When property of the defendant found in his possession, or in the hands of any other person, shall be attached, the defendant or such other person may retain possession thereof by giving bond and security to the satisfaction of the officer executing the writ, to the officer or his successor in double the value of the property attached conditioned that the same shall be forthcoming when and where the court shall direct, and shall abide the judgment of the court.
History: C.L. 1897, § 2685 (198), added by Laws 1907, ch. 107, § 1 (198); Code 1915, § 4313; C.S. 1929, § 105-1616; 1941 Comp., § 22-120; 1953 Comp., § 26-1-20.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Giving bond not release property from lien. — Under Kearny Code, Attachments, § 13; Comp. Laws 1865, ch. 31, § 12; Comp. Laws 1897, § 2704, repealed by Laws 1907, ch. 107, § 1 (300), which was identical with the present section, the giving of a forthcoming bond in attachment did not release the property from the attachment lien. It simply constituted the defendant the bailee of the sheriff for the safe-keeping of the property, and for its return to the sheriff in case the plaintiff should recover, and in default of which the liability of the bond attaches to the defendant and his sureties. It did not constitute a general appearance. Holzman v. Martinez, 1882-NMSC-011, 2 N.M. 271 (decided under former law).
Action by sheriff for breach. — An action may be brought for breach of a forthcoming bond by the sheriff for the use and benefit of the real parties in interest. Wagner v. Romero, 1884-NMSC-013, 3 N.M. (Gild.) 167, 3 P. 50 (decided under former law).
Action without joinder of principal. — Action was maintainable on forthcoming bond in attachment without joining principal or without showing judgment against principal and exhaustion of remedies against the principal. Wagner v. Romero, 1884-NMSC-013, 3 N.M. (Gild.) 167, 3 P. 50 (decided under former law).
Principals and sureties jointly and severally liable. — Principals and sureties on forthcoming bond in attachment were jointly and severally liable. Wagner v. Romero, 1884-NMSC-013, 3 N.M. (Gild.) 167, 3 P. 50 (decided under former law).
Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Attachment and Garnishment §§ 523, 529, 531, 541, 542, 544, 547, 616.
Bankruptcy of debtor within four months after attachment or execution as discharging surety on bond given to release property seized thereunder, 36 A.L.R. 449, 107 A.L.R. 1138.
Right of obligor in action on forthcoming bond or receipt for return of property seized under process to set up title in himself, 37 A.L.R. 1402.
7 C.J.S. Attachment §§ 248, 249, 258, 259, 268 to 274, 290, 316, 367.