Page:United States Statutes at Large Volume 76A.djvu/400

–304– -304least two sureties, to the effect that in case the plaintiff recovers judgment in the action against the defendant, by whom or in whose tJehalf the undertaking is given, the defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of any judgment in the action against the defendant, or in default thereof that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released not exceeding the amount of the judgment against the defendant. The court may fix the sum for which the undertaking must be executed, and if necessary in fixing the sum to know the value of the property released, it may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify before the court and the property attached may not be released from the attachment without their justification if it is required. § 361. Discharge of attachment iregularly issued (a) The defendant may also at any time, either before or after the release of the attached property, or before any attachment has been actually levied, apply on motion, upon reasonable notice to the plaintiflF, that the writ of attachment be discharged on the ground that it was improperly or iregularly issued. (b) If the motion is made upon affidavits on the part of the defendant, the plaintiff may oppose it by affidavits or other evidence, in addition to those on which the attachment was made. (c) If upon the application it satisfactorily appears that the writ of attachment was improperly or iregularly issued it shall be discharged; but the attachment may not be discharged if at or before the hearing of the application, the writ of attachment, or the affidavit, or undertaking upon which the attachment was based is amended and made to conform to this subchapter. § 362. Return of writ; filing order releasing attachment The marshal shall return the writ of attachment with the summons, if issued at the same time; otherwise, within 20 days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto. If an order has been made discharging or releasing an attachment upon real property, a certified copy of the order may be filed in the office of the registrar of property. § 363. Release of real property from attachment An attachment as to real property may be released by a writing signed by the plaintiff, or his attorney, or the officer who levied the writ and acknowledged in the manner provided by chapter 27 of Title 4; and upon the filing of the release, the registrar of property shall note it on the record of the copy of the writ on file in his office. Such an attachment may also be released by an entry in the margin of the record thereof, in the registrar's office, in the manner provided for the discharge of mortgages by section 4127 of Title 4. § 364. Attachment of interest in decedent's estate The interest of a defendant in personal property belonging to the estate of a decedent, whether as heir, legatee, or devisee, may be attached by serving the personal representative of the decedent with a copy of the writ and a notice that the interest is attached. The attachment may not impair the powers of the representative over the property for the purposes of administration. A copy of the writ of attachment and of the notice shall also be filed in the office of the clerk of the court in which the estate is being administered and the personal representative shall report the attachment to the court when a petition for distribution is filed, and in the decree made upon the petition distribution shall be ordered to the heir, legatee, or devisee.

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