§ 226. (Am'd 1870.) Affidavits to oppose motion.

The application mentioned in the last section may be opposed by affidavits, or other proofs, in addition to those on which the injunction was granted.

CHAPTER IV.

Attachment.

SECTION 227. Foreign corporations, nonresident or absconding or concealed defendants. Action when commenced.

228. Attachment, by whom granted.

229. In what cases attachments may be issued. Affidavits to be

filed.

230. Security on obtaining attachment.

231. Attachment, to whom directed, and what to require.

232. Mode of proceeding in executing attachment.

233. Proceedings in case of perishable property or vessels.

234. Interest in corporations or associations liable to attachment.

235. Attachment, how executed on property incapable of manual

delivery.

336. Certificate of defendant's interest to be furnished.
237. Judgment, how satisfied.

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

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

240. Discharge of attachment, and return of property or its pro-
ceeds to defendant, on his appearance in the action.
241. Undertaking on the part of defendant.

242. When sheriff to return attachment with his proceedings
thereon.

243. Sheriff's fees.

§ 227. (Am'd 1857, 1866.) Foreign corporations, nonresident or absconding or concealed defendants.

In an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal property, against a corporation created by or under the laws of any other State, government, or country, or against a defendant who is not a resident of this State, or against a defendant who has absconded or concealed himself, or whenever any person or corporation is about to remove any of his or its property from this State, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his or its property with intent to defraud creditors, as hereinafter mentioned, the plaintiff, at the time of issuing

the summons, or any time afterwards, may have the property of such defendant or corporation attached, in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover; and for the purposes of this section an action shall be deemed commenced when the summons is issued; provided, however, that personal service of such summons shall be made, or publication thereof commenced within thirty days.

a. New remedy.-"The attachment authorized by this chapter is a new remedy which did not exist under the old system. Unlike the attachment against absent or absconding debtors under the revised statutes, which was for the benefit of all the creditors, and as to which the jurisdiction of the justices of the superior court is not taken away (Renard v. Hargous, 13 N Y. 259), this attachment is for the benefit of the individual creditor (Frazer v. Greenhill, 3 Code Rep. 172; Fisher v. Curtis, 2 Sand. 68; Furman v. Walter, 13 How. 348; Mechanics B'k of Jersey City v. Dakin, 50 Barb. 587). But the provisions of the revised statutes concerning attachments against foreign corporations, and absconding, concealed, and nonresident debtors, and the remedies provided by the revised atatutes, may be pursued in appropriate cases. See Renard v. Hargous (2 Duer, 540).

b. The remedy afforded by this chapter is not merely cumulative. It is the only remedy in the cases prescribed (Skinner v. Stuart, 39 Barb 206).

c. Foreign corporation.—A national bank is a foreign corporation within the meaning of this section (Cook v. State Nat. B'k of Boston, 50 Barb. 339; 3 Abb. N. S. 339; Bowen v. First Nat. B'k of Medina, 36 How. 408). "A foreign corporation is not authorized, either by the code or the revised statutes, to sue another foreign corporation in the courts of this State by attachment, unless the cause of action has arisen or the subject of the action is situate within this State" (Western Bank v. City Bank of Columbus, 7 How. 238). Where a note was made at the office of the defendants in the State of Iowa and was payable at a bank in the city of New York, held the cause of action arose out of the State (Cantwell v. Dubuque West. R. R. Co. 17 How. 16).

d. A nonresident plaintiff cannot have an attachment against a foreign corporation unless the cause of action arose within the State (Id.; and see McDonough v. Phelps, 15 How. 372). It is not necessary in an attachment against a foreign corporation under laws of 1842, ch. 197, to serve a copy of the proof upon one to whom lands have been conveyed in trust for the corporation (Wright v. Douglass, 7 N. Y. 564; Willett v. Equit. Ins. Co. 10 Abb. 193); in an action on a policy issued and delivered in this State, the cause of action arises within this State (Burns v. Provincial Ins. Co. 35 Barb. 525; 13 Abb. 425).

e. Where the demand upon which the action was brought arose upon written contracts for the payment of money, executed and delivered and payable in Canada; and all the work done and materials furnished were under those contracts, and upon work located in Canada, for a corporation created by the laws of Canada, and existing there, except a small part of the labor, which was performed in this State under said contracts,-held not to be the case where the cause of action arose in this State, and although the defend ant, the foreign corporation, had property in this State liable to attachment, the attachment could not be sustained by a nonresident plaintiff (Campbell v. Proprietors of Champlain R. R. 18 How. 413; and see Whitehead v. Buffalo &c. R. R. Co., 18 How. 218; Harriott v. N. J. R R. Co., 8 Abb. 284).

f. As to proceedings against Great West. R. R. of Canada, see Laws 1857, p. 188.

a. Lien of attachment.-An attachment binds real estate from the time of being levied (Burkhardt v. McClellan, 15 Abb. 243, note); and upon personal estate from the time when it is allowed (Thacher v. Bancroft, 15 Abb. 243: see, however, Kuhlman v. Orser, 5 Duer, 250). For the purpose of securing the lien on real estate as against the defendant, it is only necessary that it should be included in the inventory returned by the sheriff; he is under no necessity to enter upon the land, or see it, or go into its vicinity, nor do any other act than return it in his inventory (Learned v. Vandenburg, 7 How. 381; affirmed, 8 id. 77; Yale v. Matthews, 20 How. 430; 12 Abb. 379). But to secure the lien as against subsequent bona fide purchasers notice under § 132 must be filed. In respect to personal property, it is otherwise. To render the seizure effectual it must be accompanied by possession. The sheriff is bound to see that it is safely kept, to satisfy the judgment when recovered. He must, therefore, not only seize the property, but take it into his custody (lb.) Where there are several attachments against the same property, they will have priority according to the order of their delivery to the sheriff (Mechanics B'k of Jersey City v. Dakin, 50 Barb. 587). An attachment in an action on a money bond payable by installments, is a lien only for the installments actually due (Syracuse B'k v. Coville, 19 How. 385). A sheriff acquires a lien upon property levied on by him under attachment, which constitutes a qualified or special title. He is thereby authorized to hold possession until the demands for which the attachment issued are paid, or until judgment and sale thereunder of the property seized (Rhoades v. Woods, 41 Barb. 471). By the issuing of an attachment the plaintiff obtains such a lien upon the property attached as entitles him to the intervention of equity to set aside any fraudulent obstacles to the enforcement of his lien (Greenleaf v. Mumford, 19 Abb. 469; 30 How. 30; Hall v. Stryker, 27 N. Y. 596; Renshey v. Stryker, 28 N. Y. 45; 26 How. 140; 31 N. Y. 140; B'k of Mut. Redemp. v. Sturgis, 9 Bosw. 601; Kelly v. Line, 42 Barb. 594; Frost v. Mott, 34 N. Y. 253; Clapp v. Mott, ib.) Where no lien is obtained on a fund by the attachment, no action can be maintained either by the sheriff or the attachment creditor to have the attachment declared a lien (Greenleaf v. Mumford, 35 How. 148; 4 Abb. N. S. 130).

b. Summons issued.-A summons may be considered as issued if made out and placed in the hands of a person authorized to serve it, and with a bona fide intent to have it served (Mills v. Corbett, 8 How. 500).

c. Jurisdiction.-The supreme court acquires jurisdiction from the time of the allowance of the attachment (Burkhardt v. Sandford, 7 How. 329). In actions within subdivision 2 of section 33 ante, the superior court of New York has no jurisdiction whatever, unless the defendant is a resident of the city of New York, or if he be a nonresident, is personally served with the summons within that city; therefore, where the defendant is a nonresident of that city, the issuing of an attachment and levy upon his property thereunder before the personal service of the summons upon him is wholly unauthorized (Zeregal v. Benoist, 33 How. 129; see Cole v. Kerr, 2 Sand. 660; Gould Bryan, 3 Bosw. 626; Kerr v. Mount, 28 N. Y. 659). But the attachment becomes valid so soon as the summons is personally served; therefore, after service of the summons a motion to set aside the judgment cannot be granted; the most that could be done in such a case would be to set aside the levy (Zeregal v. Benoist, 7 Rob. 199).

§ 228. Warrant, by whom granted.

A warrant of attachment must be obtained from a judge of the court in which the action is brought, or from a county judge.

d. Process.—Is the warrant process? (Morgan v Avery, 2 Code Rep. 91; Conklin v. Dutcher, 1 Code Rep. N. S. 49; Camman v. Tompkins, 12 Barb. 265; Frazer v. Greenhill, 3 Code Rep. 172; Niles v. Vanderzee, 14 How. 549;

Furman v. Walton, 13 id. 353; Houghton v. Ault, 16 id. 77; Cruyt v. Phillips, 16 id. 124).

a. Judge.-Where an attachment issues against an absent debtor, in an action in the supreme court, by a justice of that court, he acts as a judge of that court, and not as a commissioner (2 Wend. 298), and the proceedings are not abated by the expiration of the term of his office. Therefore, where in such a case pending the proceedings the term of office of the justice expires, an application is properly made to any other judge of the court (Davis ̧v. Ainsworth, 14 How. 346).

§ 229. (Am'd 1857, 1860.) In what cases warrant may be is sued; affidavits to be filed.

The warrant may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof, and that the defendant is either a foreign corporation, or not a resident of this State, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or to keep himself concealed therein with the like intent, or that such corpora tion or person has removed, or is about to remove any of his or its property from this 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, any of his or its property, with the like intent, whether such defendant be a resident of this state or not.

It shall be the duty of the plaintiff procu ring such warrant, within ten days after the issuing thereof, to cause the affidavits on which the same was granted to be filed in the office of the Clerk of the County in which the action is to be tried.

b. When attachment may issue.-In order to justify the issuing of an attachment, it is not necessary that the plaintiff should have a cause of action for the payment of money merely. It is enough that a cause of action exists against the defendant (Ward v. Begg, 18 Barb. 139; Hernstein v. Matthewson, 5 How. 196; Lawton v. Kiel, 51 Barb. 30; S. C. 34 How. 465). But an attachment cannot issue in an action for a tort (Gordon v. Gaffey, 11 Abb. 1), nor in an action of trespass for taking personal property (Shaffer v. Masin, 18 Abb. 455, 286; 29 How. 55; 43 Barb, 501; Saddlesvene v. Arms, 32 How. 280); nor in an action between partners for a dissolution of the partnership, on accounting and payment of an alleged balance (Ketchum v. Ketchum, 1 Abb. N. S. 157); nor in an action for breach of promise to marry (Barnes v. Buck, 1 Lans. 268); nor in an action against a nonresident for converting property in a foreign State (Knox v. Mason, 3 Rob. 681); nor in an action against a common carrier for a negligent loss of goods entrusted to him to carry (Atlantic Mut. Ins. Co. v. M:Loon, 48 Barb, 27) ; nor in an action seeking equitable relief; as to have a deed cancelled (Ebner v. Bradford, 3 Abb. N. Š. 248); nor in an action against a domestic corporation on the ground of a fraudulent disposition of its property (Ferrier v. Amer. Glass Silv. Co., 3 Abb. N. S. 419; 34 How. 496). The remedy in such a case is under 2 R. S. 462 (id.) An attachment may issue in an action for fraud in obtaining goods on credit (Scott v. Simmons, 34 How. 66).

a. An attachment may issue against the property of one of several joint debtors (Stoughtenburg v. Vandenberg, 7 How. 229; Brewster v. Honigsbergher, 2 Code R. 50; Baird v. Walker, 12 Barb. 298; Goll v. Hinton, 8 Abb. 120; see Sears v. Gearn, 7 How. 383). In an action in the supreme court, on a promissory note made by the defendants as co-partners, one of the defendants resided in the city of New York, and was there served with the summons and complaint. The other defendants were nonresidents. The plaintiffs obtained an attachment against the nonresident defendants, and under it levied copartnership property. A motion to set aside the attachment was denied (Brewster v. Honigsbergher; Goll v. Hinton, supra). Where, in an action on contract in the superior court against two defendants jointly liable, the summons had been personally served on one defendant only, and it appeared that the defendant served, who had not appeared, was a nonresident, it was held that a judge of the superior court had power, in such a case, to issue an attachment against the property of the defendant not served, and that there "was no longer any distinction in such cases between the power of the judges of that (superior) court and of the supreme court" (Anon. 1 Duer, 662). And as to the power and authority of the superior court judges to issue attachments under the revised statutes, see Renard v. Hargous (2 Duer, 540; 13 N. Y. 259).

b. In an action by a simple contract creditor to recover his debt, the plaintiff may, on sufficient evidence of fraud, in an assignment by the debtor of his property, have an attachment against such property (Skinner v. Oettinger, 14 Abb. 109); but not where the fraud was prior to the assignment (Belmont v. Lane, 22 How. 365). The fraud must be actual, not merely constructive (id.) c. An attachment may issue where both plaintiff and defendant reside, and the cause of action arose out of the State (Ready v. Stewart, 1 Code Rep. N. S. 297). And a nonresident plaintiff is entitled to the like benefit of the provisions of the code relating to attachments as if he were a resident of this State, except as against foreign corporations (17 How. 16); aliter as regards attachments under the revised statutes (id. Re Coates, 12 How. 344). See, however, as to the last proposition, 1 Hill, 482; Re Marty, 2 Barb. 436; 3 Barb. 229; and Laws of 1845, cap. 153, enact, "Such application may be made by any creditor resident within this State, or out of it." And in Renard v. Hargous (13 N. Y. 259), it was held that it is not requisite that all the members of a firm doing business in this State should reside therein, to authorize an attachment under the revised statutes in their favor for a debt due from nonresident debtors, on a contract made without the State.

d. The mere circumstance that a merchant makes a disposition of his property when he becomes insolvent and is pressed by creditors, not conclusive proof of fraud (Loeschigh v. Bridge, 42 Barb. 171). A threat by a debtor, on proposing a compromise with his creditors, that if they do not accept it he will make an assignment, and they will get nothing, is not sufficient to authorize an attachment; in the absence of any proof of a fraudulent intent, the threat will be construed to refer to a legal assignment (Wilson v. Britton, 26 Barb. 562; 6 Abb. 97; and to the like effect is Dickinson v. Benham, 10 Abb. 390; affir'd 20 How. 343; contra, see Livermore v Rhodes, 3 Rob. 626; 27 How. 506).

e. An assignee of a demand may issue an attachment in a suit to recover such demand (1 Hill, 482). The trustees of a nonresident, &c., debtor may issue an attachment (21 Wend. 316). An attachment does not lie against an administrator, or executor, for a demand against his intestate (9 Wend. 465), except where he has made himself personally liable (21 Wend. 32).

f. Where defendant, a married woman, trading on her own account, when called upon on several occasions to pay the plaintiff's debt, put off doing so, stating that her husband every night took all the money she received during the day, and paid it to her creditors, which statement as to the payment was untrue,-held plaintiff was entitled to an attachment (Anderson v. O'Reilly, 54 Barb. 620).

g. An attachment cannot be sustained on the allegation of removal of his