84; see Manning v. Monaghan, 23 N. Y. 539). Whatever may be taken on execution may be taken on attachment. But a bill of lading in the hands of a consignee is not property within the meaning of section 464, and is not leviable upon by attachment (Paterson v. Perry, 10 Abb. 83). A debt due by a foreign corporation which has no agency in this State, to a nonresident of this State, is not the subject of attachment under this chapter, in an action by a third party against the nonresident (Willett v. Equit. Ins. Co. 10 Abb. 193). Goods in the hands of a consignee who has made advances thereon, cannot be levied upon and taken possession of under an attachment against the property of the consignor. But the interest of the consignor in such goods may be levied upon (Brownell v. Carnley, 3 Duer, 9).

a. A foreign corporation contracted with a manufacturer in this State for certain articles to be made for them and delivered to them at New Orleans, the corporation to pay the charges of transportation. The articles were made within this State, and here delivered to an express company, directed to the corporation at New Orleans. Held that the title did not pass to the corporation until delivered to them at New Orleans, and that consequently the goods were not liable to be attached in a suit against the corporation during their transit to the border of the State. A claim contingent upon the happening of a future event is not, while the contingency lasts, a debt liable to attachment. A debt due from a debtor not within this State, to a creditor also not within this State, is not liable to attachment here, although the evidence of debt-e. g. the bond, note, &c.,- may be within the State (Bates v. New Orleans, &c. R. R. Co. 4 Abb. 72; 13 How. 516; Lyman v. Cartwright, 3 E. D. Smith, 117).

b. Letters and correspondence are not among the papers which the statute authorizes to be taken under process (Hergman v. Dettleback, 11 How. 46).

c. An attachment cannot be levied upon money of the defendant deposited in a bank in the name of another, and credited by the bank to that other (Greenleaf v. Mumford, 35 How. 148; 4 Abb. N. S. 130).

d. Action by sheriff.-Form of complaint by sheriff suing under the authority of this section (Kelly v. Breusing, 32 Barb. 601; 33 Barb. 123).

e. The power given to the sheriff by this section is merely cumulative, and does not deprive the plaintiff of his right to enforce his lien by action (Skinner V. Stuart, 13 Abb. 443; see, however, S. C. on appeal, 24 How. 489; 15 Abb. 391; Kelly v. Lane, 28 How. 128; 18 Abb. 229; Rinchey v. Stryker, 28 N. Y. 45; Mechanics' B'k of Jersey City v. Dakin, 50 Barb. 589; 33 How. 316; Greenleaf v. Mumford, 35 How. 148).

$233. Proceedings in case of perishable property or vessels. If any property so seized shall be perishable, or if any part of it be claimed by any other person than such defendant, or if any part of it consists of a vessel, or of any share or interest. therein, the same proceedings shall be had in all respects as are provided by law upon attachments against absent debtors.

f. Ships, &c.—The revised statutes, as to attachments against ships, were amended by laws of 1860, p. 347, 906; 1862, p. 956. The laws of 1860 and 1862 held unconstitutional (Re the Josephine, 39 N. Y. 19).

9. Perishable property.-Where a part of the property attached, consisted of potatoes, the court ordered them to be sold (Davis v. Ainsworth, 14 How. 346).

§ 234. Interest in corporations or associations, liable to attachment.

The rights or shares which such defendant may have in the

stock of any association or corporation, together with the interests and profits thereon, and all other property in this State of such defendant, shall be liable to be attached and levied upon, and sold to satisfy the judgment and execution.

§ 235. Attachment, how executed on property incapable of manual delivery.

The execution of the attachment upon any such rights, shares, or any debts, or other property incapable of manual delivery to the sheriff, shall be made by leaving a certified copy of the warrant of attachment with the president or other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on.

a. Notice. An attachment issued under the code must, in order to reach a debt due to the defendant in attachment, or other property held by a third person, be executed by the sheriff, by the delivery, to the defendant or person holding property of the defendant, in person, of a copy of the warrant, with a notice showing the property levied on. Leaving such copy and notice at the place of business of the debtor with a third person found there, is not a sufficient service of the attachment by the sheriff. Whether the defect can be supplied and the attachment made effectual, by proof that the papers were afterwards delivered by such third person to the debtor or person holding property of the defendant (Orser v. Grossman, 11 How. 520; 4 E. D. Smith, 443).

b. The execution of an attachment upon a promissory note may be made by leaving with the holder a certified copy of the warrant, with a notice showing the property levied on (Russell v. Ruckman, 3 E. D. Smith, 419).

c. Whether property incapable of manual delivery is attached where the sheriff simply serves a copy of the warrant without making and returning an inventory under section 232, and without the notice prescribed by section 235 (Lyman v. Cartwright, 3 E. D. Smith, 117; Wood v. Orser, 25 N. Y. 353).

d. This notice should describe particularly the property levied on, so as to enable the holder to identify it and deliver it to the sheriff when his own claims are satisfied. But a notice referring to the property in general terms as belonging to the debtor in the attachment, is sufficient (Greenleaf v. Mumford, 19 Abb. 469; 30 How. 30; Drake v. Goodridge, 54 Barb. 78; but see Kuhlman v. Orser, 5 Duer, 242; Wilson v. Duncan, 11 Abb. 3; Orser v. Grossman, 4 E. D. Smith, 443).

§ 236. Certificate of defendant's interest to be furnished.

Whenever the sheriff shall, with a warrant of attachment, or execution against the defendant, apply to such officer, debtor, or individual, for the purpose of attaching, or levying upon, such property, such officer, debtor, or individual, shall furnish him with a certificate under his hand, designating the number of rights or shares of the defendant in the stock of such association or corpora

tion, with any dividend or any incumbrance thereon, or the amount and description of the property held by such association, corporation, or individual, for the benefit of, or debt owing to the defendant. If such officer, debtor, or individual refuse to do so, he may be required by the court or judge to attend before him, and be examined on oath, concerning the same, and obedience to such orders may be enforced by attachment.

a. Certificate.-A sheriff on demanding a certificate under this section should disclose the fact that he has an attachment or execution in his hands (Schieb v Baldwin, 13 Abb. 469; 22 How. 278).

b. The remedies given by this section are merely cumulative and do not toll any remedies the creditor before possessed (Skinner v. Stuart, 13 Abb. 443; see, however, S. C. on appeal, 24 How. 489; 15 Abb. 391).

e. In Hoagland v. Stodolla, 1 Code Rep. N. S. 210, the attachment was served on R., who, it was alleged, was indebted to the defendant, and a certificate demanded under section 236. R. certified having in his hands $75, which the plaintiff not deeming satisfactory, obtained an order for R.'s examination. Held, that the order should not have been made; that the order under section 236 cannot be made where a certificate has been given; although the party served merely certifies that he has no property (Carroll v. Finley 26 Barb. 61; Reynolds v. Fisher, 48 Barb. 146). But if the plaintiff can establish to the satisfaction of the judge that the certificate is untrue, then such a certificate may be regarded as a refusal to give a certificate (ib.)

d. See laws of 1848, cap. 50, as to certificates in suits against foreign corporations.

e. A bailee of goods having a lien thereon for an amount exceeding their value, who certifies that he holds no goods of the defendant, does not thereby forfeit his lien (B'k of Mut. Redemp. v. Sturgis, 9 Bosw. 660).

§ 237. (Am'd, 1859.) Judgment, how satisfied.

In case judgment be entered for the plaintiff in such action, the sheriff shall satisfy the same out of the property attached by him, if it shall be sufficient for that purpose.—

1. By paying over to such plaintiff the proceeds of all sales of perishable property, and of any vessel, or share or interest in any vessel, sold by him, or of any debts or credits collected by him; or so much as shall be necessary to satisfy such judgment;

2. If any balance remain due, and an execution shall have been issued on such judgment, he shall proceed to sell, under such execution, so much of the attached property, real or personal, except as provided in subdivision four of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his hands; and in case of the sale of any rights.or shares in the stock of a corporation or association, the sheriff shall execute to the purchaser a certificate of sale thereof, and the purchaser shall thereupon have all the rights and privileges in respect thereto which were had by such defendant.

3. If any of the attached property belonging to the defendant shall have passed out of the hands of the sheriff without having been sold or converted into money, such sheriff shall repossess himself of the same, and for that purpose shall have all the authority which he had to seize the same under the attachment, and any person who shall willfully conceal or withhold such property from the sheriff, shall be liable to double damages at the suit of the party injured.

4. Until the judgment against the defendant shall be paid, the sheriff may proceed to collect the notes and other evidences of debt, and the debts that may have been seized or attached under the warrant of attachment, and to prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment.

At the expiration of six months from the docketing of the judgment, the court shall have power, upon the petition of the plaintiff, accompanied by an affidavit, setting forth fully all the proceedings which have been had by the sheriff since the service of the attachment, the property attached, and the disposition thereof, and also the affidavit of the sheriff, that he has used diligence and endeavored to collect the evidences of debt in his hands so attached and that there remains uncollected of the same any part or portion thereof, to order the sheriff to sell the same, upon such terms and in such manner as shall be deemed proper. Notice of such application shall be given to the defendant or his attorney, if the defendant shall have appeared in the action. In case the summons has not been personally served on the defendant, the court shall make such rule or order as to the service of notice and the time of service, as shall be deemed just.

When the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the attached property or the proceeds thereof.

a. Sheriff to retain property.-Where property is seized by a sheriff, by virtue of an attachment, he must retain it in his possession until the determination of the action, and, if the plaintiff recovers judgment, until the property is sold under an execution issued thereon (41 Barb. 471), unless the judgment is otherwise satisfied, or unless, in case of perishable goods, &c., he is ordered to sell the same (McKay v. Harrower, 27 Barb. 463; Dodge v. Porter, 13 Abb. 253; 8 Bosw. 696). If he has the goods when a proper execution is presented to him, and proceeds to sell thereon, it is all the plaintiff has a right to require of him (id.) It seems that where books are in the custody of the sheriff under attachment, he is not bound to permit an examina

tion of them (McCartan v. Van Syckel, 10 Bosw. 694). Where a sheriff is in receipt of rents from a defendant's real estate he may be ordered to apply them on incumbrances (Fitzgerald v. Blake, 28 How. 109).

a. Execution.-Where the person who was the sheriff when the attachment was issued, and executed it, ceases to be sheriff by the expiration of his term of office, before the plaintiff obtains his judgment and issues his execution, the execution should be directed and delivered to the former sheriff, and not to his successor (McKay v. Harrower, and Dodge v. Porter, supra). The execution issued in such a case should be a special one, directed to the former sheriff as such, reciting the issuing of the attachment, and taking of the property thereon, and requiring the sale of that property by him; after which it should direct him to sell the property of the defendant generally (id.) Until a proper execution has been put in his hands, directing a sale of the property seized, such former sheriff cannot be placed in default in respect to such property. He is not bound to deliver the property to his successor in office to be sold on an execution directed and delivered to the latter; and cannot be made liable for a refusal so to deliver it (id.)

b. Moneys on deposit in a trust company were levied on by the sheriff. Defendants appeared and defended unsuccessfully, but did not procure the attachment to be discharged, nor did the sheriff collect said moneys; pending the action the trust company failed. Held that said moneys were not to be regarded as paid upon the plaintiff's judgment (McBride v. Farmer's Savings B'k. 7 Abb. 347).

c. Where the defendant dies after the allowance of an attachment and before judgment, the right to order an execution is with the court in which the action was pending, and not with the surrogate. The execution should be indorsed to levy only upon the property taken by the attachment (Thacher v. Bancroft, 15 Abb. 243).

d. A sheriff of this State has no power to sell, upon an execution issued on a judgment in an action commenced by attachment, the real estate of a foreign corporation, situated in another State (Runk v. St. John, 29 Barb. 585).

e. Judgment.-The judgment referred to in the first paragraph of this section is a final judgment, and not a judgment from which an appeal has been taken. The attached property is not to be released on payment of a judgment in favor of plaintiff, from which he has appealed (Wright v. Rowland 36 How. 248).

$238. When action to recover notes, &c., of defendant may be prosecuted by plaintiff in the action.

The actions herein authorized to be brought by the sheriff, may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff from all damages, costs, and expenses on account thereof, not exceeding two hundred and fifty dollars in any one action. Such sureties shall, in all cases, when required by the sheriff, justify by making an affidavit that each is a householder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities.

f. Action.-No action can be maintained until the requirements of this section have been complied with (Skinner v. Stuart, 15 Abb. 391; 24 How. 489; 39 Barb. 206); and the fact of such compliance must be specified in the