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 prop erty 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 Savinge 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

complaint (id) But where the action is commenced without filing any undertaking the court may order it filed nunc pro tunc (Millbank v. Broadway B'k, 3 Abb. N. S. 223). Where the sheriff levies on a promissory note in course of prosecution, he may continue the action in the name of the plaintiff, or may be substituted as plaintiff at his election (Russell v. Ruckman, 3 E D. Smith, 419). Where, in an action by the sheriff pursuant to this action, defendant has a set-off, other attaching creditors are not necessary parties to the suit (Glenville Woolen Co. v. Ripley, 6 Rob. 530).

§ 239. Bond to sheriff on attachment, how disposed of on judgment for defendant.

If the foreign corporation, or absent, or absconding, or concealed defendant, recover judgment against the plaintiff in such action, any bond taken by the sheriff, except such as are mentioned in the last section, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered by him to the defendant, or his agent, on request, and the warrant shall be discharged, and the property released therefrom.

§ 240. (Am'd 1862.) Discharge of attachment, and return of property or its proceeds to defendant.

Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same; and if the same be granted, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered or paid by him to the defendant or his agent, and released from the attachment.

And where there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order of attachment, the defendant whose several property has been seized may apply to the officer who issued the attachment for relief under this section.

a. Discharge.-The application on the part of the defendant to discharge the attachment is "purely ex parte." The plaintiff has no right to except to defendant's sureties (Sanborn v. Elizabethport Manuf'g Co. 22 How. 106; 13 Abb. 433). The court may direct notice of the application to be given to the plaintiff, and if a notice is so given and the defendant does not attend at the time specified, the court cannot give plaintiff the costs of his attendance (id.) b. After judgment for the plaintiff in the action, it is too late for the defendant to avail himself of this section (Spencer v. Rogers Locomotive Works, 13 Abb. 180; see Zerega v. Benoist, 7 Rob. 205).

d. A surety in an undertaking given pursuant to this section is not discharged by an order on the principal to furnish further security, that order not being complied with (Jewitt v. Crane, 13 Abb. 97; 35 Barb. 208).

c. A motion to compel a party to furnish further sureties on the ground

that he has imposed on the court; as for instance that one of the sureties is an infant, is not an exception to the sufficiency of the sureties (Jewitt v. Crane, 35 Barb. 208). Sureties may be allowed for their own protection to defend an action against their principal; and even after judgment has been entered, they may on a prompt application have the judgment set aside and be let in to defend (id). In such an action the sureties cannot avail themselves of any mere irregularities in the original action (id.)

§ 241. (Am'd 1857, 1862, 1869.) Undertaking on the part of the defendant; discharge of attachment.

Upon such application, the defendant shall deliver to the court or officer an undertaking, executed by at least two sureties, who are residents and freeholders or householders in this State, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff, the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint. If it shall appear by affidavit that the property attached be less than the amount claimed by the plaintiff, the court or officer issuing the attachment may order the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised. And the plaintiff may, within three days after receiving written notice of the filing of such undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails so to do, he shall be deemed to have waived all objection to them. When the plaintiff excepts, the sureties shall justify on notice in like manner as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties, and may retain possession of the property attached and the proceeds thereof in his hands, until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justify. And in all cases the defendant may move to discharge the attachment, as in the case of other provisional remedies. And when there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order of attachment, the defendant, whose several property has been seized, may deliver to the court or officer an undertaking in accordance with the provisions of this section, to the effect that he will on demand, pay to the plaintiff the amount of judgment that may be recovered against such defendant. And all the provisions of this section applicable to such undertaking shall be applied thereto.

a. Discharge.-Where a party has been attached as a nonresident, he may move to have the attachment discharged on the ground of his being a resident, and the court will grant a reference to ascertain the fact, without the undertaking required by this section (Killian v. Washington, 2 Code Rep. 78). The issuing an attachment against a debtor on the ground that he is a nonresident, when in fact he is a resident, is an irregularity only, and must be taken advantage of at the earliest opportunity, or it will be waived (Lawrence v. Jones, 15 Abb. 110). Giving an undertaking under § 241 does not preclude the defendant from afterwards moving to set aside the attachment (Garbutt v. Hanff, 15 Abb. 189). A motion to set aside an attachment as improvidently issued must be on the plaintiff's affidavit only. Additional affidavits cannot be used (White v. Featherstonhaugh, 7 How. 357; see also Bank of Lansingburg v. McKie, 7 How. 360).

b. Where an undertaking was given on discharging an attachment against a nonresident defendant, and subsequently the plaintiff moved for other sureties, on the ground that one of them was insolvent,-held that the court had no power to order additional sureties in such a case (Dudley v. Goodrich, 16 How. 189; 7 Abb. 26).

c. An order appointing an appraiser to ascertain the value of property attached for the purpose of an undertaking to procure a discharge of the attachment is not appealable (Lupton v. Jewett, 19 Abb. 320).

d. In an action on a bond given to obtain the release of property seized under an attachment, the defendants are estopped from denying any fact recited in the undertaking (Coleman v. Bean, 3 Keyes, 94; Haggart v. Morgan, 5 N. Y. 422).

§ 242. thereon.

When sheriff to return warrant, and proceedings

When the warrant shall be fully executed or discharged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action was brought.

§ 243. (Am'd 1865.) Sheriffs' fees.

The sheriff shall be entitled to the same fees and compensation for services, and the same disbursements, under this title, as are allowed by law for like services, and disbursements, under the provisions of chapter five, title one, and part two of the Revised Statutes. Provided, however, that no poundage or other compensation shall be allowed to the said sheriff (except his fee of fifty cents for making the levy, and such compensation for his trouble and expense in taking possession of and preserving the property as shall be fixed by the officer issuing the attachment), unless a settlement shall be had, or a judgment shall be recovered and collected in whole or in part, in the action in which the attachment in this title referred to shall have issued. And where a judgment shall have been recovered and collected in part only, the amount of his poundage shall not be estimated upon any sum greater than the sum collected upon such judgment. And where a settlement shall be had, the amount of his poundage shall not be estimated upon any sum greater than the amount at which said settlement is made.