1 R. L., 157, § 7.

of bond

$ 50. If the court determine that the allegations contained Ib. Penalty in the petition are not proved, then the obligee in the bond when to be given by or in behalf of such debtor, may recover the penalty recovered. thereof with costs; one moiety of the penalty may be retained by the obligee or his representatives, and the other moiety shall be paid to the trustees to be appointed as herein after mentioned, to be disposed of by them, as part of the property and effects of such debtor; or if no trustees be appointed, such moiety may be retained by the obligee.

TITLE 1.

Petition by persons receiving prodebtor.

S51. If any person to whom a debtor shall have assigned or delivered any property, on a valuable consideration, or to perty from whom the debtor may have made payments, after the publication of the notice of attachment, shall desire to contest the fact of such debtor's being non-resident, concealed or absconding, within the meaning of this Article, he may do so, on executing a bond similar to that required of a debtor in the previous forty-fifth section, and within the time allowed to the debtor for that purpose; and on his application to the court to which such proceedings are or shall be reported, the court shall direct such allegations to be tried by a jury, and shall direct the proper proceeding for that purpose.

Jury trial.
Proceed-

ings on cer

$ 52. A decision by a jury, in any case, where a trial may be had, pursuant to the provisions of this Article, if not set tain bonds. aside by the court, shall have the same effect in all cases as the determination of a court without such trial; and the same proceedings may be had upon the bond executed by any other person than the debtor, as are herein provided in respect to the bond of such debtor, in the like cases and with the like effect.

Effect of petition and

ings.

$ 53. The proceedings upon any warrant, that may be bond as stay issued, pursuant to the provisions of this Article, shall not of proceed be in any manner stayed or affected, by such petition or bond, given as herein before provided, until an order discharging such warrant shall be granted; except that no sale of any property, other than such as may be perishable, shall be had, and no payment of any debts, shall be made, by any trustees appointed under such attachment, until a determination be made by the court to which such petition shall be referred.

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11 N. Y., 335.

$ 54. Every debtor against whom any warrant of attachment shall be issued, may, at any time before the appointment of trustees as herein after mentioned, apply in person or by attorney to the officer, who issued such warrant, for an order to discharge the same.

1 R. L., 162, § 21; 4 H., 600.

$55. Upon such application, such debtor or his agent shall execute and deliver to the officer to whom the same is made, a bond to the creditors prosecuting the attachment, in a penal sum double the amount of the debts sworn to by such creditors, with such sureties as shall be approved by the said officer, conditioned that they will pay to each attaching creditor the amount justly due and owing by such debtor, to him, at the time when he became an attaching creditor, on acount of any debt so claimed and sworn to by him, with interest thereon.

1 R. L., 162, § 21; 13 N. Y., 500; 8 N. Y., 446; 4 N. Y., 516; 12 B., 112; 7 B., 253; 3 D., 567; 2 W., 295; 1 Du., 1; 4 S. S. C., 198; Laws of 1833, ch. 52.

$56. Upon such bond being executed and delivered, the

ART. 1.

rant to be

said officer shall thereupon grant his order, discharging all warrants that may have been issued by him, or of which discharged, notice shall have been given to him, against such debtor; and no further or other proceedings shall be had under the provisions of this Article, founded upon any demands included in such bond.

8 N. Y., 442; 9 W., 473; 2 W., 285.

prosecuted,

S57. Every such bond shall be held for the common benefit Bond how of all the attaching creditors, and may be prosecuted at any &c. time within six months after its date, and not afterwards by them jointly, or by any one of them separately, in respect to his separate demand; and in every such action the prosecuting creditor shall establish his demand, in the same manner as in an action against the debtor.

4 N. Y., 533; 2 N. Y., 390; H. & D., 169.

when to be

$58. If the debtor against whom such warrant of attach- Trustees ment shall be issued, shall not appear and satisfy his creditors, appointed. within the time for that purpose limited in the notice herein before directed, and if such warrant shall not have been discharged, the officer who issued the same, shall, within three months after the expiration of the time so limited, upon due proof of the publication of such notice, nominate and appoint three or more fit persons, to be trustees for all the creditors of such debtor.

1 R. L., 159, § 8.

ces of omis

$ 59. If such appointment of trustees be not made within Consequenthe time above prescribed, the warrant of attachment shall be sion. deemed to be discharged and annulled.

ment. Or

endorsed,

$60. The officer making such appointment, shall endorse Appoint thereon an order allowing it to be recorded; which shall entitle der to be it to be recorded by the clerk of any county, to whom it may &c. be presented for that purpose. $61. The trustees shall cause their appointment to be Ib. To be recorded in the office of the clerk of every county, in which any property shall have been seized, under the warrant of attachment against such debtor, within one month after their appointment.

1 R. L., 163, § 26; 13 N. Y., 521.

recorded.

ment, &c.,

$ 62. Such appointment of trustees, the record thereof, and Appointthe transcript of such record duly certified, shall in all cases, evidence. except on hearing of a petition referred to any court as herein [13] before provided, be conclusive evidence that the debtor therein named was a concealed, absconding or non-resident debtor, within the meaning of the foregoing provisions, and that the said appointment and all the proceedings previous thereto, were regular.

1 R. L., 163, § 26; 13 N. Y., 515; 11 N Y., 336; 3 N. Y., 41; 7 B.,
187; 4 H., 599; 15 W., 373; 9 W., 469.

When

$ 63. Where any debtor against whom proceedings may death, &c.,

TITLE 1.

proceedings.

not to abate have been commenced, as herein authorised, shall die or become insane, after the expiration of the time limited in the order for his appearance, the proceedings shall, notwithstanding, be continued to a final conclusion, in the same manner, and with the like validity, as if such debtor had lived or remained sane.

When to

abate them.

Sheriff to make return, &c.

Return how enforced.

Affidavits,

&c., to be filed.

Officer to report to supreme court.

[14]

Certiorari

to remove

proceedings.

1 R. L., 163, § 22.

$64. If any debtor against whom any such warrant of attachment shall have been issued, shall die or become insane, before the time limited for his appearance, the proceedings thereon shall be stayed, and the property seized thereby shall be delivered to his personal representatives, or to the committee of his estate.

$65. Upon the appointment of trustees being made, every sheriff to whom any warrant against the estate of such debtor may have been issued, shall return the same, with his proceedings thereon, to the officer who issued the same, or to the officer who issued the first warrant against such debtor, in case warrants shall have been issued by several officers; and such officer shall cause the same to be filed, within thirty days thereafter, in the office of a clerk of the supreme court.

1 R. L., 163, § 25.

$66. Every sheriff to whom a warrant may have been delivered, may be compelled by the officer having jurisdiction over the proceedings thereon, to return such warrant, and the inventory required to be taken by him, by an order of such officer and by process of attachment for disobedience thereof, on the application of any creditor, or of the debtor, and on proof of the neglect of the sheriff.

$67. Every officer who shall issue any warrant, pursuant to the foregoing provisions, shall cause the affidavits of the creditors presented to him, or transmitted to him, by any other officer, who shall have issued a subsequent warrant, to be filed in the office of a clerk of the supreme court, within thirty days after receiving the same.

$68. Within twenty days after the appointment of any trustees by such officer, he shall make a report to the supreme court, to be filed with the clerk thereof, of all the proceedings had before, or done by, him, under this Article; after which, the supreme court shall have jurisdiction over such proceedings. Such report, and a certified copy thereof under the seal of the court, and attested by the clerk, shall be conclusive evidence, that the proceedings stated therein, were had before such officer.

13 N. Y., 509; 7 B., 188; 15 W., 373; 7 W., 490.

$69. The proceedings had before any officer, under the provisions of this Article, may also be removed into the supreme court, previous to any report, by certiorari, at the instance of the debtor or of any creditor; but such certiorari shall not stay any proceedings on such warrant.

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