i ! i Mi'! i ) i'- 1 1 Hltd ;i lililil 1 j i } ii' 1 1 li 1 tte MHaiu nJUHiil Si ' -: '-^ '^in i ii iiif. rn^n'r ^ !l 1! : . !j txi .Or-CALlf(j UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ^c Ud Qn "^^ ' ^v© >-l *jn ^\\ III ni/Mi 1 1 '/ I ^**^ HMV-^m 31^ '^c^oiiTVi-^o^ %n-i :alifo%^ ^Oi IK) DEFEND* § 398. General remarks. § 399. The defense of want of jurisdiction. § 400. The defense of prior garnishment. § 401. Exemption as a defense. § 402. Assignment prior to service. § 403. Defense of payment— No goods, etc. § 404. Defensei on account of the capacity in which Ihe gamiahee holda prop- erty. § 405. Other matters of defense to garnishment proceedings. CHAPTER XXX. garnishee's LIABILITY IN RESPECT TO PERSONAL PROPERTT IN HIS POSSESSION. ^ 406. General remarks. 407. The kind of property that may or may not be the subject of garnish- ment — Effects — Credits — Choses in action. §', >. Shares in capital stock of corporations. § 4l . Garnishee not chargeable in respect to exempt personal property. § 410. Defendant's interest in the property in garnishee's possession. ^ CHAPTER XXXI. POSSESSION UPON WHICH GARNISHEE'S LIABILITY DEPENDS. § 411. Possession, whether actual or constructive. § 412. Actual control, held more important than legal control. § 413. Possession by a non-resident garnishee. § 414. Garnishee's possession, whether with claim of ownership or not. § 415. Whether the garnishee's possession is rightful or otherwise. 416. The cLuestion of defendant's interest in or title to the property attached. ^... TABLE OF CONFENTS. CHAPTER XXXII. THE CAPACITY IX WHICH GARNISHEE HOLDS DEFENDANT'S PROPERTY. §417 The general effect upon garnishee's liability. ^ 4 1 s". Where the party summoned as garnishee cannot be sued. § 410.' Municipal corporations as garnishees. § 4-20. Officers of the law— clerks of courts. § 4-n" Sheriffs, and other executive officers of courts. ^ 4^>2 Treasurers, and other public officers and agents, § 423. Assignees, etc. , in bankruptcy and insolvency. § 424. Receivers and similar officers. § 425. Executors. § 426. Administrators. § 427. Guardians and curators. § 428. Trustees of private trusts and powers. §429. Officers, agents, etc., of corporations. § 430. Agents and servants of other defendants. § 431. Attorneys at law. CHAPTER XXXIir. TRANSFER OR INCUMBRANCE OF PROPERTY PRIOR TO GARNISHMENT. § 432. The fourth party to the controversy. § 433. The intervener's claim as proprietor. § 434. \Vhen the consideration of the transfer is brought in question by the answer. § 435. Issues made with the intervener. § 436. Consequences of failure on the part of garnishee to give notice to the transfer of interest. § 437. Equitable assignment prior to service. § 43S. Attempted transfer ineffectual. § 439. Fraudulent assignments. § 440. Rights of parties affected by prior mortgage of chattels in garnishee's possession. § 441. Pledge as garnishee. § 442. Other liens to which property in possession of the garnishee may be subject. CHAPTER XXXTT. CONTRACTS BETWEEN DEFENDANT AND GAENISHi_.i § 443. The contract to deliver property to the owner. § 444. Contracts that qualify garnishee's liability. § 445. Contracts by which garnishee's liability is unaffected. TABLE OF CONTENTS. Ix CHAPTER XXXV. oarnishee's liability as a debtor. § 446. General remarks. § 447. Nature of defendant's demand against garnishee. § 448. A legal debt. § 449. The debt should not be subject to contingencies. § 450. Contingencies by which garnishee's liability is unafiFected. § 451. Conditional obligation as a foundation for garnishment. § 452. A debt payable in money. § 453. Consideration of the debt — Contracts of indemnity. § 454. Capacity in which the debt is contracted — Municipal corporations and public oflBcers. § 455. Same — Executors and administrators. § 456. Debts contracted in a private representative capacity. § 457. The plaintiff as gamiahee. CHAPTER XXXYI. garnishee's indebtedness evidenced by negotiable instruments. § 458. Maker of negotiable paper as garnishee. § 459. Reasons for the rule that negotiable credits cannot be reached by gar- nishment of the debtor. § 460. Circumstances that destroy the negotiability of instruments — No ex- ceptions to the rule. § 461. Conditional garnishment of payer of negotiable paper before maturity. § 462. Garnishment, where instrument has been fraudulently assigned. § 463. Effect of notice of garnishment upon rights of indorsee. § 464. By what law the negotiability of the instrument is to be determined. CHAPTER XXXYII. prior assignment of garnishee's indebtedness and contracts affecting his liability. § 465. Equitable assignment of choses in action generally. § 466. Assignment of instruments which are not negotiable, § 467. Overdue commercial paper. § 468. Assignment of debts evidenced by writing. § 469. Assignment of open accounts, etc. § 470. Assignment of future indebtedness. § 471. The importance to the debtor of notice of the assignment § 472. When and by whom notice should be given. § 473. Garnishee's liability aflfected by his contract relations with defendant. § 474. Garnishee's indebtedness affected by contracts with third persons. § 475. The consideration of contracts with third persons. § 476. The contract must be with the party capable of contracting in rela- to the subject-matter. X TABLE OF CONTENTS. § 477. Garnishee's liability as surety of guarantor of defendant. § 478. Where defendant holds the claim against garnishee in a representa* tive capacity. § 479. Fraudulent assignments and contracts. § 4S0. The law that determines the validity of contracts or assignments. § 4S1. Duty of the garnishee to disclose his rights acquired by prior assign- ments or contracts. § 482. The form and substance of the assignment or other contract, by which garnishee's liability may be affected. CHAPTER XXXVIII. GARNISHMENT OP DEBTS BEFORE MATURITY; § 483. Indebtedness at the time of service, or prior to answer. § 484. Debts payable in the future. § 485. Garnishee not rec[uired to pay until his debt is payable*. CHAPTER XXXIX. GARNISHEES JOINTLY INDEBTED, AND CREDITS JOINTLY OWHED, § 486. Garnishee jointly and severally indebted. § 487. Garnishee jointly indebted. § 488. Garnishees severally indebted. § 489. Credits jointly and severally owned by defendants, § 490. Partnership credits. § 491. Credits jointly owned by defendants, but not as partners,- CHAPTER XL. GARNISHMENT AFTER SUIT BY DEFENDANT AGAINST GARNISHEE. § 492. Action pending in the same court from which garnishment issues. § 493. Action and garnishment pending in different courts of concurrent jurisdiction. § 494. Action and garnishment pending in separate courts of different juris* diction. § 495. Where judgment against garnishee will bar the action by defendant. § 496. Where the action by defendant wUl bar the proceeding of garnishment, § 497. Judgment debtors charged as garnishees. § 498. The doctrine that judgment debtors cannot be garnished. § 499. Prior judgment in favor of party summoned as garnishee. CHAPTER XLI. EFFECT OF GARNISHMENT PRIOR TO SUIT BY DEFENDANT. § 500. Prior garnishment pleaded in abatement by attachment defendant. TABLE OP CONTENTS. xi § 501. Prior garnishment as ground for continuance of subsequent suit or stay of execution. § 502. Effect of judgment against the garnishee. § 503. Effect of judgment against the garnishee and a satisfaction thereof. § 504. Essential conditions to the effectiveness of judgment and satisfaction as a defense — judgment against the creditor. § 505. The validity of the judgment against the garnishee. § 506. How the judgment should be satisfied to constitute a valid defense. § 507. Payment under execution. § 508. Judgment in favor of garnishee. CHAPTER XLII. garnishee's defenses to defendant's cause op action. § 509. General remarks. § 510. The defense of payment. § 511. Same manner and time of payment. § 512. Payment under compulsory process. § 513. Garnishee's set-off, or cross demand. § 514. The claim to be set off considered as to the parties interested. § 515. Character of the demand set off, whether legal or squitable. § 516. Garnishee's collateral liability as a defense. § 517. When the set-off should be acquired to become available in garnish- ment. § 518. Whether set-off due, or to become due. § 519. Defense of failure of consideration, § 520. The Statute of Limitations, and other defenses*- CHAPTER XLIII. JUDGMENT IN GARNISHMENT. § 521. Judgments upon which the judgment against garnishee depends^ § 522. Judgment by default against garnishee. § 523. Judgment on garnishee's answer. § 524. Garnishees of judgment and execution creditors. § 525. Force and effect of the judgment against garnishee. § 526. Judgment against intervenor. § 527. Collateral attack on the judgment in garnishment, § 528. Judgment discharging the garnishee. GARNISHMENT. CHAPTER XXIV. GARNISHMENT, GENERALLY CONSIDERED. § 325. General description of the process— Wherein it differs from seizure. § 326. The necessary parties to the proceeding by garnishment. § 327. Garnisliee's liability to plaintiff. § 328. Nature of defendant's demand against garnishee. § 329. Proiierty that may be reached by garnishment. § 330. The capacity in wliich property is held by garnishee, before service. § 331. The character in which such property is held after service. § 332. The nature and object of tlie proceeding against garnishee. § 333. The proceeding purely statutory. § 334. G'l.rnishment unaided by equity. § 335. Equitable rights not subject to garnishment. § 336. Judgment against garnishee depends on regularity of process. § 337. When garnishee's position is antagonistic to both the principal parties* § 338. The effect of garnishment regularly served. § 339. General distribution of matters to be considered. § 325. General Description of the Process — Wherein it differs from Seizure. — Garnishment is the method of attaching the effects of a debtor which is directly suggested by the Cus- tom of London already referred to.^ It diff^ers from attach- ment by seizure in two important particulars : (1) Its validity does not depend upon the officer's taking possession.^ (2) It creates no specific lien upon the defendant's property in favor of the plaintiff.^ There are other incidental differences which will be noticed as we proceed ; but they grow out of the two mentioned. It is peculiarly adapted to the attachment of cred- its or debts due the defendant in the action ; but its operation is not confined to these, as it may be employed where the sub- ject of attachment is tangible property, in the possession of 1 Ante, § 1. 2 Dennistoun v. N. Y. C. & S. Co., 6 La. An. 782. SBigelow V. Andress, 31 111. 322 ; Bailey v. Ross, 20 N. H. 302. II. Attach.— 1. § 325 GARNISHMENT, GENERALLY CONSIDERED. 2 some one other than the debtor, and it is deemed necessary or more expedient to resort to this method than to assume the responsibility of actual custody. Nor is it always confined to cases where the officer is unable to seize the property of the debtor.* For, as we have seen, the mere fact that goods and chattels are in the possession of a third party does not exempt them from actual seizure under process of attachment.^ But where the property of the defendant is held by one whose pos- session the plaintiff has no right to disturb; when it is uncer- tain whether the third person holds property which belongs to the defendant, or what particular chattels he so holds ; or when the subject of attachment is a debt due defendant, garnishment is the only method by which it can be attached. This mode of procedui'e is not universally designated as garnishment. In most of the New England States it is called the trustee pro- cess. In others, it is called factorizing. In the one case, the party in possession is called the trustee; in the other, X\\e factor. But, after all, it is but another mode of effecting the same general purpose, and the two modes possess most of the fea- tures that distinguish attachment from ordinary process. Where the affidavit is i-equii-ed, it is no less essential in cases of garnishment than of seizure.^ Where the bond is an essen- tial prerequisite to the issue of the writ, the bond must be given before the garnishee is summoned." Tlie service of sum- mons, actual or constructive, may figure alike in both modes of procedure, although the service upon the garnishee must be personal. The plaintiff may render himself liable for the abuse of process in this manner, as though he had directed the seizure of defendant's property.^ Attachment, when by garnishment, may be dissolved for irregularity, or on traverse of the affidavit, precisely as though there had been seizure of chattels or levy on real property.^ . The same circumstances will, in general, warrant a tangible < Burlingame v. Bell, 16 Mass. 318 ; Ante, § 264. 6 Ante, § 264. ^Post, § 356. "• Citizen's Bank v. Payne, 21 La. An. 380 ; Phelps v. Bougbton, 27 La. An. 365 ; Post, § 356. 8^n;;eiierally makes meiitiou of the pro[)erty with pos- session of wliich the garnishee may be charged, as effects, cred- its, or other personal property. But, however general the lan- guage of the statute of any State may be, it cannot embrace real estate as the proper subject of garnishment.^ There are several reasons for this-. Real estate is not even seizable in attachment wlien in the possession of the defendant ; hence it could not properly be delivered to the officer or de[)osited with the Court by the garnishee. The attachment lien can be [jlaced' on real estate witli greater facility, with less expense, and great- er notoriety than by summoning as garnishee the party in pos- session. The title to real estate passes by deed, to which notoriety is given by registration ; and the lien, to be effectual, must be upon the title. It is the debtor's transferable interest that the attachment seeks to encumber, and tiie process of gar- nishment is strikingly inapt in all respects to place obstructions in the way of a conveyance of real estate, regardless of who may be in possession. Aside from debts due from the garnishee to the defendant in the action, the " effects " reached by garnishment must be personal in character. And, although credits and tangible chat- tels are alike affected, they are each held under different provis- ions of the statute, and to some extent, at least in theory, sub- ject to different rules. Thus, it is held that the garnishment operates so far as a specific lien upon the property in the pos- session of the garnishee, that he is under obligation to retain it in specie, without changing its form, and be prepared to de- liver it to answer the judgment in the principal case.^ There is, undoubtedly, a quasi lien, that makes the garnishee liable to the plaintiff, in case he abandons the possession, or restores the property to the owner, tlie latter being the defendant. To this extent, the property may be said to be in the custody of the Court, with the garnishee as its agent.^ There are obvious 1 Bissell V. Strong, 9 Pick. 562; Baxter v. Currier, 13 Vt. G15; Chapman v. "Williams, 13 Gray, 416; Gore v. Clisby, 8 Pick. 555; How v. Field, 5 Mass. 390; Seymour v. Kramer, 5 Iowa, 285; Wright v. Baseworth, 7 N. H. 590. 2 Brashear v. West, 7 Peters, 608; Mattingly v. Boyd, 20 How. 128, 8 Infra, § 330. § 329 GAENISHMENT, GENERALLY COXSIDEEED. 10 exceptions to this, to be noticed in the next succeeding section. But for the general reason that this kind of lien is created on the specific property, it is generally impracticable to apply it to money, although that is included under the general term property. Thus, where gold and silver coin was in the posses- sion of an attorney, who had collected it for the defendant, it was held not subject to attachment as property, for the reason that the defendant had no interest in the particular pieces of coin, but was creditor to the attorney for a certain sum of money, and the debt might be satisfied by payment out of any other funds."* It is also held that garnishment does not reach mere choses in action, as promissory notes in the possession of the garnishee upon which nothing has been paid.^ Garnishment served on the holder of such securities in an action against the payee, does not prevent the latter from pros- ecuting suits thereon, until required by the Court to pay over the sums received, or deliver the claims into the hands of a re- ceiver.^ The property in the hands of the garnishee must be such as under the law of the State is subject to execution and attachment. If, for any reason, it would be exempt in the hands of the owner, it cannot be affected by the service of the summons or notice upon the garnishee." But to have this ef- fect, the exemption must be such as could be claimed under the laws of the State in which the property is attached, where the provision for exemption is different from that of the State where the wages are due.^ Where the subject of garnishment is wages due an employee, a certain amount of which the law exempts, the employer is under no obligation to allow his in- debtedness to accumulate until the amount due exceeds the ex- emption ; but may, after service, pay the wages as they fall due, so long as the amount paid at any one time does not ex- ceed what is exempt by law.'^ 4 Maxwell r. McGee, 12 Cush. 137. <• Fitch V. Waite, 5 Conn. 117; Gore v. Clisby, 8 Pick. 555, Gilmer i'. Carna- han, 81 Pa. St. 217. 6 Bank of State of Missouri v. Bredow, 31 Mo. 523. In Xew York it is held that bonds, bills, and promissory notes can only be attached by seizure. — An- thony V. Wood (Ct. App.), Ch. Leg N., Oct. 4, 1F84. J Chicago & C. E. Co. v. Ryland, 84 111. 375; Bliss i'. Smith. 78 HI. 359. 8 Bolton V. Penn. Co., 88 Pa. St. 261; Morgan v. Neville, 24 P. F. Smith, 52. 9 Hoffman v. Fitzwilliam, 81 III. 521. 11 GAKNISnMENT, GENERALLY CONSIDERED. § 330 § 330. The Capacity in which Property is Held by Garn- ishee before Service. — The capacity in which the r,^ariiisliec hohls tlie property of defendant, before the service of the writ, may affect his liability after service, without operating to re- lieve liini from all responsibility; or it may be sucli as to ren- der the garnishment utterly nugatory. It is generally of no consequence whether he holds it adversely to defendant, or in strict subordination to the hitter's claim of ownership, provid- ed it can be shown to be the property of defendant, in whicli the garnishee has no interest.^ We have already had occasion to state that if it be held by ass^ignment, which is binding ui)oa tiie assignor, but froadulent as to creditors, it may be at- tached at the suit of any one of the latter.^ But if it be held by a valid ])urchase and payment, it is plain that there can be no interest belonging to the debtor to attach. So, where the garnishee holds the property in pledge to secure an indebted- ness from the owner to himself, it is equally obvious that he will be under no obligation to subordinate his own rights to the demands of another creditor.'^ There is no exception to the rule, that the property of defendant in his own possession cannot be attached by service of notice of garnishment upon himself. And it is merely an extension of the same doctrine, that declares garnishment ineffectual to bind the property in the hands of an agent or servant,* or Avhen held by a mere bailee, whose possession is that of the owner. ^ In such cases, the property can and should be attached by direct seizure.^ But this extension of the rule by applying it to cases where the property is in the possession of an agent or servant of the de- fendant, is by no means general. It is held that the agent with money in his possession, delivered to him by the jirincipal 1 But this must be taken subject to statutory contradictions. Where the process was confined to cases in which property had been " intrusted or depos- ited in his (garnishee's) hands," it could not be employed successfully against one who held defendant's jjroperty wrongfully. — Stanielsw. Raymond, 4 Gush. 314. 2 Svpra, § 327. 3 Davis V. Wilson, 52 la. 187; Badlam v. Tucker, 1 Pick. 389; 11 Am. Dec. 201; Mitchell v. Byrne, 6 Rich. (S. C.) 171; Aldrich v. Woodcock, ION. H. 99. 4 Fowler v. Pittsburgh etc. R. Co., 35 Pa. St. 22. 5 Hall V. Filter Mf'g Co., 10 Phila. 370. 6 Hall V. Filter Mf'g Co., 10 Phila. 370. § 330 GAENISHMEXT, GEXERALLY COXSIDERED, 12 for the purpose of paying one creditor, may be forced to pro- duce it in answer to garnishment by another creditor.^ And so, that a toll-gate keeper would be required to answer as gar- nishee in an action against the Company, for money in liis iiands, as its servant.^ Whei'e the statute confines the process of garnishment to cases where property is held by third persons, there can be no doubt that a fair construction would prevent its em- ployment to reach effects in the hands of mere servants of the debtor, whose possession is that of the master. It is in pursuance of this rule of "interpretation that one of two joint debtors cannot be served with garnishment in an action against himself and his creditor, or for the purpose of reaching effects in the hands of one of several joint execution debtors, lie is liable in solldo with his co-defendants, and cannot be regarded as a " third person."^ When, however, the defendant in the action is a corporation, and the party to be served is an officer of such corporation, a reasonable distinction may be made. There is not that same identity of person between a corpora- tion and an individual member thereof, whether he be an offi- cer or not, that there is between master and servant, in re- spect to the possession of property of the principal or master. To create the exemption, the relation should have reference to the thing sought to be attached. Even a servant might stand toward the master in the relation of an ordinary debtor ; or the holder of property subject to the owner's order, as any stran- ger. So, the officer of a corporation may be its debtor, and subject to be proceeded against, as any other individual occu- pying the same relation. Upon this theory, it was held that the president of a bank, having funds of the corporation in his hands, was in this respect to be regarded as any other debtor, and subject to garnishment in a suit against the bank.^" l\e- lying upon the authority of this case, it was subsequentlj- held by the same Court that the cashier, or other officer of a cor- poration, might be required to answer under garnishment, as ^ Center v. INIcQuestion, 18 Kan. 476. 8 Central Plank-road Co. v. Sammons, 27 Ala. 380. 9 Bailey v. Lacy, 27 La. An. 39. w Ballston Spa Bank v. Marine Bank, 18 "Wis. 490. 13 GARNISHMENT, GENERALLY CONSIDERED. § 330 to fumls of the corporation In his })08session as such officer.^* But elsewhere it i^s lieUl, us it seems under a diffiirent rule tlian that followed in the case last cited from Wisconsin, that ticket agents of a railroad company are not subject to garnishment as third persons, in an action against the company. ^■^ Where the projK'ity is held by the garnishee, as the officer of the Court, .as a legally a[)[)ointed custodian, tht^ property itself is regarded as in custocUce legis, and not subject to attachment by garnishment, or otherwise. ^^ But when the custody of the law is properly terminated by a failure to issue final process, property held by one as receiptor therefor will be subject to this process, at the suit of another creditor, and he may be held liable, although by his own procvu'cment the property has been applied in satisfaction of the judgment rendered in the suit under which he came into possession.'* This doctrine is often tersely expressed, to the effect that money in the hands of an officer of the Court is not subject to attachment :^^ but this is not universally true, at least as stated ; for it is held that the reversionary interest of the debtor in money deposited with the clerk of the Court, in lieu of a bond for costs, may be reached by garnishment of the clerk. ^*^ And it is also held that the residue in the hands of the executive officer, after satisfying a judgment against the defendant out of the proceeds of an execution sale, may be attached as the property of such defendant in such officer's hands. ^'' But money in the hands of the officer, as the proceeds of such sale, is gen- erally held exempt from attachment, as the property of the. execution creditor.^^ But this cannot be called a general i^ile, as it is held otherwise in some of the States,'^ and the decis- 11 Everclell v. Sheboygan etc. R. Co., 41 Wis. 395. See, also, First Nat'l Bank V. Davenport etc. R. Co., 45 la. 120; Post, § 346. 12 Fowler v. Pittsburgh etc. R. Co., 35 Pa. St. 22. 13 Alston V. Clay, 2 Haywood (X. C. ) 171; Blair v. Cantey, 2 Speer(S. C), 34; 42 Am. Dec. 360; Davis v. Holcombe, 1 Ohio, 275; Dubois u. Dubois, 6 Cow. 494; Burrell v. Letson, 1 Strobliart (S. C), 239; Ante, § 26a " Cole V. Wooster, 2 Conn. 203. 15 Ross V. Clark, 1 Dall. 354. IS Dunlap v. Patterson Fire Ins. Co. , 30 Am. R. 283; 12 Hun. 627. 1" Tucker v. Atkinson, 1 Humph. (Tenn.) 300; 34 Am. Dec. 650. isConant v. Bicknell, 1 D. Chip. (Vt.) 50; First v. Miller, 4 Bibb. (Ky.) 311; Prentiss v. Bliss, 4 Vt. 513; 24 Am. Dec. 631; Ruddick v. Smith, 4 111.451: Tur- ner V. Fendall, 1 Crancli. 117; Thompson v. Brown, 17 Pick. 462; Ante, § 26-4. 19 Coane v. Freese, 16 N. J. L. 305. § 331 GARNISHMENT, GENERALLY CONSIDERED. 14 ions of the Courts of different independent jurisdictions, when rendered in reference to State statutes, cannot be harmonized, or brought to tlie test of any governing principle.^'^ The prop- erty of the defendant may be hekl by the garnishee subject to a trust, and when so hekl, cannot be attached in his hands in a manner to work a violation of the trust.^^ And this is true, though the trust is to be carried into effect by the defendant. Thus, where the answer disclosed that the garnishee was in- debted for the carriage of freight, which was performed in part by defendant, and in part by a stranger to the action ; and it was the custom of defendant to collect the entire amount, and ac- count to the stranger for his proportion, it was held that the garnishee could only be required to account for the share due defendant.-^ § 331. Tli9 Character in which such Property is held after Service. — Supposing the property in the hands of the gar- nishee to be attachable, and properly attached by the proceed- ings taken for that purpose, he tliereafter holds it subject to the judgment. Thenceforward the property is in the custody of the law, and the garnishee becomes its legal custodian. ^ It is no part of the garnishee's duty to interfere between the prin- cipal parties, or aid either in the contest, beyond such inci- dental assistance as he may render to either party by a true answer.^ It is not even necessary that he should interplead as a claimant of the property.^ But the disinterested position occupied by the garnishee is not one that is forced upon him in such a manner as to prevent liim from showing that the property in his possession does not belong to defendant in the action.^ While the property is so held, it is not subject to at- tachment at the suit of another creditor of the defendant, nor is it necessary or proper for the garnishee's possession to be 20 Zrt/ra, §333. 21 Haven v. Weutworth, 2 N. H. 93; Post, § 428. 22 Bowler v. European etc Co., 67 Me. 395. 1 Deunistonii v. N. Y. etc. Co., 6 La. An. 782; Scholfteld v. Bradlee, 8 La. 495; Ante, § 2G4. 2 Hazard v. Agricultural Bank, 11 Eob. La. 326; St. Louis Perpetual Ins. Co. V. Cohen, 9 Mo. 417. 3 Abernathy v Whitehead 69 Mo. 28. 4 Albany City Iiis. Co. v. Whitney, 70 Pa. St. 248. 15 GARXISIIMENT, GENERALLY CONSIDERED. § 332 (llsturbcd by the officer who serves the writ.^ The service of siimmon.s niiikcs the garnishee liable for the value of all de- feiulant's [)roperty In his possession at the time, or coming to his possession up to the time of answer ;*" and his right to the uuintcrru[»tcd possession, subject to the order of the Court, is commensurate with the liability imposed upon him. § 332. The Nature and Object of the Proceeding against Garnishee. — Although the plaintiff does not necessarily pro- ceed against a garnishee as an adversary, the contest before the close may be narrowed down to a question of conflicting right between them. But whether it ever assumes this feature or not, for all the purposes of a determination of the rights of the parties, the proceeding is regarded as a suit-^ It is so held in the United States Circuit Court for the district of Ar- kansas, for the purpose of determining a question of jurisdic- tion fixed by the residence of the respective parties, and it was decided that garnishment issued out of the United States Court, in an action where the ground of jurisdiction was that plaintiff and defendant were residents of different States, could not be served upon a garnishee resident within the same State as the plaintiff.^ The reasons for thus holding assigned by the Court were, that the objects and purposes of the proceed- ing contemplated a legal investigation by substantially the same means, using the same instrumentalities employed in an ordinary action between plaintiff and defendant. The gar- nishee was entitled to his day in Court ; there were issues of fact to be tried, proper for submission to a jury ; and the result aimed at was a judgment against the garnishee, with all its usual incidents. The claim that it was merely a part of the execution process was rejected.^ But it was held otherwise in the State of Pennsylvania,"^ where the question was one of SDennistoun v. N. Y. etc. Co., 6 La. An. 782; Scholfield v. Bradlee, 8 La. 495; Mattingley v. Boyd, 20 How. 128. 6 Kennedy v. Brent, 6 Cranch, 187 ; Franklin Ins. Co. v. West, 8 Watts & S. (Pa.) 350. 1 Delacroix v. Hart, 24 La. An. 141. 2Tunstall v. Wortbington, Hempstead (C. C.) 662; Middleton Paper Co. v. Eock River Paper Co., 19 Fed. Rep. 252. 3 Tunstall v. Wortbington, Hempstead (C.p.) 662. * Kidderlin v. Myer, 2 Miles, 242. § 332 GARNISHMENT. GENERALLY CONSIDERED. 16 privilege of a foreign consul to be sued only in the Federal Courts, and he was summoned as garnisliee in a State Court. In Alabama the proceeding by garnishment was held to be a suit, and consequently the summons could not be served with effect upon an administrator, under a statute forbidding the commencement of suits against an administrator in his repre- sentative capacity, until six montlis after the grant of letters of administration.^ Garnishment certainly possesses most of the characteristics of a suit. While it Is true that the full ben- efit of the jjroceeding may be enjoyed by the plaintiff without any contest with the garnishee, the same is true of a direct action against a debtor. The latter may confess judgment and interpose no obstacles to a recovery. The course of proceed- ings is the same, subject to the control of circumstances, the only difference between the two being one of likelihood. It is less probable that the plaintiff and garnishee will have dis- puted facts to litigate, than that there will be an active contest between plaintiff and defendant ; but the law makes as ample provision for the one event as the other. The means provided are as a{)t for the purpose of exacting satisfaction from an unwil- ling party, as from one who acknowledges plaintiff's right without question, and the end of the proceedings Is the same in either case — a judgment upon which execution will Issue, to be made out of the goods, chattels, effects, and real estate of the judgment debtor.^ True, the surrender of the property of the original defendant, or the payment into Court of the amount of garnishee's Indebtedness to such defendant, will dis- charge the garnishee from liability to plaintiff ; but this sur- render is a duty to be enforced by ample compulsory means. A failure to comply with the just demands of the 2)laintiff will subject the garnishee to a judgment as general as that which plaintiff has against his own debtor. And the action or pro- ceeding possesses all these characteristics of a suit against the garnishee, whether the garnishment be In aid of the original action against the plaintiff's debtor, or Is resorted to as the means of enforcing the judgment obtained by ordinary process. In either event the object of the proceedings is to reach the 6 Moore v. Stainton, 22 Ala. 831. 8 Post, Ch. XLnL 17 GARNISHMENT, GENERALLY CONSIDERED. § 333 debtor's effects in the hands of the third party, and the mat- ter to be determined by the trial is whether the garni.shee has any such debtor's effects, which are subject to execution and attachment, and to render them subject to the judf!;mcMt. It is difScult to see why a proceeding involving so much should not be called a suit. § 333. The Proceeding purely Statutory. — The liabilities imposed and the rights secured by this proceeding are regu- lated entirely by statute. The universality of this means of enforcing demands within the United States does not bring it within the rules of construction that govern actions founded upon the common law. Its adoption in the several States and Territories is due entirely to legislation, and it has only been affected by judicial decisions as the Courts have undertaken to construe the statutes by which it was made a part of the law. It cannot be resorted to, except in cases where it is ex- pressly authorized; and when its statutory- limits have been reached without effecting the purpose for which it was invoked, the Courts cannot extend its operations into new fields,, or con- trive new means of rendering it applicable to the exigencies of the particular case.-' Thus, where the statute prescribes that the effects and credits of the debtor in the hands of the garnishee at the time of the service of the statutory warning upon him, and up to the date of his answer, shall be held sub- ject to the judgment, he may, with perfect security, answer at once, unless it is otherwise provided ; and cannot be held for property or money subsequently coming to his hands, or debts subsequently contracted, even though the receipt of such prop- erty or the incurring of such indebtedness to the defendant in attachment be contemplated, or expected at the time he is summoned to answer.^ The Court cannot compel the gar- nishee to take any measures to ascertain the facts in respect to which he is called upon to answer, beyond those provided for by statute. If he has in possession a trunk or other recepta- cle, containing, or supposed to contain, money or valuables, the iMay V. Baker, 15 HI. 90; Parker v. Farr, 2 Browne (Pa.), 331; Wolf v. Tappan 5 Dana, 361. 2 Bliss V. Smith, 78 111. 359. n. Attach.— 2. § 333 GAENISHMENT, GENERALLY CONSIDERED. 18 property of the defendant In attachment, or judgment debtor, and the same is secured by a lock, the garnishee is under no obligation of his own motion to break the lock, in order to be able to answer as to the contents, nor can the Court order him to do so.^ This is not saying, however, that in every instance the garnishee would be excused, where, after garnishment, he surrenders to defendant the possession of a package containing attachable property, merely because he did not know its value, and held the same only as gratuitous bailee.^ Nor does this limitation upon the power of the Court over the garnishee af- fect the right of the officer to seize the property of defendant, and for that purpose break open the safe, box, or other recep- tacle in which it is contained.^ But when the means of gain- ing possession by the officer are inadequate to that end, the garnishee process cannot be resorted to for the purpose of sup- plying the omission in the statute. Where the answer of the garnishee is rendered impossible by his death, there is no power outside of the statute to sup- ply his place by substituting his personal representatives as the third narty.^ The effect of the judgment cannot be enlarged or extended by imjdication beyond its statutory limits. It creates no lien upon the garnishee's estate, when he dies pending the action ; nor does it give the attaching creditor any preference, as a creditor of the garnishee, over other creditors of the same de- fendant." The garnishee, except when the statute otherwise provides, cannot avail himself of the bond in attachment given for the protection of defendant.^ In Illinois, at least, it is held that, in the absence of express authorization by statute, garnishment cannot be resorted to by the judgment plaintiff to make the amount of the judgment against the garnishee. The debtors of such garnishee cannot be summoned to answer for their indebtedness to the garnishee, « Gregg w. Nilson, 8 Phila. 91; Bottom v. Clark, 7 Cush.487. * Layless v. Hodges, 44 Ga. 647. fi United States v. Graff, G" Barb. 304. 6 Tate V. Morehead, 65 N. C. 681. 7 Parker v. Parker, 2 Hill Cli'y (S. C), 35; Parker v. Farr, 2 Browne (Pa.), 331. 8 Hays V. Anderson, 57 Ala. 374; Rounds v. Hammer, Id. 342. 19 GARNISHMENT, GENERALLY CONSIDERED. § 334 even after he has become the judgment debtor of the original plaintiff.9 § 334. Garnishment unaided by Equity. — There is sucli a thing as attachment in chancery proceedings, which is author- ized by the statutes of some of the States. There is also the Creditor s Bill, and a proceedhuj hi the nature of a creditor s hill — the first of which is employed for the purpose of reach- ing the effects of decedents, and the other for rendering subject to unsatisfied judgments the concealed effects of the judgment debtor.^ These, except where they are statutory, are exclu- sively within the domain of equity juris])rudence, and have a process peculiar to themselves, for bringing tliird parties in possession of the debtor's property or credits before the Court, to render an account of their holdings, that it may be applied in satisfaction of the creditor's demand. But the slight analogy between these two modes of procedure never brings the process of garnishment, as prescribed by statute and a part of the at- tachment law, for the purpose of enabling creditors by sum- mary means to secure the payment of legal demands, within the protecting care of a Court of Equity." There is a general rule that a right or power conferred by statute cannot be aided in equity, where it fails, because the statute, according to strict construction, has not been closely followed.^ Courts of Equity will not lend their aid to carry into effect the incomplete exe- cution of statutory powers, that have for their object the in- voluntary transfer of property.^ These rules apply to statutory proceedings of all kinds, and with special appropriateness to 9 Bigelo-w V. Andress, 31 111. 322. ^ Hitherto I have taken it for granted that, except where the statute author- ized attachments to issue out of Courts of Chancery, the proceeding was strictly legal, na distinguished from equitable. But though this doctrine is quite gen- eral, I find an instance at least where it is laid down that "Foreign attach- ment or trustee process is regarded as a species of equitable action." — Stedman V. Vickery, 42 Me. lo2. 2 Nor does the attachment law take away the jurisdiction in equity to pursue this peculiar, extraordinary process with substantially the same end in view. — King V. Pagan, 18 Ark. 583; Payne v. Ballard, 723 Miss. 88; Lane v. Marshall, 1 Heisk. 30. 3 Stewart v. Stokes, 33 Ala. 494; Gridley v. Phillips, 5 Kan. 349; Smith v. Bowes, 38 Md. 463; Kearney v. Vaughn, 50 Mo. 284. 4 Gridley v. Phillips, 5 Kan. 349. § 334 GARNISHMENT, GENERALLY CONSIDERED. 20 attachments. Even where the process of garnishment was by statutory authority issued out of a Court of Chancery, it was hekl that the Court coukl not, in response to the prayer of a supplemental bill in which the bankruptcy of the garnishee was alleged, together with the fact that he was disposing of his effects, and would ultimately escape liability, issue a re- straining" order to prevent the payment of money to such gar- nishee. The power to enjoin such payment was not given by the statute, and the Court could not exercise it in aid of the statutory proceeding.^ Injunction is a purely equitable rem- edy, and garnishment a purely statutory one ; and when the latter is ineffectually employed, by reason of some inherent in- sufficiency, it cannot be eked out by the former.^ Where the process of garnishment is not specially authorized In chancery proceedings, it cannot be so employed.^ And as a general rule, the powers of a Court of Equity cannot be invoked in aid of garnishment, to restrain the garnishee from disposing of his property in anticipation of the judgment. But to this, as to almost all other statements of doctrine in connection with the attachment law, there are exceptions.^ To hold that a Court of Equity, or a Court in the exercise of Its equity powers, may Interfere to restrain the garnishee from disposing of his prop- erty, in anticipation of the judgment which may be had against him, seems reasonable. In view of the doctrine that the proceed- ing against the garnishee is a suit, and that its objects are to obtain a judgment enforcible In the same manner as a judg- ment obtained In a direct action.^ But It Is, nevertheless, an exception to the principle that so largely governs such Courts, that equity will not undertake to carry Into effect statutory powers. The garnishment, as we have seen, gives no specific lien. Where credits are thus attached, the garnishee will be discharged on payment of the debt due from him to the de- fendant, or that due from the defendant to plaintiff.^'' Where propei'ty Is held by him, either payment or surrender of the fi Wolf V. Tappan, 5 Dana, 361. 6 Arthur v. Batte, 42 Tex. 159. 7 Jones V. Huntington, 9 Mo. 249. 8 Moore V. Kidder, 55 N. H. 488. -: 9 Svpra, § 332. 10 Post, §§ 508, 510. 21 GARNISHMENT, GENERALLY CONSIDERED. § 335 property will discharge him.'^ The only security which the stiitiitory process provides is a judgment against garnishee, which makes him a sort oi judgment surety, as payment of the principal judgment against the original defendant is a satisfac- tion of both.^^ It is not a complete substitution of the liability of the garnishee for that of his immediate creditors ; fur tlie liability of the latter still continues. This condition of things is so clearly a creature of the statute, that to hold where the threatened failure of the security imperils plaintiff's remedy, equity will step in and provide safeguards which the statute has omitted, seems equivalent to placing the entire proceeding under equitable protection, and abrogating the doctrine that equity will not use its extraordinary powers in aid of a statu- tory riglit. Where the interest of one of the members of a partnership was attached by garnishment of his copartner, it was held that the attaching creditor could not maintain a bill in equity against the iiarnishee, for an accountlno; to ascertain the extent of the defendant's interest.'"^ But where the attachment is by seizure and sale of the interest under execution, the purchaser thereby becoming a co-tenant, would not be restricted in his means of bringing about a division. of the property, by the fact that his title was acquired at execution sale. § 335. Equitable Rights not subject to Garnishment. — AVhere law and equity are separately administered, either by distinct Courts, or by Courts that preserve the distinction in their modes of procedure in the different branches of jurispru- dence, the process of garnishment Is only employed to secure legal demands ; and In proceeding to judgment, the Court avIU only take cognizance of demands of this character that are ow- ing by the garnishee to the attachment defendant, or the judg- ment debtor. The first branch of this proposition — that only legal demands against defendant can be secured by garnish- ment. Is as generally true, as It Is that attachments can only be levied by seizure of property in support of such demands.^ 11 Post, § 508. 12 Post, §§ 508-510. 13 Treadwell r. Brown, 43 N. H. 290. 1 Ante, §§ 4, 20 ; Hut v. Coon, 9 Ind. 537 ; Netler v, Chicago Board of Trade, 12 111. App. 607. • § 335 GAEXISHMEXT, GEXEEALLT CONSIDERED. 22 "\rhen the debt owing by the garnishee Is purely equitable in its nature, there is a striking Inaptitude in this process for ascertaining the extent of such Indebtedness, and reducing it to judgment In favor of plaintiff, who holds a legal demand against the defendant. The Courts generally hold that where the garnishee or trustee process is authorized by the statutes to secure " debts " due the defendant in the action, and apply them in satisfaction of plaintiff's judgment, it means debts en- forclble by action at law, and not mere equitable demands.^ Under a statute providing that garnishee process might be served upon all persons " who are in anywise indebted to the defendant," the Court said : " We think that a legal Indebtedness is here meant ; such an indebtedness as could be enforced in a Court of Law, in an ac- tion brought by the defendant against the garnishee. This at- tachment proceeding is strictly of a legal, and not of an equit- able, character ; and being In derogation of the common law. It Is dependent entirely upon the statute for its support."^ And so It was held in Alabama, that the defendant's rights to the fund or property sought to be condemned to the satisfaction of plaintiff's judgment must be legal, as contradistinguished from equitable.^ Following the same rule, notwithstanding the law and equity jurisdiction of the Court in California, where A contracted with B to construct a buildino;, for which B agreed to pay a certain sum in Installments as the work progressed, and C contracted with A to do a portion of the work for a fixed sum, also to be paid in installments as his work progressed, and A assigned to C a part of the money to fall due from B, equal to the contract price of C's work, it was held that no such legal demand existed In favor of C against B, as was liable to garnishment by C's creditor. And this was for the reason that a debt not in existence was not assignable at law, and the assignment only created an equity, if anything. In favor of the assignee.^ In reaching this conclusion, although no decided 2 Hoyt V. Swift, 13 Vt. 133 ; 37 Am. Dec. 586; Clark v. Farnum, 7 R. I. 174. 3 May V. Baker, 15 111. 90 ; Swann v. Summers, 19 W. Y. 15. 4 Harrell v. ^Yhitmau, 19 Ala. 138. See, also, Folsom v. HaskeU, 11 Cush. 470; Joliuson V. Lamping, 34 Cal. 293 ; Godden v. Pierson, 42 Ala. 370 ; Massachu- setts Xat'l Bank v. Bullock, 120 Mass. 86. 5 Hassle v. God Is With Us Congregation, 35 Cal. 378. See, also, Field v. The Mayor of Xew York, 2 Seld. 179. 23 GARNISHMENT, GENERALLY CONSIDERED. § 336 opinion was expressed as to whether the assignment created an equity In favor of the assignee, the doctrine that C(|uitable rights couhl be reached by garnishment was expressly disap- proved. There can be no doubt, however, where the statute expressly declares that equitable demands are subject to gar- nishinent, they may be so reached, and the Courts must find appropriate means for carrying the law into effect. But aside from all technical objections to the use of this process in such cases, it is manifestly inappropriate where the alleged indebt- edness of the garnishee to defendant is one growing out of an unsettled partnership business between them.^ § 336. Judgment against Garnisliee depends on Regularity of Process. — The liability to plaintiff which results from the service of process of garnishment, can be imposed in no other way upon the garnishee. We have already had occasion to state that his position between the parties is that of a disinter- ested stakeholder.^ He is neither required nor permitted to influence the result by any action on his part. His willingness or his unwillingness to be served with process, or his friendli- ness or unfriendliness to either of the principal parties, makes no difference one way or the other. He may feel ever so favor- ably inclined towards plaintiff's suit, or desire ever so earnest- ly to see defendant prevail ; but he must act impartially and seek to advance the interest of neither, except in so far as it involves the security of his own rights.^ Although the pro- ceeding against him is a suit in which he may occupy a position adverse to plaintiff in all respects, as though he were a defend- ant in the action prosecuted by plaintiff in his debtor's name,^ he is not in a position to facilitate the progress of the proceed- ing by waiving process. Where the statute requires process to be jjersonally served, in ord-sr to give the Court jurisdiction to render judgment against the garnishee, his voluntary appear- ance without such service, and answering interrogatories, will not be taken as the legal equivalent of such service.^ The 6 Burnham v. Hopkinson, 17 N. H. 259; Driscoll v. Hoyt, 11 Gray, 404; Shee- dy-u. Second Nat'l Bank, 62 Mo. 17. 1 Supra, § 326. 2 Citizens' Bank v. Payne, 21 La. An. 380. 8 Supra, § 332. 4 ScLindler v. Smith, 13 La. An. 476. But see Eoy v. Heard, 38 Miss. 544. § 336 GARNISHMENT, GENERALLY CONSIDERED. 24 plaintiff and defendant may not be the only parties interested in the disposal of tlie fund in the garnishee's hands. There inav be others who have a right to ques'.ion the validity of proceedings taken to condemn it to the payment of the debt sued on in the principal action. Thus, where there had been an assignment of the debt owing by the garnishee to the de- fendant, it was held that the garnishee's voluntary waiver of service, by endorsement on the petition, would not authorize a judgment against hira that would be binding upon the assignee.^ Such voluntary acceptance of service has also been held a iiullit}', as against attaching creditors, in whose suits jurisdic- tion was regularly obtained by the service of process.*^ It is not even sufficient that the garnishee has been served with notice or summons, or whatever the process may be styled, if he is not served with substantial regularity, in a case where the attachment suit is pending under a live writ. When the re- turn day of the writ of attachment is passed, it has lost its vi- tality, and has no longer any office to perform as the basis of judicial proceedings." Consequently, when the garnishment process is served after the return day, and the garnishee a[)- pears and answers thereto, liis a[)pearance will be regarded as voluntary, and in general the judgment rendered in pursuance of such appearance will be set aside at the instance of other credi- tors of the same defendant.^ But wliere the return day named in the writ was by a clerical error a date prior to that on which the writ was issued, it was held that this error might be corrected, and the appearance would authorize judgment, the service being prior to the return day intended.^ Where the garnishee was a C(n-[)oration, and the statute required service of process to be made on one of several designated officers, it was held that the acceptance of service by the attorney, he not being one of the officers upon whom service might be legally made, was 5 Helxil V. Amazon Ins. Co., 33 Mich. 400. Contra, Calioou v. Morgan, 38 Vt. 234. 6 Scliiudler v. Smith, 18 La. An. 476; Phelps v. Bougton. 27 La. An. 592; Cit- izens' Hank v. Payne, 21 La. An. 380; Hodges v. Graham, 25 La. An. ;-!80; AVooilfolk V. Whitworth, 5 Coldw. (Tenn.) 5G1; Hobel v. Amazon Ins. Co., 33 Mich. 400. " Ante. § 140. et seq.; Post, Ch. XVL 8 Southern P)ank v. McDonald, 46 Miss. 31. 9 Welluver o. Soule. 30 Mich. 48L 25 GARNISHMENT, GENERALLY CONSIDERED. § 337 insufficient to give the Court jurisdiction of the corporation.'" This results from the strict construction to which i)roceedIn28 of this kind arc subjected, as statutory means of devesting pro- prietary rights. But it must not be understood that when the party indebted to the defendant, in order to enable the plain- tiff to secure his debt, voluntarily informs him of the existence of the credit in favor of the defendant, and of his own willing- ness to answer therefor, the garnishment, which follows the suggestion of garnishee, will be rendered invalid by reason of his active sympathy with the plaintiff. This is not the kind of action that violates the neutrality of the third party. If plain- tiff acts on such information, and the holder of defendant's at- tachable property or credits is regularly sun)nioned as gar- nishee, judgment may be entered against him, as In any other case, and will be valid, notwithstanding the process was issued at his own suggestion. ^^ The doctrine as to the voluntary acceptance of service and waiving Irregularities, like most other features of the attach- ment law, is subject to exception, or rather, contradiction, and is so completely under statutory control that there is no com- mon ground upon Avhich conflicting authorities may be brought to the test of principle. It is held in Vermont that the accep- tance of service by a trustee (garnishee) will hold the fund in his hands as against a subsequent assignee. ^^ ■§ 337. Where Garnishee's Position is Antagonistic to both the Principal Parties. — Reference has been made to a possible condition of things, where the garnishee's lack of interest in the result of the contest between plaintiff and defendant is real, for the reason that he claims the property sought to be reached adversely to both.' In such cases as this, all his activity will be put forth in his own behalf. So, when he denies being in- debted to the defendant, he may be- drawn into a contest with each in succession. And where his denial of indebtedness or possession of defendant's property is acquiesced in by defend- ant, the garnishee must make the issue against the plaintiff, M Northern Cent. R. Co. v. Rider, 45 Md. 24; Post, § 504. 11 But the garnishee must act in good faith.— Smith v. Dickson, 58 Iowa, 444. 12 Cahoon v. Morgan, 38 Vt. 234. 1 Supra, § 326. § 338 GAP.NISHMENT, GENERALLY CONSIDERED. 26 and contest it at his own expense. The defendant Is under no obligation to protect every one who may be garnished in the suit against himself.^ The antagonism of garnishee may also arise from the fact that his possession of the money or prop- erty of defendant is wrongful. A person who obtains posses- sion of proj^erty which belongs to another, and which he has neither legal nor equitable right to retain, may be garnished by a ci'cditor of the owner as effectually as though he held the property with such owner's consent.^ So, where the property of the defendant was, without his consent, placed in the hands of an agent of one of his creditors, as security for a debt, it was very justly held that the agent or the creditor, if in pos- session thus wrongfully, could be garnished at the suit of an- other creditor, and would be bound by the judgment to the same extent as though such possession was held under contract with the owner.* Although the garnishee can only be required to answer as to debts due on contract, or liquidated demands such as may be reached in an action of deht^ it is not in every case essential that possession of the property to be attached in the hands of the garnishee should be subject to a contract, either express or implied. But plaintiff can recover no judg- ment against such garnishee for damages for the wrongful tak- ing or detention of such property. This is a right of action still reserved to the party who suffered the wrong, under the principle that only contract obligations are regarded as dthts or credits. Property, however, is attachable, irrespective of the circumstances of its acquisition or present possession. The thing itself is reached by process of garnishment, as well as by direct seizure. The only difference is that, in case of seizure, there is a specific lien which will follow the property into other hands, while in case of garnishment, the lien only exists as against the garnishee and parties with notice. The garnishee's responsibility becomes that of a custodian of the property at- tached, and is accepted in lieu of actual possession. § 338. The effect of Gamislimeiit regularly served. — In remarking the distinction between attachment by seizure and 2 Post, § 403. 3 De Graff v. Thompson, 24 Minn. 452. 4 Sweet V. Brown, 5 Pick. 178. 27 GARNISHMENT, GENERALLY CONSIDERED. § 338 that by o;arnishee process, it has been stated in a former sec- tion hereof, that by garnishment no fipecific lien was obtained upon the property in garnishee's possession.^ Yet it cannot be said that attachment by this metbod creates no lien, f(jr tbsit wonhl be equivalent to saying tliat it was no attachment.^ So far as it goes in this direction, the attachment is quite as ef- fectual by this method as by seizure and actual custody.^ The difference lies in the fact that by seizure the lien attaches to the thing itself, so far as defendant's interest therein extends, wdiile by garnishment, only defendant's interest in the thing is affected so as to prevent its transfer. Seizure deprives the de- fendant for the time being of the possession. Garnishment leaves the actual possession unaffected, except that it renders the garnishee liable for the consequences of allowing the property to pass into the custody of defendant. By the service of the process of garnishment, a lien is obtained on defendant's title to the property or credit in the hands of the garnishee. By seizure a lien is obtained, which is only enf orcible by judgment and sale of the property seized*^ ; but by garnishment, the lia- bility of garnishee continues, although he has lost the posses- sion of the property, or surrendered it to defendant, and the lien may be enforced against him.^ Any attempted transfer or incumbrance of the title by defendant, after service on the garnishee, Avill be as ineffectual to disturb the rights acquired by the plaintiff, as though the property had been actually seized by the officer.^ This is what constitutes the lien upon the title. That there is somethins: more than the general lia- bility of the custodian, is apparent from the judgment entered against the garnishee in case of his default. Thus, it is laid down in Layman v. Beam,'^ that the judgment should not be i^wpm, §325. 2 Martin v. Foreman, 18 Ark. 249; Tindell v. Wall, Busbee (Law.), 3. 3 Kennedy v. Brent, 6 Cranch, 187; Layman u. Beam, 6 Whart. (Pa.) 181; Franklin Ins. Co. v. West, 8 Watts & S. (Pa.) 350; Talbot v. Harding, 10 Mo. 350; Parker r. Kinsman, 8 Mass. 436; Burlingame v. Bell, 16 Mass. 318; Sweet V. Brown, 5 Pick. 178; Freeman u. Grist, 1 Devereux (N. C), 217; Blaisdell v. Ladd, 14 N. H. 129; Eenneker v. Davis, 10 Rich Eq. (S. C.) 289; McCobb v. Ty- ler, 2 Cranch C. C. 199. 4 Ante, § 25. 6 Kennedy v. Brent, 6 Cranch, 187. 6 Hicks V. Gleason, 20 Vt. 139. T 6 Whart. (Pa.) 181. § 338 GARNISHMENT, GENERALLY CONSIDERED. 28 against cfarnisliee to be levied of his goods and chatteU, etc., as it would run in case of a direct action against him. It should be, that the plaintiff have execution for so much of the debt due by the garnishee to the defendant, attached in his hands, as may satisfy the judgment of plaintiff, with interest and costs ; and if the garnishee refuse or neglect, on demand of the Sheriff, to pay the same, then that the same be levied of the garnishee's goods, lands, etc., according to law, as in the case of a judgment against him for his own proper debt, and that the garnishee be thereupon discharged as against the defendant of the sum so attached and levied, etc. The judgment is to the same effect, when, instead of a debt due to the defend- ant in the action, the garnishee has in his possession specific personal property, where this method of attaching personal property is authorized by statute. The garnishee may be held liable for the specific property or its value.^ The lien, how- ever, is not of the specific character that follows the property after its surrender to defendant. Thus, where a sheriff", hav- ing in his hands an execution in favor of A, served a copy of the execution and notice of garnishment upon one who held property capable of manual delivery, that belonged to the judgment debtor, and subsequently receiving an execution in favor of B, levied upon the same property by actual seizure, and sold it under the second execution, it was held that the proceeds should be applied in satisfaction of B's judgment, for the reason that the levy in his case w^as first in time, and no lien was created by the garnishment in favor of A.® There is, however, so much of a lien created by garnishment, that the defendant's control of the property can only be exercised in subordination to the rights acquired by the plaintiff and the garnishee. No subsequent incumbrance or written transfer of title can affect the plaintiff's right to demand the property to be applied in satisfaction of his judgment."^ The garnishee may also hold the property, pending the suit, against defendant, and all subsequent pledgees and transferees.^^ He 8 Moore v. Holt, 10 Gratt. 284; "Walcott v. Keith, 2 Foster, 196; Aklrich v. Woodcock, 10 X. H. 99; In re Glenn Iron ^Yo^ks, 17 Fed. Rep. 324. 9 Johnson v. Gorham, 6 Cal. 195. But see Burlingame v. Bell, 16 Mass. 318. 1° Biggs V. Kounes, 7 Dana (Ky.) 405. " Hicks V. Gleasou, 20 Vt. 139. 29 GARNISHMENT, GENERALLY CONSIDERED. § 338 has a special property in it, as the officer would have in case of seizure under attachment. ^^ His rights are such that he may, and in fact must, refuse to deliver the property so held to an officer claiminjj under another writ ajjainst the same de- fendant, as it cannot be lawfully taken from his possession under such process.''^ Nevertheless, it has been held that the defendant may make a valid demand upon his debtor, who has been summoned as 'garnishee ; and also that his right to secure the claim, by attachment or otherwise, remains unimpaired by the garnishment proceedings. But this right is held to exist in subordination to any lien created in favor of plaintiff by such proceedings.^^ Accordingly, whei-e the amount of a judgment was realized by the sheriff on execution, and while the money was in his hands, he was summoned as garnishee at the suit of a creditor of the execution creditor ; it was held that such execution creditor could still maintain an action against the officer, and on recovering judgment would be enti- tled to the balance, after satisfying the demand of the gar- nishor, without any new demand. ^'^ His liability is such that he cannot, with safety to himself, suffer the property to go back into the hands of defendant from whom it was received, even where some one else seems to be the owner, until the matter is determined ; ^^ for his lia- bility continues, irrespective of the manner in which his pos- session is lost,*' except where the attaching creditor, at whose suit he was garnished, causes it to be levied on or taken from his possession, under execution or attachment.^^ But the dis- possession of garnishee by a wrong-doer has been held suffi- ficient to furnish grounds for delaying the proceedings, until the garnishee could recover damages for such wrongful tak- ing.-^^ The garnishment does not take effect upon the relations 12 Ante, § 175. 13 Arthur v. Batte, 42 Tex. 159. 1-4 Hicks V. Gleason, 20 Vt. 139. 15 Hicks V. Gleason, 20 Vt. 139. 16 Biggs V. Kounes, 7 Dana, 405. 1" Dispatch Line v. Bellamy Mf'g Co., 12 K H. 205; 37 Any. Dec. 203; Parker V. Kinsman, 8 Mass. 486; Farmers' & Mechanics' Bank v. Wells, 23 Minn. 475s 18 Goddard v. Hapgood, 25 Vt. 351; 60 Am. Dec. 272; Clapp v. Rogers, 38 N. H. 435 19 Dispatch Line v. Bellamy Mf'g Co., 12 N. H, 205; 37 Am. Dec. 203. § 338 GARNISHME^T, GENERALLY CONSIDERED. 30 between the garnishee and the debtor, prior to the service, and wliich liad ceased when he was summoned; as where he was indebted to defendant but had paid the debt,^ or held defend- ant's property, which he had returned prior to service of the garnishee process. ^^ Although the payment prior to garnish- ment was by a check, which was not presented until after ser- vice on the garnishee, it was nevertheless held that the latter could not be held liable.^ The garnishee process is not a method contrived for following transfer* of property or in- debtedness, made prior to service, upon the ground that such transfers were intended to defraud creditors, provided they are made for a valuable consideration, and are not merely color- able. Thus, where A executed a note to B, which B sold to C, and received the amount due thereon, of which C notified A, it was decided that A could not be held as garnishee in a suit against B ; nor could C be so held, upon the ground that the sale was fraudulent, and made to enable B to abscond and defraud his creditors. ^'^ The garnishment is not retrospective in its operations, nor is it generally prospective beyond the time of answering.^ Ordinarily, the garnishee does not be- come liable for effects of defendant that come to his possession subsequent to the answer.^' But to this there are some statu- tory exceptions.^^ The limits within which the operation of the garnishment is confined, in respect to time, are exemplified in the case of Daniels v. Meinhard.^' The garnishee being discharged on his answer, for the reason that it was not trav- ersed, and money of the defendant subsequently came to his hands, whereupon it was attached by garnishment at the suit of another creditor, it was held in substance that if thei'e was a honafide assignment of the debt prior to service in the second suit, the assignee would have a superior claim on the fund to either of such attaching creditors. The first could not antici- 20 Getchell v. Chase, 124 Mass. 366. 21 Bailey v. Ross, 20 N. H. 302. 22 Getchell v. Chase, 124 Mass. 366, 23 Hutchins i'. Hawley, 9 Vt. 295. -'■* And it has been held, not beyond tbe time of service on the garnishee. Branch Bank v. Poe, 1 Ala. 396. 25 Daniels v. Meiuhard, 53 Ga. 359. 26 Central Plank R. Co. v. Sammons, 27 Ala. 380. 2V 53 Ga. 359. 81 GARNISHMENT, GENERALLY CONSIDERED. § 338 pate the Indebtedness of garnisliec to defendant, nor the last reach indebtedness which was extinguished prior to service of process of garnishment in his own case. Where a debtor made an assig-nment for the benefit of creditors, and after the as- signinent the assignee purchased demands against the as- signor at a discount, amounting to more in the aggregate than the value of the effects assigned, it was held that he could not be charged as garnishee, in suits brought by other creditors subsequent to his becoming a creditor of the as- signor, irrespective of whether the assigment was valid or not.28 The rule of priority that prevails, as between garnishors and assignees, obtains to the same extent between creditors at- taching the same fund or property in the hands of a garnishee. Being regular, they take precedence in order of service, and tlie garnishee may be held to respond to either, as those in ad- vance are satisfied or dismissed without exhausting the fund or property tittached.^^ And as between attaching creditors, this order of priority is not disturbed by the fact that at the time the first was served the officer had other writs in his hands, previously issued. The first served will bind the gar- nishee, regardless of the order in which they were issued. ^^ Where, however, the service in several cases is simultaneous, of writs issued at the same time, the creditors would share the fund pro rata^ and where the fund was sufficient, all would be satisfied.^^ And where the rule that in attach- ments issued at different times and simultaneously levied, the creditors take priority according to date of issue, the same rule would obtain in respect to garnishments so issued and served."^'^ But all this doctrine of priority must be taken sub- ject to the statutory exception thart compels rival attaching creditors to share the proceeds 'pro rata, without reference to the order in which the attachments were issued, or the gar- nishee summoned, provided the judgments against the garni- 28 Emerson v. Wallace, 20 N. H. 507. 29 .Tohnson v. Griftitli, 2 Crancli C. C. 199; Talbot v. Harding, 10 T^Io. CJO. 30 McCobb V. Tyler, 2 CrancL C. 0. 199. 31 PoKl, § 859. 82 Ante, § 32. .§ 339 GARXISHMENT, GENERALLY CONSIDERED. 32 ehee, as well as against the debtor, be rendered at the same time.^^ § 339. General Distribntion of Matters to be Considered. — The general survey of the subject of garni&hment, as a dis- tinct branch of the law of attachment^ in preceding sections of this chapter, will have suggested to some extent the natural order in which the subordinate topics will present themselves for consideration. There are still matters to be considered that are of general application. Thus, the question of parties, process, the answer, traverse of the answer, the effect of judg- ment against the garnishee, etc., apply to proceedings had for the purpose of charging the garnishee, either (1) on account of property of defendant held by him, or (2) on account of debts owing by him to defendant. It is desirable, as far as practicable, to consider the questions arising under each of these two last named general divisions in their order, and sep- arately. But before they ai'e subjected to distinct treatment, there are certain features of the law applicable alike to each, which should be more fully discussed than heretofore. That which has been hinted at will be considered more at length, and that which was regarded as being of a character too special to become the subject of general treatment will be specially considered. 83 Freeman v. Grist, 1 Dev. & Batt. (X. C.) 217. [Where the service upon same garnishees was made in different States, the Court, where last served, or- dered stay of proceedings, or a bond of indemnity to protect garnishee. — AVood- rufE V. French, 6 La. An. 62.] CHAPTER XXV. PARTIES TO THE PROCEEDING. § 340. The parties genenxlly, and their relations to each other. § 341. Third parties — deb'K)rs of defendant, and parties in possession of de- fendant's projierty. § 342. Private corporations and their stockholders as garnishees. § 343. Foreign corporations as garnishees. § 344. Non-resident garnishees. § 345. Municipal corporations as garnishees. §340. States — exemption from suit. § 347. Officer of Court as garnishee. § 348. Officer of private corporation as garnishee of corporation, § 349. Agent or servant of debtor as garnishee. § 350. The wife of defendant as garnisliee. § 351. Debtors and partners as garnishees. § 352. Judgment debtors as garnishees. § 333. Garnishees, whether joint or several. § 354. Intervenors. § 355. Reference to other chapters. § 340. The Parties Generally, and their Relations to each other. — The necessary introduction of a third party to the pro- ceeding by garnishment, who is variously styled garnishee, trustee, and factor, has already been noticed.^ It only remains to add a possible fourth — the intervenor. This i^arty only ap- pears where he claims adversely to all the others, and stands in danger of losing his property in the contention between the otliers. The plaintiff and defendant in the main action stand toward each other in the same relative positions as the parties to an attachment suit, whei'e the levy is by seizure. These have been sufficiently explained in a former chapter,^ and will not occupy a great deal of attention here. The garnishee, however, occupies rather an anomalous position. Primarily, he is regarded as occupying the place of a stakeholder between the parties ; disinterested, and entitled to exemption from the hardslilps of a contest to which he has been made an involun- 1 Ante, § 326. ■^ Ante, Gh.Y, II. Attach. -3. § 340 PARTIES TO THE PROCEEDING. 34 tary party .'^ But lie nevertheless stands towards the principal parties in the attitude of a defendant, in a suit prosecuted for one in the name of the other.^ And not only is this a suit which may be reduced to a judgment against the garnishee, to be made by execution out of his general property, to be en- forced in most respects as any other judgment; but during the progress of the suit he may occupy a position antagonistic to all the other parties, including the intervenor.'^ He is a disin- terested party only when he admits his liability to the princi- pal defendant ; and even then he is interested in knowing that his admission is true, and that the property held or debt con- fessed is attachable. He is also intei-ested in knowing that the proceedings for bringing him into Court are sufficiently regu- lar to give the Court jurisdiction of his person, and render it his duty to answer, as his voluntary appearance will not be taken as a legal substitute for process.^ The intervening claim- ant, where the garnishee admits his direct liability to defend- ant, occupies the same position as intervenors generally, his claim being adverse to that of either of the others, and will be noticed hereafter.^ The principal part of the present chapter will necessarily be taken up with the garnishee. The other parties need only be considered incidentally. So far as the process of garnishment affects the relations between the principal parties and the gar- nishee, it places the plaintiff in the position originally occupied by the defendant, as a creditor. He has the same rights and no others, as against the third party, as defendant would have in a direct action to recover the amount claimed, or the prop- erty held. ^ Thus, where plaintiff in foreign attachment sought to attach bank stock standing on the books of the company in 3 Ante, § 32G. In New Hampshire it is held, that the fact that a writ of for- ■eign attachment was made out, endorsed, and entered by the garnishee as at- torney for plaintiff, no wrong being intended or committed, is not sufficient ground for discharging the garnishee on defendant's motion; but such prac- tice is irreguhir, and not to be encouraged.— Kelly v. McMinniman, 58 N. H. 288. ^Ante, §332. ^ Ante, § 337. fiAntc, § 336; Post, Ch. XXIX. " Post, §§ 35i, 371, 402; Ch. XXXUI. 8 Daniels v. Clark, 38 la. 55G; Myer v. Liverpool etc. Ins. Co., 40 Md. 595. 35 PARTIES TO THE PROCEEDING. § 341 the name of defendant, though it had been previously assigned, it was hehl that as defendant could not recover the stock, or claim any beneficial interest in the capital of the bank, as a stockholder, after such assignment was known to the corpora- tion, the plaintiff stood on no better footing as to the thing at- tached, and could not recover.^ The matter first to be consid- ered in reference to the third party is, Who tnay he garnish- ees ? This will resolve Itself largely Into an Inquiry as to who may not be effectually served with garnishment. § 341. Third Parties— Debtors of Defendant, and Parties in possession of Defendant's Property. — Generally speaking, any one may be garnished who stands towards defendant in the action in the relation of a debtor, or who Is in possession of any of defendant's attachable property.^ The I'equlrement that they shall be third parties, in the sense that their posses- sion shall be independent of the defendant in the action, though quite general, is considerably modified by decisions that hold jjartles subject to the process whose relations to the defendant are such that their possession Avould, for ordinary purposes, be regarded as Identical with that of defendant himself.''^ Persons holding property in every conceivable capacity have, at one time or another, been sought to be subjected to garnish- ment in a suit against the owner. It will only be necessary to notice those where the question of liability has been raised In relation to the peculiar status of the party, which was supposed to create an exception, or some peculiarity In his relations with the parties, or the subject of attachment, that rendered it Im- proper to place him in the position of one entirely disinterested in the result of the litigation. It has been held in Tennessee that a creditor, who is Indebt- ed to his debtor, may attach the debt in his own hands. '^ But it is decided in Massachusetts, as It seems more consistently with the general purposes of the statute, that a plaintiff can- 9 United States v. Vaughn, 3 Binney (Pa.) 394; 5 Am. Dec. 375. iClapp V. Hancock Bank, 1 Allen, 394 ; Corey v. Powers, 18 Vt. 587 ; Loyless V. Hodges, 44 Ga. 647 ; Knox v. Protection Ins. Co., 9 Conn. 430 ; Malley v. Alt- man, 14 Wis. 22 ; Piper v. Piper, 2 N. H. 439. •^ Infra, §§348,349,350. 8 Boyd V. Bayless, 4 Humph. 386. • § 342 PARTIES TO THE PPwOCEEDING. 36 not summon either himself or one of his co-debtors as gar- nishee.^ § 342. Private Corporations ani tlieir Stockholders as Gramisliees. — There is nothing in the character of a private corporation that should render it seriously questionable wheth- er it could in a proper case be summoned as garnishee. Al- though a " body politic and corporate," it is for all purposes consistent with the objects for which it is created, a person.^ It may sue and be sued, defend itself, as individuals may, con- tract debts, and hold property. This is about all the law re- quires to render a person garnishable, and it Is only necessary that corporations should be capable of being served with pro- cess, to render them subject to garnishment.^ They are for such purposes included under the denomination of "Persons."^ A domestic corporation was held liable in Xew Hampshire for funds collected in another State without any stipulation as to place of payment.* In Virginia, where proceedings in at- tachment may be at law or in equity, it is held that stock in a corporation is an estate liable to seizure by attachment ; and for the purpose of such proceedings, the stock may be regard- ed as in possession of the corporation, and may. be reached by the creditor of the owner by process of garnishment.^ But this mode of attaching stock in corporations is not general. AYIth- out questioning the right of parties to garnish corporations, it is elsewhere held that It cannot be done for the purpose of at- taching the stock of the debtor in such corporation.^ In a former chapter we have seen that private corporations may be defendants in suits by attachment, and that their prop- 4 Belknap v. Gibbons, 13 Met. 471 ; See Hovy v. Hovy, 55 X. H. 172. 1 Mineral Point R. Co. v. Keep, 22 111. 9 ; Planters' Bank v. Andrews, 8 Port. 404 ; McQueen v. Middleton Man. Co., 16 Jobns, 5 ; Commonwealth v. Phoenix Bank, 11 Met. (Mass.) 129; United States v. Arnedy, 11 "VTLeat. 392. 2 Boyd V. Chesapeake etc. Canal Co., 17 Md. 195 ; Taylor v. Burlington etc. R. Co., 5 la. 114 ; Yarnell v. Speer, 55 Ga. 132. 3 Baltimore etc. R. Co. v. Gallohue, 12 Gratt. 655 ; Brauser v. Kew England Fire Ins. Co., 21 Wis. 506. 4 Smith V. Boston etc. R. Co., 33 IST. H. 337. 5 Chesapeake etc. R. Co. v. Paine, 29 Gratt. 502 ; Montidonico v. Page, 10 Heisk. (Tenn.) 443. 6 Planter's etc. Bank v. Leavens, 4 Ala. 753 ; Ross v. Ross, 25 Ga. 297. 37 PARTIES TO THE PROCEEDING. § 342 erty may be seized under a writ jjroperly issuedJ In pursu- ance of this general doctrine It is held that for this purpose stockholders may be garnished as debtors to the corporation, on account of unpaid subscriptions to the stock. ^ And so the creditor of a Mutual Ins. Co. was held entitled to sarnishraent against one of the nienibers thereof on a premium note, and although the company was dissolved, and a receiver appointed before the indebtedness became fixed by an assessment, the attachment might be prosecuted against the receiver for the amount of said indebtedness when subsequently ascertained.^ Where it is sought to charge a foreign corporation as gar- nishee, there Is an Inherent difficulty in the way, except where it lias been removed by ytatute. They are to all legal intents and purposes non-residents of the State, with the additional disadvantage that they cannot migrate, or become thoroughly naturalized in any other jurisdiction than that in which they were organized. i*' The only remedy that has been discovered for this, Is by the legislation of the States requiring foreign corporations doing bu.->iness within the State to submit to the jurisdiction of its Courts by empowering some one to re2Dresent the corporate body for all purposes of process. Where a cor- poration organized in one State is sufficiently represented in another State for the genei'al purpose of being served with civ- il process, it is sufficiently within such State to be summoned as garnishee. ^1 When a coi-poratlon has been chartered in two States, It may for the purposes of garnishment, as well as oth- er process, be regarded as a resident of either, although its chief office or place of business is not within the State where it is served.-'^ "! Ante, Ch. V.,§51. 8 Pease v. Underwriters' Union, 1 111. App. 287 ; FauU v. Alaska etc. Co., 8 Saw. 420 ; 14 Fed. Rep. 657. 9 Hays V. Lycoming etc. Co., 99 Pa. St. 621. "Bank of Augusta v. Earle, 13 Pet. 519; Camp v. Byrne, 41 Mo. 523 ; Evans V. Monat, 4 Jones Eq. 213 ; New Orleans, etc. E. Co. v. Wallace, 50 Miss. 244. 11 Maliany v. Kephart, 15 W. Va. 609. i-Mabany v. Kepbart, 15 W. Va. 609. [Where a corporation is garnisLed by service on an officer away from his office, and another officer pays the debt without actual notice of the garnishment, the garnishee is held to be exoner- ated— Lyon V. Russell, 72 Me. 619.] § 343 PARTIES TO THE PEOCEEDING. 38 § 343. Foreign Corporations as Garnishees. — Corporations foreign to the State are held subject to garnishment in the State where they own property, or the cause of action against them arose. ^ But unless they are amenable to process in such State, it is difficult to see how they are to be served. As they are not migratory, their place of residence does not follow that of their members.^ They cannot be even temporarily ab- sent from the States where they were organized, and can only do business In a foreign State as a matter of comity.^ The process of garnishment Is required to be personally served, and personal service, upon which a personal judgment may be ren- dered, can only be had within the jurisdiction from which the summons Issues.^ The service upon the garnishee cannot be made, as an action in rem, by seizure of the garnishee's prop- erty ; and for these reasons, as well as the statutes which In some of the States render non-residents exemj)t from the pro- cess of garnishment, this class of corporations Is held not sub- ject to garnishment.^ All exceptional statutory methods of ob- taining jurisdiction over persons, natural or artificial, not found within the State or district in which the ordinary pro- cess of the Court may be personally served, must be confined to the cases, and exercised In the precise manner, Indicated by the statute.^ In Pennsylvania, the difficulty was overcome by statute, un- der Avhich It was held not only that the foreign corporation might be garnished In that State, but that a debt reduced to judgment in the Courts of another State could be effectually attached by that means. '^ By statute of 1870, corporations foreign to the jurisdiction of Massachusetts, that theretofore had been In that State exempt from process of garnishment, 1 Brauser v. New England Fire Ins. Co. , 21 Wis. 506. 2 St. Louis i;. Wiggins Perry Co., 40 Mo. 58; Danforth u. Penny, 3 Met. (Mass.) 5G4. 3 Baltimore etc. R. Co. v. Glenn, 28 Md. 287; Newburg Petroleum Co. v. Weare, 27 OhioSt. 343; Ormsby f. Vermont Copper Co., 5(JX. Y. 623; New Or- leans etc. E. Co. V. Wallace, 50 Miss. 244. 4 Pennoyer v. Neff, 95 U. S. 714. 5 Gold )'. Housatonic R. Co., 1 Gray, 424; Taft v. Mills, 5 R. I. 393. 6 Hebel v. Amazon Ins. Co., 33 Mich. 400 ; McAllisters. Penn, Tns. Co., 28 Mo. 214. " Jones V. N. Y. & E. R. Co., 1 Grant's Cas. 454. 39 PARTIES TO THE PEOCEEDING. § 344 were rendered subject thereto.^ This Is a matter which may be provided for by statute requiring foreign corporations, as a condition to their being permitted t(j carry on their bu.. Clough, 36 Mich. 436. ^3 Menken v. Gumbel, 57 Miss. 756. 1* De Liquero V. Munson, 11 Heisk. 15. i55 THE garnishee's answer. § i'.Tl acknowledGfment of indebtedness to the assignee as will "-ive him a right of action against the acceptor. ^'^ A mere acknowl- edgment that the amount named in the order was partly due, and would all be due at a certnin time in the future, was held not to amount to such an acceptance as would bind the debtor to the assignee.^** When the garnishee is notified of the as- signment, in order for him to answer correctly in reference thereto, it is not essential that he should inquire into the con- sideration. He will have discharged his whole duty to the parties chiiming the fund in his hands, if he states such facts as come to his notice. He is not required to go in search of information which concerns others more than himself. Be- sides, it is held that the assignment, if complete, will be held valid and binding upon the debtor, whether it is made upon a valuable consideration or upon no consideration whatever.^^ But the garnishee cannot rest secure on his answer, if sub- sequent thereto, and prior to judgment, he receives notice or information of a transfer of the debt or property, provided there is still time to amend his answer, by adding the statement that the claim against him has been assigned to another, and was so assigned or transfered prior to service of the garnishee summons. ^^ In case of his failure to make such amendment where notice of the assignment was received after answer, it was held that he would not be protected against the double lia- bility resulting from the judgment against him as garnishee, and the claim of the assignee.^' It seems that there are situations in which the garnishee may be placed, where no degree of candor or caution which he may exercise in framing his answer will protect him against double liability for the same debt. Thus, where judgment was re- covered in the State of Pennsylvania, and assigned in good 13 Dan'l Negot Inst., § 360. 16 De Liquero v. Mimson, 11 Heisk. 15. 1' Adams v. Eobinson, 1 Pick. 461. 18 Tracy v. McGarty, 12 E. I. 168. The notice, to be effectual, must be given prior to judgment against the garnishee. Newman v. Manning, 79 Ind. 218. I'J Lewis V. Dunlap, 57 Miss. 130. The garnishee is bound, in any event, to disclose the true ownership of property in his liands, when it is, to his knowl- edge, not the property of the defendant. Otherwise, he renders himself liable to the owner, notwithstanding the judgment against him as garnishee. — liim- ball 1). McComber, 50 Mich. 862 ; Casey d. Davis, 100 Mass. 124. § 371 THE garnishee's answer. 86 faith to a citizen of that State, and subsequently the judgment creditor was sued by attachment in the State of New York, and summons of garnishment served on the judgment debtor, who had not been notified of such assignment, and judgment obtained against the garnishee, who paid the amount of the judgment obtained against him in Pennsylvania to the attach- ing creditor, it was held that the assignment, being valid in Pennsylvania, was valid everywhere ; that after assignment the judgment creditor had no attachable interest in the judg- ment ; and that therefore the judgment of the New York Court, which only had jurisdiction by means of the attachment, was void, and no defense to an action by the assignee against tlie judgment debtor .^^ Following the principle upon which the New York judgment was held void, when invoked in the State of Pennsylvania, it might be maintained with equal justice, that no judgment obtained otherwise than upon personal ser- vice or appearance could be recognized in another State, as af- fecting the title to the subject of seizure. No better reason can be o-iven for recomizinof the rio-hts thus conferred in ref- erence to tangible property, than for giving equal weight to the attachment of a credit of the defendant. The law was doubtless properly administered in the State of New York, un- der the statute governing the case. The garnishee could, on answering according to the facts, be charged and compelled to pay. So in Pennsylvania, the law was doubtless followed, and so, between the two the garnishee must suffer. In order to render an assignment effectual to pass the inter- est of the assignor so as to place it beyond the reach of his creditors, the question of first importance is whether such as- signment was made in good faith. It is more important that this should appear by the answer, than that there has been a strict compliance with the statute requiring record notice to other creditors of the assignor. It was accordingly held, where the assignor signed the assignment of her wages with the name of " Kavanah," though her real name was Fitzgerald, and she worked for the garnishee under the name of " Cavan," by which she was generally known, and this confusion of names 20 Noble V. Thompson OU Co., 79 Pa. St. 354 ; 21 Am. E.66. 87 THE garnishee's answer. § 372 prevented the record of the assignment from giving notice as contemplated by statute, tlie honajides of the transaction would render the assignment effectual as against the creditors of the assignor.^ ^ § 372. Facts not to be placed in Issue by Denial. — There are matters of defense which it is possible for the garnishee to interpose against a judgment, as well as objections that may be raised to the regularity of the preliminary proceedings by the defendant, which the garnishee's denial cannot raise. Thus, it is held that the garnishee cannot in his own defense contra- dict the affidavit of the plaintiff upon which the attachment issued. This is matter of abatement, and can only be raised by the defendant; while the defense of the garnishee, whether by denial or otherwise, must be in bar.^ Where the garnish- ment is in aid of an execution on a judgment, the garnishee cannot contradict the facts adjudged.^ So the garnishee may defend against the proceeding, upon the ground that a judg- ment has been rendered against him for the same indebtedness ; but this may not be reached by denial.^ There are numerous other defenses which must be made by setting forth in the an- swer something more than a mere denial of indebtedness, or possession of defendant's property. To bring them properly before the Court for adjudication, ihey should be made by af- firmative allegations, in much the same manner as a defendant would answer by setting up matters in avoidance.* Where, however, an attorney in fact was appointed, with authority to collect money for the defendant, and declined to act, but ap- pointed another in his stead, it was held that the original at- torney, being summoned as garnishee, could properly return that he had no goods, money, etc., of the defendant in his hands, or under his control.^ 21 O'Connor v. Cavan, 126 Mass. 117 ; Ouimet v. Sirois, 124 Mass. 162. Under a statute requTing prior a-signments to be record' d, it was Leld sufficient for the answer to state that the assignment Lad been "duly recorded." — Hathe- way V. Reed, 127 Mass. 136. 1 Cheatham v. Trotter, Peck. (Tenn.) 198. 2Cushing r. Laird, 6 Benedict, 408. 3 Houston r. Walcott, 7 la. 173. * Infra, §373, et seq. 6Burrell v. Letson, 1 Strob. (S. C.) 239. § 373 TUE garnishee's answer. 88 § 373. Exemption as a Defense. — It is difficult to say when aiwl to what extent the statutory exemption from execution of the property of defendant, held by garnishee, may be urged as a defense, and when It should figure In the garnishee's answer. Under statutes where no provision Is made for this manner of raising the question of exemption, it is regarded as a purely personal privilege of the defendant, and one which cannot avail the garnishee.^ At all events, the garnishee cannot set U[) in defense to the garnishment proceeding the exemption of the property or credit, under the laws of another State. ^ VV^hen, however, the duty of answering as to facts which control the question of exemption is imposed upon the garnishee, he can- not com[)ly by a denial of indebtedness, or escape liability for failure to state such facts, merely for the reason that the inter- rogatories propounded by the plaintiff do not require such statement in order to render the answers responsive. Having answered that a certain sum is due for wages, under a statute exemi)ting such money from attachment, it is the duty of the garnishee to state the facts with sufficient fullness to show whether the amount still owing is within the statutory exemp- tion, as well as all other facts that have a tendency to affect the rights of the parties.^ The statute is one affecting the remedy merely, and for this reason can be set up only in the State where the remedy Is sought to be enforced, and there only when it is the law of that State. It is immaterial what the exemption law of the State in which the contract was made embraces, provided it is not the law of the State where the action is brought."* Where, as in Illinois, the employer Is not required to surrender In case of garnishment, wages due an employee within certain limits, the exemption is from garnish- ment ; and it Is held immaterial whether ihe wages in respect to which the employer Is garnished are due to a resident or a non-resident of the State. In either case he Is bound to an- swer, showing that the money which he admits to be due Is ex- empt from process for the employee's debts.^ This answer 1 Osborn v. Schutt, G7 Mo. 712. 2Leiber v. U. P. R. Co., 49 la. 88. SBrainard v. Shauuon, (iO Me. 342. 4 Mineral Point R. Co. v. Barron, 83 Til. 365. 6 Mineral Point R. Co. v. Barron, 83 111. 365^ 89 THE garnishee's answer. § 374 should be as to the facts which bring the amount due within the limits fixed by law, or which exclude the same or any part thereof from the operation of the statute. These facts, being stated fully, it will be for the Court to determine whether the employer can be charged as garnishee or not.^ § 374. Answer as to the Capacity in which the Garnishee holds the Property of Defendant. — The mere fact that the gar- nishee is in possession of funds or property in which defendant has a beneficial interest, will not in every instance serve to charge the garnishee, though such property or funds are not exempt by statute from execution or attachment. Other con- siderations may arise to prevent their being so applied without the consent of parties who are strangers to the action or pro- ceeding. In answering, the garnishee cannot with safety omit to state every fact coming to his knowledge, which may be re- lied upon by any one adversely interested in the fund or prop- erty, to show an assignment of the same or any interest there- in.^ And where a bailee or other depositary holds money or other property charged with a secret trust, his concealment or failure to disclose such trust in case of garnishment, would not only ren- der him liable to judgment in favor of the attaching creditor, but such judgment would be no protection to him in an action by the party who suffered loss in consequence of his conceal- ment,^ Thus, in Hardy vs. Hunt, where money had been en- trusted to a bailee, by whom it was placed in the hands of the party subsequently summoned as garnishee of such bailee, it was held, though the bailee had been permitted to use such money in his own name, the bailor was not estopped from claiming it as against a creditor who had not been misled by the acts or declarations of such bailor ; and the garnishee be- ing informed of his rights, was bound to protect the same by resisting garnishment in a proceeding to which the bailor was not a party. ^ The first and easiest step in the way of such resistance would be by answering fully as to the facts of which the garnishee had received information. It is a wise oCliilcote V. Conley, 3G Ohio St. 545. J Supra, § 371. 2 Hardy r. Hunt, 11 Cal. 343. See Brigden v. Gill, Ifi Mass. 522. 8 Hardy v. Hunt, 11 Cal. 3i3. § 375 THE garnishee's answer. 90 provision of the statute, where made, that the garnishee may cast the burden of contesting the rights of claimants to at- tached property or funds upon the claimant himself, by simply disclosing in his answer the existence of such claim.* But whether such provision be made by statute or not, it is quite clear that the garnishee cannot safely conceal or ignore such facts in his answer. He will not be protected from the effects of his negligence, any more than from the consequences of willful perversion or concealment.^ And in no respect is greater full- ness and particularity of statement required, than when the fund in the hands of the garnishee is subject to a trust. Ac- cordingly, where the garnishee gave a note secured by deed of trust to the defendant in the action, as guardian of a minor, and knew at the time he was summoned that it was in this ca- pacity that the defendant became his creditor, it was his duty to take advantage of this by his answer, and by bringing in the guardian, or his ward if of age, to contest the claim. And where the ffarnishee, through his neglifjence in observinsf his duties in this respect, suffered judgment to go against himself, it was held that he could not enjoin the enforcement of the trust deed, even though he was also forced as garnishee to pay the judgment.^ But where the trust is illegal, it is held that to set it up in the answer will be nugatory. Thus, where the de- fendant had, contrary to law, deposited money which came to his hands as county treasurer, in a bank, and tlie bank was summoned as garnishee in an action against the depositor, it was held that neither the bank as garnishee, nor the defend- ant, would be heard to object to a judgment against the former, on account of the capacity in which the defendant made the de- posit, though the action was against defendant for his personal indebtedness.'* § 375. Garnishee's Interest in the Fund or Property at- tached. — The garnishee's answer may not only set up claims in favor of strangers, but with equal propriety can interpose by way of set-off, such claims as he may have to the property or 4 Ex Parte Opdyke, 62 Ala. 68. 5 De Blanc v. Webb, 5 La. 82 ; Houston v. Walcott, 7 la. 173. 6 Horton v. Grant, 56 Miss. 404. 7 First Nat'l Bank, etc. v. Gandy, 11 Neb. 431. 91 THE garnishee's ANSWER. § 375 fund souglit to be reached, and tliis right is held to be dependent entirely upon his answer when its statements are not disproved.^ Thus, where the answer stated that the garnishee had a certain amount of property in his possession, which would belong to defendant, when he paid the sum of $468 to the garnishee, it was held that so long as this answer was not disproved, it would entitle the garnishee to retain the amount therein stated as due him from defendant.^ When a garnishee charges himself with a sum of money, which is the property of defendant, against which he claims a set-ofF, it is incumbent on him to state the facts of his claim fully, so that the Court may be able to judge of its merits ; and when such claim seems to be merely colora- ble, as where an attorney holds the property of defendant as security for future professional services for an indefinite time, such claim will not be allowed.^ The set-off claim must be one which the garnishee could have claimed from the defendant in a direct suit for that purpose, or could have set up in an action against himself by the attachment defendant.^ Where an In- surance Company was summoned as garnishee, in an action against a policy holder, it was held that premiums due on pol- icies previously assigned with consent of insurer, could not be set off against a claim for loss on a policy not assigned.^ So the garnishee cannot set off a note given the defendant for col- lection, for the reason that, until it has been paid, he may with- draw it at any time.'' When it is once admitted by the gar- nishee that he is in possession of any of the property rights, effects, or credits of defendant, to discharge himself from liabil- ity, it must clearly appear from his answers that he has just claims against defendant, to an equal amount ; and to establish this fact, doubtful statements will not suffice." So it Is held that where one incurs contingent liability as surety, that he cannot offset it against a deposit made by the defendant, un- less such deposit was made expressly for the purpose of guaran- lArledge v. White, 1 Head, 24 ; Thomas v. Hopper, 5 Ala. 442. 2Blanchard v. Vargas, 18 La. 486 ; Rankin v. Simonds, 27 111. 352^ 8 Grain v. Gould, 4G III. 293. 4 Field V. Watkins, 5 Ark. G72. 6 Cleveland v. Clap, 5 Mass. 201 6 Rankin v. Simonds, 27 111. 352. 7 Lamb v. Franklin Mf 'g Co., 18 Me. 187. § 375 THE GARNISHEE'S ANSWER. 92 teeing the surety against such liability.^ The rights and rem- edies between defendant and the garnishee are not intended to be either extended or abridged by the process ; hence where the garnishee, summoned in consequence of the possession of defendant's chattels, undertook to set o£f against his liability as depositary a debt due from defendant, it was held that such set-off could not be allowed, where the garnishee could not have retained possession of such chattels as security for his debt.^ But where the claim of set-off is a debt due the gar- nishee from the defendant, and that from the defendant to gar- nishee is equal in amount to, or larger than, that due defendant, the garnishee will be discharged.^*' And where the garnishee admitted that at the time of service he had in his hands a cer- tain sum due defendant, which, by special contract between garnishee and defendant, was to be appropriated to the pay- ment of a debt due from defendant to another ; and that subse- quently defendant paid this debt in money, it was held, on what seems a very close adherence to the technical importance of service in fixing the status of the parties, that the garnishee was not chargeable, for the reason that when the writ was served nothing was due from the party served, and it was im- material that, by the subsequent payment of defendant's debt, the ccarnlshee became indebted to him.^^ So the o-arnishee will not be prevented from maintaining his set-off, merely because he was the son of the defendant, where the money advanced by the son was made on a promise of repayment.^^ In setting up a collateral obligation of the garnishee, as- sumed in behalf of the defendant whose property he holds, or to whom he is indebted, the matter of principal importance seems to be that the right to hold the property or money a3 indemnity should clearly appear. If from the answer it ap- pears that the liability assumed by the garnishee is to answer to a stranger for the debt or default of the defendant, and such 8 McDowell V. Crook, 10 La. An. 31. 9 Michigan etc. R. Co. v. Chicago etc. R. Co., 1 111. App. 399. 10 Arledge v. White, 1 Head, 241 ; Fay v. Eeager, 2 Sneed (Tenn.), 200; John- son V. Hoyle, 3 Head, 5G ; Fain v. Jones, Id. 308 ; May, etc. v. Potomac Insur- ance Co., 2 Baxt. (Tenn.) 296. 11 O'Brien v. Collins, 124 Mass. 98 12 Sampson v. Hyde, 10 N". H. 492. 93 THE garnishee's answer. § 376 undertaking was not reduced to writing, it would nevertheless be sufficient to entitle the garnishee to a discharge, if his answer is not disproved. True, the contract by which the obligation is created is voidable under the statute of frauds; but this is only when the statute is pleaded by him in defense of an action on such contract. If he sees proper to acknowledge his liability un- der such a promise, there is no principle of law or equity that empowers any one else to force him to take advantage of the statutory privilege. This jjroposition is elsewhere discussed and supported by authorit)-.^^ Where the answer discloses money of defendant in the hands of the garnishee, upon which the latter has a lien, it is held that judgment cannot be ren- dered against such garnishee, without first affording him an opportunity to pay the money into Court, provision being made at the time for the payment of his claim. ^* In Vermont, where the right of the garnishee to retain the amount of his demand against defendant is secured by express provision of the stat- ute, and the statute places no limitation on the demands which he may set off in this manner, it is held that he might retain a sum to be paid on defendant's promissory note, which was not yet due, sufficient in amount to pay his own note to defend- ant, which was due when served with process.^^ § 376. Privileged Communications. — Where an attorney is garnished, there is no doubt but that he may be excused from answering any particular interrogatory, if he declare on oath that he cannot answer the same without disclosing matters con- fided to him in his professional capacity, or advice given to his client concerning business about which he is retained. But this must be taken as subject in no small degree to the judgment of the Court respecting what is entitled, from its na- ture, to be considered as coming within the privilege. It is not intended to so construe this feature of the law as to shield property in the hands of an attorney from the pursuit of cred- itors of the owner, even though he be the client of the party who holds the property.^ Disclosure of the time of receiving "Pose, §. "as. " Hawthorn v. Unthank, 52 la. 507. iSLynde v. Watson, 52 Vt. G48. 1 White V. Boyd, 20 La. An. 188; Shaugnessy v. Fogg, 15 La, An. 330. § 876 THE garnishee's answer. 94 and paying over money, and to whom paid, by an attorney who has received the same on behalf of his client, cannot under ordinary circumstances be objected to as disclosing pro- fessional secrets ; and a refusal to answer such interrogatory was held an evasion, making the attorney so refusing, when garnished, liable for the whole debt, costs and damages.^ The attorney may be asked, through whose agency, or in what man- ner and at what time he was retained, who was his client, where the relationship commenced and ended : and if noth- ing appears to warrant the inference that there would be a violation of professional confidence in answering, what money had been received, and what paid out and to whom paid.' And where the attorney had in his possession, as disclosed by his answers, certain promissory notes, owned in part by the defendant, after notice of garnishment, he could do no act to the prejudice of the rights of the attaching creditors, without rendering himself liable.* It was also held that an attorney who had received certain money to hold until the question of its ownership was determined between the parties, could not, when garnished, refuse to state where it was deposited, on the ground that his knowledge of the matter was privileged.^ It is difficult without entering upon the subject of attorneys at greater length than the importance of the subject seems to warrant, to draw the line with precision between matters which are privileged and those which are not. Where, how- ever, the question Is one, the answer to which may involve a breach of professional confidence, the attorney should be ex- cused, on his claiming the privilege, or its being claimed in be- half of his client, if the attorney testifies that to answer would be to disclose professional secrets. But when the nature of the question Is such that no such result could follow, it would be held otherwise. A party may be required to answer questions tending to show that he was a party to a fraud- ulent assignment.^ 2 Comstock V. Paine, 18 La. 479. 8 Shauglinessy v. Fogg, 15 La. An. 330. < White V. Boyd, 20 La. An. 188. 6 Williams v. Young, 46 la. 140. 6 Oberteuffer v. Harwood, 2 McCrary C. C. 415. 95 THE garnishee's answer. § 37T § 377. Doubtful and Uncertain Answers Construed against Garnishee. — In disclosures, whether in answer to interrogato- ries or under scire facias, all doubtful and uncertain statements are generally construed most strongly against the garnishee, when he has it in his power to make them positive.^ Thus, where the garnishee answered that the principal defendant was " nearly paid up," it was held that he should have stated how nearly, and why any portion unpaid to defendant should be carried over as due for personal wages.^ So where the gar- nishee charges himself with a sum of money, against which he claims a set-off for services, he must give the particulars of his employment, or so state the facts that the Court may be able to form an opinion of the amount ; otherwise, the answer will be condemned as evasive,^ So also, where the garnishee answered that defendant sold and delivered to him furniture and provisions to secure the payment of a debt, the articles being left in the debtor's possession ; that the furniture was not alone sufficient to pay the debt, but the whole jjroperty was more than sufficient; and that "most" of the provisions had been consumed by the debtor : it was held that the answer was so doubtful and uncertain, in failing to state the amount of the provisions consumed at the date of service, that the gar- nishee was chargable.* Where the answers are not explicit or responsive to interrogatories, on a failure to make proper an- iwers thereto, the interrogatories have been taken pro confesso, and the garnishee held liable as though he had admitted the indebtedness.^ And where the garnishee declared to plain- tiffs before he was served, that he had in his hands sufKcient to pay their demand, and afterwards put in an equivocal and evasive answer, he was held to pay the whole demand.^ So where the garnishee answered that he had in his hands certain funds of defendant, and that he had paid a certain portion thereof to the assignee for the benefit of creditors, and thought that this sum had not been repaid by defendant, he was held 1 Ormsby v. Davis, 5. R. I. 442; Kelly v. Bowman, 12 Pick. 383. 2 Brainard v. Shannon, 60 Me. 342. 8 Grain v. Gould, 46 111. 293. * Graves v. Walker, 21 Pick. 160. 8 Hart V. Dahlgreeu, 16 La. 559. 6 Keel V. Ogden, 5 Monroe (Ky.) 362; Scales v. Swan, 9 Port. (Ala.) 163. § 377 THE garnishee's answer. 96 chargable for sucli sum, as the burden was on him to show that it had not been repaid, if such were the fact." So also, where the garnishee was interrogated as to the time when a note, which had been in the garnishee's possession, was delivered to a third person, and the fact was important to plaintiff, for the reason that if the note was in the possession of the garnishee at the time of service of the interrogatory on him, it would be subject to plaintiff's seizure, and failure to state in the answer the date of delivery was considered as a confession that he had the note in his possession when process was served on hlm.^ Where the disclosures in the answer show that at one time prior to service the garnishee had in his possession a fund that belonged to the principal defendant, which would have been attachable in the suit, the burden of showing that prior to ser- vice of process in garnishment he had expended the fund for the benefit of defendant was cast upon the garnishee, and this could not be made to appear by sweeping statements, with an omission of details and particulars.^ In California, under a statute that provides for a direct ac- tion against the garnishee in case of his denial of indebtedness, it was held that where the answers are evasive, and the denial in bad faith, it may be disregarded as fraudulent, and the gar- nishee adjudged to pay over the fund in his hands, in satisfac- tion of plaintiff's judgment. ^*^ But tiiough it is generally true that equivocal or doubtful statements are to be construed most strongly against the party answering, yet they are not to receive a construction against the fair and natural import of the language of the answers taken all together. ^^ In Michigan, at least where the action is before a justice of the peace, the rule as to the consequences of ambiguity and uncertainty in the answers of the garnishee is inverted. There it is held, that as the garnishee is a witness for plaintiff, upon whom rests the burden of proof, if the an- swer is too ambiguous and uncertain to show whether any in- debtedness exists, and if so, to whom, the disclosure will not 7 Scott V. Ray, 18 Pick. 3G0. 8 Vason V. Clarke, 4. La. An. 581. 8 Barker v. Osborne, 71 Me. 69. » Parker v. Page, 38 Cal. 522. " Kelly V. Bowman, 12 Pick. 383. 97 THE garnishee's answer. § 378 sustain the judgment in a justice's Court.^^ In any case, tlie solution of doubts as to garnishee's indeblcxlness would not be found against him, where such doubts did not arise from his equivocal manner of answering relevant questions. The gar- nishee's liability is not to be presumed, but is arrived at by di- rect admissions, and conclusions following necessarily there- from. ^^ Where the answer is responsive, and it is still doubt- ful whether the garnishee owes the defendant, the question will generally be solved in garnishee's favor. ^* The doctrine that the garnishee is to be charged, where his answer leaves it doubtful whether lie has in his possession any of defendant's property, or is indebted to defendant, can only belaid down as a general rule, where from some portion of the answer it appears that he was at one time so indebted, or had possession of defendant's attachable property. The an- swer should make some sort of a, 2')rima facie case against him, and the doubts that arise should go to the question whether he has clearly and unequivocally stated sufficient to overcome the inference that he still held the property, or was indebted when served. ^° Thus, where the statute would protect a gar- nishee who accepted a negotiable bill of exchange, and in his answer he admitted having accepted a draft, which he stated he thought was negotiable, he was held chargable, for the reason that he should have stated the controlling factpositively.^^ § 378. Exceptional Cases where Disclosure need not be Cer- tain and Explicit. — There are cases in which the certain and explicit answer generally required is beyond the power of the garnishee to make. When the circumstances are such that the 12 Spears v. Chapman, 43 Mich. 541. 13 Mosea v. McMullen, 4 Cold. 245; Northam v. Cartwright, 10 E. I. 20; Lane V. Felt, 7 Gray, 491. " JIayor etc. v. Potomac Ins. Co., 2 Baxt. (Tenn.) 296 : Post, § 397. See Car- dany v. N. E. Furniture Co., 107 Mass. 116; Richards w. Stephenson, 99 Mass. 311; White v. Sprngfield Inst., 134 Mass. 232; Driscoll v. Hoyt, 11 Gray, 404; Plummer v Rundlett, 42 Me. 365. 1^ Shearer v. Handy, 22 Pick. 417; Sebor v. Armstrong, 4 Mass. 206; Rich v. Reed, 22 Me. 28; Foster v. Libby, 24 Me. 448; Butman v. Hobbs, 35 Me. 232. 18 Sebor v- Armstrong, 4 Mass. 200; Cleveland v. Clap, 5 Mass. 205; Kelly v. Bowman, 12 Pick. 386; Ormsbee v. Davis, 5 R. I. 445; Fogg v. Worster, 49 N. II. 503; Peaslee v. Doane, 39 N. H. 494; Lamb v. Franklin Man. Co., 18 Me. 187; Brainard r. Shannon, 6 Me. 342; Barker v. Osborne, 71 Me. G9. II. Attach.— 7. § 379 THE garnishee's answer. 98 matters concerning which lie is interrogated are probably not within his knowledge, he will be excused from answering pos- itively. Thus, where he had given defendant a promissory note on the day he was served with process, and subsequently died without making answer, and his administrator disclosed that the note was given, to the best of his knowledge, prior to the service of process, it was held that although such an an- swer might not have been satisfactory if intestate had remained alive, yet being made by the administrator, it was sufficient as the best evidence under the circumstances.-^ So where the matters upon which the garnishee is interrogated are irrelevant to the issues, he is not requiretl to answer ; as where, under a statute limiting the inquiry to transactions prior to service of process, and the questions propounded had reference to what had taken place subsequent to service, the garnishee answer- ing that such subsequent matters were in no way connected with his transactions with defendant prior to the service of the writ, he was excused from answering further as to such mat- ters.^ So it is held in Louisiana, that simulated or fraudulent titles cannot be attacked by process of garnishment, and inter- rogatories tending to this end are not pertinent to the issues, and need not be answered.^ And for the purpose of ascertain- ing whether, in the opinion of the Court, the interrogatories are such as he is required to answer, he may object to them, and submit the question of their pertinency, without losing his right to answer in case his objection proves unavailing. It is not incumbent upon the garnishee to answer every conceivable question that may be propounded, at the risk of being held chargable in case he errs in his first impressions as to the propriety of the interrogatory objected to.* § 379. The Statute of Limitations. — As a general rule, the statute of limitations, to be an effectual bar to judgment against 1 Ormsby v. Anson, 21 Me. 23. 2Humplirey v. Warren, 45 Me. 216 ; Lyman r. Parker, 33 Me. 31 ; Rhine v. Danville etc. R. Co., 10 Phila. 336 ; Crossman v. Grossman, 21 Pick. 21; Cal- lender v. Furbish, 46 Me. 226. s Kearney v. Nixon, 19 La. An. 16. But see Oberteuffer v. Harwood, 2 Mc- Crary C. C. 415. 4 Sawyer v. Webb, 5 la. 315. 99 THE garnishee's answer. § 380 the garnishee, must be pleaded with the same certainty and definiteness as other facts are required to be stated. It should be so alleged that there can be no doubt of its intended appli- cation to every demand the defendant may have against the garnishee, and the facts, rather than conclusions of law, should be averred. Nevertheless, where the garnishee answered that every claim which defendant might have against him was barred by the statute of limitations, it was held that, although defendant might still have claims upon which the garnishee might be charged consistently with the truth of his answer, yet in the absence of interrogatories in relation to such claims, he had set forth facts sufficient to entitle him to the benefit of the statutory bar, and on the answer being undisputed, should be discharged.^ Where the statute is properly pleaded in any case, it will entitle the garnishee to a discharge ; but the bar so set up must be one which would be equally effectual against the defendant.^ But the fact that such a defense had been in- terposed by the garnishee would not, as it seems, prevent a recovery by the defendant, in an action subsequently brought, where the statute was not pleaded, or where its effect was overcome by a promise made subsequent to the discharge of garnishee.^ § 380. Extent to wMch the Answer is taken as True. — Un- der exceptional statutory provisions, the answer of the gar- nishee, when the amount exceeds fifty dollars, is held conclu- sive.^ Under such statutes, the answer amounts to absolute verity, aijd leaves nothing for either party to allege or prove, ex- cept such facts as are not stated or not denied by the garnishee.^ As a general rule, however, the answer is only taken as true 1 Grossman v. Grossman, 21 Pick. 21. 2 Hazen v. Emerson, 9 Pick. 144. 3 Where, by the terms of a policy of insurance, it could not be sued after twelve months from the date of loss, it was decided that garnishment of the Gompaiiy within that period, in attachment against the assured, would save the claim from being barred, when the scire faeias was brought after twelve months had expired. — Harris v. PhcEnix Ins. Go., 35 Gonn. 310. 1 Moore v. Green, 4 Humph. 299 ; Doaue v. McGavoch, 7 Humph. 132 ; Mo- ses t'. McMullen, 4 Gold. 242; Foster v. Saffell, 1 Swan. 90; Gonner u. Allen, 3 Head, 4 18. 2 Gouch V. Tolman, 10 Gush. 104 ; U. S. v. Langton, 5 Mason C. C. 280. See Clinton Nat'I Bank v. Bright, 126 Mass. 535. § 380 THE garnishee's axswer. 100 wlien not controverted.^ To this extent, it will be held true not only in its statements,but documents attached will be regarded as genuine until the contrary is shown.^ But when the garnishee in his answer sets up rights, or undertakes to draw conclusions from the facts stated, such conclusions can only be taken sub- ject to revision by the Court. ^ When judgment is sought up- on the answer, assuming it to be true, it must clearly appear from the original, and all supplemental and additional answers taken together, that the garnishee is chargable.^ In New York, the party summoned as garnishee is required to furnish a " certificate," which is in substance an answer to the gar- nishment ; and where this certificate is uncontradicted, it ends the proceeding.'^ In a case of refusal to furnish the statutory certificate, it was held that the Court might order an examina- tion, in which the garnishee cOuld be asked to state the char- acter in which he held the money sought to be reached by the process, the manner in which it was obtained, and the object of gathering it together ; but the examination could go no farther than this.^ In general, whatever be the nature of the answer, if unsatisfactory, It may be contradicted in that pro- ceeding, and the disputed questions of fact brought to an issue before a jury. But even where this mode of procedure is not adopted, another method of controverting the answer is pro- vided ; as by an action against the garnishee, differing In no essential particular from other civil actions. So far from the answer being regarded as conclusive, even where this latter method of controverting is provided, it leaves the proceeding by garnishment, and all rights acquired under it, in suspense, to await the determination of the action brought to try the truth of the answer.^ The fact that the answer is true, is not 3 Meeker v. Sanders, 6 la. Gl; xMcEvoy v. Lane, 9 Mo. 47; Mason v. McCamp- ■bell, 2 Ark. 506; Oakey v. Mississippi etc. R. Co., 13 La. 567; Rankin v. Si- monds, 27 111. 352; Lascliear r. White, 88 111. 43; Kelley v. Weymouth, 68 Me. 197; Pease v. Underwriters' Union, 1 111. App. 287; Cairo &c. R. Co. v. Killen- berg, 82 111. 295; Baxter v. M. K. &. T. R. Co., 67 Barb. 383; Plummer v. Rund- let, 42 Me. .365; Truitt v. Griffin, 61 111. 26. 4 Robinson v. Rapelye, 2 Stew. 86. s Lamb v. Franklin Mf'g Co., 18 Me. 187. 6 Meadowcroft v. Agnew, 89 111. 469. "! Baxter v. M. K. & T. R. Co., 67 Barb. 383. 8 Baxter v. M. K. & T. R. Co., 67 Barb. 383. »;?ennsylvania R. Co. v. Peoples, 31 Ohio St. 537. 101 THE garnishee's ANSWER. § 381 always sufficient to warrant judgment, even where it does not negative garnishee's liability in a manner to clearly discharge him.^*' And if the answer, though favorable to the judgment against garnishee, is insufficient for that purpose, it cannot be supplemented by extrinsic evidence on behalf of the creditor, so that he may recover partly on the affidavit, and partly on the testimony offered by the creditor. ^^ Yet it is probably true that when the answer is traversed, in a trial of the issues thereby made, its statements may be read in evidence by the plain- tiff, whei'e they tend to show liability.^^ He is not, however, bound by those he seeks to controvert ; otherwise, there could be no traverse of the answer, and no issues to try.^^ The answer is only to be taken as true, in so far as it affects the rights of the parties to the proceeding. It cannot affect a stranger to such proceeding, who may, for the purpose of asserting his own right to the debt or property attached, show that there were other facts within the knowledge of the garnishee which he did not disclose, or that there was collusion between him and plaintiff or defendant.^* § 381. The Answer as Evidence. — When the answers to interrogatories are full and responsive, they are not only taken as jprima facie true, but are sometimes held to retain the char- acter of evidence, after they have been formally put in issue by direct traverse. Merely contradicting them does not shift the burden of proof, as they will stand as evidence of the truth of the statements made until rebutted. ^ And when the writ- ten answer is used as evidence, the whole of it, as well that which charges, as that which discharges, the garnishee must be read.^ When the answer is received as evidence, it mat- ters not whether it be a denial of indebtedness, or is expressed w Gordon v. Coolidge, 1 Sumn. C. C. 537. " Sweet V. Read, 13 R. I. 121. ^■^ Infra, § 381. 13 AdUim V. Yard, 1 Rawle, 1G3; 18 Am. Dec. 608. " Andrews v. Herring, 5 ]Mas9. 210. iliritt V. Bradsbaw, 18 Ark. 530 ; Erskine v. Sangston, 7 "Watts, 150 ; Helme V. Pollard, 14 La. An. 306 ; McEvoy v. Lane, 9 Mo. 48 ; Mason v. McCamp- bell, 2 Ark. 506; Burnbam v. Dunn, 35 N. H. 556; Sise v. Drew. 18 N. H. 409. 2 Devries v. Buchanan, 10 Md. 210. § 381 THE garnishee's answer. 102 in the form of an affirmation of new matter, it will stand until cvitlonce is introJuced to overthrow it.^ It is held in Illinois, that on the trial of issues between plain- tiff and garnishee, the answer should go to the jury, who may give it such weight as they may believe it entitled to, in con- nection with all the circumstances of the case.* But in Mis- souri it is held, that under the statute of that State the garnishee's answer can have no greater effect as evidence in the trial of the is- sues between him and the plaintiff, than the answer to a petition in any ordinax'y action.^ In Alabama, when the answer is trav- ersed, it may be offered in evidence by the plaintiff, but not by the garnishee. When offered by the plaintiff, however, it is held that he cannot discredit it in a request for instructions to the jury, nor can the Court, ex moro motu, as in favor of plaintiff, give any charge tending to discredit the answer.^ In Keep vs. Sanderson," the Court inclines to the opinion that the answer is never admissible in evidence on the trial of is- sues between plaintiff and garnishee, and where the garnishee had caused his own deposition to be taken and read on such trial, it was held no error to exclude the answer as evidence.^ In Mississippi it is decided that the answer does not go to the jury as evidence.^ So in South Carolina, where the "return" fills the place of the answer, it cannot be read in evidence, on a " susfsrestion contestinsc o;arnishee's return." ^^ So also in the District of Columbia it is held, that the answer cannot be read in evidence in favor of the garnishee. ^^ In a somewhat early case in Pennsylvania, a different doctrine is announced from that laid down in the Alabama case cited above, ^^ in reference to the effect of the answer, where offered in evidence by the plaintiff. In Alabama it is held that having offered the an- SHolton V. South Pacific R. Co., 50 Mo. 151. 4 Schwab V. Gingerick, 13 lU. 697. 5 Davis V. Knapp, 8 Mo. 657 ; McEvoy t;.Iiane,9 Moy48-j-Smitli v^Heidecker 39 Mo. 157. 6 Price V. Mazouge, 31 Ala. 701. ' 12 Wis. 352. 8 Keep V. Sanderson, 12 "Wis. 352. SLasley r. Sisloff, 7 How. (Miss.) 157. 1" Dawkins v. Gault, 5 Rich. L. 151. u Gushing r. Laird, 6 Benedict, 408. See Peiffer v. Graves, 26 N. H» 258. 1^ Price V. Mazouge, 31 Ala. 701. 103 THE garnishee's ANSWER. § 382 8wer, he is bound by its recitals, and cannot discredit such as tend to discharge the garnishee. In the Pennsylvania case referred to, it is held that the plaintiff may offer such answer in evidence, and then contradict it by showing that the gar- nishee has made different statements. He is not bound by it.^'^ So in Wisconsin, it is held that plaintiff may read in evidence any part of the garnishee's answer, and contest the remainder, where its truth is not admitted by the pleadings. ^^ There seems no good reason why this principle should not govern the use of the answer, as evidence for plaintiff in any case. The plaintiff may certainly accept of garnishee's statements, where they admit indebtedness or possession of property, without be- ing bound by all the statements made by the garnishee for the purpose of securing his discharge. But where the answer is controverted, and is permitted to stand as evidence, it is held that it can only be overthrown by evidence which tends to dis- prove the facts. This result cannot be reached by impeaching the garnishee in the manner of impeaching a witness, by show- ing him to be unworthy of l^elief.^^ § 382. Answer of Prior Garnishineiit. — Where at the time the garnishee is summoned there is another suit pending against the same defendant, in which the same party was garnished, he cannot answer in both cases with safety, without noticing in the answer to the latter the pendency of the prior garnish- ment. Where he answers in this manner, and allows judg- ment to go against him, which he pays, and judgment is also obtained against him in the subsequent case, a Court of Equity will not in every instance relieve him from his embarrassment by enjoining the latter judgment. Such relief will be uni- formly refused, when it appears that the judgment which it is sought to enjoin was the result of the negligence of gax*- nishee in failing to disclose the prior garnishment in his an- swer.^ Although the pendency of the prior suit and garnish- ment for the same demand may not serve in every case as a 13 Adlum V. Yard, 1 Rawle, 1G.3 ; 18 Am. Dec. G08. i^Pitntiss V. Danaber, 20 Wis. 311. See also, Hazeltine v. Page, 4 Vt. 53; Thompson v. Stewart, 3 Conn. 171. 15 Barnes r. Wayland, 14 La. An. 791. 1 Houston V. Walcott, 7 la. 173. § oS-2 THE garnishee's ANSWER. 101 defense to tlie second action, it Is a matter which the gar- nishee cannot safely ignore. It is held in Wisconsin, that where the two cases are pending simultaneously, the garnishee should move for a stay of proceedings In the second suit, un- til the former is terminated.^ When judgment has been ren- dered In the first case, where it is sufficient In amount to ab- sorb the property or fund In the hands of the garnishee, it will, in general, operate as a bar to a subsequent recovery. But this is in some cases held subject to conditions. Thus, where in an action brought in another State, the garnishee denied a fact wliich, if disclosed, would, under the laws of that State, have prevented him from being charged, it was held in Mas- sachusetts, that when sued on the demand by his creditor, who Avas defendant In the foreign suit, the payment of the execu- tion issued on the foreign judgment was no defense to the action.^ The payment of the senior judgment will, under the peculiar construction of some of the statutes, protect the gar- nishee, even against a judgment asked in a suit In which sum- mons in garnishment was first served.* But this is where no account Is taken of the quasi lien obtained upon the fund in the garnishee's hands by priority of service.'"' The most prevalent doctrine is, that the obligation imposed upon the gar- nishee to answer when summoned, will protect him against a subsequent summons in garnishment on account of the same matter.*^ But the prior garnishment, to be available for the purpose of discharging garnishee from liability in the subse- quent suit, must be properly pleaded, whether it is intended to operate in bar or abatement of the action. In some cases, the Courts seem to require very explicit statements in this re- s[)ect. Thus, where in an action by the creditor, after admit- ting a certain sum due, it was alleged in the answer as a rea- son for non-payment, that a third party had attached the in- debtedness in an action against the plaintiff, and that said ac- tion " has since been pending,'' and that defendant had never been released from its obligations by reason of such levy, the 2 Preutiss v. Danalier, 20 Wis. 311. 3 Wilkinson v. Hall, 6 Gray, 568. 4 Hall V. Daniel, G2 Ga. G20. ^Anlc, § :538. . esievers v. Woodburn etc. Co., 43 jNIicli. 275; Noyes v. Foster, 48 Micli. 273. 105 THE garnishee's ANSWER. § 383 answer was held insufficient, and did not bar the recovery of judgment on motion, under the Code. The answer, to have been effectual, should have stated that the attachment and levy were still in force. '^ This case, it will be observed, was where the action was brought by the creditors of the garnishee, and the pendency of the garnishment proceeding was attempt- ed to be set up in bar of the action, by an answer to the com- plaint. But the ruling would probably have been the same, had the answer been to a subsequent garnishment. By whom- soever it may be sought to recover from the debtor after the amount in his hands has been attached in another State, the pendency of the prior suit may be pleaded in abatement to the second.® § 383. Amendment of the Answer. — The circumstances under which tiie garnishee will be permitted to amend his an- swer are variable. It rests to a gx'eat degree with the Court, in the exercise of its discretion, except where that discretion is controlled by statute. It has been held within the discretion of the Court to permit the garnishee to amend his answer, even after an issue has been tried between plaintiff and one to whom the debt attached is supposed to be transferred.^ Where the o-arnishee after answering interrogatories discovers that he has answered incorrectly, or in such a manner as to warrant an inference different from what was intended, he may be per- mitted to make additional answers without further interroga- tories, correcting or qualifying his former answers.^ When the answer is responsive to the question, though it is less com- prehensive than it ought to be, where the interrogatories are such as admit of a truthful though unsatisfactory answer, it is within the discretion of the Court to allow the garnishee to answer more fully.'^ It is also held, that after the garnishee has filed his general answer, and answers to such interroga- tories as may have been propounded to him by plaintiff, and before final judgment thereon, the Court may permit the fil- 7 Marsli V. ^Vest etc. Mf g Co., 46 N. Y. Sup'r Ct. 8. 8 Roche V. Rhode Island Ins. Ass., 2 111. App. 360. 1 Buford V. Welborn, 6 Ala. 818. 2 Carrique v. Sidebottom, 3 Met. (Mass.) 297, 8 Davis V. Oakford, 11 La. An. 379. § 383 THE garnishee's axswer. 106 ing of a new answer on the garnishee's own motion, without new Interrogatories. But when such additional answer Is put In, the philntlff should be allowed to file new Interrogato- ries.* So It Is held that the garnishee may amend his answers to Interrogatories after the order ^^ro confesso has been made, and before judgment against defendant; but this Is subject to the condition that the answers are not manifestly evasive, and calculated to jeopardize the rights of the attaching creditor, or defeat the jurisdiction of the Court over the defendant.^ It Is even laid down as the duty of the Court under proper cir- cumstances, not only to permit the amendment of the answer, but to order It to be done. This is put upon the ground that it is to the interest of all parties that the power to authorize amendments should exist, and that it should, under proper re- strictions, be exercised. But where the answer of the garnishee relates to matters which must necessarily be within his own knowledge, the Court ought to exercise caution in permitting him to alter the " return," under pretense of amendment. Great abuse might be practiced, if too liberal indulgence were allowed in this respect.^ Both upon principle and authority it may be asserted that, unless where it Is authorized by express provision of the statute, neither the general answer of the gar- nishee, nor his answers to interrogatories filed in the case, can be amended by the garnishee In any substantial particular, as a matter of course, or without leave of Court first obtained.^ This places the matter entirely within the Court's discretion. Amend- ments will probably not be allowed for the asking, without a show- ing made to the Court of the amendments which the party desires to make. In a somewhat early case In Louisiana, it Is decided that the rules relative to Interrogatories on " facts and articles," are more rigid than those that govern ordinary answers, and that amendments will not be allowed to such answers. It is 4 Hovey v. Crane, 12 Pick. 167. ^Tapp V. Green, 22 La. An. 42. 6 Xeilson v. Scott, 1 Rice's Dig. (S. C.) 80. " But tliis does not seem to prevent the supply ot mere formal omissions, howsoever important, without leave of Court. Thus it was held, that wliere there were doubts as to the legality of the verification, the garnishee might re- swear to his answer while the iiroceeding was pending, and need not iirst ob- tain leave of Court to do so.— Burrus v. Moore, 63 Ga. 405. 107 THE GARNISHEE'S ANSWER. § 383 laid down tliat the garnishee cannot avoid the effect of his nefjlijjence in failin corporation v^as served with process, which he understood as an attach- ment of the shares of defendant in the capital stock of the cor- poration, and it did attach all the property of defendant in his hands, it was held that it was not an attachment of the stock.^ Where shares of stock have been regularly transferred as se- curity for a loan, it is held in California that the mortgagee is the proper garnishee, as the corporation is no longer privy to the interest of the mortgagor.^ And in New York it is held, that the interest of a shareholder in a foreign corporation can- not be attached by notice to the company.^^ 4 National Bank v. Lake Shore etc. R. Co., 21 Ohio St. 221. 6 Hall V. Rose Hill etc. R. Co., 70 111. 673 ; SLaw v. Spencer, 100 Mass. 382 ; 1 Am. Rep. 115. SBruce v. Smith, 44 Inrl. 1 ; Leitch v. Wells, 48 N. Y. 585 ; Scripture v. Fran- cestown Soapstone Co., 50 N. H.571 ; Bank of America v. McNeil, 10 Bush, 54. 7 Chesapeake etc. R. Co. v. Paine, 29 Gratt. 502. 8 Mooar v. "Walker, 58 Iowa, 164. 9 Edwards v. Beugnot, 7 Cal. 162. 10 Plimpton v. Bigelow, 63 How. Pr. 484. 1^9 POSSESSION OF TROrERTT. § 409 § 409. Grarnishee not Chargable in respect to Exempt Per- sonal Property. — There is, however, anotlier exception to the genenil liability of the garnishee, on account of his possession of defendant's property, which does not relate to any peculiar qualities of the thing itself ; clearly, property which in the debtor's hands could not be seized and sold under execution or attachment.^ Thus, where A received a check for his pension as a soldier, and gave it to his wife, who by advice passed it to B, and took his note therefor, and B accepted it with the knowledge that it was money derived from a pension, and was to be used for the support of the family of A, or for the pur- chase of a homestead if thought best, it was decided that B could not be charged as gai-nishee in an action against A.^ Of course, this privilege is one which belongs to the defendant liimself, and when waived by him cannot be set up by the gar- nishee in defendant's behalf to avoid judgment.^ Nevertheless, this is not saying that where there is no express waiver of the exemption, the garnishee is exonerated from setting it up in his answer.^ And when it appears from the uncontradicted answer that the property in the hands of the garnishee is not only subject to exemption, but is actually so claimed by the principal debtor, the Court cannot render judgment against the garnishee in respect to that property, without adjudicating adversely to the claim.^ And even where the claim of exemp- tion does not appear in the answer, if the description of the property shows it to be specifically exempt, its possession will not render the garnishee chargable.^ Where the principal debtor appears in the case for the purpose of claiming his ex- emption, and it appears that the money attached is the pro- 1 In some instances, the statute expressly exempts certain property of the debtor from attachment vn mesne i^rocess, as well as from execution. In others the exemption is only given in terms from execution. The better opinion is, however that where property is exemjit from execution, it is also exempt from atvachment, as it would be futile to allow pro^jerty to be taken on mesne pro- cess, that could not be subjected to the satisfaction of the debt when judg- ment was obtained. 2 H:.y wood V. Clerk, 50 Vt. G12; Adams v. Newell, 8 Vt. 190. 8 Osborn v. Schutt, G7 Mo. 712. * Ante, §401. 6 Davenport v. Swan, 9 Humph. 186; Fanning v. First Nat'l B'k, 76 111. 53; Staniels v. Raymond, 4 Cush. 314. 6 Davenport c. Swan, 9 Humph, 186. § 409 garnishee's liability. IGO ceeds of a hoinesteatl, this fact being established wouhl put an end to the garnishment proceedings." In some of the States, however, this principle of substitution seems to be confined to cases where the property is converted into money by some sort of Involuntary sale, and does not extend to sales made by the debtor himself.^ This exception, however, is not at all general or uniform in its application. In many of the States, ample provision will be found in the exemption laws for the volun- tary sale of exempt property, and the immunity follows it in the changed form.^ In New Hampshire it is held, that where exempt property is insured, in case of loss the exemption does not follow the proceeds, but the insurer may be charged as garnishee in an action by creditors of the insured. ^^ This, how- ever, is contrary to the doctrine laid down in California, where it is held that insurance money payable on the loss of a home- stead is not liable to garnishment.^^ But in Iowa it is held, that money received from a pension and deposited in a bank may be attached by service of garnishment on the banker.^^ Even where the answer is made setting up the exemption in defendant's behalf, the garnishee will not always be held to have discharged his whole duty. He may be required to maintain the truth of the answer against plaintiff's traverse.'^ 7 Horton v. Summers, 62 Ga. 302; Gery v. Ehrgood, 31 Pa. St. 329; IMitchell V. Milhoau, 11 Kan. G17. s Scott u. Brigham, 27 Vt. 561; Knabb v. Drake, 23 Pa. St. 489. 9 Keys V. Rines, 37 Yt. 263; Watkins v. Blatcliinski, 40 Wis. .347. 1" ■\Voosfer v. Page, .54 N. H. 125; 20 Am. Rep. 128. In delivering the opinion m this case, Foster, J. says. * * * "It was doubtless a great misfortune, but it was one of those misfortunes for the relief of whicli the legislature has made no provision. It is the furniture, and not the avails of it in another form, which is protected. When the property is consumed, it is no longer household furniture in the possession of the debtor, nor did it become house- hold furniture of the debtor in the hands of the Insurance Company. The supposed trustees had no specific chattels of the defendant in their hands, nor were they his debtors for any wages due him or his family for personal labor. What is in the hands of the Insurance Comiiany belonging to the defendant, is money having no ear-mark by which it may be distinguished from any other money, and not derived by any process of transmutation from the ashes of the defendant's goods; and hence the exemption which before existed by stat- ute cannot follow and appertain to this indebtedness of the Insurance Com- pany. 11 Houghton V. Lee, 50 Cal. 101. See also Cooney v Cooney, 65 Barb. 524. i'^ Webb V. Holt, 57 Iowa, 712. 13 Ante, § 401. IGl POSSESSION OF PROPERTY. § 4 19 Especially will it be so held, where the Jebtar hus not been personally served, or brought into the case so as to be able to maintain the claim for himself. But when notified, it is the duty of the defendant to furnish the garnishee with evidence of the facts that entitle him to exemption ^ otherwise, the gar- nishee will be protected by the judgment which in effect dis- allows the claim. ^^ By whomsoever made^ the claim for exemption to be allowetl must be under the laws of the State where the pro-ceeding is pending.'^ And if the defendant fails to make the claim as required until after judgment is rendered against the garnishee, it will in some cases be too iate."^ § 410. Defendant's Interest in the Property in (jarnisliee's Possession. — The sei*vice of summons in garnishment can only affect the garnishee, or render him liable, to the extent of the defendant's interest in the pro[:K3rty that he (the garnishee) has in }X>ssession or under his control when served, unless under a peculiar statute that makes him chr.rgable for prop- erty coming to his possession prior to the answer. In any event, the liability will be limited by defendant's actual interest in the property.^ Where the language of the statute is such that only legal interests, as distinguished from those that are e(]^li- tahle in their nature,, can be affected, tiiis furnishes another re- striction upon the operation of this process, in respect to the title to the pro^^erty.^ But if the defendant or judgment debt- or has a vendible interest in the proj>erty, v/^hich would entitle him or his assigns to maintain an action against the garnishee, the latter may be charged in respect to its possession. Thus, where the mortgagee of chattels had the same in possession and had not foreclosed his mortgage, it was held that the mortgagor had a subsisting right of redemption in the proper- ty, which was subject to the claims of such mortgagor's cred- itors, and might be reached by garnishment.^ The transfer " Wigwalli;. Union &c. Co., 37 la. 129. 15 Roclie y. PJiocle Island Ins. Co., 2 111. App. 360. i<^ Eaudolpli V. Little, 02 Ala. 39(3. 1 Albany City Ins. Co. v. Whitney, 70 Pa. St. 2i8; Phelps u. Atcheson etc. R. Co., 28 Kan. 103 2 Bills V. Nat'l Park Bank, 47 N. Y. Sup'r Ct. 302. 3 Becker v. Dunham, 27 Minn. 32; Burnham i'. Doolittle, li Neb. 214. And II. Attach.— 11. § 410 garnishee's liability. 162 of the property before service of process, of wlilcli the gar- nishee has notice, is sufficient to discharge the garnishee as soon as this fact is judicially ascertained.* In order that the garnishee may be charged in respect to his possession of prop- erty of defendant, it is not necessary that the property should come to his possession as the property of such defendant. It is not even necessary that, when received, the defendant's in- terest therein should be disclosed. But it is essential that the interest of the defendant should be know^n to the garnishee prior to transfer. If it appears that prior to service of process in garnishment, the party served received into his possession certain personal property in which the defendant had a con- cealed interest, and that when so served, and thereafter until answer, he was ignorant of the fact that defendant was in any way interested in such property, and that he had allowed the property to pass out of his possession and beyond his control before he was advised of defendant's interest therein, such gar- nishee would not be held chargable in respect to the property so held and innocently disposed of .^ If, on the other hand, the property is apparently owned by defendant when received by the garnishee, who subsequently ascertains that others are beneficially intei'csted therein, the garnishee may be held to double liability, in case he fails to disclose such outstanding in- terest,^ but will be entitled to a discharge from liability as gar- nishee on establishing the fact of the beneficial interest adverse to the defendant.' Where, however, the party interested in the property of which defendant has control as agent or tru'^'t^e is notified by the garnishee of the garnishment, or has knowl- edge thereof, and fails to interpose his claim for the property, in consequence of which judgment goes against the garnishee, such judgment will be a protection against an action by the owner of the property who slumbered on his rights.^ when the mortgage was fraudulent, the mortgagee could be held absolutely. — Thompson v. Pennell, G7 Me. 159. 4 Balliet v. Brown, 103 Pa, St. 546; Schleuter v. Kaymond, 7 Neb. 28. 5 Bingham v. Lamping, 26 Pa. St. 340. ^Ante, § 402. " Post, § 416. e Eaudall v. Way, 111 JIasa. 506. CHAPTER XXXL POSSESSION UPON WHICH GARNISHEE'S LIABILITY DEPENDS. § 411. Possession, whether actual or constructive. § 412. Actual coutrol, lield more important than legal control. § 413. Possession by a non-resident garnishee. § 414. Garnisliee's possession, whether witli claim of ownership or not. § 415. Whether the garnishee's possession is rightful or otherwise. § 41(5. The ques.iou of defendant's interest in or title to the property attached. § 411. Possession, whether Actual or Constructive. — The character of garnishee's possession of specific articles of de- fendant's property, as it affects his liability, presents itself for consideration in two aspects. 1. The character of such pos- session, as it rehites to the control the party summoned has over the property. 2. The capacity in which the property is held, as it relates to the garnishee's identity witli the owner, and tlie limitations upon his direct responsibility to tlie defen- dant. The first treats of the liability of the garnishee as affect- ed by his relation to the property, and the second to his lia- bility as affected "by his relations to others. In order to avoid confusion, these two branches of the question of possession, which seem so nearly akin to each other, will be discussed in separate chapters. The present will be devoted to the first, and the second will follow in order. ^ Owing to the too liberal use made of the word " construc- tive," to distinguish possession which is merely theoretical, or assumed for certain purposes, from possession which is aC' tual, in the sense that it is manual, or capable of being ren- dered so at the will of the possessor, some confusion and ap- parent conflict of authority has arisen upon a feature of this branch of our subject, which is encountered on the threshold. Some difference in the decisions is also owing to the difference in the language of the statutes under which they are rendered. 1 Post, Ch. xxxn. §411 CHARACTER OF POSSESSION. 104 But llic words arc to 8omc extent inapt and misleading. It is quite ;:enerally true that the possession of personal property in res[)ect to which a party may be charged as garnishee must be actual, in the sense that it must ad;nit of actual control for the time being. ^ And yet it need not be manual possession, or even personal dominion actually exercised over the thing. As we shall presently see from the authorities cited, the party will be regarded as in possession sufficient to charge him, when, by the liberal manner in which the Courts a])pro- priate words to express their meaning, such possession would be called constructive. It cannot be dogmatically laid down, therefore, that in or- der to charge a garnishee on account of his possession of de- fendant's property, such possession must be actual and not cori' structive. The nature of the possession must be governed to a srreat extent by the peculiar character of the thing. Thus, a ship may be in the actual possession of a party, so as to render him liable as garnishee of the owner. But where a nominal possession is delivered by words or writing, Avhen the ship is at sea, the possession will not be regarded as sufficient for the purpose of garnishment, before she has landed.^ But by the same Court it was held that the garnishee was properly charg- able when he was only in possession by an agent.* This is the kind of possession that is sometimes called constructive, to dir- tin3: Hart v. Anthony, 15 Pick. 445; Lovejoy v. Albree, 33 Me. 414; 44 Am. Dec. G30; Law- rence r. Smith, 45 K. H. 533; Baxter v. Vincent, G Yt. (514; Creen v. Farmers' etc. Bank, 25 Conn. 452 ; Willet v. Equitable Ins. Co., 10 Abb. Pr. 193. See also Ikinge V. Green. 52 Vt. 204; Ray v. Underwood, 3 Pick. 302; Cronin v. Foster, 13 R. I. 196; Smith v. Eaton, 30 Me. 307; Jones v. "Winchester, G X. U. 497; Sawyer v. Tliorapson, 24 N. H. 610; Bradford v. Mills, 5 R. I. 393. ^ Yonn;. Crawford, 6 Gray, 116. 173 CHARACTER OF POSSESSION. § 41G land agreeably to his son's expectations.'* The technical ground assigned in some of the above cases is, that there is no privity of contract and interest between the garnishee and the defen- dant. This is well and elaborately stated by Mr. Drakc.^ But with deference it may be said, that the general ground of the decisions is, that the garnishee owes nothing to the defendant for which the latter can maintain an action. This is apparent when a case is presented in which there is no privity of con- tract, but the defendant has a present right of action against the garni.sjiee for the property held by the trustee. Here tiiere is no doubt that the holder of the property may be garnished in an action against the owner of the beneficial interest, who al- so has the present right of possession and enjoyment.*" The case of Ilartman v. Olvera" is one that may be disposed of upon the ground that the privity of contract between the gar- nishee and the defendant was wanting. The garnishee had purchased premises upon which the defendant held a mortgage, and it was sought to hold him by service of summons in gar- nishment, as the debtor of such defendant ; but the Court held that the purchase subject to the incumbrance did not make him the debtor of the mortgagee, nor did he become so by a promise made to his vendor that he would pay the mortgage debt, and hence he could not be charged as garni- shee.^ The question of garnishee's liability turns mainly upon the question whether the property in his possession belongs to the defendant, both legally and beneficially, but particularly the * Wells V. Banister, 4 Mass. 514. See also Iluot v. Ely, 17 Fla. 775; Hartman V. Olvera, 54 Cal CI. SDrakeon Att.,§490. 6 Raynes v. Lowell etc. Society, 4 Cusb. 343. ' 54 Cal. Gl. 8 TI.e distribution of liabilities does not proceed by the same rule tbat seems to obtain where rights are conferred upon others. Thus, where one agreed in writing to take certain shares of the capital stock of a corporation, stipulating tliat tliey were to be paid for by another party, one miglit suppose at a glance tliat it was difficult to fasten the liability to pay upon anyone with sufficie t fen ainty to support garnishment proceedings. The subscriber does not prom- ise to pay, neither does the party whom he designates as the one to make pay- ment. But the subscriber docs promise that the other party will pay, and the promise is in writing, by which he (the subscriber) becomes personally bound, and may bo garnished as a debtor of the corporation.— Ottumwa v. Water Power Co., 59 Iowa, 283. § 41G CHARACTER OF POSSESSION. 174 latter.^ lie may not Imve the legal title, and yet have a right ■\vliich he can enforce by action. If so, the party in possession may be summonetl and charged as garnishee. But if he have the naked legal title to the property, with no interest whatever therein beyond this ; if he has only the right to recover pos- session of the same for the use and benefit of some one else, it needs no argument or illustration to show that such property cannot be taken and applied to the payment of his debts. ^"^ Even where the trustee, in placing the fund or property in the hands of the depositary, treats it ostensibly as his own, or not distinctly as the property of any one else in particular, the de- positary being summoned as garnishee, and knowing at the time, or before answer, that some one else is beneficially inter- ested, this fact should be disclosed; and where it is uncontro- verted, or sufl3ciently proven in case of traverse, should dis- charge the garnishee from liability. ^-^ Thus, in Hardy v. Hunt,^^ it was held that where a bailee had been permitted to use the money of the bailor as his own, this would not render it sub- ject to garnishment in the hands of a stakeholder as the mon- ey of the bailee, when it could be distinguished, and the at- taching creditor had not been misled by the acts or declarations of the bailor. So in Meadowcroft v. Agnew,'^ where the sher- iff deposited various sums in bank, as sheriff, belonging to various execution creditors, and the bank was garnished for an individual debt of the depositor, it was held that the sheriff might, as trustee of the various persons whose funds he held, interplead, showing the facts of the case, and thereby protect the fund. In Pennsylvania, however, less regard seems at one time to have been had for the sacredness of trusts, unless they were openly declared, or evidenced by some written memoran- 9 Davis V. Marston, 5 Mass. 198 ; Eastbrook v. Earle, 97 Mass. .302 ; F. & M. National Bank v. King, 57 Pa. St. 202 ; Halpin v. Barringer, 26 La. An. 170. 10 Jones V. Etna Ins. Co., 14 Conn. 501 ; Cbapin v. Conn. E. Co., 16 Gray, 69 ; Simpson v. Harry, 1 Dev. & Batt. 202 ; Pickering r. \Vendell, 20 N. H. 222 ; Huot V. Ely, 17 Fla, 775 ; Hartman v. Olvera, 54 Cal. 61 ; Jackson v. Bank of U. S., 10 Pa. St. 61, 1' Jones V. Bank of Northern Liberties, 44 Pa. St. 253 ; Paxson v. Sanderson, 2 Phila. 303 ; Hardy v. Hunt, 11 Cal. 343 ; Meadowcroft v. Agnew, 89 111. 469 ; Farmer's etc. Bank v. King, 57 Pa. St. 202 ; Bowler v. European etc. K. Co., 67 Me. 395. 12 11 Cal. 343. . 13 89111.469. 175 CHARACTER OF POSSESSION. § 416 (luni. In Sllverwooil v. Bellas,^^ It was held that the garnishee who had received money In trust, to deliver over to defendant, was liable because he did deliver it over. This was In perfect accord with the general doctrine, Inasmuch as the beneficiary had a present right of possession and enjoyment, and the cred- itor stood in his shoes. But in following this case, In Jackson V. Bank of United States,^^ the Court seems to have regarded the deposit of money by a trustee In a bank In his own name as a fraud upon creditors, Irrespective of the extent to which they were actually misled by the act. Under a statute that rendered the garnishee liable for money or propei'ty coming to his possession after service, it was held that the bank was lia- ble, notwithstanding the fact that the money subsequently de- posited belonged to other persons than the depositor, and was at the time known and recognized by the bank, though the deposit and payment were both made in the name of the trus- tee. The Court so held, not because there was any evidence in the case of actual Injury resulting from this mode of doing business, but for the reason that the act was reprehensible on general j^rinciples of public policy, and if countenanced might encourage similar Irregular methods by which some one might be misled to his injury. This case was subsequently criti- cised and doubted In the same State,^^ but was In a still later case approved as good law,^'^ where It was also held, in sub- stance, that an account kept with a bank as the account of an agent was notice to the bank of the qualified title of the de- positor, and the fund would be protected against the agent's creditors proceeding by garnishment. It would be recognized in euch case as the money of his principals ; whereas if depos- ited and drawn out in his own name, It would be regarded as converted to his own use, and creating between the agent and his principals the relation of debtor and creditor. -^^ But in a comparatively recent case by the same Court, it was decided that where the agent made the deposit in his own name, with- es Watts, 420. 15 10 Pa. St. 61. 16 Paxson V. Sanderson, 2 Phila. 303. 1^ Bank of Northern Liberties v. Jones, 42 Pa. St. 536. 18 See also McCormac v. Hancock, 2 Pa. St. 310; Jones v. Bank of Iforthem Libi-rties, 44 Pa. St. 253. § 416 CHARACTER OF POSSESSION. 17G outdisclosing liis agency in the matter, and after garnisliment the principal gave notice of his ownership of the money, the garnishee could not be charged in the interest of the agent's creditors.'" This seems the better doctrine to apply to all cases of trust or agency, whether discovered before or after service, where it does not appear as v^fact in the case that the concealment of the representative capacity of the party having control or direction of the property has been for purposes of fraud, or that the creditors of the defendant have been misled to their injury by his apparent ownership. The question of defendant's ownership is also affected by the modern statutes which abrogate the common law rule as to the husband's title to the personal property of his wife. Under this rule, any one in possession of the wife's personal property, except where he held it as trustee, to her separate use,^*^ might be held as garnishee at the suit of the husband's creditors. ^^ And this rule has been so applied as to affect leg- acies, and distributive shares of the estates of decedents, be- queathed or descending to her."^ But it was also held that the wife's interest in an intestate estate could not be reached for the debt of her husband by garnishment process, until the husband had done some act to reduce it to possession, or had asserted some right to it.^^ And where it was held that a wife's interest in the estate of her father might be attached in the hands of the executor, by writ of foreign attachment against the non-resident husband, yet it was held that in case of the husband's death pending the proceedings in garnishment, the lien would be defeated and the property would go to the wife.^* So it was held that money in the hands of an adminis- trator before decree of distribution, where the wife was an heir, could not be held subject to foreign attachment until the decree was I'endered.^^ And where a legacy was left a married 19 Farmers' &c. Bank v. King, 57 Pa. St. 202. 20 Parks v. Cushman, 9 Vt. 320. 21 State V. Krebs,6 Har & J. 31. 22 Vance v. McLouglilin, 8 Gratt. 289 ; Holbrook v. "Waters, 19 Pick. 354 ; Wheeler v. Bowen, 20 Pick. 563 ; Parks v. Cushman, 9 Vt. 320; Peacock v. Pem- broke, 4 Md. 280. 23 Wbeeler v. Moore, 13 N. H. 478; Probate Court v. Niles, 32 Vt. 775. 2'i Vance v. McLougblin, 8 Gratt. 289; Strong v. Smith, 1 Met. (Mass.) 476. 25 Short V. Moore, 10 Vt.446; Probate Court v. Niles, 32 Vt. 775. 177 CHARACTER OF POSSESSION^ § 416 woman, whose husband had deserted her and was living in an- other State, the Court would not pi-esume the executor's assent, 80 as to vest the title in the husband, and make the legacy lia- ble for his debts, from the fact that the wife had possession and received profits from its use.^^ But where a promissory- note was made payable to the wife for a debt arising wholly from her property, the maker might be held as garnishee of the husband. ^'^ Whether the transfer of title to personalty is relied upon to defeat the garnishment or to render it effectual, it will depend upon the assent of the transferee. ^^ 26 Pressby v. McDonald, 1 Rich. (S. C.) 27; Beckwith v. Baxter, 3 N. H, 67. 27 Shuttles worth v. Noyes, 8 Mass. 229; Hockady v. Sallee^ 26 Mo. 219. 28 Towne v. Griffith, 17 N. H. 165. n. Attach.— 12. CHAPTER XXXn. THE CAPACITY IN WHICH GARNISHEE HOLDS DEFENDANT'S PROPERTY. § 417. The general effect upon garnishee's liability. § 418. "Where the party summoned as garnishee cannot be sn6^. § 419. Municipal corporations as garnishees. § 420. Officers of the law — clerks of Courts. § 421. Sheriffs, and other executive officers of Courts. § 422. Treasurers, and other public officers and agenta. § 423. Assignees, etc., in bankruptcy and insolvency. § 424. Receivers and similar officers. § 425. Executors. § 426. Administrators. § 427. Guardians and curators. § 428. Trustees of jirivate trusts and powers. § 429. Officers, agents, etc., of corporations. § 430. Agents and servants of other defendants. § 431. Attorneys at law. § 417. The General Effect upon Gramisliee's Liability. — The liability to garnishment of one in possession of propertywhich belongs to the defendant in attachment, or the judgment cred- itor, as the case may be, is often affected by the capacity in which it is held. And when this circumstance affects the lia- bility at all, it generally operates to extinguish it. This exemp- tion may arise in part from the character of the one in posses- sion, and in part from his relations to other parties who are interested in the property. It has nothing whatever to do with the manner in which the property is held, whether actual- ly or constructively, except as the representative capacity may ■be oonsidered in this connection. The character of the one in ■possession will defeat the garnishment where the property is held by one not capable of being sued, and consequently against whom judgment cannot be entered. The relations borne by the party in possession towards others in respect to the property, will have the same effect where such relations interpose a legal obstacle to direct responsibility to the defen- 179 CAPACITY IN wniCH GARNISHEE HOLDS- § 418 dant or judgment debtor ; or in other words, when the defen- dant, though having an interest in the property, has it coupled with conditions that prevent his assertion of his rights by ac- tion against the holder of the property. There is also another class who may be in possession of property which in itself is attachable, but which cannot be reached by garnishment be- cause of the public capacity in which it is held. Not because the holders may not be sued, but for the reason that the Courts consider it contrary to public policy that they should be re- quired to become parties to actions in which the public has no interest. Mention has been made of most of these in a for- mer chapter.^ Where, however, the official capacity of the party summoned is the only objection to his being held as gar- nishee, it will be found that the exemption from liability is not in every instance absolute for this reason alone. In some cases it only has the effect of making the liability subject to certain conditions. § 418. Where the Party Summoned as Garnishee cannot be Sued. — A State cannot be sued, and hence cannot be effectual- ly served with garnishment in respect to j)roperty of a debtor in its possession. The only general exception to the doctrine that a State or the general government of the Uuited States cannot be sued, is where it consents to be made a party defen- dant.^ The reason of this exemption is the recognized sover- eignty of the State, and its assumed superiority to the tribu- nal in which it would be required to appear, and to whose pro- cess it must submit. There are certain constitutional objec- tions to the suing of States,^ but these are held not to cover the entire range of litigation in which a State may become in- volved, when it contracts obligations to its own citizens.^ 1 Ante, Ch. XXV. 1 Briscoe v. Bank, 11 Peters, 259^^ Lador v. Baker, 39 N. J. L. 49 ; Bank of Tennessee v. Dibrell, 3 Sneed, 379 ; Beers v. Arkansas, 20 How. 527 ; Dewey v. Garvey, 130 Mass. 86. 2 Amendments Const. U. S., Art. XI. 3 Tlie amendment to the Constitution referred to above was adopted in con- sequence of the decision of tlie Supreme Court of the United States, in Chis- holm V. Georrjia (2 Dall. 419), to the effect that a suit brought by a citizen of South Carolina against the State of Georgia was properly brought in that Court. But the amendment only declares that the judicial power of the Unit- § 418 CAPACITY IN WHICH GARNISHEE HOLDS. 180 Nevertheless, the sentiment that it somehow derogates from the dignity of a sovereign State, to be summoned before a Court without its consent expressly given, prevails to a suffi- cient extent to place them beyond the reach of compulsory process. Even constitutional provisions requiring the legisla- ture to designate Courts in which the State may be sued are not self-enforcing, as the legislature must enact the law before ed States shall not extend'to suits against one of the United States "by citi- zens of another State, or by citizens or subjects of any foreign State." It sup- plies no restriction to the prosecution in tli6 Federal Courts of suits against the States by their own citizens. Jurisdiction is conferred upon the Federal Courts in certain classes of cases enumerated in Sectrion II, Article III, of the Constitution. The first of these in order is the class involving federal ques- tions, irrespective of parties. It is also provided that in cases where States are parties the Supreme Court shall have original jurisdiction: but this juris- diction is not necessarily exclusive. (Ames v. Kansas, 111 U. S. 449.) See al- so Antoni v. Greenhow, 107 U. S. 769. In the case of Harvey v. Commonwealth of Va. (1 American Law Journal, 194), Hughes, J., assumes for the purposes of the case that the Circuit Court oi the United States has jurisdiction of suits against States brought by their o«n citizens ; and in a note to the case (p. 197) reviews the constitution, statutes and decisions as follows. * * « " It was not until the passage of the Act of March 3, 1875, that Congress gave to tiie Circuit Courts of the United States jurisdiction, as authorized by Section II, Article III, of all cases arising under the Constitution, or a law or a treaty of the United States. In this Act, such jurisdiction was given without any exception as to parties to suits or their character. Tlie Act of 1789 had given appellate jurisdiction to the Supreme Court in all cases of this class, without respect to amount (which might be ever so small) or to parties. The jurisdiction to Circuit Courts by the Act of 1875 is equally without exception as to parties, but is limited to suits where the matter in controversy is not less in value than $500." In support of the proposition that the Constitution confers jurisdiction upon the Supreme Court where the State may be a party defendant, the case of Cohens v. Virginia (6 ^Vheat. 375), is cited, and the opinion of Chief Justice Marshall freely quoted. The conclusion of the Cliief Justice, as given in his own words, in speaking of the judicial power of the United States, is that such Court — "Is authorized to decide all cases of every description arising under the Constitution, or a law of tlie L'nited States. From this general grant of jurisdiction, no exception is made of those cases in which a State may be a party. * * * Are we at liberty to insert in tliis general grant, an exception of those cases in which a State may be a party? Will the spirit of tlie Constitution justify this attempt to control its words ? We think it will not. We think a case arising under the Constitution or laws of the United States, is cognizable in the Coiirts of the Union, whoever may be the parties." — 6 Wheat. 282. In support of the prop- osition that by the Act of March 3, 1875, original jurisdiction is conferred upon Circuit Courts of the United States upon the same terms, except as to amount, the learned annotator quotes from the opinion of Chief Justice Waite, in Ames v. Kansas (111 U. S. 449), who follows the same line of reasoning as his predecessor, to the same conclusion ; citing by the way the opinion of Mr. Justice Miller, in the case of Wisconsin v. Duluth, 2 Dill. 406. 181 CAPACITY IN WHICH GARNISHEE HOLDS. § 418 any Court can be invested with this extraordinary jurisdic- tion. ^ As a consequence of the exemption of the State from being sued, it is held that a State Treasurer cannot be held as jiar- nishee, on account of money in his hands due to the defendant in an action.^ For like reasons, the salary of no officer of the State can be attached by garnishment.^ This seems to extend the exemption to the State officers, as well as to the State itself ; but in reality, it leaves the doctrine of State exemption intact ; for if the officer has any attachable property in his hands, which he holds in a private capacity, he may be re- quii'ed to answer, notwithstanding his official character, and will be charged precisely as any garnishee. When, however, the money or property under his immediate control Is held in the capacity of a public servant. It would be extremely absurd to attempt to charge him as a 2:)rivate individual with the pos- session of that which he cannot surrender, except as he is le- gally authorized. If he is held at all, it must be as a repre- sentative of the State ; and to subject him to garnishment as a means of getting that which Is in the State's custody, is to all intents and purposes to prosecute a suit against the State itself.'^ This procedure cannot be rendered effectual to remove from the custody of a State official, bonds, or securities of any hind deposited with him in accordance with law.^ Nor can It be employed to interrupt the regular disbursement of money appropriated by the legislature to the payment of the debtor • against whom the suit Is instituted.^ The exemption of the iState from process of garnishment does not rest entirely upon the general exemption from suits ; for it has been, held where ^ And where the statute provides for such suit, it is held that such statute may be repealed without impairing any constitutional right. — Beers v. State of Arkansas, 20 How. 527. 6 Lodor V. Baker, 39 N. J. L. 49. 6 Bank of Tennessee v. Dibrell, 3 Sneed, 379. ■^ Tracy v. Hornbuckle, 8 Bush, 33G; Rollo v. Andes Ins. Co., 23 Gratt. 509 ; 14 Am. Hep. 147; Pennebaker v. Tomlinson, 1 Tenn. Ch'y, 111; Ladd v. Gale, 57 N. H. 210. Thus a State Ijunatic Hospital, uuder control and government of the commonwealth, could not be charged as garnishee of a person to whom it was indebted. — Dewey v. Garvey, 130 Mass. 86. 8 RoUo V. Andes Ins. Co., 23 Gratt. 509; 14 Am. Rep. 147. ''' AVild V. Ferguson, 23 La. An. 752; Deviue v. Harvie, 7 Mon. 439; 18 Am. Dec. 194. § 419 CAPACITY IN wnicn garnishee holds. 182 the State had provided for the prosecution of suits against it- self, that it could not be held as garnishee on account of a salary due from it to the debtor.^'' So, where the State was owner of a railroad which it operated, and it was provided by statute that suits might be prosecuted against such road for damages, it was nevertheless held that the salary of the super- intendent could not be reached by his creditors by means of garnishment.^^ Independent of the general doctrine that a State cannot be sued without its own consent, there are considerations of pub- lic policy that would incline the Courts to discourage the em- ployment of garnishment proceedings against them. It in- volves more than a sentimental notion of sovereign dignity, for such proceedings, if generally tolerated, would inevitably inter- rupt the despatch of public business, and be a means of meas- urably thwarting the purposes of government. Upon this ground of public policy, it is held that the District of Columbia, a local government that has no sovei-eign dignity to sacrifice, cannot be garnished.-'^ So it would probably be held in any of the Territories where public oflBcers were summoned as gar- nishees on account of money or propei'ty in their hands belong- ing to the defendant in attachment. Where the State's attor- ney held a sum of money recovered on bond to the use of a private citizen, to whom it Avas by act of the legislature di- rected to be paid, it was held that such attorney could not be charged as garnishee in an action against the party to whom the sum was due.^^ The same doctrine that exempts States and their fiscal officers from the process of garnishment, ap- plies with equal or greater force to oflficers of the United States.i^ § 419. Municipal Corporations as G-arnishees, —It is solely upon grounds of public policy, and for less cogent reasons 10 McMeekin v. State, 9 Ark. 553. "Dobbins v. O. & A. E. Co., 37 Ga. 240. See also Wilson v. Bank of La. 55 Ga. 98. 12 Fattier etc. Mf'g Co. v. Taylor, 3 McArthur 4; Deer v. Lubey, 1 McArthux 187. 13 Stillman v. Isham, 11 Conn. 124. " Devine v. Harvie, 7 Mon. 439; 18 Am. Dec, 194. 183 CAPACITY m WHICH GARNISHEE HOLDS. § 419 than can be urged in behalf of the State and Territorial gov- ernments, that municipal corporations are held not subject to garnishment. Their dealings are more nearly on the same plane as those of individuals and jirivate corporations. Their governmental machinery is more readily controlled, and tem- porary hindrances and obstructions more easily removed. Nevertheless, with a few exceptions, these subordinate branch- es of government have been held free from this annoyance. ^ It was accordingly held in Iowa, that a township could not be garnished ;^ and in New Hampshire, that a town could not be garnished for a bounty due a volunteer in the army.^ The same doctrine prevails in Pennsylvania, in respect to cities and villages.^ And it is held in Tennessee, that the statute express- ly giving the remedy by garnishment against "corporations," does not include municipal corporations.^ In Rhode Island, thei-e is a statute which prescribes that all corporations may be garnished, and this is held to include municipal corporations.^ Nevertheless, the question is stated rather doubtfully in a later case, where it was held where the town had been divided into school districts, that neither the town nor the town treasurer was liable to garnishment for a teacher's wages ; at feast, not until an order had been given by the school committee in fa- vor of the teacher.'^ In Michigan, it is decided that a school 1 In Missouri, wliere it is held that money in a city treasury cannot be reached by this process, the same result may be accomplished by a bill in equity.— Pendleton v. Perkins, 49 Mo. 5Go. 2 Jenks V. Osceola Township, 45 Iowa, 554. See Caldwell v. Stewart, 30 Iowa, ST9. 3 Brown r. Heath, 45 N. H. 168 ; Wendell v. Pierce, 13 N. H. 502 ; Morse v- Towns, 45 N. 11.185; Manchester i'. Burns, 45 N.H. 482 ; Bradley i-.Eichmond, 6 Vt. 121. See Shepard v. Turner, 13 Allen, 92. 4 Green r. Ptowley, 1 Pitts. 1 ; Erie v. Knapp, 29 Pa. St. 173. See also Burn- ham V. City of Fond Du Lac, 15 Wis. 193 ; Mayor v. Rowland, 2(j Ala. 498 ; Clark r. Mobile School Commissioners, 36 Ala. 021; Holt v. Experience, 26 Ga. 113 ; McLellun v. Young, 54 Ga.*399 ; 21 Am. Rep. 276 ; City of Chicago v. Hasley, 25 111. 595 ; Merwin v. City of Chicago, 45 111. 133 ; Egerton v. The Third JIunicipality,l La. An. 433 : Major v. Root, 8 Md. 93 ; Hadley v. Pea- body, 13 Gray, 200 ; Moore v. Major, 8 Heisk. 850 ; Parsons v. McGavock, 2 Tenn. Ch. 581 ; Bradley v. Town of Richmond, Vt. 121 ; Buffham w. City of Racine, 20^18. 449 ; Boone County r. Keck, 31 Ark. 387 ; Hawthorn v. City of St. Louis, 11 Mo. GO ; Fortune v. City of St. Louis, 23 Mo. 2.39. 5 City of Memphis v. Laski, 9 Heisk. 511. 6 Wilson V. Lewis, 10 R. I. 285. ' Spencer v. School District, 11 R. I. 537. See Norton v. Soule, 75 Me. 385. § 420 CAPACITY IX WHICH GAKXISHEE HOLDS. 184 district is a municipal corporation, and cannot be garnished even by its own consent, unless the debtor also consents.^ While in Colorado, where tlie exemption of municipal corpo- rations is maintained, it is held that the immunity may be waived by appearance and submission to liability'.^ In Ala- bama, the Court overrules an earlier case, where the question was differently decided, ^'^ and holds that a judgment creditor of a nmnicipal corporation cannot, by process of garnishment, rcacli and subject funds accruing to it by taxation, either while in course of collection by suit, or after they have been paid into its treasury. ^^ In Bray -y. Wallingford,^"^ it is decided under a statute to the effect that "debts due from any 2:)erson " might be attached, that the word "person" would include munici[)al corporations.^^ In Kentucky, it has also been de- cided that towns and cities were not exempt from process of garnishment.-'^ In Ohio, under a pi'ovisisn of the Code to the effect that "money, goods or effects" which the judgment debtor might have in the hands of " any person, body politic or corporate " might be attaclied, a city was held liable to gar- nishment.^^ § 420. OMcers of the Law — Clerks of Courts. — Money or property in the hands of an officer of the Court, Avhich lie holds in his official capacity, is generally regarded as in the possession of the Court — in the custody of the law — and hence cannot be reached by gainiishment of the officer.^ The prin- 8 School District v. Gage, 39 Mich. 484 : 33 Am. Rep. 421. 9 Commissioners Los Animas Co. v. Bond, 3 Colo. 411. See also Clapp v. "Walker, 25 Iowa, 315 ; Wilson v. Bank of La., 55 Ga. 98. w Sraoot V. Hart, 33 Ala. G9. 11 Umlerhill v. Callioun, 63 Ala. 216. See also Bartell v. Banman, 12 111. App. 450 ; Weymouth v. Penobscot Log Driving Co., 75 Me. 41. i2 20( onn. 416. 13 But see Stillman v. Isham, 11 Conn. 124 ; Ward v. County of Hartford, 12 Conu. 404. 1* Rodman ?;. Musselman, 12 Bush. 354 ; 23 Am. Rep. 724. See also Whid- den r. Drake, 5 N. H. 13 15 City of Newark v. Funk, 15 Ohio St. 462. See also as to Counties, Adams v. Tyler, 121 Mass. 380. 1 Alston V. Xewell, 8 Vt. 190; Conant v. Bieknell, 1 D. Chip. (Yt.) 50; Pren- tiss r. Bliss, 4 Yt. 513; 24 Am. Dec. 631; Turner v. Fendall, 1 Cranch, 117; Bowden v. Schatzell, Bailey's Eq. 360 ; Thompson v. Brown, 17 Pick. 462 ; Ilackley v. Swigert, 5 B. Monroe, 86; 41 Am. Dec. 256; Ex parte Fearle & 185 CAPACITT IN wnicn garnishee holds. § 420 ciplc upon which such officers are held exempt would apply to clerks of Courts as well as others, where they come into possession of the defendant's effects, and hold the same in their official capacity.^ This is, for obvious reasons, the gen- eral doctrine in regard to money of which the clerk has con- trol, by reason of its being paid into Court pursuant to an interlocutory order, to abide the event of pending litigation.^ It is almost needless to say that garnishment of the clerk can- not be resorted to for the purpose of attaching the interests of a judgment creditor in a judgment of record in his Court.* And yet clerks are held subject to garnishment in respect to money in their possession, entrusted to them in their official capacity. Thus, where money was deposited witii a clerk in lieu of an ap- peal bond, it was held subject to garnishment at the suit of a third person, for the reason that the ultimate title, subject to the claim of respondent, was in the depositor. ° So it waslield that an accepted draft filed in a case, might be attaclied by summoning the clerk in whose custody it was, as garnishee.^ So, also, where money in the hands of the clerk, arising from the sale of property, and which he was ordered to pay over to the party entitled thereto, was held subject to garnishment at the suit of a creditor of the party to whom it was ordered to be paid.'^ These cases may be capable of reconciliation with the genei'al proposition that money or property in the custody of the officers of the Court is, in contemplation of law, in the Court's keeping, and as such cannot be reached by garnish- ment ; ^ or the authorities may be regarded as conflicting upon the general doctrine; but the principle involved in the ques- Lewis, 13 Mo. 467; 53 Am. Dec. 155; Murrell v. Johnson, 3 Hill (S. C), 12; Daley v. Cunningham, 3 La. An. 55; Glenn v. Gill, 2 Md. 1; McKenzie v. Noble, lOEich. (S. C.)M7. " Ross V. Clark, 1 Dall. 354; Ante, § 264; Drane v. McGavock, 7 Humph. 132; Hunt V. Stevens, 3 Iredell, 3G5; Bowden v. Sehatzell, 1 Bailey's Equity, SCO; 23 Am. Dec. 170. 3 Farmer's Bank v. Beaston, 7 Gill & J. 421; 28 Am. Dec. 226. 4 Hanna v. Bry, 5 La. An. G51; 52 Am. Dec. 606; Daley v. Cunningham, 3 La. An. .55. 5 Dunlap t'. Patterson Fire Ins. Co., 74 N. Y. 145; 12 Hun. 627; 30 Am. Eep. 283. 6 Ealer v. McAllister, 14 La. An. 821. ■J Guither v. Ballew, 4 Jones, 488. 8 Murrell v. Johnson, 3 Hill (S. C), 12; Bowden v. Sehatzell, Bailey Eq. 360, § 421 CAPACITY IN WHICH GARNISHEE HOLDS. 186 tion (so far as the law of attachment may be said to be gov- erned by principle) is decidedly in favor of regarding such deposits as beyond the reach of process, unless they are held under the above exceptional circumstances. It is the doctrine in Maryland that money held by a trustee ajjpointed by decree of the Court of Chancery, and belonging to a non-resident, may be attached by his creditors, where the final audit has been ratified by the Court, and the amount be- longing to the debtor ascertained, and an order passed direct- ing the trustee to pay it over.^ § 421. Sheriffs and other Executive Officers of Courts. — The doctrine of exemption from garnishment in respect to money or property in legal custody, is also extended to sher- iffs and similar officers ; not, however, because of any sup- posed sacredness of the official person, but solely on account of the capacity in which the thing sought to be attached is held. His possession may be said to be the possession of the Court ; and if so, to charge him as garnishee would be, in ef- fect, to subject the Court to process. Subject, therefore, to statutory variation, it may be regarded as a general rule, that such officers cannot be held by process of garnishment on ac- count of their possession, in the capacity of representatives of the law, of the effects of a defendant in attachment or a judg- ment debtor. Thus, it is held that money levied on by the sher- iff hy fieri facias, and in his hands, is not attachable.^ And that money received by the sheriff from an execution sale can- not be attached while in his hands.^ But where there is a surplus after satisfying the judgment, in the hands of the officer, to which the execution defendant will be entitled, it is held, in most of the States where the question has been 9 Williams v. Jones, 38 Md. 555; Cockey v. Leister, 12 Md. 12*. 1 Blair v. Cantey, 2 Speer (S. C), 34. 2 Dawson v. Holcomb, 1 O. 275; 13 Am. Dec. G18; Dubois v. Dubois, 6 Cowen, 494; First v. Miller, 4 Bibb, 311; Prentiss v. Bliss, 4 Vt. 513 ; 24 Am. Dec. G31; Reddick v. Smith, 4 111. 431; Turner v. Fendall, 1 Cranch, 117; Thompson v. Brown, 17 Pick. 462; Keating v. Spink, 3 O. St. 124; Jones v. Jones, 1 Bland's Ch. 443; 18 Am. Dec. 327: Blair w. Cantey, 2 Speer's Law, 34; 42 Am. Dec. 3G0; Marvin v. Hawley, 9 Mo. 378; 43 Am. Dec. 547; Quarles v. Porter, 12 Mo. 83; Ex parte Fearle & Lewis, 13 Mo. 467; 53 Am. Dec. 155; Haswell v. W^orsham, 2 Humph. 524; 37 Am. Dec. 572. 187 CAPACITY IN •\VIIICII GARNISHEE HOLDS. § 421 raised, that this should not be regarded as in the custody of the law, and lience can be reached by garnishment by other cred- itors while still in the officer's possession.^ A later decision in Vermont than the one cited,^ without de- ciding the question under discussion here, inferentially favors the doctrine of the sheriff's liability to garnishment. An ac- tion was brought by an execution creditor for the amount due him in the sheriff's hands, and the latter interposed as a de- fense the pendency of garnishment proceedings, in which he had been summoned by a creditor of the plaintiff in the action. It was held that the pendency of such proceedings was no ob- stacle to the execution creditor's right to prosecute his action, and that he might recover from the sheriff, without any new demand, the amount remaining after satisfying the demand of the plaintiff in the garnishment proceeding.^ In New Hamp- shire it is decided that the sheriff may be charged as garnishee in respect to money collected by him on execution, even where the execution creditor's right of action against him has not been perfected by a demand upon the officer,^ though the same Court had previously held that the sheriff could not be gar- nished prior to the return day in the execution.'^ And even in some of the earlier cases, in which it is most strenuously de- nied that money in the hands of the officer, collected on execu- tion, can be levied on in his hands, tlie decision is put upon the ground that the creditor cannot claim proprietorship of the specific pieces of money, and that the law has not provided for reaching the execution creditor's claim upon the sheriff by the 3 Tucker v. Atkinson, 1 Humph. 300; 34 Am. Dec. 650; Watson v. Todd, 5 Mass. 271; King v. Moore, 6 Ala. 160; 41 Am. Dec. 44; Davidson v. Clayland, 1 Har. & J. 546; Lovejoy v. Lee, 35 Vt. 430; Adams v. Lane, 38 Vt. 640; Dick- inson r. Palmer, 2 Pdch. Eq. 407; Jaquett v. Palmer, 2 Harr. 144; Hearn v. C^rutclier, 4 Yerg. 461; Wheeler u. Smith, 11 Barb. 345; Pierce v. Carleton, 12 111. 358; 54 Am. Dec 405; Cole v. Wooster, 2 Conn. 203; Dolby v. MuUins, 3 Humph. 437; 39 Am. Dec. 180; Hurlburt v. Hicks, 17 Vt. 193; 44 Am. Dec. 329; Hillr. Beach, 12 N.J. Eq. 31; Lightner v. Steinagel, 33111. 510; Millison w. Fisk, 43 111. 112 ; Langdon v. Lockett, 6 Ala. 727; Everett v. Herrin, 48 Me. 537. * Prentiss v. Bliss, 4 Vt. 513. 5 Hicks V. Gleason, 20 Vt. 139. See also Hurlburt v. Hicks, 17 Vt. 193; 44 Am. De •. 329. 6 Woodbridge v. Morse, 5 N. H. 590. See also New Haven v. Fowler, 28 Conn. 103. f Adams v. Barrett, 2 N. H. 374. § 421 CAPACITY IN WHICH GARNISHEE HOLDS. 188 process employed.^ This recognizes the truth that the maxims of the common law cannot be invoked in aid of a statutory pro- ceedinf^, to enlarge its scope beyond what a strict construction of the statute itself warrants. No good reason is apparent why money or property in the hands of a sheriff, in his official capacity, should be exempt from execution or attachment by direct levy, and at the same time subject to garnishment. This distinction may be made by statute ; but if its being in the custody of the law protects it in the one case, in the absence of a statute, it must be held on technical rather than reasonable grounds, that it would not be equally protected in the other. In many of the cases here- inbefore cited, where the property was held exempt, it was from seizure.^ But in some of the States a different rule seems to obtain in reference to garnishment, particularly where it is sought to obtain control of money in the hands of the officer. The reason assigned for the distinction is, that the money can- not be seized in specie, because the execution creditor cannot so claim it from the officer ;^'^ while as a right or ci'cdit it may be reached by garnishment.^^ But this view of the question is expressly repudiated in Massachusetts, where the doctrine is laid down that * * * " There is nothing in the reason of the thing, resulting from the relation of a judgment creditor and an officer who has collected money for him, which renders the one a creditor and the other a debtor. There is nothing said in any of the books which implies that that relation exists be- tween them. On the contrary, money so collected is in the custod}"^ of the law, and the sheriff is the trustee for its safe- keeping." '^ The conclusion reached by this Court was that money collected by a sheriff on execution was neither goods, effects, nor credits of the execution creditor. To allow it to be subjected to the payment of a demand against the execution creditor by process of garnishment, it was claimed would have 8 Turner v. Fendall, 1 Cranch, 117. 9 See Prentiss v. Bliss, 4 Vt. 513; 24 Am. Dec. 631; Crane v. Freese, 1 Harri- rison (N. J.), 305. w See Turner v. Fendall, 1 Cranch. 117. 11 Hurlburt v. Hicks, 17 Vt. 193; 44 Am. Dec. 329; Hicks v. Gleason, 20 Yt. 139; Lovejoy v. Lee, 35 Vt. 430; Conant v. Bicknell, 1. D. Chip. 50; Woodbridge f . Morse, 5 N. H. 519. ^ Sedgwick, J., in Wilder v. Bailey, 3 Mass. 289. 189 CAPACITY IN wnicn CARisrisnEE holds. § 421 the effect of endangering that finality of determination wliich is the aim of the law. The same sura of money might be the subject of a succession of similar controversies, as successive creditors came forward to claim it; some of whom might make such claims, instigated by the defendant or the officer, and thus the latter's possession of the money be indefinitely prolonged at the trifling exi)ense of maintaining groundless suits. '^ When the question was again presented to the same Court, in a case where the process was served on the officer after the return day of the execution, this seems to have made no difference, as it was still held that the avails of tlie execution in the ofii- cer's hands could not be reached by garnishment of the officer in the interest of a creditor of the execution creditor. ^^ The same principle of exemption from gai'nishment, upon the ground that money held by the sheriff was in the custody of the law, has been recognized in very many if not most of the other States, and, so far as numbers go, it may be regarded as the prevailing doctrine.^^ Under a statute of the State of Massachusetts, which was probably not in force when this question was first presented in that State, which provided that no one should be charged as garnishee, on account of money coming to his hands " as a public officer, and for which he is accountable, merely as such officer, to the principal defendant," it was held that the sheriff could not be so charged, because of money taken by him from the person of a party arrested on criminal process.'^ In Iowa, in the absence of any special stat- utory provision, it was held where a prisoner had been arrested for larceny, and money and valuables taken from his person by the officer, that such money and valuables could be attached by garnishment process, served upon the officer in a civil action 13 Wilder v. Bailey, 3 Mass. 289. [No text writer would undertake to offeT sucl] a reason in support of sucb a rule. Sach pbilosopliy is only acceptable coming from tlie Bencli.] " Pollard V. Eoss, 5 Mass. 319. i& Farmers' Bank v. Beaston, 7 Gill & J, 421; 28 Am. Dec. 22G; Burrell r, Letson, 2 Speers, 378; 1 Strobbart, 239: Zurcber u. Magee, 2 Ala. 253; 1 raiio v, McGavock, 7 Humpb. 132; Ligbtner t;. Steinagel, 33 111. 510; Clymer ». Willis, 3 Cal. 363; Staples v. Staples, i Me. 532; Pawley v. Gaines, 1 Tenn. 208; Hill v. La Crosse etc. II. Co., 14 Wis. 291; Millison v. Fisk, 43 111. 112. 16 Robinson v. Howard, 7 Cusb. 257. See also Morris v. Penniman, 14 Gray, 220. § 422 CArACITT IN WHICH GARNISHEE HOLDS. 190 against the prisoner.^" But in a later case it was held by the same Court, that property or money coming into possession of the sheriff under almost precisely the same circumstances as those detailed above, could not be levied on by the officer under a writ of attachment against the pi'isoner.^^ A slight varia- tion from the usual wording of final process in Connecticut, where, instead of the command to have the proceeds of the ex- ecution in Court, etc., the command to the officer was to cause it to be '• paid and satisfied to the plaintiff," was held sufficient to make the officer the agent of the plaintiff, and the money collected on execution could be reached by garnishment of such agent ; it not being in custodla legisJ^ So, upon clear er grounds of exception, where a sheriff went out of office with money in his hands, collected during his official term, as fees for another officer, it was held that the money so in his pos- session was not in the custody of the law, and its possession would support garnishment at the suit of a creditor of the of- ficer for whom the collections were made.^" It has been held upon the same general principle that applies to sheriffs, that United States marshals are not liable to garnishment, because of money held by them in their official capacity .^^ But a con- stable has been held garnishable when he was bound to pay over the money to the execution plaintiff,"" though it is doubt- ful whether this exception is uniform. § 422. Treasurers and other Public Officers and Agents. — Although counties, and other quasi municipal corporations that have direction of local interests in the State, and are for most purposes regarded as integral branches of the State gov- ernment, may be sued, their officers who have the collection and disbursement of public moneys cannot, in general, be gar- nished in respect to sums in their hands due to judgment debt- ors or defendants in attachment suits. This exemption is due entirely to the capacity in which they hold such money, and 17 Reifsnyder v. Lee, 44 Iowa, 101; 24 Am. Eep. 733. 18 Commercial etc. Bank v. McLeod, Eep. June 18th, 1884. 19 New Haven Saw Mill Co. v. Fowler, 28 Conn. 103. 20 Robertson v. Beall, 10 Md. 125. 21 Burrell v. Letson, 1 Strobhart, 239. 22 Burleson v. Milan, 06 Miss. 399. 191 CAPACITY IN wnrcn garnishee holds. § 422 the general policy whicli forbids private interference with the regular dlscliarge of their public functions. A sum of money in the hands of a county treasurer, which was due to a citizen for jury service, could not be reached by garnishment of the treasurer in a suit by the citizen's creditors.^ The same gen- eral doctrine, that one holding money or property under au- thority derived from the law, cannot be garnished so as to af- fect Its disbursement, was held applicable in Illinois to the treasurer of a school district, and the board of school direc- tors when garnished In respect to the salary of a teacher.^ In a ease arising In Kentucky, the ruling was based upon the ground that to permit the garnishment to intercept the teach- ers salary might result in the loss of the teacher's services,^ which Is a more reasonable foundation for the objection to the proceeding In a case of this kind, than where the services In question are those of an ordinary municipal officer. In the same State It was decided in an earlier case, that money in the hands of the sheriff which he was ordered to pay to the jailor, could not be reached by garnishment at the suit of the latter's creditor.^ The same doctrine is held in Illinois to apply to the employees of cities, when the money due them for salaries or wages is In the hands of the proper disbursing officer, whose duty it is to pay it.^ The Supreme Court of the United States take the same view of the question, as respects the wages of seamen, soldiers, etc., as well as of salaries of government offi- cers of all grades, whether civil or military. The question was raised In that Court in the case of Buchanan v. Alexander,^ which came up on error from the Superior Court of the Coun- ty of Norfolk, State of Virginia, where garnishment of a sea- iChealy v. Brewer, 7 Mass. 259. See also Bulkley v. Eckert, 3 Pa. St. 368 ; 45 Am. Dec. 050 ; Clark v. Clark, 62 Me. 255 ; Triebel v. Colburn, 64 111. 376. -Millison v. Fisk, 43 111. 112 ; Bivens v. Harper, 59 111. 21 ; Clark v. Great Barrington, 11 Pick. 259. 3 Allen V. Bussell, 78 Ky. 105. See also Hightower v. Slaton, 54 Ga. 108 ; 21 Am. Bep. 273. •* Webb V. McCauley, 4 Bush, 8. ^Triebel r. Colburn, G4 111. 376. See also Memphis v. Laski, 9 Heisk. 511 ; 24 Am. Rep. 327 ; Wallace v. Lawyer, 54 Ind. 501; 23 Am. Rep. 661 ; McLellan v. Young, 54 Ga. 399 ; 21 Am. Rep. 276. Contra, Rodman u. Mussellman, 12 Bush, 354 ; 23 Am. Rep. 724. 64 How. 20. § 422 CAPACITY IX wnicn gae^tishee holds. 192 mjin's wages, clue from a purser in the navy, by service of pro- cess on tlie purser, had been sustained. Mr. Justice McLean, in delivering the opinion, thus disposes of the question under consideration. * * * "If the creditors of these seamen may, by process of attachment, divert tlie public money from its le- gitimate and appropriate object, the same thing may be done as regards the pay of our officers and men of the army and of the navy ; and also in every other case where the public funds may be placed In the hands of an agent for disbursement. To state such a principle is to refute it. No government can sanc- tion it. At all times it will be found embarrassing, and under some circumstances it might be fatal to the public service. The funds of the government are specifically appropriated to certain national objects, and if such appropriations may be di- verted and defeated by State process, or otherwise, the func- tions of the government may be suspended. So long as money remains in the hands of a disbursing officer, it is as much the money of the United States as if it had not been drawn from the treasury. Until paid over by the agent of the govern- ment to the person entitled to it, the fund cannot in any legal sense be considered a part of his effects. The purser is not the debtor of the seaman. It is not doubted that cases may have arisen in which the government, as a matter of policy or accommodation, may have aided a creditor of one who re- ceived money for public services ; but this cannot have been under any supj^osed legal liability, as no such liability attach- es to the government, or its disbursing officers." ' ''See also Averill v. Tucker, 2 Cranch C. C. 544; Mechanics' etc. Bank t'. Hodge, 3 Eob. La. 373; Clark v. Great Barrington, 11 Pick. 259 ; Stillman v. Isham, 11 Conn. 124 ; Eodman v. Musselman, 12 Bush. 354 ; 23 Am. Eep. 724 ; Buckley v. Eckert, 3 Pa. St. 3G8 ; Wallace v. Lawyer, 54 Ind. 501 ; 23 Am. Rep. 661 ; "Wild v. Ferguson, 23 La. An. 752 ; Tracy v. Hornbuckle, 8 Bush. 336 ; Eollo v. Andes Ins. Co., 23 Gratt. 509 ; 14 Am. R. 147 ; Bank of Teunes- Bee V. Dibrell, 3 Sneed (Tenn.), 378 ; State v. Curran, 7 Eng. 322 ; Danley v. State Bank, 15 Ark. IG ; Spalding v. Imley, 1 Boot, 551 ; Wicks i-. Branch Bank, Mobile, 12 Ala. 594 ; Dobbins v. Railroad Co., 37 Geo. 240 ; Wilson v. Bank of La. 55 Geo. 98 ; Brashears v. Root, 8 Md. 95 ; Ward v. County of Hartford, 12 Conn. 404 ; Cbealy v. Brewer, 7 Mass. 259 ; McDoiigal v. Board of Supervisors of Hennepin Co., 4 Minn. 184 ; Gilmanr. Contra Costa Co., 8 Cal. 52 ; Williams y. Boardman, 9 Allen, 570 ; Emeric v. Gilman, 10 Cal. 404 ; Boone Co. v. Keck, 31 Ark. 387; Randolph v. Ralls, 18 111. 29. But see Adams v. Tyler, 121 Mass. 380, where a county was held chargable as garnishee for compensation due messen- ger in charge of its court house, at a fixed salary, payable from the county treasury. 193 CAPACITY IN WHICH GARNISHEE HOLDS. § 422 The principle upon which the exemption is based in the opinion quoted is, that the government has not parted with its title to the money, so long as it is in the liands of its own rep- resentative, whether he be styled an officer or an agent. If this doctrine is worthy of general acceptance, and there can be little doubt of it on general principles, tliere can be no logical difference between the consequences of entrusting the disbursement of public money to an officer who pays it out pursuant to his general duties, and authorizing its payment by an agent appointed specially for that purpose. In either case the possession of the agent is the possession of the principal, so long as both possession and agency continue.^ But where the money has been paid to an agent of the officer, the case is different in principle, and the money is held subject to garnish- ment in the hands of such agent. ^ So, where a township clerk deposited public funds in a bank, to his personal credit, this was held to be a conversion of the money to his own use, audi the bank could be held as garnishee in an action against the clerk ; and if such funds were paid over by the bank before the attaching creditor had notice that they belonged to the jDublic, it was held the clerk could not recover them in his of- ficial capacity.^** This principle is recognized in Stillman y. Isham,^^ where an attorney, was in possession of money recovered in a suit by the State, and which was, by direction of the legislature, made l^ayable directly to a party who was personally interested in the action. It was held that the attorney, who was certainly not a reo;ular disbursing officer, could not be 2;arnished at the- suit of the payee's creditors. In New Hampshire, however, this doctrine seems to have been held inapplicable to a case where an agent was appointed for the purpose of distributing certain public money to the inhabitants of a town, per caioita. It was accordingly held that he might be held as garnishee in. respect to the share of an individual inhabitant.-'^ 8 See Barnard v. Graves, 16 Pick. 41; Neuer v. O'Fallon, 18 Mo, 277; Casey- f. Davis, 100 Mass. 124. 9 Kennedy v. Aldridge, 5 B. Mon. 141. i** Long V. Emsley, 57 la. 11. " 11 Conn. 124. 12 Wendell v. Pierce, 13 N. H. £02. n. Attach.— 13. § 423 CArACiTY IN wniCH garxishee holds. 194 In some of the States, where Justices of the Peace are au- thorized to receive money due the plaintiff in an action, or to act in the capacity of agents to collect, using the process they are empowered to issue for that purpose, it is held that their official capacity does not exempt them from liability as gar- nishees.-*"^ But it is held otherwise in Pennsylvania, where money in the hands of Justices of the Peace is regarded as coming within the general rule of exemption.^* It was accord- ingly held that a judgment against a garnishee, who was a Justice of the Peace, for not answering the interroijatories as to the number, amount, and time of entry of judgments on his docket, in favor of the defendant, and the names of the de- fendants therein, was erroneous. ^° § 423. Assignees, etc., In Bankruptcy and Insolvency. — The office of the assignee and the capacity in which he holds property coming to his hands by virtue of the assignment, are somewhat peculiar. He is in one sense an officer of the Court. But unlike other officers, he does not hold the proper- ty coming to his hands as the Court's representative, nor is property coming to his possession protected because it is in custocUa legis, unless he is to be considered as not only the officer but the Court that has the custody. Neither is it pro- tected on the ground that it is public property, and he is the authorized distributor or disbursing agent. He is held exempt from garnishment at the suit of creditors of the bankrupt or insolvent, upon more obvious, if not more satisfactory grounds, than either an officer of the Court, or a public disbursing offi- cer, is exempted from such process in respect to money or property subject to their official control. He holds the prop- erty so assigned to him by a title paramount to the bankrupt or insolvent. It is, until the rights of creditors are established, and their distributive shares ascertained, his own property, by virtue of the assignment.^ In view of this conclusive reason for denying the right of the creditor to subject the assets in the hands of the assignee to the process of garnishment, at the suit 13 Clark i;. Boggs, fi Ala. 809 ; 41 Am. Dec. 85. " Corbyn v. Bollman, 4 Watts & S. 342. 15 Corbyn v. Bollman, 4 Watts & S. 342. 1 Oliver v. Smith, 5 Mass. 183. 195 CAPACITY IN WHICH GARNISHEE HOLDS. § 424 of the creditors of the bankrupt or insolvent, it seems unnecess- ary to refer this exemption to public 2)olicy. The garnishment, if permitted, would defeat the purposes and objects of the law -^ but it is precisely against this contingency that the statute by which the assignment is authorized provides, when it legalizes the transfer of the property to him, for the purposes of ulti- mate distribution. It is another matter when, in the course of the administra- tion of his duties, the assignee has in his hands a sum due one of the creditors, and a creditor of such creditor seeks to charsre him as garnishee in respect thereto. In such case, the exemp- tion could be maintained, if at all, only on the ground of the official capacity in which the money of the defendant was held. It is no longer the property of the assignee. In case of his re- fusal to pay it over to the party entitled thereto, the latter could maintain an action for it. It is not apparent how, in such case, the assignee would occupy ground more favorable to his exemption than would a sheriff in possession of a surplus due an execution defendant.^ At one time it was held in Mas- sachusetts that under such circumstances the assignee could be garnished, and charged with any sums due a creditor of the estate in his hands.* But this appears to have been prior to the statute referred to in another place,^ or without regard to its provisions, as that expressly inhibited garnishment of officers in respect to money in their hands, held and to be paid out in their official capacity. Subsequently, however, it was held by the same Court that garnishment would not lie against an as- signee, at the suit of a creditor of a distributee to whom mon- ey was payable by him as such assignee.^ § 424. Receivers and similar Officers. — Receivers are offi- cers of the Court, and consequently, money in their hands is in custodia legis under precisely the same circumstances, and sub- ject to the same conditions, as it would be so held when in pos- 2 Farmer's Bank v. Beaston, 7 Gill & J. 421 ; 28 Am. Dec. 226. * Supra, § 421. * Decoster v. Livermore, 4 Mas3. 101 ; Jones v. Gorbam, 2 Mass. 375. 6 Supra, § 421. « Colby V. Coatea, 6 Cusb. 558. See also Dewing v. Wentworth, 11 Cusb.. 499. See Infra, § 424, for further authorities. § 424 CAPACITY IN WHICH GARNISHEE HOLDS. 196 session of tlie clerk of a Court. -^ When he takes charge of property he practically occupies much the same position in re- spect thereto, and in relation to other parties, as an assignee in bankruptcy, except perhaps that the property is not held un- der title, by virtue of a legal transfer, in the case of a receiver as it is by the assignee. Yet his duties are those of a conser- vator, and finally of a distributor or disbursing officer. He re- ceives the property of the insolvent, or liquidating corporation, for example, and finally makes distribution of the avails amongst those found to be entitled thereto by the power authorized to adjudicate upon the claims presented. Money in the hands of a receiver, before any distribution is ordered, is as secure from attachment by garnishment served upon the officer as it would be in the hands of an assignee.^ This exemption may follow the effects in his hands even after the termination of the suit, when the money is payable into Court, for the reason that it is still in the custody of the law,^ and applies to all officers charged with similar duties, by what- soever style they are known and designated.* The doctrine of exemption from garnishment has also been recognized as ap- plicable to property which was not yet reduced to actual pos- session.^ But in Maryland it is held, that the appointing and bonding a receiver does not prevent the goods which he is au- thorized to receive from being attached.^ And in this State, although it is uniformly held that the process of garnishment served on the receiver or trustee cannot affect the fund in his hands, or render the officer liable, or compel any modification of the final account, it is nevertheless decided that the attach- ment may be laid in the hands of the officer before final ac- count, and will be effective upon a sum ascertained to be the distributive share of the defendant in attachment.'' It is else- 1 Field V. Jones, 11 Ga. 413 ; Bentley v. Slirieve, 4 Md. Ch. Dec. 412 ; Hoge- don V. Bank of Wis., 1 Pinney. Gl ; Xelson v. Conner, 6 Kob. (La.) 339. -Taylor v. Gillian, 23 Tex. 508 ; Farmer's Bank v. Beaston, 7 Gill & J. 421 ; 28 Am. Dec. 226 ; Glenn v. Gill, 2 Md. 1. 3 Field V. Jones, 11 Ga. 413 ; Nelson v. Connor, 3 Rob. (La.) 339. 4 Bentley v. Shrieve, 4 Md. Ch. Dec. 412 ; Mackenzie v. Xoble, 13 Eich. 147j Cockey v. Leister, 12 Md. 124. ^Hagedon v. Bank of Wisconsin, 1 Pinney, 61 ; 39 Am. Dec. 275. 6Farmer's Bank v. Beaston, 7 Gill & J. 421 ; 28 Am. Dec. 22(). 'McPherson v. Snowden, 19 Md. 197 ; Groome v. Lewis, 23 Md. 137. 197 CAPACITY IN WHICn GARNISHEE HOLDS. § 425 where held, and as it appears with considerable unanimity, that when defendant has a right to a certain distributive share of the fund in the hands of a receiver, master in chancery, or trustee of Court, the officer may be effectually garnished by a creditor of tlie party so entitled, after the Court has ordered it to be paid.^ In Alabama it was decided that a register of a Court of Chancery could be charged as garnishee, on account of a surplus of money belonging to a defendant after a sale of mortgaged property under decree of Court, and the satisfac- tion of the mortgage debt, although the process was served before the sale was confirmed, and the register had been or- dered by the decree to report his doings at the next term of Court. ^ The rulings in this and the case of Van Riswick v. Lamon,^*' are somewhat analogous to the decisions in reference to the liability of sheriffs to garnishment in respect to the sur- plus left in their hands after satisfying an execution. ^^ The authorities seem to concur in holding receivers and similar of- ficers liable to garnishment, when they have in their hands a definite sum to which the defendant or the judgment debtor is clearly entitled, and the officer has nothing more to do with the fund than to pay it over. Some of them may go beyond, but none, so far as they have been examined, fall short of this conclusion. § 425. Executors. — In the absence of a statute that ex- pressly includes legacies, and distributive shares of the estates of decedents, in the classes of attachable effects that may be reached by garnishment of the personal representatives, both executors and administrators are held exempt from such pro- cess, at least until the right of the legatee or distributee is ascer- tained beyond question.^ So long as the right of defendant in attachment depends upon a contingency, neither the executor nor the administrator can be charged as garnishee, as being in 8 Van Eis-wick v. Lamon, 2 McArtbur, 172 ; "Williams v. Jones, 38 Md. 555 ; Weaver v. Davis, 47 III. 235. 9 Langdou v. Lockett, G xVla. 727; 41 Am. Dec. 78. " 2 McArthur, 172. ^ Supra, % '^l. 1 A statute authorizing the attachment of legacies was held not to be retro- active, ;in(l hence would not rentier garnishees liable under judgment obtained befure i)ass;igc of the law.— Hartle v. Long, 5 Pa. St. 491. § 425 CAPACITY IN WHICH GARNISHEE HOLDS. 198 possession of goods, chattels, effects, rights, or credits of such defendant. Whether there will be anything which the de- fendant can claim as his own, will depend very materially upon whether anything will remain after the payment of debts. This contingency is sufficient to defeat the right of the attach- ins creditor to call the executor to account. The reasons assigned for this exemption are, that an executor derives his authority from the law, and is bound to execute it according to the rules prescribed by law ; that the executor cannot be regarded as the debtor of the legatee ; that the creditor can- not, as in ordinary cases, place himself in the position of the defendant, and prosecute the garnishment against the executor without great inconvenience to the latter ; that it would not only embarrass and delay the settlement of estates, but would often draw them from Courts of Probate, where they ought to be settled, into Courts exercising common law jurisdiction, who would have no power to adjust and settle the accounts of the executor. Altogether, it might operate to prevent the ex- ecutor from executing his office as the law directs,^ So in Pennsylvania, where the question arose under a statute that gave the legatee a right of action at common law to recover his legacy, but with no special provision in the law governing foreign atttachment, by which the necessary means for harmo- nizing it with the law of descents and distributions, it was decided that garnishment of the executor would not lie at the suit of a creditor of the legatee, for the reasons assigned in the Connecticut case ; ^ considerable stress being laid upon the em- barrassment and inconvenience of the process to the executor in case he should be drawn into such conflicts, and compelled to withhold payment without suit, all of which would multi- ply his onerous duties, and increase the burden of his respon- sibilities for the benefit of third persons. The situation of the executor was held analogous to that of a sheriff or prothono- tary in whose hands money could not be intercepted by the creditors of the party entitled to it ; the analogy consisting of the public official capacity in which the money was entrusted to them. As a consequence of new parties being allowed to 2 Wincbell v. Allen, 1 Conn. 385; Hess v. Shorb, 7 Pa. St. 231. 8 Winchell v. Allen, 1 Conn. 385. 199 CAPACITY IN WHICH GARXISHEE HOLDS. § 425 attach It, there would be no end of disputes and hiwsuits, and the business could not be certain of ever being brought to a close within a reasonable time.* At one time the same doc- trine was maintained in Massachusetts, whether the garnish- ment was before or after the probate of the will. The legacy in the hands of the executor was not re. Wood, 33 Vt. 332; Ante, §§ 328, 346, 347 ; Neuer v. O'Fallon, 18 Mo. 277. § -ISO CAPACITY IN WHICH GAENISHEE HOLDS. 214 be determined on any broad general principle, except the rules of interpretation applicable to statutes. § 430. Agents and Servants of other Defendants. — The prin- ciples that exclude the mere agents and servants of the principal defendant from the list of those who may be charged as gar- nishees (where such a principle is recognized), is that the proper- ty held by them is in the possession of the owner, and should be attached by direct levy.^ It matters not whether the princi- pal or employer be a private corporation or an individual. The capacity in which it is held is such, that no rights of the holder can be affected by seizing and placing it under the im- mediate custody of the law.^ Where the statute restricts the use of this process to cases where the one in possession is a third person, it is held not to lie where such person is a mere agent or servant, irrespective of whether the property or money is ca- pable of actual seizure.^ The authorities cited in the next preceding section will show the conflict that exists in relation to the question, and that it must be determined, where raised, accordinoj to the construction the governing statute will bear. § 431. Attorneys at Law. — There seems to be nothing in the relation of attorney and client which necessarily exempts them from the operation of the statutes in relation to garnish- ment, when the client is defendant, and the attorney has pos- session of the debtor's property which he holds in that capaci- ty.^ The cases noted are in the main decided upon the ground that the attorney, having money of the client in his hands, may be charged as garnishee, for the reason that he is indebted to the client. And it is held, in one case at least, that the attor- ney may be garnished on account of money in his hands which belongs to his client, even where no demand has been made, which is recognized as an indispensible condition to the client's 1 Hall V. Filter Mf'g Co., 10 Phila. 370 ; Flanagan v. Wood, 33 Vt. 332. 2 Ante, § 349. 3 Fowler c. Pittsburg &c. E. Co. 35 Pa. St. 22 ; Pettingell v. Androscoggin R. Co., 51 Me. 370. 1 Mann v. Buford, 3 Ala. 312 ; 37 Am. Dec. 691 ; Eiley v. Hirst, 2 Pa. St. M6 ; Tarbell's Case, 1 Saund. (Eng.) 67 ; Taylor v. Sherman, 12 Mass. 441 ; Eidge v. Hardcastle, 8 T. E. 417 ; Morse v. Holt, 22 Me. 180, 215 CAPACITY IN WHICH GARNISHEE HOLDS. § 431 right of action for the money .2 So an attorney served with process of garnishment, who had a demand due defendant in his hands for collection, was held chargable with the amount collected thereon before his disclosure and after service.^ 2 staples V. Staples, 4 Me. 532. 8 Hurlburt v. Hicks, 17 Vt. 19a ; 44 Am. Dec. 329. CHAPTER XXXIII. TRANSFER OR INCUMBRANCE OF PROPERTY PRIOR TO GAR- NISHMENT. § 432. The fourth party to the controversy. § 433. The iuterveuor's claim as proprietor. § 434. When the consideration of the transfer is brought in question by the answer. § 435. Issues made with the intervenor. § 436. Consequences of failure on the part of garnishee to give notice of the transfer of interest. § 437. Equitable assignment prior to service. § 438. Attempted transfers ineffectual. § 439. Fraudulent assignments. § 440. Eights of parties affected by prior mortgage of chattels in garnishee's possession. § 441. Pledge as garnishee. § 442. Other liens to which property in possession of the garnishee may be subject. § 432. The Fourth Party to the Controversy.^— The pres- ent chapter has to do, not only with the effect upon the gar- nisliee's liability of a prior transfer of interest, or incumbrance of the property, with the possession of which it is sought to charge him, but with the manner in which the rights of stran- gers to the proceeding may become involved, and they as claimants be drawn into the controversy. Where the statute does not requii*e the claimant to intervene, or the peculiar cir- cumstances of the case do not render such a course necessa- ry in order to preserve his rights, he may disregard the pro- ceeding, and stand upon the validity of his claim, unaffected by the judgment rendered in the cause to which he is not a necessary party.^ Where he may be heard in the matter, he does not always occupy a position which entitles him to keep the case in Court, when the plaintiff sees proper to abandon his pursuit of the defendant by means of this peculiar process. 1 Ante, § 338. 2 Garrott v. Jaffrey, 10 Bush. 413. 217 TRANSFER PRIOR TO GARNISHMENT. § 433 Primarily the proceeding raises no issue as to his rights, but merely as to whether the principal defendant or judgment debtor has an attachable interest in certain specific property in the possession or under the control of the garnishee.^ It la only where the answer sets up the rights of the stranger, or admits the title of the defendant which Is claimed adversely to his own, that he may become interested in the contention. The interest he has may be that of a proprietor, an assignee in trust, or a mortgagee or other lienor. Where he holds the property in pledge, it can be reached only when he is sum- moned as garnishee, when no intervention will be necessary, as the fact may be put In issue on the traverse of the answer.* § 433. The Intervenor's Claim as Proprietor. — The party designated herein as the intervener Is the one who claims an in- terest In the property held by the garnishee, Avhether as a mat- ter of fact he intervenes to establish by that claim or not. He may put forward the claim himself, or it may appear by the answer of the garnishee, and his title be established for all the purposes of the action without his ever appearing as a party to the contest. Where the claim of ownership Is as- serted by him upon the ground of original title, as between himself and other parties. It naturally follows that some evi- dence of the proprietary interest of defendant must be adduced, before he will be called upon to establish his title. In what- ever manner his claim may be put forward, it amounts to a de- nial of the ownership of the property by defendant, which is an essential fact u[)on which the plaintiff's judgment against the garnishee must rest. Consequently, It throws the burden of proof upon the plaintiff.^ But the subject of this chapter presupposes that the property in question came to garnishee's possession as the property of defendant, and the question is "whether it so continues, or has been transferred to the Interve- nor or the garnishee In the mean time. One of the common incidents of the attachment law is, that the defendant is so far In Insolvent circumstances as to be un- 8 Dobbins v. Hyde, 37 Mo. 114. * Bark v. McCall| 3 Binn. .'i38. 1 Sheldon v. Hinton, 6 111. App. 216 ; Simpson v. Harry, 1 Dev. & Bat;. Law, 202. § 434 TKANSFEE PKIOK TO GARNISHMENT. 218 able to pay his debts in the ordinary course of business, and has been in this condition for some time previous to the suit. For this reason most of the authorities upon the subject of the transfer of defendant's interest in property place great stress upon the consideration of such transfer, as though the title to personal property could not be parted with except upon the payment of a consideration by the transferee. This is not true, however. The donee of personalty may acquire a per- fect title to the gift, as though full value had been paid for it. It was accordingly held that one having received a gift of money was not chargable as garnishee of the donor, although the debt sued for existed prior to the gift ; it not being dis- closed in the case that the donor was insolvent or largely in- debted.2 Still it cannot be denied, that where the founda- tion of the claim of title is a voluntary gift or assignment on the part of the debtor, the onus of proving good faith in the transaction rests more heavily upon the claimant than whea he has paid value for the property. § 434. When the Consideration of the Transfer is brought in question by the Answer. — There is no doubt that in the ma- jority of instances where claims of this kind are made, the va- lidity of the alleged transfer of title will depend in some meas- ure upon there being a valid consideration for the transfer. This is one of the essential facts, where the good faith of a transaction is questioned, and can only be placed in issue where the transferee is a party to the controversy. Where the pre- vious assignment of the debt or property is to a stranger, and appears only by the answer, the plaintiff cannot, in taking is- sue thereon, put the garnishee upon the proof of the honajides of such transfer, nor will he be permitted to offer evidence impeaching such good faith. ^ In Louisiana, however, the garnishee may be required to prove the consideration of an assignment, whether the garnishee or a third party is alleged to be the assignee.^ But this ruling must be regarded as ex- ceptional, and unsupported by any sound principle, except a3 2 Whittier v. Prescott, 48 Me. 367. 1 Simpson v. Tippin, 5 Stew. & Port. 208. 2 Maher v. Brown, 2 La. 492. 219 TRANSFER PRIOR TO GARNISHMENT. § 434: it applies to the case of an assignment to the garnishee liim- self, who is already before the Court by virtue of the process of garnishment, and prepared to defend his claini.^ To re- quire him to establish the facts upon which the rights of stran- gers to the proceeding depend, is to needlessly impose burdens upon him that are inconsistent with the general spirit of the law, and the disinterested position the garnishee is sujjposed to occupy.^ The answer puts the question of considera- tion in issue, when the alleged assignment is to the party summoned as garnishee. If property has been fraudulently assigned to the garnishee, or to a third party, who assigns it to the garnishee prior to service of process, without considera- tion paid, it is held that the right of the alleged proprietor will be postponed to the rights of creditors. It is not regarded as sufficient that a bargain has been made and the property delivered, where the title of the assignor is tainted with active fraud.^ Where the transaction is fraudulent on any ground, as against creditors, the property may be attached in the hands of the transferee.^ And in order to defend an assignment to himself from the charge of being fraudulent, the garnishee must in general not only show that the bargain was made in good faith, but upon a valid consideration.'' Where a debt was guaranteed without the knowledge of the debtor, for a consideration paid by the creditor, and the debtor, upon fail- ure, at the suggestion of his creditor, and with no knowledge of the guaranty, made an absolute transfer of his property to the guarantor to secure the debt, and the transferee was served with process of garnishment at the suit of other credit- ors, it was held that, as there was no privity beween the debtor and the guarantor as to the contract of guaranty, no right of action could accrue by reason of payment by the guarantor, and consequently there was no consideration for the transfer that would render it valid as to creditors. The garnishee was accordingly held chargable.^ The question of consideratioq 8 Cowles V. Coe, 21 Conn. 220. * Simmons v. Guyon, 57 Ala. Ill; Sexton v. Amos, 39 Mich. 695, 6 Dixon V. Hill, 5 Mich. 404. * Kelley v. Lane, 42 Barb. 594. But see Lawrence v. Bank of Republic, 35 N. Y. 320. 7 Giddings v. Coleman, 12 N. H. 153; Maher v. Brown, 2 La. 492. 8 Knight V. Gorham, 4 Me. 492. § 485 TRANSFER PRIOR TO GARNISHMENT. 220 has been held of sufficient importance to overcome objections to transfers to the party summoned, that would be considered fatal to their validity on other grounds. Thus, one to whom a debtor had assigned his effects for the benefit of his credit- ors, was summoned as garnishee, and it appearing that after the assignment he had purchased at a discount demands against the debtor, exceeding in amount the value of the effects trans- ferred to him, it was held that he was not chargable, whether the assignment was valid in law or not.^ Accordino; to the by-laws of a voluntary association of brokers, when a member became insolvent and failed to settle with his creditors, his seat in the board was to be sold, and the proceeds paid pro rata to the creditors in the board. A member of the board, against whom other members had claims, became insolvent, and sold his seat. No transfer could be made, however, until the purchase money was paid to the treasurer, and it was so paid with the consent of the insolvent member, and the seat was transferred to the purchaser. It was held that this was not a voluntary sale, and the purchaser and board of brokers could not be charged as garnishees. ^*^ § 435. Issues made with the Intervenor. — In Alabama, it is provided by statute that the plaintiff in garnishment may contest with the transferee the right, money or property sought to be garnished.^ Under this statute, when proper proceed- ings are taken, the garnishee must hold the money in hand until the contest is decided. And where the transferee fails to appear after proper notice and propound his claim, judg- ment should be rendered in favor of the plaintiff and against the garnishee for the amount admitted in the answer.^ And when a judgment debtor has not intervened for the purpose of contesting the answer, he will not be heard to move to dismiss the garnishment for want of security for costs.^ Thus, in case 9 Emerson v. Wallace, 20 N. H. 567; Hutchins v. Sprague, 4 N. H. 469; 17 Am. Dee. 439 ; Ripley v. Severance, 6 Pick. 474 ; 17 Am. Dec. 397; Thomas v. Goodwin, 12 Mass. 140. M Evans v. Adams, 81 Pa. St. 443. iCodeof 1876, §3302. 2Saller r. Ins. Co., 62 Ala. 221 ; Simmons v. Guyon, 57 Ala. 111. 3 Edmondson v. DeKalb County, 51 Ala. 103. 221 TRANSFER TRIOR TO GARNISHMENT. § 435 of such intervention by transferee, and a failure on the part of the defendant to formally question the truth of the answer, the controversy is between the })laintiff and the claimant. So, under a Wisconsin statute, the debtor was not a necessary j)ar- ty to the contest, where the garnishment was in aid of an exe- cution. The garnishee, by his verified answer, stated that the debt or jiroperty was claimed by another, and upon this affi- davit the Court ordered the claimant to be made a party de- fendant. After this, the real parties to the issues then first to be tried were the plaintiff and the claimant.'* In Virginia it was also held, that where the answer disclosed an assignment of interest in the subject of controversy, the assignee should be required to appear and maintain or relinquish his claim, as well as to state the nature thereof.^ In Illinois the statute provides for the appearance of the claimant ; and where he appears, though informally, and is recognized as a party, and his rights adjudicated, he is regarded as a party in such sense as to be entitled to have the record reviewed on appeal.^ It is also held in Minnesota, that the clainiiint should be allowed to appear ;^ which, however, is quite different in effect from the law that empowers tlie Court to require him to appear and propound his claim. In Pennsylvania it is held, that feigned issues should be framed between opposing claimants, so far as they are known to the Court, and that it was error to make the garnishee a party to such issues, and subject him to ex- pense and costs, when he made no claim to the fund and was in no default.^ In Maine, when the answer discloses the fact that the sub- ject of controversy is claimed by some one other than the de- fendant, or the garnishee, the jjlaintiff is required to have the claimant cited to appear, or in case he does not come in volun- tarily, the garnishee will be discharged.^ The principle upon which the contest is conducted between the plaintiff and the interveuor, where the latter appears, is ••Hewitt V. Follett, 51 "Wis. 2G5. 6 Chesapeake etc. R. Co. v. Paine, 29 Gratt. 502. 6 Sheldon v. Hinton, 6 111. App. 216. 7 Crone v. Brann, 23 Minn. 239. 8 Fish V. Keeney, 91 Pa. St. 138. 9 Jordan v. Harmon, 73 Me. 259 ; Look v. Brackett, 74 Me. 347. § 435 TRANSFER PRIOR TO GARNISHMENT. 222 essentially different from that by the plaintiff against the gar- nishee, when the claim of the stranger only appears incident- ally. Thus, under the Alabama statute, where the transferee is brought into the case by process, it is held that the claim- ant must rest upon the superiority of his own right. The onus of establishing the validity of a transfer of the demand rests upon the claimant ; and when he claims by transfer from a transferee, he is required to show the validity of both trans- fers, and show that the first transfer was made prior to service of garnishment, and for a valuable consideration ; and if not for a valuable consideration, that the transfer to himself was for value. ^'^ In Michigan, on the other hand, where the law has made no provision for any hearing on the part of third persons claiming interest in the subject of garnishment, it is held that, though the parties so interested cannot be bound by the judgment in their absence, the garnishee will be protected as far as possible from double liability ; and to that end the onus is cast upon the plaintiff of showing, not only that the defendant had a demand against the garnishee, but that such demand has not been assigned.^i In the absence of compulsory process to bring the claimant in as a party, or his voluntary appearance, his interests cannot be affected by the judgment.^" And if the Court proceeds so far as to render judgment against the garnishee, upon the theory that the alleged transfer is in- valid, the consequence must be to expose the garnishee to the danger of double liability. Where there is a doubt whether the assignment was made prior or subsequent to the garnishment, there seems to be a statute in Iowa which has the effect of discharging the gar- nishee from further liability, when, without notice of the as- signment, he delivers the money or property into the custody of the Court, and leaves the parties in interest to litigate their rights in respect to it.^^ When the claimant has been ordered to interplead under the Wisconsin statute, and issue is taken on his answer, the plain- 10 Winslow V. Bracken, 57 Ala. 368 ; Davis v. Fogg, 58 N. H. 159. u Hewitt V. Wagar Lumber Co., 38 Mich. 701. See also Hathaway ». Reed, 127 Mass. 136 ; Sexton v. Amos, 39 Mich. 695. ^Gage V. Stimson, 26 Minn. 64 ; Simpson v. Tippin, 6 Stew. & Port. 208. 13 Howe V. Jones, 57 Iowa, 130. 223 TRANSFER PRIOR TO GARNISHMENT. § 436 tiff cannot, after going to trial thereon, object that the answer was not verified. And if it is found that a part of the fund hehl by the garnishee belongs to the interpleaders, judgment will bo rendered against plaintiff for costs, and in favor of the claimant for so much as belongs to him.^* The effect of the citation upon the claimant is to require him to appear. And when he is properly cited he becomes a party to the proceeding, and is bound by the judgment, whether he appears or not.^^ The same result would follow where the appearance is voluntary on the part of the intervenor. § 436. Conseqnences of Failure, on the part of Gramishee, to give Notice of the Transfer of Interest, and of the Gramish- ment. — When there has been a transfer of interest in the sub- ject of garnishment, of which the garnishee has been in any manner informed, there are two kinds of notice which, in cer- tain emergencies, it is his duty to give ; or, rather, two parties in interest, who have a right to look to him for notice of what will affect their interests. 1. The transferee may depend upon him for notice of the proceeding, by which it is sought to appropriate the thing transferred to the payment of plain- tiff 's demand against the transferer. 2. The plaintiff and the Court are entitled to notice of the transfer. For failure to give notice to the transferer, and in consequence of its not appearing that the title to the property has changed hands prior to service of process, the garnishee will be held doubly liable. Judgment may go against him in the proceeding, and the judgment will be no defense to an action against him by the transferee.^ Where the failure is to bring the transfer to the notice of the Court, the same result follows.^ Thus, re- spondent in a criminal case deposited with his attorney some money belonging to his employer, to secure bail, and the at- torney turned the money over to the sureties on the bail bond ; the latter being afterwards grarnished at the suit of certain creditors of respondent, paid out the money to satisfy their "Kirby v. Corning, 54 Wis. 599. "Born V. Staaden, 24 111. 320 ; Fisk v. Weston, 5 Me. 410. 1 Smith V. Ainscow, 11 Neb. 476. 2 Tabor v. Van Vranken, 39 Mich. 793; Tracy v. McGarty, 12 R. 1. 168; Lam- kin V. Phillips, 9 Porter, 98 ; Field v. McKinney, 60 Miss. 763. § 437 TRANSFER PRIOR TO GARNISHMENT. 224 claims, though he knew when garnished that it was the money of the employer. It was held in this case, that the garnishee should have disclosed this ; and in a suit against him by the employer for money had and received, the payment under gar- nishment was no defense.^ The liability would have been the same if the money had been claimed by one as prior transfer- ee. This is true, even where the garnishee has received no notice of such transfer prior to his answer, provided he is made aware of the fact in time for him to make application to the Court for leave to amend, by stating the assignment.^ But where the writ was against S. S., and a bank was sum- moned as garnishee, after which the process was amended to run against S. F. S. ; and during the Intermediate time the bank paid to S. F. S. the funds by him deposited, with no no- tice that S. F. S. was the party intended, and upon whom the writ was served, It was held that it could not be charged as garnishee.^ The double liability to which the garnishee Is exposed by his own laches does not depend upon the duty to give the no- tice being prescribed by statute. If, as the consequence of a failui'C to notify the transferer, he fails to appear, whether voluntarily or In obedience to the statute, and judgment goes against the garnishee, he has the consequences to bear. And if the judgment Is rendered against him because of his con- cealment of the transfer. It needs no statute to save the rights of the Innocent transferee from being affected by such judg- ment, however onerously it may bear upon the garnishee. § 437. Equitable Assignment prior to Service. — The im- portant question to be determined In passing upon the rights of rival claimants to property In the hands of the garnishee, when either of the parties claims by virtue of a prior trans- fer of title. Is not whether any technical formality has been omitted, but whether the attempted transfer was so far effect- ual that it divested the entire interest of the defendant, and 8 Kimball v. Macomber, 50 Mich. 362. Contra, Randall v. Way, 111 Mass, 606. ^ Lewis V. Dunlap, 57 Miss. 130 ; Tracy v. McGarty, 12 E. I. 168. 6 Terry v. Sisson, 125 Mass. 560. 225 TRANSFER PRIOR TO GARNISHMENT. § 437 vested It in the transferee. If this was accomplished, however informally, the garnishee cannot be held liable, for the attach- ing creditor can only hold the garnishee for such interest as defendant had at the time the process was served.^ According to this principle, where a fund was in the hands of debtor's assignees, upon which he gave orders to several of his cred- itors, aggregating the full amount of such fund, and the as- signees accepted notice of these orders without accepting the orders themselves, subsequent to which they were summoned as garnishees, it was held that the orders and the acceptance of notice thereof operated as equitable assignments of the fund, so that the debtor had parted with all his interest therein prior to service of summons, and the garnishees were not chargable,^ But as we have already seen, the validity of an equitable as- signment does not depend upon the party in possession of the property having notice within a particular time.^ If the transfer is complete as between the parties to the transaction, the notice may come afterwards.^ As for example, where a policy of insur- ance, on goods at sea, was assigned by a debtor to his creditor, and the goods were lost. Subsequently a creditor of the as- signor garnished the underwriter, who had not received notice of the assignment of the policy, and the Court held that the assignment was sufficient to vest an equitable right in the assignee, and hence the garnishee could not be charged.^ So even a power of attorney, authorizing a party to transfer to himself certain shares of bank stock as security for a debt due to him as trustee, was held to be an equitable assignment of such stock ; so far, at least, as was necessary to prevent the 1 United States v. Vaughan, 3 Binn, 394 ; 5 Am. Dec. 375 ; Wakefield v. Mar- tin, 3 Mass. 558 ; Walling v. Miller, 15 Cal. 38 ; Noble v. Thompson Oil Co., 79 Pa. St. S54 ; 21 Am. Rep. 66 ; Smith v. Clark, 9 Iowa, 241 ; Fitzgerald v. Hol- lingsworth, 14 Neb. 188 ; Sandidge v. Graves, 1 Patton, Jr., & Heath, 101 ; Mc- Guire v. Pitts, 42 Iowa, 535 ; Ray v. Faulkner, 73 111. 469 ; Providence Co. Bank v. Benson, 24 Pick. 204 ; Smith v. Clark, 9 Iowa, 241. 2 Claflin V. Kimball, 52 Vt. 6 ; Adams v. Robinson, 1 Pick. 461 : Brazier v. Chappel, 2 Brev. 107 ; Colt v. Ives, 31 Conn. 25 ; Newell v. Blair, 7 Mich. 103. 8 Svpra, § 434. 4 Lewis V. Dunlap, 57 Miss. 130 ; Tracy v. McGarty, 12 R. I. 168 ; Page v. Crosby, 24 Rick. 211 ; McGuire v. Pitts, 42 Iowa, 535. 8 Wakefield v. Martin, 3 Mass. 558. See Balderstone v. Monro, 2 Cranch C. C. 623 ; Holdman v. Hillsborough &c. R. Co., 2 Handy, 101 ; Canal Co. v. In- eurance Co., 2 Phila. 354. 11. Attach.— 15. § 437 TRANSFER PRIOR TO GARNISHMENT. 226 party giving it from exercising any authority or control over the stock, in contravention of the rights of the assignee. *" So where bank stock was sokl by delivery of the certificate, with a power of attorney authorizing the transfer of the stock on the books of the bank, though the stock was not transferred until afterwards, the Court held that the assignment was com- plete when the defendant had parted with his interest irrevo- cably.'^ The garnishee may secure his discharge by establish- ing the fact that, prior to service, he accepted drafts or orders requiring him to pay over any sums in his hands, or to deliver any property or thing held by him, which he originally re- ceived as the property of defendant, unless the truth of such answer or the validity of such assignments is successfully con- troverted by the plaintiff.^ When the assignee is notified of the transfer to himself and accepts it, whether in writing or words, it will in general be held sufficient to operate as an as- signment of the interest of the assignor.^ Thus, where a par- ty who was summoned as garnishee had previously received a sum of money from the defendant, to pay over to another party, and afterwards, seeing the party for whom it was intend- ed, informed him of its receipt, and promised to pay it over; but was requested by the payee to hold the money subject to his order ; this was held sufficient to give the payee an abso- lute right to the money, and it was no longer subject to at- tachment as the property of the payor. ^** Wliere there is an assignment made for the benefit of certain preferred creditors who are parties to the assignment, the sur- plus in the hands of the assignee, after satisfying the demands of the participating creditors, would be subject to garnishment at the suit of other creditors. But the assignee would not be held chargable before he had realized on all the property as- signed, or at least sufficient to leave a surplus in his hands. 6 Matheson v. Rutledge, 12 Rich. 41. 7 United States f. Vaughan, 3 Binn. 394 ; 5 Am. Dec. 375. 8 Legro V. Staples, 16 Me. 252 ; Dobbins v. Hyde, 37 Mo. 114 ; Nesmith v. Drum, 8 Watts & S. 9 ; Lamkin v. Phillips, 9 Porter, 98. 9 Dwight V. Bank of Michigan, 10 Met. (Mass.) 58 ; Burnside v. McKiley, 12 La. An. 505 : Commack v. Floyd, 10 La. An. 351. w Brooks V. Hildreth, 22 Ala. 469 ; Simpson v. Bibber, 59 Me. 196 ; Mansard V. Daley, 114 Mass. 408 ; Ray v. Faulkner, 73 111. 469 ; Dolaon v. Brown, 13 La. An. 551. 227 TRANSFER PRIOR TO GARNISHMENT. § 437 And where real* estate and choses in action were assigned with other property, the Court refused to direct that the creditors should be paid out of the proceeds of sucli real estate and choses in action, so as to leave the proceeds of goods subject to garnishment process.^^ Holding funds as security for cred- itors of a certain class, does not render the party holding them liable as garnishee to other creditors until those of this class are paid.^^ Where the transfer was made to a newly orga- nized corporation, by one who purchased the property at sher- iff's sale, with money supplied by the debtor corporation, and such transfer was made in good faith, with the assent of the directors and stockholders of the old company, which was thus merged in the new, it was held that the party who had acted in making the purchase and transfer could not be held as gar- nishee in a suit against the old company. ^^ An equitable as- signment of a part of the demand or chose in action may be enforced against the attaching creditor, when the assignee has been made a party to the garnishment proceedings, as required by statute.^* Under the general principle, that a creditor has no superior rights, as against the garnishee, to those he would have against the debtor, it is held in Missouri, that where partner- ship property was assigned by one partner for the payment of his individual debts, a judgment creditor of another, obtained for a debt of the firm, could not maintain the proceeding by garnishment against the auctioneer with whom the property was placed for sale.'^ In this and preceding sections, assignments for value, for the benefit of the assignee, and assignments for the benefit of cred- itors of the assigrnor, have been considered too^ether. The lat- ter will be regarded as valid and binding on the assignor, and hence on all persons claiming under him, until' impeached by the contesting creditor.^^ " Gore V. Clisby, 8 Pick. 555. 12 Haven v. Wentworth, 2 N. H. 93. "Balliet v. Brown, 103 Pa. St. 546. "Exchange Bank v. McLoon, 73 Me. 498 ; 40 Am. Eep, 388. iSFenton v. Block, 10 Mo. App, 536. l«Hecht V. Green, 61 Cal. 269. § 438 TEANSFER PRIOR TO GARNISHMENT. 228 § 438. Attempted Transfers Ineffectual. — Although the as- signment may be effectual to transfer all the rights of the as- signor, when the party in possession is not informed thereof until after service of process of garnishment, it is generally, if not universally, essential that the assignee should be advised of the transaction in order to render it complete.^ The reason of this is, that there must be assent on the part of the assignee, which may be presumed where he is shown to have had no- tice of the assignment; but when he does not become priv\' to the transfer until after service, such assent cannot be su[)posed to have been given while he was yet ignorant of the fact.^ "Where the assignee expi-essly repudiates the assignment, and claims no interest in the 2)roperty or fund, the pretended trans- fer will be held ineffectual for any purpose.^ And where a draft is drawn upon the depositary, which he refuses to accept, otherwise than upon conditions that do not appear to have been acceded to by the drawer, it is held that the title does not pass.* Where the assent of the depositary is necessary, that must ap- pear to have been given in a manner to bind him to the assign- ee, prior to service of process. A bank is not liable to the drawer of a draft or check until it is accepted, and there is a promise to the holder. Hence, a bank summoned as gar- nishee of one of its depositors was held liable, though the money was deposited for the express purpose of meeting future drafts, of which the bank had notice, for the reason that the bank sustained no contract I'elations with the holders,^ The mere direction to the depositary to pay or deliver to the assignee has no effect, until the assignee is informed of the provision made for his benefit, and then only when he does not dissent from the arrangement made for his benefit.^ A draft or order made 1 Kelly V. Roberts, 40 N. Y. 432 ; Xeuer v. O'Fallon, 18 Mo. 277; 59 Am. Dec. 313 ; Huntley v. Stone, 4 Wis. 91 ; Eicbelbergerr. Murdock, 10 Md. 373 ; Clark V. Cilley, 36 Ala. 652 ; Center w. McQuesten, 18 Kansas, 476; Brown v. Foster, 4 Cusb. 214. 2 Baker v. Moody, 1 Ala. 315 ; Sproule v. McNulty, 7 Mo. 62 ; People v. Jobn- Bon, 14111. 342; Robertson v. Scales, 13 La. An. 545; State v. Brownlee, 2 Speers, 579. 3 Myatt V. Lockart, 9 Ala. 91. * Dolson V. Brown, 13 La. An. 551. s Mayer v. Cbattaboocbie Nat'l Bank. 51 Ga. 325. 6 Briggs V. Block, 18 Mo. 281; Connelly v. Harrison, 16 La An, 41; Hart v. Forbes, 60 iliss. 745. 229 TRANSFER PRIOR TO GARNISHMENT. § 439 payble to the order of the drawer cannot affect this purpose, un- less such draft has been indorsed to a third person prior to ser- vice." In any case, the construction of which the transaction is susceptible must be such that the title to the thing transferred must have passed completely out of the assignor, beyond his jiow- er of recall. What is less than this will prove insufficient to affect the liability of the party In possession, when summoned as garnishee.^ A promise by the garnishee to pay the agent of the principal defendant does not affect his liability.^ As- signments made for the benefit of creditors to protect the as- signee from liability as garnishee, must in general be In ac- cordance with law.^** Hence, where an assignment was made under and pursuant to a statute that had been repealed. It was held that the assignee would be chargable as garnishee. ^^ § 439. Fraudulent Assignments. — The effect of an assign- ment of defendant's Interest may be defeated Toy fraud. ^ And it is held that the fraud practiced In the sale or assignment of defendant's property will follow It into the hands of a subse- quent bargainee, who has taken possession under a contract of sale, but has not yet paid the agreed price. ^ Garnishment is held to be a remedy peculiarly appropriate for reaching the effects of a debtor fraudulently transferred, In the hands of the fraudulent transferee.^ This is one of the matters that come up for consideration in every case where the Issues to be tried are between the plaintiff and the Intervenor. It may arise as a question of good or bad faith on the part of the debtor, and the purchaser's participation in any alleged intentional wrong, and the validity of the consideration. If so, evidence of the claimant's knowledge of plaintiff's claim against defendant, and of his seeking to hold the fund in the garnishee's hands, is regarded as competent evidence.^ And so any fact tending ■? Cushmau v. Haynes, 20 Pick. 132. 8 Mansard v. Daily, 114 Mass. 408; Redd v. Burrus, 58 Ga. 574. 9 Cliesley v. Coombs, 58 N. H. 142. 1" r.lake V. Williams, G Pick. 286. 11 Lewis V. Latner, 72 Me. 487. ^ Cowles V. Coe, 21 Conn. 220 ; Kelly v. Lane, 42 Barb. 594 ; Bibb v. Smith, 1 Dana, 580. 2 Dixon V. Hill, 5 Mich. 404 ; Green v. Doughty, 6 IST. H. 572. 3 Lamb v. Stone, 11 Pick. 527 ; Kessler v. St. John, 22 Iowa, 565. < Sullivan v. Langley, 124 Mass. 264 ; Langley v. Berry, 14 N. H 82- § 440 TRANSFER PRIOR TO GARNISHMENT. 230 to show whether the design on the part of the assignor was to cheat, wrong, defraud, or delay his creditors, and whether, and to what extent, the assignee endeavored to promote such design, would be deemed pertinent to the issue.^ But the question is not in every case one of actual fraud, or fraudulent intent. The transfer may be held fraudulent for the reason that there has been no change of possession, or for any other cause that fixes upon the transaction the character of legal fraud.^ But where the debtor sold property which was then put up at auc- tion and sold for the purchasers, the fact that possession had not been changed prior to the auction sale was held not to avail a creditor at whose suit the auctioneer was garnished when the sale was about completed^ And where the alleged assignee is not before the Court, either by virtue of process served upon him for that purpose, or by voluntary appearance, the question whether such assignment was fraudulent cannot be adjudged so as to bind him.^ And when the question arises between conflicting assignments, it cannot be properly ad- judicated in this proceeding; for as soon as it appears that either assignment was valid, the garnishee will be discharged, and there will be nothing before the Court to try. The valid- ity of the assignment is only in question to determine its effect upon the rights of the creditor and the liability of the garnishee respectively.^ § 440. Rights of the Parties affected by prior Mortgage of Chattels in Garnishee's Possession. — In most of the earlier cases and some of the later, the Courts hold that the existence of a valid mortgage upon chattels is sufficient to prevent its being subjected to the payment of a demand against the mortgagor, whether by execution, seizure under attachment, or garnishment of the party in possession.^ This is in strict accordance with the doctrine that a mere equity of redemption, 5 Marsh v. Davis, 24 Vt. 363 ; Patton v. Gates, 67 111. 164. G Price V. Bradford, 4 La. 35. ■^ National Bank etc. v. Slaley, 9 Mo. App. 146. ^ Supra, § 433. s Shattuck v. Smith, 16 Vt. 132 ; Peet v. McDaniel, 27 La. An. 455. 1 Badlam v. Tucker, 1 Pick. 389 ; 11 Am. Dec. 202 ; Central Bank v. Prentice, 18 Pick. 396 ; Andrews v. Ludlow, 5 Pick. 28 ; Hudson v. Hunt, 5 N. H. 538 j Holbrook v. Baker, 5 Me. 309 ; 17 Am. Dec. 236. 231 TRANSFER PRIOR TO GARNISHMENT. § 440 which is all the interest the mortgagor has in the mortgaged chattels, is not attachable.^ The morfgagee maj' not be, and gen- erally is not, in possession of the property under his security prior to forfeiture, and it is this state of things to which ref- erence is here made. When the party holds the property it- Self as security for his debt, his rights will be considered as those of a pledgee. When, therefore, there has been no breach of the conditions upon which the mortgagor was to continue in possession, the mortgagee is under no obligation to take possession, or to dispute the possession of a third party who has been entrusted with the mortgaged goods.^ The rights of attaching creditors are not regarded as so sacred that other rights must be held in subordination thereto. The mortgagee cannot, in order to facilitate the subjection of mortgagor's in- terest to the payment of plaintiff's demand, be compelled to take measures for the foreclosure of his security not called for by the terms of his contract.* Under ordinary circum- stances, the mortgagee will figure in the controversy as inter- venor. His mortgage does not render him subject to garnish- ment, unless it is where he has taken possession under It.^ The mortgagee's lien is, for the most part, as against subsequent purchasers and creditors secured by recording the mortgage, and in some of the States the instrument is ineffectual as an Incumbrance, unless filed for record. This, however, Is not the case In all the States. It Is held In a very recent case In Minnesota, that recording Is not necessary to give the mort- gagee rights superior to those of the attaching creditor.*^ The circumstances of the case were these : A creditor endeavored to reach money due on a policy of insurance, by garnishment of the underwriter. The policy was made payable to a third party, as " his Interest " should appear ; and on his coming In as claimant, his interest appeared to be that of mortgagee of the 2 Haum V. Low, 2 N. H. 13 ; Sargent v, Carr, 12 Me. 396 ; Callender v. Fur- bish, 40 Me. 22G ; Patterson v. Harland, 12 Ark. 158 ; Lyle v. Barker, 5 Binn. 457 i Kergiu v. Dawson, 6 111. 86. 3 Curtis V. Raymond, 29 Iowa, 52. See also First Nat'l Baok v. Perry, 45 Iowa, 266. * Howard v. Carl, 6 Me. 3.53. 6 Stedman v. Vickery, 42 Me. 132. • Coykendall v. Ladd, 21 N. W. Reporter, 733. § 440 TRANSFER PRIOR TO GARNISHMENT. 232 chattels insured, but tlie mortgage was not recorded. It was nevertheless held that, thougli never filed for record, such mortn'aire, bcins; valid on its face and siven in good faith, was sufficient to uphold the right of the claimant to tlie insurance money, to the amount actually due on the policy of insurance.'^ But the creditor may attach the avails of the policy by gar- nishment of the insurer, and contest the right of the claimant upon the ground that the mortgage is fraudulent as against ci'cditors.^ But where there is a surplus after satisfaction of the mortixasre, the attachment would hold it in the hands of the garnishee, as may be clearly inferred from the language of the Court in Coykendall v. Ladd.® It is also held in a re- cent case in Nebraska, that in that State the equity of re- demption in mortgaged chattels was such an interest in prop- erty as was subject to attachment on mesne process, and could be reached by garnishment after judgment, in aid of an execution. ^'^ When after foreclosure there is a surplus in the hands of the mortgagee, it is, of course, no longer affected by the Hen of the prior mortgage. ^^ The mortgagee will be held liable as gai-nishee, precisely as any other depositary or trustee in possession of property or funds subject to the direct order of the defendant in attachment. ^^ In no case can a mortsasre given subsequent to the service of garnishment, obstruct the creditor's pursuit of the property so incumbered ; and this ap- plies to subsequent advances made on mortgages executed to secure future advances, prior to garnisiunent. The question of priority between the mortgagee and the attaching creditor will be determined by the dates of the advances which the niort2:ao;e is relied on to secure, and the service of summons DO ' in garnishment.^^ Whatever may be th% modifications of the technical objection to garnishment, the interest of the debtor is a mere equity ; there is no substantial change of the rule that the rights of the prior mortgagee, when secured accord- " Coykendall v. Ladd (Minn.), 21 N. W. Rep., 733. 8 North Star Boot & Shoe Co. v. Ladd (Minn.), 20 N. W. Rep. 334. 21 N. W. Rep. 733. 1" Buruham v. Doolittle, 14 Neb. 214 ; Legal Advertiser, July 17, 1883. 11 Badlam v. Tucker, 1 Pick. 389 ; 11 Am. Dec. 202. 12 Barker v. Osborn, 71 Me. GO. 13 Bernard v. Moore, 8 Allen, 273. 233 TRANSFER PRIOR TO GARNISHMENT § 441 ing to law, will be preserved, whatever be the form of pro- cedure in which the mortgagor's interest is authorized to be taken by his creditors. A mortgagor of real estate committed waste by cutting wood from the mortgaged premises without consent of the mortgagee, and afterwards sold the wood with the mortgagee's consent, upon condition that the proceeds should be paid to the mortgagee and applied to the payment of the mortgage debt. The wood so cut was held to be the property of the mortgagee, and hence the purchaser could not be held as garnishee of the mortgagor from whom the wood was purchased, for the reason that the mortgagor, in selling, was acting as the agent of the mortgage.^* § 441. Pledgee as Garnishee. — When the property of the defendant in attachment has been pledged prior to garnish- ment, the pledgor has an interest therein which may be reached by garnishment served upon the pledgee.^ Where a surety on an injunction bond took certain chattels of the principal obli- gor as indemnity for the liability assumed, it was held that he would be liable as garnishee in an action against his principal, for all the property in his hands beyond what was necessary for his indemnity.^ In Badlam v. Tucker^ however, it is de- cided that the pledgor's interest cannot be reached by process of this kind, for the reason that, there being no agreement that the pawnee should sell the chattel held in pledge, he could not be compelled to do so in order to realize the amount due from the pledgor.^ This doctrine is followed by other cases, as fixing and defining the respective rights and liabilities of attaching creditors and pledgees and mortgagees, indiscrimin- ately.^ But while the earlier cases have proceeded upon the sound principle of refusing to extend by implication the scope of an extraordinary statutory procedure beyond the limits pre- scribed by ihe statute itself, the legishitures have not failed to 1^ Cotta V. O'Neal, 58 N. H. 572. 1 Burnham v. Doolittle, 14 Neb. 214. 2 Davis V. Wilson, 52 Iowa, 157; Contra, Yongue v. Linton, 6 Rich. 275. 8 1 rick. 389; 11 Am. Dec. 202. * Hall V. Page, 4 Ga. 428; Hudson d. Hunt, 5 N. H. 538; Howard v. Card, 6 Me. 353. 6 Supra, § 438 (note). § 442 TEANSFEE PEIOE TO GAENISHMENT. 234 take notice of the inconvenience likely to arise from incum- brances of this kind, which have the effect of placing the property of a debtor beyond the reach of general creditors, without subjecting it to the payment of the debt secured. Still, where a pledge or pawn is made to secure a honafide debt, the general creditors of the pledgor will not be permitted to use the process of garnishment to impair the security, or otherwise imperil the rights of the pledgee.^ A recent case decided by the Supreme Court of Oregon,^ where property was pledged by the makers of certain notes to the accommodation indorser for his indemnity, it was held that the pledgor had an interest in the property that could be reached by his creditors by process of garnishment served on the pledgee.^ § 442. Other Liens to wMch the Property in Possession of the Gramishee may be subject. — The liens that may exist against the property of defendant that affect the liability of the garnishee, may be in favor of the garnishee or any one else. When they are of the former class, a distinction is to be ob- served between such claims as give him a lien on the specific property, and such as may more properly be set up by way of set-off or counter-claim to a debt due from him to the princi- pal defendant. Whether the claim of the garnishee against defendant may be regarded as a lien upon property which belongs to the lat- ter, so as to affect the liability of the former, may be deter- mined by ascertaining whether it may be held without the de- fendant's consent as security for the demand. If the owner may demand a return of the property without satisfying the claim of the party in possession, such party may be summoned as garnishee, at the suit of the owner's creditors, and cannot maintain his claim against the owner of the property as a lien, and have it satisfied in preference to that of the attacliing eSmithv. Clark, 9 la. 241; Cammack v. Floyd, 10 La. An. 351; Kirkman t>. Hamilton, 9 Martin, 297; Nolan v. Crook, 5 Humph. 312; Scofield v. Sanders, 25 Vt. 181; Whitney v. Dean, 5 N. H. 249. 7 Williams v. Gallick, 3 Pac. Eep. 469. 8 Citing Burlingame v. Bell, 16 Mass. 318; Hastings?;. Baldwin, 17 Mass. 551; Sweet V. Brown, 5 Pick. 178; Foster v. Potter, 37 Mo. 525; Hearn v. Coutcher, 4 Yerg. 461. 235 TRANSFER PRIOR TO GARNISHMENT. § 442 creditor.^ When the defendant owes the garnishee an ordi- nary debt arising on contract, this may serve the latter as a defense to the process of garnishment, so far as it relates to similar claims against him in favor of the principal defendant ; but not when he is summoned in reference to specific proper- ty.^ A different rule prevails in South Carolina, where the garnishee, when summoned in respect to property of his debtor, is designated as " a creditor in possession," and may retain such property as security for the debt due him, even though there is no contract between the parties that he may do so.^ This, however, is under a special statute, and is restricted in its ap- plication to cases where there is a debt existing in favor of the party claiming the lien, and not a mere contingent liability, as that of surety or the like.* But independent of the statute, when the garnishee has a definite lien, whether legal or equitable, arising under a stat- ute or at common law, his right cannot be affected by the ser- vice of summons, so as to deprive him of the benefits of his security.^ If the garnishee's relations to the owner of the property are such that the latter cannot take the property out of the former's possession without paying the debt, this consti- tutes a lien, and no other creditor of the owner can have his debt satisfied from the property, except on the conciition that the claim of the garnishee is satisfied in full.^ And this lien, unlike the statutory one in South Carolina, does not depend upon actual indebtedness from the owner to the party sum- moned as garnishee. Where the latter has on the faith of property consigned to his care, on commission or otherwise, as- sumed liabilities for the consignor, he may, when summoned as garnishee at the suit of such consignor's creditors, claim a lien upon the property in his possession for his indemnity, though the liabilities assumed are for debts which he has not yet paid.'^ 1 Allen V. Megguire, 15 Mass. 490 ; Allen v. Hall, 5 Met. (Mass.) 263 ; BaUey V. Ross, 20 N. H. 302. 2 Allen V. Megguire, 15 Mass. 490. « Mitchell V. Byrne, 6 Rich. 171. * Yongue v. Linton, 6 Rich. 275. fiKirkman v. Hamilton, 9 Martin, 297 ; Smith v. Clarke, 9 Iowa, 241. « Nolan V. Crook, 5 Humph. 312; Curtis v. Norris, 8 Pick. 280. ' Bank y. Levy, 1 McMuUen, 431 ; Grant v. Shaw, 16 Mass. 341 i 8 Am. Dec. 142. CHAPTER XXXrV. CONTRACTS BETWEEN DEPENDANT AND GARNISHEE, § 443. The contract to deliver property to the owner. § 444. Contracts that qualify garnishee's liability. § 445. Contracts by which garnishee's liability is unaffected. § 443. The Contract to Deliver Property to the' Owner. — When property is entrusted by the owner to the care and cus- tody of another, under an express contract on the part of the custodian to deliver it to the owner on demand, the relations of the parties to the contract stand in the simplest form in which they are capable of being expressed, so as to make the party in possession liable as garnishee in an action against the owner. Other contracts may have the effect of qualifying the garnishee's liability ; but where the contract is in substance or effect to deliver the property to the owner, it is the foundation of such liability. Hence, a contract to restore the property of the owner to his agent is no defense to the proceeding by gar- nishment, for the reason that it is the same in effect as a con- tract to restore it to the possession of the principal.' It is the owner's right to the property that the process affects, and it is of no consequence how that right is to be ascertained. It must be a right which it is the duty of the garnishee to recog- nize, and which the proprietor might enforce against him. § 444. Contracts that Qualify Garnishee's Liability. — But there are contracts in relation to the property, which can hardly be classed as liens, which may so affect the liability of the party in possession, when summoned as garnishee, that he cannot be held charojable, without abridginsr his rio-hts un- der the contract. It is not intended that the statute shall have this operation. If at the time the property is received, or at any time prior to service of summons on the garnishee, he en- 1 See Adams v. Scott, 104 Mass. 164; Collins v. Brigham, 11 N. H. 420. 237 CONTRACTS, DEFENDANT AND GARNISHEE. § 444 ters into n contract in relation to such property, with the own- er, by which the latter's right to reclaim possession or control is taken away or subjected to any new conditions, the attaching creditor cannot disturb the relations thus established to the in- jury of the garnishee. The property can only be taken in at- tachment subject to the contracts by which its owner's rights are affected, and the process of garnishment can effect nothing more than to subrogate the creditor to the rights of his debtor.^ An example of this is, where the garnishee purchased goods under a contract to pay for them by satisfying a mortgage debt due by the seller, and having the mortgage released. When the purchaser was summoned as garnishee, it was held that he could not be charged as such, as the seller could not require him to pay the purchase price of the goods to any one else than the mortgagee, in order to take up the mortgage ; consequently he could not be forced to vary the terms of hia contract by one who stood in the seller's shoes.^ A similar case was where one to whom goods were delivered, with in- structions to sell and apply the proceeds to the payment of debts due certain creditors of the consignor, placed them in the hands of the creditors designated, with this understanding, in whose hands they were attached by garnishment. It was held that, as the party who received the goods and deposited them with the creditors had made a promise to pay the pro- ceeds to such creditors, it was not within the power of any other creditor, by process of garnishment, to change its direc- tion.^ So, where the consignee of goods, upon whom a bill of exchange had been drawn by the consignor, verbally promised to pay the same, it was held that he could not be chai'ged as garnishee in an action against the shipper, as that would de- prive him of his lien upon the goods, in case he observed the terms of his contract with the holder of the bill.* When prior to the receipt of any specific article of personal property, or any sum of money, the party in anticipation thereof has en- 1 Baltimore etc. R. Co. v. Wheeler, 18 Md. 372. 2 Owen V. Estees, 5 Mass. 330. See Cutters v. Baker, 2 La An. 572. 8 Armor v. Cockburn, 4 Martin, N. S. 667; Burnside v. McKinley, 12 La. An. 505. < Grant v. Shaw, 16 Mass. 341; Curtis v. Norris, 8 Pick. 280 ; Ante, § 440 ; Cha. pin V. Jackson, 45 Ind. 153, § 444 CONTRACTS, DEFENDANT AND GAENISHEE. 238 tered Into a contract with a third person to deliver or pay over such property or money, he is not released from the obligation to perform his agreement, by the service of summons in gar- nishment after the property or money comes to his possession.^ And even where his agreement is with the defendant in attach- ment, from whom the money is received for a specific purpose, as to enter public land for defendant, and in pursuance there- of he has taken steps towards making the entry, as by filing a land warrant in the land office, he cannot be prevented from carrying out his contract by process of garnishment served upon him while he has the money still in his possession.^ This principle applies to all contracts by which the garnishee has, either prior or subsequent to garnishment, received money or property in trust from defendant, to be paid out to others to •whom the garnishee is bound by the terms of his contract.^ In this connection the garnishee's exemption may be rested upon the ground that he holds the property of defendants in the capacity of trustee of an express trust, and to require him to surrender to plaintiff the thing entrusted to him, would be to compel him to violate the trust. ^ So, where the contract made by the garnishee with the defendant, or with a third person for defendant's benefit, imposes an obligation upon the gar- nishee, and he holds the property in question for his indemnity, he cannot be charged without destroying the lien acquired by him upon the property so held.^ The contract to deliver prop- erty to defendant does not make the garnishee the defendant's debtor, at least not until there is a breach of contract. If gar- nishment would lie at all in such case, prior to delivery, it would be upon the ground that the garnishee had defendant's property in possession. And this could hardly be, unless the specific articles were set apart from the garnishee's other prop- erty in a manner to make" the segregation complete. If the de- livery should be subject to certain conditions of time and place, the obligor cannot be required by the process of garnishment 6Mahew v. Scott, 10 Pick. 54. 6Lundie v Bradford, 26 Ala. 512, ' Collins V. Brigham, 11 N. H. 420. ^Ante, § 428. ^Anie, § 442. See also Dryden v. Adams, 29 Iowa, 195; Ellis v. Goodnow, 40 Vt. 237; Faulkner v. Waters, 11 Pick. 473. 239 CONTRACTS, DEFENDANT AND GARNISHEE. § 445 to deliver them elsewhere, or at a different time, particularly when the property is not to belong to the defendant until so delivered.^'' It was accordingly held in Illinois, that a railroad having possession of property which it was transporting, could not be held as garnishee in respect thereto, as it was bound by its contract to deliver the property only at the place of its destination, and the jiroperty was not, when the garnishee was served, in the county where the writ issued. ^^ But in Massa- chusetts it was held, that an express company having money of the defendant in its possession in the State, could be charged as garnishee, though the money was to be delivered in Con- necticut. ^^ § 445. Contracts by which Garnishee's Liability is Unaf- fected. — The most important essential to a contract in relation to property in the hands of garnishee is, that it shall be a le- gal contract — one which it is not against the policy of the law to enforce. Consequently, where money is in the hands of a stakeholder between parties to a wager, under a contract to pay it to the winning party, he may in general be held as gar- nishee of either, notwithstanding his contract to hold the mon- ey to abide the event,^ though if the money has been paid to the winner, the stakeholder cannot be held as garnishee in an action against the loser.^ In one case, at least, it has been held that the money could not be taken from the possession of the stakeholder without the consent of the debtor, unless the lat- ter was insolvent.^ The contract, to affect the garnishee's liability, must be one to which he is a party, unless it amounts to an assignment or incumbrance of the property.^ It is not sufficient that a con- tract has been entered into between plaintiff and defendant, as to the manner in which the funds are to be disposed of after the recovery of judgment, as the garnishee will not be dis- 10 Clark v. Brewer, 6 Gray, 320. "Illinois Cent. R. Co. v. Cobb, 48111. 402. 12 Adams v. Scott, 104 Mass. 164. iBall V. Gilbert, 12 Mete. 397; Reynolds V. McKinney. 4 Kas. 94. See Wi- mer v. Pritchartt, IG Mo. 252. 2 Seise v. McCoy, G Watts & S. 485. 8 Clark V. Gibson, 12 N. H. 386. *Ante, Ch. XXXm. § 445 CONTRACTS, DEFENDANT AND GARNISHEE. 240 charged by paying the money according to such agreement prior to judgment.^ Where goods are received by a warehouseman who has giv- en a receipt therefor, if there is an assignment, by transfer of the receipt prior to service of summons on the garnishee, he will become liable for the goods to the assignee.^ But the warehouse receipt is held not to be negotiable, and hence the fact that it is outstanding, and subject to transfer, will not qualify the garnishee's liability, when summoned at the suit of the creditor of the owner from whom the goods were received. And if the garnishee delivers the goods to one to whom the receipt has been transferred subsequent to service, he will be held liable to the plaintiff in attachment for their value, or the amount of the judgment recovered against the principal de- fendant.'^ 6 Webster v. Randall, 19 Pick, 13, ^Ante, § 437, ■? Smith V. Picket, 7 Ga. 104 ; 50 Am. Dec. 38S. CHAPTER XXXV. garnishee's liability as a debtor. § 446. General remarks. § 447. Nature of defendant's demand ag :inst garnishee. § 448. A legal debt. § 449. The debt should not be subject to contingencies. § 450. Contingencies by which garnishee's liability is unaffected. § 451. Conditional obligation as a foundation for garnishment. § 452. A debt iiayable in money. § 453. Consideration of the debt — Contracts of Indemnity. § 454. Capacity in which the debt is contracted — IMunicipal corporations and public officers. § 455. Same— Executors and administrators. § 456. Debts contracted in a private representative capacity. § 457. The jjlaintiff as garnishee. § 446. General Remarks. — For several chapters hitherto^ we have confined our inquiries almost exclusively to that branch of the subject which considered the liability of the gar- nishee on account of his possession of specific chattels which were the property of the principal defendant. We come now to the question of his liability arising from indebtedness to de- fendant, and shall find many of the principles that govern this peculiar process applicable alike to both the general classes into which the subject is divided. In both, plaintiff's cause of action against defendant must be one upon which attach- ment will lie. The same rules as to parties will govern. Where one cannot be held as garnishee in respect to property held by him in a particular capacity, he cannot be held because of an obligation to pay money in the same capacity. Public corporations stand upon the same ground of exemption from garnishment in the one case as in the other. The general Government, and the individual States of which it is composed, are not garnishable as debtors, for the same reasons that they cannot be garnished in respect to specific property of the priu- ^ Ante, Ch.'K.X:K,.et seq. II. Attach.— 16. § 446 garnishee's liability as a debtop.. 242 cipal defendant, which they may have in possession or under their control. The liability of the garnishee is affected in the same manner, and to the same extent, by the assignment of defendant's demand against him, as by the transfer of defen- dant's interest in the property in his possession. In many other respects, some of wiiich have been incidentally noticed, when we had under consideration the subject of specific prop- erty, the two classes of cases which arise are governed by the same general rules. And yet there are some particular rules that do not apply to both. Thus, the property in garnishee's possession may be subject to liens, while the debt is held subject to set-off or counter-claim. As we have seen, the party in possession of defendant's property, upon which he has no lien, may be charged as garnishee in respect thereto, even though the de- fendant Is indebted to him to the full value of such property.^ So the rule as to the necessity of notice to the party in posses- sion of property, of its transfer, is probably not so general as that which requires notice to effect an assignment of a debt. In case of a debt, it will be oftener held that notice of the as- signment must come prior to garnishment, than in case of spe- cific chattels. The element of negotiability also enters Into debts, so that It may be beyond the power of the garnishee to say to whom he Is Indebted when summoned, and the evi- dence of his liability may change hands repeatedly after he has been required to answer the process, and each new cred- itor will be unaffected by the proceeding against the garnishee. Specific property In garnishee's possession Is never subject to this uncertainty. If owned by the principal defendant when service is had on the garnishee, no subsequent transfers, howsoever in- nocently they may be made or accepted, will disturb the rights of the plaintiff to hold the garnishee. In case judgment Is ob- tained atjalnst the defendant. But there is nothino; so essen- tially different In these two convenient subdivisions of the law of attachment, that both Indebtedness and specific property may not be reached by the same process. It may even be, to some extent, uncertain whether the garnishee when sum- moned Is liable as a debtor of the defendant, or as having de- 2 Ante, § 375. 243 GARNISHEE'S LIABILITY AS A DEBTOR § 447 fendant's property in possession, and yet he may be held if it be established that he is one or the other.^ § 447. Nature of Defendant's Demand against Garnishee. — The parties indicated by the general language of the statute as liable to garnishment, are those having in their possession or under their control personal property, credits or effects, or those who are indebted to the principal defendant. The nature of defendant's demand against the garnishee must be a dehU and in general it is understood to mean indebtedness according to the technical rather than the popular understanding of the tei'm. It must be a demand of the class for which attachment would lie in a direct proceeding.^ Where a railroad corpora- tion had taken defendant's property for which no compensation was paid, there was unquestionably a right of action, and in common parlance, the corporation might be said to be indebt- ed to the party whose property was thus taken, in an amount equal to the value thereof. Nevertheless, it was decided that the company could not be charged as garnishee, in an action against the owner of such a claim. And after the company had been so summoned, the principal defendant recovered judg- ment against it for the value of the property taken, to the use of a prior transferee of the claim ; and it was held that the transferee was entitled to the fund which had been paid into Court, in preference to the plaintiff in attachment, for the rea- son that the demand was unliquidated when the garnishee was summoned.^ When the claim of the defendant is an unliqui- dated demand, in the sense that it can only be reduced to a definite amount by judgment, it is generally held that it is not such a demand as comes within the general meaning of the term debt.^ Thus, in the case of Hugg v. Booth,* where the party served had entered into a contract with the principal de- fendant to sell goods, for which he would accept in payment 8 Smith V. Cahoon, 37 Me. 281; Ante, § 326. iGetcliell V. Chase, 37 N. H. 106 ; Baker v. Eslay, 19 Vt. 131 ; Deaver v. Keith, 5 Ired. 374 ; Eddy v. Heath, 31 Mo. 141 ; Fish u. Field, 19 Vt. 141 ; Rich- ardson V. Wliitney, 18 Pick. 530. 2 Selheimer v. Elder, 08 Pa. St. 154. See Fellows v. Duncan, 13 Met. 332. 8 Hugg V. Booth, 2 Ired. 282 ; Paindlet v. Jordan, 3 Me. 47; Deaver v. Keith, 5 Ired. 374 ; McKean v. Turner, 45 IST. H. 203 ; Foster u. Dudley, 30 N. H. 4G3. <2 Ired. 282. § 447 garnishee's liability as a debtor. 244 the notes of a third party, and on such notes being presented, refused to comply with the terms of his agreement, the Court hekl that in a suit by attachment against the party coraphxin- ing of tlie breach of contract, the other party thereto could not be held as garnishee.^ But although a claim for unliqui- dated damages cannot be reached by garnishment, it is held that if the damages claimed are liquidated, and a sjjecific sum agreed upon before the garnishee's deposition is taken, he may be charged as having that amount of money in his hands at the time of taking his deposition.^ Where the claim for damages against the garnishee is for a mere tort, it is not generally regarded as a debt for which the tort feasor may be required to answer in garnishment at the suit of the injured party's creditor.'^ Where the garnishee, as creditor of the principal defendant, has recovered usurious in- terest, where an action would lie to recover it back, the usurer cannot be held as garnishee, in an action against the party by whom it was paid.^ The payment of such usury does not es- tablish a credit in favor of the party paying it, within the gen- eral meaning of the statute that authorizes the summons as garnishees of parties holding credits of the attachment defend- ant.^ Nor can judgment against garnishee be based upon a liabil- ity to defendant for wrongfully suing out attachment, until such claim for damages is reduced to a judgment.^*' Nor upon liability of the sui'eties on an official bond for the ofl5cer's breach of duty;^'^ nor upon the garnishee's breach of duty as an offi- cer. ^^ The most general statement of the conditions upon which a party may be summoned as garnishee is, that it must be one 5 See also Eand v. White Mt. R. R. , 40 X. H. 79 ; Leaf e v. "Walker, 18 La. 1. 6 Gove ).'. Varrell, 58 N. H. 78. " Lomerson v. Huffman, 25 X. J. L. 625 ; Rundlet v. Jordan, 3 Me. 47; Foster V. Dudley, 30 N. H. 463 ; Despatch Line v. Bellamy, ManfgCo., 12 N. H. 205: 37 Am. Dec. 203; Paul v. Paul, 10 K H. 117; Pert i'. McDaniel, 27 La. An. 455 ; Detroit P. & T. Co. v. Reilly, 46 Mich. 459 ; Hill v. Bowman, 35 Mich. 191; Graham v. Moore, 7 B. Men. 53 ; Thayer v. Southwick, 8 Gray, 229. 8 Boardman v. Roe, 13 Mass. 104 ; Barker v. Esty, 19 Vt. 131 ; Ransom v. Hays, 39 Mo. 445 ; Graham v. Moore, 7 B. Mon. 53. 9 Graham r. Moore, 7 B. Mon. 53 ; Fish v. Field, 19 Vt. 141. 10 Pert V. McDaniel, 27 La. An. 455. ^Eddy V. Heath's Garnishees, 31 Mo. 141 ; Thayer t;. Southwick, 8 Gray, 229. 2-Hemmenway v. Pratt, 23 Vt. 332. 245 garnishee's liability as a debtor. § 4i7 against whom the principal defendant has a cause of action. ^^ It is the ability of the plaintiff, who, as against garnishee, represents the principal defendant, to establish the hitter's claim against the garnishee, that gives the plaintiff his right to a judgment against the garnishee, whether such claim be for specific property or ci'edits in defendant's favor. ^* But this statement, as is shown by the foregoing examples, is too general to properly define the operation of the statute, where the garnishee is interrogated as to the matter of indebted- ness. A party may have a cause of action against a municipal corporation for an award in his favor ; but it is held that the municipal corporation cannot be held as a debtor of the party holding the claim, leaving out of consideration the question of public policy. ^'^ So where one gave a title-bond of property which he did not own, for which he received the consideration, he could not be held as garnishee of the obligee in the bond, for the reason that the time for fulfillment of the terms of the bond had not expired, and if they had, the obligee might pre- fer to sue the obligor for damages, and not receive back the consideration.^^ To establish the relation of debtor and cred- itor, the consent of the creditor is necessary.^'' The fact that one's title to land depends upon his paying off a mortgage on the same, does not make him the debtor of the mortgagee. A sale of goods for cash on delivery creates no debt, for the rea- son that no credit is given. -^^ Unless the goods are paid for when delivered, they may be reclaimed at once. For this rea- son a purchaser on these terms cannot be held as garnishee by the service of summons, when he is in the act of making 13 Lewis V. Smith, 2 Cranch C. C. 571; Hall v. Magee, 27 Ala. 414; Patton v. Smith, 7 Ired. 438; White v. Jenkins, 16 Mass. 62; Haven v. "Wentworth, 2 N. H. 93; Piper v. Piper, 2 N. H. 439; Walke v. McGehee, 11 Ala. 273 ; Cook v. Walthall, 20 Ala. 334; Cobb v. Bishop, 27 Vt. 624; Victor v. Hartford Ins. Co., 33 Iowa, 210; Wood v. Partridge, 11 Mass. 488; Morey v. Sheltus, 47 Vt. 342. n Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 438; Brigden v. Gill, 16 Mass. 522; Adams r. Barrett, 2 N. H. 374; McGehee v. Walke, 15 Ala. 183 ; Lundie f. Bradford, 26 Ala. 512 ; Kittle v. Harvey, 21 Vt. 301; Harrell v. Whitman, 19 Ala. 1.35; Greenleaf /;. Perrin. 8 N. H. 273; Nesbitt v. Ware, 30 Ala. 68; Pow- ell V. Sammous, 31 Ala. 552; Smith v. Cahoon, 37 Me. 281. li Ftdlows V. Duncan, 13 Met. (Mass.) 332. See Geer v. Chapel, 11 Gray, 18, 18 Grace i-. Masfield, Humph. 328. 1" Turner v. Armstrong. 9 Yerg. 412. 18 Wentworth v. Whittemore, 1 Mass. 471. § 448 garnishee's liability as a debtor. 246 payment.^^ It is held upon very plausible reasoning that al- thougli a i:»arty having a right of action against another for a tortious act, may waive the tort and sue in assumpsit, and have attachment in aid of his suit, the same cannot be done by the creditors of the party who has suffered the wrong. The waiver of the wrong is the privilege of the party who suffered it, and cannot be rendered available to his creditors by process of garnishment.^*' § 448. A Legal Debt. — Not only must the demand in favor of the principal defendant be a debt owing from garnishee, but it must, except where the statute otherwise provides, be a le- gal debt. It must be a cause of action in favor of the princi- pal defendant and against the garnishee, upon which the for- mer could at common law maintain an action of debt or indehi- tatus assumpsit.^ This excludes mere equitable demands. Hence, where a judgment was recovered against the party summoned, to the use of the principal defendant, in an action brought in the name of another party, it was held that the judgment debtor could not be charged as garnishee in an ac- tion against the party for whose use the action was brought.^ And for the same reason a demand arising out of unsettled partnership accounts between the principal defendant and the fifarnishee will not serve as the foundation of the latter's liabil- ity.^ In proceedings of this kind, the Court will not, unless the statute specially authorizes it, undertake to settle equities between the principal defendant and the garnishee.* The claim should be one which the defendant could jiursue against his debtor at law, and in his own name.^ But this does not prevent the plaintiff, when the principal debtors constitute 19 Paul V. Reed, 52 N. H. 136. 2« Lewis V. Dubose, 29 Ala. 219. 1 Hassie v. God Is With Us Congregation, 35 Cal. 378 ; Nesbit v. Ware, 30 Ala. 68 ; Williams v. Gage, 49 Miss. 777 ; Caldwell v. Coates, 78 Pa. St. 312 ; Webster v. Steele, 75 111. 5M ; Bills v. National Park Bank, 47 N. Y. Sup'r Ct. 302. 2 Webster v. Steele, 75 111. 644. 3 Ives V. Vanscoyoc, 81 111. 120. 4 Harrell v. Whitman, 19 Ala. 135 ; May v. Baker, 15 111. 89. s Hoyt V. Swift, 13 Vt. 129 ; 37 Am. Dec. 686. Unpaid assessments on shares of stock is such a debt, and the corporation may be summoned as garnishee of the stockholder.— FauU v. Alaska etc. Co., 8 Saw. 420 ; 14 Fed. Eep. 657. 247 gaknishee's liabiljty as a debtor. § 419 a copartnership, from attaching money in tlie hands of a party who has received it from a member of the firm for liis individ- dual indebtedness, he knowing it to be the money of the firm, and its payment to be in fraud of the firm creditors.^ It must also be a legal debt, in the sense that no law is vio- lated in contracting it : as a gambling debt, or the sale of in- toxicating liquors where such traffic is prohibited.' § 449. A Debt not Subject to Contingencies. — Before a party summoned can be charged as garnishee on account of indebtedness to the principal defendant, it must appear that such indebtedness was absolute, and depending upon no future contingencies.^ If the contract be of such a nature that it is uncertain whether defendant will ever have a claim against the garnishee, it presents the strongest possib?e reason for the objection to holding the garnishee liable to defendant's credi- tor, on the ground of extreme uncertainty.^ Even the most liberal statutory provisions, intended to extend the scope of the proceeding so as to embrace debts that may fairly be re- garded as to some extent contingent, would not cover demands that may never come into existence. Accordingly, where a building was to be completed under contract by a specified time, and ten per cent, of the contract price was to be with- held until its completion, and forfeited in the event of a failure to complete the building within the period contracted for, it was held that this ten per cent, was not a debt owing to the builder, and it could not in any view of the case be reached by garnishment served on the party who held it, prior to the completion of the building.^ So a contract between a ship owner and the shipper of a cargo, that the former should re- ceive a share of the profits of the cargo, was held not to cre- ate a debt until the completion of the voyage and the realiza- tion of the profits, as until then it would be uncertain whether '.Tolmson v. Hersey, 73 Me. 291. 7 McGlinchy v. Winchell. 63 Me. 31. 1 Roberts r. Drinkard, 3 Met. (Ky.) 309 ; Bishop v. Young, 17 Wis. 46 ; Mad- uel V. Mousseaux, 29 La. An. 228 ; Bills v. National Park Bank, 47 N. Y. Sup'r Ct. 362 ; Baltimore etc. R. Co. v. McCullougli, 12 Gratt. 595. 2 See Russell v. Clingan, 33 Miss. 535 ; Wood v. Bixton, 108 Mass. 102. 8 Webber v. Bolte, (Mich.) Rep., Oct. 24, 1883. § 449 garnishee's liability as a debtor. 248 the sliipowner was entitled to anything.^ So, also, wliere by contract between a street railway corporation and a conductor, the 'latter was to account for tickets entrusted to him in settle- n)ent of his wages, and at the time of service of the writ upon the corporation he had in his hands money received from the sale of tickets, which, together with the tickets still in his pos- session, exceeded the amount of his wages then earned. It was held that there was nothing due him from the corporation " absolutely and without any contingency," within the mean- ing of the statute, so that the company could be charged as garnishee.^ The wages of a sailor, payable on arrival In port, are held to create only a c ontingent debt, and hence the party by whom the same are payable cannot be garnished at the suit of the sailor's creditors, while the ship on which he Is employed is still at sea.^ 'And where one was summoned as garnishee of a builder, whose contract required him to cojiiplete the build- ing on which he was engaged by a certain day, a)ul for fail- ure was to forfeit a certain sum per day for evei'y day it re- mained unfinished after the time, and the day was passed leaving the work unfinished, by reason of which it did not appear whether any sum whatever would be due on the con- tract when the building was completed. It was held that the garnishee could not be charged.' This, it will be noticed, does not turn uj)on a question of uncertainty as to the time when the sum will be due, or uncertainty of amount. The Indebt- edness must exist absolutely at the time of service, subject only to the lapse of time, or to be extinguished by payment. One who received a bill of exchange for which he promised to ac- count to the defendant when the bill was paid, was held not charoable as sjarnishee, while It remained uncertain whether the bill would ever be pald.*^ Where one has In any manner or form contracted for a share of the net proceeds or profits of a commercial or trading venture of any sort, and the party sum- 1 Davis r. Ham, 3 Mass. 33 ; Cutter v. Perkins, 47 Me. 557; Leefe v. Walker, 18 La. 1. 5 Fellows V. Smith, 131 Mass. 363. 6 Wentwortb v. Wbittemore, 1 Mass. 471 ; Taber v. Nye, 12 Pick. 105. " Hoiison v. Dinan, 48 Mich. 612. See Hancock v. Colyer, 99 Mass. 187; Bish- op r. Young, 17 Wis. 46. 8 Erothingham );. Haley, 3 Mass. 63. 249 garnishee's liability as a debtor. § 449 moned as garnishee has in his hands the goods dealt in, with the cash proceeds of so much as have been sold, and it still re- mains uncertain whether there will be profits to divide, there is no indebtedness, under the rule against contingent demands, which will serve as a sufficient foundation for process of gar- nishment.^ One cannot be held as debtor or custodian of spe- cific chattels, in anticipation of his becoming a debtor or re- ceiving the property, so long as the happening of the event is contingent.^'' A tenant whose rent Is payable quarterly, when summoned as garnishee, cannot be held except for the quarter for which the rent is actually due, that for the future being i-egarded as contingent and uncertain. ^i Upon the game prin- ciple, a contract to pay a certain sum of money at stated times during the life of the promisee does not create a deht, except as to sums due, as this is one of the instances in which notliing is owing until it is due^-under the terms of the contract. The element of uncertainty is in respect to the promisee living until the time when he will become entitled to a payment under his contract.^^ Where, however, the annuitant is entitled to pay- ment for any portion of a year for which he may have lived, whether the same is due at once or at the end of the year, the indebtedness would be considered absolute within the meaning of the statute. ^^ Contracts of insurance, where the insurer re- serves the right to pay the amount of the loss or replace the building, are held to be contingent for the time that the insur- er has the right to elect whether to pay cash or i-estore the property. ^^ Contracts of guaranty are also classed as collat- eral and uncertain.'^ So where a note or other form of writ- ten obligation to pay if some event should transpire in the fu- ture, in whatever form of words the contingency is express- 9 Williams v. Marston, 3 Pick. 65 ; Willard v. Sheaf e, 4 Mass. 488. 10 Grant v. Shaw, IG Mass. 341; 8 Am. Dec. 142. 11 Wood V. Partridge, 11 Mass. 488 ; Strauss v. Railroad Co., 7 W. Va. 368 ; Baltimore etc. R. Co. v. Gallahue, 14 Gratt. 563 ; Thorp v. Preston, 43 Mich. 511. 12 Say ward v. Drew, 6 Me. 263. i3Salim V. Cooper, 15 Gray, 532. See Walker v. McGehee, 11 Ala. 273. i^Martz V. Detroit etc. Ins. Co., 28 Mich. 201 ; Thorp v. Preston, 42 Mich. 511; Godfrey v. McComber, 128 Mass. 188 ; McKean v. Turner, 45 N. H. 203 ; Giea V. Bechtner, 12 Minn. 279. i^Tucker v. Clisby, 12 Pick. 22 ; Bates v. New Orleans etc. R. Co., 4 Abb. Pr. 72. § 450 gaenishee's liability as a debtor. 250 ed ;^^ or when the claim upon the garnishee is reversionary or uncertain for any other reason, he cannot be charged in i-espect thereto as a debtor.^'' Thus, where the contract upon which the alleged indebtedness was based, was to furnish furnaces to the garnishee, to his satisfaction, and the furnaces sujiplied under such contract were not accepted, but were i*ejected with- in a reasonable time, and another contract was made, it was held that the garnishee could not be charged as a debtor. ^^ § 450. Contingencies by which Garnishee's Liability is un- affected. — But it is not every contingency in respect to the indebtedness to defendant that will discharo-e the jrarnishee from liability when summoned. There are certain elements of uncertainty that are perfectly consistent with an absolute present indebtedness. In order that the contingency shall be such as to defeat the purposes of the garnishment, it must af- fect the debt itself. If it is certain that the garnishee is in- debted, and the only question of doubt is as to which of two rival claimants he is indebted to, he may be held until this question is determined between the parties. "^ So where the only matter of doubt is whether the garnishee is to be charged in respect to his possession of specific chattels, which he may, at his option, return, or as debtor for the purchase money, as we have seen elsewhere, he may be charged as garnishee, without impairing his right of election whether it shall be as debtor or as one in possession of defendant's property.^ Mere uncertainty of amount is not such a contingency as to defeat the garnishee's liability. If he has contracted to pay for work, the value of which is to be arrived at by estimates or measure- ments to determine the quantity, and nothing remains to be done but to make such measurements and calculations in order to entitle tbe contractor to his money, the indebtedness will be regarded as sufficiently certain to render the garnishee ameu- 16 Burke v. AYliitcomb, 13 Vt. 421. I'Eicli V. Waters, 22 Pick. 563 ; Meacham v. McCorbitt, 2 Mete. (Mass.) 352 ; Faulkner v. Waters, 11 Pick. 473 ; Guild v. Holbrook, 11 Pick. 101 ; Clemeut V. Clement, 19 N. H. 460 ; Fitch v. Waite, 5 Conn. 117. IS Webber v. Doran, 70 Me. 140. 1 Thorndike v. DeWolf, 6 Pick. 120; Downer v. Curtis, 25 Vt. 650; Dwinel v. Stone, 30 Me. 384. ^ Supra, § 446; Smith v. Cahoon, 37 Me. 281. 251 garnishee's liability as a debtor. § 450 able to process.^ It is true, however, that the amount actually due from the garnishee to the defendant must, in general, be arrived at, before there can be a judgment against the former.* This is held essential as a foundation for the judgment, in Louisiana,^ and would probably be so I'egarded In most of the States, at least so far as might be necessary to determine whether the indebtedness was sufScient to cover the amount of plaintiff's judgment against the principal defendant. It may be somewhat uncertain when the amount of garnishee's indebtedness will be j^ayable. This is not the element of un- certainty or contingency that will release him from liability. Much less would he be entitled to discharge, where nothing' but the lapse of a time certain was necessary to render the debt due and payable. ^7here a sum of money is deposited for a certain purpose, and is not used for the purpose of the deposit, it becomes a " debt due " the depositor, and as such may be reached by his creditors through process of garnishment.^ The distinction should be observed between present debts payable in the fu- ture, and future indebtedness. The one is a debt, and the other will be or may be. If a party will be entitled to a sum certain upon completion of work undertaken by him, there is no " credit," within the meaning of the attachment law, until the work is completed ; and it matters not how certain it may be regarded, as a fact, that the time will come when the con- tracting party will have a just demand for the agreed sum ; un- til that time arrives, his interest in the sura payable cannot be reached by garnishment of the party by whom it is to be paid.'^ This is easily distinguished from a present promise to pay in the future, where nothing but time is required to mature the demand. If, at the time of service, the party summoned has not received goods which he purchased on a credit, it is held that he has not yet become indebted to the seller, and cannot be garnished at the suit of the latter's creditors.^ 2 Ware v. Gowen, 65 Me. 534. ^ Poor t'. Colburn, 57 Pa. St. 415. 6 Marks r. Reinberg, 16 La. An. 348. 6 Balliet v. Brown, 103 Pa. St. 546. '' Early r. Redwood City, 57 Cal. 19a, See Kittlfi «. Harvey, 21 Vt. 301; Otia V. Ford, 54 Me. 104. 8 Hitchcock V. Miller, 48 Mich. G03. § 451 garnishee's liability as a debtor. 252 The doctrine laid down by tlie Courts in regard to unadjusted losses under policies of insurance is, that the mere fact that the amount is somewhat uncertain, does not render them con- tingent demands against the insurer.^ § 451. Conditional Obligations as a Foundation for Garnisli- inont. — There is also a distinction to be observed between con- tingencies upon which the indebtedness depends, and mere con- ditions to the liability which may be met by the obligee, or hia successor in interest. Such conditions as these may, or may not, be held to entitle the garnishee to release from liability; or they may only be held to subject his liability as garnishee to the same conditions imposed by the contract upon defendant. Thus, where defendant had a demand for a legacy against gar- nishee as executor, which he could not recover without giving the executor a refunding bond, it was held that befoi'e the ex- ecutor could be charged as srarnishee at the suit of defendant's creditoi', the plaintiff must furnish the required indemnity.^ This Is upon the principle that the creditor can have no rights superior to those of the defendant, in whose shoes he stands In connection with the claim against the garnishee.^ Where, however, the party summoned was a railroad corporation, and the defendant was a contractor who was only entitled to re- ceive the agreed or estimated value of his work upon execut- ing a release of all claims or demands arising out of the con- tract, It was held that the Company could not be charged as garnishee.^ The condition In this case was one which prob- ably no one but the contractor himself could comply with. It introduces an element of uncertainty which It seems Is en- titled to very little toleration at the hands of the Court. It imposes an absurd condition, requiring a written release of oil claims and demands arising out of the contract, which would only be held of about the same binding force as an or- dinary receipt. It was probably made a condition of the con- tract. In order to commit the contractor to the correctness and thoroughness of the estimates. And yet it is permitted to 9 Post, § 453. 1 Ross V. McKinny, 2 Rawle, 227. SFenton r. Black, 10 Mo. App. 536; Fitzgerald v. Hollingsworth, 12 Neb. 188, 3 Baltimore etc. R. Co. v. McCuUougb, 12 Gratt. 595. 253 garnishee's liability as a debtor. § 452 stand as an indispensable condition, and seems to embrace something more than what is actually paid under the contract. § 452. The Debt should be Payable in Money. — It does violence to all preconceived notions of the meanino" of terms used in a civilized tradini^ community, to spenk of " payment " being made in anything but money ; or of one being " indebted " in any other medium of payment. Where it is a question of barter, one may undoubtedly agree to deliver a quantity of merchandise ; and for failure to keep and perform his part of the contract, if the value of the commodities to be delivered! had been stated, would be indebted in a sum as damages which could be readily ascertained by reference to the contract it- self. It was in general harmony with this doctrine that it was held, where a contract was made for the payment of a specified sum in work and labo?, that the promissor might be held as garnishee of the promisee.^ In Iowa, where by ex- press contract a liability was made payable in "merchandise or trade," it was held that the judgment against the garnishee should be conditional, allowing him to turn over the property to the sheriff.^ Where the contract is to deliver a specific ar- ticle, which is sufficiently described and set apart, it would be quite as logical to hold the garnishee on his answer as one in possession of property of defendant, as to abrogate the contract, and collect damages for its breach. The weight of authority, where the Courts are controlled by no exceptional legislation on this subject, is, that one cannot be held as garnishee on a promise to pay in anything other than money. ^ It is so held, where the promise is to deliver in pay- ment a given quantity in value of commodities.^ Where pay- ment is to be made in negotiable paper, accounts, or orders on a third party ,^ and the agreement of the garnishee is to satisfy 1 Londerman v. Wilson, 2 Har. & J. 379. 2 Stadler v. Parmlee, 14 Iowa, 175. 8 Bartlett v. Wood, 32 Vt. 372. ^ McMinn v. Hall, 2 Tenn. 328 ; Weil v. Tyler, 38 Mo. 545 ; Smith v. Davis, 1 Wis. 388 ; GO Am. Dec. 390; Blackburn v. Davidson, 7 B. Mon. 101. See Cher- ry V. Hooper, 7 .Jones, 82. 6 Willard v. Butler, 14 Pick. 550; Fuller v. O'Brien, 121 Mass. 422 ; Smith v. Chapman, 6 Port. 365 ; Blair v. Rhodes, 5 Ala. 648 ; Mima v. Parker, 1 Ala. 421 ; Jennings v. Summers, 7 How. (Miss.) 453. § 452 garxishee's liability as a debtor. 254 the demand against him by giving his personal services, or work and materials in the line of his calling.^ There is no good reason why provision should not be made in attachment laws for reaching credits of this kind, when they are of a char- acter to be valuable to others as well as defendant; it would be a matter of indifference to the garnishee whether he kept the terms of his contract with the original party, or with one who succeeded to his rio-hts. To change the agreement to Avork, or to deliver property of a specified value, into a money de- mand against the promissor, even with the aid of legislation, seems to be in effect to impair the obligation of a contract. There are certain advantages to the contracting party, in stip- ulating to deliver commodities rather than cash, of which he should not be deprived, so long as he is ready and willing to keep his contract according to ,its terms. Where the statute supplies no remedy for the anomalous contract, by requiring the garnishee to answer as to agreements of barter of this kind, the Courts have for the most part wisely abstained from ex- tending the scope of the statute. The statutory remed}^ is by allowing the garnishee to deliver the property agreed upon to the sheriff instead of the defendant, when the thing is marketa- ble and capable of delivery, and this remedy has been applied by the legislature and enforced by the Courts.' But jDcrsonal services, and such things as " board,"^ which a party may agree to furnish to particular individuals, cannot always, without ut- terly disregarding the spirit of the contract, be conferred upon a different person or persons than those agreed upon. If one agrees to take another into his family as a boarder, or to give his own personal services to another, in consideration of some advantage bestowed by the other contracting party, the means of satisfaction afforded may have been the main inducement to the acceptance of the consideration. And the personal re- lations of the parties could not be without their influence in measuring the value of the services agreed upon. One cannot sell the services of another, unless the other agrees to the bar- gain. 6 "Wrigley'ij. Geyer, 4 Mass. 102. See Aldrich v. Brooks, 25 N". H. 241. ■^ Clark V. King, 2 Mass. 524 ; Comstock v. Farnum, 2 Mass. 96 ; Marshall v. G. G. R. & B. Co., 5 La. An. 360. 8 Aldrich v. Brooks, 25 N. H. 241. 255 garnishee's liability as a debtor. § 453 § 453. Consideration of the Debt — Contracts of Indemnity. — The debt upon which the chiitn against the garnishee is based, in order to possess the essential feature of being an ac- tionable demand, must be a legal consideration. It will not meet this re([uisite if it is a gambling debt, ^. or one arising from transactions immoral in their character, or contrary to public [)olicy. Where the sale of intoxicating liquors is prohibited by the law of a State, and as an incident of such prohibition it Is prescribed that no debt arising from the pro- hibited traffic shall be collected by process of law, such debt- ors will not be held subject to gax-nlshment, whether the debt is contracted within the State or elsewhere.^ The jiarnlshee has a right to precisely the same defenses as though he had been proceeded against by his creditor using ordinary process. Amongst these defenses Is that of want or failure of consider- ation. But the consideration of the contract need not be one passing directly to the garnishee himself. If the garnishee has agreed with the defendant to pay the latter a specified sum, In consider- ation of some benefit conferred upon a third party, the obliga- tion Is as complete as though the consideration were received directly by the obligor.^ A contract of indemnity, when any- thing is done, or value parted with. In consideration of such promise to indemnify, creates a debt from the promissor to the promisee, In respect to which garnishment will lie in a suit by the promisee's creditors. But it seems that a mere as- sumption of liability is not regarded in every Instance as suffi- cient consideration for a promise to Indemnify. Thus, where one gave his notes in payment of property for the benefit of another, and the latter agreed to furnish the money to pay such notes as they matured, subsequent to which the maker became insolvent before the notes matured ; and In an action against him, the promisor, who had received the goods for ■which the notes were given, was summoned as garnishee, it was lield that he could not be charged for the reason that the maker of the notes had not ])ald them, and hence was not dam- 1 Weiner v. Pritchartt, 16 Mo. 252 ; Ball v. Gilbert, 12 Met. 397. 2McGlinchy v. Winchell, G3 Me. 31. 3Forster v. Fuller, 6 Mass. 58 ; Hildreth v. Pinkerton Academy, 29 N.H.227; Powell V. Browu, 3 Johns, 100 ; Haines v. Haines, 6 Md. 435. § 454 garnishee's liability as a debtor. 256 nified, and there was nothing owing under the contract of in- demnity.* Where, however, the party for whose direct bene- fit the contract of indemnity is made has been subjected to judgment for the act or liability assumed, against which the indemnity was intended to secure him ; as where judgment is recovered against an executive officer for a levy made by him, against the consequences of which levy a bond of indemnity has been given, it is held that the party giving the bond is in- debted to the officer, beyond doubt or contingency, except as to amount, and may be held as garnishee.^ Policies of insur- ance are contracts of indemnity of a somewhat different char- acter as respects the consideration. In these the consideration is the premium, and the policy furnishes the standard by which the amount of the liability may be ascertained and fixed. ^ The liability accrues when the loss occurs, and the insurer becomes the debtor of the assured, even before the loss Is adjusted," and may be held as garnishee in an action by attachment against the latter.^ § 454. Capacity in which the Debt is Contracted. — Where the debt is contracted by the garnishee in a public capacity, as by an officer of the general government, a State, county, or municipal corporation, he ^cannot be summoned as garnishee, for the same reasons that he cannot be so charged In respect to property held by him in such official capacity.^ The gen- eral doctrine of this exemption applies alike to municipal cor- porations when summoned in their corporate capacity as debt- ors, and to public officers who represent any branch of gov- ernment In the distribution of funds.^ The general govern- ^Townsend v. Atwater, 5 Day, 298. e Downer v. Topliff, 19 Vt. 399 6 Drake on Attachment, § 549. ■^Knox V. Protection Ins. Co., 9 Conn. 430 ; 25 Am. Dec. 33 ; ISTortb "Western Ins. Co. V. Atkins, 3 Bush, 328. Contra, McKeanr. Turner, 45 N. H. 203 ; Gies V. Bechter, 12 Minn. 279. 8 Franklin Fire Ins. Co. v. West, 8 Watts & S. 76 ; Girard Fire Ins. Co. v. Field, 45 Pa. St. 129 ; Boyle v. Franklin Fire Ins. Co., 7 Watts & S. 7G ; North Starr etc. Co. r. Ladd (Minn.), 20 N. W. Eep. 334 ; Coykendally. Ladd (Minn.), 21 N. W. Rep. 7.33. 1 Ante, §§ 418-422, ^Mechanics' etc. Bank v. Hodge, 3 Rob. (La.) 373; McLellan v. Young, 54 Ga. 399 ; 21 Am. Rep. 27G ; Mayor etc. of Mobile v. Rowland, 2(j Ala. 498 ; 257 garnishee's liability as a debtoe. § 454 ment or the State, when indebted, cannot be held as garnishees, for the general reason that they cannot be sued,^ As to pub- lic officers and municipal corporations, the rule is changed by- statute, so that under the general power to hold them as gar- nishees, an officer may be garnished in respect to money of the corporation in his hands collected from fines and forfeit- ures.* But as regards the State, it has been held exempt from process of garnishment, even where, by the constitution and laws, it may be sued by its own creditors in its own Courts.^ In addition to this, it is held contrary to public policy to in- volve public interests in private contracts of this kind.^ There are some exceptions to the holdings of the Courts as to the li- abilities of municipal corporations ; it being decided that as such corporations may be sued, they may be effectually served as garnishees." But the contrary doctrine is too generally ac- cepted and approved to be disturbed by exceptional rulings in favor of the liability of municipal corporations to garnishment. The proposition that an officer cannot be held as a debtor of the party to whom he is required in the course of his official duty to pay public money, admits of no exception. If he may be garnished under the provisions of a statute, it would be as one in possession of property of the defendant, and not as a debtor. When he acts in his official capacity in making the contract from which public indebtedness arises, it is equally clear that he is not the debtor, and cannot be so charged. If the municipality is subject to garnishment as a debtor, it must be upon the ground that either a special statute, or the gener- City of Mempliis v. Laski, 9 Heisk. 511 ; 24 Am. Rep. 327 ; McDougal v. Board of Supr's, 4 Minn. 184 ; Merwin v. City of Chicago, 45 111. 133 ; City of Chicago I'. Hasley, 25 111. 596 ; Moore v. Mayor of Chattanooga, 8 Heisk. 850 ; Pierson v. McCorinick, 1 Clark. (Pa.) 201 ; Parsons v. McGavock, 2 Tenn. Ch. 581 ; RoUo V. Andes Ins. Co., 23Gratt. 509 ; 14 Am. Rep. 147 , Stillman v. Isham, 11 Conn. 124 ; Spalding v. Tmlay, 1 Root. (Conn.) 551 ; Tracy v. Hornbuckle, 8 Bush. 33G ; Webb ).'. McCauley, 4 Bush. 8 ; Wendell v. Pierce, 13 N. H. 502 ; Wild v. Fer- guson, 23 La. An. 752 ; Wilson v. Bank of La., 55 Ga. 98 ; Mayor etc. of Balti- more V. Root, 8 Md. 95. 3 McMerkin v. State, 9 Ark. 553. 4 Smoot V. Hart, 33 Ala. 09. 6 Ante, § 418. « Speed V. Brown, 10 B. Mon. 108, and cases cited swpra. '> Speed V. Brown, 10 B. Mon. 108 ; Whidden v. Drake, 5 N. H. IS ; Wales v. City of Muscatine, 4 la. 302 ; Wilson v. Lewis, 10 E. I. 285. II. Attach.— 17. § 455 garnishee's liability as a debtor. 258 al language of the attachment law extends to debtors of this class. The officers of Courts are, under certain circumstances, held subject to garnishment, in consequence of having received money of the principal defendant, but this is not upon the ground that they are the debtors of the parties whose money they hold. The exceptional circumstances under which they may be effectually served with process of garnishment, as well as the grounds upon which they are generally regarded as ex- empt, have been given in detail in a former chapter.^ § 455. Same — Executors and Administrators. — In general, the personal representatives of a decedent are held not liable as garnishees, ^in respect to unpaid legacies or distributive shares in their hands, prior to an order of distribution, if at all.^ Upon a settlement of the estate and an order of distribution, there seems no good reason why the administrator should not be held amenable to this process, as having in his possession a portion of the effects of the distributee, and it is so decided.^ But it is also held, that an administrator cannot be charged as garnishee in foreign attachment, brought to recover a debt due from the intestate, though he have effects in his hands. ^ So the administrator cannot be required to answer whether or not his intestate was indebted to the principal defendant.* Nor can he be held as garnishee of the intestate in an action against the estate.^ But this goes only to the question of the liability of a personal representative as to debts contracted by the de- cedent. The further question remains, as to whether the ad- ministrator or executor may be garnished in respect to debts contracted by himself while acting in his representative capac- ity, and if so, in what manner, and to what extent? In the absence of authority bearing directly upon the proposition, and 8 Ante, §§ 420, 421. 1 Parker v. Donnolly, 4 "W. Ya. 648 ; Ante, §§ 425, 426. See also Shewell v. Keen, 2 Whart. 332 ; 30 Am. Dec. 266 ; Terry v. Lindsay, 1 Stew. & Port. 317. Contra, Stratton v. Ham, 8Ind. 84. 2 Richards v. Griggs, 16 Mo. 416 ; 51 Am. Dec. 240 ; Curling v. Hyde, 10 Mo. 375. 3"Waite V. Osborne, 11 Me. 185. 4 Welch V. Gurley, 2 Haywood, 334. 6 Commercial Bank v. Neally, 39 Me. 402. 259 . garnishee's liability as a debtor. § 456 relying mainly on analogy, it would seem that where the ex- ecutor or administrator contracts debts in his representative character, lie might in the same character be called upon to answer as garnishee, in a suit against his creditor ; but that lie could not be required to answer, under such circumstances in his private capacity, nor could he be held to answer as ex- ecutor or administrator, in an action by his personal creditor. When one is indebted to the representative in his official char- acter, he is a debtor of the estate, and not of the individual, and can only be held as garnishee in an action against the es- tate.^ Upon the other hand, if his indebtedness is to the indi- vidual, he cannot be garnished at the suit of a creditor of the decedent, or one to whom the personal representative is indebt- ed officially." § 456. Debts contracted in a Private Representative Ca- pacity. — There are certain relations between private parties, where one may represent the other in a manner that exempts the representative from liability as garnishee in respect to debts contracted in behalf of the principal, as effectually as though the representative were a public officer. Where the liability is assumed by a foreign corporation, in the absence of a stat- ute providing for serving such corporations with process, there is no method by which they can be garnished. The difficulties in the way of enforcing the appearance of non-residents as garnishees have already been noticed.^ These difficulties are enhanced when the non-resident is a foreign corporation, for the reason that it cannot be, in contemplation of law, even temporarily in any State other than that from which it holds its charter.^ The only effective method of obviating this ob- struction to speedy justice, is that adopted in many of the States, of exacting from such organizations a stipulation that they will accept service of process when served upon a desig- nated agent, and submit to the jurisdiction thus acquired over them, for all the purposes of a suit. Upon this condition they ^Lessing v. Yertrees, 32 Mo. 431. 7 See Presnall v. Mabry, 3 Port. 105. ^Ante, § 344. See Cronin v. Foster, 13 E. 1. 196, 2uln(e, § 343. § 456 garnishee's liability as a debtor, ^ 260 are permitted to carry on business in the State, and where ser- vice of process of garnishment is made according to this stip- ulation, it is as binding on the garnishee as original process would be in a direct action against the corporation.^ But a debt due from a foreign Insurance Company, arising from a loss, cannot be attached by serving the j^rocess upon the agent who signed the policy for the company, unless he is the indi- vidual designated. Nothing is accomplished by serving him as the debtor. He assumed no risk, and the loss imposed no liability on him, and hence he could not be adjudged to pay the demand.* For like reasons, a committee representing a voluntary organization in signing a contract by which the body represented became indebted to the defendant, could not be charged as garnishees.^ And so when it appears that the debt was contracted by the party summoned, not as his personal obligation, but as the agent or representative of another, and the credit was given to the principal, he and not the agent must be garnished, in order to have the amount of such indebt- edness applied in satisfaction of the judgment against his cred- itor.^ In order to hold the garnishee, it must appear that there is a debt owing from him, in the capacity in which he is sum- moned, to defendant in the capacity in which the latter is sued." There must be goods, effects, or credits in the hands of the garnishee.^ A claim against a county for jury service was held to be neither of these — it being held that it was not a credit, for the reason that the demand did not arise in contract express or implied, but was comjiensation for compulsory ser- vice.^ Where a party simply represented his wife in manag- ing the business of a firm of which she was a member, it was held that the partnership did not thereby become indebted to him for services, creating a credit. in their hands that could be reached by garnishment process. ^'^ SBarr v. King, 96 Pa. St. 485 ; Darlington v. Rogers, 13 Phila. 102. 4 "Wells V. Green, 8 Mass. 504. 6 Hewitt V. Wheeler, 22 Conn. 557. 6Lewis V. Smith, 2 Cranch C. G. 571 ; Smith v. Posey, 2 Hill (S. C.), 471. 7 Adams r. Avery, 2 Pitts. 77. 8 Clark V. Clark, 62 Me. 255. ^Williams v. Boarclman, 9 Allen, 570. lODupuy V. Sheak, 57 Iowa, 36L 261 garnishee's liability as a debtor. § 457 § 457. The Plaintiff as Garnishee. — Where the plaintiff is in actual possession of the property which belongs to his debt- or, it might be of some advantage to levy on such property under a writ of attachment ; but even then, direct seizure would in general be the better mode of procedure. Still it might be effectually accomplished by garnishment, when the process is not confined to cases where " third parties " are in possession of the property.^ When, however, the attaching creditor is indebted to his debtor, it hardly seems a practical matter of inquiry whether he may garnish himself in respect to a debt which he owes to the attachment defendant. If the claim of the plaintiff against defendant is one which will sup- port garnishment, it will also be available as a set-off. There is no conceivable advantage to be gained, either as to security or priority, by attachment of a debt which can be attached by no one else, and which cannot be collected b}^ the creditor. An ordinary action for the balance due would serve every purpose of facilitating the closing of the accounts between the parties. And yet this question is discussed by the Supreme Court of Massachusetts.^ Judge Drake, in his work on attach- ments, calls attention to this question, and cites some authori- ties which I have not yet examined, as supporting the proposi- tion that a plaintiff may attach by garnishment credits in his own hands. ^ The learned author also presents a Tennessee case embracing the following facts : A, B and C, as partners, were indebted to D, by note. D sued on the note, and ob- tained judgment against A and B, but not against C, who was a non-resident ; and issued execution which was returned roulla hona, A and B being insolvent. C held a note made to him by D and E, which, to avoid the claim of creditors, he trans- ferred by assignment to F, a resident, without consideration, ^ See Coble v. JSTonemaker, 78 Pa. St. 601 ; Blaisdell v. Ladd, 14 N. H. 129 ; Hoag V. Hoag, 55 IST. H. 172 ; Drake on Attachment, § 543. 2 Belknap w. Gibbons, 13 Met. 471. A portion of the opinion in this case is quoted in a note by ,ludge Drake, in which the Chief Justice points out some of the incongruities of such procedure for the purpose of reaching credits in the hands of the plaintiff. Although the question is not decided, the inclina- tion of the Court is against permitting a plaintiff to garnish himself. Drake on Attachment (5th Ed.), § 543 (note). 8 Grayson v. Veeche, 12 Mart. 688 ; 13 Am. Dec. 384 ; Richardson v. Gumey, 9 La. 285 ; Lyman v. Wood, 42 Vt. 113. § 457 garnishee's liability as a debtor 262 and for the benefit of C. Suit was brought on this note by F, and judgiucnt obtained against D and E, and all the money paid to C except an amount equal to the claim of D against C, on the note of A, B and C. While matters were in this posi- tion, D filed his bill in chancery against C and F, to subject the indebtedness of D and E to C, to the payment of C's debt to D, and the Court sustained the bill.^ But this is not a plain case of garnishment under the ordinary attachment statute. It is a proceeding in chancery, where powers are reposed, intended to be commensurate to every emergency where the statute has not supplied an adequate remedy. In the course of the opinion from which the above statement is epitomized, the judge delivering the views of the Court takes occasion to say :" * * * It, to be sure, in order to make the remedy eifectual, under the circumstances of this case, requires that the Court should enjoin the the judgment of F, assignee, against D and E. When the rights of the parties are deter- mined, that becomes the appropriate mode of relief in this par- ticular case."^ 4 Drake on Attachment, § 543, Citing Boyd v. Bayless, 4 Humph. 386; Ar- ledge V. White, 1 Head, 241. 5 Boyd V. Bayless, 4 Humph. 386. CHAPTER XXXVr. garnishee's indebtedness evidenced by negotiable nstruments. § 458. Maker of negotiable paper as garnishee. § 459. Reasons for the rule that negotiable credits cannot be reached by gar- nishment of the debtor. § 460. Circumstances that destroy the negotiability of instruments — No ex- ceptions to the rule. § 461. Conditional garnishment of payer of negotiable paper before maturity. § 462. Garnishment, where instrument has been fraudulently assigned. § 463. Effect of notice of garnishment upon rights of indorsee. § 464. By what law the negotiability of the instrument is to be determined. § 458. Maker of Negotiable Paper as Garnishee. — What- ever be the form of commercial pap)er that evidences the orig- inal liability of the party summoned, as a general rule, he can- not be charged as the debtor of the payee, if the paper was ne- gotiable when issued, and still retains its negotiability. ^ This, of course, is a principle that is qualified in its application, as the reasons upon which it is based are absent, or appear in a modified degree in any particular case. The obvious reason for the general acceptance of the doctrine embraced in the proposition is, that the party summoned cannot say that he is indebted to the defendant, or that by reason of such indebted- ness he may not become indebted to some one else, against whose demand the judgment against himself as garnishee will be no pi'otection. When the paper evidence of debt is nego- tiable under the law merchant, there needs no notice to the debtor to render the transfer of his obligation absolute. The service of process of garnishment does not affect the negotia- bility of the note or bill. The promise is out, not only to pay 1 Cloughi). Buck, 6 Neb. 343 ; County of Cass v. Gillett, 100 U. S. 585 ; County of Warren v. Marcy, 97 U. S. 96 ; Durant v. Iowa County, 1 Woolw. 69 ; Day r. Zimmerman, 88 Pa. St. 188 ; Bassett v. Garthwaite, 22 Tex. 230 ; Carson v. Allen, 2 Cliand. 123 ; Howe v. Ould, 28 Gratt. 1 ; Kimball v. Plant, 11 La. 54; Kapp V. Teel, 33 Tex. 811 ; Littler. Hale, 11 Vt.482. § 458 garnishee's negotiable instruments. 264 the original creditor, who Is the defendant in attachment, but to pay any one who may come into possession of the evidence of debt by indorsement and delivery, or by delivery only, as the case may be. Howsoever conclusive the judgment of the Court may be upon the parties before it, if rendered without adjudicating the rights of the indorsee of negotiable paper, it is no protection to the garnishee. It may have gone to judg- ment against the garnishee, in consequence of his laches or ig- norance, or as the result of an erroneous view of the hiAv enter- tained by the Court ; but if the garnishee pays the judgment, he may be subsequently forced to pay again to the party in posses- sion of the paper by regular indorsement. This is a condition of things which it is not intended that the law or its administra- tion shall bring about. The garnishee should not be placed in a worse position than that occupied by him prior to service. It is no part of the general design of this branch of the attach- ment law to impose extra burdens on the garnishee. The ex- ceptions made by some of the Courts, to the doctrine that the maker of a negotiable instrument cannot be held as garnishee of the payee, while the evidence of his indebtedness is in cir- culation, before maturity, cannot be reconciled with the law governing negotiable paper. The better doctrine, and that which is best supported both on principle and authority, is that the promise is to pay the holder of the instrument, who- ever he may be, at maturity, and that this obligation is unaf- fected by any litigation in which the instrument is involved in the mean time.^ No judgment can be properly entered against the garnishee, requiring him to pay the amount of his debt, when evidenced in this manner, to any other person than the holder of the negotiable instrument who purchased the same for value and before maturity.^ This doctrine will therefore 2 Daniels on Negot. Inst., § 800 a. Citing Murray i'. Lylburn, 2 Johns Ch. Ml ; Kieffer V. Ehler, 18 Pa. St. 388 ; Hill v. Kraft, 29 Pa. St. 1S(J ; Day v. Zim- mermann, 88 Pa. St. 188 ; County of Cass v. Gillet, 100 U. S. 585 ; Mcore v. Green, 4 Humph. 299 ; County of ^Yarren v. Morey, 97 TJ. S. 106 ; Mayberry v. Morris, 62 Ala. 113 ; Re Great "Western Tel. Co., 5 Biss. 363 ; Leitch v. Wells, 48 N. Y. 585 ; Mims v. West, 38 Ga. 18 ; Durant v. Iowa Co., 1 Woolw. 69 ; Stone V. Elliot, 11 Ohio St. 252 ; Winston v. Westfeldt, 22 Ala. 560 ; Greer v. Powell, 1 Bush. 489 ; Hutchins v. Evans, 13 Yt. 541. 3 Cruett V. Jenkins, 53 Md. 217 ; Stone v. Dean, 5 X. H. 502 ; Leslie r. Merrill, 58 Ala. 322 ; Hindsdill v. Safford, 11 Vt. 309 ; Myers v. Beemau, 9 Ired. 116 ; 2^56 garnishee's negotiable instruments. § 459 be taken as the rule by which the rights of parties are to be determined, in all the States where the law merchant is recog- nized, notwithstanding the authorities to the contrary.^ § 459. Reasons for the Rule that Negotiable Credits cannot be reached by Garnishment of the Debtor. — The reasons for this rule are so abundant and satisfactory that there seems only one way of avoiding its operation, and that is by abrogating the law of negotiable paper. There are some of the principles that govern the relations of parties to the garnishment pro- ceeding which are fundamental. One of these is, that a debtor without fault or negligence cannot be legally compelled to pay his debt twice over. Another is, that every one to be affected by a judgment must have his day in Court. And still another might be added, to the effect that Courts have no power to make contracts for parties litigant, different from those intend- ed by themselves. To hold that the maker of a negotiable note may be charged as garnishee while the note is still in cir- culation before maturity, is to disregard all of these fundamen- tal principles, or at least two of them. As to the first and second, there may be a choice which of the two Innocent par- ties shall be wronged. If the rights of the holder of the note are preserved Intact, the maker is the victim, as he may be subjected to a judgment in favor of the attaching creditor, and afterwards called upon to pay the same debt to the holder of the note. If, on the other hand, the power of the Court is sufficient to protect the garnishee against second payment, the indorsee of the note must suffer. The contract made by the maker of the note was not unconditionally to pay the payee, but to pay the legal holder at maturity. To compel him to satisfy the debt in any other manner, is to reform his contract. Under s})eclal circumstances, where the proceeding was in a Court of Equity, and plaintiff might call to his aid the chan- Gaffney v. Bradford, 2 Bailey, 441 ; Kinsley v. Evans, 34 Ohio St. 158 ; Igle- hart V. Moore, 21 Tex. 501 ; Basset v. Garthwaite, 22 Tex. 2:^0 ; Gregory u. Hig- giiiH, 10 Cal. 339 ; Brittaiu v. Anderson, 8 Baxt. 316 ; Hiiot v. Ely, 17 Fla. 775 ; Davis u. Powlette, 3 Wis. 300 ; Carson v. Allen, 2 Pinney, 457 ; 2 Chand. 123 ; 54 Am. Doc. 148 ; Hubbard i>. Williams, 1 Minn. 54 ; Greer v. Powell, 1 Bush. 489; Littletield v. Hodge, 6 Mich. 326 ; Speight v. Brock, Freeman, 389. * See Simon v. Huot, 8 Hun. 378 ; Hull v. Blake, 13 Mass. 153 ; Mercam v. Eundlett, 13 Pick. 515 ; Chase v. Houghton, 16 Vt. 594. § 460 garnishee's negotiable instruments. 266 eery process of Injunction, and arrest the negotiability of the note, where It was found to be In the hands of the defendant ; and the Court might enforce its surrender, so that it might control the circulation of the Instrument, and prevent it from deceivlno; others, the attachment of negotiable credits mlo-ht be rendered practical. But under the general attachment law, the Courts are not clothed with these extraordinary powers. The statutory character of the remedy cuts It off from the aid of the equitable intervention of Courts, where it is not made a branch of the equity jurisprudence of the State, and prevents Courts that reo;ard the o;eneral rules of construction from con- triving means to carry out its otherwise impossible provisions. In some of the States the Courts have held, that under no circumstances, in the absence of fraud, can the maker of a ne- gotiable note be held as garnishee, at the suit of creditors of the payee. ^ But this doctrine, though furnishing a rule emi- nently safe, goes beyond what we claim to be the general law upon the subject ; nor is It necessary to a just balance between the rights of parties to negotiable paper, and those of general creditors who seek to recover by process of attachment. The free negotiability of commercial paper may be preserved, with- out taking this extreme position. § 460. Circumstances that Destroy the Negotiability of In- struments, no Exception to the Rule. — It is sufficient for the full recognition of the doctrine stated,^ to hold that the maker of a negotiable Instrument shall not be charged as garnishee, except where, at the time of judgment, the instrument is the property of defendant, and can no longer be transferred free from equities or defenses that exist between the garnishee and defendant. This is a state of things which generally only exists, when, at the time judgment is rendered, the instrument is over- due, and Is known to be still in the hands of the defendant.^ But in a case pi'esentlng the unusual state of facts, that the notes executed by the garnishee were, for special reasons, still in 1 Hubbard v. Williams, 1 Minn. 54 ; Davis v. Powlette, 3 "Wis. 300 ; Greer v. Powell, 1 Bush, 489 ; Littlefield v. Hodge, 6 Mich. 326. ^ Supra, §458. 2 Mims V. West, 38 Ga, 18 ; Burton v. Wynne, 55 Ga. 615 ; Myers v. Beeman, 9 Ired. 116. 267 garnishee's negotiable instruments. § 460 his own control, and could not be transferred in the ordinary- course of business by the payee, it was held not in conflict with the rule to hold the party summoned, as though the notes had not been negotiable in form.^ Authorities that go the length of holding the maker liable to garnishment, except where he has received notice of the assignment of the instru- ment, cannot be regarded as conflicting, for the reason that they do not recognize the doctrine of the law merchant, which requires no notice to the maker of negotiable paper, in order to effect a complete transfer of the title thereto. They are . Ehler, 18 Pa. St. 388. 8 Adams v. Avery, 2 Pitts. 77; Hill v. Kroft, 29 Pa. St. 186 ; Day v. Zimmer- man, fi8 Pa. St. 72. 9 Slmler v. Bryson, Co N. C. 201 ; Myers v. Beeman, 9 Ired. 110 ; Ormond v. Moye, 11 Ired. SG-l ; Huff v. Mills, 7 Yerg. 42 ; Daniel v. Eawlings, 6 Humph. 403 ; Yarborougli v. Thompson, 3 Sm. & M. 291 ; 41 Am. Dec. 62(5 ; Thompson V. Shelby, 3 Sm. & M. 296. '-" Sheets V. Culver, 14 La. 449, 452 ; Durham v. Payne, 20 La. An. 195 ; Cross V. Hohlman, 15 Ark. 200. iiErwiu V. Commercial etc. Bank, 3 La. An. 186 ; 48 Am. Dec. 447; Kimball V. Plant, 14 La. 449 ; Burton v. Wynne, 55 Ga. 615. i-JuuLtion R. Co. v. Cleneay, 13 Ind. 101 ; "\Yy brants v. Rice, 3 Tex. 458; Shuler «. Bryson, 65 N. C. 201 ; Smith v. Blatchford, 2 Ind. 184 ; Cadwalader 2C9 garnishee's negotiable instruments. § 460 instrument has matured, so that it will no longer pass by in- dorsement, unaffected by the equities that may exist between the original parties. ^'^ The exemption of negotiable instruments from the operation of garnishment process, will be carried no farther than is nec- essary to protect the innocent indorsee, and at the same time enable the garnishee to avoid double liability. Hence, where a negotiable note was, by the holder, transferred to a bank as col- lateral security, and the maker being served with process in a suit against the payee who had so transferred it, notwithstand- ing the garnishment, paid the entire amount to the bank, he was held chargable for the difference between the amount so paid and the amount of the debt for which the note was pledged. ^^ In the Superior Court of New Yoi'k, it was held that where a bank issues a certified check to a depositor, payable to his order, and for an amount equal to the balance in favor of such depositor, the account was thereby balanced, and the bank was liable to any one who might become a hona fide holder of the check ; that the claim of the depositor could not be affected by garnishment served on the bank, and that though the depositor afterwards deposited the check and di'cw out money on it, the bank would not be liable, for the reason that the service of process of garnishment was prior to the deposit of the check, and would not reach such deposit.'^ In this case the negotiable instrument was cei'tainl}^ within the control of the maker when he was summoned as garnishee, and was clear- ly not current, and capable of being transferred by indorsement. Or else the debt had ceased to be evidenced by a negotiable V. Hartley, 17 Ind. 520 ; Stetson v. Cleneay, 14 Ind. 453 ; Scott v. Hill, 3 Mo. 88; 22 Am. Dec. 462 ; Daniel v. Eawlings, 6 Humph. 403 ; Turner v. Armstrong, 9 Yerg. 412 ; Walden v. Valiant, 15 Mo. 409 ; Thompson v. Shelby, 3 Sm. & M. 296. Contra, Quarles r. Porter, 12 Mo. 76 ; Huot v. Ely, 17 Fla. 775. 13 King r. Vance, 46 Ind. 246 ; Cleneay v. Junction E. Co., 26 Ind. 375 ; Greg- ory V. Higgins, 10 Cal. 339 ; Wilson i'. Albright, 2 G. Greene, 125 ; Commis- sioners V. Fox, Morris (la.), 48; McMillan v. Richards, 9 Cal. 418; Huff v. Mills, 7 Yerg. 42. See Moore v. Greene, 4 Humph. 299 ; Thompson v. Slielby, 3 Sm. & M. 290; Cruett v. Jenkins, 53 Md. 217, (overruling Somerville v. Brown, 5 Gill, 399 ; and Stuart v. West, 1 Har. & J. 536); McXeill v. Roach, 49 Miss. 436 ; Kauffman v. Jacobs, 49 la. 432 ; Durham v. Payne, 20 La. An. 145 ; Dan- iels V. Rawlings, 6 Humph. 403 ; Harney v. Ellis, 11 Sm. & M. 348. "Sargent v. Wood, 51 Vt. 597. i£>llill V. National Park Bank, 47 N. Y. Sup'r Ct. 302. § 461 garnishee's negotiable instruments. 270 instrument, and had again become a deposit account. It is called a "negotiable instrument" for one purpose, and a " de- posit" for another. But this case seems to have been before the Court of Appeals, where it was held, that service of gar- nishment on the maker would attach the credit due the defen- dant, notwithstanding the negotiability of the security by which it was evidenced. ^^ When the instrument is overdue when it is assigned, it ceases to be affected by the rules that govern negotiable paper.^'^ § 461. Conditional Garnishment of Payer of Negotiable Paper before Maturity. — Where the debt sought to be reached by garnishment is evidenced by a negotiable instrument, and it is still held that garnishment will lie before maturity of the instrument, it is in some of the States held subject to certain conditions, which are intended to preserve the rights of the in- dorsee for value, and at the same time protect the garnishee from being required to pay the same debt a second time. One of these, and the least effectual and satisfactory, is, that the in- dorsee, who has not been made a party to the garnishment proceeding, may arrest the payment of the judgment, or after payment recover the amount in an action against plaintiff.^ Another condition is, that the garnishment shall bind the party summoned, provided the defendant continues to hold the paper after service, until the same becomes due. This would neces- sarily leave the judgment suspended, so far as it can be made to operate effectually against the garnishee, until the maturity of the note, after which it will still depend upon an important fact to be ascertained, {. e., whether the defendant is still the holder of the instrument.^ While this is unquestionably fair, 60 far as the garnishee is concerned, the effectiveness of the garnishment would depend so lai'gely upon the acquiescence of the defendant, that it could hardly be regarded as a valuable remedy. 16 Bills V. Park Bank, 89 X. Y. 343. 17 See Post, § 467. 1 Quarles v. Porter, 12 Mo. 76. See also Calcord v. Dagget, 18 Mo. 557. Bat see Punkhouser v. How, 24 Mo. 44 ; Dickey v. Fox, 24 Mo. 217. Since these rulings, tlie attachment law of Missouri has been amended so as to dispense with the necessity of any such action by the indorsee. 2 Enos V. Tuttle, 3 Conn. 27. 271 garnishee's negotiable instruments. § 4G2 Even where the plaintiff, in order to protect the payer against the hazards of double payment, in consequence of an indorse- ment of negotiable jiaper, where it was uncertain whether the same would be found at maturity in the hands of defendant, offered to give security to indemnify the garnishee, the Court in South Carolina refused to give judgment for the plaintiff, for the reason, which seems good" and sufficient, that it would be too great a hardship to compel the party to pay the note, and i-esort to the indemnity in case he should be called upon in the future to pay It again. "^ One can see at a glance what burdens would be imposed upon the " disinterested stakehold- er," in case he were required to pay under such circumstances. He has contracted but one debt, for which he has already been forced into Court, when he would have willingly paid it at ma- turity. After maturity, and any time within the period of lim- itation, he may be called upon by one who professes to be a honafide holder to pay again, and before he can safely do so, may find it necessary to stand a second suit. After being twice sued, and paying both judgments, together with expenses and costs of suit, he must still bring another action, which, when decided in his favor, will probably only partially indem- nify him. § 462. Gamishmeiit where Instrument has been Fraudulent, ly Assigned. — Where it appears that the transfer of the nego- tiable instrument is a mere fraudulent contrivance to place it beyond the reach of creditors, no advantage can be gained by such indorsement, though It be before maturity, unless the note has subsequently passed to the hands of a honafide hold- er. Indeed, this seems rather a disadvantage to the payee, as where the rule that the payee cannot be charged as garnishee Is fully recognized, It Is nevertheless held, that when it is in the hands of a voluntary or fraudulent indorsee, the credit may be attached by garnishment of the maker. ^ And where debts ev- idenced by negotiable securities In the hands of defendant may be reached by garnishment. It is held that payment to one who is holding the security In bad faith, for the benefit of defend- SGaffney v. Bradford, 2 Bailey, 441. iClough V. Buck, 6 Neb. 343. § 463 garnishee's negotiable instruments. 272 ant, will not protect the obligor so paying the same after ser- vice of summons.^ So, where the maker of a promissory note served with summons in garnishment before the maturity of the note, takes up the same when due, by giving a new note which is negotiable, he will be charged as garnishee, even though the note given in renewal is still in circulation, and the gar- nishee does not know who owns it.^ In a case of this kind, the garnishee would occupy no better position than he would had he simply paid the note at maturity ; and the only ques- tion would be whether he was bound by the garnishment served when the original note was outstanding, and capable of being transferred by indorsement. It seems that where the note is found in the hands of the payee at maturity, he being the de- fendant, the service of process prior to maturity is held defec- tive, for the purpose of charging the garnishee in Alabama.* The fact of assignment, and its bona Jicles, when it appears by the answer, may be contested by plaintiff, and left to the jury.^ § 463. Effect upon Rights of Indorsees, of Notice of Gar- nishment. — Intimately connected with the question whether the indorsee is a holder of the negotiable instrument in good faith, is the question of notice. It may be taken as quite gen- erally true, where the garnishment will be effective against the defendant, so long as he holds the evidence of garnishee's indebtedness, whether the same be negotiable or not, that it will be equally binding upon a purchaser who takes the instru- ment with knowledge of the attachment, even though he be an indorsee for value. ^ In some of the cases, this doctrine may be implied from the language used in qualifying the state- ment, that the title of an indorsee acquired before maturity is absolute, provided such indorsee has no notice of the prior gar- nishment.^ But this notice, by which the indorsee who acquires title to the note before maturity may be effected, must be more 2 Bills V. Park Bank, 89 N. Y. 343, 8 Leslie v. Merrill, 58 Ala. 322. * Leslie v. Merrill, 58 Ala. 322. See Post, § 467. 6 Fortunes. State Bank, 4 Ala. 385. 1 Culver V. Parish, 21 Conn. 408. 2 Howe V. Ould, 28 Gratt. 1 ; Kieffer v. Ebler, 18 Pa. St. 388 ; QuarlesT. Por- ter, 1-2 Mo. 76 ; Cruett v. Jenkins, 53 Md. 217. 273 garnishee's negotiable instruments, § 463 certain antl convincing than mere constructive notice. Notice cannot be imputed to such an indorsee, as a conclusive pre- sumption. The doctrine of lis 2)endens does not apply to him, and lience he must have actual notice of the suit.^ This form of notice is probably farthest removed from notice which for distinction is termed actual, of any kind of constructive notice known to the law. The only fact upon which it rests is, that an action has been commenced, and process regularly served upon the defendant.* But there is another kind of notice vv^hich it has been held will affect the rights of indorsees for value before maturity, which, however, does not amount to actual notice. Tliis is " notice of facts sufficient to put a man of ordinary prudence upon inquiry,"^ The weight of authority, however, is decid- edly against holding the indorsee to be affected by anything so uncertain and hypothetical as this. " The indorsee for value cannot be affected by notice which depends upon a mere pre- sumption of law.^ But it must not be understood that the question of notice is to be arrived at only by positive, direct testimony. In many of the cases cited, the terms " actual no- tice," and " actual knowledge " are used interchangably ; but from this it must not be imagined that nothing short of abso- lute personal knowledge, such as would be necessary to qualify 'Day V. Zimmerman, 08 Pa. St. 72 ; Goodman v. Simonds, 2 How. 343 ; ISIims V. West, 38 Ga. 18 ; Winston v. Westfeldt, 22 Ala. 560 ; 58 Am. Dec. 278 ; Hill V. Kroft, 29 Pa. St. 186 ; Kellogg v. Fancher, 23 Wis. 21; Kieffer v. Eliler, 18 Pa. St. 388; County of Cass v. Gillett, 100 U. S. 585; County of Warren v. Mar- cy, 97 U. S. 106 ; Murray v. Lylburn, 2 Johns Ch. 441 ; Mayberry v. Morris, 62 Ala. 113 ; Be Great Western Tel. Co., 5 Biss. 363 ; Leitch v. Wells, 48 N. Y. 585 ; Durant v. Iowa Co., 1 Woolw. 69 ; Stone v. Elliott, 11 Ohio St. 252. * Wade on Notice, § 337, et seq., and cases cited. 5 Gill V. Cubitt, 3 Barn. & Cres. 466 ; Pringle v. Phillips, 5 Sandf. 157; Ham- ilton V. Marks, 52 Mo. 78 ; 14 Am. Rep. 391. 6 Swift V. Tyson, 16 Pet. 1 ; Goodman v. Simonds, 20 How. 343 ; Bank of Pittsburgh v. Neal, 22 How. 96 ; Murray v. Lardner, 2 Wall. 110 ; Magee v. Badger, 34 N. Y. 247 ; Seybel v. National etc. Bank, 54 N. Y. 288 ; 13 Am. Rep. 58S ; Phelan v. Moss, 67 Pa. St. 59 ; 5 Am. Rep. 402 ; Lake v. Reed, 29 Iowa, 258 ; 4 Am. Rep. 209 ; Worcester Co. Bank v. Dorchester Bank, 10 Cush. 488 ; Brush V. Scribner, 11 Conn. 388 ; Woolfolk v. Bank of America, 10 Bu^h, 504 ; Hortou V. Bayne, 52 Mo. 531 ; Merrick v. Phillips, 58 Mo. 436 ; Hamilton v. Marks, 63 Mo. 1G7 ; Morehead v. Gilmore, 77 Pa. St. 118 ; 18 Am. Rep. 435 ; Backhouse v. Harrison, 5 Barn. & Ad. 1098 ; Crook v. Jadis, 5 Barn. & Ad. 909 ; Goodman v. Harvey, 4 Ad. & El. 870 ; Trieber v. Commercial Bank etc.> SI Ark. 128 ; Weit v. Thayer, 118 Mass. 473 ; Swall v. Clarke, 51 Cal. 227. II. Attach.— 18. § 464 garnishee's negotiable instruments. 274 the indorsee to testify to the pendency of the garnishment pro- ceeding, would suffice to affect the security in his hands. When knowledrje, directly proven, will have this effect, notice which falls short of absolute knowledge will be equally effect- ive. There is, however, a difference in the meaning of these terras, which, under certain circumstances, may require a dif- ference in their application.^ And whether it be a question of knowledge or one of notice, which is to be determined, it may be arrived at by inference, but it must be an inference of fact, and not of law. If from other facts admitted or directly proved, the triers of th^ fact believe that the indorsee knew or was informed that an attachment suit was pending in which the payer of the note or bill was summoned as garnishee in respect to this particular debt, the finding of the fact will be supported. It is a mere question of evidence. When it is left where it be- longs, as a fact to be established, any evidence thereof, how- ever circumstantial or inferential it may be, will suffice, pro- vided it be satisfactory to the minds of the Court or jury.^ There is a logical distinction between hnowledge of facts suf- ficient to put a man of ordinary prudence upon inquiry, and knowledge of facts sufficient to put a particular person upon in- quiry, especially when the former is appealed to as conclusive evidence that the party in question was a man of ordinary prudence ; that as a matter of fact, he was put upon inquiry ; that he inquired, and obtained the knowledge necessary to charge him as a purchaser in bad faith ; while the latter is on- ly taken as evidence tending to prove the ultimate fact of no- tice, or a willful avoidance of knowledge of the fact in ques- tion, which is the same in effect as notice.^ § 464. By what Law the Negotiability of the Instrument is to be Determined. — According to the law merchant, all notes and bills containing a direct promise to pay a certain sum at a ■^ "Wade on Notice, §§ 3, 88, and cases cited. 8 Packwood v. Gridley, 39 111. 388 ; Buckner v. Jones, 1 Mo. App. 538 ; Ed- wards V. Thomas, 2 Mo. App. 282 ; Clerks' Sav. Bank v. Thomas, 1 Mo. App. 367. 9 Seybel v. National etc. Bank, 54 N. Y. 288 ; 13 Am. Rep. 583 ; Ayer v. Hutchins, 4 Mass. 370 ; 3 Am. Dec. 232 ; Hall v. Hale, 8 Conn. 336 j Howry v. Eppinger, 34 Micli. 29. 275 gaknishee's negotiable instruments. § 464 time which i.s fixed by the terms of the contract, or may be fixed by demand or acceptance, and which ai'C made payable to the " order" of the payee, or to "bearer," arc regarded as negotiable.^ But this may be regulated by statute of the dif- ferent States, and often is so regulated, so that an instrument whicli is negotiable in one State may not be negotiable in another. The question as to what law will determine the ne- gotiability of a particular instrument arises where it is issued or made payable in one State, and is sought to be enforced in anotlier. " Who may sue, is generally a question of the reme- dy. * * * And as a general rule, if allowed by the lex fori, sen assignee may sue In his own name, although he cannot so sue at the place of assignment.^ And if not allowed by the lex fori, he cannot sue in his own name, although he might do so at the place of assignment.^ But we think this doctrine should not be pushed farther than to indicate the mere nominal parties to the suit, when it Is purely a question of remedy. Thus, if a note were non-negotiable In Virginia, and could not be there indorsed or assigned, yet If negotiable and actually indorsed in Kentucky so as to completely vest title In the Indorsee, the holder would then have an absolute right to recover the amount, and the lex loci contracUis should govern." ^ It is also laid down by the author of the foregoing quotation, and sup- ported by authority, that the question of whether a suit may be brought in the name of the holder of a note payable to bearer, will generally be determined In the negative in a State whose laws require Indorsement, even where the lex loci au- thorized Its transfer by delivery.^ But in respect to this pro- ceeding, it has been decided that If the Instrument sued on were negotiable accordino; to the law of the State where it was iSee 1 Dan'l Negot. Inst., § 1 a; Odell v. Gray, 15 Mo. 342; 55 Am. Dec. 147; International Bankr. German Bank, 71 Mo. 183; 36 Am. Rep. 463. 2 Citing Fors u. Nutting, 14 Gray, 484; Pearsall v. Dwight, 2 Mass. 84; 3 Am. Dec. 35. 3 Fisk V. Brackett, 32 Vt. 798; Folcott v. Ogden, 1 H. Bl. 135; Wliarton Confl. Laws, § 735; Pars. N. & B. 3G8. 4 Daniel on Negot. Inst., § 883. Citing Story on Bills, § 173; Confl. Laws, 354; Trimbey u. Vigmer, 1 Bing. N. C. 159; O'Callaghan v. Tliomoud, 3 Taunt. 82; Lee v. Selleck, .33 N. Y. 615; 32 Barb. 522. 5 Daniel on Negot. Inst., § 904. Citing Roosa v. Crist, 17 111. 450; Harper v. Butler, 2 Pet. 239. § 464 garnishee's negotiable instruments. 276 made or negotiated, tlie rules applicable to negotiable instru- ments would be applied to it, though it were non-negotiable in the State where the maker was summoned as garnishee.^ Where a note executed in Pennsylvania was not negotiable in that State, but was held to be negotiable under the law of the State of Xew Yoi'k, where it was delivered to the payee, the question of its negotiability was settled according to the laws of the latter State, for the reason that it there went into effect; and because it was negotiable, the maker could not be held as garnishee of the payeeJ But the rulings are not uniform, in recognizing the control- ling influence of the law of the place where the contract was made, as it affects the negotiability of the instrument. Xotes are sometimes made payable in a State other than the one in which they are formally executed ; in which event it is held that the law of the place where the instrument is made payable governs the question of negotiability.^ Where no place of payment is specifically mentioned in the contract, it will be re- garded as pav^able in the State where it was made, and for this reason, such notes would be held negotiable or not accord- to the lex loci contractus. Hence, where garnishment was served on the maker in Indiana, and the note was executed and was payable in Ohio, where it was negotiable, it was held that garnishment would not lie.^ 8 Baylies r. Houghton, 15 Vt. 626. 7 Ludlow V. Bingham, 4 Dallas, 47; Green v, Gillet, 5 Dajt, 485. 8 Emerson v. Partridge, 27 Vt. 8. » Smith V. Blatchford, 2 Ind. 184. CHAPTER XXXVII. PRIOR ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS AND CONTRACTS AFFECTING HIS LIABILITY. § 465. Equitable assignment of clioses in action generally. § 466. Assignment of instruments which are not negotiable. § 467. Overdue commercial paper. § 468. Assignment of debts evidenced by writing. § 469. Assignment of open accounts, etc. § 470. Assignment of future indebtedness. § 471. The importance to tlie debtor of notice of the assignment. § 472. When and by whom notice should be given. § 473. Garnishee's liability affected by his contract relations with defendant. § 474. Garnishee's indebtedness affected by contracts with third petsons. § 475. The consideration of contracts with third persons. § 476. The contract must be with party capable of contracting in relation to the subject matter. § 477. Garnishee's liability as surety or guarantor of defendant. § 478. "Where defendant holds the claim against garnishee in a representative capacity. § 470. Fraudulent assignments and contracts. § 480. The law that determines the validity of contracts or assignments. § 481. Duty of the garnisliee to disclose his rights acquired by prior assign- ments or contracts. § 482. The form and substance of the assignment or other contract, by which garnishee's liability may be affected. § 465. Equitable Assignments of Choses in Action, generally. — In a former chapter the effect upon the garnishee's liability of the assignment of specific property in his possession is considered.^ In discussing the effect of an assignment of the debt owing by the garnishee, some of tlie same ground w.ill necessarily be gone over. In order that the liability may be affected in any degree whatever, it is necessary that it sliould take place prior to the service of garnishment, except where the debt is evi- denced by a negotiable instrument. The purchaser takes only such title to the chose in action as the seller had at his dispos al, and holds it subject to all the equities subsisting between the original parties at the date of the transfer. If the debtor iAnte, Ch. XXXTTT. § 465 ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS. 278 has been summoned as garnishee of his original creditor prior to the transfer, the plaintiff will be entitled to judgment, whether the assignee had notice of the attachment or not.^ But when the assignment is made prior to the garnishment, the liability of the garnishee will be affected, when he has no- tice of the transfer, and the extent to which such liability will be affected by notice, and when such notice must be given, will be noticed in a subsequent section.^ It is so well understood that at common law choses in action are not assignable, so as to give the assignee a right of action in his own name, that it need only be mentioned here. The assignment could only be made with the assent of the debtor. But Courts of Equity were so far in advance of the legislature in removing this ob- struction to the transfer of title to property of this kind, that in order to give effect to such assignments they held them to authorize the assignees to use the name of the assignors, in maintaining actions against the debtors.^ The statutes of most of the States have dispensed with the necessity for the substi- tution of names, by allowing actions to be brought in all cases in the names of the real parties in interest ; but still the trans- fer of personal rights, or property not in possession of the sel- ler, is called equitable assignment. The rights of the assignee, however, are fully protected against the claims of subsequent attachers ; whether it be claimed under the old equitable doc- trine, and can only be asserted in the name of the assignor, or by the aid of the statute, the assignor has a right of action in his own name.^ 2 Stevens V. Pugh, 12 Iowa, 430; Sanborn v. Little, 3 N. H. 359 ; Howe v. Jones, 57 Iowa, 130 ; Baker v. Moody, 1 Ala. 315 ; Dore v. Dawson, 6 Ala. 712. '■^ Infra, § 471. * Blackstone's explanation of a chose in action embraces only such rights as arise upon contract, exjaress or implied.— 2 Bl. Com. 397. But later authorities recognize rights of action which spring from torts, as property which is capa- ble of being equitably assigned. — Gillet v. Fairchild, 4 Den. 80 ; North v. Tur- ner, 9 Serg. & R. 244 ; Jordan v. Gillen, 44 N. H. 424 ; Griffin v. Wilcox, 21 Ind. 370 ; Final v. Backus, 18 Mich. 218 ; More v. Massini, 32 Gal. 59 ; McKee v. Judd, 12 N. Y. 622 : Rice v. Stone, 1 Allen. 5()6 ; Tome v. Dubois, 6 Wall, 548. 5 Norton v. Piscataqua Ins. Co., Ill Mass. 532 ; Burrows v. Glover, 10(i Mass. 324 ; Connoly v. Cheesborough, 21 Ala. 166 ; Brackett v. Blake, 7 Met. 33c ; Patten v. Wilson, 34 Pa. St. 299 ; Insurance Co. of Pa. r. Plioenix Ins. Co., 71 Pa. St. 31 ; Hudson v. McConnell, 12 111. 170 ; Carr v. Waugh, 2« 111. 418 ; Lam. kin V. Phillips, 9 Porter, 98 ; Forepaugh v, Ajipold, 17 B. Mon. 625 ; Dix v. 279 ASSIGNMFNT OF GARNISHEE'S INDEBTEDNESS. § 4G6 And it is immaterial what form the transfer of interest may take, provided it be effectual for the purpose intended between the immediate parties to the transaction, which is the relin- quishment of the claim by the assignor to the assignee. If the party claiming the interest in the chose in action, by virtue of a prior subrogation to the rights of the party originally en- titled, occupies a position which is the legal equivalent of that occupied by an assignee in respect to the debt, his interests will be protected.** They will be fully recognized in the con- test between the assignee as an intervening claimant, and the plaintiff in attachinent, and have been maintained by a direct proceeding on the part of the assignee against the plaintiff, who had succeeded in obtaining judgment against the gar- nishee in a proceeding in which the rights of the assignee were not adjudicated.'^ Where the fact of the prior transfer is dis- closed in the answer, no such adjudication can take place so as to bind the assignee, unless he has been notified to appear and defend his Interest. He is still entitled to prosecute his action against the debtor, who will not be protected by the ludgment against him as garnishee.^ The assi. Guyon,57Ala. Ill; Tabor w. VanVranken, 39Micb. 793; Tracy V. McCarty, 12 R. I. 1G8. 9 Giles V. Ash, 123 Mass. 353. § 465 ASSIGN3IEXT OF GARNISHEE'S IXDEBTEDXESS. 280 foi' the reason that it was an equitable assignment of the de- mand. ''^ Nevertheless, the question .of consideration for as- signments of tliis kind may be of leading importance in de- termining whether they are fraudulent or not.^^ It has also been held, that the assignment of a chose in action may be ef- fected by an ordinary bill of exchange or order, whether the same has been accepted or not, provided it be drawn for the entire sura due the drawer ;^^ but it is held otherwise, where it is only for a portion of the debt.^^ If the draft or order is only drawn for a portion of the indebtedness, the sum em- braced therein is not regarded as set over, so as to give the payee a right of action against the drawee, until the latter has accepted the bill,'* and for this reason it is held not to be an equitable assignment pro tanto.^^ The reason assigned by Mr. Justice Story for this distinction was that : " A creditor shall not be permitted to split up a single cause of action into many actions, without the consent of his debtor, since it may subject him to many embarrassments and responsibilities not contemplated in his original contract. lie has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken into fragments. "^^ The insufficiency of this reason is clearly apparent, where the order for a part of the indebtedness is in the form of a check drawn upon a deposit account at a bank, as the account is kept in that form for the express purpose of paying it out in that manner. It is clearly what both the drawer and drawee expect, and the money would not have been placed in the latter's hands upon any other understand- ing. There is, however, some conflict of authority upon this question which will be noticed hereafter.^''^ 1" Adams v. Robinson, 1 Pick. 461; Conway v. Cutting, 51 N. H. 407; Curie V. St. Louis P. T. Co., 12 Mo. 578. 11 Infra, § 480. 12 Gibson v. Cooke, 20 Pick. 15; 32 Am. Dec. 194; Robins v. Bacon, 3 Greenl. 349; Roberts v. Austin, 26 Iowa, 315; Mandeville v. Welch, 5 Whart. 277. 13 See Infra. § 482. "Brill V. Tuttle, 81 X. Y. 457; 37 Am. Rep. 513; Christmas v. Russell, 14 "Wall. 84; Chase v. Alexander, 6 Mo. App. 506. 15 Bank of Commerce v. Bogy, 44 Mo. 18. 16 Mandeville v. Welch, 5 \\Tieat. 277. See also Weinstockr. Bellwood, 12 Bush. 139; Gibson v. Finly, 4 Md. Ch. 75; Paydras v. Delamere, 13 La. 98. 1' Iii/ra, § 482. 281 ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS. § 4G6 But in Cushman v. Haynes,^^ it is held that a bill of ex- change drawn payable to the drawer or order under certain conditions, could not operate as an equitable assignment. § 4G6. Assignment of Instruments wMcli are Not Negoti. able. — The manner in which an evidence of debt is transfer- able, so as to divest the rights of the assignor, will not deter- mine the question of their negotiability, according to the strict commercial classification. " An instrument is called nefrotia- ble when the legal title to the instrument itself, and to the whole amount of money expressed upon its face, may be trans- ferred from one to another by indorsement and delivery by the holder, or by delivery alone. "^ But the same learned author whose language is quoted, says in the following section of his treatise : " But in a strictly commercial classification, and as the term is technically usedf it applies only to those instru- ments which, like bills of exchange, not only carry the le^al title with them by indorsement or delivery, but carry as well, when transferred before maturity, the right of the transferee to demand the full amount which their faces call for. ' Asslo-n- able ' is the more appropriate term to describe bonds and ordin- ary notes, or notes of hand as they are most commonly called, as 'negotiable' is the more fitting term to describe the peculiar instruments of commerce."^ The liability of a garnishee as a party to an instrument technically called negotiable, has al- ready been considered.^ It is the class of instruments trans- ferable in this manner, which do not bear upon their face the direction to pay, or the promise to pay, to the payee's " order," or to the " bearer," that ai'e considered herein. Notes and bills of this class are choses in action, and are as- signable by the law merchant, which may. be called the com- mon law of commercial paper, by indorsement and delivery, or by delivery alone.* In this respect alone, they occupy a 18 20 Pick. 132. 1 Daniel on Xegot. Inst., § 1. 2 Daniel on Negot. Inst., § 1 a. 3 Ante, Ch. XXXVI. * P.rown V. Hull, 33 Gratt.28 ; McSherry, v. Brooks, 46 Md. 118 ; Baxter v. Little, G Mete. (Mass.) 7 ; 39 Am. Dec. 707 ; Powers v. Neeson, 19 Mo. 190; Britton v. Bishop, 11 Vt. 70 : National Bank v. Texas, 20 Wall. 72. § 4G7 ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS. 282 different position from other written or unwritten choses in ac- tion, as respects tlie liability of the garnishee who is the payer. If the garnishee, when summoned as such, has given the defen- dant a non-negotiable note or bond, or has accepted a non-ne- gotiable bill, and has no knowledge or information to the effect that it has been transferred in the mean time, he may answer accordinor to his original indebtedness ; and if the matter stands thus until the final hearing, may be charged as garnishee, and the judgment rendered against him will be a complete de- fense to a subsequent action by one who holds the instrument by assignment either before or after maturity.^ And it is also held, that the maker of a promissory note of this kind may be garnished before the same is due, with like effect, barring the time when payment can be enforced against him, as though the note had reached maturity when he was summoned.^ But assignment prior to garnishjpient gives the assignee a per- fect right to payment of the sum due, at maturity.'^ § 467. Over-due Commercial Paper. — Notes and bills nego- tiable in form, that have been dishonored by non-payment at maturity, are still assignable by indorsement.^ According to the most general signification of the term, such paper is still " negotiable "; but, according to the commercial understanding of what is meant, as given in the next preceding section, it is placed upon the same footing as other instruments, assignable by endorsement or delivery, but not expressly made so by the instrument itself. The transferee of a negotiable bill or note, who receives the same after maturity, takes nothing but the actual title of the party from whom he receives it, and takes that subject to all equities subsisting between the maker and any prior party, by which the instrument was affected in the 5 King V. Vance, 46 Ind. 246 ; Canaday r. Detrick, G3 Ind. 485 ; Dore v. Daw- son, 6 Ala. 712 ; Covert v. Nelson, 8 Blackf . 265 ; Robinson v. Mitchell, 1 Harr. 365 ; Clark v. King, 2 Mass. 524 ; Shelter v. Thomas, 16 Ind. 223. 6 King V. Vance, 46 Ind. 246. ' Newell V. Adams, 1 D. Chipman, 346 ; Thompson v. Shelby, 3 Sm. & M. 296 ; Wilhelmi v. Haffner, 52 111. 222 ; Walden v. Valient, 15 Mo. 409 ; C. & St. L. R. Co. V. Killenburg, 28 111. 295 ; Wybrants v. Rice, 3 Tex. 458 ; Foster V. Walker, 2 Ala. 177 ; Foster v. Sinker, 4 Mass. 450 ; Fay v. Sears, 111 Mass. 154. 1 Davis V. Miller, 14 Gratt. 1; Longu. Crawford, 18 Md.320; Morgner v. Bige- low, 3 Mo. App. 592; Graves v. Kay, 3 Barn & Ad. 313. 283 ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS. § 468 hands of the transferer.^ This applies to all paper negotiable on its face, regardless of whether the amount due thereon has ever been demanded or not, or the bill has ever been presented for acceptance, provided the day of payment has passed. And it is also applied to cases of bills of exchange, which have been dishonored by a refusal to accept, where the assignee has notice of such refusal.^ The question for consideration here is : Plow is the liability of the maker or drawer affected by a prior assignment of the instrument, when he is summoned at the suit of the payee's creditor ? If the garnishee knows that it was dishonored in the hands of the payee, he may an- swer as though the paper were originally non-negotiable, pro- vided he is not informed of the assignment.^ § 468. Assignment of Debts Evidenced by Writing. — Where the chose in action assigned is a written acknowledg- ment of indebtedness, there is every reason for giving it a standing somewhat peculiar to the class to which it belongs.^ The debtor, in making payment either before or after the ma- turity of the obligation, will naturally expect to find this evi- dence of his indebtedness in the hands of his ci'editor, where it would not ordinarily be if it had been assigned. But even this is not an invariable rule, as the creditor may transfer an interest in a debt evidenced by the debtor's written promise, so as to make the assignment binding upon himself, without parting with the possession of the original instrument.^ Nev- ertheless, when such an obligation is still in the hands of the payee, the payer may act upon the Vjelief that there has been no assignment.'^ But the question remains as to what the debt- 2 Daniel on Negot. lust., § 724, a, Citing Texas v. Hardenburg, 10 Wall. 68; Murray v. Lardner, 2 Wall. 110; Smith v. Foley, 6 W;ill. 492; Arents v. Com- monwealth, 18 Gratt. 750; Darling r. Osborne, 51 Vt. 130; Davis v. Miller, 14 Gratt. 1; Clark v. Deadrick, 31 Md. 148; Livermore v. Blood, 40 M<>. 48; Brain- ard K. Reavis, 2 Mo. App. 490; Thomas v. Kinsey, 8 Ga. 421; Barker v. Valen- tine, 10 Gray, 341: Flint v. Flint, 6 Allen, 34: Diamond v. Harris, 33 Tex. 634; Simpson v. Hall, 47 Conn. 418; Scott v. First Nat. Bank, 71 Ind. 319; William- son V. Doby, 36 Ark. 689. 8 0'Keefe v. Dunn, 6 Taunt. 305; Whitehead v. Walker, 11 L. & J. Exch. 168; Bartlett v. Benson, 14 Mees. & W. 733. 4 Story on Prom. Notes, § 190. 1 Balderston v. Monroe, 2 Cranch C. C. 623. 2Ducarse v. Keyser, 28 La. 419 ; McGee v. Riddlesbarger, 39 Mo. 395. 'Davenport v. Woodbridge, 8 Greenl. 17. § 469 ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS. 284 or may do in respect to indebtedness so evidenced, when he does not know at the time that his original creditor is still in })Ossession of the written obligation, and has no positive infor- niation of its assignment. Might it not be held, that before he could safely pay anything to his original creditor it would be his duty, in the exercise of ordinary diligence, to require the payee to exhibit the instrument? When summoned as garnishee, at the suit of a creditor of his payee, he having no notice of a prior assignment, it would seem that he should answer fully as to how his indebtedness was evidenced, and so leave the way open to inquiry as to whether it had been assigned prior to garnishment. And if he should be in possession of knowledge or information that his creditor had parted with the possession of the written obliga- tion, he could not with safety to himself withhold information of this fact.^ § 469. Assignment of Open Accounts, etc. — The transfer of a claim which is evidenced by no written acknowledgment is as complete between the parties when the consideration is paid, and the assignor sets over the claim to the assignee, as it is when the subject of transfer is a note, bond or bill. Other formalities may be necessary, in order to give the assignee a right of action directly against the debtor.^ The nature of the subject is extremely difficult of delivery, so as to make the transaction complete, as between the parties, witliout a written transfer. But any writing intended to have tliis effect, and which is sufficiently expressive of such intent to enable a ])er- son of ordinary understanding to gather its purport from its contents, would be sufficient. A power of attorney authoriz- ing the collection and payment of the debt to the assignee has been held sufficient, for the reason that it amounted in effect to an assignment.^ To the same effect would be a written au- thorization of the attorney to collect and appropriate the mon- * See Fay v. Sears, 111 Mass. 154 ; Supra, § 466. 1 Dix V. Cobb, 4 Mass. 508 ; Stevens v. Stevens, 1 Aslim. 190 ; Stockton v. Hall, Hard. (Ky.) 160 ; Gardner v. Laehlan, 4 Mylne & Cr. 129 ; Davenport v. "Woodbridge, 8 Me. 17 ; Johnson r. Bloodgood, IJohns. Cas. 51 ; 1 Am. Dec. 93 ; Beau v. Simpson, 16 Me. 49 ; Anderson v. Van Allen, 12 Johns. 343. 2 Watson V. Bogaley, 12 Pa. St. 164 ; 51 Am. Dec. 595. 285 ASSIGNMENT OF GARNiShee's INDEBTEDNESS. § 470 ey to his own use.^ Where the account is made out, whether from the creditor's books or otherwise, and an order or written direction to the debtor to pay the same to the assignee, the as- signment will be held complete.'* Such would, in general, be the effect of any order on the debtor to pay the entire amount of the indebtedness, to the assignee. ^ The transfer of interest may also be effected by a verbal direction to the debtor to pay the amount to the assignee, provided the latter assent to the arrangement.^ The assent of the assignee is essential, though it need not always be shown to have been expressly given. If he is present, and hears the direction given without objection, he may be presumed to have assented to the assignment.^ A majority of the cases contain the additional ingredient of the debtor's assent to the assignment.^ But this hardly seems es- sential. Certainly, he need not assent in express terms.^ The most important matter that concerns the debtor is, that he shall be informed of the assignment. His dissent certainly will not be allowed to control the matter, unless by the terms of the contract there is a positive restriction on the right of the creditor to assign the credit, without the knowledge and con- sent of the obligor. § 470. Assignment of Future Indebtedness. — The assign- ment will be as effectual, when the indebtedness is not yet due, as though it were payable at the time of the transfer,, without reo;ard to the nature of the claim, or the manner in which it is evidenced.^ But when the debt has not yet ac- 8 Gerrisli v. Sweetser, 4 Pick. 374 ; People v. Tioga C. P., 19 Wend. 73; "Weed V. Jewelt, 2 ^[etc. (Mass ) 008. * Robbins v. Bacon, 3 Me. 346 ; Conway v. Cutting, 51 N. H. 407. 5 .Johnson V. Thayer, 17 Me. 401 ; Adams v. Robinson, 1 Pick. 461. 6 Porter r. Bullard, 26 Me. 448 ; Noyes v. Brown, 33 Vt. 431 ; Putney v. Farnh;iui, 27 Wis. 187 ; Balliet v. Scott, 32 Wis. 187 ; Lovely v. Caldwell, 4 Ala. 084. 7 Lovely i'. Caldwell, 4 Ala. 684. 8 Black V. Paul, 10 Mo. 103 ; 44 Am. Dec. 353 ; Rudd v. Paine, 2 Cranch 0. C. 9 ; Hutcluns »;. Watts, 35 Vt. 360 ; Xewby v. Hill, 2 Met. (Ky.) 530 ; Parton V. Griffin, 72 N. C 362. 9 Lovely v. Caldwell, 4 Ala. 684. 1 Of course, it will be understood that the right to attach by garnishment a debt not due, will not hasten the maturity of the obligation. Wlien the con- tract of the party summoned is for a credit for a specific time, the stipulated period must elapse before the garnishee can be required to pay. But see, George v. Rolls County, 3 McCreary C. C. 181; Infra, § 473. § 470 ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS. 286 crucd, but depends for Its existence upon the completion of an executory contract, of which the contemplated indebtedness is the consideration, its assignability is not a mattter of course. A mere possibility of future indebtedness cannot be transferred by assignment, so as to give the assignee superior rights to those of a creditor attaching by garnishment, after the fulfill- ment of the contract has created the debt. Thus, where a party, in anticipation of securing a contract, made a written assignment of the sums to be realized therefrom, it was held that nothing passed by the assignment, as against a subsequent attaching creditor, beyond what was due at the date of the as- signment.^ But where the assignor is regularly employed, not only for the present, but for the future, his wages due and to become due for services to be rendered while engaged In such employment may be assigned, and the assignee will take precedence of subsequent attaching creditors.^ Thus, where one was employed by a municipal corporation, and while so employed, but before the services were rendered, he drew an order for the full amount of his compensation in favor of the assignee, which order was accepted by the mayor of the cor- poration, the assignment was held complete, and the corpora- tion could not be charged as garnishee in respect to the amount of the agreed compensation, after the services of the employee had been rendered.* When the indebtedness depends upon the fulfillment of a contract or employment which the assign- or has already entered into, or in which he Is engaged at the time of the transfer, the objection of uncertainty seems to be sufficiently overcome to admit of the assignment of the debt to be created. But when to this element of doubt is added the uncertainty of there being any actual contract or employ- ment, the Courts are Inclined to regard the possible indebted- ness as too uncertain to become the subject of a valid assign- 2 Mulhall V. Quinn, 1 Gray, 105; Kane v. Clough, 36 Mich. 436; 24 Am. Eep. •599. 3 Kane v. Clougli, 36 Mich. 436; 24 Am. Rep. 599; "Weed v. Jewett, 2 Met. Mass. 608; Hartley v. Tapley, 2 Gray. 565; Van Saphorst v. Pearce, 4 Mass. 258; Emery v. Lawrence, 8 Cash. 151; Johnson v. Pace, 78 111. 143. 4 Payne v. Mobile. 4 Ala. 333; 37 Am. Dec. 744. See also Taylor v. Lynch, 5 Gray, 49; Garland v. Harrington, 51 N. H. 409; Lannan v. Smith, 7 Gray, 150; Tucker v. Marsteller, 1 Cranch C. C. 254; Wallace v. Walter Haywood etc. Co., 16 Gray, 209; Cahill v. Bigelow, 18 Pick. 369. 287 ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS. § 471 nient. Hence, where a janitor of a public school building made an assignment of wages to be earned in the future, it was held ineffectual, as against the process of garnishment, to pass the title to wages earned under a subsequent appoint- ment, for which there was no agreement when the assignment was made.^ It seems also to be held necessary, that to render an assign- ment of wages to be earned in the future valid as security for future advances, the amount of such advances should be spec- ified. This is the inference drawn from the ruling in War- ren V. Sullivan,*^ where it was decided that where the defend- ant had executed an assignment of the wages due, and to be- come due, for a certain term from his employer, as security for goods already furnished, and to be furnished, by the gar- nishee from time to time during the term of such employment, but to no specified amount, the excess due from the garnishee at the time of service of the writ, over the amount due from the defendant at the date of assignment, could be held by pro- cess of garnishment. Where goods are bargained for, it is held that the transac- tion is not complete, so as to create indebtedness, until the goods are delivered to the purchaser, and for this reason the bargainee will not be affected by service of summons in gar- nishment prior to such delivery ; nor does such service become effectual by the subsequent delivery of the goods.*" But, under the principle that allows the assignment of future in- debtedness, it would seem that an assignment of indebtedness that would spring from a sale which at the time of the trans- fer had only reached the stage of a bargain, would be pro- tected as against the subsequent garnishment of the debtor.^ § 471. The Importance to the Debtor of Notice of the As- signment. — The purpose subserved by giving notice to the 6 Eagan v. Luby, 133 Mass. 543. 6 123 Mass. 283. ■? Hitchcock V. Miller, 48 IMich. G03. See Hopson v. Dinan, 48 Mich. 612. * In Massachusetts, there is a statute requiring the assignment of future earnings, to be effectual against garnishment, to be recorded; and it is held that board furnished to sailors by agreement with a third person, comes with- in tlie meaning of tliis statute. — Jason v, Antone, 131 Mass. 534; Mansard v. Daily, 114 Mass. 408. § 471 ASSIGNMENT OF GARNISHEE'S INDEBTEDNESS. 288 debtor, of the assignment of a chose In action, is to impose up- on him the obligation to pay to the assignee instead of to his original creditor.^ After receiving notice, the debtor cannot discharge any portion of his indebtedness, nor acquire a rio-ht that will be a valid set-ofP or defense thereto, as against the assignor .2 Prior to such notice, however, although the assign- ment has been made, the debtor will be protected in makin;s occurs when the garnish- ment is of a debt due by the plaintiff to the defendant. Where a proceeding of this kind Avas instituted in the Supreme Court of New York, after which the defendant broujxht suit against the attachment plaintiff in the United States Circuit Court, to which defendants pleaded their prior garnishment of the debt, such plea was held bad on demurrer.^^ § 501. Prior Garnishment as Ground for Continuance of Sub- sequent Suit, or Stay of Execution. — Another method which is quite as effective to accomplish the purpose of a plea in abate- ment, and one which for some reasons may fairly be regarded as preferable, is that of suspending all proceedings in the ac- tion as soon as the pendency of the prior garnishment is called to the attention of the Court. The principal objection to the plea in abatement is that it compels the plaintiff to commence his action de novo.) upon the bare possibility that the garnishee will be charged. Upon the other hand, it may be said that the defendant in attachment, knowing the debt to be attached, is in the wronfj when he commences an action against his debt- or for the demand embraced in the pending attachment suit. But this is not true from every conceivable point of view. The debtor who is summoned as garnishee may be inclined to re- sist the demand, and the attachment defendant may not be prepared to admit the justico of the plaintiff's claim. In case the principal suit is defeated on the merits, the defendant may have lost decided advantages because of his inability to main- tain an action against his debtor pending the garnishment pro- ceeding. No one is Injured by his bringing the suit, provided It is not allowed to Interfere with the prior attachment ; and at the same time the garnishee Is amply protected against the second judgment. This is accomplished by continuing the second case, or staying the execution until the determination of the attachment suit.^ In McKeon v. McDermott,^ one of the 11 New England Screw Co. v. Bliven, 3 Blatch. 240. 1 Crawford t). Slade, 9 Ala. 887; 44 Am. Dec. 463; Piersonw, McCaliill, 21 Cal. 123. a 22 Cal. 667. § 501 ErFECT OF GARNISHMENT 350 errors assigned was the action of the Court in sustaining a de- murrer to defendant's answer, setting up as a defense to the action the pendency of a suit in which defendant had been garnished. Crocker, J., in delivering the opinion, says : " There was no error in this action of the Court. The prop- er course in this case was for the defendant to set up these facts in an affidavit, and move the Court for a stay of proceed- ings in this action, until the proceedings in the action brought by the attaching creditor should be disposed of. He would have been entitled to relief in that mode." In another case decided by the same Court, the reason given for preferring sus- pension to abatement is, that if the mere pendency of the gar- nishee worked a disability to sue, the plaintiff might be un- reasonably delayed, and by one or more collusive proceedings the Statute of Limitations might bar the claim.^ The manner and mode of taking advantage of the pendency of the garnish- ment must depend upon the stage of the proceedings in the subsequent suit, at which it is brought to the notice of the Court. In Massachusetts, the method adopted to save the garnishee's rights, without abating the subsequent writ, when the objection was raised prior to judgment, was to continue the case while the garnishment process was pending.* The same result is attained, by ordering a stay of execution when judgment has been rendered in the subsequent suit.^ In Ver- mont, this latter method seems to be favored. The direct action by the attachment defendant is allowed to proceed to judgment, and an order is made staying execution until the question of garnishee's liabilty is determined in the attachment suit.^ This practice is also followed in Georgia,'^ and perhaps in other States. The difference between the plea in abate- ment, the motion for suspension of the action, and the stay of execution after judgment, are only different modes of accom- plishing the same result, which is to protect the debtor from » McFadden v. O'Donnell, 18 Cal. 160. * Winthrop v. Carleton, 8 Mass. 456. 6 Crawford v. Clute, 7 Ala. 157 ; 41 Am. Dec. 92. See Gallego v. Gallego, 2 Brock. C. C. 285 ; Fitzgerald v. Caldwell, 4 Dall. 251. 6 Morton v. Webb, 7 Vt. 123 ; Jones v. "Wood, 30 Vt. 268. See also Smith v. Blatchford, 2 Ind. 184. 1 Shealy v. Toole, 56 Ga. 210. 351 PRIOR TO SUIT BY DEFENDANT. § 501 being charged as garnishee, and proceeded against by execu- tion twice for the same debt ; and as long as the end is accom- plished, the means employed are only of minor consequence. But when the interests of the defendant in attachment are carefully considered, one of the methods that preserve his ac- tion' against the debtor during the pendency of the garnish- ment would seem to be the most reasonable. The mere fact that two actions against the garnishee, whereby he may be called upon to resist the same demand, are permitted to be prosecuted contemporaneously, is no additional hardship for the garnishee. It is as well that the actions should be pend- ing at the same time, as that they might be brought success- ively, provided he is not required to defend them, except in their order. If the judgment in favor of garnishee, on hia denial of indebtedness, or any affirmative defense, would bar the subsequent action for the same debt, it would have the game effect upon the suspended action after the garnishment was disposed of. The pendency of the subsequent suit would be at most a matter of Inconvenience to the garnishee, and would not affect the rights of the plaintiff" in attachment, nor obstruct his employment of the provisional remedy In the least ; while the abatement of the attachment defendant's suit might seriously embarrass him in the future, if not work a permanent loss of his claim. An example of the ineffectiveness of a prior garnishment, as against a subsequent process issuing out of a Coui't of different jurisdiction, is furnished by the Supreme Judicial Court of Massachusetts. The owners of a coasting vessel, af- ter having been summoned as garnishees of a seaman in their employ, were compelled, by subsequent process from a Court of Admiralty, upon a libel filed by the seaman against the ves- sel, and after full disclosure of all the facts In connection with the prior garnishment, to pay the amount of the wages due ; and it was held that after the payment of this judgment, the owners could not be charged as garnishees ; but it was ques- tioned in the same case, whether a seaman's wages could be attached by garnishment.^ 8 Eddy V. O'Hara, 132 Mass, 5& § 502 EFFECT OF GARNISHMENT 352 § 502. Effect of Judgment against the Gamisliee. — If the pendency of the garnishment would operate to suspend the at- tachment defendant's right of action, or abate it, it would seem to follow that the judgment against the garnishee in the attachment suit would be a bar to a subsequent recovery by the defendant pro tanto. This is the English doctrine,-^ and has been adopted in several of the States of the Union. But both upon principle and authority, the justice of any such rule has been questioned. In Massachusetts, it is laid down that until the garnishee has paid the judgment, or " until an execu- tion has been awarded, and the garnishee has been called on or compelled to pay, it is not such a payment, merger, or dis- charge of the original debt, as to be pleaded in bar." ^ Nev- ertheless, it is admitted by the same Court that the judgment, so long as it may be executed, is a ground for suspension of judgment in favor of the attachment defendant, although the judgment is by a foreign Court.^ That this is the better doc- trine to rely upon, as a rule, is apparent from a consideration of the possibilities of doing injustice, by holding that the judg- ment should in every case be a bar to the subsequent action. The judgment until paid is no satisfaction of the judgment against the principal defendant. The garnishee may never be obliged to satisfy the judgment against himself. Suppose it to be successfully pleaded in bar, and the attachment plaintijBf should subsequently enforce his judgment against the defend- ant in the attachment suit, by levy upon the latter's property. What becomes of the debt attached? Certainly, the judg- ment against the garnishee cannot be enforced by the attach- ment plaintiff, whose principal judgment has been satisfied. If the action by the immediate creditor of the garnishee is once harred, it is barred forever, and the only effect of the garnish- ment would be to extinguish this debt, without benefiting the plaintiff by whom payment had been interrupted. It is no so- lution of such a dilemma to provide the party whose property has been thus fruitlessly confiscated with some sort of an inde- iMcDaniels v. Hughes, 3 East. 367; Savage's Case, 1 Salk. 291; Turbill's Case, 1 Saunders, 67. 2 Meriam v. Rundlett, 13 Pick. 511. 8 Meriam v. Eundlett, 13 Pick. 511. 363 PRIOR TO SUIT BY DEFENDANT. § 502 pendent proceeding in equity agafnst the plaintiff, if any such there be. Plaintiff may not have gone out of his way to in- flict an injury upon his debtor. Indeed, he may have brought about this state of things by pursuing the remedies provided by law, and may in the end have resorted to an execution on his principal judgment, in preference to that against the gar- nishee, because it afforded the most speedy and certain relief. The defendant may have resorted to his action against the gar- nishee in order to prevent his claim being barred by t!ie Stat- ute of Limitations, which might have resulted from his wait- ing for the lapsing of the judgment against the garnishee. Yet the plea of an unsatisfied judgment against the gar- nishee, in bar of a subsequent action for the same debt, has been sustained 'in a number of cases where none of these special reasons for holding otherwise seem to have appeared.* Thus, in Massachusetts, in an earlier case than Meriam v. Rundlett,^ where we have seen they regarded the judgment as ground only for suspension or abatement, it was held that it was a bar to the subsequent action.^ It is fair to presume,, however, that in a case presenting facts that would render a modification necessary, the Courts of some of these States would qualify their statement of the general doctrine, and re- quire something more as a bar to defendant's action for his debt, than that it had been merged in a judgment against the garnishee. It would hardly be held a bar so long as it was merely provisional in its character, depending upon the recov- ery of judgment against the principal defendant. Indeed, it was decided in Maine, where we have seen the judgment is pleadable in bar, that a mere judgment by default against gar- nishee, liable to be set aside on scire facias, would not be a bar to the action by defendant in attachment.^ < Matthews v. Houghton, 11 Me. 377 ; McAllister v. Brooks, 22 Me. 80 ; 38 Am. Dec. 282 ; Perkins v. Parker, 1 Mass. 117 ; Norris v. Hall, 18 Me. 332 ; Co- burn V. Currens, 1 Bush, 242 ; King v. Vance, 46 Ind. 246. s 13 Pick. 511. 6 Hull V. Blake, 13 Mass. 153. See also Cheongwo v. Jones, 3 Wash. C. C. 359 ; Covert v. Nelson, 8 Blackf. 265 ; Sessions v. Stevens, 1 Fla. 233. '' Sargeant v. Andrews, 3 Me. 199. In this State, under a statute of 1821, one summoned as garnishee of another was protected against any claim upon him by defendant, during the pendency of the garnishment proceeding, and a judgment against the garnishee was a bar to an action on such claim by de- ll. Attach.— 23. § 502 EFFECT OP GARNISHMENT 354 The broad statement that satisfaction of the judgment is necessary to entitle the garnishee to plead it In defense of a subsequent action for the debt,^ may carry the rule further than would be necessary or just in every case; but the doc- trine that he should be able to show either that the judgment was satisfied ; that the garnishee's property had been levied on ; or at least, that execution was issued for that purpose, and likely to be levied, would not be asking too much, before the party to whom he is prinmrlly indebted should be forever con- cluded from asserting his clalm.^ Where the judgment against the garnisheeis the result of false disclosures by the garnishee, or collusion between him and the principal parties to the attachment suit, it may be vacated in Michigan, In the discretion of the Court ; and if the garnishee has already made payment, it will not protect him against an action by his actual creditors. And it is held that the plain- tiff in attachment, who has received the money, holds it to the use of the creditors, to whom it must be refunded on demand after the judgment against the garnishee is vacated, and plain- tiff cannot retain the amount of an attorney's fee paid to the garnishee's attorney.^*' Where, for any reason, the judgment has ceased to be of any force against the garnishee, there is the strongest ground that could be imagined why it should be held not only as no bar to the subsequent suit, but that it would not entitle the debtor to a continuance, or stay of execution. Thus, where the local law made certain requirements of the plaintiff in at- fendant, except for the excess thereof over the amount of the judgment. But the judgment against the garnishee was no discharge of the judgment against the debtor, tJiough by means of the suit against the garnishee, payment by the garnishee to the debtor was prevented, and by the subsequent insolvency of the garnishee, the debt was lost. Nor was the judgment discharged by the neglect of the creditor, for twenty years, to sue out a writ of scire facias against the garnishee, who for that time continued insolvent. It was also held that the principal defendant in attachment could not, after the lapse of this period, maintain assumpsit against the creditor for such neglect, it not appearing that suing out of a scire facias would have been of any service to the complaining debtor. Noble v. Merrill, 48 Me. 140. 8 Farmer v. Simpson, 6 Tex. 303. See Brannonu. Noble, 8 Ga. 549; Cook v. Field, 3 Ala. 53. 9 See Brown v. Somerville, 8 Md. 444 ; Lowry v. Lumberman's Bank, 2 Watts. & Serg. 210. 10 First National Bank v. Mellen, 45 Mich. 413. 355 PRIOR TO SUIT BY DEFENDANT. § 503 tachment in order to keep his judgment alive, and these being neglected would leave the judgment in a state of suspension, from which it could not be revived by scire facias^ the Court held that a judgment in this condition had ceased to be a lien, and was no defense to an action by the attachment defendant on his original demand.^^ § 503. Effect of Jndgmeiit against the Garnishee, and a Sat- isfaction thereof. — The question under consideration in this chapter is the effect of garnishment upon the right to bring a subsequent action against the garnishee ; and it remains to glance at the satisfaction of the judgment in garnishment in this connection. Obviously, this must end all controversy in regard to this particular debt.^ When the judgment is not only rendered, but the amount thereof is paid, it is a complete defense to a subsequent action, so far as such payment goes to extinguish the debt owing by the garnishee.^ And it does not seem to affect the application of the principle, that the judgment paid by the garnishee was rendered in a foreign Court,^ provided the judgment is proved by competent evi- dence, which is an indispensable condition.* The judgment, if binding on the garnishee, is binding upon the principal defend- ant, and all parties in privity with either. Thus, where a de- positary was charged as garnishee of the depositor's guardian, in an action for necessaries furnished the depositor, and had been compelled to pay the judgment obtained against him, such payment was held a complete defense to an action by the depositor after the guardianship^ had been revoked.^ And n Flower v. Parker, 3 Mason, 247. 1 Brown v. Dudley, 33 N. H. 511 ; Ladd v. Jacobs, 64 Me. 347 ; Killsaw. Ler- mond, G Me. 116 ; Gunn v. Howell, 35 Ala. 144 ; Ross v. Pitts, 39 Ala. 606. 2 Woods V. Milford etc. Savings Inst., 58 N. H. 184 ; Dole v. Boutwell, 1 Al- len, 286 ; Moore v. Spackmau, 12 Sergeant & R. 287 ; Allen v. Watt, 79 Ills. 284 ; Coates v. Roberts, 4 Rawle, 100 ; McAllister v. Brooks, 22 Me. 80 ; 38 Am. Dec. 282 : Anderson v. Young, 21 Pa. St. 443 ; Cook v. Field, 3 Ala. 53 ; 36 Am. Dec. 436 ; Adams v. Filer, 7 Wis. 306 ; Noble v. Thompson Oil Co., 69 Pa. St. 409 ; Cheairs v. Slaten, 3 Humph. 101. 8 Noble V. Thompson Oil Co., 69 Pa. St. 409 ; Baltimore etc. R. Co. v. May, 25 Ohio St. 347 ; Cochran v. Fitch, 1 Sandf . Ch. 142 ; Barrow v. West, 23 Pick. 270 ; Wigwall v. Union etc. Co., 37 Iowa, 129 ; Taylor v. Phelps, 1 Harr. & Gill, 492 ; Morgan v. Neville, 74 Pa. St. 52. * Barton v. Smith, 7 Iowa, 85. 6 Woods V. Milford etc. Inst., 68 N. H. 184. § 503 EFFECT OF GARNISHMENT 356 when the judgment is a defense in favor of the garnishee, it would have the same effect when invoked by any one whose liability depended upon that of the garnishee. The satisfac- tion of the judgment against the garnishee is an extinguish- ment of his debt to his principal creditor, and has the same effect as though it were paid to the creditor directly. Hence, where an original judgment was attached by garnishment of the judgment debtor, but prior thereto one had become liable as surety on the bond given by the debtor on appeal, and af- ter the judgment in garnishment the same was satisfied, such satisfaction was held to enure to the benefit of the surety on the bond when sued by the holder of the first judgment.^ The question to be determined is whether the debt has been satisfied, and the extent of such satisfaction, and it matters not hy whom it has been paid, nor to whom paid, provided it be to one who is entitled to receive it from the one who pays. Hence, where one of several joint debtors in the garnishment proceeding has paid the debt for which the judgment was obtained, it will be 6 Noble V. Thompson Oil Co., 69 Pa. St. 409. There are two cases reported in this State, embracing the same parties and so many of the same incidents, that they appear to have originated in the same transaction, and to have been decided in refertence to the same subject of action. There is an apparent in- consistency between the two decisions, wliich, however, may be more appar- ent than real, for the reason that the circumstances that governed the later case may not have figured in the earlier. The first case was the one cited above, in which an action was brought against the surety on an appeal bond, and it appeared that after the appeal the judgment debtor was summoned as garnishee of his creditor in New York, and judgment was rendered against him, which he paid, anel such payment was hekl to discharge the surety in Pennsylvania. The later case was also Noble ?'. Thompson Oil Co. (79 Pa. St. 354 ; 21 Am. Rep. 66), in which it appeared that judgment was obtained in Pennsylvania ; tliat the judgment debtor was summoned as garnisliee of the judgment creditor in New York ; that judgment was obtained against the garnishee, and he paid the judgment. But prigr to the garnishment, the orig- inal judgment was assigned for value, of whicli assignment the garnishee had no notice prior to garnishiiKnt. Notwithstanding tliis want of notice at the time of service of summons, it seems that notice was received in time to inter- pose the assignment as a defense to the garnishment proceeding ; and mainly for the reason that the garnishee made too tame and ineffectual a defense — did not bring the foreign assignee into the case in New York— and did not press upon the attention of the Court the prior assignment, the judgment and satisfaction thereof would not protect the garnisliee against the assignee's action against him. Consequently, the debtor was compelled to make dou- ble payment of the same demand ; once to the creditors of the assignor, by the judgment of the New York Court, and once to the assignee, by the judg- ment of the Pennsylvania Court. 857 TEIOR TO SUIT BY DEFENDANT. § 504 for the benefit of his co-debtors, each of whom may rely on it as a defense to a subsequent action by the original creditor J The extent to which the payment of the judgment in gar- nishment will satisfy the original demand against the garnishee dejjends, of course, upon the respective magnitudes of the two claims. If the judgment obtained by the attaching creditor is sufficient to comprehend the entire indebtedness of the gar- nishee, payment of the latter will extinguis^h his debt to the de- fendant in attachment. And where, in the action by the defend- ant, after such judgment and satisfaction, there was no show- ing to the contrary, it was presumed that the amount recov- ered from the garnishee was equal to his entire indebtedness to his immediate creditor.^ But no such presumption arises from the mere fact that the amount of the judgment against the garnishee is less than defendant's indebtedness to the attach- ment plaintiff. It may be so found and still leave the garnishee indebted to the defendant, for such finding is not absolutely bind- ing upon the defendant.^ It matters not how the amount of the garnishee's indebtedness is arrived at, whether by his own admis- sions, or from other evidence in the possession of the plaintiff in attachment, provided it has not been through defendant's con- nivance, or willful suppression of facts, or some conduct or participation In the controversy between the plaintiff and gar- nishee, by which the defendant is estopped from controverting the conclusion reached ; the judgment against the garnishee will not prevent his original creditor from suing and recover- ing any sum over and above the amount of such judgment aa he may be able to show to be due.^'^ § 504. Essential Conditions to the Effectiveness of Judg- ment and Satisfaction as a Defense — Judgment against the Creditor. — One of the essential features of a judgment against the garnishee, to render his payment thereof a valid defense to a subsequent action on the same demand, is, that there should T Cook V. Field, 3 Ala. 53 ; 36 Am. Dec. 436. 8 McAllister r. Brooks, 22 Me. 80 ; 38 Am. Dec. 282. 9 Tarns )•. Bullitt, 35 Pa. St. 308 : Robeson v. Carpenter, 7 Mart. X. S. 30 : Bax- ter V. Vincent, 6 Vt. 014. 1" Brown v. Dudley, 33 N. H. 511 ; Barton v. Albright 29 Ind. 489 ; Cameron V. StoUenwerck, 6 Ala. 704. § 504 EFFECT OF GARNISHMENT 358 also be a valid judgment against his creditor, who was the de- fendant in attachment. The judgment against the garnishee depends for its validity upon a valid judgment against the de- fendant.^ It Is not suflScient, however, that the principal judgment shall be against the defendant ; he must at the time be the garnishee's creditor. Of course, it is the object of the proceeding to summon as garnishees only those who are debt- ors of the principal defendant, or have his property in their possession, or under their control. But this purpose may be defeated by an assignment of the debt, or a transfer of the chattel prior to garnishment.^ When the assignment takes place, and the garnishee is notified thereof in time to give the assignee notice of the garnishment, and the judgment against him is obtained upon his willful default after such notice, it will not serve him as a defense to a subsequent action by the as- signee.^ And* where the statute provides means for the pro- tection of the garnishee, by mere disclosure of the assign- ment, after which the assignee is cited to appear and propound his claim, his failure to make such disclosure, provided he be notified of the assignment in time, will not be excused by the fact that such assignee knew of the pendency of the garnish- ment proceeding.* By citation the assignee becomes a party to the judgment, and will be bound thereby to the same extent as the original parties. But the judgment rendered against the garnishee, and paid by him, is only binding on the parties thereto, and those in privity with them.^ The judgment thus obtained must be in all essential particu- lars regular, and in some respects it behooves the garnishee to guard the rights of the defendant as though they were his own, for the reason that his exemption from future liability depends 1 This brancli of the subject will be pursued further in-a subsequent chapter. Post, ; Arnold v. Gullatt, 68 Ga. 810. ■^Ante, Chs. XXXIIT, XXXYI, XXXVH. 3 Wardle v. Briggs, 131 Mass. 518 ; Yocum w. "White, 36 Iowa, 288 ; Noble v. Thompson Oil Co., 79 Pa. St. 354 ; 21 Am. Eep. 66 ; Smoot v. Eslava, 23 Ala. 659 ; 58 Am. Dec. 310 ; Prescott v. Hull, 17 Johns. 284 ; Bunker t\ Gilmore, 40 Me. 88 ; Casey v. Davis, 100 Mass. 124 ; Greentreeu. Eosenstock, 61 N. Y. 593 ; Marsh v. Davis, 24 Vt. 363 ; Ante, §§ 371, 471. 4 See Born v. Staaden, 24 111. 320. o Wise V. Hilton, 4 Me. 435 ; Lawrence v. Lane, 9 111. 354; Miller v. McLain, 10 Yerger, 245; Dobbins v. Hyde, 37 JNIo. 114 ; Oliat/'.Figerous;, 1 lilcMullan, 203. 359 PRIOR TO SUIT BY DFFENDANT. § 505 upon the validity of the principal judgment.^ He must sec to it that the Court has jurisdiction of the subject matter, and of the parties to be boundJ And it is not always sufficient that the proceedings are apparently regular, and jurisdiction complete, if not so in reality. "Where the defendant in attachment was sued and served as a non-resident, when in fact he was dead, and on judgment being obtained against the garnishee, which was based upon a judgment thus obtained in the principal ac- tion, payment by the garnishee was held no bar to a subsequent action by the administrator of the decedent.^ Where the judgment against the garnishee was rendered by a Justice of the Peace who never acquired jurisdiction of the jirinclpal case, it was held no protection against a subsequent action by the principal defendant.^ And where the judgment paid by the garnishee was rendered in respect to a promissory note of which he was maker, and the subsequent action was by an in- dorsee who was not made a party to the contest In garnish- ment, it was held that the payment was no defense, though the indorsee had notice of the fact that the transfer to his immediate indorser was, in such proceeding, attacked for fraud.KJ § 505. The Validity of the Judgment against the G-ar- nishee. — Aside from the question of the necessity for a valid judgment against the defendant, as a support to the auxiliary judgment which the garnishee satisfies,^ there are other grounds upon which the validity of the latter judgment may be called in question. Any payment made upon a void judg- ment would be regarded as though it were made voluntarily, and a voluntary payment is no protection.^ This, of course, does not prevent the garnishee from obtaining his discharge by payment of the amount of his indebtedness into Court, where « Ante, Ch. XXIX. ' Ante, § 399 ; Harman v. Btrrcbard, 8 Blackf. 418 ; Richardson v. Hickman, 22 Ind. 244 ; Stimpson v. Maiden, 109 Mass. 313 ; Robertson v. Roberta, 1 A. K. Marsli, 247. 8 Loring v. Folger, 7 Gray, 505. » Laidlaw v. Morrow, 44 Mich. 547. 1" Holland v. Smith, 11 Mo. App. a 1 Supra, § 504. 2 Wetter v. Rucker, 1 Brad. & B, lau § 505 EFFECT OF GARNISHMENT 360 such payment is authorized by law.^ Even the question of jurisdiction, when raised by tlie garnishee and decided against liiin, lias been held so conclusive upon the garnishee that he •will be protected by payment under execution, issued on the judgment.^ So payment under execution Issued on a judg- ment which was subsequently revei'sed for error, was held to protect the garnishee against a subsequent action.^ But this is when the error upon which the case is reversed is a matter that goes merely to the regularity of the proceedings, and not where It is reversed for want of jurisdiction, which was not contested by the garnishee below. Where the garnishee, knowing that funds in his hands were exempt in favor of a judgment debtor, procured garnishment against himself, and failed to plead the exemption, or notify the judgment debtor, it was held that the judgment thus obtained was procured in bad faith, and would be no defense to an action for the same funds by the judgment debtor.^ Mere acquiescence In some method of arriving at the facts in controversy, other than that of submitting It to the Court or jury, will not, however, vitiate the judgment. Where the issues are by agreement be- tween the plaintiff and garnishee referred, and the judgment is entered on the finding of the referee, it will be none the less binding and protecting to the garnishee, provided he acts in the matter of the reference In good faith.'' But crood faith is essential. If It appear that the judgment was rendered as the result of collusion between the plaintiff and the garnishee, or of false statements, or willful neglect on the part of the latter, it will be held void, when satisfaction thereof is urged in defense to an action brought by the defrauded party. ^ But if the agreement is between the principal parties, or between 3 Rachereau v. Guidry, 24 La. An. 291 ; Ohio etc. E. Co. v. Alrey, 43 Ind. 180 ; 'Wilson v. Burney, 8 Neb. 39. * Wyatt's Adm'r v. Eambo, 20 Ala. 510. See Gunn r. Howell, 35 Ala. 144. 5 Atcheson v. Smith, 3 B. Men. 502 ; Pierce v. Carleton, 12 111. 358 ; Webster V. Lowell, 2 Allen, 123 ; Houston v. Walcott, 1 Iowa, 86 ; Duncan v. Ware, 5 Stew. & Fort. ll'J ; 24 Am. Dec. 772 ; Openlieim v. Pittsburgh etc. Pl. Co., 85 Ind. 471. 6 Smith V. Dickson, 58 Iowa, 444. " Stille V. Layton, 2 Harr. 149. But see contra, Noble v. Thompson Oil Co., 79 Pa. St. 354 ; 21 Am. Rep. 66 ; Ante, § 503 (note). 8 Seward v. Heflin, 20 Vt. 144 ; Coates v. Roberts, 4 Eawle, 100. 361 PRIOR TO SUIT BY DEFENDANT. § 506 the plaintiff and one who claims the debt as assignee, it is a matter with which the garnishee has no concern. Hence, where in his answer the garnishee admitted his original in- debtedness, setting up a prior assignment to a designated third party, and such third party appeared and consented to plaintiff's judgment, it was held binding on the garnishee.^ The principal judgment may be in all respects valid, and the judg- ment against the garnishee still be void for want of jurisdiction obtained by service of process in garnishment, in which event the judgment and payment will be no protection, as he will oc- cupy substantially the same position as though the judgment were by his own procurement.^*^ The garnishee is under obliga- tion to take advantage of any failure to obtain jurisdiction of himself by service of process ; but he is not responsible for irreg- ularities in the judgment which only affect other parties, when such irregularities do not possess the gravity of jurisdictional errors. ^^ Hence, he may pay a judgment which is in some respects irregularly obtained — particularly if the irregulari- ties were such as would not have availed him as a defense on the hearing. ^^ § 506. How the Judgment should be Satisfied in order to Constitute a Valid Defense. — The manner in which the judg- ment should be satisfied is by payment in some form or other. It has been held that a mere purchase of the judgment by the judgment debtor, although as between himself and the judg- ment creditor it was thereby extinguished, was not such a pay- ment as would enable the garnishee, when subsequently sued for the debt, to show a judgment against him satisfied for the same demand.^ The technical objections that may be raised 9 Pollard V. Mobile Sav. Bank, GO Miss. 946. 10 Deslia v. Baker, 3 Ark. 509 ; Scbindler v. Smith, 18 La. An. 476; Southern Bank v. McDonald, 46 Miss. 31 ; Northern Central R. Co. v. Eider, 45 Md. 24; Ante, § 330. 11 Benson v. Halloway, 59 Miss. 358. 1^ Tul)b V. Madding, Minor, 129 ; Morrison v. New Bedford Institution, 7 Gray, 2()7 ; Wheeler v. Aldrich, 13 Gray, 51 ; Gildersleve v. Carroway, 19 Ala. 24() ; Parmer v. Ballard, 3 Stew. 326 ; Duncan v. Ware, 5 Stew. & Port. 119 ; 24 Am. Dec. 772. It is held in Missouri, that the proceeding against the gar- nishee abates by the death of the garnishee, and cannot be revived against the administrator, though the latter appear and stipulate to that effect. — Brecht V. Corby, 7 Mo. A pp. 300. 1 Brown v. Somerville, 8 Md. 444. § 506 EFFECT OP GARNISHMENT 362 to a simulated payment must depend in no small degree upon the circumstances under which such judgment was obtained, and whether it was from the rendition thereof so binding upon the garnishee that he could no longer escape the liability thereby imposed. If the judgment was of this character, the only reason why it should not be taken as a complete defense to the subsequent action, whether satisfied or not, is, that It may never be enforced against the garnishee, and hence may never amount to an extinguishment of the demand upon which the attachment issued. ^ When a valid judgment has been sat- isfied, the debt is completely extinguished. When the plaintiff obtains judgment against the garnishee for- an amount sufficient to cover defendant's indebtedness, and ac- knowledges satisfaction so as to release the garnishee, it must have the effect of extinguishing both debts, regardless of the actual consideration passing between the garnishee and the plaintiff. The manner in which payment is made will be of more importance where the judgment creditor has not acknowl- edged satisfaction. Where the payment consists of nothing more than crediting the amount on garnishee's books to plain- tiff in the attachment, and debiting defendant with the same amount, it of course will amount to no payment whatever, un- less so accepted by the judgment creditor.^ But in an early case in Connecticut, a mere conditional contract to pay the judgment was held sufficient, it being so accepted by the judgment creditor. The circumstances were as follows: After judgment was rendered against the garnishee, the a,ttachment defendant instituted a suit for the original demand, and the garnishee executed and delivered a written contract, that for value received he promised to pay the judgment creditor the amount of the judgment, with interest, whenever the suit brought by defendant should be terminated in garnishee's fa- vor, otherwise the " note " to be returned to the maker.* This could with no show of reason be held a payment for the pur- pose of giving the judgment conclusive effect, unless it became conclusive upon the judgment creditor, by reason of his acqui- 2 5wpra, §§500,501, 502. 8 Wetter v. Rucker, 1 Brod. & B.49L < Cutter V. Baker, 2 Day, 498. 363 PRIOR TO SUIT BY DEFENDANT. § 507 escence, so as to extinguish the demand upon which his action was brought, pro tanto. If it amounts to this, and the judg- ment itself is unimpeachable, there is no reason why the satis- faction of the judgment should not be regarded as a complete defense to the action, irrespective of the amount actually paid by the garnishee, or whether anything were actually paid or not. It should be sufficient as against any mere technical ob- jections on the part of garnishee's original creditor, that the judgment set up as a bar had not been paid. § 507. Payment under Execation. — In some of the States it has been held that in order to free the garnishee from the imputation of having made a voluntary payment of the judg- ment relied on as a defense to a subsequent action, it must be paid under execution.^ But in this respect the statutes are not uniform, and as a consequence it is not always held that an execution is necessary to justify the garnishee in paying the judgment against him.^ Where, however, the execution is essential, the rule is quite as strict that it must be a valid ex- ecution, as that the judgment itself must have been properly rendered. It is held in Missouri, that where the garnishee pays under an execution in favor of defendant, that might have been set aside for irregularity, it will be no protection from the judgment against him as garnishee.^ And it may be inferred that the rule could be conversely applied. • So, where the statute prescribed as a condition precedent to the issue of execution on such judgments, that the plaintiff should execute a bond to answer to defendant, if within a year and a day he should appear and disprove the debt, it was held that a pay- ment under the judgment without such bond, and before the issue of an execution, would be regarded as a voluntary pay- ment by the garnishee, and no defense to the defendant's sub- sequent action on the original demand.^ A similar statute in Mississippi is construed as intended to secure defendants who have not been served with notice, and have not appeared, or had an opportunity to defend the suit 1 Wetter v. Rucker, 1 Brod. & B. 491 ; Burnap v. Campbell, 6 Gray, 241. 2Troyer v. Schweiser, 15 Minn. 241. *Home Mutual Ins. Co. v. Gamble, 14 Mo. 407. < Myers v. Urich, 1 Binney, 25. See Moyer v. Lobengeir, 4 Watts, 390. § 507 EFFECT OF GARNISHMENT 364 Avithin the time limited ; and the giving of the bond is a con- dition precedent to a forced sale of the debtor's property, or to the issuance of execution against the garnishee; but if the garnishee choose to pay such judgment without the bond be- ing given, the payment is provisionally good, subject to be an- nulled in case the debtor shall disprove or avoid the attach- ment debt. Hence the defendant may bring an action against his debtor, precisely as though no payment had been made ; but in order to prevail he must disprove the attachment debt, as would be required of him had he come into Court within the year and a day, to avoid the judgment in attachment. It was also held that this statute was for the benefit of defendant in attachment, and not the assignee of a debt.^ The garnishee can only defend upon the ground of previous compulsory payment ; and he is not compelled to pay until all the statutory prerequisites have been complied with by the plaintiff.^ So, where the statute requires the surrender of as- signable promissory notes or other written evidences of debt, as a condition to plaintiff's right to recover from the garnishee, or in default of such surrender, that the necessary measures be taken to completely exonerate the garnishee from liability thereon, it was held where the payer was summoned as gar- nishee of the payee, and satisfied the judgment without de- manding a compliance with these conditions, an assignee of the payee could afterwards recover of the maker, notwithstand- ing the latter's payment of the judgment. '^ In Iowa a notice to show cause is required to be served on the garnishee before execution can issue,^ which is held to be a " reasonable " notice, and may be served during the term at which he is required to appear.^ Until such notice, and the order for execution made in pursuance thereof, the payment would be held voluntary and no protection.^'' The regularity of the execution, and full technical compli- ance with the statutory prerequisites, will not in every instance 5Murdock v. Daniel, 58 Miss. 411. SMcPhail v. Hyatt, 29 Iowa, 137 ; Grissom v. Reynolds, 1 How. (Miss.) 570. 7 Yocum V. White, 3(3 Iowa, 288. 8 Code, §2985. 9 Langfoid v. Ottumwa "W. P. Co., 53 Iowa, 415. WMcPbail v. Hyatt, 29 Iowa, 137. 865 PRIOR TO SUIT BY DEFENDANT. § 508 justify the payment of the judgment against the garnii^liee. Thus, where prior to such payment the debt owing by the gar- nishee to tlie defendant had been regularly set apart to defen- dant as a portion of his legal exemption, of which the garnishee was notified, the payment did not discharge the garnishee's liability to the defendant." § 508. Judgment in favor of Garnishee. — Where the defen- dant is not, for some reason, estopped from denying the cor- rectness of the judgment, he is not bound by it when it is in garnishee's favor. That is, the finding that the garnishee is not indebted to tile defendant, may be binding upon the plain- tiff as res judicata, while it does not affect the rights of the defendant to any extent whatever. ^ Nor does it bind other creditors, to prevent thenifrom maintaining the same proceed- ing against him as garnishee of the same defendant, in respect to the debt which according to the judgment of the Court he did not owe.^ That such a judgment is binding upon the plain- tiff, even when obtained by falsely denying indebtedness, or falsely setting up counter claims and cross-demands, arises from the fact that this identical question is the one upon which issue was, or might have been taken when the false an- swer was filed. If the finding might be impeached on the ground that it was induced by falsehood, the same ground might be alleged for overturning any judgment, where per- jury could be alleged as the ground of attack. The truth of the answer having been once judicially decided in the affirma- tive, the judgment must be treated as conclusive of the ques- tion between the same parties, or the final determination of the Court in this behalf cannot be called ^ judgment.^ It is quite a different matter when the defendant in attachment briniis his action. The latter was not necessarily a party to the con- troversy between the plaintiff and the garnishee, and hence the judgment discharging the party summoned as his debtor, upon the ground that he was not indebted as claimed, cannot 11 Watkins v. Cason, 46 Ga. 444. 1 Puffer V. Graves, 26 N. H. 258. 2 Breadiug v. Siegwortb, 29 Pa. St. 396 : Sprill v. Trader, 5 Jones, 39. 8 Lyford v. Demervett, 32 N. H. 234. § 508 GARNISHMENT PRIOR TO SUIT. 366 bind the defendant.* Nor Is he bound by such judgment as to the amount of such indebtedness, when, as determined in the garnishment proceeding, it is found to be less than the amount claimed by defendant.^ 4 Baxter v. Vincent, 6 Vt. 614 ; EoTaeson v. Carpenter, 7 Mart. N. S. 30. s Brown v. Dudley, 33 N. H. 511 ; Barton v. Albright, 29 Ind. 489 ; Cameron t). Stollenwerk. 6 Ala. 704 ; Tama v. Bullitt, 35 Pa. St. 308. CHAPTER XLIl. garnishee's defenses to defendant's cause of aotion. § 509. General remarks. § 510. The defense of payment. § 511. Same manner and time of payment. § 512. Payment under compulsory process. § 513. Garnishee's set-off, or cross demand. § 514. The claim to be set off considered as to the parties interested. § 515. Character of the demand set off, whether legal or equitable. § 516. Garnishee's collateral liability as a defense. § 517. When the set-off should be acquired to become available in garnish- ment. § 518. "Whether set-off due, or to become due. § 519. Defense of failure of consideration. § 520. The Statute of Limitations, and other defenses. § 509. General Remarks. — In another place, attention is called to matters that concern others as well as the garnishee, and, in fact, only concern him at all indirectly, which he must nevertheless urge as a reason why he should not be charged as garnishee.^ In the same place, some of the matters herein considered have received casual attention. It is not, therefore, with any intention of repeating, so far as it can be avoided, what has already been stated in reference to the garnishee's de- fenses, that this chapter is written. Nor is it intended here to go over again that branch of the subject which embraces only the controversy between the gar- nishee as a defendant, and the principal defendant as plaintiff, either before or after the garnishment, in which the garnish- ment proceeding and the judgment therein may respectively become matters of defense.^ What is herein considered is that class of defenses which the garnishee makes in his own behalf to the demand made on behalf of the defendant, and such as will avail him in the attachment proceeding. They are pre- 1 Ante, Chap. XXIX. 2 Ante, Chap. XU. § 510 GARNISHEE'S DEFENSES 368 cisely such as might be made by any defendant In an ordinary action, excluding, of course, such as arise from the garnishment proceeding itself. They are generally questions of fact, placed in issue by exceptions to the garnishee's answer, and are hence only in controversy between the plaintiff and the sarnishee. But this Is not an invariable rule, as such contest may be between the defendant and the garnishee f or it may be between plaintiff and defendant, seeking to establish such indebtedness, and the garnishee resisting the same. Nor are they always contests as to facts, but may Involve Issues of law as well. § 510. The Defense of Payment. — It Is always a good de- fense to the demand made on behalf of the defendant, that the debt previously existing has been fully paid and satisfied.^ But when such payment is made after the service of summons in garnishment, of a debt existing at the time, It will be no de- fense to the proceeding ; otherwise the process would only be effective at the election of the party summoned.^ This prin- ciple Is so far flexible, however, that It Is frequently qualified by considerations that do not operate to excuse a disregard of original process of other kinds. Thus, It Is held, where process of garnishment has been technically served, within the meaning of a statute that substitutes leaving It at the resi- dence of a party. Instead of personal delivery, that a subse- quent payment In Ignorance of Its being so left would protect the garnishee against the claim of the plaintiff in attachment.^ Such payment being made In Ignorance of service and In good faith will discharge the garnishee.* So where the garnishee is jointly, or jointly and severally, liable with another, and is garnished In respect to such Indebtedness, and It Is subsequent- 8 Graves v. Cooper, 8 Ala. 811. iCocbran v. Fitch, 1 Sanclf. Ch. 148 ; New Orleans etc. R. Co. v. Long, 5 Ala. 498 ; Robinson v. Hall, 3 Mete. (Mass.) 301 ; Tliorne v. Matthews, 5 Cash. 544 ; Spooner v. Rowland, 4 Allen, 485. 2 Johnson v. Carry, 2 Cte.1. 33 ; Westu. Piatt, 116 Mass. 308 ; Locke v. Tippets, 7 Mass. 149 ; PuUiam v. Aler, 15 Gratt. 54 ; Johann v. Refener, 3 Wis. 195 ; Parker v. Parker, 2 Hill Ch'y, 35 ; Hughes v. Monty, 24 Iowa, 499 ; Toledo etc. E. Co. V. McNulty, 34 Ind. 531 ; Paul v. Johnson, 9 Phila. 32. 8 Robinson v. Hall, 3 Met. (Mass.) 301. 4 Landry v. Chayret, 58 N. H. 89. 369 TO defendant's cause of action. § 511: ly paid by the co-obligor who was not served, it is equally ef- fective as a jiayment of the debt, and neither of such debtors can be charged as garnishee.^ But if payment is made by an agent who is aware of the service of summons of which hia principal is ignorant, the legal identity of principal and agent will destroy the effect of such payment as ground for discharg- ing the garnishee.^ It is held otherwise, however, where the agent makes the payment of the principal's debt in ignorance of the fact that the principal has been summoned as garnishee- of his creditor^ The payment need not be made in cash, as it will suffice if any medium is employed that satisfies the de- mand, without leaving the garnishee still indebted to the de- fendant. Thus, where payment was made by a check on a bank, it was sufficient, though at the time of service of gar- nishment it had not been presented for payment at the bank upon which it was drawn.^ But where a check was drawn in payment, in anticipation of garnishment, and instead of being turned over to the payee, was, by agreement between the cred- itor and the garnishee, deposited with a clerk in the employ of the latter, where it might be revoked at pleasure, this was very properly held to be no actual payment, and consequently the garnishee would be charged.'' That it was not the failure to deliver the check in this case which defeated its purpose, is apparent from the ruling of the same Court in a subsequent case, where the check given by the garnishee was placed in the hands of a third person, who was to apply certain desig- nated portions thereof to the payment of other debts of the payee. The third party was in possession of the check when, the garnishee was served, but as it had passed irrevocably from the hands of the drawer, it was decided to be a payment. ^^' § 511. Same — Manner and Time of Payment. — It is not suf- ficient to constitute a payment, that the payer has parted with, the amount of his indebtedness, unless it has been received by 6 Nash V. Brophey, 13 Met. (Mass.) 476 ; Jewett v. Bacon, 6 Mass. 60. sConley v. Chilcote, 25 Ohio St. 320. ■^ Spooner v. Rowland, 4 Allen, 485. 8 Getchell v. Chase, 124 Mass. 366 ; Barnard v. Graves, 16 Pick. 41; 9 Dannie v. Hart, 2 Pick. 204. 1" Barnard v. Graves, 16 Pick. 41. II. Attach.— 24. . § 511 garnishee's DEFENSEa 370 Ills creditor. Neither is it sufficient that the creditor has re- ceived the full benefit of such payment, in every case, though in general these two circumstances concurring will amount to a complete extinguishment of the debt, and prevent the party paying from being charged as garnishee of the party benefited by such payment. Payment to an agent, or depositing to the credit of the creditor in bank, pursuant to former instructions, would probably, in every case, be held a complete satisfaction. So payment by direction of the creditor, or with his consent to a creditor of such creditor, would be equally effectual ; but not so when it was so paid without the knowledge or consent of the one to whom the money was directly owing, and the latter did not ratify the payment made for his benefit, until after the one making such payment had been summoned as garnishee.^ The reason of this is obvious. Up to the time of the attachment, the creditor to whom the money was owing alone had tiie power of disposing of it ; and hence the act of the debtor was unauthorized, and would not have bound the creditor had he seen fit to object. After the attachment, this jus disponendi was gone from the defendant, and consequently his ratification was as void as the original payment. The time when payment is made may become a close ques- tion, in order to determine whether it was prior or subsequent to the service of summons in garnishment. For this purpose, the answer setting up payment should be explicit as to the day, and when the debt was paid on the same day the sum- mons was served, it should appear that it was at an earlier hour in the day ; otherwise, the Court may give the benefit of the doubt as to priority to the service, in which event the gar- nishee will be charged.^ The garnishee unquestionably has it in his power, under ordinary circumstances, to remove all doubt upon this matter, and if he fails to do so, must bear the consequences of his negligence. But circumstances might well arise which would call for a less rigorous construction of the law in this resj^ect. A reasonable exception to the rule that payment must be made before service of summons on the garnishee, is where the 1 Sturtevantt). Robinson, 18 Pick. 175. 2 Harris v. Somerset etc. R. Co., 47 Me. 298. 371 TO defendant's cause op action. § 512 obligation to pay has become fixed by a judgment in favor of some one to whom the garnishee is collaterally liable, prior to service, though such judgment is not paid until after service.^ § 512. Payment under Compulsoiy Process. — We have in former chapters seen examples where, notwithstanding the fact that the payment set up by the garnishee was made under execution, it was held no defense.^ The circumstances under which this occurs are, for the most part, such as to give a show of justification for such rulings, on the ground of gar- nishee's laches in suffering the first judgment to go against him.2 But there are cases where the inability of the Court to afford adequate protection to the intermediate party, is ow- ing to defects in the law which makes the garnishee responsi- ble for the errors of the Court, after placing him in the thank- less position of holder of the bone of contention.^ This, how- ever, is contrary to the general purposes of the statute. The intention is that where the garnishee has once fairly submitted the question of his indebtedness to adjudication, and has paid the judgment rendered against him, he cannot be again re- quired to pay the same demand. If the garnishee pays a judg- ment against him for the debt, after judgment discharging him from liability as garnishee, he cannot be held as garnishee though the judgment discharging him is subsequently re- versed, there being no supersedeas.* And a payment under execution issued on a judgment obtained after the garnish- ment was served, will discharge the garnishee, where the judgment is upon a garnishment issued and served prior to the one in which such payment Is urged as a defense.^ The principle upon which the garnishee is discharged is cor- rectly deduced from the priority of right acquired by service of the summons. But this priority of right does not always obtain, where it Is opposed by a prior judgment rendered on subsequent service. Thus, in Greorgia, it was held that the 8 Infra, § 516. 1 Ante, Oh. XXIX. 2 Watkins v. Cason, 46 Ga. 444. 3 Ante, § 400 ; Home Mutual Ins. Co. v. Gamble, U Mo. 407 ; Mobile etc. B. Co. V. Whitney, 39 Ala. 468. * Webb V. Miller, 24 Miss. C38. 5 2\ew Orleans etc. B, Co. v. Long^0LAla.-498. I § 512 garnishee's defenses 372 garnishees were protected by payment of a senior judgment, though they were first summoned in the suit in which the judgment was asked against them from which they were held exempt. It was also held that an order served on the gar- nishees 2)rior to service in the suit upon which the senior judo-- ment was rendered, requiring the garnishees to pay the amount of their debt to plaintiff in the prior garnishment, would not entitle such plaintiff to judgment against the garnishee, as his right to judgment must rest upon the indebtedness of defen- dant to garnishee.^ Tliis ruling indicates that the only way in which the priority of right gained by service of summons in garnishment can be preserved against a judgment obtained on subsequent service, is by taking measures to prevent such judgments from being rendered. At all events, the garnishee is not left to determine the value of the conflicting rights, at his own risk. The pi'ocess relied on as a justification of pay- ment must, of course, issue from a Court of competent juris- diction. And a payment made under execution which is is- sued on a judgment obtained by false dlsclosux-es, or collusion between the garnishee and the attaching creditor, or the gar- nishee and the defendant, to defraud the real creditors of the garnishee, will be no protection to the latter as against those to whom he is actually indebted.' It is also held, with seem- ingly unnecessary strictness, that the payment set up, whether voluntary or compulsory, to be effective as a defense, must have been made prior to service. While this may be general- ly true, it was harshly applied where, prior to service, the gar- nishee became liable on a judgment rendered against him as surety for defendant ; and defendant being insolvent, he paid the judgment after service, which amounted to more than the debt in respect to which he was garnished. He was, never- theless held liable as garnishee, upon the theory that the ser- vice of garnishment was a transfer to plaintiff, by operation of law, of the garnishee's indebtedness to defendant, and the plaintiff's right cannot be defeated by garnishee's subsequent payments, whether made voluntarily, or by legal coercion.' 6 Hall V. Daniel, 62 Ga. 620. T First National Bank v. Miller, 45 Mich. 413. 8 Watkins v. Field, C. Ark. 391. 373 TO defendant's cause of action. § 513 The only case where subsequent compulsory payment, of a preexistent liability would be. generally held no protection to the garnishee, would be where he was negligent in setting up his liability when summoned in the attachment suit. But where the claim had culminated in a judgment prior to the service, there is no good reason for holding that the garnishee would not be discharged by a subsequent payment. It might fall under a different rule, if the judgment were in defendant's favor.^ But when the judgment debt, that fixes garnishee's liability to defendant, is in the hands of a third party, it can- not be affected by the judgment in attachment, and the gar- nishee is left in a worse positix)n than that occupied by him towards his original creditor. ^'^ § 513. Grarnisliee's Set-off or Cross-Demand. — "When the gar- nishee has a counter claim against the defendant, his creditor, he may set it up against his liability, in all cases where it could have been rendei'ed available as a defense, in a direct action by the creditor who is defendant in the attachment suit.^ But this rule does not aj^ply to garnishees summoned on account of their possession or control of specific chattels which it is sought thus to attach, unless the property held by them is de- posited for the pur])ose of securing t!ie debt or damages they seek to set off or recoup against their liability as garnishees.^ Where the technical desi. Bank, 4 W. Va. 339. § 518 garnishee's defenses 382 moned, "would be a fraud upon the creditors.^ The doctrine as herein stated goes no farther than to insist upon the acquisi- tion of the cross-demand prior to service, and the authorities cited are relied on only so far as they establish this proposi- tion. If the claim of the garnishee is a debt originally due to himself from the attachment defendant, it should have been contracted prior to the service of the writ. This is the gen- eral doctrine. There may be statutes that expressly let in debts that become due at any time before final answer, but it can hardly be intended to include debts contracted subsequent to that time. It may also extend to debts subsequently cre- ated or arising out of previous contracts. But the debt must at least have its inception prior to garnishment. So, if the claim is one acquired by purchase, it must be purchased, or at least contracted for, prior to service of summons. If the gar- nishee claim out of the debt due the defendant anything by way of indemnity for liability assumed for defendant, the lia- bility should have been assumed before the debt was garnished iu his hands. § 518. "WTiether Set-off Due or to Become Due. — But some of the authorities go farther, and hold that the cross-demand must not only be an existing debt or liability, but that the debt should be presently due from the defendant to the garnishee.^ It is so held in cases of admitted hardship on the garnishee, as well where the debt was absolutely fixed prior to service of garnishment, and did not require even the lapse of time to be- come a binding obligation,^ as where it was not yet mature,^ not to mention those cases where there was an element of con- tingency, as where the liability assumed by the garnishee, on account of which he claimed indemnity, was a collateral one. We have seen that the debt in I'espect to which the gar- nishee is summoned may be attached before as well as after 2 Grain v. Gould, 46 111. 293. See Farmers' Bank v. Gettinger, 4 West Va. 305; Pennellr. Grubb, 13 Pa. St. 522. 1 Edwards v. Delaplaine, 2 Harr. 322; Watkins v. Field, 6 Ark. 391; Self u. Kirkland, 24 Ala. 275; Ingalls v. Durnett, 6 Me. 79; Parsons v. Boot, 41 Conn. 161 ; Peunell v. Grubb, 13 Pa. St. 55-'. 2 Watkins v. Field, 6 Ark. 391; Field v. Watkins, 5 Ark. 672. 8 Taylor v. Gardner, 2 Wash. C. C. 488. 883 TO defendant's cause of action. § 518 maturity.^ And this doctrine is so amply supported by au- thority, that It may be said to be general throughout the United States, except where the statute is expressly restricted in its operations to debts due at the time of service.^ The authorities cited, it will be noticed, embrace decisions of the Courts of last resort of most of the States, where it is maintained that the garnishee cannot set off ao"aInst the de- mand made upon him a debt upon which he could not have maintained an action or counter-claim at the institution of the suit. I do not, however, find a case in which It Is decided that the garnishee will be bound in respect to a debt not due when he was served with process, and yet could not claim as a set- off an immature demand upon the defendant in his own favor. Set the rulings on both branches of the proposition from Penn- sylvania, Arkansas, Maine, and Alabama, and the Federal Courts opposite each other, and then suppose a case arising in either of the jurisdictions where It is laid down as the law, (1,) That a party may be charged as garnishee in respect to a debt not due when he was summoned, and (2,) That the garnishee cannot claim a set-off or counter-claim not due at the time of service. Let the hypothetical case Involve both questions, and to give law and justice a chance to struggle for the mastery, suppose the two claims to be equal in amount, and to fall due at the same time. Would either of thqse Courts, under the rule declared, give judgment against the garnishee? Elsewhere, and perhaps in a majority of the States, It has been, or will be when occasions arise, held that the garnishee may set off any debt which is in existence, or contracted for at the time of service, though it is to become due in the future.^ 4 Ante, § 484, 6 Walker v. Gibbs, 2 DaJl. 211; Fulweiler v. Hughes, 17 Pa. St. 440; AVillard V. Sheaf e, 4 Moss, 285; King v. Vance, 46 Ind. 246; Peterson v. Sinclair, 83 Pa. St. 250; Say ward v. Drew, 6 Me. 263; Stewart v. West, 1 Harr. & J. 536; Cot- trellu. Varnum, 5 Ala. 396; 39 Am. Dec. 323; Dunnigan v. Byers, 17 Ark. 492; Nichols v. Scofleld, 2 R. I. 123; Peace v. Jones, 3 Murphey, 256; Fay v. Smith, 25 Vt. 610; Clapp v. Hancock, 1 Allen, 394. Contra, Childress v. Dick- ens, 8 Yerg. 113; McMinn v. Hall, 2 Tenn. 328. For statutory exception, see Morris v. Union Pac. R. Co., 56 Iowa, 135. ^Swamscot Machine Co. v. Partridge, 25 N. H. 369; Boston etc. R. Co. v. Oliver, 32 N. H. 172; Smith v. Stearns, 19 Pick. 20; Allen v. Hall, 5 Met. fMass.) 263; Farmers' etc. Bank v. Franklin Bank, 31 Md. 404; Strong v. Mitchell, 19 Vt. 644. § 518 Garnishee's defenses 384 Thus, the statute in Vermont is construed to allow the gar- nishee to retain for his indemnity from a note presently due, a sum sufficient to cover the amount of a note due to him from the defendant in the future J So in Massachusetts, it was held that one who had become liable on a note as accom- modation indorser, which, however, did not become due until after the service of process of garnishment, could not be charged as garnishee of the principal maker in respect to a smaller debt due when the garnishment summons was served.^ It is extremely questionable whether the ci'editor may cause himself to be summoned as garnishee.^ If not, he is at a de- cided disadvantage with other creditors, unless he is permitted to set off debts not yet due to himself when summoned as gar- nishee. Under special circumstances the creditor may base his action on a debt requiring time to mature, and in this action he may attach debts in the same condition of immaturity, or which are presently due, and hold them until his own demand may be pressed to judgment. If he happens to be both debtor and creditor of the defendant, shall he be deprived of his indemnity, merely because he cannot have himself sum- moned as garnishee in an action where he figures as plaintiff? The general objection to the right of the garnishee to set off debts not due is, that garnishment does not disturb the recip- rocal rights of the parties to the proceeding. That the plain- tiff is subrosjated to the rio-hts of the defendant ag-ainst the garnishee, and the latter could not, if sued by his creditor, claim as a set-off a debt which became due in the future. But the doctrine of exact subrogation does not apply. The plain- tiff is not restricted to the exercise of the rights of the de- fendant. He may obtain judgment against the garnishee under circumstances where the defendant, suing in his own right, would be held to have no cause of action, because his demand was not due. It therefore requires no strained con- struction to hold that the garnishee shall be entitled to protec- tion against the consequences of the altered relation between " Lynde v. Watson, 52 Yt. 648. 8 Boston Type Co. v. Mortimer, 7 Pick. 166; 19 Am. Dec. 266. SeeBoardman V. Gushing, 12 X. H. 105. 9 Ante, § 457. 385 TO dependant's cause of action. § 519 himself and his creditor, which are brought about by an ex- traordinary proceeding to which he is an involuntary party. § 519. Defense of Failure of Consideration. — Among the defenses which are available where one is sued on a contract, is that of failure of consideration ; and to the same extent as the defendant in such an action may resist payment on this ground, may the garnishee support his denial of indebtedness under the contract.^ Thus, where one was indebted on a note, the consideration of which vras certain real estate purchased from the defendant, and after the note was given, the pur- chaser disco vei*ed that there was a judgment lien against the real estate for an amount sufficient to absorb the note ; and the purchaser, in order to free his title, was compelled to sat- isfy the judgment, it was held that he could not be charged as garnishee of the payee. ^ So where the party summoned has any ground of defense on account of the failure, or want of consideration, whether total or partial, he may avail him- self of it against the plaintiff in attachment. But whatever such defense may be, it must be such as the garnishee could have urged against the defendant, had he sought to recover in a direct proceeding.^ It will not sustain a plea of no considera- tion to show that money in the hands of the garnishee was re- ceived by him as agent of the defendant in carrying on an il- licit traffic, as the sale of intoxicating liquors, where such sale is prohibited by law,* although it might be held otherwise where the prohibited merchandise was the direct consideration of the debt. Very nearly related to the failure of consideration, is where the party summoned has been previously discharged from lia- hility, by an offer of performance which was not accepted ; or where the defendant by his conduct has put it out of the pow- er of the party garnished to perform his contract. In all such iMoser v. Maberry, 7 Watts, 12 ; Mathis v. Clark, 2 Mill, Coast. 45G ; 12 Am. Dec. G88. 2 Sheldon v. Simonds, Wright, 724. See Russel v. Hinton, 1 Murphy, 468 ; Ball V. Citizens' etc. Bank, 39 Ind. 364. 8 Jones V. Tracy, 75 Pa. St. 417 ; Norcross v. Benton, 38 Pa. St. 217 ; Blanclii» ard V. Cole, 8 La. IGO ; Wells v. Mace, 17 Vt. 503. * Thayer v. Partridge, 47 Vt. 423. II. Attach — 25. § 520 garxishee's defenses 386 cases, Avhcre the failure of one of the contracting parties is such that the other is not bound, no indebtedness arises, and tlie latter may not be summoned as garnishee of the former.^ § 520. The Statute of Limitations and other Defenses. — "When the debt in respect to which the garnishee is summoned is barred by the statute of Hmitations, he may set this up in the proceeding as a defense.^ The only condition to his right to this defense is that it would have been equally available as a defense to the creditor's suit against the party summoned.^ And in pleading the statute, it is held sufficient, in the absence of special interrogatories, that the garnishee in his answer de- clared that every claim which the defendant might have against him was barred by the statute of limitations.^ So the garnishee cannot insist upon a claim barred by the statute, by way of set-off. In this connection it was decided, that in order to introduce such a set-off, an executor sum- moned as garnishee of a legatee, and holding a note in his own right against the legatee, upon which the testator was surety, which note was barred prior to the testator's death, could not revive it in his own favor against the estate.^ So, under a denial of indebtedness, when interrogated in re- spect to the obligation of a contract falling within the statute of frauds, the garnishee might avail himself of the statute. The fact that the money received is paid, and not deposited^ under a contract on the part of garnishee to render certain ser- vices, or furnish certain specific articles, which contract the garnishee has a subsisting right to perform, does not make him the debtor of the other contracting party, and hence he cannot be so held as garnishee.^ But the defense set up by the garnishee must be one that is legally conclusive, or goes as a fact to the merits. Where the garnishment was a proceeding supplementary to execution, 6 Jewett V. Bacon, 6 Mass. 60. 1 Grossman v. Grossman, 21 Pick. 21 ; Benton v. Lindell, 10 Mo. 557; Hogan V. Emerson, 9 Pick. 144 ; James v. Fellows, 20 La. An. 116. 2Hinkle v. Currin, 2 Humph. 137; Gee v. Gumming, 2 Hayw. (N. 0.) 398; Gee V. Warwick, 2 Hayw. N. G. 354. 8 Grossman v. Grossman, 21 Pick. 21. 4 Wadleigh r. Jordan, 74 Me. 483. f 6 Wheelock r. Tuttle, 10 Gush. 123 ; Kandolph V. Eandolph, 34 Tex. 181. 3S7 TO defendant's cause of action. § 521 it was held no valid defense that the plaintiff was not the own- er of the judgment.'^ So it was held, that it would not avail the garnishee to show that, by his contract with defendant, he was to pay the debt at a certain time, and at a place outside of the State in which the action was brouglit, the Court hav- ing acquired complete jurisdiction of the parties and the sub- ject matter. ''' When the garnishee relies upon affirmative matter to ex empt him from liability, after admitting his original indebted- ness or the possession of defendant's property, he will in gen- eral be held to establish it by a reasonable preponderance, pre- cisely as though he had assumed the affirmative of the issue in an action brought against him by his debtor.^ And where he relies upon any such affirmative defense in his answer, he must adhere to it under the rules of pleading applicable to ordinary actions. Certainly, he should not be permitted to abandon his line of defense on the hearing, and set up another in lieu thereof which is inconsistent therewith.^ 6 Jackson v. Shipman, 28 Ala. 488. ■J National Bank v. Chicago etc. R. Co., 45 Wis. 172. spenell v. Grubb, 13 Pa. St. 552. 8 First Baptist Church v. Hyde, 40 111. 150. CHAPTER XLIII. JUDGMENT IN GARNISHMENT. § 521. Judgments upon which the judgment against garnishee depends. § 522. Judgment by default against garnishee. § 523. Judgment on garnishee's answer. § 524. Garnishees of judgment and execution creditors. § 52.5. Force and effect of the judgment against garnishee. * § 526. Judgment against intervenor. § 527. Collateral attack on the judgment in garnishment. § 528. Judgment discharging the garnishee. § 521. Judgments upon which the Judgment against Gar- nishee Depends. — The judgment rendered in a garnishment pro- ceeding may be for or against the garnishee, in respect to the debt or property alleged to be due to, or to belong to, defend- ant. It is proposed herein to consider the judgment against the garnishee first in order. This judgment, in order to be- come the foundation for final process, must be supported by a judgment against defendant.^ This follows from the nature of the judgment against garnishee, which is only a condemnation of the debt he owes to the payment of plaintiff's demand against defendant.^ In Michigan, it is held that a justice of the peace cannot give judgment against the garnishee, until after he has rendered a valid judgment against the principal defendant, in a cause of which he has jurisdiction.^ And in any event, where the statute authorizes the rendition of a judgment before the principal judgment in the case, the for- mer judgment will be regarded as merely provisional or condi- tional, and will not authorize final ])rocess until judgment is rendered against defendant. Where a verdict was obtained against the defendant on July 11, 1876, but no judgment was 1 Laidlaw v. Morrow, 44 Mich. 547; Withers i'. Fuller, SOGratt. 547; Jackson V. Shipman, 28 Ala. 488; Bean v. Barney, 10 Iowa, 498. 2 Graves v. Cooper, 8 Ala. 811. 8 Laidlaw v. Morrow, 44 Mich. 547. 389 JUDGMENT IN GARNISHMENT. § 521 entered until May 19, 1879, when an order was taken to en- ter judgment nunc pro tunc, and in the mean time, on April 17, 1870, judgment was entered up against the garnishee, such judgment was held properly set aside on motion.^ Whether any judgment whatever may be entered against the garnishee is a matter of statutory regulation, and is of little conse- quence, so long as it remains conditional until the princi- pal demand has been reduced to judgment. In some of the States an execution issues against the garnishee, when judg- ment is obtained against the defendant, and In others he be- comes subject to a rule to show cause why such execution should not issue. But neither the execution nor the rule will be in order until the judgment becomes final and conclusive, so far as defendant's indebtedness is concerned, except where the latter judgment is by default, in foreign attachment, in some of the States where it is subject to be reopened within a year and a day. It is also held in Alabama, that in order to sustain a final judg- ment against the garnishee, the record must clearly show the pre- vious conditional judgment against him, in the statutory forra.^ And that neither the words " Judgment nisi as to J. T. B. " following the judgment against the defendant in attachment, nor a mere recital in the final judgment, of the fact that judg- ment nisi had been rendered, without showing its validity, was sufficient.^ The record of the judgment against the garnishee must also recite the principal judgment, and must specify the amount thereof.^ And the only way in which the principal judgment can be made to appear of record on appeal from the judgment against garnishee. Is by Incorporating it in the bill of exceptions. Where this was not done, the Supreme Court refused to correct the Irregularity In the judgment against gar- nishee, from which the recital had been omitted.^ In addition to the judgment nisi, the Alabama statute requires that a scire facias must be served on the garnishee and returned, or two such writs must be returned " not found," by the sheriff of the 4 Bryan v. Dean, G3 Ga. 317. 6 Code Ala., §2545. 6 Bonner v. Martin, 37 Ala. 83 ; Goode v. Holcombe, 37 Ala. 94. TFaulks V. Heard, 31 Ala. 516. , BFaulks V. Heard, 31 Ala. 516 ; Gunn v. Howell, 27 Ala. 663. § 522 JUDGMENT IN GARNISHMENT. 390 county in which the garnishment was served ; otherwise the omission will be regarded as fatal to the judgment.^ In Geor- gia, since the Act of 1880, ^'^ the law applicable to judgments against garnishees in Justices' Courts has been similar to that which governs in other Courts. A final judgment against the defendant is a condition precedent to a judgment against the garnishee, and if before such final judgment is obtained the garnishee appear and answer, he will be in time to prevent judgment by default.^^ But when the judgment is rendered against the garnishee, after judgment against the defendant, it is not necessary to render another judgment against the de- fendant. It is sufficient to recite the judgment previously rendered.^2 § 522. Judgment by Default against Gramishee. — The judg- ment against the garnishee may be rendered for failure to an- swer, when he has been regularly served with process. To some extent, the process in garnishment imposes the same ob- ligation under the same penalty as original process at common law when served on the defendant. For failure to answer within the time specified, a default may be taken against the delinquent.^ Such default may be taken for failure to file the general answer, or for failure to answer interrogatories.^ But final judgment does not follow, as of course, the entry of gar- nishee's default. Judo;ment must still be obtained against the defendant,^ and the Court may, in its discretion, set aside a judgment so entered in a case of excusable oversight, and the garnishee be permitted to answer the interrogatories regardless of whether their tendency is to discharge him from liability, or merely to show the extent to which he may be charged as a debtor of the defendant.* In exercising the discretion with which Courts are invested as to setting aside judgments by de- ^Goode V. Holcombe, 37 Ala. 94. 10 Code, § 3304. 11 Arnold v. Gullatt, 68 Ga. 810. i^Keimedy v. Alridge, 5 B. Mon. 141. 1 Corbyn v. Bellman, 4 "W. & S. 342. 2 Corbyn v. Bollman, 4 W. & S. 342. ^ Supra, § 521. 4 Marchand v. Noyes, 33 La. An. 882 ; Hueskamp v. Van Leuven, 56 Iowa, 663. 391 JUDGMENT IN GARNISHMENT. § 522 fault, gjceater indulgence is extended to garnishees than to de- fendants under like circumstances. Thus, where the gar- nishee's affidavit, in support of a motion to set aside a judg- ment obtained against him in this manner, was to the effect that he had been busy building, and that on the day when he should have appeared he was busily engaged in moving into and furnishing a new hotel, and was so enerasied in the busi- ness, and the length of time between the service of the writ and the day for appearance was so great, that the matter had wholly escaped his memory, the Supreme Court sustained the discretionary judgment by which the default was set aside, but intimated that had it appeared that the garnishee was neg- ligent, they might have held otherwise.'^ Where the garnishee appeared in Court in response to the summons, and was ready to answer, but by arrangement with the plaintiffs' attorneys the taking of his answer was deferred, and that he accordino-- ly went away, and in his absence was defaulted, shows suffi- cient grounds for setting aside the default.*" A more satisfac- tory showing of diligence will generally be required, when the judgment against the garnishee has been allowed to become final, and is collaterally attacked by the garnishee,^ or when he seeks to show cause on scire facias why final judgment should not be entered against him, for failure to answer. In the lat- ter event, he must not only excuse his default, but show a meritorious defense.^ Mere ignorance of the necessity of ap- pearing, which is not founded upon some alleged deceit prac- ticed upon the party summoned by the plaintiffs, or others in- terested against him, will not suffice to warrant setting aside the default.^ When the garnishee is regularly summoned, and has an opportunity to make his defense, and neglects to do so, and judgment is I'egularly entered against him, he will not be heard to say, after the term has passed, that it was ob- tained by mistake or surprise.^^ A judgment by default, to 6 Evans v. Mohn, 55 Iowa, 302. 6 Hueskamp v. Van Leuven, 56 Iowa, 653. 7 Atlantic etc. Ins. Co. v. Wilson, 5 E. I. 479 ; Infra, § 527. 8 Field V. Wood, 9 Iowa, 249 ; Smith v. Clarke, 9 Iowa, 241 ; Parmenter v, Childs, 12 Iowa, 22. 5 Freidenricli v. Moore, 24 Md. 295. w Abell V. Simon, 49 Md. 318. § 522 JUDGMENT IX GARXISUMENT. 392 become tlie foundation of a valid final judgment against the garnishee, must be rendered on valid process ; otherwise the judgment will be open to attack on jurisdictional grounds. Thus, where the writ of garnishment fails to designate the cause in which the garnishee is called upon to answer, or wlien the affidavit for the writ omits to state that the garnishee re- sides in the county where the suit was brought, these facts be- ing necessary to jurisdiction, no judgment can be entered for the failure to appear and answer. ^^ Nevertheless, it is held that the service of the writ is not void, but only irregular, when served in the wrong place, and such irregularity may be ■waived. ^^ W here the garnishee failed to appear in response to summons, it was held that his default might be entered be- fore interrogatories were filed by plaintiff, it not being neces- sary to file such interrogatories until after the garnishee had entered his appearance, and the Supreme Court refused to re- view the action of the Court below in refusing to set aside the default on garnishee's application.^^ But in Illinois it is held that the affidavit for garnishment on a judgment should state the amount of the judgment, and that interrogatories for gar- nishee to answer should be filed before he could -be adjudged in default. ^^ In a somewhat early case in Alabama, where the garnishee failed to appear, and no action was taken against liim during the return term, but an order of publication was taken as to the defendant, and at the following term, judg- ment by default 7iisi was taken against the garnishee, the pro- ceeding was held regular, and that there was no discontin- uance as to the garnishee. ^° In Louisiana, it has been decided that a neorlect to answer within the time is considered a con- fession of liability — but only to the amount of the debt men- tioned in the Interrogatories — and that the formality of default •was not necessary; also, that a failure to obtain judgment at the time judgment was rendered against the defendant, was no waiver of the right to pi'oceed against the garnishees at a 11 Johnson v. McCutcliings, 43 Tex. 553. 12 Peters v. League, 13 Md. 58. laParmentert). Childs, 12 Iowa, 22 ; United States Ex. Co. v. Bedbury, 34 HI. 459. " Stickley v. Little, 29 III. 315. ^ Eobinson v. Starr, 3 Stew. 90. 393 JUDGMENT IN GARNISHMENT. § 522 future day.'^ But where the garnishee filed his answers to in- terrogatories, and six years thereafter the plaintiff took a rule against the garnishee, to show cause why judgment should not be rendered against him, it was held that final judgment could not be rendered therein. ^^ Some question may be made of the authenticity of gar- nishee's answer, particularly when it controverts the assump- tions of indebtedness or possession of property upon which he was summoned. That is, it may be questioned whether the answer was filed by his authority. But where an agent has been served with process against a foreign corporation, and such agent has been authorized to accept service jf process in actions generally, the corporation cannot be treated in default for want of an answer, after disclosures filed by such agent. ^^ Indeed, the authority of an agent or attorney to appear by an- swer in any case of garnishment can hardly be more closely inquired into, than would be his authority to appear in an or- dinary action in behalf of the defendant. There are several incidents to the judgment which is finally entered on garnishee's failure to answer, which apply uniform- ly, and are necessary to the validity of the judgment where- ever relied on. 1. The Court must not only have jurisdic- tion of the parties and the subject matter, but such jurisdiction should be apparent in the record. The essentials to jurisdic- tion will, of course, depend upon the requirements of the stat- ute in that behalf. 2. The garnishee must not have been prevented from appearing by deceit practiced upon him by plaintiff; but this negative matter need not appear of record, otherwise than inferentially from the recitals showing juris- diction. 3. The amount of the judgment thus obtained will be limited strictly to the sum expressed in the preliminary af- fidavit, or the process. 4. The default will not be excused by mere irregularities in the proceedings, that do not affect the jurisdiction; nor by ignorance of the law, or negligence on the part of the party summoned.'^ 16 Sturges V. Kendall, 2 La. An. 565. 17 Slatter v. Tiernan, 6 La. An. 567. iSLormanu. Phoenix Ins. Co., 33 Mich. 65. '^ Supra. §. 523 JUDGMENT IN GARNISHMETTT. 394 § 523. Judgment on Garnishee's Answer. — After the judg- ment, which may be had on the garnishee's failure to appear and answer, comes the judgment that may be entered on the answer itself, as the more expeditious procedure against the garnishee. This may be on the general answer, or the answers to interroQ-atories, taken altoo;ether. The garnishee is summoned upon the assumption that he has in his possession, or under his control, certain specific property which belongs to defendant, or in which he has an interest ; or that he is indebted to defendant. The assumption goes farther, and takes it for granted that none of those circum- stances, such as prior liens, contracts, and the like exist, where- by garnishee's liability to defendant may be qualified or abro- gated. If the garnishee, answering, admits these assumptions to be so far correct that there is a subsisting, unembarrassea liability to defendant, and no intervening claims of which he was ignorant appear from other sources, the judgment taken against the garnishee is simply one of confession. And though the answer expressly denies all liability, yet if the facts disclosed clearly show indebtedness, it will be treated as a pleading which draws erroneous conclusions from admitted facts, and he may be charged on his answer.-^ So, where the garnishee filed an answer, admitting the possession of funds of defendant — at the same time moving to quash the attachment, but giving no reasons for his motion — and the intervening claimant failed to show any interest in himself, it was very properly held that judgment for plaintiff must follow.^ The admissions of the garnishee, and in fact his whole answer, has been treated as evidence adduced by plaintiff, who is bound by his testi- mony, as he would be by any witness called to establish or dis- prove a controverted fact.^ This, however, is a theory that can only be followed until we encounter plaintiff's unques- tioned right to take issue on the garnishee's answer.^ It also differs from evidence in ordinary cases, for the reason that its admissions are only binding upon the garnishee answering. 1 Donnelly v. O'Connor, 22 Minn. 309. 2 Robertson v. Beall, 10 Md. 125. 3 Banning v. Sibley, 3 Minn. 389. 1 Ante, Ch. XXVIII. 395 JUDGMENT IN GARNISHMENT. § 523 Hence, where two executors were sought to be garnished, but only one was served and answered, judgment could not be en- tered against both on such answer.^ It may also be a matter for consideration whether the an- swer shows indebtedness at the time of service. Where sub- sequent indebtedness is not affected by garnishment, it is not sufficient that the answer shows indebtedness, unless it had accrued, and under some statutes, in particular cases, that it was due when the summons was served.*^ When the garnishment is issued in aid of an execution, in Nebraska, no personal judgment against the garnishee is re- quired. It is simply an order for him to pay into Court the amount admitted to be due and payable to defendant. This order may be enforced by execution ; but if personal judgment is required against the gai'nishee, resort must be had by plain- tiff to a personal action, as jjrovided by the code of that State in cases of garnishment before judgment.'^ In order to obtain judgment on the answer, or the answers to interrogatories filed, they must be considered as a whole, and it must clearly appear that garnishee is chargable.^ If the facts stated in the answer leave a reasonable doubt wheth- er he is liable or not, the judgment should be in his favor. ^ The natural import of the language used in the answer must control its construction, and the garnishee is to be charged, or not, according as the evidence afforded by the entire answer preponderates.^*^ It is for the plaintiff to prove his allegations, and not for the garnishee to disprove them.^^ So, where the answer stated that the defendant in atttachment placed in the hands of the garnishee money which the defendant said, and 6 Terry v. Lindsay, 1 Stew. & Port. 317. 6 Morris v. Union Pacific R. Co., 5G Iowa, 135, 137; Sanford v. Bliss, 12 Pick. 116. T Clark V. Foxworthy, 14 Neb. 241. 8 Banning ?'. Sibley, 3 Minn. 389; Church v. Simpson, 25 Iowa, 408; Coe r. Eocha, 22 La. An. 590; Frost v. Patrick, 3 Sm. & M. 783: Lorman v. Phoenix Ins. Co., 33 Mich. 65; Rich i'. Reed, 22 Me. 28; Moore v. Moore, 12 Phila. 173; Pierce v. Carleton, 12 111. 358; 54 Am. Dec. 405. ^ Banning v. Sibley ,3 Minn. 389; Morse v. Marshall, 22 Iowa, 290; Pioneer Printing Co. v. Sanborn, 3 Minn. 413, Perine v. George, 5 Ala. 641; Thompson V. Fischesser, 45 Ga. 369; Wyman v. Stewart, 42 Ala. 163. . " Bibb V. Preston, 1 Iowa, 4G0. " Cardauy v. New England Furniture Co., 107 Mass. 116. § 523 JUDGMENT IN GARNISHMENT. 396 tlio garnisliee believed, belonged to a third party, it was held that, the answer being iincontroverted, was insufficient to war- rant a judgment against the garnisliee.'^ Thougli the answer be somewhat vague in its statements, and inartificially drawn, yet if it contains a substantial denial of indebtedness, it is error to render judgment thereon against the garnishee. ^^ So, where exceptions were taken to the manner of answering tlie interrog- atories filed, and six years after the answers were filed, plain- tiff took a rule on the garnishee to show cause why judgment should not be rendered on such answers, it was held that final judgment could not be rendered in the case against the garnish- ee.^^ But where the answer admitted indebtedness to " defend- ant," there being two defendants, and the proceedings indicated which one of the defendants was meant, the judgment ren- dered on the answer was sustained. ^^ In Pennsylvania, it seems to be improper in any event to enter judgment in favor of the garnishee on his answer. When it does not show liabil- ity, all that can be done is to refuse to render judgment for plaintiff in the garnishment proceeding. ^'^ This seems to be more of a distinction in names than a substantial difference in modes of accomplishing the same end, as the Court can hardly avoid making a final order of some sort, disposing of the con- troversy. But in a somewhat early case in Mississippi, it was held that where the answer narrated certain facts which did not disclose any indebtedness, and its truth was not controvert- ed, final judgment could not be entered ; but the Court should enter judgment Wisi, and a scire facias should be ordered.^' This would give the plaintiff the benefit of a default, and the answer would still be open to question on the hearing under the rule to show cause. In most of the States, however, where the uncontroverted answer is relied upon by the plaintiff, and fails to show liability, the garnishee will be discharged. The statements so frequently made in the authorities cited, that where the answer does not affirmatively show the garni- 1- Oliver v. Atkinson, 11 Port. 546. 13 Smith V. Brunei, 23 Miss. 508. " Slatter w. Tiernan, G La. An. 567; Lockhart v. Johnson, 9 Ala, 223. 15 Gould V. Meyer, 36 Ala. 565. 16 Hes.s V. Sborb, 7 Pa. St. 231; Moore v. IMoore, 12 Pbila, 173. 1' Frost V. Patrick, 3 Sm. & M. 783. 397 JUDGMENT IN GARNISHMENT. § 524 shee's liability, In the absence of any evidence by wlilcli It Is contradicted, the judgment will be In his favor, must be taken with this qualification. The answer, to be taken as, iwima facie, favorable to the party making It, must be fully responsive, explicit and unequiv- ocal. Where It Is manifestly evasive, and evinces a disposi- tion on the part of the party summoned to conceal or equivo- cate in regard to the question of his liability ; substituting mere conclusions of law for the facts Avhich are the real sub- ject of Inquiry, it will be construed most strongly against the garnishee, and the judgment may properly go against him, as for the want of an answer.'^ But In order to have this effect, the answer will not be judged evasive upon any stralne.d con- struction of its language. When he has. In good faith, fully and explicitly answered, this is all that Is required, and if after this no liability Is admitted, he cannot be charged.-'^ And though an ultimate liability may be shown, subject to certain conditions, the judgment cannot ignore such conditions, or give the attaching creditor other or superior rights to those, which the defendant had in his o\m behalf, prior to garnish^ ment. Thus, where the answer showed a contract of insurance, and a loss, but also stated that the loss had not been adjusted according to the terms of the contract, the creditor could not, on the face of the answer, obtain a valid judgment, ordering. an immediate adjustment, or payment of the loss.^^ § 524. Garnishees of Judgment and Execution Debtors. — Hitherto, the principles that govern the process of garnish- ment, and the authorities examined, have been such as ap- plied indiscriminately to original attachment suits, and proceed- ings in aid of prior judgments and executions. It was not isOrmsbee v. Davis, 5 R. I. 442; Kelly u. Bowman, 12 Pick. 383; Brainard V. Shannon, GO Me. 342; Grain v. Gould, 4GI11. 293; Graves v. Walker, 21 Pick. 160; Hart?;. Dahlgreen, IG La. 559; Keel v. Ogden. 5 Mon. 362; Scales i'. Swan,. 9 Port. 163; Scott v. Bay, 18 Pick. 360; Yason v. Clarke, 4 La. An. 581; Barker V. Osborne, 71 Me. 69; Parker v. Page, 38 Gal. 522; Sebor v. Armstrong, 4 Mass. 206. For particular examples of evasive answers, see ante, § 377. 13 Moses «. McMuUen, 4 Gold. 245; Mayor etc. v. Potomac Ins.. Co., 2 Baxt. 296; Shearer v. Handy, 22 Pick. 417; Spears v. Chapman, 43 Mich. 541; Jones. V. Howell, IG Ala. 695. 20 Katz V. Sonsby, 34 La An. 588. § 524 JUDGMENT IN GARNISHMENT. 398 deemed expedient to treat them separately, for the reason that there is so little that is peculiar to the process, in one or the other of these forms of proceeding, by which they may be dis- tinguished. The garnishment after judgment is mentioned here, merely because it is subject to some peculiarities in the manner of taking judgment in the proceeding against the gar- nishee. When the judgment is that of a foreign Court, the only difference is that the plaintiff is under no necessity of proving his original demand, but may proceed as in ordinary actions on judgments, to establish his claim against the princi- pal defendant by a transcript, duly certified, of the original record. When the attachment issues on a domestic judgment, where the action is maintainable without suing on the judg- ment, the proceedings are by affidavit, summons in garnish- ment, the return of the officer, and the answer of the gar- nishee. The subsequent proceedings are such as have been already described, depending upon whether the answer is con- tested or not; but the original judgment forms no part of the record in the proceeding against the garnishee, unless made so by being set out in the preliminary papers, or is incorporated in the bill of exceptions.^ When an execution has been issued, it may or may not become a part of the record; but where it is authorized, as in most of the States, the answer of the gar- nishee may be taken by the officer in charge of the writ, or he may summon the supposed debtor of the defendant, without any affidavit, or other initial jiroceeding. It is, in fact, one of the modes of levying the execution. But the judgment should be made to appear, in some manner, where its existence or validity is the subject of contest between the plaintiff and the garnishee.^ But where a Justice of the Peace, in a return to a writ of certlorori, sent up the affidavit made before him, the summons, the answer, and the judgment thereon against the garnishee, together with a statement of the original judgment, it was held prima facie sufficient, and if the party objecting relied on other proceedings, it was incumbent on him to show 1 Gunnr. Howell, 27 Ala. 663 ; Jackson?). Shipman, 28 Ala. 488 ; Chambers V. Yarnell, 37 Ala. 400 ; Gould v. Meyer, 36 Ala. 565. 2 Alley V. Moore, 2 Tenn. Cb. 206 ; Faulks v. Heard, 31 Ala. 516 ; Stickly v. Little, 29 111. 315. 399 JUDGMENT IN GARNISHMENT. § 525 them.^ In any case where the statute requires the prelimin- ary affidavit, the recital in the writ that it was filed is not sufficient.* § 525. Force and Effect of the Judgment against Gar- nishee. — Taking judgment against the garnishee either autho- rizes the issue of execution against him, or it authorizes the issue of a scire facias, under which the garnishee may appear and show cause, if any there be, why he should not be charged.^ In some of the States, the gai'nishee receives notice of a motion for execution, which he may appear and oppose.^ Where the garnishee appears under the rule to show cause, he stands to some extent in the position of a party making a collateral at- tack upon a judgment. He is required to show: (1) If the judgment was against him for failure to answer, a good excuse for such failure.^ He would probably not be required to make as strong a showing as though the judgment were final, in the sense that it might be executed without further procedure, which we shall have occasion to consider further on.* But the reasons must be sufficient to warrant the Court in settino* aside the default, for, until that is done, no answer that the garnishee may file, or offer to file, will be considered.^ Mere ignorance will not be sufficient excuse for failing to answer.^ There is a certain presumption of negligence to be overcome, and this cannot be made to appear by showing that the gar- nishee eri'ed in his opinion as to the legal obligation resting upon him, by reason of service of process. If the trial Court refuses to set aside the default, its discretionary action will rarely be reviewed by the Appellate Court.'^ (2) The pai'ty summoned must show a meritorious defense to the proceeding.^ 3 Gould V. Meyer, 36 Ala. 565. ^ Hoffman v. Simon, 52 Miss. 302. 1 See Statutes; Ware v. Bucks, Port R. Co., 69 Me. 97; Dailey v. Coleman, 122 Mass. 64. 2 See Statutes. 3Fifielcl V. Wood, 9 Iowa, 249 ; Smith v. Clarke, 9 Iowa, 241. ^ Infra, § 527. 6 Fifield V. Wood, 9 Iowa, 249. "Freidenrich v. Moore, 24 Md. 293. ''Supra, § 522. 8 Parmenter v. Childs, 12 Iowa, 22 ; Fifield v. Wood, 9 Iowa, 249 ; Smith u, Clarke, 9 Iowa, 241. § 525 JUDGMENT IN GARNISHMENT. 400 It 13 not sufficient to show mere iiTegularities or amendable errors.^ When the judgment has been rendered against the garnishee, after all preliminary questions are disposed of, and he has en- joyed all the opportunity afforded by the law to be heard as to his liability, it binds only himself and the parties in privity with him, or who are parties to the proceeding. It is not con- clusive upon another attaching creditor of the defendant. ^"^ Nor will it be conclusive upon the defendant, for the purpose of fixing the extent of garnishee's indebtedness, as otherwise the garnishee, by admitting an amount sufficient to satisfy plaintiff's judgment and costs, might bar a subsequent action by his creditor for an amount largely in excess of plaintiff's claim. ^^ For obvious reasons, the matter having been litigated between the plaintiff and the garnishee, the judgment is bind- ing upon them. But by taking such judgment, the plaintiff does not sacrifice his common law right of action against the defendant. The judgment in garnishment does not operate as a merger of the principal judgment ; hence, the plaintiff may proceed upon either or both, until one of them is fully satis- fied.i2 It is held in Illinois, that the judgment against the gar- nishee should be in the name of the defendant.^^ This is the effect of the judgment, in any case, for its satisfaction extin- guishes the debt to the defendant, pro tanto. But the record generally expresses it as a judgment in favor of the plaintiff. In Alabama, it is held that where a judgment debtor is gar- nished, the affidavit should be made by the real owner of the judgment ; but when it comes to the entry of judgment in gar- nishment, it must stand in the name of the plaintiff of record, and not in the name of the real owner of the judgment in re- spect to which the summons vras served, where the owner and the plaintiff are different ^^ersons.^* 9 Ibid. 10 Wheeler v. Aldrich, 13 Gray, 51 ; Tarns v. Bullitt, 35 Pa. St. 308 ; Bread- ing V. Siegworth, 29 Pa. St. 396 ; Freeman on Judgment, § 167. 11 Barton i\ Albright, 29 Ind. 489 ; Groves v. Brown, 11 Mass. 334 ; Brown v. Dudley, 33 N. H. 511. 1- Price V. Higgins, 1 Litt. 273 ; Freeman on Judgment, § 228. 1^ Chicago etc. R. Co. v. Mason, 11 111. App. 525. " Jackson v. Shipman, 28 Ala. 488. 401 JUDGMENT IN GARNISHMENT. § 526 § 526. Judgment against Intervenor. — When one comes into the garnishment proceeding as a claimant by intervention, he assumes the burden of proving his right to the credits or effects attached, and to entitle him to judgment must prove vrhat his interest is.^ If he claim as assignee, and the assign- ment is subsequent to the garnishment, of tangible effects, or a non-negotiable chose in action, he is bound by the judgment against the garnishee, whether he intervenes or not.^ So, where a judgment debtor was garnished, the subsequent, as- signment of the judgment conferred no rights on the assignee.^ The proceeding being instituted for the purpose of testing gar- nishee's liability to defendant, in order to determine whether the plaintiff may have such liability applied in satisfaction of his demand against the principal defendant, intervention by an adverse claimant gives the latter no right to object to a disso- lution of the attachment, and discharge of the garnishee. When for any reason this result follows, the Court will not proceed with the case In order to adjudicate the claimant's rights to the subject of controversy.* § 527. Collateral Attack on the Judgment in Garnishment. — The judgment In garnishment stands upon substantially the same grounds as a final determination of the rights of the par- ties thereto and their privies, as any other judgment of a Court of competent jurisdiction. We have already seen that such judgments may be impeached by a direct proceeding for that purpose, and under peculiar circumstances may be collaterally impeached.^ The only disadvantage under which a judgment of this kind stands, as compared to ordinary adjudications, is the double proceeding which is necessary to Its rendition, and the added chances of failure of jurisdiction. If the principal judgment should be void for want of jurisdiction, it will prove as fatal to the auxiliary judgment as though jurisdiction were wanting in the garnishment proceeding. But mere Irregulari- ties will not leave the one judgment open to impeachment col- 1 Donnelly v. O'Connor, 22 Minn. 309. 2 Burton V. District Township, 11 Iowa, 166. * Phillips V. Gorman, 43 Iowa, 101. * Peck V. Stratton, 118 Mass. 406; Blume v. Gilbert, 124 Mass. 215; Clark v. Gardner, 128 Mass. 358. 1 Ante, § 46. II. Attach.— 26. § 527 JUDGMENT IX GARNISHMENT. 402 laterally, more than tlie otlier.^ Where a Justice of the Peace obtained jurisdiction in foreign attachment, and goods ■were sold on execution under tlie judgment rendered by him, it was held that the defendants could not, in an action of tro- ver for the goods, object to irregularities in the return of sum- mons, nor to mere irregularities in the judgment.^ So, mere informalities will not justify a collateral attack by one who claims as assignee.* When a Court of law is unable to relieve a garnishee, who by fraud, accident or mistake has been prevented from answer- ing, or making his defense to the proceeding, a Court of equi- ty will grant relief.^ But such relief will not be granted when the failure to answer is caused by the negligence or careless- ness of the garnishee or his agent.*^ Thus, a banking company was summoned as garnishee, and the cashier advised with the attorney who was retained generally in its business, as to what should be done, and was told to make an affidavit. But the attorney was not requested to attend to the matter, nor did the officer signify any intention that he should do so by leav- ing with him the copy of the writ, nor by informing him what he had to disclose. The cashier, whose duty it was to make the answer, knew before the day for answering arrived that the attorney was acting for the plaintiff, and still nothing further was done. Under these circumstances, it was held that the garnishee had no right to expect that the attorney consulted would attend to the matter, and as the omission was clearly negligent, the Court would grant no relief from the judgment.^ So, wdiere the garnishee's indebtedness to er accounting officers for the allowance thereof; and the same shall thereupon be allowed and paid out of any moneys in the treasury not otherwise appropriated. The amount so to be allowed and paid shall not, however, exceed the value of the interest of the United States in the property in question. ALABAMA. [Civil Code of 1876, and Subsequent Statutes.] TITLE II, CHAPTER L ATTACHMENTS AT LAW. OP THE ISSUE OF ATTACHMENTS. § 3252 (2927).— Attachments may issue— 1. To enforce the collection of a debt, whether it be due at not, at the time the attachment is taken out. 2. For any monej^ed demand, the amount of which can be certainl,y^scertained. 3. To recover damages for a breach of contract, when the damages are not cer- tain or liquidated. 4. When the action sounds in damages merely. § 3253 (2928).— And in the following cases: 1. When the defendant resides out of the state. 2. When the defendant absconds. 3. When the defendant secretes himself so that the ordinary process of law can not be served on him. 4. "When the defendant is about to remove out of the state. 5. When the defendant is about to remove his property out of the state, so that the plaintiff will probably lose his debt, or have to sue for it in another state. 6. When the defendant is about fraudulently to dispose of his property. * 7. When the defendant has fraudulently disposed of his property. 8. When the defendant has moneys, property, or effects, liable to satisfy his debts, which he fraudulently withholds. § .3254 (2929). — In the first and second cases mentioned in the first section of this article, it may be issued by any judge of the circuit court, returnable to any county in the state, or by the clerk of the circuit court, judge of the probate court, or any justice of the peace, within their respective counties. In the third and fourth cases, by a judge of the circuit or probate court, or chancellor only, returnable to any county. § .3255 (2930). — The officer, before issuing the attachment in the first two cases mentioned in the last section, must require the plaintiff, his agent or attorney, to make oath of the amount of the debt or demand, and that it is justly due; also, that one of the causes enumerated in the second section of this article exists, and that the attachment is not sued out for the purpose of vexing or harassing the defendant; which ri.ust also be reduced to writing, and subscribed by the party. § 3256 (2931). — He must further require the plaintiff, his agent or attorney, to execute a bond in double the amount claimed to lie due, with sufficient surety, pay- able to the defendant, with condition that the plaintiff will prosecute the attach- ment to effect, and pay the defendant all such damages as he may sustain from the vnrongf ul or vexatious suing out of such attachment. 420 ALABAMA. § 3257 (2932). — Wlien an attachment is applied for in the cases provided for in the third and fourth subdivisions of the first section of this article, the judge or chancellor, before issuing it, must require the plaintiff, his agent or attorney, in addition to the affidavit and bond required in other cases, to make affidavit in •writing of the special facts and circumstances, so as to enable him to determine the amount for which a levy must be made; which sum may, at the discretion of the coiu-t, be reduced at the return term of the attachment, on affidavit of the defendant, and the levy released to the amount of such reduction. § 3258 (2933). — A non-resident of this state may sue out an attachment against a non-resident for an existing debt, or ascertained liability; but the plaintiff, his agent, or attorney, is required, in addition to the oath necessary in other cases, to swear that, according to the best of his knowledge, information and belief, the defendant has not sufficient property within the state of his residence, wherefrom to satisfy the debt; and must also give bond as in other cases, with surety, resi- dent in this State. [Amended Stats. 1883, p. 147.] § 3259 (2934). — When an attachment is sued out against a non-resident of the state, the writ shall be returned to the clerk of the court as soon as levied upon the property- of the defendant, and thereupon the clerk shall cause a notice of the attachment and levy on the defendant's property, to be advertised cnce a week, for three successive weeks, in some newspaper, a copy of which must be sent by mail to the defendant, if his residence is known, or can be ascertained, and if such publication is perfected twenty days before the next term of the court, the case shall stand for trial at that term, otherwise at the succeeding term, or any other term after the perfection of such publication, twenty days prior thereto. — [February 23, 1883; Statutes 18S2-3, p. 147.] § 3260. — Notice of -the levy of the attachment shall be given in writing by the sheriff, or other officer who makes such levy, to the defendant in person, or notice thereof in writing left at his residence, if resident in the county; and if not resi- dent in the county, but a resident of the state, then by jjutting up a written notice at the court-house door, and by sending a copy of the same by mail, addressed to the defendant at the post-office nearest his residence. § 3261 (2936). — Corporations, either foreign or domestic, are entitled to process of attachment for the recovery of the debts, or ascertained demands due them; the j)resident, cashier of the corporation, or an agent, or attorney thereof, making the affidavit and executing bond as in other cases. § 3262 (2937). — T^Tien an attachment is sued out in favor of a non-resident or a corpoi-ation, security for the costs of the suit may be taken and approved by the officer issuing the same, or may be indorsed with his approval on the attachment. § 3263 (2938). — Process of attachment may issue against foreign corporations, having x^roperty in this state, for the recovery of debts, or to recover damages for a breach of contract when the damages are not certain.or liquidated, or in cases where the action sounds in damages merely, in the same manner and subject to the same rules as in case of natural persons residing without this state. § 3264 (2939).— The form of attachment must be in substance as follows; but no objection shall be taken for any defect in form, if the essential matters are set forth: The State of Alabama, ) To any sheriff of *-he State of Alabama: Coimty. ) WTiereas A. B. (or C. D. , as the agent or attorney of A. B., as the case may be), hath complained on oath to me, E. F., judge of the circuit com-t of said state (or justice of the peace, or judge of the i^robate court, or clerk of the circuit court of said county, or as the case may be), that G. H. is (or wiU be, as the case may be), justly indebted to the plaintiff in the sum of doUars, and the plaintiff having made affidavit and given bond aa required by Ihw, in such cases, you are hereby commanded to attach so much of the estate of G. H. as will be of value to satisfy the said debt and costs, according to the complaint; and such estate, unless replevied, so to secure that the same may be liable to fin- ther proceedings thereon, to be had at the next term of the circuit comi; for the county of , to be held at the com-t -house thereof; when and where you must make known how you have executed this writ. Witness my hand this, etc. E. F., Clerk. § 3265 (2940).— The bond and affidavit must be returned by the officer issuing the attachment, to the coui-t to which the attachment is returnable. § 3266 (2941). — Attachment process may issue and be executed on Sunday for the collection of debts, if the plaintiff make oath as is required for the issue of bail process on Sunday, and give the bond required in this chapter. ALABAMA. 421 § 3267 (2912). — The provisions of this chapter are applicable to all private cor- porations, and all affidavits or answers required to be made under its provisions may be made by the president, cashier, secretary, or any other duly authorized agent of such corporation; and such corporations may do and be dealt with under its provisions in the same manner as if they were natural persons. IN WHAT MANNER AND UPON WHAT PROPERTY EXECUTED. § 3268 (2943). — Attachments may be levied on real estate, whether the same be a fee simple or any less legal estate, or personal i^roperty of the defendant; or the same may be executed by summoning any person indebted to, or having in his possession, or under his control, property belonging to the defendant; and the officer executing the writ must indorse the levy or service thereon; and if i^racti- cable, take the property in his possession, unless replevied, as hereinafter described. § 3269 (2944). — Such person is called the garnishee, and must be cited by the officer to appear at the return term of the writ, and answer upon oath whether he was indebted to the defendant at the time of the levy of the attachment, or at the time of making his answer, and whether he will not be indebted in future to him by a contract then existing; and whether he has not in his possession, or under his control, personal property, or things in action, belonging to the defendant; a copy of which citation he must return executed, together with the attachment and levy. _ § 3270 (2945). — An attachment may be levied on the joint or separate estate of joint obligors, promisors, or partners, whether resident or non-resident. • § 3271 (2946). — Executors and administrators may be gamisheed for a debt due by the testator, or intestate, to the defendant, and may commence a suit by attach- ment in their representative character. § 3272 (2947). — Executors and administrators may be gamisheed for debts due the legatees, or distributees; but no judgment can be rendered against them until a settlement of the estate, unless they assent to the legacy, or admit assets to pay the amount claimed, or some portion thereof, out of the distributive share of the debtor. § 3273 (2948). — Money in the hands of an attorney-at-law, sheriff, or other officer, may be attached; and in the case of officers of the com-t, must be paid into court, to abide the result, unless the court otherwise direct. § 3274 (2949). — No judgment can be rendered against an executor or adminis- trator upon his answer in attachment, or garnishment, until the lapse of eighteen months after grant of letters. §3275 (29.")0).^ — Money or effects of the defendant in the hands of a trustee, may be attached and held subject to the validity of the instrument creating the trust; or the excess remaining in the trustee's hands, after the execution of the trust, if valid; but if the deed be held void, the trustee, if not guilty of actual fraud, may retain for.a debt due himself, and must Ije protected so far as he has acted in good faith under the trust, before the levy of the attachment. § 3276 (2951). — A debt in suit, in any of the coiuH;s of this state, may be at- tached; and if the suit is not depending in the same court where the attachment is brought, the court, after judgment, on proof by the garnishee of the pending attachment, must stay execution, until notified by the clerk of the court in which the attachment is instituted, that final judgment has been rendered; in which case, it must make the approi^riate order, according as the judgment is rendered for the plaintiff or defendant. § 3277 (2952). — The attachment may be executed in any county of the state by the sheriff of the county in which the property is found, or in which any person may be found indebted to the defendant, or having proi^erty or things in action of the defendant in his possession, or under his control. The sheriff must take and hold the property attached, unless replevied, subject to the order of the court in which the attachment is pending. § 3278 (2954). — Branch writs of attachment may issue to any county of the state, directed -to any sheriff of the state of Alabama, to be executed as in the preceding section. § 3279 (2953). — When process of attachment is issued by a justice of the peace, if the plaintiff, his agent or attorney, make oath t hat there is danger of losing the debt, unless the process is executed by a constable, and the amount of the debt does not exceed the amount of the constable's bond, such justice may have such 422 ALABAMA. process executed by the constable of the beat in wliich the process issued, and the retiu-n of the service may be made to the court in which the ^^Tit is returnable, by such justice or constable, who shall be subject to all the liabilities provided by law, for failing to dischai-ge any dutj' in relation to such service or return. § 3280 (2955). — The levy of an attachment creates a lien in favor of the plaintiff, \ipon the estate of the defendant so levied on, from the levy; and upon the money or effects in the possession of the garnishee, from the service of garnishment. § 3281 (2956). — If the property le\'ied on be perishable, it must be sold by order of the court, on motion of either party, and the proceeds of the sale retained by the sheriff to await the decision of the cause, unless the court otherwise direct. § 3282 (2957). — If the property levied on be of so perishing a nature that it will deteriorate greatly in value, or be destroyed before the meeting of the court, or if the charge of keeping it be verj^ great, it is the duty of the sheriff, if not replevied, to sell it at public auction, returning the facts and the money to the court. § 3283 (3539A). — In attachment suits, in which a sale of the property seized is made under the attachment, if the i^roceeds thereof are in the hands of the sheriff or other officer of the court to which the attachment is retiu-nable, and if no ad- verse claim is filed ■within thirty days after the institution of such suits, or no denial on oath by the defendant of the debt sued upon is filed withui thirty daj-3 after the issue of the attachment, the judge of the court from which such attach- ment issues, or to which it is returnable, or the magistrate to whom it is returna- ble, must, either ia term-time or vacation, on plaintiff's motion, on proof of notice of such motion having been served for ten days on the defendant or his attorney, if either is resident in the county where the suit is pending, or, if the defendant ia a non-resident, on proof of notice, by publication, once a week for three suc- cessive weeks, in some newspaper published in such coimty, order so much of the proceeds of such sale to be paid to the plaintiff, or his attorney, after reserving costs, as may be sufficient to satisfy the claim of the plaintiff ; but plaintiff must, before receiving such money, enter into bond, ■«'ith surety or sureties, to be ap- proved by the judge or magistrate, conditioned that if, upon the trial of the cause, he should faU in his action, he or his sureties shall, within thirty days thereafter, pay into the court, for the use of the defendant, the amount that may have been received by such plaintiff, with interest and costs thereon; and upon default thereof execution may issue instanter. § 3284 (2958). — The sheriff and his siu-eties, or either of them, may be proceeded against by motion, on one day's notice, at the instance of the plaintiff, or of the defendant, if the plaintiff fail in the action, for any money received for the sale of perishable property; and judgment rendered against hJTn for the amount, and five per cent, a month from the time of the demand. § 3285 (2959). — When a doubt exists as to the title of the defendant to personal property, which the sheriff is required to levy upon, he may demand indemnity from the plaintiff. ATTACHMEXTS FOR ADVANCES TO MAKE CROPS. § 3286 (1858). — Whenever advances in horses, mules, oxen, or necessary pro- visions, farming tools and implements, or money to purchase the same, shall be made by any person to any other person in this state, and such advance shall be obtained by the latter to enable him to make a crop, and it shall be declared in a WTitten note or obligation for the same, given by the person to whom such advance is made, that the same was obtained by him bona fide, for the purpose of making a crop, and that without such advance it would not be in the power of such person to procure the necessary team, provisions and farming implements, to make a crop, the advance so made, or the amount thereof, shall be a lien on such crop, and the stock bought or fm-nished with the money so advanced; and such lien shall have preference of all other liens, except that for the rent of the land on which such crop may be made, and that for advances by the landlord to make the crop. § 3287 (1859). — Any person taking a lien on the crop for advances as set forth in the preceding section, must have the same recorded in the office of the judge of probate of the county in which the person to whom the advance is made resides, within sixty days from the making of the same; and if he fail to have the same recorded, the lien shaU be considered lost and forfeited. § 3288 (1860). — Any person having a ben on the crop and stock of another for advances to assist in making the crop, shall have the same rights and remedies to enforce such lien as landlords have in this state for the collection, of rents. ALABAMA, 423 OF EEPLEVT AND CI/AIIT OF PEOPEETt. § 3289 (2964). — The defendant in attachment, or in his absence a stranger, may replevy the goods or chattels attached, or any part thereof, l3y executing bond with surety, payable to the plaintiff, in double the amount of the property replevied, the value thereof to bo determined by the officer making the levj^ w-itli condition that if the defendant fail in the action, he or his sureties -will return the specific property attached within thirty days after the judgment, which bond must be re- turned with the otJier papers of the cause. [Amended Stats. 1881, p. 54.] § 3290 (2965).— If property attached be claimed by a person not a party to the suit, and affidavit and bond be executed as required by law in cases of trial of right of propertj' when levied on by a writ ci fieri facias, the propertymust be delivered to the claimant, and the affidavit and bond be returned by the sheriff ■v\dth the attachment, upon which the same proceedings must be had as in other trials of right of property, except that the sheriff must return the original attachment to the proper county. The affidavit herein required may be administered by the officer levying the process. §3291 (2966). — When property replevied is not delivered in thirty days after judgment against the defendant in attachment, it is the duty of the sheriff to return the bond forfeited, and execution must issue thereon against the principal and sureties on such bond, for the amount of the value of the pro7ierty replevied, as fixed by the sheriff or other oiEcer, with interest thereon from ilae date of the bond so forfeited, and for the costs of replevy, and of the executicm. But, if such valu- ation is greater thr^n the amount of the judgment against the defendant in attach- ment, then execution shall issue against said principal and sureties for the amount of the judgment and costs. [March 1, 1881; Statutes 1880-81, p. 55.] S 3292 (2967). — If any of the property so replevied should die or be destroyed without fault or negligence on the part of the i:)erson in possession, the case is gov- erned by the provisions of section 3217 (2890). PROCEEDINGS AGAINST GAENISHEES. § 3293 (2968). — The garnishee must answer upon oath according to the terms of the citation, within the first three days of the return term of the attachment, and may, if required by the plaintiff, be examined orally in the presence of the court. § 3294 (2969). — If he answer and admit indebtedness to the defendant, judgment thereon must be rendered against him, after jud.gment against the defendant in attachment, for the amount so admitted, if less than the amount of the judgment against such defendant; if more, or equal thereto, then for the amount thereon. If the debt be not then payable, execution must be suspended until its maturity. § 3295 (2970). — If he admit the possession of chattels of the defendant, judgment of condemnation must be rendered, that they be delivered up on demand, after the rendition of judgment on tlie attachment in favor of the plaintiff, or so much as may be necessaiy to satisfy the judgment, and the sheriff must make sale thereof. § 3296 (2971). — If he fail to deliver them to the sheriff on demand, he must make return thereof to the clerk, who must thereupon issue a WTrit of fieri facias against him in favor of the plaintiff, for the amount of the judgment and costs. § 3297 (2972). — If the failure to deliver property, as provided in the preceding section, is without fault or negligence on the part of the garnishee, he may obtain relief by supersedeas, according to the provisions of section 3217 (2890). § 3298 (2973). — If the garnishee fail to appear and answer, a conditional judg- ment rnust be rendered against him for the amount of the plaintiff's claim, :-.s ascertained by his judgment, to be made absolute if he does not appear within the first three days of the next term and answer; a notice of the judgement must be issued to him by the clerk, to be served on him as other jDrocess by the sheriff ; if he fail to appear at the next term, after notice executed, or if 'two notices be re- 'tumed " not found " by the sheriff" of the county in which the garnishment was exe- cuted, the judgment must be made absolute. COLLATEEAL fSSUES. § 3299 (2974). — The plaintiff, his agent or attorney, may controvert the answer of the garnishee by making oath, at the term the answer is made, that he beheves it to be untrue; whereupon an issue must be made up under the direction of the 424 ALABAMA. court, in ■which the plaintiff must allege in what respect the answer is imtrue, and, if required by either party, a jury must be imxjanneled to try the facts. § 3300 (2975). — The defendant, upon the coming in of the answer, may allege that the garnishee is indebted to him in a larger sum than he has admitted, or that he holds property of the defendant not admitted by him in his answer, which being reduced to v.Titing, setting forth particularly in what respect the answer h defi- cient, and sworn to, thereupon an issue must be made up under the direction of the court to try the fact by a jury, if required by either party; but this controversy does not prevent the plaintiff from taking judgment for the sum admitted to be due by the garnishee, or for a condenmation of the property admitted to be in his hands. § 3301 (297G). — If this issue be found against the garnishee, judgment must be rendered against him for the amount of money or property in his hands not ad- mitted by him, which must be in favor of the plaintiff, if necessary to satisfy his claim, or judgment against the defendant, or ia favor of the defendant, if the judg- ment has been satisfied. § 3302 (2977). — When the garnishee, by his answer, or at any time before final judgment against him, alleges that he has been notified that another person claims title to, or an interest in the debt or property which by his answer he has admitted to be due, or to be in his possession, the court must suspend proceedings against the garnishee, and cause a notice to issue to such person, to appear at the next term of the court and contest with the plaintiff the right to the money or property. § 3303 (2978). — If he appear, he must be required to propound bis claim in the disputed property or debt, in writing, and iaake oath thereto, upon which the plaintiff must take issue in law or in fact, and the issue in fact must be tried by a jury, if required by either party. If the issue be found for the plaintiff, judgment must be rendered against the garnishee on his answer; if for the contestant, the garnishee must be discharged. § 3304 (2979). — If the contestant he a non-resident, the contest must be stayed six mouths, and the same proceedings had 'as in the case of a non-resident de- fendant. § 3305 (2980). — If two notices to the resident contestant be returned "not found," judgment must be rendered against the garnishee on his answer. § 3.30G (2981). — The interposition of these collateral issues does not affect the jurisdiction of the court obtained by levy of the attachment. § 3307 (2982). — Upon the trial of these collateral issues, either party may reserve any question by bill of exceptions, for revision, and jiidgment for costs must be rendered against the unsuccessful party. § 3398 (2983). — An appeal lies to the supreme court at the instance of the plaintiff, the defendant, the garnishee, the contestant or claimant. § 3309 (2084). — ^When the answer of the garnishee is not controverted, or if con- troverted i.3 foimd for him, he is allowed the jiay of a juror during his attendance, for which execution may issue. If there be no effects, then from the plaintiff, for which he may have judgment and execution. § 3310 (2985). — If the garnishee die after he has been smnmoned as garnishee, and pending the litigation, the proceedings may be revived against his legal repre- sentatives; so if the contestant die, after notice to appear and contest with the plaintiff the right to the money of property in the hands .of the garnishee, the suit may be re>dved in the name of his legal representatives. § 3311 (2986). — ^No judgment can be rendered against the defendant in attach- ment, where a claim has been interposed to try the right of property, where the answer of the garnishee is contested, or a contest has arisen about the title or in- terest in the money or goods attached, imtil these questions are settled; unless other property or effects of the defendant be attached, about M"hich no contest has arisen. § 3312 (2987). — If the plaintiff do not obtain judgment against the defendant in attaclimcnt, all property condemned, where a claim had been interposed, must be restored to the claimant at the costs of the plaintiff. § 3313 (2988). — Alias writs of attachment, or new writs of garnishment, may be issued by the clerk, without a renewal of the bond or affidavit, in cases where no ALABAMA. 425 property has Tieen found, or not sufficient to satisfy the debt, or when, pending the Buit, the plaintiff wishes to garnishee other persons. § 3314 (2989). — Attachments issued without affidavit and bond, as herein pre- scribed, may be abated on plea o€ the defendant, filed within the first three days of the return term. § 3315(2990). — The attachment law must be liberally construed, to advance the manifest intent of the law, and the plaintiff, before or during the trial, must be permitted to amend any defect of form, in the affidavit, bond, or attachment; and no attachment must be dismissed for any defect in, or want of bond, if the plaintiff, his agent or attorney, is willing to give or substitute a sufficient bond. § 3316 (2991). — The judgment of the circuit court, condemning the debt or prop- erty in the hands of the garnishee, to the satisfaction of the plaintiff's demand, is conclusive as between the garnishee and the defendant, to the extent of such judg- ment, unless the defendant prosecute an appeal from such judgment, which he may do in his own name; and if such judgment is superseded by bond, and the garnishee notiSed of the fact, he is not permitted to discharge such judgment pending the appeal. § 3.317 (2992). — The defendant must not deny or put in issue the cause for which the attachment issued, but may, at any time within three years of the sumg out of the attachment, before or after the suit is determined, commence suit on the attachment bond, and may recover such damages as he has actually sustained, if the attachment was vvrongfully sued out. § 3318 (2993). — If sued out maliciously, as well as wrongfully, the jiu-y may, in addition, give vindictive damages. ANCILLARY ATTACHMENTS. § 3319 (2994).— When a summons has been issued, the plaintiff, his agent or attorney, may at any time before judgment make affidavit before the clerk of the court in which the suit is pending, and give bond with secxurity as in cases of original attachment, and thereupon the clerk must issue an attachment re- turnable as in other cases. § 3320 (8995). — The suit must proceed thereafter, in all respects, as if it had been commenced originally by attachment. JUDICIAL ATTACHMENTS. § 3321 (2993). — When a summons has been returned "not found," as to all or any of the defendants, residents of the county, if the plaintiff, his agent or at- torney, make affidavit that the defendant has evaded the service of the process, the court must direct an attachment to issue returnable to the next term of the coiu:t, and the cause must in all respects proceed as against such defendant, as if originally commenced by attachment. § 3322 (2997). — The plaintiff maj-, notwithstanding such judicial attachment, proceed to judgment against any of the defendants on whom process was served; but a judgment and satisfaction of the debt or claim abates the attachment at the costs of the plaintiff. OF THE PLEADINGS IN ATTACHMENT, TEIAL, JUDGMENT AND EXECUTION. § 3323 (2998).— The plaintiff must, within the first three days of the retiirn term of the attachment, file his complaint as in suits commenced by summons, and the cause stands for trial at the first term after the issue of the attach- ment, if the levy is made and notice thereof given twenty days before the com- mencement of the term of the court to which such attachment is returnable; but if the attachment is issued upon a demand not due when it is issued, the case shall not stand for trial imtil such demand is due. § 3324 (2999).— If the debt is not due, the plaintiff is not required to file his complaint until the maturity of the debt. § 3325 (3000).— If the defendant appear and plead, the cause proceeds as in suits commenced in the ordinary mode. If he make no defense, the plaintiff may, at the trial term, take judgment final, hy nihil (/icti or default, or execute ft writ of inquiry of damages, as may be necessary. 426 ALABAMA. § 3326 (3001). — When the property attached and in the hands of the gar- nishee is not sufficient to satisfy the judgment of the ijlaintiff against the de- fendant, the clerk must issue execution for the residue, which may be levied on any property of the defendant. ATTACHMENTS AGAINST STEAMBOATS, ETC. § 3327 (3002). — If any steamboat, vessel, or water-craft of any description, from the negligence or want of skill 'of the master, pilot, engineer, or other officer, or whilst racing with any other boat or vessel, runs into, runs foul of, destroys or injures, any other boat, vessel, barge, flat-boat, or other water-craft, by means whereof the firoperty of any person on board of such boat or other water-craft is injured or destroyed, the person so injured has a lien upon the boat or vessel caus- ing the injury, to the amount of the loss, which may be enforced as hereinafter provided. § 3328 (3003). — The person so injtu-ed, his agent or attorney, must make affidavit of the loss sustained, and the cause thereof, stating the name of the boat or vessel, before any judge of the circuit court, or judge of probate, clerk of the circuit court, or justice of the peace, and also execute a bond with surety, payable to the owners of the boat or vessel, byname, if known, if not, payable to the "owners," in double the amount of the value of the property injured or destroyed, with condi- tion to prosecute the attachment to effect, and to pay the owners all such costs and damages as may be sustained by the wrongful or vexatious suing out such attachment. § 3329 (3004). — Upon the execution of such bond and affidavit, the judge, clerk, or justice must issue an attachment, which may be made returnable to any circuit court in the state, directing any sheriff of the State of Alabama to seize and retain the boat, or other water-craft, her tackle, apparel, and furniture, until discharged by due course of law. § 3330 (3005). — After such seizure, the sheriff must retain the boat or vessel in his possession, together with the tackle, apparel, etc., to answer the judgment which may be rendered, and make return thereof, together with the affidavit, bond, and attachment, to the court to which the process is returnable. ? 3331 (.300G). — The boat or vessel seized may be released from custody, by the master or owner of the boat or vessel, or other person, entering in|o bond with surety, to be approved by the sheriff, in double the amount of the alle;;ed injury, payable to the plaintiff, with condition to satisfy the judgment which may be ren- dered on the attachment. § 3332 (3007). — Or the master, owner, or some person for him, may enter into bond with surety, in double the estimated value of the~ boat, tackle, apparel, etc. , payable to the j^Iaintiff, with condition to pay the plaintiff the value of the vessel, or boat, her tackle, apparel, etc., at the time of the seizure, or so much thereof as will satisfy the judgment and costs; and for the purpose of ascertaining the value of the boat, or vessel, her tackle, apparel, etc., the sheriff may api^oint three dis- interested persons to make appraisement thereof. § 3333 (3008). — The obligors in the bond last mentioned may pay into court, the apijraised value of the boat or vessel, and such pajTnent is a discharge of the bond. § 3334 (3009).— If either of the above bonds be executed, the obligors therein are the defendants in the attachment. If no bond be executed, to release the boat or vessel, the affidavit must be received as evidence of the facts therein stated, and judgment be rendered ex j)a?-<(;, for the demand of the plaintiff, which may be at the first term after the seizure, if the attachment was issued thii-ty days previous to the judgment. § 3335 (3010). — In any trial under this article, proof that the loss was caused by the boat or vessel attached running foul of, or running into, the boat or water-craft in which the plaintiff's property was, is presimiptive e^ddence that the injury was caused by the negligence or want of skill of the officers of such boat; and tbitbiir- den of proof is then cast on the owners of such boat, of proving that the collision was accidental, and mthout the fault of the officers thereof. § 3336 (3011).— If no bond be executed, for the release of the boat from seizure, within sixty days thereafter, the sheriff must sell the same for cash, giving thii-ty days' notice of the time and place of sale, and make retm-n thereof to the com-t in which the attachment is pending. ALABAMA. 427 § 3337 (3012). — WTien there are more attachments than one, if the proceeds of the sale arc not sufficient to discharge all tLe judgments, it must be divided among- them ratably, or according to priority. An appeal from such disposition of the fund miist be prosecuted within six months thereafter. § 3338 (.3013).— The bond» required by this article to release the boat from seiz- ure, must be iiled in the clerk's office, and, after j udgment in favor of the plaintiff, have the force and effect of judgments, upon which execution may issue for the amount of such judgment and costs. § 3339 (3014). — The provisions of this article must not be construed so as to prevent a resort to any other legal remedy. § 3340 (3015).— The provisions of this article are applicable to any boat, barge, vessel, flat-boat or other water-craft. NE EXEAT, EQUITABLE ATTACHMENTS, AND OTHEE WKIT3 OF SEIZURE. § 3844 (3400). — Writs of ne exeat, and equitable attachments, may issue on eqm- table debts and demands, under the same circumstances, and courts must observe, in the issue of such -WTits, the provisions of courts of law in relation to attachment writs, except so far as the same are altered by this code. § 3845 (3407). — Chancellors may, in vacation, examine all answers in relation to writs of ne exeat, and attachments returnable into chancery, and other UTits of seizure, discharge or reduce any bail taken, or levy made, on application and rea- sonable notice to the adverse party. § 3846 (3408). — Courts of chancery may also issue writs of attachment on legal demands, founded on any judgment or contract, expressed or implied, in such cases as attachments may issue from courts of law; which attachments operate only on the effects of the defendant held by an equitable title, or on demands owing by other persons to which the defendant against whom the attachment issues is in equity entitled, whether due or not. § 3847 (3409).— To authorize the issue of equitable attachments, it is not neces- sary that the demand of the plaintiff should be reduced to a judgment, but the coiu-t may render a decree for the amount proved, and execution may issue to en- force the same as from courts of law. §'3848 (3410). — Equitable attachments must specify the property, effects or demands on which they are intended to operate; and a copy of the biirmust in such cases be served with the summons. § 3849 (3411). — Any property levied on by an equitable attachment, may be replevied by the defendant, or any one for him, on giving bond and seciurity in double the value of the property levied on, to be api^roved by the sheriff, jjayable to the plaintiff, and conditioned as replevy bonds on attachments from courts of law. § 3850 (3412). — When i^roperty levied on by an equitable attachment is replevied, the bond must be returned wth the attachment. § 3851 (3413).— Equitable attachments are a lien upon the property or debts attached, from the service of the attachment. § 38.52 (3414). — If a decree is rendered in a case in which an equitable attach- ment has been levied, sjiA the property replevied is not forthcoming within such time as the court may direct, to be ijroven by the affidavit of the party before the register, the replevin bond in suftf case has the force of a jud.gment, and execution ipay issue thereon for the whole or any ijortion of the ijenalty, as the court may direct, against any or all of the parties thereto. § 3853 (3415). — Chancellors, circuit judges, and registers of the court in which the bill is tiled, may make all necessary orders for the issuing of writs of ne exeat and equitable attachments, and for the sale of personal property levied on, as in like case's from courts of law; the money arising from such sale to be paid to the register. §.^54.— In every cause in a court of chancery, where the suit is for a money demand, and upon every decree in that court, upon which execution can issue, the writ of garnishment may be issued by the register. § 3855. — The register, before issuing any such writ, shall require the party .^pyilying therefor to make affidavit and give bond, one or both, as the case may be, and to do all other things required by law to be done, in order to obtain a Wit of garnishment in the cii'cuit court. 428 * ALABAMA. § 5856. — Gamislimeiits from the court of chancery shall he goveme^l liy the law regulating garnishments from the circuit court, as far as the same may he appli- cable. § 3857 (3416). — Writs may also issue from the courts of chancery on an original bill, or ill aid of a suit pending in such co\u-t, by the order of any chancellor, judge of the circuit court, or regi^^ti,/, for the seizure of personal property ^vhere the same is claimed under an eciuitable title, or ■\vhere a decree is sought against the same, and it is in danger of being wasted, carried beyond the jxu-isdiction of the court, or otherwise disposed of. § 3258 (3417). — The plaintiff in such case must sustaia his claim by affidavit, and give bond with security, payable to the defendant, in double the value of the projjerty, to be approved by the register, conditioned to pay all damages the de- fendant may sustain by the WTongful or vexatious suing out of such v,Tit. § 3859 (3418). — The officer executing such ^\Tit must restore the property seized to the defendant, on his giving bond in double the value- of the same, with security, to be approved by such officer, pa3'able to the plaintiff, and conditioned to have such property forthcoming to answer the decree of the court. § 38G0 (3419). — If the defendant neglects for five days after the seizure of such property to give such bond, the sheriff must deliver the same to the plaintiff, on his giving bond and security in double the value of such property, to be approved by the sheriff, payable to the defendant, conditioned, if unsuccessful in his suit, to return such ijroperty within thirty days after its determination. § 38G1 (.3420). — Such ■\\Tits, with the proper return thereon, and the bonds taken under the provisions of either of the last two sections, must be retmned to the reg- ister of the court from which the WTit issues. § 3862 (3421). — K the claim of the plaintiff is sustained, the court may direct that if its decree in relation to such property is not performed within a specified time, execution may issue on the bond of the defendant for all, or such portion of its penalty as the court may determine, under all the circmnstances. § 38G3 (3422). — If the plaintiff is unsuccessful, and faUs to deliver the property to the defendant within thirty daj-s after the determination of the suit, he and his sureties are liable to an action, and in case of a recovery, to damages, not exceed- ing fifty i^er centum on the value of the property. § 3864 (3423). — -A writ of attachment may be issued out of the court of chancery, on the application of any surety, indorser, accommodation drawer, acceptor, cr maker, of any bond, biU, or note, or other contract in writing, against the princi- pal debtor, to be levied on the projjerty or effects of the defendant, whether held by a legal or equitable title, whenever such surety, indorser, acceptor, maker, or drawer, could sue out an attachment at law, if he was a creditor of such princiual debtor; and the provisions in reference to attachments at law must be observed in the issue of such attachments, and such writ of attachment may be granted by the register in chancery. §3865(3424). — ^When such attachments are sued out by any indorser, surety, acceptor, maker, or drawer, of any bond, biU, note, or other contract in writing, not due and payable, such attachment must be dissolved, on application to the chancellor, in vacation or term time, or by the register in vacation, on the principal debtor furnishing the comj)lainant complete indemnity against his liability, and paying all costs which may have accrued on such attachment. Shares of any incorporated company may be attached, sold, and transferred, by the officer making the sale, with or without possession of the certificate, in the coimty of defendant's residence or of the location of the corporation, but notice must be given to the secretary or cashier of the corporation, and no Hen of the cor- poration shall be impaired thereby. — §§ 2041, 2045-2047. Exemptions— See §§2820-2845, and Stats. 1879, p. 167. Attachment by land, lord— ^§ 3472-3478. Tenant in common— §§ 3479, 3480. On crops— Stats. 1879, p. 167. Agricultural and railroad laborers — §§ 3481-3493. For service of stallion — § 3496; Stats. 18S3, p. 157. Liens in favor of workmen and blacksmiths— §§ 3462. 3464^ Before justices of the peace— §§ 3682-3693. Xotaries may issue — Stats. 1883, p. 22. ARIZOKA. 429 ARIZONA. [Compiled Laws, 1877,] ATTACHMENT. (255G) §120. — The plaintiff at the time of issuing his si'mmons, or anytime afterward, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give secu- rity to pay such judgment as hereinafter provided in the following cases:" 1. In an action upon a contract, express or implied, for the direct payment of money, which contract was made or is payable in this territory, and is not secured by a mortgage, lien or pledge, upon real or personal property, or if so secured, that such security has been rendered nugatory by the act of the "defendant. 2. In an action upon a contract, express or implied, for the direct payment of money, against a defendant not residing in this territory. _ (2557) § 121. — The clerk of the court shall issue the writ of attachment upon re- ceiving an alSdavit by, or on behalf of the plaintiff, which shall be hied, showing; 1. That the defendant is indebted to the plaintiff (specifyin'j the amount of such indebtedness, over and above all legal set-offs or counber-claims) upon a con- tract express or implied, for the direct payment of money, and tliat such contract was made or is payable in this territory, and that the payment of the same has not been secured by any mortgage, lien or pledge upon real or personal property ; or 2. _ That the defendant is indebted to the plaintiff (specifying the amount of Euch indebtedness as near as may be, over and above all legal set-offs or counter- claims), and that the defendant is a non-resident of this territory; and 3. That the sum for which the attachment is asked is a bona fide existing debt due and owing from the defendant to the plaintiff, and that the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor or creditors of the defendant. (2558) § 122. — Before issuing the writ the clerk shall require a written under- taking on the part of the i^laintiff, in a sum not less than tlie amount, claimed by the plaintiff, with sufficient sureties, to the effect that if the defendant recover judgment, or, if the attachment shall be discharged on the ground that the writ was improperly issued, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. The defendant may, within two days after the service of the writ of attachment, give notice to the ijlaintiff that he excepts to the sufficiency of the siireties. If he fails to do so he shall be deemed to have waived all objections to them. When the defendant excepts, the sureties shall justify on notice, in like manner as upon bail or arrest. If they, or others in their place, fail to justify at the time and place appointed, the attachment may be discharged on the ground that the writ was improperly issued. [Amended Laws 1879, p. 82.] (2559) § 123. — The writ shall be directed to the sheriff of any county in which property of such defendant may be, and require him to attach and safely keep all the property of such defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which shall be stated in conformity with the complaint, unless the defendant give him security, by the undertaking of at least two sufficient sureties in an amount sufficient to satisfy such demands with costs, or in any amount eqiial to the value of the property which has been, or is about to be attached, i.i ',-.liich case the sheriff will take such undertaking. Several writs may be issued at the same time to sheriffs of different counties. (2560) § 124. — The rights or shares which the defendant may have in the stock of any corporation or company, together 'with the interest and i^rofits thereon, and ail debts due such defendant, and all othei property in this territory of such defendant not exempt from execution, may be attached, ajid, if judgment be re- covered, be sold to satisfy the judgment and execution. 430 ARIZONA. {25G1) § 125. — The sheriff to whom the writ is directed and delivered shall exe- cute the same without delay, and if the undertaking mentioned in section one hundred and twenty-three be not given, as foUows: 1. Ileal property shall be attached by leaving a copy of the writ with the oc- cupant thereof ; or, if there be no occupant, by posting a cojjy in a conspicuous place thereon, and filing a copy, together with a description of the property at- tached, with the recorder of the coimty. 2. Personal property capable of manual delivery shall be attached by taking it into custody. 3. Stock or shares, or interest in stock or shares, of any corporation or com- pany, shall be attached by leaving with the president, or other head of the same, or secretary or cashier or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached in pursuance of such writ. 4. Debts and credits, and other personal property, not capable of manual de- livery, shall be attached by leaving with the person owing such debts, or having in his possession or under his control such credits or other personal property, a copy of the writ, and a notice that the debts owing by him to the defendant or the creditors, and other personal property in his possession or under his control, be- longing to the defendant, are attached in pursuance of such writ. (25G2) § 126. — Upon receiving information in writing from the plaintiff, or his attorney, that any person has in his possession or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the sheriff shall serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are at- tached in pursuance of such writ. (2563) § 127. — All persons having in their possession or tmder their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant, at the time of service upon them of a copy of the writ and notice, as pro\'ided in the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaint- iff for the amount of such credits, projierty or debt, until the attachment be dis- charged, or any judgment recovered by him be satisfied. (2564) § 128. — Any person owing debts to the defendant, or having in his pos- session or under his control any credits or other personal property belonging to the defendant, may be required to attend before the court or judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court or judge may, after such examination, order personal property capable of manual delivery to be delivered to the sheriff on such terms as may be just, having reference to any liens thereon, or claims agalustthe same, and a mem- orandum to be given of all other personal property, containing the amount and description thereof. (2565) § 129. — The sheriff shall make a full inventory of the property attached, and return the same with the writ. To enable him to make such return as to debts and credits attached, he shall request, at the time of service, the party owing the debt or having the credit to give him a memorandum stating the amount and de- scription of each ; and, if such memorandum be refused, he shall return the fact of refusal with the writ. The party refusing to give the memorandum may be re- quired to pay the costs of any proceedings taken for the purpose of obtaining in- formation respecting the amount and description of such debt or credit. (2566) § 130. — If any of the property attached be perishable, the sheriff shall sell the same, in the manner in which such property is sold on execution. The proceeds and other property attached by him shall be retained by him to answer anv judgment that may be recovered in the action, unless sooner subjected to exe- cution upon another judgment recovered previous to the issuing of the attach- ment. Debts and credits attached may be collected by him if the same can be done without suit. The sheriff's receipt shall be a sufficient discharge for the amount paid. WTienever cattle, horses, mules, sheep, cows, goats or hogs have been taken by ail officer under a ivrit of attachment, and it is made to appear satisfac- tory to the court or a jadge thereof, that the interest of the parties to the action will be subserved by a sale thereof, the court or judge may order such property to be sold in the same manner as property is sold under an execution, and the pro- ceeds to be deposited in the comi; to abide the judgment in the action. Such order can be made only ui3on notice to the adverse party, or his attorney, in case such fnrtj has been personally served with a summons or has appeared in the action. Amended Laws 1879, p. 82.] ARIZONA. 431 (2567) §131. — If any personal property attached be claimed by a third person as his propertj^, the sheriff may summon a jury of six men to try the validity of such claim, and such proceedings shall be had thereon, with the like effect, aa in case of a claim after levy upon execution. (25G8) § 132. — If judgment be recovered by the plaintiff, the sheriff shall satisfy the same out of the property attached by him which has not been delivered to the defendant or a claimant as hereinbefore provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose : 1. By paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment. 2. If any balance remain due, and an execution shall have been issued on the judgment, he shall sell under the execution so much of the property, real or ijer- Bonal, as may be necessary to satisfy the balance, if enough for that purpose re- main in his hands. Notices of the sales shall be given, and the sales conducted aa in other cases of sales on execution. (2569) § 133. — If after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the sheriff shall proceed to collect such balance as uj^on an execution in other cases. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the attached property remaining in his hands and any proceeds of the property attached miap- plied on the judgment. (2570) § 134. — If the execution be retimied unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given, pursuant to section one hundred and twenty-three or section one hundred and thirty-seven, or he may jjroceed as in other cases upon the return of an execution. (2571) § 135 — If the defendant recover judgment against the plaintiff, any un- dertaking received in the action, all the proceeds of sales and money collected by the sheriff, and all the property attached remaining in the sheriff's hands, shall be delivered to the defendant or his agent ; the order of attachment shall be dis- charged, and the property released therefrom. (2572) § 136. — "Wlienever the defendant shall have appeared in the action, he may s-pply, upon reasonable notice to the plaintiff, to the court or judge thereof for an order to discharge the same, upon the execution of the undertaking mentioned in the next section ; and, if the application be granted, all the jjroceeds of sales and moneys collected by the sheriff, and all the property attached remaining in his hands shall be released from the attachment and delivered to the defendant upon the j ustification of the sureties on the undertaking, if required by the plaintiff. (2573) § 137. — Upon such application the defendant shall deliver to the court or judge an undertaking executed by at least two sureties, residents and freeholders in the county, 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 sufficient to satisfy the amount claimed by the plaintiff in his complaint, and the costs. The sureties may be required to justify on application before the judge or court, and the property attached shall not be released from the attachment mthout then- jus- tification, if the same be required. (2574) § 138. — The defendant may, also, any time before the time for answering expires, apply, on motion, upon reasonable notice to the plaintiff, to the judge who made the order or the court in which the action is brought, that the attachment be discharged on the ground that the writ was improperly issued. (2575) § 139. — If the motion be made upon affidavits on the part of the defend- ant, but not otherwise, the i^laintiff may oppose the same by affidavits or other evidence, in addition to those on which the order of attachment was made. (2676) § 140. — If upon such application it shall satisfactorily appear that the writ of attachment was improperly issued, it shall be discharged. (2577) § 141. — Upon the return of the writ of attachment, the defendant may file his answer under oath, putting in issue the truth of the matters contained in the affidavit, aud the same shall be tried as a preliminary issue in the cause ; and if the affidavit is not sustained the attachment shall be dissolved, and the suit shall proceed as if commenced by an ordinary summons; and the plaintiff, upon the dis- 432 ARKANSAS. Bokition of the attachment, shall be adjudged to pay all the costs of the attach- ment and the damages sustained thereby, to be determined as in ordinary actions for damages. (2578) § 142.^TTpon the return of the ^^T-it of attachment, if it appear to the court that an excess of property has been attached, the court may, by order, re- duce the amount to what will be sufficient to satisfy the demands of the plaintiff, with costs. (2570) § 143. — The sheriff shall return the writ of attachment with the sum- mons, if issued at the same time ; otherwise, within twenty days after its receiy)t, with a certificate of his proceedings indorsed thereon or attached thereto. The provisions of this chapter shall not apx^ly to any suits by attachment already commenced. Attachment before justices of the peace— §§2989-2995r- Stats. 188.3, p. 2,5, § 1. Against vessels — §§ 2759-27C7. On mechanic's lien — Stats. 1885, p. 224. For labor- er's wages— Stats. 1883, p. 29, § 3. Grarnishment for road tax — § 3495. Exemp- tions— §§ 2140, 2150, and Stats. 1881, p. 173. ARKANSAS. [Gantt's Digest, and Subsequent Statutes.] GEOUNDS OF ATTACHMENT. § 388. — The plaintiff in a civil action may, at or after the commencement thereof, have an attachment against the property of the defendant, in the cases and upon the grounds hereinafter stated, as a security for the satisfaction of such judgment as may be recovered: First. In an action for the recovery of money, where the action is against — 1. A defendant, or several defendants, who, or some one of whom, is a foreign corporation, or a non-resident of the state; or, 2. Who has been absent therefrom four months; or, 3. Has departed from this state with intent to defraud his creditors; or, 4. Has left the county of his residence to avoid the service of a summons; or, 5. So conceals himself that a summons cannot be served upon him; or, 6. Is about to remove, or has removed, his property, or a material part thereof, out of this state, not leaving enough therein to satisfy the plaintiff 's claim, or the claim of said defendant's creditors; or, 7. Has sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay his creditors; or, 8. Is about to sell, convey, or otherwise dispose of his property with such intent. But an attachment shall not be granted on the ground that the defend- ant, or defendaifts, or any of them, is a foreign corporation or a non-resident of this state, for any claim other than a debt or demand arising upon contract. 9. The cause of attachment mentioned in the preceding subdivisions against one or more defendants to a civil action shall not authorize an attachment against any of the defendants who are not embraced in any of said subdivisions, but the estate or interest of such defendants only as are embraced therein shall be subject to attachment. Second. In an action to recover possession of personal property where it has been ordered to be delivered to the plaintiff, and where the property, or part thereof, has been disposed of, concealed, or removed, so that the order for its delivery cannot be executed by the officer. [Civil Code, sec. 216.] HOW OBTAINED. § 389. — An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in the first subdivision of the ARKANSAS. 43 3» preceding section, wtere there is filed in his office an affidavit of the plaintiff, or- of some one in his behalf, showing- — First. The nature of the plaintiff 's claim. Second. That it is just. Third. The amount which the affiant believes the plaintiff ought to recover;; and, Fourth. The existence in the action of some one of the grounds for an attach- ment enumerated in that subdivision, and in the case mentioned in the second subdivision of the preceding section, where it is shown by such affidavit, or by the return of the sheriff or other officer upon the order for the delivery of the property claimed, that the facts mentioned in that subdivision exist'. [Civil Code, sec. 217, as amended 1871.] § 390.— When the return by the proper officer upon a summons against a . defendant states that he has left the county to avoid the service of the summons, or has concealed himself therein for that purpose, it shall be equivalent to the statement of the fact in the affidavit mentioned in the last section. §391. — The order of attachment shall not be issued by the clerk until there- has been executed in his office, byone or more sufficient sureties of the 23laintiff, a bond to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, if the order is -nTongfully obtained. § 392. — The order of attachment shall be directed and delivered to the sheriff or ■ other officer, with as many copies thereof as the plaintiff may direct. It shall require him to attach and safely keep the property of the defendant in his county, not exempt from execution, or so much thereof as will satisfy the plaintiff's claim specified in his affidavit, which shall be stated in the oi'der, and ' the probable costs of the action, not exceeding thirty dollars; also, to summon - the garnishees to answer in the action on the return day of the order, and to make due return thereof. The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; . when issued afterward, it may be another day in term, at the option of the plaintiff. § 393.— Orders of attachment may be issued to the sheriffs or other officers • of other counties, and several of them may, at the option of the plaintiff, be issued ' at the same time, or in succession. But such only as have been executed in whole or in i^art shall be taxed in the costs, unless otherwise directed by the court. § 394.— The affidavit or grounds of attachment may be amended so as to embrace any grounds of attachment that may exist up to and until the final judg- ment upon the same. If the amendment embrace grounds existing at the time of the commencement of said proceeding, and is sustained upon such grounds, the lien created by the suing out or levying of the original attachment shall be held . good; but if the amendments embrace new grounds not existing at the time of ' suing out the original attachment, and the attachment shall be sustained on such new grounds only, the lien shall exist on the property levied upon from the filing of the same; and a general order sustaining the attachment, without designating the grounds upon which it is sustained, shall be equivalent to sustaining the same on grounds that existed at the time the attachment was sued out. § 395. — Attachments may be sued out, and the actions in which the same are obtained may be prosecuted in any county in which property may lie attached, or a garnishee, who is indebted or has property belonging to the defendant, is served with i^rocess. [Civil Code, sees. 218-223.] § 396. — Whenever, in a civil action, the jjlaintiff shall have reason to believe that any other person is indebted to the defendant, or has in his hands or posses- sion goods and chattels, moneys, credits, and effects belonging to such defendant, the plaintiff may sue out a -writ of garnishment, setting forth his cause of action against the defendant, and commanding the officer charged with the execution thereof to summon the person therein named as garnishee, to appear at the return day of the summons in the action, if the -wiit shall have been issued at the com- mencement thereof; and, if not so issued, on such day as the court shall designate, to answer what goods, chattels, moneys, credits, and effects he may have in his hands or possession belonging to such defendant; and in all such actions, where the plaintiff shall have obtained judgment, he may sue out a -writ of garnishment, Betting forth such judgment, and shall proceed in the manner herein directed for. the enforcement and collection thereof. •-..<^..--. II Attacumknt— 3. 434 ARKANSAS. § 397. — The plaintiffs in all cases of garnishment may also have an attachment ap-ainst the property of a garnishee, -who is made a defendant thereto, by stating in his afiidavit some one or more of the grounds of attachment mentioned in this chapter, and the amount which the garnishee is indebted to the principal debtor, and executing bond to said garnishee. [Civil Code, sec. 224, as amended 1871.] EXECUTION AND EETUKN OF. § 398. — "^^Tiere there are several orders of attachment against the same defend- ant, they shall be executed in the order in which they were received by the sheriff or other officer. _ § 399. — The order of attachment shall be executed by the sheriff or other officer without delay, in the following manner: First. Upon real property, by leaving with the occupant thereof, or, if there is no occupant, in a conspicuous place thereon, a copy of the order. Second. Upon personal property, capable of manual delivery, by taking it into his custody, and holding it subject to the order of the court. Third. Upon other personal property, by delivering a copy of the order, with a notice specif jnng the property attached, to the person holding the same; or as to a debt or demand, to the person owing it; or as to stock in a corporation, or prop- erty held, or a debt or demand owing by it, to the chief officer, or to the secretary, cashier, treasurer, or managing agent thereof, and by summoning the person or corporation to answer as a garnishee in the action. The sheriff shall deliver copies to and summon such persons as garnishees as the plaintiff may direct. § 400. — It shall be the duty of every person mentioned in the third subdivision of the last section, to whom the sheriff shall apply therefor, to furnish him with a certificate of the number of shares of the defendant in the stock of the corporation, a description of the property held by such corporation or person belonging to or for the benefit of the defendant, or the amount of the debt owing to the defendant, by puch corporation or person, whether due or not; and a failure to perform this duty may be punished by the court as a contempt. § 401. — The defendant's personal property shall be first taken under an attach- ment; if enough thereof is not found, then his real property. § 402. — Where the property to be attached is a fund in comi;, the execution of the order of attachment shall be by leaving vAih. the clerk of the court a copy thereof, with a notice specifying the fund; and where several orders of attachment are executed upon such fund on the same day, they shall be satisfied out of it ratably. § 403. — The sheriff shall not, in executing an order of attachment upon personal property held by the defendant jointly or in common with another jjerson, take possession of such property imtil there has been executed a bond to such other person, by one or more sufficient sureties of the plaintiff, to the effect that he shall pay to such person the damages he may sustain by the wrongful suing out of the order. [Civil Code, sees. 225-231.] § 404. — An order of attachment binds the defendant's property in the county, which might be seized under an execution against him, from the time of the delivery of the order to the sheriff or other officer; and the lien to the plaintiff is completed upon any property or demand of the defendant, by executing the order upon it in the manner directed in this chapter. [Civil Code, sec. 232, as amended 1871.] § 40.5. — If, after an order of attachment has been placed in the hands- of the sheriff or other officer, any property of the defendant is removed from the county, the sheriff ma v piu-sue and attach the same in another county within twenty -four hours after removal. § 40G. — The sheriff may deliver any attached property to the person in whose possession it was foimd, upon the execution, in the presence of the sheriff, of a bond to the plaintiff, bj' such person, with one or more sufficient sureties, to the efTect that the obligors are bound, in double the value of the property, that the defendant shall perform the judgment of the coiirt in the action, or that the prop- erty, or its value, shall be forthcoming, and subject to the orders of court for the satisfaction of .such judgment. § 407. — For the purpose of taking this bond, the sheriff shall cause the property to be appraised l)}^ three disinterested householders, to be selected and sworn by him to make fair ax^^raisement on the order of attachment. ARKANSAS. 435 § 408.— In nny proceeding on this Ijond, it shall not be a defense that the prop- erty was not subject to the attachment. § 409. — The sheriff shall return, upon every order of attachment, what he has done under it. The return must show the property attached, the time it wa3 attached, and the disposition made of it. Where garnishees are summoned, their names, and the time each was summoned, must be stated. And where real prop- erty is attached, the sheriff shall describe it with sufficient certainty to identify it, and, where he can do so, a reference to the deed or title under which the defendant holds it. He shall return with the order aU bonds taken under it. f Civil Code, sees. 233-237.] DISPOSITION OP ATTACHED PEOPERTT. § 410. — The court shall make proper orders for the preservation and use of the property during the pending of the action, and for paying into court or securing the debt3_ and funds attached. It may direct a sale of the property where, by reason of its perishable nature, or of the cost of keeping it, a sale would be for the benefit of the parties. § 411.— Such sale may be ordered by the judge of the court in vacation, but no such sale shall be made in vacation without reasonable notice in writing to the opposite party or his attorney, if either of them reside in the county in which the cause is pending, of the time and place of the application therefor. § 412.— The sale shall be public, after advertisement, and made in such manner, and upon such terms of credit with security, as the court or judge, having regard to the probable duration of the action, may direct. § 413. — The proceeds, if collected by the sheriff, together with all the money received by him from garnishees, shall be held and paid over by him under the same requirement and responsibilities of himself and his sureties as are provided in respect to money deposited in lieu of bail. [CivU Code, sec. 238, as amended 1871.] § 414. — A judge of the com-t in which the action is brought, or any circuit judge, shall have power to appoint a receiver to take charge of, collect, and account for all choses in action, attached in any action; and said receiver shall have full power to collect the same. He shall give bond, and in all respects be subject to the same responsibilities as if appointed by the court in term time. And the defendant or any claimant of any attached property may be required by the court or by such receiver to give information, on oath, respecting such property. [lb., sec. 239, and sec. 791 as amended 1873.1 § 415. — When it appears by the affidavit of the plaintiff, or by the return of an officer to an order of attachment, that no property is known to the plaintiff, or the officer, on which the order of attachment can be executed, or not enough to satisfy the plaintiff's claim, the defendant may be required by the court to attend before it and give information, on oath, respecting his property; and where it also appears, by the affidavit of the plaintiff, that some person other than the defendant has in his possession property of the defendant, or evidences of debt, such person may also be required by the court to attend before it and give information, on oath, respecting the same. PROCEEDINGS UPON ATTACHMENT. §416. — If the defendant, at any time before judgment, causes a bond to be executed to the plaintiff by one or more safficieat sureties, to be approved by the court, to the effect that defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof. § 417. — The execution by or for the defendant of such bond, shall be an appear- ance of such defendant in the action. [Civil Code, sec. 793.] § 418. — The bond mentioned in the last two sections may, in vacation, be executed in the presence of the sheriff having the order of attachment in his hands, or, after the return of the order, before the clerk, -with the same effect upon the attachment as if executed in court; the sureties, in either case, to be approved by the officer. § 419.— The garnishee may pay the money owing to the defendant by him to the sheriff having in his hands the order of attachment, or into the court. He shall be discharged from liability to the defendant for any money so paid not exceeding the plaintiff's claim. He shall not be subjected to costs beyond those caused by his 436 ARKANSAS. resistance of the claim against him; and if he discloses the property of the defend- ant in his hands, or the true amount owin'j by him, and delivers or pays the same according to the order of the court, he shall be allowed his costs. § 420. — Each tjamishee summoned shall appear. The appearance may be in person, or by affidavit of the garnishee filed in court, disclosing truly the amount 0'v\dng by him to the defendant, whether due or not, and the property of the defendant in the possession or under the control of the garnishee; and, in the case of a corporation, any shares of stocks therein held, by or for the benefit of the defendant, at or after the service of the order of attachment. § 421. — Where a garnishee, or officer of a corporation summoned as a gar- nishee, appears in person, he may be examined on oath; and if it is discovered on such examination that, at or after the service of the order of attachment upon him, he or the corporation was possessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property, and the pay- ment or security for the paj-ment of the amount owing by the garnishee into the court, or to such person as it may direct, who shall give bond, with security for the same; or, the com-t may permit the garnishee to retain the property or the amount owing, upon the execution of a bond, with one or more suflScient sureties, to the effect that the amount shaU be paid or the property shal] be forthcoming, as the court may direct. Performance of these bonds may be summarily enforced by orders and proceedings as in cases of contempt. §422. — The court may, on the motion of the plaintiff, compel the appearance m i^erson and examination of any garnishee, or officer of a corporation summoned as a garnishee, by process as in cases of contempt; or, where a garnishee makes a default Ijy not appearing, it may hear proof of any debt or property owing or held hy him to or for the defendant, and make such order in relation thereto as if what is so proved had appeared on the examination of the garnishee. § 423. — Upon the service of a summons upon any garnishee, or after his failure to make a disclosure satisfactory to the plaintiff, the latter may proceed in an action against him by filing a complaint, verified as in other cases, and causing a summons to be issued upon it; and, thereupon, such proceeding may be had as in other actions, and judgment be rendered in favor of the plaintiff to subject the property of the defendant in the hands of the garnishee, or for what shall appear to be owing to the defendant by the garnishee. The judgment may be enforced by execution or other proper means. § 424.— If judgment is rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him. § 425. — If judgment is rendered for the plaintiff, the court shall apply in satis- faction thereof — First. The moneys arising from the sales of perishable property. Second. The proceeds of the debts and funds attached in the hands of the gar- nishees. If these are not sufficient to satisfy the plaintiff's claim, the court shall order a sale, by the sheriff, of any other attached property which may be under its control, in the following order: 1. Personal property. 2. Peal property, or so much thereof as may be necessary to satisfy the plaint- iff's claim. § 426. — No order for the sale of real property so attached shaU be made in any action in which the defendant has not appeared or been actually summoned, until there has been filed an affidavit of the plaintiff, or of his agent or attorney, to the effect that the defendant has no personal i^roperty, or not enough to satisfy the claim of the plaintiff, in this state, known to the affiant. § 427. — Any surplus of the attached property, or its proceeds, shall be returned to the defendant. § 428. — The sales shall be public, upon such notice and at such time and place as the court may direct. When credits are given, bonds, with security, shall be required ; and the credit shall not be longer than three months for personal prop- erty, and not less than three or more than twelve months for real property, or on installments equivalent to not more than twelve months' credit on the whole ; and upon real property a lien shall be retained. The sales shall be subject to the con- firmation of the comrt. § 429. — The court may compel the delivery to the sheriff, for sale, of any of the attached property, for which a bond may have been given, and may proceed sum- ARKANSAS. 437 marily on such bond to enforce the delivery of the property or the pa3mient of such sums as may be due upon the bond, by rules and attachments as in cases of contemi)t. §430. — The court may, from time to time, make and enforce proper orders respcctiui,' the property, sales, and the confirmation thereof, and the application and jiayment of the moneys collected. § 431. — It may order the sheriff to repossess himself, for the purpose of selling it, of any of the attached property which may have passed out of his hands, without havinj been sold or converted into money ; and the sheriif shall, under such order, have the same power to take the property as upon an order of attach- ment. § 432. — Any person may, before the sale of any attached property, or before the payment to the plaintiif of the proceeds thereof, or of any attached debt, pre- sent hli complaint, verified by oath, to the court, disputing the validity of the attachment, or statin'j a claim to the property, or an interest in or lien on it undjr any other attachment, or otherwise, and setting forth the facts upon which 6uch claim is founded, and his claim shall be investigated. § 433. — A non-resident claimant shall, in such cases, give security for costs. §434. — The court may hear the proof, or may order a reference to a commis- sioner, or may impannel a jury to inquire into the facts. If it is found that the claimant has a title to, a lien on, or any interest in such property, the court shall make such order as may be necessary to protect his rights. The costs of this proceeding shall be paid by either party, at the discretion of the court. § 435. — Where several attachments are executed on the same property, the court, on the motion of any one of the attaching plaintiffs, may order a reference to a commissioner to ascertain and rejjort the amounts and priorities of the several attachments. §433. — The defendant may, at any time before judgment, after reasonable notice to the jjlaintiif, move the court for additional security on the ^lart of the plaintiff, and if, on such motion, the coiu-t -s satisfied that the surety in the plaintiff's bond has removed from this state, or is not sufficient for the amount thereof, it may vacate the order of attachment, and direct restitution of any prop- erty taken under it, unless in a reasonable time, to be fijsed by the court, sufficient security is given by the plaintiff. ATTACHMENTS, BEFOEE DEBT DUE. § 437. — In an action brought by a creditor against his debtor, the plaintiff may, before his claim is due, have an attachment against the property of the debtor, where — First. He has sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; or, Second. Is about to make such fraudulent sale, conveyance, or disposition of his property with such intent; or, Third. Is about to remove his property, or a material part thereof, out of this state, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts. [Civil Code, sees. 241-2o9.] § 438. — The attachment authorized by the last section may be granted by the court in which the action is brought, or the clerk or judge thereof, or any circuit judge, in vacation, where the complaint, verified by the oath of tlie plaintiff, his agent or attorney, shows any of the grounds for attachment enmnerated in that section, and the nature and amount of the plaintiff's claim, and when the same will bjcom3 due. [Civil Code, sec. 2J0, as amended 1871, and sec. 701, as amended Stat. 1881, p. 99.] § 430. — The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiif s claim, and the probable costs of the action. §410. — The order of attachment, as granted by the court or judge, shall not be issued by the clerk until :bere has been executed in his office such bond on the part of the plaintiff, as is dhected in cases of attachment; and the provi- sioiij fiecl that you are attached as garnishee in the above C D , defendant, j entitled cause, and you are required not to pay any debt due or to become due, from yourself to the said C D , and that you must retain possession and control of all personal property, effects and chosea in action of the said C D , in order that the same may be dealt with according to law. And you are hereby commanded to be and appear before (nam- ing the court or justice, as the case may be) at , on the day of , 18 — , at o'clock M., to answer what may be objected against you in that behalf. , Dated , 18—. [Sec. 1, pp. 76-7, acts 1879.] (Signed by officers.) § 2. — It shall not be necessary that the officer shall have first returned his exe- cution to the court or justice before serving said summons. The return of such summons to the court or justice, as the case may be, showing due service on the person or persons therein named as garnishees, shall be the commencement of pro- ceedings against the said garnishees, and the court or justice shall examine and proceed against such garnishee or garnishees, served with summons, as hereinafter provided. [Sec. 2, p. 77, acts 1879.] § 3. — Whenever any person shall be summoned as garnishee (under any writ of attachment), or as provided in section one (1) of this act, the plaintiff, his agent or attorney may direct the officer, at the time of serving the process or thereafter, to take the answer of the garnishee; or whenever any person summoned as garnishee as aforesaid shall desire to exonerate himself from further liability or attendance at court, he may do so (except as otherwise provided in this act) by making and subscribing an answer. [Sec. 3, p. 77, acts 1879.] § 4. — In all cases mentioned in the preceding section the answer of the garnishee shall be under oath, in writing, and the officer serving the writ of attachment or garnishee summons shall administer the oath, take the answer, and append the same to his return of the process served. The interrogatories and oath may be in substance as follows: 1. Are you in any manner indebted to the defendant, C D , either property or money, and is the same now due? If not due, when is the same to be- come due? State fully all particulars. Answer. 2. Have you in your possession, in your charge, or under your control, any property, effects, goods, chattels, rights, credits or choses in action of said defend- ant, or in which he is interested? If so, state what is the value of the same, and state fully all particulars. Answer. 3. Do you know of any debts owing to the said defendant, whether due or not due, or any property, effects, goods, chattels, rights, credits or choses in action, be- longing to him, or in which he is interested, and now in the possession or xinderthe control of others? If so, state the particulars. Answer. (Signature of garnishee. ) I (insert the name of garnishee) do solemnly swear (or affirm) that the answers to-the foregoing interrogatories by me subscribed are true, so help me God. (Signature of gamisheei) Subscribed and sworn to before me, this , 18 — . [Sec. 4, pp. 77-8, acts 1879.] (Si^ature of officer.) _ § 5. —If the garnishee refuses to answer fully and unequivocally all the fore- going interrogatories, he shall be summoned by the officer and required to appear before the court or justice as provided in section one (1) of this act, and to answer before the com-t or justice all the interrogatories prescribed in the preceding sec- tion, and such other questions as the court or justice may think proper and right. [Sec. 5, pp. 78-9, acts 1879.] § 6. — After answer the garnishee may pay to the officer the amount of money he so confesses to be due and owing by him to the defendant, and deliver to the officer the property and effects in his possession, charge, or under his control, and thereupon l3e relieved from attendance at coiu-t unless further summoned. In such case the officer shall receipt to the garnishee for the money and property received; and if the action be attachment he shall hold the same until the final determina- tion of the suit, unless the same be of a perishable nature; if the proceeding be upon judgment, as provided in section one of this act, the officer shall sell the prop- erty, giving the usual previous notice, as in other cases, and apply the proceeds of sale and moneys so received from the garnishee to the satisfaction of the execution in his hands against the defendant. Should there be any surplus money or prop- 452 COLORADO. erty unsold in the hands of the officer after paying the cost of gamisheeing and Batisfaction of the execution against the defendant, he shall pay and deliver the same to the defendant without delay. [Sec. 6, p. 70, acts 1879.] ., § 7. — After answer of the garnishee, in any case, is made, either before the of- ficer or in coui-t, the plaintiff, his agent or attorney, may controvert the whole or any part of said answer, by filing in court, or before the justice, an affidavit tra- versing any of the facts set forth in such answer (such affidavit may be upon infor- mation and belief); thereupon a scire facias shall issue and be served upon such garnishee (unless he be already in court) requiring him to appear before the court or justice upon a day named therein. Issue so joined without further pleadings shall be tried as other trials at law are conducted; and if the finding of the court, or justice of the peace, or the verdict of the jury, shall be against the garnishee, judgment shall be given against him in the same manner as if the fact had been admitted by him, with the "costs of such trial, and the moneys or property in the hands of garnishee or officer shall be by the court applied to the payment of the i^laintiffs judgment against the defendant. If the finding or verdict shall be in favor of the garnishee, he shall recover his costs against the plaintiff. And in case the garnishee admits indebtedness to the defendant, he shall not be liable for costs. [Sec. 7, pp. 79-80, acts 1879.] § S. — If any garnishee, having refused to answer before the officer, or simimoned to appear as provided by the preceding sections, being duly served with process, as provided by this act, shall fail to appear at the time and i:»lace in the process fixed for his appearance, default may be taken against such garnishee, and a conditional judgment may be rendered against such garnishee for the full amoimt of the judg- ment rendered against the debtor in the original action and costs. Thereupon a scire facias may issue out of the co\u-t where such proceeding is pending, command- ing such garnishee to appear at said court on the return day of said wTit, and to show cause why such judgment should not be made final and conclusive; which said scire facias shall, if issued out of the district or county coiul;, be returnable in twenty days, and shall be served upon such garnishee at least ten days before the return day, and if issued out of justice court, shall be retiurnable in five days from its issuance, and shall be served upon the garnishee at least three days before the retiUTi day; and if such garnishee shall fail to appear at such court or before such justice, on the return day of such sdre facias, said conditional judgment shall be made final and conclusive. [Sec. 8, p. 80, acts 1879.] § 9. — If it appears that any goods, chattels, choses in action, credits or effects in the hands of a garnishee are claimed by any other person, by force of an assignment from the defendant, or otherwise, the court or justice of the peace shall permit such claimant to appear and maintain his right. The court or justice mav, in its discretion, adj ourn the case not exceeding five days for the purpose of giving the claimant such notice as it may direct. [Sec. 9, p. 80, acts 1879.] § 10. — If such claimant appears, he may be admitted as a party to the suit, as far as respects his title to the property in question, and may allege and prove any facts not stated nor denied by the garnishee; and such allegations shall be made, tried and determined in the manner hereinbefore provided. If such jierson shall fail to appear, after having been served with notice in the manner directed, he shall nevertheless be concluded by the judgment in regard to his claim. [Sec. 10, pp. 80-1, acts 1879.] § 11. — Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands aU demands against the plaintiff, and all demands against the defendant of which he could have availed himself if he had not been summoned as garnishee, whether the same are at the time due or not,_and whether by way of set-off on a trial, or by the set-off of judgments or executions between himself and the plaintiff and defendant severally; and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted, not including unliquidated damages for wrongs and injuries: Pro- vided, that the verdict or finding, as well as the record of the judgment, shall show in all cases against which party, and the amount thereof, any set-off shall be al- lowed, if any such shall be allowed. [Sec. 11, p. 81, acts 1879.] § 12. — No person shall be liable as a garnishee by reason of having drawn, ac- cepted, made or indorsed any negotiable instrument, when the same is not due, in the hands of the defendant at the time of service of the garnishee, summons, or the rendition of the judgment. [Sec. 12, p. 81, acts 1879.] § 1.3. — The judgment against a garnishee shall acquit him from all demands by the defendant for all goods, effects and credits paid, delivered or accounted for by the garnishee by force of such judgment. [Sec. 13, p. 81. acts 1879.] COLORADO. 453 § 14. — If the person summoned as garnishee is discharged, the judgment shall be no bar to ai^action brought against liim by the defendant for the same demand. [Sec. 14, p. 81,^cts 1879.] § 15. — Wlien judgment is rendered against any garnishee and it shall appear that the debt from him to the defendant is not yet due, execution shall not issue until the debt shall have become due. [Sec. 15, p. 81, acts 1879.] § 16. — When any garnishee has any goods, chattels, choses in action, or effects other than money, belonging to the defendant, or which he is bound to deliver to him, he shall deliver the same, or so much thereof as may be necessary, to the offi- cer who shall hold the execution in favor of the plaintiff in the attachment suit or judgment, which shall be sold by the officer, and the proceeds applied and ac- counted for in the same manner as other goods and chattels taken on execution. [Sec. 16, p. 82, acts 1879.] § 17. — AVhen it shall appear that such goods, chattels, choses in action or effects in the hands of a garnishee are mortgaged or pledged, or in any way liable for the payment of a debt to him, the plaintiff may be allowed, under an order of the court or justice of the peace for that piu-pose, to pay or tender the amount due to the garnishee; and he shall thereupon deliver the goods, chattels, choses in action and effects, in -the manner before provided, to the officer who holds the execution. [Sec. 17, p. 82, acts 1879.] § 18.— If the goods, chattels, choses in action or effects are held for any purpose other than to secure the pajnnent of money, and if the contract, condition or other thing to be done or performed is such as can be performed by the plaintiff without damage to the other parties, the court or justice of the peace may make an order for the performance thereof by him. Upon such performance or a tender, the garnishee shall deliver the goods, chattels and effects in the manner before pro- vided to the officer who holds the execution. [Sec. 18, p. 82, acts 1879.] §19. — All goods, chattels, choses in action and effects received by the officer under either of the two preceding sections shall be sold and disposed of in the same manner as if they had been taken on an execution in any other manner, except that from the proceeds of the sale the officer shall repay the plaintiff the amount paid by him to the garnishee for the redemption of the same, with interest thereon, or shall indemnify the plaintiff for any other act or thing by him done or per- formed, pursuant to the order of the court or justice of the peace, for the redemp- tion of the same. [Sec. 19, p. 82, acts 1879.] § 20. — If any garnishee refuses or neglects to deliver any goods, chattels, choses in action or effects in his hands when thereto lawfully required by the court or justice of the jieace or officer having an execution upon which the same may be received, he shall, if the proceeding be in a court of record, be liable to be attached and punished for contempt, or the court may enter up judgment for the amount of the plaintiff's judgment and costs, and award execution thereon against the gar- nishee, or, if the proceedings be before a justice of the peace, be liable to the plaint- iff for the full amount of his judgment and costs against the defendant, and judgment may be entered against him therefor. [Sec. 20, p. 83, acts 1879.] § 21. — The court or justice of the peace may order the costs of the proceedings in any garnishment to be paid by the plaintiff, or out of the effects or credits gar- nished, or by the garnishee, or may apportion the same as shall appear to be just and equitable. The garnishee shall be entitled to fees, when he does not resist or make costs when judgment is rendered against him, the same as witnesses before the same courts in civU cases. [Sec. 21, p. 83, acts 1879.] § 22. — All trials under this act, except as otherwise provided, shall be conducted as other trials at law, with or without jury; if the trial be in a court of record, then according to the practice in courts of record; if before a justice of the peace, then the same shall be conducted according to the practice in justices' courts: Provided, nothing contained in this act shall require either party to file written pleadings before a justice of the peace. If the finding of the court or justice, or verdict of the jury, in any case shall be against the garnishee, judgment may be entered against the garnishee in favor of the defendant for the use and benefit of the plaint- iff. (Sec. 22, p. 83, acts 1879.] § 2.3.— An appeal may be taken from any judgment or final order of the court or justice of the peace, by any party to any proceeding under this act, in like man- ner as appeals are taken in other cases. [Sec. 23, p. 83, acts 1879.] § 24. — The word "plaintiff," as used in this act, shall be construed to mean the judgment or execution creditor; the word "defendant," the judgment or executioa 454 CONNECTICUT. debtor; and the word "officer," the sheriff, constable or other office* ajecatlngthe process of the court or justice. [Sec. 24, pp. 83-4, acts 1879.] ^ On appeals, effect — §§ 350-356. Writ may issue on Sunday — § 410. Debtors' earnings exempt — § 226. Undertaking, solvency of surety — § 414. Sale of attached property— § 415. CONNECTICUT. [General Statutes, 1875, and subsequent Statutes.] SERVICE OF MESNE PROCESS, ATTACHMENTS, AND INTERESTS THEREBY ACQUIRED. § 1. — AB. processes, returnable to the supreme court of errors, shall be served at least thirty days inclusive before the day of the sitting of the court; all return- able to the superior court, court of common pleas, or district court, at least twelve days inclusive before said day; and all returnable to a justice of the peace, at least six days inclusive, before said day. § 2. — All process, if returnable to the supreme coiut of errors, shall be returned to its clerk at least twenty days, and if retiuTiable to the superior court, to its clerk at least six days, and if returnable to the court of common pleas, or district court, to its clerk at least forty-eight hours, and if returnable to a justice of the peace, to such justice of the peace at least twenty -four hours before the day of the sitting of the court. §3. — A summons or citation shall be served by the officer's reading it in the hearing of the defendant, or leaving an attested copy thereof, and of the declara- tion or petition accompanying the same, at the i^lace of his usual abode. An attachment shall be served by attaching the estate of the defendant, personal or real, or both, and, if none can be found, by attaching his person, when liable to attachrnent. When the body of the defendant is attached, the officer shall read the writ and declaration in his hearing; and, in every case of attachment, the officer serving the process shall leave with the person whose estate or body is attached, or at the place of his usual abode, if within the state, a true and attested copy of the process and of the accompanying declaration or petition, and of his retiuTi thereon, describing any estate attached. § 4. — Real estate shall be attached by the officer's lodging with the toxvn clerk of the town, in which it is situated, a certificate that he has made such attach- ment, which shall be indorsed by the town clerk with a note of the precise time of its reception, and kept on file, open to public inspection, in the office of said town clerk; and said attachment, if completed as hereinafter provided, shall be consid- ered as made when such certiiicate is so lodged. The certificate shall be signed by such officer, shall descrilje the land attached with reasonable certainty, and shall specify the parties to the suit, the court to which the process is returaable, and the amount of damages claimed; and he shall, within four days thereafter, leave in the office of such town clerk a certified copy of the process under which the attach- ment was made, with an indorsement of his doings thereon; and unless the ser^ace shall be so completed, such estate shall not be holden against any other creditor or bona fide i^urchaser. [Amended Stats. 1S83, p. 246.] § 5. — No attachment, in any suit against a copartnership, of the private estate of any of its members, shall be valid, unless his name shall be set forth in the proc- ess at the time of the attachment. § 6. — Eights or shares in the stock of any corporation, together with the divi- dends and profits, due and growing due thereon, may be attached and taken on CONNECTICUT. 455 execution. Sucli attachment shall be made by leaving a true and attested copy of the process, and of the accompanying declaration or petition, with the proper in- dorsement thejjeon of the officer serving the same, as in other cases, with the defendant, or at his usual place of abode, if within this state, and with the secre- tary, clerk, or cashier of such corporation, or if such corporation has no secretary, clerk, or cashier, or if he is absent out of this state, then at the principal place, in this state, where such corjjoration transacts its business or exercises its corporate Sowers; and such rights or shares, together with the dividends and profits, shall be olden to respond to the judgment which may be recovered in said action, for sixty days only after its rendition; and when an officer, with a writ of attachment, shall apply to such secretary, clerk, or cashier, for the purpose of attaching such rights or shares, the secretary, clerk, or cashier shall furnish him with a certificate, under his hand, in his official capacity, specif jdng the number of rights or shares which the defendant holds in the stock of such corporation, with the incumbrances thereon, if any, and the amount of dividends thereon due. § 7. — Leasehold interests in real estate, oyster-lots or beds, franchises issuing out of real estate, and any interest in buildings owned by one person on the land of another, may be attached in the same manner as real estate. § 8. — In suits against towns, societies, communities, or corporations, the service of the process by the officer by leaving a true and attested copy of it, and of the accompanying declaration or petition, with or at the usual jilace of abode of their clerk, or either of the selectmen or committee, or the secretary, or cashier, or in the case of a private corporation having no secretary or cashier, at the principal place in this state where such corporation transacts its business or exercises its corporate powers, shall be sufficient. § 9. — In suite against such voluntary associations as are liable to be sued, serv- ice of process may be made upon the i^residing officer, secretarj', or treasiu'er. The property of any such association, \vhether held liy such association or in the hands of trustees for its benefit, may be attached and held to respond to any judgment that may be recovered against it; but the individual property of its members shall not be liable to attachment or levy of execution in such suit. § 10. — When any administrator or executor shall reside out of this state, a copy of the process and declaration or petition in any action against him in his repre- sentative cai^acity, may be left with the judge of the court of i^robate of the dis- trict where administration was granted or the will proved; which shall be notice to such executor or administrator that the action is pending; and such judge shall forthwith give notice thereof to such executor or administrator. § 11. — When the defendant is not a resident or inhabitant of this state, and has estate within the same which is attached, a copy of the process and declaration or petition, with a return describing the estate attached, shall be left by the officer with the agent or attorney of the defendant in this state; and when land is at- tached, a like copy shall be left in the office of the clerk of the town where the land lies, as in cases where the defendant belongs to this state; and if the defend- ant has no agent or attorney within this state, a Uke coi^y shall be left with him who has charge or possession of the estate attached. § 12. — When any corporation, engaged in transacting business in any other town than that in which its secretary or clerk resides, shall be named as agent, trustee, or debtor of the defendant in any action commenced by process of foreign attachment, service may be made upon such corporation by some proper officer by leaving a true and attested copy thereof, at least twelve days before the process is returnable, with or at the usual place of abode of its secretary or clerk, or any agent or clerk employed by said corporation to_ keep its accoimts, or pay its employees in the town where it transacts business, and where any moneys, which may be owing to the defendant, are due and payable. And when the plaintiff shall recover judgment in any suit so brought and obtain execution for the same, a demand by the officer serving such execution on, or at the usual place of abode of the secretarj^ agent, or clerk of said corporation with whom service was originally made, will be a sufficient demand of such corporation. [Amended Stats. 1877, p. 171..1 § 1.3. — When in any action commenced by process of foreign attachment, any partnership, the business of which is transacted by one or more of the partners exclusively, or by an agent or agents, is named by tho title of such partnership as agent, trustee, or debtor of the defendant, service of such writ may be made upon such partnership, by tlie officer's leaving a true and attested copy thereof, at least twelve days before the ^vl■it is returnable, with, or at the usual place of abode of the members of such partnership, or such acting pai-tner or partners, agent or 45 G CONNECTICUT. agents; and the plaintiff, at any time before final judgment in said suit, may amend sakl process without costs, by inserting the names of the persons composing eaid copartnership. §14. — Process of foreign attachment, when the garnishee does not reside in this state, but is engaged in the transaction of business therein by an agent or agents, may be served on such garnishee, by leaving a true and attested copy of such process with such agent or agents, at least twelve days before the writ is returnable; and if the plaintiff recover judgment in said actions, all the effects of the defendant, which were in the hands of the agent of such garnishee in this state, at the time such copy of said process was so left with him, and the debt due from such garnishee to the defendant shall be liable for the pajTnent of said judgment. § 15. — Xo estate, which has been attached, shall be held to respond to the judgment oljtaincd in the suit, either against the debtor or any other creditor, un- less the judgment creditor shall take out an execution and have it levied on the personal estate attached, or demand made on the garnishee in cases of foreign at- tachment, within sixty days after final judgment, or levied on the real estate attached, and the same appraised, and the execution and proceedings thereon re- corded vvdtliin four months after such judgment; or if said goods or estate are encumbered by any prior attachment, unless the execution shall be so levied, within the respective times aforesaid, after such incumbrance is removed; except- ing only in case of a foreign attachment against an executor, administrator, or trustee in insolvency, upon whom demand shall be made within the times limited in the forty-seventh, forty-eighth, and foi-ty-ninth sections of chapter xvi of this title. But in reckoning said periods within which the attaching creditor is so required to take out and levy execution, any time during which the issue or le\y of an execution may be prevented or stayed by the pendency of a writ of error, or by an injunction or other legal stay of execution, shall be excluded from the computation. § IG. — Attachments of machinery, engines, or implements, situated and used in any manufacturing or mechanical establishment, or of the household fumitiu-e of any person having a family, and used by him in housekeeping, or of hay or un- threshed grain deposited in any building, or of any crop deposited in a building, which cannot, in the opinion of the officer levying upon the same, be moved ■ttdlh- out manifest injury, shall be effectual to hold the same, without any removal thereof, provided the service of said attachment shall be completed, and a copy of the process and of the accompanying declaration or petition, with the officer's re- tiu-n indorsed thereon, particularly describing the property attached, shall be filed in the office of the clerk of the town in which such jjroperty shall be situated, within twenty-four hours after such attachment shall have been made; and when the levy is upon any such hay, luithreshed grain, or crops, the officer shall also post a notice of his attachment on the outer door of the building in which such property is situated. § 17. — When any live stock, or other personal property in its nature perishable or liable to depreciation, or the custody and proper preservation of which would be difficult or expensive, shall be attached, either pai-ty to the suit may apply to any judge of the superior court, court of common pleas, or district com-t, or to a county commissioner residing in the county where such property was attached, for an order to sell the same, and thereupon, after such reasonable notice to the ad- verse party as such judge or commissioner shall direct, and iipon satisfactory proof that such sale is necessary and proper, and payment of his fees by the i)arty making said apiilication, he may order such projierty to be sold by the officer who attached the same, or, in case of his inability, by the sheriff of the county, or by any of his deputies, or any indifferent person who may be requested in ^\Titing so to do by said attaching officer, at public auction, at such time and place, and upon such notice as said judge or commissioner shall deem reasonable; and he may, at his discretion, order the officer making such sale to deposit the avails with the justice before whom, or the clerk of the court to which said process is retiu-nable, subject to the order of the court having final jurisdiction of said caiise. § 18. — When the plaintiff intends to make application for such a sale, the prop- erty shall be appraised by three disinterested freeholders of the town where it was taken, to be chosen, appointed and sworn, and to make their return to the officer, in the same manner as appraisers of real estate taken by execution; a certificate of which appraisement, signed by at least two of them, shall be presented to the judge or commissioner to whom the plaintiff shall apply for such order of sale; and before any order shall be made upon application of the plaintiff, he shall give bond, witli surety, to the adverse party, to the acceptance of said judge or commissioner, in double the amount of the value of said property, conditioned that he shall i^ros- CONNECTICUT. 457 ecute his action to effect, and pay all damages •which the adverse party may stis- tain by the sale of said property at less than its ai^praised value, with interest thereon. § 19. — The costs of the appraisal shall be paid by the officer, and charged in hLs fees; and the expenses, thus incurred by either party, shall be taxed as part of the costs in the cause; and the officer who serves said writ shall make return of what has been done in the premises, to the court to which said writ is returnable. Stats. 1877, p. 105, amends §§ 18 and 19 of chapter 5, title 19. — In all actions by foreign attachment brought to either of the courts mentioned in the first sec- tion [courts of common pleas in counties of Hartford, New Haven, or Fairfield], if the defendant does not appear, any garnishee may be admitted to defend his prin- cipal; but if the defendant is not in this state, and does not appear, by himself or attorney, and the garnishee does not appear to defend, the court shall continue the action for the period of three months from the day on which the writ therein is retiu-nable, and may order such notice of the action to be given to the defendant as it shall deem jiroper, and if the defendant should not then appear, then, unless some special matter be alleged for further delay, the cause shall come to trial. [Stats. 1877, p. 195.] § 20. — If the suit upon which such property was attached shall be decided in favor of the defendant, the money accruing from the sale of such property shall be paid to him; but if decided in favor of the plaintiff, said money, or so much thereof as will satisfy his claim, shall be paid to him; and if the property attached shall have been subject to more than one attachment, the money shall be paid to the several attaching creditors, in like order and proportion as the proceeds would have been payable in case of sale on execution; and the court which renders final judgment in the suit may make the necessary orders therefor. §21. — After the money accruing from the sale of the property attached has been paid to the clerk of the court or justice of the i^eace, any creditor may attach it, by leaving a copy of his attachment, with an indorsement of the service thereon, with such clerk or justice of the peace, and a like copy with the defendant, if within this state; in which case, the sum which such creditor shall recover shall be paid to him, under the order of the court, out of the surplus which shall be left, after deducting all previous attachments, in the same manner as if he had attached said jjroperty before the sale. § 22. — The defendant may, at any time during the pendency of the suit, take to his own use the money raised by such sale, upon giving bond, to the plaintiff, with surety, to the satisfaction of the judge or commissioner who ordered such sale, or of the justice of the peace or court before which the action shall be pend- ing, if then in session, to refund the same in tlie event of final judgment rendered against him, to be disposed of in satisfaction of such judgment as hereinbefore provided. § 2.3. — When any estate shall be attached, or any debt or effects taken by proc- ess of foreign attachment, the defendant, if the debt or damages demanded do not exceed three hundred dollars, may apply, in writing, to any justice of the peace in the county where such attachment is made, or, if such debt or damages exceed three hundred dollars, to a judge of the court in which such action may be pending, to dissolve the attachment lien, upon the substitution of a bond with surety. § 24. — The application may be in the following form: To ; a justice of the peace for the county of (or judge, as the case may be) : The application of C. D. , of , in the county of — — — , shows, that he is defendant in a certain action demanding dollars, debt (or damages), wherein A. B., of , is plaintiff; in which action, the following estate has been attached, to wit: by E. F., of (insert the name of the officer), and that he is desirous that said attachment should be dissolved upon the substi- tution of blind, with surety, according to the statute. Dated at , the ■ day of -. C. D. § 25. — No attachment shall be dissolved imtil reasonable notice of the applica- tion, in writing, signed Ijy the defendant, or his attorney, .shall have been served ui)nn the plaintiff, or his attorney, and on the officer serving the attachment; and such notice may be in the following form: A. B. 1 To , of , and , of : Action of , return- vs. Vable to Court, term, 18 — . C. D. j Take iiotice, that the defendant will apply to , justice of the peace of the county of (or judge, etd), at , on the • day of , 458 CONNECTICUT. 18—, at — 5*^^Vdock in the noon, to dissolve the attachment in this cause, upon tho awbrtitution of bond, with surety, according to the statute. Dated at ^, the day of , 18 — . C. D. § 2G.— All persons interested may be heard in relation to the amount and suffi- ciency of the bond offered by the defendant. Such amount shaU equal the value of the estate which the process directed to be attached, unless the action be founded in tort for the recovery of unliquidated damages, and it shall appear to the author- ity to whom the application is made, that the amount so required to be attached is excessive, in which case he may take a bond for such simi as he may deem reasonable. § 27. — The bond shall be taken to the plaintiff, and substantially in the follow- ing form: Whereas, the estate of C. D., of , has been attached by A. B., of , by process, directing an attachment to the value of , dated , return- able to , as appears by the officer's return on said process: You, , of , and , of , acknowledge yourselves jointly and severally bound unto said A. B., in the sum of • doUars, conditioned that if said C. D. shall pay the judgment that may be recovered against liim in such suit, or if, in default of such pajonent, you pay to the officer having the execution issued on such judg- ment, on demand, the actual value of the interest of said C. D. in said attached property at the time of said attachment, not exceeding the amount of this recog- nizance, then this recognizance shaU be void. § 28.— The authority dissolving the attachment shall certify his doings upon the application, and forthwith return the application, recognizance, and other proceed- ings, to the court to which the writ is returnable, where they shall be kept on file. § 29. — The defendant, if the attachment dissolved be of real estate, may file with the clerk of the town where it lies, a certificate of such dissolution, signed by the authority making the same; if the attachment be of shares in any corporation, he may leave a like certificate with the officer of the corporation with whom a copy of the attachment was left in service; and if the attachment be of debts, or effects, in the hands of a garnishee, he may leave a like certificate -ft-ith the garnishee; and no such corporation shall be held liable to the defendant for refusing to trans- fer the shares attached, or to pay the dividends due thereon, and no such garnishee shall be held liable to the defendant for refusing to pay the debt, or return the effects attached in his hands, imtil such certificate shall have been so left. § 30. — The court before which any action maybe pending, in which such a bond has been given, may, on application of either party, and due notice to the other, order that a new bond of some responsible inhabitant of this state be substituted in lieu and discharge of the oi'iginal one; and, if said order be made on the appli- cation of the plaintiff, may render a judgment in his favor by default, if such sub- stitution be not made within such time as the comi; may appoint. § 31.— In every action for the recovery of any debt, which shall be brought to the superior court, court of common pleas, or district court, and in which the estate of the defendant shall have been attached, said court, or, in vacation, any judge thereof, shall, on application of the defendant or his attorney, cite the plaintiff or plaintiffs, if they reside in the county in which such action is pending, or their attornej'', if they, or either of them, are not residents of said county, to appear forthwith before said court or judge, then and there to state, under oath, the amount of the plaintiff's claim, and that he or they verily believe the same is justly due, and, if required by said court or judge, to furnish a bill of particulars of said claim; and if said court or judge shall find that the value of the ijroperty attached so far exceeds the amount of said claim as to render the attachment op- pressive and vexatious, said court or judge shall order the release of such portion of the ijroperty attached as is not required to secure the pajinent of the claim and costs, and the plaintiff shall pay the costs of such citation and hearing thereon; but if said attachment shall not be released, in whole or in part, the defendant shall pay said costs to the plaintiff or pilaiatiflfs. § 32. — If the plaintiff or plaintiffs shall not appear before said court or judge, vrhen cited as aforesaid, and said court or judge shall be satisfied that they do not intend to appear, said attachment shall be dissolved. § 33. — When the estate of any person shall have been attached in any proceed- ing wherein a certificate of such attachment or a copy of the vn-it or proceeding is required by law to be filed in the office of the town clerk, and the plaintiff therein shall withdraw his suit, or be nonsuited, or final judgment shall have been ren- CONNECTICUT. 459 dered against him, the clerk of the court where said suit was pending- shall, at the request of any person interested in the estate attached, or in having the lien re- moved, issue a certificate that said lien is removed, and such town clerk shall thereupon note the release of such attachment of rfeal estate, on the page of record where the certificate of the attachment was recorded. And whenever the process in such case shall not have been retiirned at the time and to the court therein men- tioned, said clerk shall, upon the application of any person interested in said estate, issue a certificate to that effect, which certificate shall be recorded by said town clerk. [.i\jnended Stats. 1884, p. 325.] § 34. — If any person so requested in writing shall wiUf uUy neglect or refuse to lodge such certificate with the to^vn clerk within thirty days thereafter, and after sufficient proof of such satisfaction shall have been furnished to him, and the nec- essary expense of filing such a certificate tendered to him, he shall pay to the person, aggrieved ten doUars for each week of such refusal or neglect. § 35. — Any property sold upon condition, and put by the vendor into the visible possession of the vendee, unless otherwise exempt from execution, may be attached and levied upon and sold or set out on execution in any suit against such vendee, subject to the rights of the vendor to its possession or ownership; and the party attaching or levying shall have the same rights, which the vendee would otherwise have had, to tender to the vendor performance of the conditions of sale; and aU parties deriving title under the execution shall succeed to all the rights of the vendee, in relation to such property. § 30. — Such attaching or levying creditor may summon said vendor to appear before the judge of the court or justice of the peace, before whom the suit shall be or may have been jjending, to disclose fully on oath what claim he has on said property, which summons shall be signed by such judge or justice, be returnable, at such time and place as he may appoint, and be served as other civU process, at least six days before such time. If such vendor shall be absent from the state when such summons shall be served, such judge or justice shall make a reasonable order of notice to him: and if such summons shall have been duly served, and such order, if any, duly complied with, and such vendor shall fail to disclose as afore- said, such neglect shall be prima facie evidence that he has no interest in said property. § 37. — In suits by foreign attachment, the plaintiff shall be entitled to all the security which his debtor had for the debt or property attached. § 38. — Assignments of future earnings shall not be valid against attaching cred- itors unless to secm-e a bona fide debt due at the date of the assignment, and in such assignment the amount and term for which assigned must be stated, and it must be recorded. [Stats. 1878, p. 263.] § 39. — AVhen any debt due, or to become due, to any person from an estate of a deceased person, in settlement as a solvent estate, shall be attached, the attach- ing creditor may, within the time limited for presenting claims against such estate, present the debt so by him attached, to the executor or administrator, which shall be a sufficient presentment thereof. And when any debt due, or to become due, to any person, from an estate of a deceased person represented insolvent, or from the estate of an insolvent debtor, shall be attached, the attaching creditor may, within the time limited for the presentment of claims against such estate, present the debt, so liy him attached, to the commissioners on such estate, and may appear and be heard in relation thereto, and shall have the same right of re\'iew or appeal as the defendant; but such presentment and proof of any debt, by an attaching creditor, shall inure to his benefit alone, and shall not prevent such debt from being barred as against the original owner thereof, if not presented by him. § 40. — "When a debt, evidenced by a negotiable promissory note, shall have been attached by process of foreign attachment, and the defendant shall have had actual notice thereof, he shall not negotiate or transfer such note dm-ing the continuance of the attachment lien; and, if he do so, shall be deemed guilty of fraud upon the attaching creditor, who, if he shall recover judgment in his original suit, may, within one year after its rendition, institute an action on the case against the de- fendant for such fraud; but the title of any bona fide purchaser of such note for valuable consideration, without notice, and before maturity, shall not be affected by this section. § 41. — When any debtor or person, having in his hands the effects of another, shall refuse to pay such debt, or deliver such effects, on the ground that he is the garnishee in a process of foreign attachment levied thereon, the person, to whom Buch refusal of payment or delivery has been made, may institute his bUl in equity^ 460 CONNECTICUT. in the natiire of a bill of interpleader against such debtor, the other parties in said process of foreign attachment, and any other parties in interest. The court before which such bill shall be brought shall have power to decide to whom such debt is due, or such effects belong, what disposition shall be made of the same, and all other matters connected with said proceeding that may be proper to do justice between the parties; and may make all proper orders relating to the payment into court, or the safe-keeping of the fund, or other matter in controversy, and its pay- ment or delivery to any of the claimants, upon the substitution of satisfactory bonds, and upon such other terms as the coiu-t shall order; and may, from time to time, require additional security for such fund. § 42. — The petitioner, at any time after the service of such bUl, and before the session of the com-t to which it is returnable, may apply to any judge of such court for an order requiring the payment or delivery, by such garnishee, of such debt or effects, upon the substitution of a satisfactory bond therefor; and such judge shall have the same power in the premises as the court to which such biU is brought. The costs of such application shall be subject to the order of such court. § 43. — Service of a process of foreign attachment on the garnishee shall be sufficient notice to the defendant, if he be not an inhabitant of this state, to enable the plaintiff to bring the action to trial INTEEVENTION BY CEEDIT0R3. § 17. — In any action where property has been attached, any person may appear and defend in the name of the defendant, upon filing in the court an affidavit that he is a creditor of the defendant, and has good reason to believe, and does believe, that the amount, which plaintiff claims, was not justly due at the commencement of the suit, and that he is in danger of being defrauded by a recovery bj' the plaint- iff, and upon giving bond, with surety, to the plaintiff, in such amount as the court shall approve, for the pajrment of such costs as the plaintiff may thereafter recover; and if the plaintiff shall recover his whole claim, costs shall be taxed against the defendant to the time of the appearance of such creditor; and for the residue of the costs, such creditor shall be liable upon his bond: if only a part of the plaintiff's claim shall be recovered, the whole costs shall be taxed against the defendant, and the creditor shall not be liable for the same; if judgment shall be rendered in favor of the defendant, costs shall be taxed in his favor against the plaintiff, but the court may order that the judgment and execution therefor shall belong to such creditor. Ko creditor so appearing shall be permitted to plead in abatement, nor to plead or give in evidence the statute of limitations, nor that the contract was not in writing, according to the requirements of the statute, nor any other statutory defense consistent with the justice of the plaintiff's claim. FOREIGN ATTACHMENT. § 19. — In all suits by foreign attachment, if the defendant does not appear, any garnishee may be admitted to defend his principal; but if the defendant is not in this state, and does not appear, by himself or attorney, and the garnishee does not ajjpear to defend, the court shall continue the action to the next term, and may order notice of the suit to be given by publication in some newspaper, or otherwise, as it may thinlc j^roper; and if the defendant should not then appear, the court may, if it judge proper, order the action to be continued once more, to give an opportunity to notify the defendant of the pendency of the suit; and then, unless some sj^ecial matter be alleged for further delay, the cause shall come to trial; but when the action is brought before a justice of the peace, in case the defendant shall not be in this state, and no attorney or garnishee appears to defend, such justice of the peace shall adjourn the cause for not less than three nor more than nine months; and then, unless sjjecial reasons be given for a f mrther delay, such action shall come to trial. [Amended Stats. 1877, p. 195, § 2.] § 6. — Where in any suit by foreign attachment, any garnishee, ha\'ing been cited in to disclose either upon the original process, or by a citation issued pending the suit, shall appear, the court may examiiae him upon oath as to whether, at the time of the service of the foreign attachment, he had effects of the defendant in his hands, or was indebted to him, and may hear any other proper evidence respect- ing the same; and if it appear that such garnishee had not effects of the defendant in his possession, or was not indebted to him, he shall recover judgment for his costs; but if it apjiear that such garnishee had in his possession effects of the de- fendant, or was indebted to him, the court shall ascertain the amount, and the same shall, if the plaintiff recovers judgment and brings a sch-e facias against the garnishee, he prima facie evidence oi the facts so found; but the defendant shall then have a right again to disclose on oath, and the parties may introduce any DAKOTA. 461 other proper testimony regarding such facts. But if the plaintiff, in such action of foreign attachment, withdraws his suit, or fails to recover judgment ayainst the defendant, such garnishee shall be entitled to judgment for his costs. § 7. — If any garnishee, cited in to disclose before a court hold in a town other than in which he resides, was not indebted to, and had no effects of the defendant in his possession, when the writ was served upon him, it shall be a sufficient excuse for his not appearing before said com-t, if he file therein, on the return day of the writ, his affidavit stating such facts; but if any garnishee, when duly cited in to disclose, shall fail to appear without reasonable excuse, or shall refuse to disclose on oath, whether he has any effects of the defendant in his possession, or is indebted to him, then if the plaintiff shall bring a sc!>e/ac/as against him, on a judgment recovered against the defendant in the suit, judgment shall be rendered against such garnishee personally, for the costs accrued on the scire facias, though it shall appear that he had no effects of the debtor in his possession, and was not indebted to him. Costs at discretion of the court — Title xix, chap. 15, § 13, p. 446. Fees— Id., § 16, p. 447. Exemptions— Title xix, chap. 16, §§ 10, 11; Poultry, Stats. 1879, p. 377. Minors' wages. Stats. 1883, p. 234. Execution— Title xix, chap 16, §§ 39-54, pp. 462-464, and Stats. 1882, p. 135. Partnership property, attachment of — Title xix, chap. 17, part 14, §§ 3-6, p. 483. Scire facias against garnishee must be brought within one year after the right of bringing it shall accrue — Title xix, chap. 18, § 8, p. 494. Trustee paying by order of court — Stats. 1875, p. 17. Garnishee may answer — Stats. 1877, p. 158. (Garnishment of corporations — Stats. 1881, p. 91. Service on corporations — Stats. 1877, p. 160. Replevin of attached property — Stats. 1878, p. 310, Costs, maximum^Stats. 1882, p. 131. Garnishee's fees — Stats. 1882, p. 198. DAKOTA. [Levisee's Code of Civil Procedure, 1883.] ARTICLE IV. — ATTACHMENT. § 197. — In an action arising on contract for the recovery of money only; or in action for the wrongful conversion of personal property, against a corporation cre- ated by or under the laws of any other territory, state, government or country; or against a defendant who is not a resident of this territory; or against a defend- ant who has absconded or concealed himself; or whenever any person or corpora- tion is about to remove any of his or its property from this territory; or has as- signed, disposed of, 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 at any time afterward, vaay have the property of such defendant or corporation attached, in the manner hereinafter described, 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 sum- mons shall be made, or publication thereof commenced, within thirty days. Pro- vided, further, that whenever any debtor residing in this territory is about to remove from the county where he resides, with the intention of permanently changing his or her place of residence, it shall be lawful for his or her creditors to demand of such debtor security for such debt; and, in case of failure or neglect to secure the same, such creditor shall have the right of attachment against the jiroperty of such de- linquent debtor under the provisions of law regulating attachment proceedings. XAa amended March 2, 1883.] 462 DAKOTA. § 108.— A warrant of attachment must be obtained from the clerk of the coTirfc in which the action is brought; and such warrant of attachment must be attested in the name of the presiding judge, and must be sealed with the seal of the court. § 199. — The warrant may issue upon affidavit, stating: 1. That a cause of action exists against such defendant, specifying the amoimt of the claim and the grounds thereof; and 2. That the defendant is either a foreign corporation or not a resident of this territory, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent, or that the debt was incurred from property obtained under false pretenses; or [as amended February 25, 1881]; 3. That such corporation or person has removed, or is about to remove, any of his or its property, from the territory with intent to defraud his or its creditors; or, 4. 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 territory or not. § 200. — Before issuing the warrant the clerk must require a written undertaking on the part of the plaintiff, with sufficient surety, to the effect that if the defend- ant recover judgment, or the attachment be set aside by order of the court, the plaintiff vvill pay all costs that may be awarded to the defendant, and aU damages which he may sustain by reason of the attachment, not exceeding the sum named in the undertaking, which must be at least the amount of the claim specified ia the affidavit, and in no case less than two hundred and fifty dollars. § 201. The warrant must be directed to the sheriff of any county in which prop- erty of such defendant may be, and must require him to attach and safely keep all the proi:)erty of such defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint, unless the defendant give him security by the imdertaking of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been or is about to be attached; in which case, to take such undertaking. Several writs may be issued at the same time to the sheriffs of different counties. • § 202. — The sheriff to whom such warrant of attachment is directed and deliv- ered, must immediately attach all the real property of such debtor and all his per- sonal estate, or so much thereof as may be sufficient to satisfy the plaintiff's demand, costs and exi)enses, and including debts, credits, money, and bank-notes, except property exempt from execution; and must take into his custody all books of accounts, vouchers, evidences of indebtedness, and all papers relating to the prop- erty, debts, credits, and effects of such debtor, together with all evidences of lua title to real property. § 203. — Immediately upon making such seizure he shall make a just and true inventory of all the property so seized, and of the books, vouchers and papers taken into his custody, stating therein the estimated value of the several articles and kinds of personal property, enumerating such of them as are perishable, and giving a description of the real property so attached, which inventory must be signed by the sheriff, attached to and made a part of the return on the warrant of attach- ment. And any subsequent execution of the warrant of attachment upon other property of the debtor must be made, and an inventory thereof made and returned in like manner. § 204. — The sheriff must keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action, and must, subject to the direction of the court or judge, collect and receive into his possession all debts, credits, and effects of the debtor. The sheriff' may also take such legal proceedings, either in his own name or the name of such debtor, as may be necessary for that purpose, and discontinue the same at such times and on such terms as the court or judge may direct. § 205. — If any of the property so seized shall be perishable, the sheriff must sell the same at public auction, under an order of the court, or a judge thereof, and must retain in his hands the proceeds of such sale, after deducting his ex- penses, which proceeds must be paid into court and there abide its fm-ther order. §206. — If any property so seized be claimed by or on behalf of any person other than such defendant, the sheriff may summon a jury and try the vaUdity of such claim in the same maimer with like effect as in case of seizure vmder exe- cution. DAKOTA. 463 § 207. — The rights or shares which such defendant may have in the stock of any association or coriioration, together with the interests and profits thereon, and all other projierty in this territory of such defendant, shall be liable to be attached and levied upon, and sold to satisfy the judgment and execution. § 208. — The execution of the attachment upon any such rights, shares, or any debts, or other property, incapable of manual delivery to the sheriff, must 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 or occupying such property, with a notice showing the property levied on; or, if the property attached be un- occupied real property, by putting a certified copy of such warrant upon the outer door of the court-house or other building in which the district court shall be held, within the county or judicial subdivision in which such unoccupied real property shall be situated. § 209. — 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 corporation, with any dividend or any incumbrance thereon, or the amount and description of the prop- erty held by such association, corporation, or individual for the benefit of or debt owing to the defendant. If such officer, debtor, or indi^ddual refuse to do so, or if it be made to appear by affidavit or otherwise, to the satisfaction of the court or judge thereof, that there is reason to suspect that any certificate given him is un- true, or that it fails to fully set forth the facts required to be shown thereby, 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 order may be enforced by attachment. § 210. — 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 prop- erty, 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 cor- poration or association, the sheriff shall execute to the piirchaser 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 shaU repossess himself of the same, and for that pm-pose shall have all the authority which he had to seize the same undet the attachment; and any j)er- son who shall ■willfully conceal or mthhold 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 e\idences of 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 dock- eting of the judgment, the court shall have power, upon the petition of the plaint- iff, 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 evidences of debts 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 attor- ney, 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 the notice and the time of service, as shall be deemed just. \Vhen 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. 464 DAKOTA. § 211. The actions herein authorized to be brought by the sheriff may be prose- cuted by the plaintiff, or under bis 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, and exclusive of property exempt from execution. § 212. — If the foreign corporation, or absent or absconding or concealed defend- ant, recover judgment against the plaintiff in such action, any bond taken by the Bheriff, except such as are mentioned in the last section, all the j^roceeds 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. § 213. — Whenever the defendant shall have appeared in such action, he may apply to the clerk who issued the attachment, or to the court, for the discharge of the same; and, upon the discharge, all the proceeds of the sales and moneys col- lected by him, and all property attached remaining in his hands, must be delivered or jiaid by him to the defendant, or his agent, and released from the attachment. And when there is more than one defendant, and several property of either of the defendants has been seized by viitue of the warrant of attachment, the defendant whose several property has been seized may apply to the clerk who issued the war- rant, or to the court, for the discharge of the attachment. § 214. — Upon such application the defendant must deliver to the court or clerk an undertaking, executed by at least two sureties, who are residents and freehold- ers, or householders, in this territory, approved by such court or clerk, to the effect that such 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 must be at least double the amount claimed by the plaintiff in his complaint. If it appear by affidavit that the property attached is worth less than the amount claimed by the plaintiff, the court, or the clerk issu- ing 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 daj's 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 fail so to do he shall be deemed to have waived all objection to them. When the plaintiff excepts, the sureties must 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 be either waived, as above provided, or until they justify, or new sureties are substituted and justify. § 215. — In all cases the defendant, or any person who has acquired a lien upon or interest in the defendant's property after it was attached, may move to discharge the attachment, if the motion be made upon affidavits on the part of the defend- ant, or person who has acquired a lien upon or interest in the defendant's property after it was attached, but not otherwise. The plaintiff may oppose the same by affidavit or other proof, in addition to the affidavit on which the attachment was granted, and in such case the defendant, or person who has acquired a lien upon or interest in the defendant's property after it was attached, may sustain the motion by affidavits or other proof in rebuttal of the affidavits or other proof offered and submitted on the part of the plaintiff to oppose the motion. And when there is more than one defendant, and several property of either of the defendants has been seized by virtue of the warrant of attachment, such defendant may deliver to the court or clerk an undertaking, in accordance with the provisions of the preceding section, to the effect that he wUl, on demand, pay to the plaintiff the amount of judgment that may by him be recovered against such defendant; and all the pro- visions of the preceding section relating to such undertaking apply thereto. [As amended February 25, 1881.] § 216. — If a warrant of attachment be levied upon the interest of one or more partners in personal property of a partnership, the other partners, or any of them, may, at any time before judgment, apply to the court from which the warrant of attachment issued, or a judge thereof, upon affidavit stating such fact, for an order to discharge the attachment as to the partnership property. The applicant must give an undertaking, with at least two sufficient sureties, to the effect that, if judgment shall be rendered in the action in favor of the plaintiff, they will pay to the sheriff, on demand, the amount of defendant's interest in such partnership property; DELAWARE. 465 the amount of such interest to be determined by reference or otherwise, as the court may direct. The amount of such undertaking must be fixed by the court or iutlge thereof, and must not be less than the vahio of the interest of the defendant i'n the goods, chattels, credits and effects of the partnership; and for the purpose of fixing the amount of the undertaking, the court or judge may hear affidavits or oral testi- mony, respecting the value of the defendant's interest in the attached property. If the plaintiff except to the sufficiency of the sureties, they must justify, on notice, in like manner as provided by section two hundred and fourteen. § 217.— When the warrant shall be fully executed or discharged, the sheriff must return the same, with his proceedings thereon, to the court in which the action was brought. § 218.— 1. When a debtor has sold, conveyed, or otherwise disposed of his prop- erty with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; or when the debt was incurred for property obtained under false pretenses; or, [as amended February 25, 1881], 2. Is about to make sale, conveyance, or disposition of his property with such fraudulent intent; or, 3. Is about to remove hia property, or a material part thereof, with the intent, or to the effect, of cheating or defrauding his creditors, or of hindering and delay- ing them in the collection of their debts; — a creditor may bring an action on a claim before it is due, and have attachment against the property of the debtor; and the proceedings on such attachment shall be conducted in all respects as if the claim were due; but judgment must not be rendered in the action under [until] the debt or claim upon which such attachment is made and shall become due and payable. Before justices of the peace — §§ 322-325, In bastardy cases — § 741. Exemptions— §§ 322-325. Lien of attachment— VoL ii, p. 1078, § 1811. DELAWARE. [Revised Code of 1852, as amended 1874 and 1875.] CHAP. CIV. — OF ATTACHMENTS. §1. — A writ of domestic attachment may be issued against an inhabitant of this state after a return to a summons, or capias, issued and delivered to the sher- iff, or coroner, ten days before the retiu-n thereof, showing that the defendant can- not be found, and proof satisfactory to the court, of the cause of action; or upon afiBdavit made by the plaintiff, or some other credible person, and filed -with the prothonotary, that the defendant is justly indebted to the plaintiff in a sum exceed- ing fifty dollars, and has absconded from the place of his usual abode, or gone out of the state, with intent to defraud his creditors, or to elude process, as is believed. § 2. — The writ of attachment shall be directed as other writs are, and shall com- mand the officer to attach the defendant by all his goods and chattels, rights and credits, lands and tenements, in whose hands, or possession, soever, the same may be found in his bailiwick, so that he be and appear at the next superior court, to answer the plaintiff's demand; and that he summon the defendant's garnishees to appear at the said court to declare what goods, chattels, rights, credits, money, or effects of the defendant, they have in their hands respectively. § 3.— -If the defendant in the attachment, or any sufficient person for him, will, at any time before judgment, ajipear and give security to the satisfaction of the plaintiff in such cause, or to the satisfaction of the court and to all actions brought against such defendant, to the value of the property, rights, credits and moneys II AlTACiUIBKT— S. 466 DELAWARE. attadied, and the costs, then the garnishees and all property attached shall be dis- charged. The security may be taken thus: "On the day of ,18 — , A. B. becomes security in the sum of that C. D. shall answer the demand of E. r. in this suit, and shall satisfy any judgment to the extent of the value of the property attached, that may be recovered against him therein;" which entry on the appearance docket shall be signed by the security, and shall be an obliga- tion of record of the same force and effect, and subject to the same remedy by an action of debt, as any other obligation for the payment of money may be. — [Amended Statutes 1877, voL 15, p. G12.] § 4. — The sheriff, or other oflBcer, shall, under such writ, attach all the defend- ant's property, real and personal, and his rights and credits, that can be found; and shall take possession of the said personal property, rights and credits, and have them inventoried and appraised, and shall be answerable therefor; but if he can- not have actual possession thereof, be shall notify the person in whose hands, or possession, they are supposed to be, that he attaches the same at the plaintiff's suit, for the use of all the defendant's creditors, and that he doth summon him, as a garnishee, to appear and answer as commanded by the %vrit; from and after which answer, the personal property, chattels and effects, so attached, shall be delivered to the sheriff", unless the garnishee will give security for the same § 5. — The sheriff, or other officer, shall return a particular account of all prop- erty, rights, or credits, attached, and the appraised value thereof, and the names of all garois^nees summoned. § 8. — If any property, so attached, is of a perishable nature, or will cause ex- pense in its keeping, the court, or any judge thereof, may order the said officer, on due notice, to sell the same, and retain the money, subject to the order of court. § 7. — If any garnishee, duly summoned, shall not appear as required, he may be compelled, by attachment, to appear and answer, or jjlead, and he shall be so compelled within two terms, or the attachment shall, as to him, be dissolved. If he a^jpear, and at the request of the plaintiff, or any other creditor, answers under oath that he had no money, goods, chattels, rights, credits, or effects of the defend- ant, liable to attachment, in his hands or possession, at the time he was notified of the attachment, or at any time after, he shall be discharged. He may also, at the election of the plaintiff, or other creditor, make a special declaration; upon which judgment shall be rendered by the com-t according to law. But if any creditor of the defendant shall require him to pilead, he shall not be permitted to answer, but shall i:ilead "nulla bona," on which the pilaintiff, or any other creditor, may take issue and go to trial. And if it be found that the garnishee had, at the time he was notified of the attachment, or at any time after and before his plea pleaded, any money, goods, chattels, or effects, of the defendant, in his hands, or possession, the jury shall render a verdict for the plaintiff, or such other creditor, and assess damages to the value of such property, and judgment shall be entered against such garnishee therefor, with costs; but the money, le\'ied thereon, shall be distributed among all the defendant's creditors, as is hereinafter directed. § 8. — Any judgment against a garnishee as aforesaid, shall be pleadable in bar to any action at the suit of the defendant. § 9. — If the plaintiff, in any writ of attachment, or any creditor of the defend- ant therein, or any credible i^erson in behalf of such plaintiff or creditor, wiU make affidavit that any garnishee summoned or to be summoned thereon, is not an in- habitant of the county where the attachment is depending, or that he believes such garnishee is about to leave the said comity, and that he also believes such gar- nishee has property of the defendant in his hands, or owes the defendant money, ■whether it is due or not, then the said plaintiff, or creditor, may issue a capias against such garnishee, and hold him to bail for his appearance at court to answer, or p>lead, as aforesaid. § 10. — On the return of a ■WTit of attachment, the court shall appoint three suit- able persons to audit the claims of the defendants creditors (except such of them as have sued out attachment before a justice of the peace, and attached any prop- erty, rights, or credits of the defendant, who shaU be barred from any tlividend or benefit under this proceeding), and shall adjust and ascertain all their demands, including that of the plaintiff in the attachment. § 11. — The auditors shall severally be sworn faithfully to discharge their duty according to the best of their skill and knowledge. They shall give thirty days' no- tice to the creditors of the time and place of their first meeting, by advertisements posted at the court-house door, and at least five other public places of the county; and their subsequent sittings shall be by adjournment, duly made and publicly DELAWARE. 467 announced. They may investigrate any claim presented, in any form they judge best, and may examine any of the creditors upon oath. On the receipt of the pro- ceeds of sale of the property attached, or any part thereof, the auditors shall cal- culate and settle the proportions and dividends due the several creditors, allowing to the creditors attaching and prosecuting the same to judgment, a double share, or dividend, if such shall not exceed theii- debt; and they shall make report to the next term of the court after such apportionment, and on confirmation of the report, shall forthwith, on pain of attachment, pay over to the several creditors their repective shares of such proceeds according to such apiaortionment. § 12. — The court may hear exceptions to, and correct such account and report, either in the allowance or regulation of claims, in the calculations, dividends, or apportionment, or otherwise. § 13. — Provided, that before any creditor shall receive any dividend or share, so distributed, he shall, with sufficient surety, enter into recognizance to the debtor, before the prothonotary, in a sufficient sum to secure the repayment of the same or any part thereof, if the said debtor shall, within one year thereafter, appear in the said court and disprove or avoid such debt or such part thereof. The proceeding for this purpose may be by motion to the coxu:t, and an issue framed and tried before the same. § 14. — Every creditor who shall neglect duly to present his claim, in person or by attorney, to said auditors, according to notice, or to make proof thereof, a.s required, shall be debarred from receiving any share or dividends in the distribution to be made by the auditors. § 15. — Judgment shall be given for the plaintiff in the attachment the second term after issuing the writ, unless the defendant shall enter special bail as afore- said; whereupon the court shall make an order that the sheriif shall sell the prop- erty attached, on due notice, and pay the i^roceeds (deducting legal costs and charges) to the auditors for distribution. § 16. — Any balance remaining due the creditors, after such distribution of the proceeds, may be collected as other debts; and any overplus, after paying all the claims allowed and costs, shall be returned to the defendant, or his executors, administrators, or assigns. § 17. — Any surety of the defendant by recognizance, bond, bail, assumption, or otherwise, shall be entitled to prove the claim, arising on such liability, before the auditors, and to share in the distribution. § 18. — No second writ of domestic attachment shall issue against the defendant, unless the first shall not be executed, or shall be quashed, or dissolved by the court, or discontinued by the plaintiff with consent of a majority of the creditors: and if the plaintiff shall die, or be satisfied of his debts, it shall not stop the pro- ceedings; but the name of his executor or administrator, or of any other creditor, may, on suggestion of the fact, be substituted in his stead. § 19.— A writ of foreign attachment may be issued against any person not an inhabitant of this state, after a return to a summons, or capias, issued and deliv- ered to the sheriff, or coroner, ten days before the return thereof, showing that the defendant cannot be found, and proof, satisfactory to the coiu-t, of the cause of action;^ or upon affidavit made by the plaintiff, or some other credible person, and filed with the prothonotary, that the defendant resides out of the state, and is justly indebted to the said plaintiff in a sum exceeding fifty dollars. And where there are two or more defendants, one a resident of the state, but without available means to pay the plaintiff's claim, the fact may be so stated in such affidavit, and the attachment thereon may issue against the non-resident defendant, or defend- ants, with the same effect as if such non-resident defendant or defendants was or were the only defendant or defendants in the cause. — [Amended Statutes 18S1, vol. 10, p. 70U.] § 20.— The said writ shall be framed, directed, executed, and returned, and like proceedings had, as in the case of a domestic attachment, except as to the appoint- ment of auditors and distribution among creditors; for every plaintiff in a foreign attachment shall have the benefit of his own discovery, and, after judgment, may proceed, by order of sale, fieri facias, capias ad satisfaciendum or otherwise, as on other judgments. Provided, that before receiving any sum under such judgment, the plaintiff shall enter into recognizance as required by section 13 preceding. § 21. — All sales under this chapter shall be good against the defendant, his executors, administrators and assigns; and if action be brought against any officer, 468 DELAWARE. or other person, acting tinder the authority of this chapter, he may, under the general issue, },dve this chapter in evidence in his justification. A SUTPLEMENT TO CHAPTER 104 OF THE REVISED STATUTES OP THE STATE OF DELAWARE. § 1. — A writ of foreign attachment may be issued out of the superior court of this state against any corporation, aggregate or sole, not created by, or existing under, the laws of this state, upon affidavit made by the plaintiff, or any other credible person, and filed with the prothonotary of said court, that the defendant is a corporation, not created by, or existing under, the laws of this state, and is justly indebted to the said j^laintiff in a sum of money, to be specified in said affidavit, and which shall exceed fifty dollars. §2. — The said writ shall be framed, directed, executed, and returned, and like proceedings had, as in the case of a foreign attachment issued under the chapter to ■which this act is a supplement, except that attachments to be issued under this act shall be dissolved only in the manner hereinafter provided. § 3.— In any attachments to be issued under this act, judgment shall be given for the plaintiff at the second term after the issuing of the wi-it, unless the defend- ant shall liave caused an appearance by attorney to be entered, in which case the like proceeding shall be had as in suits commenced against a corporation by sum- mons: Provided, however, if the defendant in the attachment, or any sufficient person for him, shall, at any time before judgment, give secm-ity for the payment of any judgment that may be recovered in said proceedings, with costs, then the garnishees and all the property attached shall be discharged, and the attachment dissolved, and like proceedings be had as in other cases of foreign attachment under the act to which this is a supplement, in which the attachment has been dissolved by special bail. Such security shall be approved, and the form and amount thereof determined, by the court in term time, or by any judge thereof, in vacation. But the court may prescribe the form of such security by general rule in that behalf. — [Amended Statutes 1875, p. 305.]^ ATTACHED ON MESNE PROCESS § 11. — The said franchise of toll, with all its rights and incidents, shall also be liable to be attached on mesne process; and such process shall be served by an at- tested copy, with the officer's retmn thereon, being left with the treasurer, clerk, or some director of the company, thirty days before the return day thereof. ATTACHMENT OF STOCK. § 13. — The shares of any person in any incorporated company, with all the rights thereto belonging, may be attached for debt, or other demands; and so many of said shares may be sold at public vendue, to the highest bidder, as shall be suffi- cient to satisfy the debt, or other demand, interest and costs, upon an order issued therefor by the court from which the attacliment process issued, and after such notice as is required for sales upon execution process. If the debtor lives out of the county, a cojjy of the advertisement shall also be forwarded by mail to his ad- dress ten days before the sale, and shall be published in a newspaper printed in the county of his residence, if there be any. § 14.— When stock shall be so attached, a certified copy of the process shall be left bj' the officer with the president, cashier, or treasurer of the company, who shall give such officer a certificate of the number of shares held, or owned, by the debtor in such company, with the number, or other marks, distinguishing the same, anything in the charter or by-laws of said company to the contrary not- withstanding. § 15. — If the shares of stock, or any of them, be sold as aforesaid, any assign- ment or transfer thereof, Ijy the debtor, after attachment so laid, shall be void; and if, after sale made and confirmed, a certified coj^y of the order of sale and re- turn be left with such president, cashier, or treasurer, the purchaser shall be thereby entitled to the shares so purchased, and all income, or dividends, which may have been declared or become payable thereon since the attachment laid; and such sale, returned and confirmed, shall transfer the shares sold to the purchaser as fully as if the debtor, or defendant, had transferred the same to him according to the charter and by-laws of the comiiany, anything in said charter, or by-laws, to the contrary notwithstanding: Provided, that no order of sale shaU be issued uutil after final judgment shall be rendered in any case. FLORIDA. 4G9 § 16. — The money arising' from the sale of such shares shall be supplied and paid, by the officer receivinj^ the same, as by law is directed as to the sale of per- sonal property in cases of attachment. § 17. — Any proceedings under this chapter may be had in any county in which either the creditor or the i^resident, cashier, treasurer, or any director of such cor- poration may reside, or in which there may be a toll-house, or gate, of such company. Before justices of the peace — Chap. 99, pp. 598-620. Liens against vessels — Laws 1879, p. 211. Exemptions— Chap. Ill, and Laws 1875, p. 309; Laws 1881, p. 708. For rent— Chap. 120, p. 714. FLORIDA. [McHlellan's Digest, 1881, and Statutes of 1883.] CHAPTER VII. — ATTACHMENT. § 1. — It shall be lawful for any clerk of the circuit courts of this state, to grant •writs of attachment ret^irnable to his ovm court, directed to the sherifF, or other proper officer, commanding him to attach, and take into custody so much of the lands, tenements, goods and chattels of the party against whose property the writ is issued, as will be sufficient to satisfy the debt or sum demanded, with costs, by plaintiff in attachment. § 2. — It shall be lawful for a justice of the peace (in cases only where property is being actually removed from the state, and the party plaintiff is imable to obtain, process of attachment from the clerk of the circuit court) to grant \vrits of attach- ment, in cases where the amount claimed is above the jurisdiction of a justice of the peace, returnable to the circuit court of the county in which such writ shall have been granted. 3. — Any creditor shall be entitled to proceed by writ of attachment, in a jus- tice's court, against the projierty of his debtor in the following cases, and wpon the following conditions: Before any such writ of attachment shall be issued, the plaint- iff or some person in his behalf shall make and file ^sdth the justice an affidavit, stating that the defendant therein is indebted to plaintiff in any sum of money, specifying the amount of such indebtedness as near as may be, over and above all legal set-offs, and that the same is due upon express or imjilied contract, or will become due within three months, or upon the judgment or decree of some court, and containing a fm-ther statement that he knows, or has good reason to believe, that the party from whom it is due will fraudulently part with his, her or their property before judgment can be recovered, or is actually removing, or about to remove, his, her or their i^roperty out of the county where the attachment is applied for, or resides beyond the limits of the state, or has absconded or so con- ceals or secretes himself or herself that the ordinary process of law cannot be served upon him or her, or is secreting his or her property, or fraudulently disposing of the same, or that the defendant contracted the debt under false or fraudulent rep- resentations. § 4. — Writs of attachment, now authorized by statutes of this state, to be issued where the debt or demand is due, shall in no case be issued, unless the party applying for the .same, or his agent or attorney, shall first make oath in writing, before a justice of the peace, or clerk of the circuit court, as is now provided Ijy law, that the amount of the debt or sum demanded is actually due, and also that he or she has reason to believe the party from whom it is due will fraudulently part with his, her or their property before judgment can be recovered against him, her or them (as the case may be), or is actually removing his, her or their property out of the state of Florida, or about to remove it out of the state, or resides beyond the limits thereof, or is actually removing or about to remove out of the state, or ab- 470 FLORIDA. Bconds or conceals himself or herself, or is secreting his or her property or fraudu- lently disposing of the same, or that he or she is actually removing or about to remove beyond the judicial circuit in which he, she or they reside. § 5.— When any executor or administrator resides, or has removed beyond the limits of this state, and there are assets of the testator or intestate in this state, it may be lawful for any person having a debt or demand against the estate of the deceased, to take out an attachment against such assets, upon making oath, ia vritiug, that the above debt or sum demanded is actually due, and that the exec- utor or administrator, as the case may be, resides or has removed beyond the limits of this state: Provided, that no attachment shall issue if the said executor or ad- ministrator shall have any legally authorized and publicly known agent in the Btate; service of any summons upon whom shall be as good and valid as if it had been served upon the person of the said executor or administrator. § 6. — "Whenever any portion of the crops cultivated by laborers shall be re- moved or attempted to be removed from the premises whereon they were grown or housed, or ginned or packed, or when there is good reason to believe such removal will be attempted without the full payment of all wages due to such laborers for Buch services, or their written consent to such removal of the crops, then such laborer or laborers, their agents or attorney, may apply to any justice of the peace, county judge, or clerk of the circuit court within the county wherein any portion of such crops may be found, and upon such application, such officers shall issue a writ of attachment, and gave the same to any sheriff, deputy sheritf, constable, or deputy constable, who shall forthwith proceed to levy upon and take possession of such crop, or a sufficient amoimt thereof to satisfy the debt and probable cost of suit. § 7. — In case of the absence of the proper officer, the officer issuing the writ shall deputize some citizen, who shall proceed to execute the attachment, and any person so deputized who shall refuse or neglect to execute such attachment shall be deemed guilty of a misdemeanor, and lined not less than one hundred dollars and costs. § 8. — WTien such attachment is issued by a justice of the peace, and the amoimt exceed one hundred dollars, the vrrit shall be retm-nable to the circuit coiul; and all cases, whether tried before a justice of the peace or other court, shall be tried at the first term after issuance. § 9.— If any person seeking redress by virtue of sections 6, 7 and 8 of this chap- ter, on filing the affidavit necessary to have such attachment issued, shall also make oath that he is unable to give secm'ity on the bond required liy the laws of this state in attachment cases, then the attachment shall issue without any security on the bond. § 10.— It shall be the duty of the judge of the coiui; or justice of the peace trying the case, after hearing and determining the validity of the claim, if judg- ment is rendered against the defendant, to issue execution within five daj-s after the rendition of such judgment, commanding the officer into whose hands such execution may be i^laced to proceed and make the money, and make due return thereof within ten days. § 11. — Proceedings under this law shall be conducted in the same manner as provided by the laws on attachments now in force, except when they conflict with the provisions of this law. § 12. — Affidavit may be made, and writs of attachment issued, as hereinbefore mentioned, at any stage of the cause, concerning any property, debt, or demand claimed. § 13. — It shaU be lawful for any person to obtain a writ of attachment, whether the debt or demand be due or not: Provided, that the same %vill become rlue within nine months from the time of applying for said writ of attachment: And provided also, that at the time of such apijlication the person against whom the debt or demand charged shall be actually removing his or her property beyond the limits of this state, or-Jse fraudulently disposing of, or secreting the same for the jjurpose of avoiding the payment of his or her just debts or demands. § 14. — Such writ shall in no case be issued unless the party applying for the same, or his agent or attorney, shall first make oath in writing that the amount of the debt or demand claimed and charged against the opposite party is actually an existing debt or demand; stating also in said oath in writing the time when said debt or demand will actually became due and payable; and also that the pai-ty against whom the said WTit of attachment is ax^pLied for is actually removing his or FLORIDA. 471 her property beyond the limits of this state, or (as the case may be) is fraudulently disjiosing of, or secreting the same for the purpose of avoiding the payment of his or her just delit or demand, satisfactory proof of which shall be demanded 'and produced to the officer granting the attachment. § 15. — No attachment shall issue until the party applying for the same, by him- self or by his agent or attorney, shall enter into bond with at least two good and sufficient securities payable to the defendant, irt at least double the debt or sum demanded, conditioned to pay all costs and damages the defendant may sustain in consequence of improperly suing out said attachment: Provided, nevertheless, that the bond taken in case of attachment shall not, on account of any informality in the same, be adjudged void as agairust obligors, nor shall they be discharged there- from, although the attachment be dissolved by reason thereof. § 16. — The property so attached may at any time be replevied by the said de- fendant, or some other person for him, giving bond to the officer le^-ying such attachment, payable to the plaintiff, with good and sufficient security, to be ap- proved by such officer, in double the value of the property levied on, conditioned for the forthcoming of the property replevied, and to abide the final order of the court. § 17. — In all cases when any writ of attachment shall be issued, the property attached shall be discharged and restored to the defendant or defendants on his, her or their entering into bond with sufficient security, to be approved by the court to which the vrc'it is returnable, conditioned for the payment to the plaintiif in attach- ment of the debt or demand when the same shall become due, or said prc^serty so attached may be replevied according to law as in other cases. § 18. ^The service of a writ of attachment shall not operate to dispossess the tenant of any lands or tenements, but such service shall bind the property at- tached, except against pre-existing liens; but the judgment, in a suit commenced by attachment, shall be satisfied in the same manner as other judgments obtained at the same term of the court are, or shall be satisfied out of the lands and tene- ments, goods and chattels, generally, of the defendant in attachment: Provided, hoivevcr, that judgment rendered against any garnishee or garnishees in said suit shall be appropriated exclusively to the satisfaction of the judgment rendered against the defendant, commenced by attachment as aforesaid. § 19. — All personal property levied on by attachment, unless replevied, shall re- main in custody of the officer who shall attach the same until the judgment of the court shall have been pronounced; but when the property attached shall be of a perishable nature, it shall and may be lawful for the clerk or justice of the peace who ordered the attachment, in vacation as well as in term time, to grant an order for the sale of such property, after such public notice as to the said clerk or justice of the peace shall seem expedient, and the proceeds of such sale shall be paid into court, and abide the judgment thereof. § 20. — In case any attachment shall be levied upon property claimed by any other person than the defendant in attachment, such person may, at his option, replevy the same or interpose a claim in the manner that is or may be provided in case of execution: Provided, that in neither case shall bond be required of such person in a greater amount than double the value of the property so claimed. § 21. — When an action shall be begun in any court of any county of this state for the attachment of personal property situated in such county at the time of be- ginning of such action, and such property shall be removed from such county pending such action, and a writ is issued for the attachment of such property, it shall be the duty of the officer to whom such writ is addi-essed and delivered, at once to make his return of the fact of the removal of such property as aforesaid, and the plaintiff in such suit may make affidavit stating to what county or counties he believes the property has been removed, whereuijon an alias \vrit shall issue addressed to the sheriff of such last-named county, or one such wi-it addressed to the sheriff of each county to which such i^roperty or a portion thereof has been removed, who shall upon the receipt of such writ take possession of said property and deliver it to the proper officer of the court from which such ■writ was issued, and make return of said wTit and his doings in the premises to said court, and the proceedings shall be thereafter as in other actions of attachment. § 22. — All questions as to the title of such property shall be adjudicated in the county in which the action was brought, unless the venue shall be changed by the court. § 23. — All writs of attachment shall be made returnable to the court having jurisdiction of the same, and to the next rule-day after it was issued, if ten daya 472 FLORIDA. ehall intervene bet^veen the day it was issued and the next rule-day, and if not ten daj's then to the next rule-day thereafter, and the bond, affidavit' and other papers on which such attachment may have been obtained, shall be filed in the court on or before the rule-day to which said writ of attachment is returnable. § 24. — The filing of the declaration and other pleadings, in a suit commenced by attachment, shall be governed by the same rules which govern the filing of thj declaration and other pleadings in ordinary suits at law, and judgment shall be rendered therein as in other cases. § 25. — In all cases where property shall be attached and not replevied, a notice of the institution of the suit by attachment shall be personally served upon the defendant, or siiall be published for three months in some public newspaper of the circuit, and if there be no newspaper published in such circuit, then a written ad- vertisement in some public place; and such notice shall require the defendant and all other persons interested to appear and plead to the declaration filed in such cases; and it shall and may be lawful for the court, upon satisfactory proof of the service of such notice, or of the publication of such notice, and upon the finding of a jury of inquest, to be called for that purpose, to award their judgment upon said finding, and execution shall issue accorrlingly. § 26. — The courts, respectively, to which such attachments are returnable, shall be always open for the purpose of hearing and deciding motions for dissolving such attachments, and in any such case, upon oath, made and tendered to the court, that the allegations in the plaintiff's affidavit are untrue, either as to the debt or sum demanded, or as to the special cause assigned, whatever it may be, for granting the attachment, then, in every case, it shall be the duty of the court to Lear evidence upon the issue so presented, and if, in the opinion of the com-t, the allegations in the plaintiff's affidavit are not sustained and proved to be true, the said attachment shall be dissolved: Provided, that if the party defendant shall de- mand the same, a jury shall be impanneled to try the issue joined as aforesaid. § 27. — When any suit shall be commenced by attachment, and the same on motion be dissolved before plea to the action, then, in every such case, the suit shall abate and be dismissed from the court; but if such motion is made after the Earty defendant has appeared and pleaded to the action, the attachment only shall e dissolved, and the plaintiff may still proceed in said suit and prosecute his debt or demand to final judgment; but if the suit be already pending, and the attach- ment be dissolved at any stage of the proceedings, the smt itself shall abate and be dismissed: Provided, the motion to dissolve such attachment be made at or be- fore the first term of the court where the suit is pending. § 28. — In all cases, on motion to dissolve an attachment, the party plaintiff and the party defendant shall have right, and equal right, to demand a jury to try any issue made on such motion. § 29. — If there be two or more suits commenced by attachment against the same person, and several judgments be obtained at the same term, they shall be satis- fied, pro rata, out of the judgments which may have been obtained against the gar- nishee or garnishees in any such suits, unless the defendant in such suit or suits have sufficient other property to satisfy the same. § 30. — Ship-chandlers, store-keepers and all dealers, mechanics and workmen shall have a lien on any ship, vessel, steamboat or other water-craft, for all stores, provisions, rigging or other materials, or labor or services of any kind what- ever furnished or rendered to or for the use of any such ship or vessel, or steam- boat or other water-craft, and which lien shall have a preference over all others: Provided, however, that this right of lien is to cease if not enforced within thii-ty days after the same accrued; and when they shall be unable to collect the said claim or debt upon demand when due, and shall wish to enforce the said lien, he, she or they may make oath (and which oath may be made by an agent or an attorney of the party) to said claim or debt before the clerk of the circuit court of the county in which said ship, vessel, steamboat or other water-craft may then lie or be, whereupon and not before the said clerk shall issue a writ of attachment against said ship, vessel, steamboat or other water-craft, returnable to the circuit coiu-t for said coimty, directed to the sheriff of said coimty, who shall execute the same by le\'y upon the ship, vessel, steamboat or other water-craft, which he shall take into possession and custody: Provided, that the sheriff may levy upon any property on board the ship, vessel, steamboat or other water-craft belonging to the owner or owners thereof, in case he can find sufficient such property to satisfy said claim or debt and costs. § 31. — ^\^len any such claim or debt shall be for one hundred dollars or less, the oath aforesaid shall be made before a justice of the peace of the county in which FLORIDA. 473 tte ship, vessel, steamboat or other water-craft may He or be, who shall issue a writ of attachment, directed to all and singular the sheriffs or constables of saiies of the original attachment, bond and affida-s'it, and certify the same, officially, to be a true copy or copies; and upon such copies being delivered to any officer to whom the same is directed, of the county where the property of the defendant is, it shall be the duty of such officer to levy, forthwith, the same upon the property of the defendant in such county, and to return the same, with his actings and doings entered thereon, to the court to which tl^e original attach- ment is returnable. GEORGIA. 479 § 3271. — When any attachment shall be issued and levied upon the property of the defendant, it shall be lawful for the defendant, his agent or attorney, to file his affidavit that he has a good defense to the action, and that the bond given in such attachment is not a good bond, and the ground of its insufficiency; and when such affidavit is made and delivered to the levying officer, it shall be the duty of such officer to return such attachment, together with the affidavit, forthwith to the officer issuing the same, and the officer issuing the attachment shall, without delay, hear testimony as to the sufficiency of said bond, and such officer may, in his discretion, require additional security or a new bond, to be given within tha time prescribed by the officer, and in default thereof, the levying officer shall dis- miss the levy made \m.der said attachment. § 3272 (320.5^ (3194).— When the amount sworn to shall exceed the sum of one hundred dollars, the attachment shall be made returnable to the next term of tha superior or county court of the county where the defendant resides, or where he last resided; but if such superior court shall sit within twenty days, or such coimty court shall sit within fifteen days next after issuing such attachment, it shall be made returnable to the next term of the superior or county court thereafter; and when the debt sworn to does not exceed the sum of one hundred dollars, the at- tachment shall be made returnable to the next justice's com-t of the district in which the debtor resides, or last re.sided; but if the next justice's court shall sit within ten days next after issuing such attachment, it shall be made returnalile to the next justice's court thereafter, except when the defendant resides out of tha state; and, in that case, if the debt sworn to exceeds one hundred dollars, the at- tachment may be made returnable to the sujierior court of any county in this state; and if it does not exceed one hundred dollars, the attachment may be made returnable to a justice's court of any district of any county in this state. § 3273 (320G) (3195). — Attachment returnable to the superior and county courts shall be directed to all and singular the sheriffs and constables of this state, and attachments returnable to the justices' courts shall be directed to aU and singular the constables of this state. § 3274 (3207) (3196). — Attachments may issue and be levied on Sunday when the plaintiff, his agent, or attorney-at-law shall swear, in addition to the oatli pre- scribed by this code, that he has reason to apprehend the loss of the debt, unless process of attachment do issue on Sunday, and shall also comply with the other provisions of this code in relation to issuing attachments. § 3275 (3208) (3197).— When the debt is not due, the debtor shall be subject to attachment in the same manner and to the same extent as in cases where the debt is due, except that where the debt does not become due before final judgment, execution upon the judgment shall be stayed until the debt is due. § 327G (3209) (3198). — In cases of joint contractors and copartners, where any one of them shall render himself liable to attachment according to law, an attach- ment may issue against him upon the plaintiff, his agent, or attorney at law com- plying with the previous provisions of this code in relation to the issuing of attach- ments; and the proceedings against such joint contractors or copartner shall be in all respects as in other cases of attachments, except that such attachment shall be levied oidy upon the separate property of such joint contractor or copartner. § 3277 (3210) (3199). — Process of attachment may issue against an administrator on an estate, or the executor of the last will and testament of any deceased person, as in other cases, when such administrator or executor shall be actually removing, or about to remove, the property of said deceased person without the limits of any county of this state: Provided, final judgment shaU not be entered up against such administrator or executor until after the expiration of two years from the granting of letters of administration, or letters testamentary, as the case may be. § 3278 (3210) (3199). — In all cases of money demands, whether arising ex con- tractu or ex, delicto, plaintiff shall have the right to sue out the attachment when the defendant shall have placed himself in such situation as will authorize a plaint- iff to sue out attachment upon the plaiatifE's complying with the law now of force in relation to issuing attachments. § 3279 (.3211) (3200).— In all cases where a person is surety or indorser upon an instrument of writing, and the principal .shall become subject to attachment, ac- cording to the provisions of section 3264 of this code, it shall be lawful for such surety or indorser, upon complying with the provisions of this code in relation to the issuing of attachments, to have attachment against his principal; and the pro- ceedings shall be, in all respects, the same as in other cases of attachment, acci)rd- ing to the provisions of this code, and the money raised by such attachments shall 480 GEORGIA. be paid to the person holdin.i? such instrument of writing. But if the surety or indorser has paid the debt, then the money raised upon such attachment, or so much thereof as will jiay the amount the surety or indorser has paid, shall be paid to such surety or indorser; and in case the debt is not due at the time judgment is rendered against the principal, execution shall be stayed until the debt is due. § 3280 (3212) (3201). — In all cases where the plaintiff has commenced suit for the recovery of a debt, and the defendant, during the pendency of such suit, shall become subject to attachment, agreeable to section 32(34 of this code, the plaintiff, upon complying with the provisions of this code in relation to the issuing of attach- ments, may have an attachment against the defendant, and all the proceedings in relation to the same shall be as hereinbefore prescribed in relation to attachments where no suit is pending. And a satisfaction of the judgment in the common-law action shall satisfy the judgment in attachment, and a satisfaction of the judgment in attachment shall satisfy the judgment in the common-law action. §.3281(3213) (3202). — Attachments may issue against incorporations not incor- porated by the laws of this state, who are transacting business within the state, under the same rules and regulations as are by this code prescribed in relation to issuing attachments and garnishments in other cases. § (3214). — Repealed by constitution of 1868, article I, sec. 18. § 3282 (321.5) (3204). — A substantial compliance in aU matters of form shall be held sufficient in all applications for attachment, and in all attachments issued as pro\'ided by this code. § 32S3 (3216) (3205).— In all cases of attachment, the form of the affidavit, bond and attachment may be as follows : AFFIDAVIT. Georgia, County. Before me, the subscriber, a in and for said county, personally and on oath says that is indebted to him in the sum of , and that the said . Sworn to before me, , this the day of , 18 — . BOXD. Georgia, County. We, , principal, and , seciu-ity, acknowledge ourselves bound unto in the sum of dollars, subject to the follo%\dng conditions: That the said , principal, is seeking an attachment against the said , which is now about to be sued out, returnable to the term of the court of the county aforesaid; now, if the said shall pay all damages that the said may sustain, and also all costs that may be incmred bj^ him in consequence of suing out such attachment, in the event that the said shall fail to recover in said case, then this bond to be void. Executed in presence of , this day of , 18 — . [L. S.] . [L.S.J attachment. Georgia, County. To all and singular the sheriffs and constables of said state: You are hereby commanded to attach and seize so much of the property of ■ as will make the sum of dollars and all costs, and also to serve such summons and garnishment as may be placed in your hands, and that you make retm-n of this attachment, with your actings and doings entered thereon, to the ■ term of the coiu-t of said coimty, to which court this attachment is hereby made returnable. Hereof fail not. Witness my hand and seal, , this the day of , 18 — . . [l. 8.] IN WHAT MANNER, ON WHAT PROPERTY EXECUTED, AND PBOCEEDINGS THEREIN. § 3284 (3217) (3206).— It shall be the duty of any one of the officers to whom an attachment may be directed, as provided in section 3273, article I, to leyj' the Bame upon the property of the defendant that may be found in the county of which he is sheriff, or constable; and when any attachment shall come into the hands of any officer of the county in which such attachment is returnable, and the defend- ant shall have removed his projjcrty t.yonJ the limits of said county before such an attachment is executed, it shall be the duty of the officer having such attach- GEORGIA. 481 ment to follow such property into any county in the state and levy the same, and briny the property back into the county where the attachment is returnable. § 3285 (3218) (3207).— It shall be the duty of the officer levying such attachment to return the same, with his actings and doings entered thereon, together with the affidavit and bond, to the court to which the same is made returnable. § 3286 (3219) (3208).— In all cases it shall be the duty of the officer levying at- tachments to levy them in the order in which they came in his hands, and it shall be his duty to enter upon the same the year, month, day of the month, and hour of the day on which he made the levy. § 3287 (3220) (3200).— When an attachment has been issued by the proper offi- cer, the same may be levied upon the property of the defendant, both real and personal, which may be found in the county. § 3288 (.3221) (3210).— Service of the attachment, by serving process of garnish- ment, shall be as effectual for all purposes as though the attachment had been served by levying the same upon the property of the defendant. § 3289 (3222) (3211). — When the process of attachment shall issue against a party who shall have or own any interest, or an amount of shares, in any cori^ora- tion in this state, the same may be attached in the following manner: The officer in whose hands the attachment is placed shall indorse an entry thereon of his levy on the corjiorate shares or interest of the defendant, and sht,ll forthwith serve a copj^ of the attachment so indorsed upon the president of the corporation, at the office of the company, or by leaving the same at the usual or most notorious place of doing the business of such companj-, which entry and service shall amount to and be considered a seizm-e of said corporate interest or shares, to all intents and purposes, and under an execution issued on such attachment may be sold as in other cases of ordinary execution. § 3290 (3223) (3212).— Any transfer by the defendant of the stock or interest so attached after the levy of such attachment, shall be void, and when an execution is issued, the said stock or interest shall be sold by the sheriff, or his deputy, ac- cording to the provisions of this code, to make bank and other stocks subject to executions. §3291 (.3224) (3213). —Certificates of purchase shall be granted by the officer selling as prescribed in cases of executions, and on presentation of such certificates to the proper officer of said corporation, it shall be his duty to make such transfer, on his books, if necessary, and afford the f)urchaser such evidence of title to the stock purchased, as is usual and necessary with other stockholders. § 3292 (322.5) (3214). — In all cases of sale of lands, where the vendor has not executed a deed of conveyance to the jjurchaser for the same, but has given bond for titles, or other evidence of the contract, and the purchase-money has not been paid, and the vendee shall become liable to attachment agreeable to the provisions of section 3264 of this code, attachment may issue against him at the instance of the vendor, upon complying with the provisions of this code in relation to attach- ments; which said attachment shall be levied upon the land described in the lx)nd, or other evidence of contract for titles, and the subsequent proceedings shall be, in all respects, as heretofore prescribed in this code in relation to attachments; and it shall be lawful for the party bound by such bond, or other contract for titles, to file in the clerk's office of the superior court of the county where the land is situated, a good and sufficient deed of conveyance of said land to the obligee of said bond or other contract for titles; and when judgment is obtained upon such attachment, the execution issuing thereon may be levied upon said land, and the same be sold, and the money arising from said sale shall be appropriated to the pay- ment of said judgment on the attachment, to the exclusion of any other attach- ment, judgment or other debt of the defendant. ATTACHMENTS FOR PURCHASE-MONET. § 3293. — Process of attachment may issue in behalf of any creditor whose debt L9 created by the purchase of property, upon such debt becoming due, when the debtor who created such debt is in the possession of the property for the pm-chase of which the debt was created, or where said property is in the possession of any one holding the same for the benefit of said debtor, or in fraud against such cred- itor; and judgments on such attachments shall take rank from the. date of the levy of the attachment. §.3294. — Before process of attachment shall issue, under the preceding section, the party seeking the attachment, his agent or attorney-at-law, shall make affidavit 11 Attachment— 6. 482 GEORGIA. s before some person authorized by law to issue attachments, that the debtor liaa placed himself in the po-sitiou mentioned in said section, and also the amount of the debt claimed to be due; and shall also describe in the affidavit tha property for which the debt was created, ^\^len the affidavit is made by the agent or attomey- atdaw, he may swear that the amoimt claimed to be due is due, according to the best of his knowledge and belief. The officer issuing the attachment, before issu- ing the same, shall take from the party seeking the attachment a bond in double the amount claimed to be due, conditioned and made payable as attachment bonds are, by the provisions of this code, requu-ed to be conditioned and made payable. § 3295. — Affidavit being thus made and bond given, it shall be the duty of the ofl&cer before whom such affidavit is made to issue an attachment against the de- fendant, which shall be levied onhj on the property described in said affidavit, by the officer to whom the attachment is directed. § 3296. — So much of the law of this code as regulates the proceedings in relation to remedy by attachment, as is not in conflict with the three preceding sections, shall apply to and control proceedings under this article. ATTACH1IENT.S AGAINST FRAUDULENT DEBTORS. § 3297. — Whenever a debtor shall sell, or convey, or conceal his property liable for the payment of his debts, for the purpose of avoiding the payment of the same, or whenever a debtor shall threaten or prepare so to do, his creditors may petition the judge of the superior com't of the circuit where such debtor resides, if qualified to act, and if not, the judge of any adjoining circuit, fully and distinctly stating his grounds of complaint against such debtor, and jiraying for an attachment against the property of such debtor liable to attachment, supporting his petition by affidavit, or testimony, if he can control the same. § 3297 (a). — ^Whenever any person shall make a fraudulent lien on his property, he shall be subject to the provisions of the laws now in force, relative to fraudulent debtors, and in all cases where an attachment is sought against the fraudulent debtor, the officer issuing the same shall require bond and security of the applicant for attachment, as in other cases of attachment. § 3298. — Such judge may then grant an attachment, to be issued in the usual form, and directed as usual, and wliich shall be executed as existing laws provide, and subject to existing laws as to traverse, reple^'y, demurrer, and other modes of defense; or such judge may, if he deem it more proper under the circumstances of the case as presented to him, before granting such attachment, appoint a day on which he shall hear the petitioner, and the party against whom an attachment la jjraj'ed (providing in his order for due notice to said party), as to the propriety of granting such attachment, and, if satisfied upon such hearing that such attach- ment should not issue, he shall not grant the same; but if satisfied that the same should is.sue, he shall grant an attachment, to be governed and regulated as herein provided for attachments to be issued when no hearing is had. § 3299. — If the i:)arty whose property has been attached without a hearing, as provided in the preceding section, desires so to do, he may apply to said judge, stating fully and distinctly the groimds of his defense, showing why such attach- ment should not have been issued, or should be removed, supporting the same by affidavit, or such other testimony, by affidavit or otherwise, as he can control; such judge shall then appoint a time and place forbearing both parties, jolaintiff and defendant, providing for due notice to all persons interested, allo^vdng them full opportunity to sustain their respective cases, as in apjalication upon injunc- tion, and may then, upon a review of the law and the facts of the case, make such order in the premises as is consistent with justice, either totally or partially remov- ing such attachment, or whollj' or partially retaining the same, or disposing of the same in some manner which would be equitable and just to all parties. § 3300. — Such attachments, when issued and served, shall be returned and dis- posed of as attachments are now returned and disposed of, and be subject to the same defenses, and may be taken out, upon the affidavit of the agent or attorney of the creditor, if he can, by his own oath, make out a case which wiU satisfy said judge. § 3301. — The decision of the judge granting or refusing an attachment under the provisions of this article may be excepted to and carried to the supreme court, as was practiced in applications for injunction prior to 28th October, 1870. PROCEEDINGS ON GARNISHMENTS. § 3302 (3226) (3215).— In all cases where attachment may issue, it shall be the duty of the magistrate, or other officer issuing the same, at the request of the GEORGIA. 483 plaintiff, his a?ent or attomey-at-la-w, to issue summons of garnishment, directed to any person that may be indebted to, or have property or effects of the defend- ant in their hands, requiring- them to appear at the court to which the attachment is made retumabk^ then and there to depose on oath what they were indebted to the defendant at the time of the service of said pramishment, or what property or effects of his they have in their hands, or had at the time of the service of said summons of garnishment; and it shall be the duty of the officer levying such at- tachment to serve such summons of garnishment. § 3303 (3227) (3216).— When the plaintiff, his agent or attorney-at-law, shall de- sire to garnishee persons not residing in the county in which the attachment issues, it shall be the duty of the magistrate issuing the same, at the request of the plaintiff, his agent or attorney-at-law, to make out a copy of the affidavit, bond and attachment, and certify the same to be a true copy; and upon the delivery of such copy to an.-^ magistrate, or other officer who is authorized by law to issue an attachment, in the county in which the person sought to be garnished resides, it shall lie the duty of such magistrate, or other officer, to make out a summons of garnishment for such persons as he may be requested to do by the plaintiff, his agent or attorney-at-law, requiring such persons to be and appear at the next su- perior, or county court, or justice's court of the county in which it issued, and depose in the manner prescribed by law; but if the next court, as aforesaid, shall be held within less than ten days next after the issuing of said summons of gar- nishment, then the person garnished shall be required to appear and depose at the next court thereafter; which said summons may be served by any officer authorized by law to levy an attachment, who shall return such certified copy, affidavit, bond and attachment, to the court as aforesaid, together with his actings and doings en- tered thereon. § 3304 (3228) (3217).— When any person summoned as garnishee fails to appear, in obedience to the summons, and answer at the first term of th» court at which he is required to appear, the case shall stand continued imtil the next term of the court; and if he should fail to appear and answer by said next term, the plaintiff may, on motion, have judgment against him for the amount of the judg-ment he may have obtained against the defendant in attachment, or so much thereof as shall remain unpaid at the time the judgment is rendered against the garnishee; and the court may continue the case until final judgment is rendered against the defendant in attachment. § 3305 (3229) (3218).— Wlien the garnishee appears and answers that he is in- debted to, or has property or effects in his hands belonging to, the defendant in attachment, judgment shall be rendered against him in favor of the plaintiff for such acknowledged indebtedness, and the jDroperty and effects, whatever they may be, .shall be delivered into the hands of the sheriff or constable, as the case may be, and by order of the court shall be by him sold, and the money arising from such sale shall be held subject to the order of the court, and in case the garnishee fails to deliver over such property or effects to the officer as aforesaid, it shall be lawful for the court to attach him as for contempt; the property and effects so surrendered and delivered into the hands of the officer, as aforesaid, shall be sold at such time and place, and after such notice given, as the court ordering the same shall dh-ect. § 3306 (3230) (3219). — When the summons of garnishment is returnable to the superior or county court, and the plaintiff in attachment is not content with the answer of the garnishee, he may at the term of the court to which the return is made, traverse the same, and the issue formed upon such traverse shall be tried at the same term by a petit jmy, unless cause is shown for a continuance. On the trial of said issue, it shall be competent for the plaintiff to show the amount of indebtedness of the garnishee, and the value of the property and effects not sur- rendered as aforesaid; and upon final judgment being rendered against said gar- nishee, the plaintiff in attachment shall have execution for the amount of such judgment and cost as at common law. § 3307 (3231) (3220). — When the summons of garnishment is returnable to a justice's court, the issue formed upon the traverse as aforesaid shall be tried by the justice of the peace, with the right of appeal according to the law governing appeals from justices' courts. OP PLEADING AND DEFENSES. § 3308 (.3232) (3221).— When the attachment has been returned to the proper court, the subseciuent i>roceedings shall be in all respects the same as in cases where there is personal service, and when the attachment is returnable to the superior or county court, the plaintiff shaJl file his declaration at the first term. 484 GEORGIA. § 3309 (3233) (3222).— The plaintiff, his agent or attomey-at-law, may .cive no- tice iu writing- to the defendant of the pendency of such attachment and of the proceedings thereon, which shall be served personally on the defendant by the sheriff, his deputy, or a constable of the county to which said attachment is re- turnable, by giving him a copy of said notice, at least ten days before final judg- ment on said attachment, and returning said original notice with his service entered t!iereon to the court in which said attachment is pending, which being done, the judgment rendered upon such attaclmient shall have the same force and effect as judgments rendered at common law; and no declaration shall be dismissed because the attachment may have been dismissed or discontinued, but the plaintiff shall be entitled to j udgment on the declaration filed, as in other cases at common law, upon the merits of the case. § 3310 (3234) (3223).— The defendant may appear by himself or attorney-at-law, and make his defense at any time before final judgment is rendered against him. § 3311 (3235) (3224). — Any defendant against whom an attachment may issue for the recovery of a demand which is not due, under the provisions of section 3275, article I, may avail himself in his defense of any set-off pleadable by the laws of this state, notwithstanding such set-oif may not be due at the time of suing out such attachment, or at the trial thereof; and if said set-off, so pleaded, shall exceed the plaintiff's demand, the defendant shall ha e judgment against the plaintiff for such excess as at common law, with a stay of execution until the time the said set-off so pleaded shall become due. § 3312 (3236) (3225). — In all cases of attachment the defendant may traverse the truth of the affidavit in relation to the ground upon which the attachment issued at the return of the attachment, and if said attachment is returnable to the superior court, the issue formed upon such traverse shall be tried by a iuiy at the same term, unless good cause is shown for a continuance; and if the final verdict upon such issue shall be in favor of the defendant, said attachment shall be dis- missed at the cost of the plaintiff. And if the attachment is retiurnable to a jus- tice court, the issue formed upon the traverse aforesaid shall be tried by the justice of the peace, with the right of api^eal, according to the law regulating appeals from justices' courts. § 3313 (3237) (3223).— No traverse of the plaintiff's attachment, affidavit, or other proceeding of the attachment shall delay judgment on the declaration where personal service has been perfected, but judgment may be had thereon, subject to the rules of the common law, as well before the trial of the issue made on the attachment proceedings as afterward. § 3314 (3238) (3227). — In case either plaintiff or defendant shall die before final judgment is rendered in any case, and there is representation upon the estate of the defendant, jjarties shall be made in the same manner as in cases where there is l^ersonal service. Biit if there is no kno-\\-n representation upon the estate of the defendant within this state, and the plaintiff shall die, his executor or adminis- trator may, at any time after his qualification as such, cause to be issued by the clerk of the court, or justice of the peace, a scire facias, returnable to the next term of the court after issuing the same, giving notice to the opposite party of his inten- tion to be made a party in i)lace of his deceased testator or intestate, which shall be i^osted up at the door of the court-house where such attachment is pending at least twenty days before the term at which such scire facias is made returnable; imd upon affidavit being made by the executor or administrator of this being done, and said affidavit being filed among the papers in the case, said executor or admin- istrator shall, on motion, be made a party, and the same proceed in his name. § 3315 (3239) (3228). — ^Vhen the defendant shall die, scire facias shall issue in the manner aforesaid after the expiration of twelve months from the death of the defendant, directed to the representative of the deceased defendant, notifying him of the pendency of such attachment, and of the intention of the plaintiff to proceed with the same, which being posted as aforesaid, and affidavit made and filed as aforesaid, it shall be lawful for the plaintiff to proceed in the same manner as though the death of the defendant had not occurred; but the executor or adminis- trator upon the estate may, at any time before final judgment upon the attach- ment, come in and be made a party, and defend in the same manner as his testator or intestate might have done. § 3316 (3240) (3229).— The plaintiff in attachment shall have the right to amend his attachment, or bond, or declaration, as in other cases at common law, and the levj'ing officer shall have the right to amend his return by supplying any omissions or errors, and the coxirt before which the attachment shall be returned shall have power to order said amendments. GEORGIA. 485 § 3317 (3241) (3230). — A judgment in attachment may he set aside in a court of law upon an issue suggesting fraud or want of consideration, tendered by a judg- ment creditor of the defendant in attachment. § 3318 (3242) (3231). — In cases of attachment and garnishment, interrogatories may be sued out and served as provided in other cases. EEPLEVY AND DISPOSITION OF PROPERTY ATTACHED. § 3319 (3243) (3232).— When an attachment has been levied upon the property of a defendant, it shall be the duty of the officer levying the same to deliver the property so levied upon to the defendant, upon his giving bond, with good secu- rity, payable to the plaintiff in attachment, obligating themselves to pay the plaintiff the amount of the judgment and costs that he may recover in said case: Prockkd, the i^roperty levied on shall be equal to, or exceed in value, the amount of the debt sworn to be due; but in case the property levied upon shall be of less value than the amount of the debt claimed to be due, then the said bond shall be in double the amount of the property levied upon, to be judged of by the levying ofacer; and the officer taking said bond shall return the same with said attachment to the court to which the same is made returnable, and it shall be lawful for the plaintiff to take judgment against the defendant and his securities upon said bond for the amount of the judgment he may recover in his said attachment case. § 3320 (3244) (3233). — When an attachment .shall be levied on the jDroperty of an incorporation not incorporated by the laws of this state, it shall be lawful for any agent of such incorporation to reUeve the jjroperty levied on, or discharge the summons of garnishment that may is.sue, by giving bond to the levying officer, payable to the plaiutiti, conditioned to pay the amount that may be recovered in said case; which bond the lev3-ing officer shall return to the com-t to which the attachment is made returnable, and judgment m;iy be entered up in like manner against the principal and security uijou said bond for the amount the plaintiff may recover against such corporation. § 3321 (3245 (3234). — When the defendant fails to reple^'y the property, and the same remain.i in the hands of the levying officer, and is of a perishable nature, or liable to deteriorate in value from keeping, or there is expense attending the keep- ing of the same (the same not being land), uiaon these facts; being made plainly to appear to a judge of the sui:)erior court, or county judge of the county in which the attachment is returnable (where the same is returnable to a superior or county court), or to a justice of the peace of the county (where the same is returnable to a justice's court), it shall be their duty to order a sale of the property, which shall be at the usual place of holding sheriff's sales of the county where such i:)roperty may be, when the attachment is returnable to the suj^erior or county court; and when the attachment is returnable to a justice's court, at the usual place of con- stable's sales of the district where the property may be, or at such other place as the magistrate ordering said sale maj' direct. The time and place of holding such sale shall be advertised at the court-house, and at two other public places in the county where the same is to take place, at least ten days before the day of sale. And wbcii the attachment is returnable to a justice's court, it shall be advertised at the court-house door of the district in which the attachment is retin-nable, and the money ari.sing from such sale shall be held by the officer making the same, subject to the order of the com't to which the attachment is returnable. OF CLAI3IS AND PROCEEDINGS THEREIN. § 3322 (324G) (3235).— When property shall be levied on by vu-tue of an attach- , ment, ami the same is claimed by any person not a party to such attachment, it shall be the duty of the jjerson claiming the same, his agent or attorney-at-law, to make oath before some person authorized by law to administer an oath, that the jiroperty levied on is the property of the claimant, and is not subject to such at- tachment, according to the best of his knowledge and belief; and said claimant shall give bond, with good security, payable to the plaintiff in attachment, in a sum at least equal to double the value of the j^roperty claimed, to be judged of by the levying officer, conditioned to pay the x^laintiff all d.%mages which the j wrj, on the trial of the right of property, may assess against him, in case it should );e made to appear that such claim was made for the purpose of delay; and in case the claim is interposed by the agent or attorney-at-law of the claimant, such agent or attor- ney-at-law shall have power to sign the name of the claimant to the bond, and such claimant shall be bound in the same manner as though he had signed it himself. It shall be the duty of such officer taking such affidavit and bond to return the same to the court to which the attachment is returnable, unless the property levied on should be real estate, in which case it* shall be his duty to return the same to 486 GEORGIA, the superior court of the county where the land lies: Provided, ihat if the claimaHt is unable to give such bond and security, he may intei-jDose his claim, as elsewhere provided in this code. § 8323 (3247) (3236). — The claim shall be tried in the same manner and subject to the same rules and regulations as are prescribed by law for the trial of other claims in the court to which it is returned. § 3324 (3248) (3237). — The claimant, his agent or attorney-at-law, may give bond, with good security, payable to the levying officer, in a sum equal to double the value of the property claimed, the value to be judged of by the levj'ing officer, conditioned to deliver such property at the time and place of sale, provided the same should be found subject to the attachment; and, upon the delivery of such bond to the levying officer, it shall be his duty to deliver such property to the claimant, his agent or attorney-at-law, and it shall be the duty of the le\'ying offi- cer to return such bond, together with the affidavit and claim-bond, to the court to which such attachment is returnable; and when said claim is interposed by the agent, or attorney-at-law, of the claimant, such agent or attorney-at-law shall have power to sign the name of the claimant to the bond, who shall be bound thereby in the same manner as though he had signed it himself. § 3325 (3249) (3238).— Upon the failure of the claimant to deliver such property, according to the conditions of said bond, the levying officer may immediately sue the claimant and security upon the bond, and recover the full value of the prop- erty claimed, and also all damages, costs and charges, that the plaintiff may have sustained in consequence of the failm-e of the comx^lainant to deliver said property. § 332G (3250) (3239). — In cases where the claimant shall deliver the property, and upon selling the same a sufficient amount shall not be raised to pay the debt and costs of the plaintiff, it shall be lawful for the ijlaintifi to institute suit against the claimant and his securities upon his said bond, and to recover the full value of the hire or use of the property while the same has been in the possession of the claimant, and also full damage ; for any deterioration of the value of the property, by use or otherwise, while the same has been in the possession of the claimant, provided such recovery shall not exceed the amount of the debt that may remain due from the defendant in attachment to the plaintiff. The remedy provided in this section is and shall be extended to all other claims in the cases hereia pro- vided for. § 3327 (3251) (3240).— In cases of attachment, a claim may be interposed either before or after judgment. OF LIEN OF ATTACHMENTS, JUDGMENT AND EXECUTION. § 8328 (3252) (3241).— When the defendant has given bond and security, as pro- vided in section 3319 of this code, or when he has appeared and made defense by himself or attorney-at-law, or when he has been cited to appear, as provided in section 3309 of this code, the judgment rendered against him in such case shall bind all his property, and shall have the same force and effect as when there has been personal service, and execution shall issue accordingly, but it shall be first levied upon the property attached. In all other cases, the judgment on the attach- ment shall only bind the property attached, and the judgment shall be entered only against such property. § 3329 (.3253) (3242).— After the judgment has been obtainedin any case of at- tachment, execution shall issue, as in cases at common law, which execution shall be levied in the same manner as executions issuing at co mm on law, and the pro- ceedings, in all respects, shall be the same, except that when the judgment only binds the property levied on by the attachment, as aforesaid, the execution shall be issued against such property only, and that property only shall be levied on and sold. § 3330 (3254) (3243).— All money raised by the sale of defendant's property, or otherwise, by virtue of the provisions of this code, in relation to attachments, shall be paid over'to the creditors of the defendant, according to the priority of the lien of their judgments, saving only that as between attaching creditors, the attach- ment first levied shall be first satisfied, to the entire exclusion of any attachment of younger levy. § 3331 (3255) (3244).— The lien of attachment is created by the levy, and not the judgment on the attachment; and in case of a conflict between attachments, the first levied shall be first satisfied; but in a contest between attachments and onlinary judgments, or suits, it is the judgment, and not the levy, which fixes the lien. • GEORGIA. 487 SUITS ON ATTACHSfENT BONDS. § 3354 (3278) (32G7). — When a person who has been a defendant in attachment desires to sue the plaintiff for damages, and the plaintiff shall not reside in this state, it shall be sufficient to serve a copy of the petition and process on the secu- rity to the liond given by the plaintiff, and said action may proceed against both principal and security. GARNISHMENT. § 3536 (3485) (3465). — When such affidavit has been made, and bond given, it shall be the duty of the officer before whom the same is made, or any other officer authorized by this code, to issue attachments, to whom the same bond and affida- vit may be delivered, upon the request of the plaintiff, his agent or attorney-at- law, to issue a summons of garnishment, directed to the person sought to be "gar- nished, requiring him to appear at the next term of the court where such suit is pending, or \yhere such judgment was obtained; but if the next superior court shall be held within less than ten days from the time such summons shall issue, then the garnishee shall be required to appear at the next court thereafter, then and there to depose on oathwhat he is indebted to, orwhat property and effects he has iu his hands belonging to, the defendant, or had at the time of the service of the summons of garnishment; and also what he has become indebted to the defend- ant, or what property and effects he has received or got possession of belonging to the defendant, between the time of the service of said summons and the time of making his return; and upon such affidavit, bond, and summons of garnishment being delivered to any officer authorized l:)y law to levy an attachment, it shall be his duty to serve such summons of garnishment upon the person to whom it is di- rected, if to be found in his county, and to make an entry of such service, and of his actings and doings in the premises upon the affidavit and bond, and return the same to the coin-t to which the person summoned as garnishee is required to ap- pear; and all subsequent proceedings shall be the same as in this code prescribed in relation to garnishment in cases of attachment. Summons of garnishment may issue under the provisions of this section, from time to time, before trial, without giving any additional bond. § 3533 (a). — In all cases of garnishment, whether the same be by attachment or garnishment at common law, it shall be the duty of the garnishee to answer what property, money or effects of the defendant he has in his hands at the date of the service of the summons of garnishment, and also what property, money or effects of the defendant may come into his or her hands at any time from the date of said service to the date of the answer; and said garnishee shall also answer what he or she owes the defendant at the date of the service, and also what he or she may be- come indebted to the defendant at any time between the date of the service of the smnmons and the answer thereto. § 3536 (b). — All debts owing to the defendant, and all property, money or effects of the defendant coming into the hands of the garnishee at or within the times desigiiated in the preceding section shall be subject to process of garnish- ment, whether the garnishee had anything in his hands or was indebted anything to the defendant at the date of the sei?vice of the summons or not. § 353G (c). — In all cases where judgment has been, or may hereafter be, obtained in the courts of ordinary of this state, the plaintiff in such judgment shall be enti- tled to process of garnishment, as iu other cases of garnishment at common law, and the proceedings in such cases shall be the same as though such judgment may have been obtained in the superior court: Provided, however, that the person sought to be garnished shall be directed and required to answer at the next term of the superior court of the county wherein the judgment was obtained; but if the ne:::t term of the superior court shall be held within less than ten days after the sum- mons issues, then the garnishee shall be required to appear and answer at the next term of the com-t thereafter. § 3530 (d). — The plaintiffs named in the foregoing section shall have power to garnish persons in counties other than the county wherein their judgments are or may have been obtained, as in other cases of garnishment at common law; and the defendants in such judgments and claimants to the money or property in the hands of the garnishee shall have the right to dissolve such garnishments, or to claim said money or property, in the same manner as in other cases of garnishment at common law. § 3537 (3480) (3406). — When any of the persons sought to be garnished reside in a different county from the one where suit is pending, or in which judgment was obtaineil, it shall be the duty of the officer taking such affidavit and bond, or any other officer of the coimty where suck suit is pending, or where such judgment 488 GEORGIA. ■was obtained, authorized Ijy this code to issue an attachment, to whom said hond aud ailidavit may be delivered, to make out a copy thereof, and certify the same to be true, and shall deliver said certified copy to the plaintiff, his a^ent, or attor- ney-at-law; and upon such certified coi^y being delivered to any officer authorized to issue an attachment, of the county where the person sought to be garnished resides, it shall be the duty of such office!- to issue summons of garnishment for such ]icr.;on as he may be directed by the plaintiff, his agent, or attorney-at-l^w, requiring him to appear at the next superior or justice's court of said county, ac- cording as such suit is pending, or judgment was obtained in the superior or justice's court, then and there to depose according to the i)rovisions of the previous sections; but if the said superior court shall be held within less than twenty daj-s, cr said justice's court shall be held within less than ten days from the time such garnishment issues, the garnishee shall be required to appear at the next court thereafter. § 3538. — When any of the persons sought to be garnished reside in a different county from the one where suit is pending, or in which judgment was obtained, the pilalntiii, his agent or attorney-at-law may make affidavit and give bond in any county in the state, before any officer authorized to issue an attachment under this code, and it shall be the duty of the officer taking such affidavit and bond to make out a coi^y thereof, and certify the same to be true, and to issue summons of gar- nishment for such person as he may be directed by the plaintiff, his agent or at- tomey-at-law, requiring him to appear at the next superior or justice's court of the county of the garnishee's residence according as such suit is pending, or judgment was obtained in the superior or ju.stice's court, then and there to depose according to the provisions of law; and it shall be the duty of the officer serving such sum- mons to. return or transmit the certified affidavit and bond, together with hij act- ings and doings thereon, to the superior or justice's court of the county in which such suit i.j ponding or judgment was obtained, and to return the original affidavit and bond to the court where such person is summoned to appear, with bis actings end doings thereon; and all subsequent proceedings shall lie the same as prescribed by this code, in relation to garnishment, in cases of attachment, where the gar- nishee resides out of the coimty in which the attachment is retm-nable. This fec- tion shall not be so construed as to repeal the preceding section, but as providing an additional mode of obtaining garnishment against persons residing out cf the county where suit is pending or in which judgment was obtained; and so mu'.h of sa,id section as relates to the time in which service of summons of garnishment shall be made returnable to the superior or justice's court, is hereby made a part of this section. § 3539 (3487) (3467). — Upon such certified copy of affidavit, bond and summons of garnishment being delivered to any officer authorized by law to le%-y an attach- ment, it shall be his duty to serve the summons upon the i)erson to whom it is d-rected, and to return the said copy, affidavit and bond to the court where such person is summoned to appear, together with his actings and doings entered thereon: and all subsequent proceedings shall be the same as is prescribed by this code in relation to garnishment in cases of attachment where the garnishee resides out of the county in which the attachment is retmmable. § 3540 (3488) (34G8). — In cases where garnishments are issued when suit is pend- ing, or judgment has been obtained, the defendant may dissolve such garnishment, and have the same dismissed, upon filing in the clerk's office of the court where :.uit i.i f)ending, or judgment was obtained, or with the justice of the peace where suit is pending, or judgment was obtained in such court, a bond, with security, payable to the plaintiff, for the iiayment of the amount due on such judgment, or which may ba recovered in said action, and the costs thereon, and the plaintiff may enter up judgment upon such bond against the principal and securities, as judgment may be entered against securities upon appeal. § 3541. — "v^Tienever any process of garnishment is served upon any person, based upon suit, attachment or judgment, and there shall be money or property of any kind or description in the hands of the garnishee, or that shall come into his hands so as to fall within the operation of the summons of garnishment so served as aforesaid, which is claimed to be the jiroperty or money of any person not a party to the proceeding upon which said garnishment is based, said claimant may dis- solve said garnishment by filing in the clerk's office of the superior court of any county, or of any city court, or in the office of any justice of the i>eace, or notary public, according as said garnishment may be returnable to the superior, citj% jus- tice or notary public's coiu't, a bond with good seciu-ity in twice the amount of the sum claimed upon said suit, attachment, or judgment, to be approved by said clerk, or said justice of the peace or notary public, conditioned to pay to the plaintiff the sum .that may be found due to said defendant upon the trial of any GEORGIA. 489 issue ttat may be formecl upon the answer of the garnishee, or that may be admitted to be due in said answer, if uutraversed. § 3542. —The garnisbeo, upon answering, shall be discharged from all further liability, and the plaintiff 's remedy shall be upon the bond so executed as afore- said; the i^laintiff or claimant, or both of them, may traverse said answer, and the issue upon said traverse shall be submitted to a jury as other issues upon the answer of garnishees; if said garnishee fails to answer within the time required by the laws of this state, judgment shall lie had against him, and he shall be liable there- on, notwithstanding any bond that may have been executed by any claimant of the fund or property in his hands. § 3543. — The garnishee shall pay over or deliver any money or property to the claimant upon the dissolution of the garnishment, in manner aforesaid, unless prevented by other legal process. § 3544. — The claimant of any fund or property, to whom the same may have been paid or delivered upon the dissolution of the garnishment in the manner before iirescribcd, shall be a party to all further proceedings upon said garnish- ment, and judgment shall be had instanter upon said bond for any sums, or the value of any property that may be found to have been in the hands of said gar- nishee, liable to the oi^eration of said summons of garnishment. § 3545 (3489) (34G9). — All money raised by virtue of the process of garnishment under this code shall be paid over to the creditors of the dafendr.nt, according to the priorities now established l;iy law — the expenses of the moving creditors being first iiaid pro rata by the judgment creditors receiving the benefit of his diligence. § 354G (3490) (3470). — As a general rule, a party who is prevented from paying over money by ijrocess of law is not liable for interest; but if a garnishee resists the payment of the fund in his hands, or controverts his indebtedness, he is liable for interest thereon — but he may relieve himself from interest by paying the fund into court. § 3547 (3491) (3471).— The plaintiff shall not have judgment against the gar- nishee until he has obtained judgment against the defendant. § 3548 (3492) (3472). — The garnishee must, in his answer, admit or deny his in- debtedness, or that he has or had effects in his hands belonging to defendant; and if he is unable to do so, his inabiUty must ajipear in his answer, together with all the facts jilainlj^, fully and distinctly set forth, so as to enable the court to give judgment thereon. § 3549.— In all cases where process of garnishment shall be served ujoon any person, and such person shall make a true answer to the garnishment, as now re- quired by law, and shall pay the sum due to the defendant into court, or shall turn over and deliver up any personal property of the defendants that he may have in his possession, as required l>y law, or shall answer truly that he owes the defendant nothing, if the garnishee shall have to incur any expense in making his or her an- swer to the garnishment, or in turning over said personal property, the amount so incmTed shall be taxed in the bill of costs, under the approval of the court, and be paid, by the party cast in the suit, as other costs are now paid. § 3550. — V/henever the garnishee shall answer that he has money or currency in his control belonging to the defendant in the principal suit, or the same fact shall be ascertained in the manner provided by law, the plaintiff, in addition to other remedies now existing, shall have the same remedy to enforce the delivery of such money or currency as exists by law under section 3305 of this code, to en- force the delivery of property or effects; and all the i^rovisions of said section as it exists, and shall exist, shall apply to garnishments at common law. § 3551 (3493) (3473). — Collateral securities in the hands of a creditor shall not be the subject of garnshment at the instance of other creditors. § 3552 (3494) (.3474). — An attorney-at-law who has money or other effects in his hands belonging to the defendant, shall be subject to be garnished. §3553(3495) (3475). — A receiver appointed by a court of equity shall not be subject to the process of garnishment. §3554 (349G) (347G). — All journeymen, mechanics, and day laborers shall be exempt from the process and liabilities of garnishment on their daily, weekly, or monthly wages, whether in the hands of their employers or others. § 3555 (3497) (3477). — As a general rule, the interest of a legatee or distributee is not the subject of garnishment issued against an executor or administrator, but 490 IDAHO. if the legacy has been assented to by the executor, and such legacy is not defeated by debts against the estate, and when there has been a final settlement Ijy the administrator, and there remains in his hands a fixed balance, such legacy or the interest of the distributee or heir may be reached by process of garnishment, at the instance of a creditor of such legatee, distributee, or heir-at-law, as the case may be. § 3556 (3498) (3478). — In every case a garnishment may be issued against an executor or administrator for a legacy or distributive share, or for any debt or de- mand owing by said estate to any other person, if the creditor will swear — in addition to the oath required in ordinary cases — that his debtor resides without the state, or is insolvent. In such cases the executor or administrator shall not be compelled to answer the garnishment imtil the estate in his hands is sufficiently administered to enable him safely to answer the same. Garnishment in justices' courts — Sees. 4161, 4161 (a), 4162, 4163. Exemptions— Sees. 2002, 2040. Shares of stock may be attached — Sec. 2626. Jurisdiction of county courts — Sees. 283 (a), 283 (b). roAHO. [Code op Procedure, 1881.] ATTACHMENT. § 318. — The plaintiff, at the time of issuing the summons, or at any time after- ward, may have the property of the defendant attached, as security for the satis- faction of p.ny judgment that may be recovered, unless the defendant give security to pay such judgment, as in this chapter provided, in the following cases: 1. In an action upon a contract, for the direct payment of money, where the contract is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property; or, if originally so secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless. 2. In an action upon a contract, against a defendant not residing in this territory. § 319. — The cleric of the court must issue the writ of attachment, upon receiv- ing an affidavit by or on behalf of the plaintiff, setting forth: 1. That the defendant is indebted to the plaintiff (specifying the amount of Buch indebtedness over and above all legal set-offs or counter-claims), upon a con- tract, for the du-ect payment of money, and that the payment of the same has not been secured by any mortgage or lien upon real or personal propertj', or any pledge of i^ersonal property, or, if originally so secm-ed, that such security has, without any act of the iDlaintiff, or the person to whom the security was given, become valueless; or, 2. Th?.t the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs or counter-claims), and that the defendant is a non-resident of the territory; and 3. That the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant. § 320. — Before issuing the writ, the clei'k must require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, and not exceed- ing the amount claimed by the plaintiff, with sufficient sureties, to the effect that if the defendant recover judgment, or if the attachment be wrongfully issued, the IDAHO, 491 plaintiff will pay all costs that ma.y be awarded to the defendant, and all damaijes which he m.'iy sustain by reason of the attachment, not exceeding the sum specified in the undertaking. §321. — The ■\\Tit must be directed to the .sheriff of any county in which the propertj' of such defendant may be, and must require him to attach and safely keep all the property of such defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the jjlaintitf' s demand, the amount of which must be stated in conformity witli the complaint, imless tlie defendant give him security by the undertaking- of at bast two sufHcient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been, or.is about to be, attached; in which case, to take such undertaking. Several writs may be issued at the same time to the Bherii'fs of different counties; and the plaintiff may have other writs of attachment as often as he may require at anytime before judgment. § 322. — The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profit thereon, and all debts due such defendant, and all other propei-ty in this territory of such defend- ant not exempt from execution, may be attached, and, if judgment be recovered, be sold to satisfy the judgment and execution. §323. — The sheriff to whom the writ is directed and delivered, must execute the same without delay, and if the undertaking mentioned in section 321 be not given, as follows: 1. Real property, standing upon the records of the county in the name of the defendant, must be attached,' by filing with the recorder of the county a copy of the writ, together with a description of the property attached, and a notice that it is attached; and by leaving a similar copy of the writ, description, and notice with an occupant of the property, if there is one; if not, then by posting the same in a conspicuous place on the property attached; 2. E,eal j^roperty, or an interest therein, belonging to the defendant, and held by any other person, or standing on the records of the county in the name of any other person, must be attached, by filing with the recorder of the county a copy of the writ, together with a description of the property, and a notice that such real 1 roperty, and any interest of the defendant therein, held by or standing in the name of such other jierson (naming him), are attached; and by leaving with tha occupant, if any, and with such other person, or his agent, if known and within the coun./y, or at the residence of either, if within the county, a copy of the writ, with a similar description and notice. If there is no occupant of the property, a copy of the writ, together with such description and notice, must be i3osted in a con- spicuou.'s place Ufjon the property. The recorder must index such attachment when filed, in the names both of the defendant and of the person by whom the proj)erty is held or in whose name it stands on the records. 3. Personal i^roperty, capable of manual delivery, must be attached by taking it into custody. 4. Stocks or shares, or interest in stocks or shares, of any corporation or com- pany, must be attached by leaving with tlie president, or other head of the same, or the secretary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in piu-suance of such %vrit. 5. Debts and credits, and other personal property, not capable of manual deliv- ery, must be attached by leaving with the person omng such debts, or having in his i:)ossession, or under his control, such credits or other personal propert j', or with his agent, a copy of the -writ, and a notice that the debts owingby him to the defendant, or the credits or other personal property in his possession or under his control, belonging to the defendant, are attached in pursuance of such writ. § 324.— Upon receiving information in writing from the plaintiff, or his attor- ney, that any per jon has in his jiossession, or under his control, any credits or other personal property, belonging to the defendant, or is owing any debt to thedefend- ant, the sheriff must serve upon such i^erson a copy of the writ and a notice that such credits, or other jDroperty or debts, as the case may be, are attached in pursu- ance of such ^vrit. § 32j. — All persons having in their possession, or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the de- fendant at the time of the service upon them of a copy of the writ and notice, as pro- vided in the Ir.st two sections, shall be, unless such property be delivered up or trans- ferred, or such debts be paid to the sheriff, liable to the plaintiff_ for the amount of such credits, property, or debts, untU the attachment be discharged, or any judgment recovered by him be satisfied. 492 IDAHO. § o2G. — Any person o'wmg' debts to the defendant, or having in his posi?ession or under his control, any credits or other personal projierty belonfrin:; to the tiefend- ant, may be rcciiiired to attend before the court or judge, or a referee appointed by the court or judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court or judge may, after such ex- r.min:ition, order personal property, capable of manual delivery, to be delivered to the sheriff on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and descrijition thereof. § 327. — The sheriff must make a full inventory of the property attached, and return the same vrith the ■v\Tit. To enable him to make such return as to t!ie debts iind credits attached, he must request, at the tirge of service, the party ovring the debt or having the credit to give him a memorandum, stating the "amount and 'orata, according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise: Fro- ILLINOIS. 499 vidcd, when the property is attached while the defendant is removing the same or after the same has been removed from the county, and the same is overtaken and returned, or while the same is secreted by the defendant, or put out of his hands for the iiurpose of defrauding his creditors, the court may allow the creditor or creditors through whose diligence the same shall have been secured a priority over other attachments or judgment creditors. §38. — Upon issuing execution against any property attached, the proceeds of which shall be required to be divided, the clerk shall, at the same time, make out and deliver to the sheriff or other officer to whom the execution is issued, a statement of all judgments, with costs thereon, which shall be entitled to share in such pro- ceeds, and when any judgment creditor shall have been allowed a priority over the other judgment creditors, the same shall be stated. Upon the receipt of such pro- ceeds by the sheriff or other officer, he shall divide and pay over the same to the several judgment creditors entitled to share in the same in the proportion they shall be entitled thereto. § 39. — The court may, at any time before the proceeds of any attached property has been paid over to the judgment creditors, order the whole or any part thereof to be paid into court, and may make any and all such orders concerning the same as it shall deem just. § 40. — The plaintiff or defendant in any attachment, person interpleading, and the sheriff or either of them, who may feel aggrieved by the judgment of the court, may prosecute writs of error and take appeals as by law is provided in otSrtr cases. § 41. — This act shall be construed in all courts in the most liberal manner for the detection of fraud. BEFORE JUSTICES OP THE PEACE. § 1. — "Writs of attachment may be granted against the personal estate, goods, chattels, money, choses in action, credits and effects of the debtor, by justices of the peace, in all civil actions cognizable before them, where the demand does not exceed the jurisdiction of justices of the peace, for the same causes as attach- ments may be issued out of courts of record, and upon filing with the justice a sufficient .-.ffidavit and bond to the defendant with sufficient security, to be ap- proved by the justice, in a penalty at least double the amount of the plaintiff's claim, conditioned substantially as hereinafter provided. § 2. — Affidavits for attachment before justices of the peace may be substan- tially in the following form: State of Illinois, county of , ss. A. B., lieing duly sworn, says: That (here state if affiant is agent or attorney of the creditor, and if the suit is by ."rm, the name of the jjartners), has a just demand against (name of debtor), on account of (here make short statement of • the nature of the demand), and the affiant believes (the name of the creditor) is entitled to recover of said (name of debtor), after allowing all just credits and set-offs, dollars and cents, which is now due, and that he has good reason to believe and does believe that (name of debtor), (here state some one or more of the causes which authorize an attachment) the said (name of debtor, here state the name of debtor if known, or if not, that the affiant has made diligent inquiry and cannot ascertain his place of residence). § 3. — The condition of the bond shall be substantially as follows: The condition of the above obligation is such that, whereas the above bounden — hath, on the day of the date hereof, prayed an attachment at the suit of against the personal estate of the above-named , for the sum of , and the same being about to be sued out, returnable on the day of - — ■ , before (said justice). Now if the said shall i:)rosecute his suit with effect, or in case of f ailm-e therein, shall well and truly pay and satisfy the said all such costs in such suit, and such damages as the said may sustain, by reason of WTongfuUy suing out the said attachment, then the above obligation to be void; else to remain in full force and virtue. Witness our hands and seals this day of , 18 — . § 4. — The writ of attachment shall be substantially in the following form: State of Illinois, county, ss. The people of the state of Illinois, to any constable of said county — greeting: Whereas A. B. (or agent or attorney of A. B., as the case may be), hath com- plained that E. F. is justly indebted to the said A. B. in the amount of dol- lars; and that the said E. F, (here state the cause as in the affidavit), and the said 500 ILLINOIS. A. B. having given bond and security according to law: "We, therefore, command you that you attach so much of the personal estate of the said E. F. to be found in your county as shall be of value sufScient to satisfy the said debt and costs; and such personal estate so attached, in your hands to secure, or so to provide that the same may be liable to further proceeding's thereon, according to law, before the undersigned justice of the peace. And that you summon the said E. F. to appear before me, at my office, on the day of • next, and that you also sum- mon, as garnishees, all persons whom the plaintiff or his agent shall direct, to appear before me at the same time and pilace, then and there to answer what may be ob- jected against him or them, when and where you shall make known how you have executed this writ; and have you then and there this writ. Given under my hand and seal this day of , 18 — . C. D., Justice of the Peace, [seal.] § 5. — The writ of attachment shall be made returnable not less than five nor more than thirty days from the date thereof. § 6. The constable to whom any attachment may be delivered shall, without delay, execute the same, by levying on the personal estate, goods, chattels, moneys, choses in action, credits and effects of the defendant, of value sufficient to satisfy the debt or damages claimed to be due, and all costs attending the collection of the same. He shall also read the same to the defendant, if he can be found in the county, and also to such persons as the plaintiff or his agents shall direct to be summoned as garnishees, and make return thereof, stating how he has executed the same. § 7. — If the defendant, or any other person for him, shall be in the act of removing such personal property, the officer may jjursue and take the same, in any county in this state, and convey the same to the coxmty from which such attach- ment issued. § 8. — Upon the return of any attachment issued by a justice of the peace, if it shall appear that the defendant has been personally served with the same, or if such defendant shall appear ^vithout such service, the justice shall proceed to hear and determine the cause, as in cases of proceeding by summons. § 9. — But if it does not appear that the defendant has been served, and no ap- pearance be entered by the defendant, the justice shall continue the case not les3 than fifteen days, and shall immediately prepare a notice, to be posted up at three public places in the neighborhood of the justice, directed to the defendant, and stating the fact that an attachment had been issued, and at whose instance, the amount claimed to be due, and the time and place of trial; and also stating, that unless the said defendant shall appear at the time and place fixed for trial, judg- ment will be entered by default, and the property attached ordered to be sold to satisfy the same — which notice shall be delivered to the constable, who shall post three copies of the same at three public places in the ueighljorhood of the justice, at least ten days before the day set for trial. And if the place of residence of the defendant is stated in the affidavit for the attachment, shall, at the same time, mail one copy of the notice addressed to such defendant, at such place of resi- dence; and on or before that day he shall return the notice delivered to him by the justice, with an indorsement thereon, stating the time when and the places where be posted and mailed copies as herein reqiured. § 10. — If notice shall not be given according to law, or for any other good cause, the justice may continue the case from time to time till proper notice shall have been given or the case is ready for trial. § 11. — When notice shall be given of any proceeding by attachment, as re- quired by the ninth section of this act, the justice shall, on the day set for trial of the cause, proceed to hear and determine the same, as though process had been l^ersonally served upon the defendant, and if judgment be given against the defend- ant, shall order a sale of the property attached, or so much thereof as will satisfy the judgment and all costs of the suit. § 12.— When an attachment shall be returned served upon any person as gar- nishee, the justice shall make an entry upon the record of his proceedings in the cause, stating the name of each person summoned, and continue the case as to such garnishee, and shall i^roceed v\-itli the cause as against the defendant in the attach- ment, as though the attachment had been levied on personal property. § 13. — When judgment is entered by a justice of the peace against a defendant in attachment, and any person has been summoned as garnishee in the case, it shall be the duty of the justice to issue a summons against the person so summoned, re- ILLINOIS. 501 quiring him to appear before the justice, at a time and place to be fixed in the summons, not less than five nor more than fifteen days from the date thereof, then and there to answer upon oath what amount he is indebted to the defendant in the attachment, or what property, choses in action or effects belonging to the defend- ant, or in which he has any interest, or he had in his possession or power at the time of serving the attachment. § 14. — The further proceedings against garnishees shall be had in pursuance to the act on garnishments. §15. — The provisions of law governing attachments in courts of record shall apjily to attachments before justices of the peace, so far as the same was applica- ble and not inconsistent with the provisions which are especially applicable to the latter: Provided, this section shall not be construed to require of either party to file written jileadings in any attachment before a justice of the peace. § IG. — Exceptions to the bond taken by the constable shall be taken at or before the first hearing of the case after the same shall have been retm-ned to the justice, but the hearing of such exceiitions may be adjourned for the purpose of giving notice to the constable, or for other good cause. § 17. — Appeals may be taken in cases of attachment before justices of the peace, Lu the same manner as in cases by summons before justices of the peace ATTACHMENT OF WATER-CRAFT. § 1. — Every sail- vessel, steamboat, steam-dredge, tug-boat, scow, canal-boat, barge, lighter, and other water-craft of above five tons burthen, used or intended to be used iu navigating the waters of canals of this state, or used in trade and commerce between ports and places within this state, or having their homo p)ort in this state, shall be subject to a lien thereon, which lien shall extend to the tackle, apparel and furniture of such craft, as follows: First. For all debts contracted by the owner or part owner, master, clerk, steward, agent or ship's-husband of such craft, on account of supplies and provi- sions furnished for the use of such water-craft on account of work done or serv- ices rendered on board of such ci-aft by any seaman, master or other emploj^ee thereof, or on account of work done or material furnished by mechanics, trades- men or others, in or about the building, repau-ing, fitting, furnishing or equipping such craft. Second. For all sums due for wharfage, anchorage or dock-hire, including the use of dry docks. Third. For sums clue for towage, labor at pumping out or raising, when sunk or disabled, and to ship's husband or agent of such water-craft, for disbursements due by the owner on account of such water-craft. Fourth. For all damages arising from the non-performance of any contract of affreightment, or of any contract touching the transportation of property entered into by the master, owner, agent or consignee of such water-craft, where any such contract is made in this state. Fifth. For all damages arising from injuries done to persons or property liy such water-craft, whether the same are aboard said vessel or not, where the same shall have occurred through the negligence or misconduct of the owner, agent, mas- ter or employee thereon; but said craft shall not be liable for any injury or damage received by one of the crew from another member of the crew. § 2. — There shall also be a lien upon the goods, wares and merchandise shipped, taken in and put aboard any such water-craft for sums due for freight, advanced charges and demurrage, which .shall be collected against said goods, wares and merchandise in the same manner as hereinafter provided in this act in cases of emns due against said water-craft. § .3. — Any such lien may be enforced in the manner herein provided at any time within five years: Provided, no creditor shall be allowed to enforce such lien as against, or to the i>rejudice of any other creditor or subsequent incumbrancer, or bona Jide purcliaser, unless proceedings be instituted to enforce such lien within rune months after the indebtedness accrues or becomes due. § 4. — The person claiming to have a lien under the provisions of this act may file with the clerk of any court of record of competent jurisdiction, in the county where any such water-craft may be found, a petition, setting forth the nature of his claim, the amount due after allowing all payments and just offsets, the name of the water craft, and the name and residence of each owner kno\vn to the peti- tioner, and when any owner or his place of residence is not kno'wn to the petitioner, he shall so state, and that he has made inquiry and is imable to ascer- 502 ILLINOTS. tain the same; which petition shall be verified by affidavit of the petitioner or his agent or attorney. If the claim is upon an account or instrument ia writing, a copy of the same shall be attached to the petition. § 5. — The petitioner or his agent or attorney shall also file with such petition a bond, payable to the owner of the craft to be attached, or, if unknown, to the unknown owners thereof, in at least double the amount of the claim, with security to be approved by the clerk, conditioned that the i^etitioner shall prosecute lii3 suit with effect, or, in case of failure therein, will pay all costs and damages which the owner or other person interested in such water-craft may sustain, in conse- quence of the ■wrongful suing out of such attachment, which bond may be sued by any o^\"ner or person interested, in the same manner as if it had been given to such person by his proper name. Only such persons shall be required to join in such suit as have a joint interest; others may allege breaches and have assessment of damages, as in other cases of suits on penal bonds. § 6. — Upon the filing of such petition and bond as aforesaid, the clerk shall issue a wi-it of attachment against the owner of such water-craft, directed to the sheriff of this county, commanding him to attach such water-craft, which writ shall be tested and returnable as other writs of attachment. Such owners may be desig- nated by their reputed names, by surnames, and joint defendants by their separate or partnership names, or by such names, styles or titles as they are usually kiiown. If the name of any owner is unknown, he may be designated as unknown owner. § 7. — The writ shall be substantially in the following form: State of Illinois, county, ss. The people of the state of Illinois to the sheriff of county — ^greeting: Whereas (name of the petitioner), hath complained that the owners of the (name of the vessel), are justly indebted to him in the sum of dol- lars (amount due), for which he claims a lien upon said vessel, and has given bond with security as required by law: We therefore command you that you attach the said (name of vessel), ■ her tackle, apparel and furniture, to satisfy such demand and costs, and all such demands as shall be exhibited against such vessel according to law, and having attached the same you summon (here insert the names of owners of such vessel), owners of such vessel, to be and appear before the court of at its next term, to be holden at the court-house in said county, on the day of , then and there to answer what may be objected against them and the said (name of vessel). And have you then and there this writ, 'with a return thereon in what manner you have executed the same. Witness, clerk of court, and the seal thereof, this day of , A. D. 18 -. • , Clerk. § 8. — The sheriff or other officer to whom such MTit shall be directed shall forth- with execute the same by reading the same to such defendants, and attaching the vessel, her tackle, apparel and fm-niture, and shall keep the same until disposed of as hereinafter provided. Such sheriff or other officer shall also, on or before the return day in such writ, or at any time after the service thereof, upon the request of the petitioner, make a retiu-n to said court, stating therein particularly his doings in the premises, and shall make, subscribe and annex thereto a just and true inventory of all the property so attached. § 9. — Whenever any such writ shall be issued and served, no other attachment shall issue against the said water-craft, unless the first attachment is discharged, or the vessel is bonded. § 10. — Upon return being made to such writ, unless the vessel has been bonded, as hereinafter provided, the clei-k shall immediatul}' cause notice to be given in the same manner as required in_ other cases of attachment. The notice shall contain, in addition to that required in other cases of attachment, a notice to all persons to intervene for their interests on a day certain, or that said claim will be heard ex parte. § 11. —Any person having a lien upon or any interest in the water-craft attached may intervene to protect such interest, by filing a petition as hereinbefore pro- vided, entitled an intervening petition; and any person interested may be made a defendant at the request of himseli or any party to the suit, and may defend any petition by filing an answer as hereinafter provided, and giving security satisfactory to the court, to pay any costs arising froni such defense; and upon the filing oi any interveninci petition, a summons, as hereinbefore^ provided, shaL issue,- and if the sarae shall be returned not served, notice by publication may be given as aforesaid; and several intervening petitioners may be imited with each other, or the originaj^ in one notice. ILLINOIS. 503 § 12. — Any person intervening to enforce any lien or claims adverse to the own- ers of the craft attached shall, at the time of filing his i^etition, file with the clerk a bond as in the case of original attachment. § 13.— Intervening petitions may be filed at any time before the vessel is bonded, as provided in section fifteen (15) ; or, if the same is not so bonded, before order for distribution of the proceeds of the sale of the craft. And the same proceeding shall thereupon be had as in the case of claims filed before sale. § 14. — All liens upon any water-craft which shall not be filed hereunder before sale under decree or judgment, as hereinafter provided, shall cease. § 15. — The o^vner, or his agent or attorney, or any other person interested in such water-craft, desiring the return of the property attached, having first given notice to the petitioner, his agent or attorney, of his intention to bond the same, may, at any time before judgment, file with the clerk of the court, in which the suit is pending, a bond to the parties, having previously filed petitions against such craft, in a jienalty at least double the aggi-egate of all sums alleged to be due the several petitioners, with security to be appiroved by the clerk, conditioned that the obligors will j)ay all moneys adjudged to be due such claimant, with costs of suit. § 16. — If the owner, or his agent or attorney, or other party in interest, so elect, in place of bonding, as aforesaid, he may apply to the court or judge thereof, u]3on like notice as aforesaid, for an order of appraisement of such water-craft so seized, by three competent jiersons to be appointed by the court or judge thereof and named in the order, and upon such i^arty depositing with the clerk the amount of such appraisement in money, or executing or filing with him a bond for said amount, executed as provided in the loreceding section, it shall be the duty of the clerk to issue an order of restitution, as provided in the next section, and if the claimant of such water-craft shall decline any such application, or neglect within twenty days to accept such appraisement and make the deposit, or give the bond aforesaid, or the property seized shall be liable to decay, depreciation or injury from delay, the court, in its discretion, may order the same or part thereof to be sold, and the proceeds thereof to be brought into court to abide the event of the suit. § 17. — Upon receiving a bond or deposit, as provided in either of the foregoing sections, it shall be the duty of the clerk to issue an order of restitution, directing the officer who attached the water-craft to deliver the same to the person from whose possession the same was taken, and said water-craft shall thenceforth be discharged from all the liens secured by such bond or deposit, unless the court or judge thereof, upon motion, shall order the same again into custody on account of the insufficiency or insolvency of the sxirety. § 18. — If any petitioner shall, at any time, become satisfied that his security is insufficient, or has become imperiled, he may, by motion founded upou affidavit filed, and upon notice ser^'ed with copy of such affidavit and motion, move the court to direct tne giving of additional security, which motion shall be summarily heard and determined, and such order made therein as justice shall require; and the coTirt shall have power to ei;f orce all orders so made by attachment for contemi^t against persons, or ■writ against such water-craft, or otherwise. § 19. — Within three days after the return day of such summons — if personally served, ten days before the first day of the term to which it is returnable, or if not personally served, then within the time prescribed in the published notice — the ©■wner or any person interested adversely to the claims mentioned in the notice, unless on cause sho^\^l, further time shall be allowed by the coiirt, shall except, demur or file his answer upon oath or affirmation. The answer shall be full and distinct to each allegation of the petition, but such answer shall not have the effect of a swoi'n answer in chancery as evidence. At the time of filing an exception, demurrer or answer, an affidavit of the claimant, or his agent or attorney, shall be filed, stating that the claimant has a good defense upon the merits. And in case no such excejition, demurrer or answer, together with such affidavit of merits, be filed within the time above specified, the petitioner shall be entitled to a default, and the demand may be proved and judgment rendered as in other cases. § 20. — Amendments may be allowed as in other cases and upon like terms and conditions, and the court may take all proceedings and make all orders necessary to fully dispose of the rights of all persons interested in the property attached, and, for that pmpose may add new parties whenever necessary, who may be summoned or notified as in case of original defendants. 504 ILLINOIS. § 21. — If, upon trial, judgment shall pass for tlie petitioner, and the water-craft has been discharged from custody as herein j^rovided, said judarment or decree shall be rendered against the principal and sureties in the bond: Providei, that in no case s!iall the judgment exceed the penalty of the bond, and the subsequent pro- ceedings shall be the same as now provided by law in personal action? in the courts of record in this state. If the release has been upon deposit, the judgment shall be paid out of said dei:)osit. § 22. — In case the water-craft has not been discharged from custody, th-; iudg- ment or decree shall be that the same, with the appurtenances, be sold at public vendue by the sheriff, after notice of the time and place of said sale, publi-jhed as herein required in cases of seizure, at least ten days before such sale: Provided, that in case of petition filed prior to distribution, the judgment shall be for pay- ment out of the proceeds of sale, and in case of claims filed against surplus pro- ceeds, the judgment, if in favor of the i^etitioner, shall, in substance, affirm the claim to be sustained, and direct payment thereof from the surplus proceeds. § 2.3. — The clerk shall thereiipon issue an order of sale, commanding the sheriff to sell such water-craft as directed in the judgment, and to return said writ within twenty-four hours after sale, with his doings in the premises, and with proof, by affidavit, of the requisite notice, with a copy of such notice. § 24. — It shall be the dutj'' of the sheriff, upon receiving the amount of the bid at any sale, either before or after judgment, from the purchaser, or in ca^e the purchaser is petitioner or an intervenor, upon receiving so much of the bid as the court or judge thereof shall direct by special order, refere'ice being had to the rela- tive amount of the buyer's claim, to deliver such water-craft and appurtenances to the purchaser, with a bill of sale thereof, and to return and to deliver to the clerk the amount by him received on such sale. § 2.5.— A copy of the last enrollment, if any, of such water-craft shall be re- cited in the bill of sale, if such copy can be obtained, and a copy of the judgment, with the order of sale, or if such craft is sold pursuant to an order before judg- ment, a coi^y of such order shall also be recited in such bill of sale, certified by the clerk, under the seal of the court; and such bill of sale shall be full and com- plete evidence of the regularity of the judgment or order and sale, in all courts and places, and shall supersede the necessity of any other proof thereof to vali- date said bill of sale; and all bills of sale containing such recital, and supported by such proof, shall be effectual to j)ass the title of such water-craft. §23. — The sum delivered by the sheriff to the clerk as aforesaid shall be dis- triljuted by the court upon motion of any party in interest of record, and due notice to the other parties, and after the following manner: Firxt. The costs accruing^ upon all complaints filed before distribution, and on which judgment or decree is or may be thereafter rendered in favor of com- j)lainant. Second. Seamen's (which term shall include the master) wages due upon the last two \oyage"^, or if shipped by the month, the last two months. Third. All other claim-i filed prior to order of distribution on which decree or judgment may be rendered in favor of complainant, together with whatever bal- ance may be due seamen. § 27. — Any jiortion of the sum so paid by the sheriff to the clerk, or of a deposit remaining after such distribution as aforesaid, shall be denominated remnants and surplus proceeds, and where any claim or complaint .shall be filed again'>t the same ai provided in this act, distribution shall be directed by the court after decree or judgment upon motion and notice, a? provided in the last section, and after the following order: First. All costs upon claims passing into decree which were filed after distri- bution. Scc'ind. All other liens enforceable under this act against the water-craft prior to di-;tribution. IViird. All claims upon mortgages of such water-craft or other incumbrances by the owner, in proportion to the interest they cover and priority. Fourth. Upon petition of the creditor, all judgments at law, or decrees in c?iancery again -t the owner, and wliich ought equitably to be paid out of the pro- ceeds in prefei'ence to the owner. Fifth. The owner. § 2S. — In case the sum for which the water-craft is sold is sufficient to pay all the claim:-! filed before tlistribution, with costs thereon, and an appeal is taken as hereinafter provided, the court may order distribution of such portion of the simi brought on sale upon judgments unappealed from as may seem just and proper. 1 ILLINOIS. 505 § 29. — Any party complaining' or defending, who may think himself ag-grieved by the final judgment of the court, may appeal therefrom to the supreme court, or may prosecute a writ of error in the same manner as apxjeals or writs of error are taken or prosecuted in other cases. BEFORE JUSTICES OP THE PEACE. § 30. — In an action brought before a justice of the peace against the owner of any boat to recover any deljt contrS^cted Ijy such owner, or by the master, agent, clerk or consignee thereof, for sujiplies furniihed or for labor done in, abiiut or on such boat, or for materials furnished in building, repairing, fitting out, furnishing or equipping the same, or to recover for the non-j)erformance of any contract rela- tive to the transportation of persons or property thereon, made by any of the per- sons aforesaid, or to recover injuries to persons or proj)erty by such boat, or the officers or the crew thereof, done in connection with the business of such boat, an attachment may issue against such boat as hereinafter provided. § 31. — Before the commencement of the action the plaintiff, his arrent or attor- nej% shall file with the justice an affidavit, which may be substantially in the fol- lowing form: State of Illinois, ■ county, ss. A, B. (or C. D., his agent or attorney), being duly sworn, says: That A. B., the plaintiff, has a just demand against E. F., the defendimt (if known, if not known, against the boat, naming it), on account of (hei-e make a shoi-t statement of the nature of the demand, giving the amount due), and the plaintiff prays an attachment therefor. § 32. — The plaintiff, his agent or attorney, shall file with the affidavit a bond, as provided by section five of this act, as near as may be, and suits may be brought on the bond and proceedings had thereon, as said section five x^rovides. § 33. — Upon filing such affidavit and bond, the justice shall issue a writ of at- tachment, substantially in the following form: State of Illinois, ■ — - county, ss. The people of the state of Illinois, to any sheriff, coroner or constable of said county — greeting: Whereas (name of plaintiff, agent or attorney) hath com- plained that the owner of the (name of boat) is justly indebted to plaintiff in the sum of — - — ^doUars (amount due), and has given bond and security as provided by law: "We, therefore, command youthat you attach said (name of boat), her tackle, apparel and furniture, to satisfy such demand and costs, and having attached the same, you summon (here insert the name of the owner of the boat, if known), to be and appear before me at my office in in said county and state, on the day of , 18 — , at o'clock — M., then and there to answer what may be objected against him and the said (name of boat). And have you then and there this writ, with a return thereon in what manner you have executed the same. Given under my hand, this day of , 18 — . ,J. P. § 34. — The attachment may be issued on Sunday, if the plaintiff, his agent or attorney, shall state in the affidavit that it would be unsafe to delay proceedings until Monday. § 35. — It shall be sufficient to serve the attachment on the defendant, or mas- ter, agent, clerk or consignee of the boat; and if none of them can be found in the county, it shall be sufficient to serve the writ by posting a copy thereof on the boat. § 36. — Any person interested in the boat may appear by himself, agent or attor- ney, and defend, and no continuance shall be granted to the ijlaintiff while the boat is held in custody. § 37. — The property attached may be released at any time before final judg- ment, by giving bond with sureties, to be approved by the officer serving the writ, in a penalty double the plaintiff's demand, conditioned that the obligors therein will pay the amount found due to the plaintiff, together with costs, or return the property attached on execution. § 38. — If judgment be rendered for the plaintiff before the property attached is released, a special execution shall be issued against it. If the property has been released, the execution shall issue against the obligors in the bond -without further proceedings. If the jjroperty be returned, it shall be first sold on the execution. 606 ILLINOIS. § 39. — Tte officer may sell any of the furniture, tackle or appendages of the boat, if by so doing' he can satisfy the demand and costs. If he sell the boat he must sell it to the bidder who ■will advance the amount required to satisfy the exe- cution for the lowest fractional share of the boat. If a fractional share of the boat be thus sold, the lourchaser shall hold such share jointly with the other owner. § 40. — Nothing herein contained shall affect the right of the plaintiff to sue in the same manner as though the j)rovisions of this act had not been enacted. § 41. — In action before a justice of the peace, it shall be sufficient to allege the contract to have been made with the boat. GARNISHMENT. § 1. — "Whenever a judgment shall be rendered by any court of record, or any justice of the peace in this state, and an execution against the defendant in such judgment shall be returned by the proper officer "no property found," on the affi- davit of the plaintiff, or other credible person, being filed with the clerk of such court or justice of the peace, that said defendant has no property within the knowl- edge of such affiant, in his possession, liable to execution, and that siich affiant hath just reason to believe that any other person is indebted to such defendant, or hath any effects or estate of such defendant in his possession, custody or charge, it shall be lawful for such clerk or justice of the peace to issue a summons against the jjer- son supposed to be indebted to, or supi)osed to have any of the effects or estate of the said defendant, commanding him to appear before said court or justice, as a garnishee; and said court or justice of the ineace shall examine and proceed against such garnishee or garnishees, in the same manner as is required by law against garnishees in original attachments. § 2. — Such garnishee summons, when issued by the clerk of a court of record, shall be made returnable, and be served as other summonses. § 3. — No judgment by default shall be rendered, unless such process shall have been served ten days before the return day; but if such process shall have been served within less than ten days, it shall be deemed returnable on the first day of the next tenn of the court. If garnishee process shall be issued in term time, it shall be made returnable on the first day of the next term of the court. § 4. — If such process is issued by a justice of the peace, it shall be made return- able within the same time, and be served in the same manner as other siunmonses issued by justices of the peace: Provided, that in all cases, the person or persons for whose use such garnishee summons is issued shall advance through the consta- ble, or otli£r officer serving the same, to the person or persons so summoned as gar- nishee or garnishees, the sum of one dollar for each person so summoned, and, in addition, five cents per mile for each and every mile of necessary travel, to and from the office of such justice of the i^eace, and the constable, or other officer, making such service, shall show by his return the fact of the payment of such fee and mileage, and such fee and mileage shall be taxed as other costs in the case: Provided, that in all cases where the person or persons so siunmoned shall refuse or fail to appear at the time and place specified in such summons, the justice, before whom such process is retiu-nable, shall render a judgment against the person or Eersons so summoned, for the amount of fees and traveling expenses, which have een tendered and received under the provisions of this section, in. addition to the amount found to be due from the person or persons so garnished. [As amended by act approved May 31, 1881. In force July 1, 1881. L. 1881, p. 97.] § 5. — When any person is summoned as a garnishee upon any process of attach- ment or garnishee summons issued out of a court of record, the plaintiff shall, at or before the term at which the garnishee is bound to appear, or within such fur- ther time as the court shall allow, exhibit and file, all and singtdar, such allegations and interrogatories, in -wTiting, upon which he shall be desirous to obtain and compel the answer of any and every garnishee, touching the lands, tenements, goods, chattels, monej^s, choses in action, credits and effects of such defendant, and the value thereof, in his possession, custody or charge, or from him due and oA^'ing to the said defendant at the time of the service of the said vrrit, or at any time after, or which shall or may thereafter become due; and it shall be the duty ()f every garnishee to exhibit and file, under his oath or affirmation, within ten days after he shall be notified of the filing of such interrogatories, or if no notice of the filing of the same shall have been served upon him, then on or before the third day of the next succeeding tei-m after the term at which such interrogatories are filed, full, direct and true answers to all and singular the allegations and interrogatories by the i^laintiff so exhibited and filed; but in no case shall the garnishee be com- pelled to answer before the third day of the return term of the garnishee process. ILLINOIS. 507 § 6. — When the proceeding' is before a justice of the peace, it shall not be neces- sary to exhibit or file interrogatories in writing', but the garnishee may be exam- ined orally touching the personal estate, goods, chattels, moneys, choses in action, credits and effects of the defendant, and the amount and value thereof in his po.-;- session, custody or charge, or from him due and owing to such defendant at the time of the service of such attachment or summons, or at any time after, or which shall or may thereafter become due. § 7. — When the plaintiff in any garnishee proceeding shall allege that any gar- nishee served with process, or appearing before any court, hath not truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects, or if before a justice of the peace such personal effects of the defendant in the attachment suit or jud.gment, and the value thereof, in his possession, custody or charge, or from him due and owing to the defendant at the time of the service of the writ, or at any time after, or which shall or may thereafter become due, the court or justice of the peace shall immediately (imless the case shall for good cause be continued) proceed to try such cause^ as against such garnishee, without the form- ality of x^leading. The trial shall bo conducted as other trials at law, and if the finding or verdict shall be against the garnishee, judgment shall be given against him in the same manner as if the facts had been admitted Ijy him, with all costs of Buch trial. If the finding shall be in favor of the garnishee, he shall recover his costs against the i^laintiff. And in case the garnishee admits indebtedness to the judgment debtor, he shall not be liable for costs. § 8. — When any person shall have been summoned as a garnishee upon any attachment or other writ issued out of any coiu-t of record, or by any justice of the peace, and shall fail to appear or make discovery, as by this act required, the court or justice of the peace may enter a conditional judgment against such garnishee for the amount of the plaintiff's demand, or judgment against the original defendant, and thereupon a scire /acMS shall issue against such garnishee, returnable, if the proceedings be in a court of record, at the next term of court, or if it be before a justice of the peace, within the same time as other summonses from justices of the peace, commanding such garnishee to show cause why such judgment should not be made final. If such garnishee, being served with process or notified as required by law, shall fail to appear and make discovery in the manner aforesaid, the court, or justice of the peace, shall confirm such judgment, to the amount of the judgment against the original defendant, and award execution for the same and costs. If such garnishee shall appear and answer, the same i^roceedings may be had as in other cases. § 9. — If any garnishee shall become a non-resident, or shall have gone out of this state, or is concealed within this state so that the scire facias cannot be served upon him, upon the plaintiff or his agent filing affidavit, as in cases of non-resi- dent defendant in attachment, such garnishee may be notified in the same manner as such non-resident defendants, and upon such notice being given he may be pro- ceeded against in the same manner as if he had been personally served with such scire facias. § 10. — No final judgment shall be entered against a garnishee in any attachment proceeding until the plaintiff shall have recovered a judgment against the defend- ant in such attachment. § 11. — If it appears that any goods, chattels, choses in action, credits or effects in the hands of a garnishee are claimed by any other person, by force of an assign- ment from the defendant, or otherwise, the court or justice of the peace shall per- mit such claimant to appear and maintain his right. If he does not voluntarily appear, notice for that purpose shall be issued and served on him in such manner as the court or justice shall direct. § 12. — If such claimant appears he may be admitted as a party to the suit, so far as respects his title to the property in question, and may allege and prove any facts not stated nor denied by the garnishee, and such allegations shall be tried and determined in the manner hereinbefore provided. If such person shall fail to appear after having been served with notice in the manner directed, he shall never- theless be concluded by the judgment in regard to his claim. § 13. — Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands all demands against the jnaintiff, and all demands against the defendant, of which he could have availed himself if he had not been summoned as garnishee, whether the same are at the time due or not, and whether by way of set-offs on a trial, or by the set-off of judgments or executions between himself and the plaintiff and defendant severally, and he shall be lialile for the bal- ance only after all mutual demands between himself and plaintifE and defendant are 608 ILLINOIS. adjusted, not mcluding unliquidated damages for wrongs and injuries: Provided, that tlie verdict or finding, as well as the record of the judyr.aent, shall show in all cases, against which party, and the amount thereof, any set-off shall be allowed, if any such shall be allowed. § 14.— The wages and services of a defendant being the head of a family, and residing with the same, to an amount not exceeding fifty dollars (850) shall be ex- empt from garnishment. In case the wages or services of such defendant, in the hands of a garnishee, shall exceed fifty dollars ($50) judgment shall be given only for the balance above that amount. § 15.— No person shall be liable as a garnishee by reason of having drawn, accepted, made or indorsed any negotiable instrument, when the same is not due, in the hands of the defendant at tiie time of service of the garnishee, summons, or the rendition of the judgment. § 10. — The judgment against a garnishee shall acquit him from all demands by the defendant for all goods, effects and credits paid, delivered or accounted for by the garnishee by force of such judgment. § IZ.^If the person summoned as garnishee is discharged, the judgment shall be no bar to an action brought against him by the defendant for the same demand. § 18. — In case of the death of a person served as garnishee, his executor or ad- ministrator may be made a party, and notified, unless his aj^pearance is entered, as in the case of the death of a defendant, and the cause may proceed against him as personal representative of the deceased. § 19. — When judgment is rendered against any garnishee, and it shall appear that the deb't from him to the defendant is not yet due, execution shall not issue against him until twenty days after the same shall become due, unless the party asking the same, or his agent, shall make oath that he believes the debt will be lost unless execution issue forthwith, in which case execution shall issue as soon as said debt to defendant is due; but no sale of property, under such execution, shall take place until after the expiration of twenty days from date of judgment. § 20. — ^When any garnishee has any goods, chattels, choses in action, or effects other than money, belonging to the defendant, or which he is bound to deliver to him, he shall deliver the same, or so much thereof as may be necessary, to the officer who shall hold the execution in favor of the ijlaintiff, in the attachment suit or judgment, which shall be sold by the officer, and the proceeds applied and accounted for in the same manner as other goods and chattels taken on execution. § 21. — When it shall appear that such goods, chattels, choses in action, or effects in the hands of a garnishee are mortgaged, or pledged, or in any way liable for the payment of a debt to him, the plaintiff may be allowed, under an order of the court or justice of the peace, for that purpose, to i^ay or tender the amount due to the garnishee; and he shall thereupon deliver the goods, chattels, choses in action and effects, in the manner before i^rovided, to the officer who holds the execution. § 22. — If the goods, chattels, choses in action or effects are held for any purpose, other than to secure the payment of money, and if the contract, condition or other thing to be performed, is such as can be performed by the plaintiff without damage to the other parties, tlie court or justice of the peace may make an order for the performance thereof by him. Upon such performance, or a tender, the garnishee shall deliver the goods, chattels and effects in the manner before provided, to the officer who holds the execution. § 23. — All goods, chattels, choses in action and effects, received by the officer under either of the two preceding sections, shall be sold and disposed of in the same manner as if they had been taken on an execution in any other manner, except that from the proceeds of the sale the officer shall repay the plaintiff the amount paid by him to the garnishee for the redemption of the same, with in- terest thereon, or shall indemnify the plaintiff for any other act or thing by him done or performed pursuant to the order of the court or justice of the peace for the redemption of the same. § 24. — When it shall appear that anj'' garnishee has in his hands, or under his control, any goods, chattels, choses in action or effects, belonging to or which he is bound to deliver to the defendant, with or without condition, the coiu-t or justice of the peace may make any and all proper orders in regard to the delivery thereof to the proper officer, and the sale or disposition of the same, and the discharging of any lien thereon, and may authorize the garnishee to sell any such property, or col- lect any choses in action, and account for the proceeds thereof; or, if the proceeding ILLINOIS. 509 be in a. court of record, the court may appoint a receiver to take possession and sell, collect, or otherwise dispose of the same, and make all orders in regard thereto which may be necessary or equitable between the parties. § 25. — If any garnishee refuses or neglects to deliver any goods, chattels, chosea in action or effects in his hands when thereto lawfully required by the court or justice of the peace or officer having an execution upon which the same may be received, he shall, if the proceeding be in a court of record, be liable to be attached and punished as for a contemjjt, or the court maj^ enter up judgment for the amoimt of the plaintiff's judgment, and award execution thereon against the gar- nishee; or, if the proceeding ba before a justice of the peace, be liable to the plaint- iff for the full amount of his judgment against the defendant, and judgment may be entered against him therefor. § 26. — Nothing contained in this chapter shall prevent the garnishee from receiv- ing any goods, chattels, choses in action or effects in his hands for the payment of any demand for which they are mortgaged, pledged, or otherwise liable at any time before the amount due to him is paid or tendered, if such sale would be authorized as between him and the defendant. § 27.^The court or justice of the peace may order the costs of the proceedings in any garnishment to be paid by the plaintiff, or out of the effects or credits gar- nished, or by the garnishee, or may apportion the same as shall appear to be just and equitable. The garnishee shall be entitled to fees the same as witnesses before the same courts in civil cases. § 28. — An appeal may be taken from the judgment or any final order of the court or justice of the peace, by any party to such proceeding, in like manner as appeals are taken in other cases. § 29. — Whenever a judgment shall be rendered by any justice of the peace in any county of this state and not appealed from, and an execution against the de- fendant in such judgment shall be returned by the proper officer, "no property found," it shall and may be lawful for the plaintiff, his ag^nt or attorney, to file a transcript of said judgment (including the issuing and retm-n of said execution), properly certified to by the justice of the peace before whom said judgment was obtained, accompanied with a certificate from the county clerk, that the justice issuing such transcript is an acting justice of the peace, with any other justice of the peace of any other county in this state, and the same to be spread upon his docket — and the same proceedings in regard to garnishment had thereon that might have been had before the justice who rendered the original judgment.— [Laws of 1879, p. 176.] § 30. — But one satisfaction shall be had; and if the justice of the peace to whom said transcript shall be sent shall render a judgment against any garnishee sum- moned according to law, and if said judgment shall be wholly or in part satisfied, then the justice of the peace shall so certify such fact to the justice of the peace who rendered the original judgment, and the same entered upon his docket as to what amount has been paid on said judgment; and if wholly paid, then both dockets .shall show such fact. — [Laws of 1879, p. 176.] § .31. — The same fee shall be allowed such justices of the peace as are now allowed by law on transcripts on appeals, and docketing suits, and all other fees the same as are now allowed by law in like proceedings, and to be paid in the same way and manner. — [Laws of 1879, p. 176.] Before justices of the peace — Sees. 42-58; chap. 12, sees. 30 46. Attachment of water-craft — Chap. 12, sees. 1-46. Exemptions— Chap. 75, pp. 676, 679, 756. Declaration to be filed — Chap. 110, p. 1094, sec. 18. 510 INDIANA. INDIANA. [Revised Statutes 1881.] ATTACHMENT. § 913 (197). — ^The plaintiff, at the time of filing his complaint, or at any time afterward, may have an attachment against the property of the defendant, in the cases and in the manner hereinafter stated, where the action is for the recovery of money: First. Where the defendant, or one of several defend nts, is a foreign corpora- tion or a non-resident of this state. Second. Where the defendant, or one of several defendants, is secretly leaving or has left the state, with intent to defraud his creditors. Third. So conceals himself that a summons cannot be served upon him. Fourth. Is removing or about to remove his property subject to execution, or a material i^art thereof, out of this state, not leaving enough therein to satisfy the plaintiff's claim. Fifth. Has sold, conveyed, or otherwise disposed of his property subject to ex- ecution, or suffered cr permitted it to be sold, with the fraudulent intention to cheat, hinder, or delay his creditors. Sixth. Is about to sell, convey, or otherwise dispose of his property subject to 'execution, with such intent. Provided, that the i:)laintiff shall be entitled to an attachment for the causes mentioned in the second, fourth, fifth and sixth specifications of this section, whether his cause of action be due or not. (156. ) § 914 (198). — Xo attachment, except for the causes mentioned in the fourth, fifth and sixth clauses of the preceding section, shall issue against any debtor while his wife and family remain settled Avithin the county where he usually resided prior to his absence, if he shall not continue absent from the state more than one year after he shall have absented himself, unless an attempt be made to conceal his absence. (157.) § 915 (199). — If the wife or family of the debtor shall refuse or be unable to give an account of his absence, or the place where he may be found, or shall give a false account of either, such refusal, inability or false account shall be deemed an attempt to conceal his absence, within the provisions of this act. (158.) § 91G (200). — The plaiatiff, or some person in his behalf, shall make an aflBdavit showing — First. The natiu-e of the plaintiff's claim. Second. That it is just. Third. The amount which he believes the plaintiff ought to recover. Fourth. That there exists in the action some one of the groimds for an attach- ment above enumerated. (159.) § 917 (201). — The plaintiff, or some one in his behalf, shall execute a written undertaldng, with sufficient surety, to be approved by the clerk, payable to the defendant, to the effect that the ijlaintiff wiU duly prosecute his proceeding in at- tachment, and Viill pay all damages which may be sustained by the defendant, if the proceedings of the plaintiff shall be wrongful and oppressive. (IGO.) § 918 (202). — Upon the filing of such affidavit and written undertaking in the office of the clerk, he shall issue an order of attachment, which shall be directed and delivered to the sheriff. It shall requu-e him to seize and take into his posses- sion the jjroperty of the defendant m his county not exempt from execution. (101.) § 919 (203). — Orders of attachment may be issued to the sheriff of any other county, and several of them may, at the option of the plaintifif, be issued at the same time or in succession; but the costs only of such as have been executed in whole or in part shall be recovered against the defendant, unless otherwise directed by the court. The plaintiff shall not have judgment in any such action except in some one of the following cases, viz. : First, When the defendant shaU have been personally served with procesSs. INDIANA. 511 Second. "When property of the defendant shall have been attached in the county ■where the action i^ brought. I'hird. When a garnishee shall have been summoned in the county where the action is brouyht who shall be found to be iudeljted to the defendant, or to have property or assets iu his hands subject to the attachment. (1(J2.) § 920 (204). — An order of attachment may be issued and executed on Sunday, if the plaintiff will show in his afiidavit that the defendant is about to abscond on that day, to the injury of the plaintiff. (1G3.) § 921 (205). —The sheriff shall proceed, with the assistance of a disinterested and credible householder of the county, to attach the lands and tenements, goods and chattels of the defendant subject to execution, and shall, witn the assistance of the householder, make an inventory and appraisement thereof, and return the same with the order. (1G4. ) § 922 (206). — An order of attachment binds the defendant's property in the county subject to execution, and becomes a lien thereon from the time of its de- livery to the sheriff in the same manner as an execution. (1G5. ) § 923 (207). — The defendant's personal property shall be first taken under an attachment; if enough thereof is not found to satisfy the plaintiff's claim and costs of the action, then his real estate. If, after an order of attachment is placed in the hands of the sheriff, any property of the defendant is removed from the county, the sheriff may pursue and attach the same in any county, within three days after the removal. (166.) § 924 (209). — The defendant, or other person having possession of property at- tached, may have the same or any part thereof delivered to him, by executing and delivering to the sheriff a written undertaking, with surety to be approved by the sheriff, payable to the plaintiff, to the effect that such property shall be iDroperly kept and taken care of, and shall be delivered to the sheriff on demand, or so much thereof as may be required to be sold on execution to satisfy anj' judgment which may be recovered against him in the action, or that he will pay the appraised value of the property, not exceeding the amount of the judgment and costs. (168.) § 925 (210). — Whenever any person other than the defendant shall claim any property attached, the right of property may be tried as in cases of property taken on execution, and the claimant, having notice of the attachment, shall be bound to prosecute his claim as in such cases, or be barred of his right. (169.) § 926 (211). — The defendant or claimant of any attached property may be re- quired by the court to attend before it and give information, on oath, respecting the property. (170. ) § 927 (212). — Goods attached in the hands of a consignee shall be subject to a lien for any debt due him from the consignor. (171. ) § 928 (213). — If the defendant, or other person in his behalf, at any time before judgment, shall execute a written undertaking to the plaintiff, with suflBcient surety to be approved by the court, clerk, or sheriff, to the efl'ect that the defend- ant will appear to the action, and will perform the judgment of the court, the attachment shall be discharged and restitution made of any property taken under it or the proceeds thereof. (172. ) § 929 (214). — When personal property attached is of a perishable nature or its keeping expensive, the court may direct the sheriff to sell it at public auction, upon reasonable notice. If the property is liable to immediate damage, the sheriff, in vacation, may sell it, by giving ten days' notice, without an order of court; and the proceeds of all sales shall be deposited with the clerk. (173. ) § 930 (215). — The sheriff shall be allowed by the court the necessary expenses of keeping the attached proi^erty, to be paid by the plaintiff and taxed in the costs. (174.) § 931 (216). — If, at the time an order of attachment issues, or at any time be- fore or afterward, the plaintiff, or other person in his behalf, shall file with the clerk an affidavit that he has good reason to believe that any jjerson, naming him, has property of the defendant of any description in his possession, or under his control, which the sheriff cannot attach by virtue of such order; or that such per- son is indebted to the defendant, or has the control or agency of any property, moneys, credits, or effects; or that the defendant has any shares or interest in the stock of any association or corporation, the clerk shall issue a summons notifying such person, corporation or association to appear at the ensuing term of the court, and answer as garnishee in the action. The summons shall be directed to the 512 INDIANA. sheriff, and served and returned by him in the same manner as a summons is served and returned in other cases. When the summons issues before an attachment, the affidavit must show some one of the causes authorizing the attachment. (175. ) § 932 (217).— From the day of the service of the summons, the garnishee shall be accountable to the plaintiff in the action for the amount of money, property or credits in his hands, or due and owing from him to the defendant. (170. ) § 933 (218). — It shall be the duty of any ofHcer or agent of an association or cor- poration, and of every other person summoned as a garnishee, vvhen served, or within five days afterward, to furnish the sheriff with a certificate of the number of shares or rights of the defendant in the stock of such corporation or association; or a description of the property held by such corporation, association, or person, be- longing to or for the benefit of the defendant; or the amount of the debt owing to the defendant by such association, corporation, or person, whether due or not; which certificate shall be returned by the sheriff with the summons. If such offi- cer, agent or person refuse to do so, he may be required by the court to attend before it, and be examined, on oath, concerning the same; and obedience to the order may be enforced by attachment. (177.) § 934 (219). — Whenever any garnishee, being duly summoned, fails to appear and make discovery as required by law, or fails to answer or demur to the matters set forth against him in the affidavit or additional complaint or interrogatories, such matters may be taken as confessed, or judgment entered by default, as the case may require; or he may be examined under oath touching all the matters charged in the afadavit or additional complaint; and all such proceedings, pleadings and process shall be had, according to the i^ractice in other cases, as shall be necessary to determine the rights of the parties and render a tinal judgment. (178.) § 935 (220). — If any plaintiff, or other person in his behalf, shall file with the clerk an affidavit that he fears that the garnishee will abscond before judgment can be had, with intent to defraud the plaintiff, and that he verily believes that the garnishee has moneys, things in action, goods, chattels or effects of said defendant in his possession, or is indebted to said defendant, the clerk shall issue an order of arrest against the garnishee, and hold him to bail therein as in a civil action. (179.) § 936 (221). — Final judgment shall not be rendered against a garnishee until the action agamst the defendant in attachment is determined; and if the jilaintiff fails to recover judgment either against the defendant or the garnishee, the garnishee shall be discharged and recover his costs. (180. ) § 937 (222). — The return of "no property found " upon the order of attachment shall not affect the p)roceedings agamst the garnishee. (181.) § 938 (223). — If the plaintiff recover jud.gment against the defendant, and the garnishee deliver up to the sheriff, before judgment against him, aU the defendant's goods and chattels, or other effects in his possession subject to execution, or an in- ventory thereof, and piay to the sheriff or into court all moneys due from him or belonging to the defendant, the costs in the proceeding against the garnishee shall be paid by the defendant; but if the garnishee shall not appear, or, if appearing, shall refuse truly to confess the matter alleged, and, on the trial, the plaintiff shall recover judgment against him; or if he admit that he has moneys, credits or effects belonging to the defendant in his hands, and shall refuse to pay or deliver the same as above provided, he shall pay costs. (182. ) § 939 (224). — A garnishee in attachment shall not be compelled in any case to pay or perform any contract in any other manner, or at any other time, than he would be bound to do for the defendant in attachment. (183. ) § 940 (225). — A garnishee may pay the money owing to the defendant by him to the sheriff or into court, and shall be discharged from liability to the defendant for moneys so paid, not exceeding the plaintiff's claim. (184.) § 941 (226). — A garnishee, or officer of a corporation, summoned as a garnishee, at any time after being served with the summons five days, may be examined, in open court, on oath; and if it be discovered on such examination that, at the time or after the service of the summons upon him, he or the corporation was possessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property and the payment of any such indebtedness into court, or the execution of a written imdertaking by the garnishee, with sirfficient sureties to be approved by the com-t, payable to the plaintiff, to the effect that the indebted- ness shall be paid or the property forthcoming, as the court shall direct. (185.) INDIANA. 513 § 942 (208). — Clerks of the circuit courts, sheriffs, justices of the peace, consta- bles, and all other officers who may collect money by virtue of their office, and all executors, administrators, guardians, and trustees, shall be subject to garnishment at the suit of any attachment creditor of the person who has money or choses in action in the hands of such officer, executor, administrator, guardian or trustee at the time of the service of such garnishee process, in the same manner ami to the same extent as other persons are liable to be garnished in attachment proceedings. § 943 (227).— Any creditor of the defendant, upon filing his affidavit and -vvritten undertaking, as hereinbefore required of the attaching creditor, may, at any time before the final judgment in the suit, make himself a party to the action, file his complaint, and prove his claim or demand against the defendant; and may have any jierson summoned as garnishee, or held to bail, who has not before been sum- moned or held to bail; and propound interrogatories to the garnishee, and enforce answers thereto, in like manner, as the creditor who is i^laintiff. (18i3. ) § 944 (228). — A dismissal of his action or proceedings in attachment by the first attaching creditor shall not operate as a dismissal of the action or proceedings of any subsequent attaching creditor. (187. ) § 945 (229)'. — Any defendant against whom an order of attachment has been is- sued ma}', after appearing to the action, move to have the attachment discharged and restitution awarded of any property taken under it; but an appearance to the action shall not operate to discharge the attachment, unless a written undertaking be filed as required in section two hundred and thirteen [§ 928]. If the de- fendant apiiear, and judgment be rendered in fa^"or of the plaintiff, and any part thereof remain unsatisfied after exhausting the property attached, such judgment shall be deemed a judgment against the defendant personally, and shall have the same force and effect as other judgments; and execution shall issue thereon ac- cordingly for the collection of such residue. If the plaintiff's undertaking be insufficient, he shall have a reasonable time to file an additional one. (188. ) § 94G (230). — If the judgment in the action is rendered for the defendant, the attachment shall be discharged, and the pro^aerty attached, or its i^roceeds, re- turned to him. (189.) § 947 (2.31). — If judgment in the action be rendered for the plaintiff, or one or more of several plaintiffs, and sufficient proof be made of the goods, chattels, rights, credits, mcaeys and effects in the possession of the garnishee, the court shall also give judgment in favor of the plaintiff or creditors against the garnishee or the property of the defendant, or both, as the case may require; which may be enforced by execution. (190.) § 948 (232). — After judgment for the plaintiff, or one or more of several plaint- iffs, projierty attached and remaining unsold may be sold on execution, as in other cases. (191.) ' § 949 (233). — The money realized from the attachment and the garnishees shall, under the direction of the court, after paying all costs and expenses, be paid to the several creditors in proportion to the amount of their several claims as adjusted, . and the surjjlus, if any, shall be paid to the defendant. (192. ) § 950 (234). — Every defendant shall be entitled to an action on the written un- dertaking of the plaintiff or creditor by whose proceedings in attachment he shall have been aggi-ievcd, if it shall appear that the proceedings were -wrongful and op- pressive; and he shall recover damages at the discretion of the jury. (193.) § 951 (235). — In all actions in the name of the state of Indiana, or of any per- son, agent or officer for the use of the state, if process be retm-ned that any defend- ant is not found, an order of attachment may be issued and proceedings had in like manner, as in other cases, without filing any affidavit or written undertaking. (194.) § 952 (236).— When an order of attachment is fully executed or discharged, the sheriff shall return the same, with his proceedings thereon, to the court. (195. ) § 953 (237).— Attachments against the goods and chattels, rights, credits, mon- eys and effects of defendants may be issued in cases contemplated in the fore- going provisions, upon any claim within the jurisdiction of a jiistice of the peace, upon tiling with the justice an affidavit, as prescribed in this article, and the justice shall perform the duties required of the court and the clerk thereof, and the con- stable shall perform the duties required of the sheriff in the above provisions. The constable shall return the order of attachment within ten days with his doings thereon; and in case where a summons has not been served and property has been attached, the justice shall give thi-ee weeks' notice of thfi attachment in some II Attachment— 8. 514 INDIANA. newspaper published in the county, if any is published therein; if not, then by posting up A\Titten notice thereof in three of the most pubUc places in the town- ship; and fix the day of trial at the expiration of such notice. (196. ) § 954 (238). — If the defendant do not appear and give bond for the release of the property attached, before the day of trial, the justice shall proceed to hear and determine the cause; and in case judgment be given against the defendant, he shall order the property to be sold to satisfy the judgment, according to the provisions of this article. (197.) § 955 (239). — Garnishees may be summoned, and the same proceedings had be- fore the justice, as provided in higher courts. (198.) § 95G (240). — When any suit is commenced before a justice of the peace, and an attachment is also issued by said justice in the same action against the projierty of the defendant, any person who shall have a claim against said defendant of a larger amount than the jurisdiction given to justices of the peace may file the same with the justice of the peace under the attachment; and if any such claim is filed, the justice of the peace shall immediately certify the cause, with all the papers be- longing to the same, to the circuit court of the county wherein said suit was com- menced; and the clerk of said court to which the cause is certified shall docket the same; and the said coiirt shall proceed with such cause in the same manner as if it had been commenced in said court. § 957 (241). — If any person shall file a claim before the justice of the peace, as stated in the preceding section, and shall, on the trial in the circuit court, fail to establish his claim to an amount sufficient to entitle him to recover costs in such court, according to the provisions of law now in force, then, and in that event, he may recover judgment for his claim, if proved, but shall pay all costs that accrue in consequence of such transfer; but if he shall recover judgment to an amount sufficient to entitle him to recover costs, then, and in that event, the attachment defendant shall pay all costs to each attachment plaintiff that shall recover judgment. § 958 (242). — Hereafter no court in this state .shall have or entertain jurisdiction in any action of attachment, garnishment, or supplementary proceeding, when the plaintiff and i^rincipal defendant are both non-residents of this state, and the money sought to be reached by such attachment, garnishment or supplementary j)roceed- ings is the personal earnings or wages due or owing to the principal defendant from any person or corporation doing business in this state. § 959 (243). — The wages of all persons in the employ of any person or corpora- tion shall be exempt from garnishment and proceedings supplemental to execution in the hands of such person or corporation, so long as such employ& remains in such emiDloyment, not exceeding one month's wages at any one time. § 9G0 (244). — Any person or corporation in debt for wages, as in the preceding section i^rovided, may, at any time after being served with a garnishee summons, pay to any such employee the amount of wages exempted by the preceding sec- tion; and such payment shall discharge such garnishee-defendant from liability for the amount so paid, as effectually as if paid before the issuing of such summons. Before justices of the peace — Page 276, sec. 1445; pp. 289-291, sees. 1529-1544. Notice by publication — Page 56, sec. 318. Notice of levy filed mth clerk of circuit court — Pages 59-60, sees. 326-331. Costs where lands attached — Page 114, sec. 597. Exemptions — Page 136, sees. 703, 740, 715. Real estate liable to — Page 144, sec. 752. Plaintiff not required to give a refunding bond — Page 154, sec. 789. ' Notice in cases of doubtful ownership — Page 291, sees. 1545, 1546. Opi^ressive garnishment, transferring claims — Page 406, sees. 2162, 2163. For non-j)ayment of license — Page 1141, sec. 5274. Of water-craft— Page 1143, sees. 5280, 5283. IOWA.. 515 IOWA. [McClain's Annotated Statutes, 1880.] OF ATTACHMENTS AND GARNISHMENT. § 2949. — ^The plaintiff in a civil action may cause any property of the defendant ■which is not exempt from execution to be attached at the commencement or during the process of the proceeding, by pursuing the course hereinafter prescribed. g 2950. — If it be subsequent to the commencement of the action, a separate petition must be filed, and in all cases the proceedings relative to the attachment are to be deemed independent of the ordinary proceedings and only auxiliary thereto. § 2951. — The petition which asks an attachment must in all cases be sworn to. It must state: 1. That the defendant is a foreign corporation, or acting as such; or, 2. That he is a non- resident of the state; or, 3. That he is about to remove his pi'operty out of the state without leaving sufficient remaining for the payment of his debts; or, 4. That he has disposed of his property, in whole or in part, with intent to defraud his creditors; or, 5. That the defendant is about to dispose of his property with intent to defraud his creditors; or, 6. That he has absconded, so that the ordinary process cannot be served upon him; or, 7. That he is about to remove permanently out of the county and has property therein not exempt from execution, and that he refuses to pay or secure the plaintiff; or, 8. That he is about to remove permanently out of the state, and refuses to pay or secure the debt due the plaintiff ; or, 9. That he is about to remove his property, or a part thereof, out of the county with intent to defraud his creditors; or, 10. That he is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors; or, 11. That he has property or rights in action which he conceals; or, 12. That the debt is due for property obtained under false pretenses., § 2952. — Where the petition states, in addition to the other facts required, that the plaintiff will lose his claim unless the attachment issues and is served on Sun- day, it.may be issued and served on that day. § 2953. — If the plaintiff's demand is founded on contract, the petition must state that something is due, and, as nearly as practicable, the amount, which must be more than five dollars in order to authorize an attachment. § 2954. — The amount thus sworn to is intended as a guide to the sheriff, who must, as nearly as the cu'cumstances of the case will permit, levy upon property fifty per cent, greater in value than that amount. § 2955. — If the demand is not founded on contract, the original petition must be presented to some judge of the supreme, district, or circuit court, who shall make an allowance thereon of the amount in value of the property that may be attaclied. The provisions of this section apply only to cases in the district and circuit court. FOR DEBTS NOT DDE. § 2956. — The property of a debtor may be attached previous to the time when the debt becomes due, when nothing but time is wanting to fix an absolute indebt- edness, and when the petition, in addition to that fact, states: 1. That the defendant is about to dispose of his property with intent to defraud his creditors; or, 2. That he is about to remove from the state and refuses to make any arrange- ments for securing the payment of the debt when, it falls due, and which con- 516 lo-wA. templated removal was not known to the plaintiff at the time the debt was conti'acted; or, 3. That the defendant has disposed of his property, in whole or in part, with intent to defraud his creditors; or, 4. That the debt was incurred for property obtained under false pretenses. § 2957. — ^If the debt or demand on which the attachment suit is brought is not dvxe at the time of the service of the attachment, the defendant is not required to file any jjleadings until the maturity of such debt or demand; but he may, in his discretion, do so and go to trial as early as the cause is reached. § 29.38. — And no final judgment shall be rendered upon such attachment unless the party consents as in the last section, until the debt or demand upon which it is based becomes due. But property of perishable nature may be sold as in other attachment cases. BOND. § 29.59. — In all cases, before an attachment can be issued, the plaintiff must file with the clerk a bond for the use of the defendant, vrith. sureties to be approved by such clerk, in a penalty at least double the value of the property sought to be attached, and in no case less than two hundred and fifty dollars in a cotu-t of record, nor less than fifty dollars if in a justice's court, conditioned that the plaintiff will pay all damages which the defendant may sustain by reason of the wrongful suing out of the attachment. § 29G0. — The defendant may, at any time before judgment, move the court or judge for additional security on the part of the plaintiff, and if, on such motion, the court or judge is satisfied that the siu-ety in the plaintiff's bond has removed from this state, or is not sufficient, the attachment may bo vacated and restitution directed of any property taken under it, unless, in a reasonable time to be fixed by the court or judge, security is given by the plaintiff. § 2901. — In an action on such bond, the plaintiff therein may recover if he shows that the attachment was wrongfully sued out, and that there was no reasonable caiise to believe the ground tipon which the same was issued to be true, the actual daninges sustained and a reasonable attorney's fees to be fixed by the court; and if it be shoviTi such attachment was sued out maliciously, he may recover exemplary damages, nor need he wait until the principal suit is determined before suing on the bond. MODE OF ATTACHIIEXT. § 2962. — The clerk shall issue an attachment, directing the sheriff of the county therein named to attach the property of the defendant to the requisite amoimt therein stated. § 2963. — Attachments may be issued from covuis of record to different counties, and several may, at the option of the plaintiff, be issued at the same time, or in succession and subsequently, tmtil sufficient property has been attached; but only those executed shall be taxed in the costs, unless otherwise ordered by the com-t; and if more property is attached in the aggregate than the plaintiff is entitled to have held, the surplus must be abandoned and the plaintiff^ pay all costs incurred in relation to such sm-plus. § 2964. — The sheriff shall in all cases attach the amount of property directed if sufiicient, not exempt from execution, found in his county, giving that in which the defendant has a legal and imquestionable title a preference over that in which his title is doubtful or only equitable. § 2965. — Where there are several attachments against the same defendant, they shall be executed in the order in which they were received by the sheriff. §2966. — If, after an attachment has been placed in the hands of the sheriff, any property of the defendant is moved from the county, the sheriff may pursue and attach the same in an adjoining county within twenty-fom- hours after removal. § 2967. — Stock or interest owned by the defendant in any company, and also debts due him, or propertj- of his held by third persons, may be attached, and the mode of attachment must be as follows: 1. By giving the defendant in the action, if found within the comity, and also the person occupying or in possesion of the property, if it be in the hands of a third person, notice of attachment. 2. If the property is capable of manual delivery, the sheriff must take the same into his custody if it can be foimd. 3. Stock iu a company is attached by notifying the president or other head of IOWA. 517 the company, or the secretary, cashier, or other managing agent thereof, of the fact that the stock has been so attached. 4. Debts due the defendant, or property of his held by third persons and which cannot be found, or the title to which is doubtful, are attached by garnishment thereof. § 29G8.— Whenever it appears by the affidavit of the plaintiff or by the return of the attachment, that no property is kno%\Ti to the plaintiff or the officer on which the attachment can be executed, or not enough to satisfy the plaintiff's claim, and, it being sho^\^l to the judge of any court by affidavit, that the defend- ant has property within the state not exempt, the defendant may be required^ by such judge to attend before him, or before the court in which the action is pending, and give information on oath respecting his property. §2969. — Property attached otherwise than by garnishment, is bound thereby from the time of the service of the attachment only. § 2970. — The coiirt before whom the action is pending, or the judge thereof in vacation, may, at any time, appoint a receiver to take possession of property at- tached under the provisions of this chapter, and to collect, manage, and control the same, and pay over the proceeds according to the nature of the property and the exigency of the case. § 2971. — All money attached by the sheriff, or coming into his hands by virtue of the attachment, shall forthwith be paid over to the clerk to be by him retained tUl the further action of the court. § 2972. — The sheriff shall make such disposition of other attached property as may be directed by the court or judge, and where there is no direction upon the subject he shall safely keep the property subject to the order of the court. PARTNERSHIP PROPERTY. § 2973. — In executing an attachment against a person who owns property jointly or in common with another, or who is a member of a partnership, the officer may take possession of such property so owned jointly, in common, or in partnership, sufficiently to enable him to inventory and appraise the same, and for that purpose shall call to his assistance three disinterested persons; which inventory and ap- praisement shall be returned l^y the officer with the attachment, and such return shall state who claims to o\vn such property. § 2974.^ — The plaintiff shall, from the time such property is taken possession of by the officer, have a lien on the interest of the defendant therein, and may, either before or after he obtains judgment in the action in which the attachment issued, commence an action by equitable proceedings to ascertain the nature and extent of such interest and to enforce the lien; and, if deemed necessary or proper, the court or judge may appoint a receiver under the circumstances and conditions provided in chapter twelve, of title seventeen. GARNISHMEXT. § 2976. — A sheriff or constable may be garnished for money of the defendant in his hands. So may a judgment debtor of the defendant when the jud.gment has not been previously assigned on the record, or by writing filed in the office of the clerk and by him minuted as an assignment on the margin of the judgment docket, and also an executor for money due from the decedent to the defendant may be garnished, but a municipal or political corporation shall not be garnished. §2977. — Where the property to be attached is a fund in com-t, the execution of a writ of attachment shall be by leaving with the clerk of the court a copy thereof, with notice, specifying the fund. § 2978. — If the garnishee die after he has been summoned by garnishment and pending the litigation, the proceedings may be revived by or against his heirs or legal representatives. § 2979. — Unless exempted as provided in the next section, the notice miist also require the garnishee 'to appear on the first day of the next term of the court wherein the main cause is pending, or on the day fixed for trial if in a justice's court, and answer such interrogatories as may be then propounded to him, or that he will be liable to pay the entire judgment which the plaintiff eventually obtains against the defendant. § 2980.— When the plaintiff, in writing, directs the sheriff to take the answer of the garnishee, the sheriff shall put to the garnishee the following questions: 618 IOWA. 1. Are yoti in any manner indebted to the defendant in this suit, or do you-owe him money or jn-operty which is not yet due? If so, state the particulars. 2. Have you in your possession or under your control, any property, rights, or credits of the said defendants? If so, what is the value of the same, and state aU particulars. 3. Do you know of any debts owing to the said defendant, whether due or not due, or anj' propertj*, rights, or credits belonging to him and now in the possession or under the control of others? If so, state the particulars: and append the examination to his return. MODE. § 2981. — If the garnishee refuses to answer fully and unequivocally all the fore- going interrogatories, he shall be notified to appear and answer on the fii-st day of the next term of court, or on the day fixed for trial as above provided, and so he may be required in any event, if the plaintiff so notify him. § 2982. — The qiiestions propounded to the garnishee in court, may be such as are above prescribed to be asked by the sheriff, and such others as the court may think proper and right. § 2983.— "WTiere the garnishee is required to appear at court, unless he has refused to answer as contemplated above, he is entitled to the pay and mUeage of a witness, and may, in like manner, require payment beforehand in order to be made liable for non-attendance. § 2984. — If, when duly summoned, and his fees tendered when demanded, he fail to apjDear and answer the interrogatories propounded to him without sufficient excuse for his delinquency, he shall be presumed to be indebted to the defendant to the full amount of the plaintiff's demand, and shall be dealt with accordingly. § 2985.— But, for a mere failure to appear, he is not liable to pay the amount of the plaintiff's judgment, until he has had an opportunity to show cause against the issuing of an execution. § 2986. — A garnishee may, at any time after answer, exonerate himself from further responsibility, by paying over to the sheriff the amount owing by him to the defendant, and placing at the sheriff's disposal the property of the defendant, or so much of said debts and property as is equal to the value of the property to be attached, all of which may afterwards be treated as though attached in the usual manner. § 2987. — When the garnishee has answered the interrogatories propounded to him, the plaintiff may controvert the same by pleading by him filed, and issue may be joined and the same tried in the iisual manner. The answer of the garnishee Bhall be competent testimony on such trial. § 2988. — If, in any of the above methods, it is made to appear that the garnishee was indebted to the defendant, or had any of the defendant's property in his hands, either at the time of being served with the garnishee notice aforesaid or at any time subsequent thereto, he is liable to the plaintiff in case judgment is finally recovered by him, to the fuU amount of that judgment, or to the amount of such indebtedness and of the property so held bj' him; and a conditional judgment shall be entei-ed up against him accordingly, imless he prefers paying or delivering the same to the sheriff as above provided. § 2989. — If the debt of the garnishee to the defendant is not due, execution shall be suspended until its maturity. § 2990. — The garnishee shall not be made liable on a debt due by negotiable paper, unless such paper is delivered, or the gai-nishee completely exonerated or indemnified from all liability thereon after he may have satisfied the judgment. § 2991. — The judgment in the garnishment suit condemning the property or debt in the hands of the garnishee to the satisfaction of the plaintiff's demand, is con- clusive between the garnishee and defendant. § 2992. — The docketing of the original case shall contain a statement of aU the garnishments therein, and when judgment is rendered against a garnishee, the same shall distinctly refer to the original judgment. § 2993. — An appeal lies in all garnishment cases at the instance of the plaintiff, the defendant, the garnishee, or an intervenor claiming the property or money. IOWA. 519 EELEASE OP PROPEETT. § 2994. — If the defendant, at any time before judgment, causes a bond to be executed to the plaintiff with sufficient sureties to be approved by the officer having the attachment^ or, after the return thereof by the clerk, to the effect that he will perform the juclgment of the court, the attachment shall be discharged and resti- tution made of property taken or proceeds thereof. The execution of such bond shall be deemed an appearance of such defendant to the action. § 2995. — Such bond shall be part of the record, and, if judgment go against the defendant, the same shall be entered against him and sureties. § 2996. — The defendant, or any person in whose possession any attached prop- erty is found, or any i^erson making affidavit that he has an interest in it, may, at any time before judgment, discharge the property attached, or any part thereof, by giving bond with security, to be approved by the sheriff, in a penalty at least double the value of the property sought to be released, but if that sum would ex- ceed three times the claim, then in such sum as equals three times the claim, conditioned that such propeii;y, or its estimated value, shall be delivered to the sheriff to satisfy any judgment which may be obtained against the defendant in that suit within twenty days after the rendition thereof. This bond shall be filed with the clerk of the coiu-t. §2997. — To determine the value of property in cases where a bond is to be given, unless the parties agree otherwise, the sheriff shall summon two disinter- ested persons having the qualification of jurors, who, after having been sworn by him to make the ajjpraisement faithfully and impartially, shall proceed to the discharge of their duty. If such persons disagree as to the value of the property, the sheriff shall decide between them. § 2998. — In an action brought upon the bond above contemplated, it shall be a sufficient defense that the property for the delivery of which the bond was given, did not, at the time of the levy, belong to the defendant against whom the attach- ment was issued, or was exempt from seiziu-e under such attachment. SALE OF PERISHABLE PKOPERTT. § 2999. — When the sheriff thinks the property attached in danger of serious and immediate waste and decay, or when the keeping of the same will necessarily be attended with such expense as greatly to dei^reciate the amoimt of proceeds to be realized therefrom, or when the plaintiff makes affidavit to that effect, the sheriff maj^ summon tkree persons having the qualification of jiu'ors to examine the same. The sheriff shall give the defendant, if within the count.y, three days' notice of such hearing, and he may appear before such jury and have a personal hearing. If they are of the opinion that the property requires soon to be disposed of, they shall specify in writing a day beyond which they do not deem it prudent that it should be kept in the hands of the sheriff. If such day occurs before the trial day, he shall thereui)on give the same notice as for sale of goods in execution, and for the same length of time, unless the condition of the property renders a more immediate sale necessary. The sale shall be made accordingly. If the de- fendant gives his written consent, such sale may be made without such finding. SPECIFIC ATTACHMEXTS. § 3000. — In an action to enforce a mortgage of, or lien upon personal property, or for the recovery, sale, or partition of such property, or by a plaintiff having a future estate or interest therein, for the security of his rights, where it satisfacto- rily appears by the petition, verified on oath or by affidavits, or the jn-oofs in the cause, that the plaintiff has a just claim, and that the property has been oris about to be sold, concealed, or removed from the state, or where plaintiff states on oath that he has reasonable cause to believe, and does believe, unless prevented by the court, the property will be sold, concealed, or removed from the state, an attach- ment may be gi-anted against the property. § 3001.— In an action by a vendor of property fraudulently purchased, to vacate the contract and have a restoration of the property, or compensation therefor, ■where the petition shows such fraudulent purchase of property and the amount of the plaintiff's claim, and is verified by his oath, an attachment against the property may be granted. § 3002.— The attachment in the cases mentioned in the last two sections maybe granted by the court in which the action is brought, or by the judge of any court, upon such terms and conditions as to security on the part of the plaintiff for the damages which may be occasioned by them, and with such directions as to the 520 IOWA. dispcsition to be made of the property attached, as may be just and proper irnder the circumstances of each case. § SC03. — The attachment shall describe the specific property against v\-hich it is issued, and shall have indorsed upon it the direction of the coiu^; cr jud.':;e as to the disposition to be made of the attached property. It shall be directed, executed, and returned as other attachments. § 2004. — The court may, in any of the cases mentioned under this head cf spe- cific attachments, direct the terms and conditions of the bond to be executed by the defcnt'ant, with security, in order to obtain a discharge of the attachment or to retain the attached property. INDEBTEDNESS DUE THE STATE. § 3005. — In all cases in which any person is indebted to the state of Iowa, or to any ofiicer or .igent of the state for the use or benefit of the state, the proper dis- trict attorney, or the attorney-rencral, shall demand payment or security therefor, whenever, ia the opinion of said district attorney or attorney-general, the debt is not sufiiciently secured. § SCCG.— In all suits for money due to the state of Iowa, or due to any state agent or cfSccr for the use of the state, it shall be lawful for an attachment to issue against the property or debts of the defendant not exemiit from execution, upon the fiKng of an affidavit by the district attorney of the proper district, or of the attorney-general, that he verily believes that a specific amoimt thereta str.ted is justly cue, and the defendant therein has refused to pay or secure the same, and that "unless an attachment is issued against the propert j' of the defendant there is danger that the amount due will be lost to the state. § 3007. — The attachment so issued shall be le\^ed as in other cases of attach- ment, and no bond shall be required of the plaintiff in such cases, and the shcriil shall not be authorized to require any indemnifying bond before levying the same. § 3008. — Any property taken on attachment under the provisions of the two preceding sections, shall be subject to be released upon the execution of a delivery bond, with sufiicient secm-ity as provided by law iu other cases. § 3009. — In case any sheriff shall be held liable to pay any d.images by reason of the ■^Tongful execution of any ■UTit cf attachment issued under the three jjre- ceding sections, and if a judgment be rendered therefor by any court cf competent jurisdiction, the amount of such judgment v.-hen paid by such sheriff shall liecome a claim against the state of Iowa in favor of such sheriff, and a warrant therefor shall be c.rawn by the auditor upon [)roper proof. § 3010. — The sheriff shall return upon every attachment what he has done under it. The return must show the property attached, the time it was attached, and the disposition made of it, by a full and particular inventory; also the ap- praisement above contemplated, when such has been made. "When garnishees are summoned, their names, and the time each was summoned, must be stated. And where real property is attached, the sheriil shall describe it with certainty to iden- tify it, and, where he can do so, by a reference to the book and page Vvhere the deed under which the defendant holds is recorded. He shall return with the writ all bonds taken under it. Such I'etmn muit be made immediately after he shall have attached sufiicient property, or all that he can fiad; or, at latest, on the first day of the first term on which the defendant is notified to appear. § 3011. — If judgment is rendered for the plaintiff in any case in which an attach- ment has been issued, the court shall apply in satisfaction thereof, the money arising from the sales of perishable property, and if the same is not sufficient to satisfy the plaintiff's claim, the court shall order a sale by the sheriff of any other attached jiroperty which may be under his control. § 3012. — The court may, from time to time, make and enforce proper orders respecting the property, sales, and the apjjlication of the moneys collected. §3013. — The sheriff shall be allowed by the court the necessary expenses of keeping the attached property, to be paid by the plaintiff and taxed in the costs. § 3014. — An J' surplus of the attached property and its proceeds shall be retimied to the defendant. §3015. — If judgment is rendered in the action for the defendant, the attach- ment shall be dischai-ged, and the property attached, or its i^roceeds, shall be returned to him. IOWA, 521 § 3016. — Any person other than the defendant may, before the sale of any attached property, or before the pajonent to the plaintilf of the proceeds thereof or any attached debt, present his petition, verified by oath, to the court, disputing the validity of the attachment, or stating a claim to the property or money, or to an interest in, or lien on it under any other attachment or otherwise, and setting forth the facts upon whicli such claim is founded; and the petitioner's claim shall be in a summary manner investigated. The court may hear the pi'oof or order a reference, or may impannel a jury to inquire into the facts. If it is found that the petitioner has title to, a lien on, or any interest in such property, the coixrt shall make such order as may be necessary to protect his rights. The costs of such proceedings shall be paid by either party at the discretion of the court. § 3017. — The fact stated as a cause of attachment, shall not be contested in the action by a mere defense. The defendant's remedy shall be on the bond, but he may in his discretion sue thereon by way of counter-claim, and in such case shall recover damages as in an original action on such bond. § 3018. — A motion may be made to discharge the attachment, or any part thereof, at any time before trial, for insufficiency of statement of cause thereof, or for other cause making it apparent of record that the attachment should not have issued, or should not have been levied on all or on some part of the property held. § 3019.— When an attachment has been discharged, if the plaintiff then announce his purpose to appeal from such order of discharge, he shall have two daj's in which to perfect his appeal, and during that time such discharge shall not operate a return of the property nor divest any lien, if such appeal be so perfected at the end thereof. § 3020. — But, if judgment in the action be also given against the plaintiff, he must also, within the same time, take his appeal thereon, or such discharge shaU. be final. § 3021. — This chapter shall be liberally construed; and the plaintiff, at any time when objection is made thereto, shall be permitted to amend any defect in the petition, afiidavit, bond, writ, or other i^roceeding; and no attachment shall be quashed, dismissed, or the property attached released, if the defect in any of the proceedings has, or can be amended so as to show that a legal cause for the attach- ment existed at the time it was issued; and the com-t shall give the i^laintiff a reasonable time to perfect such defective proceedings; the causes for attachment shall not be stated in the alternative. § 3022.— No levy of attachment on real estate shall be notice to a subsequent vendee or incumbrancer in good faith, unless the sheriff making such levy shall have entered in a book which shall be kept in the clerk's office of each county by the clerk thereof, and called "incumbrance book," a statement that the land, describing it, has been attached, and stating the cause in which it was so attached, and when it was done, and sigTied by such sheriiT; and such book shall be ox^en, as other books kept by such clerk, to public inspection. § 3023. — The word " sheriff," as used in this chapter, is meant to apply to con- stables when the proceedings are in a justice's court, or the like officer of any other court. § 3024. — "When the proceedings are in a justice's court, the justice is to be regarded as the clerk of the court for all pm-poses herein contemplated. Before justices of the peace — Sees. 3511, 36Q5-361(X In bastardy cases — Sec. 4718. Collection of taxes enforced by — Sec. 405. For rent— Sec. 2018. In divorce cases — Sec. 2227. Married woman's property— Sec. 2562. Property taken by landlord — Sec. 2575. Mechanics' liens — Page COO, sec. 9. Exemptions— Sees. 1988, 2371, 2526, 3048, 3072-3078; Stats. 1882, p. 62; Stata, 1884, p. 30. Appeal from order granting attachment — Sec 3164. 622 KANSAS. KANSAS. JTDassler's Digest, 1885.] ATTACHMENT. (3999) § 190. — The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated: First. WTien the defendant, or one of several defendants, is a foreign corpora- tion, or a non-resident of this state (but no order of attachment shall be issued on the ground or grounds in this elause stated, for any claim other than a debt or demand arising upon contract, judgment or decree, Tinless the cause of action arose wholly within the limits of this state, which fact must be established on the trial). Second. When the defendant, or one of several defendants, has absconded with the intention to defraud his creditors; or. Third. Has left the county of his residence to avoid the service of a sum- mons; or. Fourth. So conceals himself that a summons cannot be served upon him; or. Fifth. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; or, Sixth. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or. Seventh. Has f)roperty or rights in action, which he conceals; or, Eighth. Has assigned, removed or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud, hinder or delay his credit- ors; or, Ninth. Fraudulently contracted the debt, or fraudulently incurred the liability or obligations for which suit is about to be or has been brought; or, Tenth. Where the damages for which action is brought are for injuries arising from the commission of some felony or misdemeanor, or the seduction of any female; or. Eleventh. When the debtor has failed to pay the price or value of any article or thing delivered, which by contract he was bound to pay upon delivery. [Sec 199, as amended, L. 1870, ch. 87, sec. 4; took effect May 12, 1870.] (4000) § 191. — An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the iDreceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, show- ing: First. The nature of the plaintiff's claim. Second. That it is just. Third. The amount which the affiant believes the plaintiff ought to recover; and. Fourth. The existence of some one of the grounds for an attachment enumerated in the preceding section. (4001) § 192. — The order of attachment shall not be issued by the clerk until an undertaking on the part of the plaintiff has been executed by one or more suffi- cient sureties, approved by the clerk, and iiled in his office, in a sum not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained; but no undertaking shall be required where the party or parties defendant are all non-residents of the state or a foreign corpora- tion. [Sec. 192, as amended, L. 1870, ch. 87, sec. 5; took effect May 12, 1870.] (4002) § 193.-=-The order of attachment shall be directed and delivered to the sheriff. It shall requu-e him to attach the lands, tenements, goods, chattels, stocks, rights, credits, moneys and effects of the defendant in his coimty, not ex- empt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action not exceeding fifty dollars. KANSAS. 523 (4003) § 194. -^Orders of attachment may be issued to the sheriffs of different counties, and several of them may, at the option of the plaintiff, be issued at tho Bame time, or in succession; but only such as have been executed shall be taxed in the costs, unless otherwise du-ected by the court. (4004) § 195. — The return day of the order of attachment, when issued at tho commencement of the action, shall be the same as that of the summons. Whea issued afterward, it shall be twenty days after it issued. EXECUTION AND RETUKN THEREOF. (4005) § 196. — "^Tiere there are several orders of attachment against the same defendant, they shall be executed in the order in which they are received by the sheriff. (4006) § 197. — The order of attachment shall be executed by the sheriff without delay. He shall go to the place where the defendant's property may be found, and declare that, by virtue of said order, he attaches said property at the suit of the plaintiff; and the officer, with two householders, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and householders, and re- turned with the order. (4007) § 198. — When the property attached is real ' property, the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal prox^erty, and he can get pos- session, he shall take the same into his custody, and hold it subject to the order of the com-t. (4008) § 199. — The sheriff shall deliver the property attached to the person in whose possession it was found, upon the execution by such laerson, in the presence of the sheriff, of an undertaking to the plaintiff, with one or more sufficient sure- ties, resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the per- son so bound. (4009) § 200. — When the plaintiff, his agent or attorney, shall make oath, in writing, that he has good reason to, and does, believe that any person or corpora- tion, to be named, has property of the defendant (describing the ^ame) in his jJos- session, or is indebted to him, he shall leave with such garnishee a copy of the order of attachment, with a written notice that he appear and answer, as provided herein. (4010) § 201. — The copy of the order and notice shall be served upon the gar- nishee, as follows: If he be a person, they shall be served upon him j^ersonally, or left at his usual place of residence; if a corporation, they shall be left with the president or other head of the same, or the secretary, cashier or managing agent thereof. (4011) § 202. — If the garnishee do not reside in the co;mty in which action ia brought, the plaintiff shall prepare written interrogatories, to be answered by the garnishee, a copy of which shall be served in the same manner as the order and notice. (4012) § 203. — Different attachments of the same property may be made by the same officer, and one inventory and appraisement shall be sufficient; and it shall not be necessary to return the same with more than one order. (4013) § 204. — Where property is under attachment, it shall be attached under subsequent orders as follows: Fh-8t. If it be real property, it shall be attached in the manner prescribed in section one hundred and ninety-eight. Second. If it be personal property it shall be attached as in the hands of the officer, and subject to any previous attachment. Third. If the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him in the manner prescribed in section two hundred and one. (4014) § 205. — The officer shall return, upon every order of attachment, what he has done under it. The return must show the property attached, and the time it was attached; when garnishees are served, their names, and the time each was 524 KANSAS. served, must be stated. The officer shall also return -with the order all undertak- ings given under it. (4015) § 206. — An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, moneys and credits in his hands, or due from him to the defendant, from the time he is served with the -written notice mentioned in section two hun- dred and one; but where property is attached in the hands of a bailee, his lien thereon shall not be affected by the attachment. DISPOSITION OF ATTACHED PEOPEETY. (4016) § 207. — ^The court, or any judge thereof, during vacation, may, on appli- cation of the plaintiff, and on good cause sho^uni, appoint a receiver, who shall take an oath faithfully to discharge bis duty, and shall give an undertaking to the state of Kansas, in such sum as the court or judge may direct, and with such security as shall be approved by the clerk of such com-t, for the faithful performance of hia duty as such receiver, and to pay over all moneys and account for all property which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct. (4017) § 208. — Suck receiver shall take possession of all notes, due-bills, books of account, accounts and all other evidences of debt that have been taken, l:iy the sheriff or other ofQcer, as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that pm-pose he may commence and maintain actions in his own name as such receiver; but in such actions, no right of defense shall be impaired or affected. (4018) § 209. — Such receiver shall forthwith give notice of his appointment to the persons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors, by copy person- ally, or by copy left at the residence of the debtor or debtors; and from the date of such service, the debtors shall stand liable to the plaintiff in attachment for the amount of moneys or credits in their hands, or due from them to the defendant ia attachment, and shall account therefor to the receiver. (4019) § 210. — Such receiver shall, when required, report his proceedings to the court, and hold all moneys collected by him, and the property which may come into his hands, subject to the order of the coirrt. (4020) § 211. — Where a receiver is not appointed by the court or a judge thereof, as provided in section two hundred and seven, the sheriff or other officer attaching the property shall have all the joowers and perform all the duties of a receiver appointed by the court or judge, and may, if necessary, commence and maintain actions in his own name as such officer. He may be required to give security other than his oSicial undertaking. (4021) § 212. — The court shall make proper orders for the preservation of the Eroperty during the pendency of the suit; it may direct a sale of property, when, ecause of its perishable nature, or of the costs of keeping it, a sale will be for the benefit of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescrilied for the sale of like pro]ierty on execution, and shall be made in such manner and upon such terms of credit, with security, as the court or judge, having regard to the probable duration of the action, may direct. The proceeds, if collected liy the sheriff, with all the money received by him from garnishees, shall be held and paid over by him, under the same requirement and responsibility of himself and sure- ties, as are provided in respect to money deposited in lieu of bail. PEOCEEDINGS DPON ATTACHMENT. (4022) § 21.3. — If the defendant, or other person on his behalf, at any time be- fore judgment, caiise an undertaking to be executed to the plaintiff, by one or more sureties, resident in the county, to be approved by the court, in double the amount of the plaintiff's claim, as stated in his affidavit, to the effect that the de- fendant shall perform the judgment of the court, the attachment in such action shall be discharged, and restitution made of any property taken under it or the proceeds thereof. Such undertaking shall, also, discharge the liability of a gar- nishee in such action for any property of the defendant in his hands. (4023) § 214. — The undertaking mentioned in the last section may, in vacation, be executed in the presence of the sheriff having the order of attachment in hia hands, or after the return of inQ order, before the clerk, with the same effect as if 1 KANSAS, &25 executecl in co'jrt, tlie sureties in either case to he approved "by tlie officer before whom the undertaking' is executed. (4024) § 215.— The garnishee shall answer as follows: If the order of attachment be returned during- a term of the court, and ten days before the close thereof, he shall answer at that term, on a day to be named in the notice, not less than ten days from the date of service. If the order be returned during vacation, he shall answer on the first day of the next term after its retxrrn. If the garnishee reside cut of the county in which the action is brought, he shall file -RTitten answers to the interrogatories served upon him within the time hereinbefore provided, which answer shall be sworn to, subscribed and certified in the same manner as an affi- davit. If he reside in the county in which the action is brought, he shall appear in court and be examined. A garnishee shall answer, under oath, all cjuestions or interrogatories put to him touching the property, of every description, of the de- fendant, in his possession or under Lis control, and shall disclose truly the amount cu-ing by him to the defendant, at or after the service of notice, whether due or not; and in case of a corporation, any stock therein hejd by or for the benefit of the defendant, at or after the service of notice. (4025) § 215ft. — AVhen any corporation shall be notified to appear and answer a3 garnishee of any defendant, pursuant to sections £00, 201 and 202 of said chapter 80, the answer, required to be made by such garnishee by section 215 of said chap- ter, shall not be required in anj' case in less than fifteen days from the service of the order and notice, and interrogatories, if any; and when neither the president or other head of such corporation, nor the secretary, cashier, or managing agent thereof, shall reside or live, or keep his office or place of business in the county where the action is pending, the answer of such garnishee shall not be required in less than thirty days from the service of the order and notice, and interrogatories, if any. [L. 1870, oh. 87, sec. 6; took effect j\Iay 12, 1870.] (402G) § 216. — A garnishee may pay the money owing to the defendant by him to the sheriix having the order of attachment, or into court. He shall ?je dis- charged from liability to the defendant for any money so paid, not exceeding the plaintiff's claim. Ho shall not be subject to costs, beyond those caused by his re- sistance of the claim against him; and if he disclose the proi^erty in his hands, or the true amount owing by him, and deliver and pay the same, according to the order of the court, he shall be allowed his costs. (4027) § 217. — If the garnishee do not answer as required by section two hun- dred and fifteen, the court may proceed against him by attachment as for con- tempt. (4028) § 218. — If the garnishee answer, and it is discovered on his examination, that, at or after the service of the order cf attachment and notice upon him, he was f)ossessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property and pajonent of the amount owing by the garnishee into the com't; or the court may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaint- iff, by one or more sufficient sureties, to the effect that the amount shall be paid or the property forthcoming, as the court may direct. (4020) § 219. — If the garnishee fail to answer, or if he answer and his disclosure is not satisfactory to the plaintiff, or if he fail to comply vrith the order c: lie court to deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action by filing a petition in his own name, as in other cases, and causing a summons to be issued upon it; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff, for the amount of property and credits of every kind, of che defendant, in the pos- session of the garnishee, and for what shall appear to be owing by him to the defend- ant, and for the costs of the proceedings against the garnishee. If the plaintiff" proceed against the garnishee by action, for the cause that his disclosure was. unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff shall pay the costs of such action. The judgment; in this action may be enforced as judgments in other cases. When the claims of 'plaintiffs i •. ..^lach- ment are satisfied, the defendant in attachment may, on motion, be substituted as the ijlaintiff in this judgment. (4030) § 220. — Final jud.gment shall not be rendered against the garnishee until the action against the defendant in attachment has been determined; and if, in such action, judgment be rendered for the defendant in attachment, the gar- nishee shall be discharged and recover costs. If the plaintiff shall recover agamst tte defendant in attachment, and the garnishee shall deliver up aU the property. 526 KAi^Aa moneys and credits of fhe defendant in tis possession, and pay all tte moneys from him due, as the court may order, the garnishee shall be discharged, and the costs of the proceedings against him shall be paid out of the property and moneys so surrendered, or as the court may think right and proper; and on final judgment against the garnishee, execution may be issued as in other cases. (4031) § 221.— If judgment be rendered in the action for the defendant, the attachment shall be discharged, and the property attached or its proceeds, shall be returned to him. (4032) § 222. — If judgment be rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after ajiplying the mone j-s arising from the sale of perisliable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amoxmt which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the attached i^roperty or its proceeds shall be returned to the defendant. (4033) § 223. — The court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking may have been given, and may proceed stimmarily, on such undertaking, to enforce the delivery of the property, or the paj'ment of such sum as may be due upon the undertaJdng, by niles and attachments, as in case of contempt. (4034) § 224. — The court may order the sheriff to repossess himself, for the pur- pose of selling it, of any of the attached property, which may have passed out of his hands, without having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property as he would have un- der an order of attachment. (4035) § 225. — T\Tiere several attachments are executed upon the same property, or the same persons are made garnishees, the court, on motion of any of the plaint- iffs, may order a reference, to ascertain and rejwrt the amounts and priorities of the several attachments, or may determine any such amormt and priorities without such reference. GEXER.VL PEOVISIOXS. (403G) § 226. — From the time of the issuing of the order of attachment, the court shall be deemed to have acquired jurisdiction, and to have control of all sub- sequent proceedings under the attachment; and if, after the issuing of the order, the defendant being a person, should die, or a corporation, and its charter should expire by limitation, forfeiture or otherwise, the proceedings shall be carried on; bui in all such cases, other than where the defendant was a foreign corporation, hia legal representatives shall be made parties to the action. (4037)_ § 227. — The defendant may, at any time before judgment, after reason- able notice to the plaintiff, move the court for additional security on the part of the_ plaintiff; and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has removed from this state, or is not sufficient for the amount thereof, it may vacate tne order of attachment and direct restitution of any projierty taken under it, unless, in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff. (4038^ § 223. — The defendant may, at any time before judgment, upon reason- able notice to the plaintiff, move to discharge an attachment, as to the whole or part of the property attached. (4039) § 229. — If the motion be made upon affidavits, on the part of the defend- ant, or i^apers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of attachment was made. ATTACHMENTS IN CEETAIN ACTIONS. (4040) § 230. — Where a debtor has sold, conveyed or otherwise disposed of hia property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts, or is about to make such sale or coh* veyance or dis^josition of his property, with such fraudulent intent, or is about to remove his property, or a material part thereof, with the intent or to the effect dt cheating co* defrauding bis creditors, or of hinderiog or delaying them in the col- KENTUCKY. 627 lection of their debts, a creditor may bring an action on his claim before it is due, and have an attachment against the property of the debtor. (4041) § 231. — The attachment authorized by the last section maybe granted by the court in which the action is brought, or by the judge thereof, or, in his ab- sence from the county, by the probate judge of the county in which the action is brought; but before such action shall be brought, or such attachment shall be granted, the plaintiff, or his agent or attorney, shall make an oath in writing, showing the nature and amount of the plaintiff's claim, that it is just, when the same will become due, and the existence of some one of the grounds for attachment enumerated in the preceding section. [Sec. 231, as amended L. 1883, ch. 122, sec. 1; took effect April 5, 1883.] (4042) § 232. — If the court or judge refuse to grant an order of attachment, the action shall be dismissed, but without prejudice to a future action; and in all such actions, application for an attachment must be made. (4043) § 233. — The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a sum sufficient to sat- isfy the plaintiff's claim, and the probable costs of the action. (4044) § 234. — The order of attachment, as granted by the court or judge, shall not be issued by the clerk until there has been executed, in his office, an undertak- ing, on the part of the plaintiff, as in case of any ordinary attachment. (4045) § 235. — The plaintiS in such action shall not have judgment on his claim before it is due, but the proceedings on the attachment may be conducted without delay. (4046) § 236. — The proceedings applicable to attachments issued by the clerk in ordinary cases, shall regulate the attachment granted by the court or judge, as far as applicable. Attachment in justice's court — §§ 4553, 4594-4605. Eeview of order discharging or modifying attachment — § 4381.. Attachment for rent — § 3230; lien on crops — § 3231. Exemption.s— §§ 2655-2660. KENTUCKY. [Bullitt's Codes, 1876.] GROUNDS OF ATTACHMENT. § 194 (221). — The plaintiff may, at or after the commencement of an action, have an attachment against the property of the defendant, including garnishees, as is provided in section 227, as a security for the satisfaction of such judgment as may be recovered — I. In an action for the recovery of money against — 1. A defendant who is a foreign corporation, or a non-resident of the state; or, 2. Who has been absent herefrom four months; or, S. Has departed herefrom with intent to defraud his creditors; or, 4. Has left the county of his residence to avoid the service of a summons; or, 5. So conceals himself that a summons cannot be served upon him; or, 6. Is about to remove, or has removed, his property, or a material part thereof, out of this state, not leaving enough therein to satisfy the plaintiff's claim, or the claims of said defendant's creditors; or, 7. Has sold, conveyed, or otherwise disposed of, his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay his creditors; or, ' 8. Is about to sell, convey, or otherwise dispose of his property, with such in- tent. But an attachment shall not be granted on the ground that the defendant ia a foreign corporation, or a non-resident of this state, for any claim other than a 528 KENTUCKY. debt or demand arisingr upon a contract, express or implied, or a judgment or award. II. In an action for the recovery of money due upon a contract, judc,Tnent, or award, if the defendant have no property in this slate subject to exesution, or not enough thereof to satisfy the plaintiif "s demand, and the collection of the demand will be endangered by delay in obtaining judgment or a return of no property found. III. In an action to recover the possession of personal property which has been ordered to be delivered to the plaintiif, and which property, or part whereof, has been disposed of, concealed, or removed, so that the order for its delivery cannot be executed by the sheriff. § 105. — The provisions of chapter 60, article 2, of the general statutes, concern- ing attachments for rent, are adopted as part of this code, subject to any modilica- tions herein contained. HOW AN ATTACHMENT 13 OBTAINED. § 196 (222). — An order of attachment shall be made by the clerk of the court in which the action is brought or pending, in any case mentioned in section 194, sub- sections 1 and 2, if an affidavit of the plaintiif be filed in his office, showing — 1. The nature of the plaintiff's claim, 2. That it is just. 3. The sum which the aflSant believes the plaintiff ought to recover; and, 4. The existence of any of the grounds for an attachment mentioned in sub- sections 1 and 2 of section 194; or, in the case mentioned in subsection 3 of section 194, if it be shown by such afiidavit, or by the return of the sheriff upon the order for the delivery of the property claimed, that the facts mentioned in that subdi- vision exist. § 197 (223). — A return by the sheriff upon a summons against a defendant, that he has left the county to avoid the service of the summons, or has concealed him- self therein for that i^urpose, is equivalent to the statement of the fact in the plaintiff's affidavit. § 198 (224). — The order of attachment shall not be issued by the clerk until a bond has been executed in his office, by one or more sufficient sureties of the plaint- iff, to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained, not exceeding double the amount of the iDlaintiff's claim. § 199 (225). — The order of attachment shall be directed and delivered to the sheriff, with as many copies thereof as the plaintiff may direct. It shall require him to attach and safely keep the property of the defendant in his county not ex- empt from execution, or so much thereof as will sati.sfy the plaintiff's claim speci- fied in his affidavit, which shall be stated in the order, and the probable costs of the action, not exceeding thirty dollars; also, to summon the garnishees to answer in the action on the return day of the order, and to make due return thereof. The order shall be made returnable as an order of arrest is directed to be rctiurned. § 200. — The provisions of sections 5, 6, 7, and 8, of article xiii, of chapter 38, of the general statutes, are made applicable to attachments under this code. § 201 (22G). — Orders of attachment may be issued to the sheriff of any county; and several of them may, at the option of the plaintiff, be issued at the same time or in succession. But such only as have been executed in whole or in imrt shall be taxed in the costs, unless otherwise directed by the court. EXECUTION AND EETDRN OF ATTACHMENT. § 202 (227). — Several orders of attachment against a defendant shall have prece- dence according to the time of their delivery to the sheriff, subj act to the provi- sions of section 207. § 203 (228). — The order of attachment shall be executed by the sheriff without delay in the follo\%dng manner: 1. Upon real propertj', by leaving with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. 2. Upon personal x^roperty capable of manual delivery, by taking it into his custody and holding it subject to the order of the court; or, if it be held by another officer under process or under a distress for taxes, by delivering to him a copy of the order, with a notice specifying the pro^ierty attached. 3. Upon other personal property, by delivermg a copy of the order, ^vith a no- tice specifying the property attached, to the person holding it; or, as to a debt or KENTUCKY. 529 demand, to the person owinj? it; or, as to stock in a corporation, or property held, or a debt or demand owing, by it, to the officer or agent upon whom a summona may be served according to the provisions of section 51, and by summoning the person or corporation to answer as a garnishee in the action. The sheriff shall deliver copies to, and summon, such persons as garnishees as the plaintiff may direct. § 204. — It shall be the duty of every officer upon whom an order of attachment may be executed pursuant to section 203, subsection 2, to furnish an inventory and appraisement of the attached property held by him, or copies thereof, and a state- ment of the distress or process under which, and of the sum for which, it is held, to the officer executing the attachment, and to hold so much of the attached prop- erty, or of its proceeds, as may not be necessary to satisfy such process or distress, subject to the order of the court from Avhich the attachment issued; and his failure to perform either of those duties may be punished by the court as a contempt. § 203 (229). — It shall be the duty of every person mentioned in subsection 3 of section 203, to whom the sheriff shall apply therefor, to furnish him a certificate of the number of shares of the defendant in the stock of the corporation, or a descrip- tion of the property held by such corporation or person for the benefit of the de- fendant, or belonging to him, or the amount of the debt owing to the defendant, by such coi-poration or person, whether due or not; and a failure to perform this duty may be punished by the court as a contempt. § 200 (230). — The defendant's personal property shall be first taken under an attachment; if eaough thereof be not found, then his real property. § 207 (231).— If the property to be attached be a fund in court, the attachment shall be executed by leaving with the clerk of the court a copy thereof, with a no- tice specifying the fund; and if several orders of attachment l^e executed upon such fund on the same day, they shall be satisfied out of it ratably. § 20S (232). — The sheriff shall not, in executing an attachment upon personal property held by the defendant in the attachment jointly or in common with an- other i^erson, take possession of such property, imtil a bond be executed to such other person, by one or more sufficient sm'eties of the plaintiff, to the effect that he shall pay to such person the damages he may sustain by the wrongful suing out of the order, not exceeding double the amount of the plaintiff's claim. § 209. — In an action against joint debtors, in which an interest in joint property is attached under an order of attachment against only part of them, if judgment be rendered against all of the defendants, and the attachment be sustained, the court may subject the whole of the joint property, then undisposed of, to the satisfaction of the judgment. § 210. — If attachments, levied on the same property, in whole or in part, be pending in different courts — 1. If the courts be of equal jurisdiction, either of them, or during vacation the judge thereof, may order the removal of so many of said attachments, and of the actions in which tliey may have been issued, as may be necessary to have all of them in one of said courts. 2. If the courts be not of equal jurisdiction, one of said courts of superior jm'is- diction, or the judge thereof during vacation, may make said order of removal to one of said courts of superior jurisdiction. 3. Such or;ler may be made on the motion of any party to either of said ac- tions, after reasonable notice to all other parties to said actions or to their attor- neys; and affidavits may be read for or against the motion. 4. Clerks of courts shall, pursuant to such order, immediately remove the papers in the case therein mentioned, accompanied by certified copies of the orders made therein; and, if the removal be to another county, the clerk shall have the fees allowed by law for like services in cases of change of venue, to be paid in ad- vance by the applicant for the removal, and to be taxed in the costs, and finally paid out of the attached funds, or by such of the parties as the court may order. § 211. — If an officer who levies, or is required to levy, an attachment upon per- sonal property douljt whether it is subject to the attachment, he may give to the plaintiff therein, or to his agent or attorney, -wTitten notice that an indemnifying bond is required. If the i^laintiff cause a Ijond to be executed, with good surety, to be approved by the officer, or the judge of the court from which the attachment issued, to the e.'i'ect that the oljligors will indemnify the officer against any damage he may sustain by reason of the levy of the attachment, such officer shall proceed to exe- cute the attachment. If the attachment have not been levied, the officer may refuse to levy it unless bond be executed as above provided; or, if the attachment II Attacument— 9 530 KENTUCKY. have been levied, the officer may release the property, unless the bond be executed ■within a reasonable time after the notice requiring it shall have been given. § 212 (233).— An attachment binds the defendant's property, in the county, which might be seized under an execution against him, from the time of the deliv- ery of the order to the sheriff, in the same manner as an execution would bind it; and the lien of the plaintiff is completed upon any property or demand of the defendant by executing the order upon it in the manner directed in this article. § 213 (234). — If, after an order of attachment has been placed in the hands of the sheriff, any property of the defendant be removed from the county, the sheriff may pursue and attach it in another county within twenty-four hours after the removal. § 214 (235)._ — The sheriff may deliver any attached property to the person in whose possession it is found, upon the execution, in the presence of the sheriff, of a bond to the plaintiff, by such person, with one or more sufficient stireties, to the effect that the obligors are bound, in double the value of the property, that the defendant shall perform the judgment of the court iu the action, or that the prop- erty or its value shall be forthcoming and subject to the order of the court. § 215 (230). — For the purpose of taking this bond, the sheriff shall cause the property to be appraised by three cUsinterested housekeepers, to be selected and Bwom by him to make a fair appraisement, and who shall indorse their appraise- ment on the order of attachment. § 216 (237). — In any proceeding on this bond it shall not be a defense that the property was not subject to the attachment. § 217 (238). — The sheriff shall return upon every order of attachmept what he has done under it. The return must show the property attached, when it was at- tached, and the disposition made of it. If garnishees be summoned, their names and the time when each was summoned must be stated. And if real property be . attached, the sheriff shall describe it ■«'ith sufficient certainty to identify it, and,- if he can do so, he shall refer to the deed or title under which the defendant holds it. He shall return, with the order, all bonds taken under it. DISPOSITION OP ATTACHED PEOPEETT. § 218 (239). — The court in which the action is pending, or during vacation the judge thereof, or, if he be absent from the county, the presiding judge of the county com-t, shall make j^roper orders for the preservation and use of attached i^roperty; and for the sale of it, if, by reason of its perishable nature, or the cost of keeping it, a sale of it •would be beneficial to the parties; and for the collection and pay- m.ent into court of attached funds and choses in action; and, for any of thpse pur- poses, may make an order appointing a receiver, with authority to act as the court may direct, who shall give bond with good surety, to be approved by the comt or judge, for the faithful performance of his duties: but neither of those orders shall be made diu-ing vacation, except after reasonable notice, in writing, of the time and place of the application therefor, to the opposite party or his attorney, if either of them reside in the county in which the action is pending. Such sale shaU be made publicly, after advertisement, and upon such terms of credit, with good se- curity, as the coiurt or judge, haviag regard to the probable duration of the action, may direct. Moneys received by the sheriff upon sales of attached property, or from garnishees, shall be held and. paid by him under the same requirements and responsibilities of himself and his sureties as are provided in respect to money de- ; posited in lieu of bail. § 219 (240). — The sheriff or receiver shaU be allowed by the court the necessary expenses of keeping the attached property, to be paid by the jjlaratiff and taxed in the costs. In the case of a steamboat attached, he may be allowed, for his own superintendence thereof, not exceeding one dollar per day, and siich sums as he may actually expend for the safe-keeping of the boat, not to exceed, for the pay of persons employed, the usual wages of a mate and a deck-hand, imless more than two f)ersons have been employed bj' the order of the court or of the judge thereof. § 220 (241). — The court may require the defendant, or the claimant of any .attached i^roperty, to appear before it, and give information, on oath, concerning the property; and if it appear from the plaintiff's affidavit, or the return of an order of attachment, that no property, or not enough to satisfy the plaintiff's claim, is kno\vn to the plaintiff or the officer, on which the attachinent can be executed, the court may order the defendant to appear before it and give information, on oath, respecting his property; and if it also appear from the affidavit, that a person, other than the defendant, has in his possession property of the defendant, or evi- KENTUCKY. 531 dences of debt, the court may require such person to appear before it, and give information, on oath, respecting the same; and the coxu-t may enforce those ordera by process as in cases of contempt. PROCEEDINGS UPON ATTACHMENTg. § 221 (242). — If the defendant, before judgment, cause a bond to be executed to the plaintiff by one or more sufhcient sureties, approved by the court, to the effect that tlic defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution be made of any property taken under it or of the proceeds thereof. § 222 (243). — The bond mentioned in the last section may, in vacation, be exe- cuted in the presence of the sheriff having the order of attachment in his hands, or, after the return of the order, before the clerk, with the same effect upon the attach- ment as if executed in court — the sureties, in either case, to be approved by the oflBcer. § 223 (244). — The garnishee may pay the money owing to the defendant by him, not exceeding the plaintiff's claim and costs, to the sheriff having in his hands the order of attachment, or into the court; and to that extent he shall be discharged from lialsility to the defendant. He shall not be subjected to costs beyond those caused by his resistance of the claim against him; and, if he disclose the property of the defendant in his hands, or the true sum owing by him, and deliver or pay the same to the sheriff, or according to the order of the comi;, he shall be allowed his costs. § 224 (245). — Each garnishee summoned shall appear. The appearance may be in person; or by the affidavit of the garnishee filed in court disclosing truly the sum owing by him to the defendant, whether due or not, and the property of the defendant in the possession or under the control of the garnishee; and, in the case of a corporation, any shares of stocks therein, held by or for the benefit of the defendant, at or after the service of the order of attachment. § 225 (24G). — If a garnishee, or officer of a corporation summoned as a garnishee, appear in person, he may be examined on oath; and if it be discovered on such ex- amination that, at the service of the order of attachment upon him, he or the corpora- tion was possessed of any property of the defendant, or was indebted to him, the court may order the deUvery of such property, and the payment, or secm-ity for the payment, of the sum owing by the garnishee, into court, or to such person as it may direct — who shall give bond, with security, for the same; or the court may permit the garnishee to retain the property or the sum owing, upon the execution of a bond, with one or more sufficient sureties, to the effect that the sum shall be i>aid, or the proi^erty be forthcoming, as the court may direct. Performance of such bonds, for the forthcoming of property, may be enforced as in cases of contemfit: upon such bonds for payment of money, execution may be issued as upon replevin bonds. § 22G (247). — If such garnishee, or officer, make default, by not appearing, the court may, on the motion of the plaintiff, compel him to appear in person for ex- amina,tion, bj' process as in cases of contempt; or it may hear jjroof of any debt owing or property held by the garnishee to or for the defendant, and make such order in relation thereto, as if what is so proved had appeared on the examination of the garnishee or officer. § 227 (248). — If a garnishee fail to make a disclosure, satisfactory to the plaint- iff, the latter may bring an action against him, by jietition or amended petition, in the same manner, and the proceedings therein shall be the same, as in other actions; and the plaintiff may procure an order of attachment in the same manner, and the proceedings thereupon shall be the same, as is hereinbefore and hereinafter authorized concerning attachments — except that the plaintiff's affidavit shall state, in addition to the facts required to be stated in section 19G, the sum which the de- fendant o'\\'es to the plaintiff's debtor; and the plaintiff shall not be entitled to attach for or recover more than that sum and costs, nor more than the amount of the jilaintiff's claim against his debtor and costs. § 228 (240). — If judgment be rendered in the action for the defendant, or if the attachment be discharged — 1. The property attached, or its proceeds, shall be retimied to him. 2. The proceedings against the garnishee shall be dismissed. § 220 (250). — If judgment be rendered for the plaintiff, the court shall apply in satisfaction thereof — 1. Moneys arising from property sold pending the litigation. 2. Proceeds of the debts and funds attached in the hands of the garnishee. 532 KEXTUCKY. If these be not sufficient to satisfy the plaintiff's claim, the court shall order a Bale, by the sheriff, of any other attached i^roperty which may be under its control, in the following order: 1. Personal property. 2. Real property, or so much thereof as may be necessary to satisfy the plaint- iff's claim. 230 (251). — No order for the sale of real property seized under attachment shall be made in any action in which the defendant has not appeared, or been actually summoned, until an affidavit of the plaintiff, or of his agent or attorney, have been filed, to the effect that the defendant has no personal property, or not enough to satisfy the claim of the plaintiff, in this state, knowj; to the affiant. § 2.31 (252). — Any surplus of the attached property, or of its proceeds, shall be retm'ued to the defendant. § 232 (254). — The court may, by summary proceedings, compel the delivery to the sheriff, for sale, of any attached property, for which a bond may have been given; or, for such sums of money as may be due upon such bonds, execution may issue as upon replevin bonds. § 233 (255). — The court may, from time to time, make and enforce proper orders respecting the property, sales, and the confirmation thereof; and the application and payment of the moneys collected. § 234 (256).— It may order the sheriff to repossess himself, for the purpose of se'ling it, of any attached property which may have passed out of his hand^ with- out having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property as upon an order of attachment. § 235 (257). — If several attachments be executed on the same property, the court, on the motion of any one of the attaching plaintiffs, may order a reference to a commissioner, to ascertain and report the amounts and priorities of the several attachments. § 236 (258). — The defendant may, at any time before judgment, after reason- able notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court be satisfied that the surety in the plaintiff's bond have died or removed from the state, or is not sufficient for the amount thereof, it may vacate the order of attachment and direct restitution of any proj)erty taken under it, unless in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff. ATTACHMENTS IN CERTAIN ACTIONS. § 237 (259). — ^Before a debt or liability, upon a contract, becomes due or matures, an equitable action, for indemnity, may be brought by a creditor against his debtor; by a surety against his principal; or by one who is jointly liable with another, for such debt or liability, against the latter — 1. If the defendant be about to depart from this state, and, with intent to de- fraud his creditors, have concealed, or removed from this state, his property-, or so much thereof that the process of court, after judgment, cannot be executed. 2. If there exist against the defendant any of the grounds for an attachment which are mentioned in subsections 3, 4, 5, 6, 7, and 8, of section 194. § 238 (260).— In such action, if the petition, verified by the oath of the plaintiff, show the nature and amount of the demand, and when it will mature, the court in which the action is pending, or any circuit judge, or the presiding judge of the county court, may grant — 1. An order for the arrest of the defendant, if the petition also state the facts mentioned in subsection 1 of section 237. 2. An attachment against the property of the defendant, if the jietition also show the existence of any of the grounds specified in subsection 2 of section 237. § 239 (261). — The order of arrest, or attachment, shall specify the sum for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's- claim and the probable costs of the action. § 240 (262). — Such order of arrest, or attachment, shall not be issued by the clerk until, if it be an order of arrest, bond be executed pursuant to section 154; nor, if it be an order of attachment, until bond be executed pursuant to section 198. § 241 (263). — ^1. The provisions of chapter 1 of title viii, subsequent to section 154, shall, so far as applicable, regulate arrests authorized by this aiticl©. KENTUCKY. 533 2. The provisions of the first article of this chapter subsequent to section 198, shall, so far as applicable, regulate attachments authorized by this article. § 242. — 1. Juds-ment may be rendered, in an action brought pursuant to section 237, concerning tlae alleged liability of the defendant, though it may not have matured. 2. Unless the creditor bring the action, he must be made defendant, but shall not be liable for costs. § 243. —If such action be brought by the creditor, and judgment be rendered against the defendant, it shall be, that he pay to the plaintiff the amount of the judgment; or, if the demand have not matured, that he pay said amount at the time of such maturity: and the court shall apply, in satisfaction of the judgment, moneys of the defendant under its control, though the demand have not matured. § 244.— If such action be brought by a surety against his principal, and judg- ment be rendered against such defendant, it shall be, that he pay to the creditor the amount of the judgment; or, if the demand have not matured, that he so pay said amount at the time of said maturity. § 245. — If such action be brought by one who is jointly liable with another, against the latter, and judgment be rendered against such defendant, it shall be, that he pay to the creditor so much of his demand as such defendant is equitably liable for, as between him and the plaintiff; or, if the demand have not matured, that he pay said amount at the time of said maturity. § 246. — In actions mentioned in section 244, or section 245, moneys of the de- fendant under control of the coui-t shall be applied in satisfaction of the judgment when the demand matures, or, with the creditor's consent, before it matures; and, until so api>lied, such moneys, and property of the defendant attached in the action, shall be under the control of the court. § 247. — In every action brought pursuant to section 237 — 1. A judgment against the defendant shall include a judgment for costs in favor of the plaintiff. 2. Such judgments maybe enforced as in equitable actions generally, exceijt that executions iipon judgments rendered pursuant to section 244 or section 245, shall be in favor of the plaintiff for the benefit of the creditor, and shall be so in- dorsed by the clerk. 3. In rendering judgment before matm-ity of the demand, the court shall make an aliatement, on account of interest; and shall make the judgment bear interest from the day of its rendition until it shall be satisfied, accorvling to the rate of such abatement. § 248. — No judgment shall be rendered pursuant to section 245, until the plaintiff shall have paid into court money enough to satisfy the residue of the creditor's demand; or shall have filed in court the creditor's receipt therefor, or his release or assignment to the plaintiff of his right to the demand, or to said residue. SPECIFIC ATTACHMENTS. § 249 (273). — In an action to enforce a mortgage of, or lien upon, personal prop- erty; or, for the recovery, partition, or sale, of such property; or, by a plaintiff having a future estate or interest therein for the security of his rights, if it satis- factorily appear, from a verified petition, or from affidavits, or the proofs in the cause, that the plaintiff has a just claim, and that the property is about to be sold, concealed, or removed from the state; or if the plaintiff state on oath that he has reasonable cause to believe and does believe that, unless prevented by the court, the property will be sold, concealed, or removed from the state, an attachment may be granted against the i^roperty. 230 (274).— In an action by a vendor of property fraudulently purchased, to vacate the contract and have a restoration of the jiroperty or compensation there- for, if the petition show such fraudulent purchase, and the amount of the plaintiff's claim, and be verified bj' his oath, an attachment against the property may be granted. § 251 (275).— The attachments in the cases mentioned in sections 249 and 250 may be gi-anted by the court in which the action is brought, or by the judge thereof, or any circuit judge, or the ijresiding judge of the county court, upon such terms and conditions as to security, on the part of the plaintiff, for the damages which may be occasioned by them, and with such directions as to the di.spositiou to be made of the attached property, as may be just and proper under the circum- stances of each case. 534 KENTUCKY. § 252 (27C). — In every case, tte plaintiff sliall be required to give bond, with sui-ety, for the damages to the defendant, in an adequate sum to be specified in the order prranting the attachment; and, if proper, the court or judge may direct that the defendant, or person in possession of the attached property, shall he permitted to retain it, upon giving such bond with surety, and for such simi, as the court or judge may prescribe. § 2D3 (277).— No order of attachment shall be issued by the clerk until the bond on the j:art of the ijlaintiff, required by the order of the court or judge, be executed in his office by one or more sufficient sureties of the plaintiff. § 254 (278). — The order of attachment shall describe the specific property against which it is issued, and the dkection of the court or judge, as to the disposition to be made of the attached propertj', shall be indorsed upon it. It shall be directed, ex ecuted, and returned, as other orders of a;ttachment. § 255 (279).— The sheriff shall make such disposition of the attached property as may be directed by the court cr judge; or, if there be no direction upon the subject, he shall safely keep the property subject to the order of the court. § 256 (281). — If, after an order of attachment against specific property has been placed in the hands cf the sheriff, such property be removed from the county, the sheriff may pursue and attach it in another county within twenty-four hours after such removal. § 257 (282).— If it appear from the return of the sheriff, or the affida-vat of the plaintiff, that any specific property, against which an order of attachment is issued, ■ has been concealed or removed by the defendant, the com-t may require him to attend and be examined on oath respecting such property, and may enforce its orders in this respect as in cases of contempt. § 258 (283, 284). — The provisions of the first article of this chapter, not incon- sistent with, nor inapplicable to, the foregoing sections of this article, shall regu- late the proceedings in cases of attachmerits against specific property. DISCHAEGE AND EErN-STATEMEXT OF ATTACHMENTS. § 259 (285). — An attachment obtained at the commencement of an action shall be sustained or discharged when judgment is rendered in the action, unless, for si;fficient cause, the court extend the time of deciding upon it. An attachment olDtained after the commencement of an action shall not be sustained until the defendant has had the time for controverting it provided in this chapter. § 2C0 (28G). — If judgment be rendered in favor of the defendant the attachment shall be discharged. § 201 (287). — If judgment be rendered in favor of the plaintiff, and no answer nor affidavit of the defendant be filed, denying the statements of the affidavit upon which the attachment was issued, nor motion made to discharge it, the court shall sustain the attachment. § 262 (288). — Upon an attachment being sustained, the property attached, or its proceeds, or the securities taken upon the attachment, shall, by appropriate orders, be applied in satisfaction of the judgment. § 263 (289). — The defendant may file his affidavit denying all or any of the material statements of the affidavit on which the attachment is issued; and, there- upon, the attachment shall be considered as controverted, and the affidavits of the plaintiff and defendant shall be regarded as the pleadings concerning the attach- ment, and have no other effect. If the attachment was obtained at the commence- ment of the action, the defendant may file his affidavit at such time after the levy of the attachment as is given by this code for filing his defense after the service of the summons — which period may be extended by the coiort for sufficient cause. § 264 (290). — The trial of the attachment shaU be by the court; and the wit- nesses shall be orally examined, except in cases wherein depositions might be read in an ordinary action. § 265 (291). — At any time before the attachment is sustained, the defendant, upon reasonable notice to the jilaintiff or his attorney, may move for its discharge; and the hearing of such motion may be postponed by the court, upon sufficient cause, from time to time; and upon the hearing, if the court be of opinion that the attachment was obtained without sufficient cause, or that the grounds of thd attachment, being controverted, are not sustained, it shall be discharged. KENTUCKY. 535 § 266 (292). — An order for the discharge of an attachment, made at or after the rendition of judgment in the action, shall be final; and cannot he reinstated as ia authorized by section 270; but shall be the subject of appeal, if the amount in con- troversy be such as to authorize an aiipcal. An order sustaining an attachment shall, in like manner, on the rendition of judgment in the action, be the subject of appeal. § 267 (293). — The reinstatement of attachments, as provided in section 270, shall only be binding on the inferior court until judgment; and when judgment is ren- dered in the action the inferior court shall make a disposition of the motion to discharge — which shall, in like manner, be final. § 268 (294). — 1. The defendant, on reasonable notice to the plaintiff, may, at any time before the term next after the levy of the attachment, move the judge of the court, in vacation, to discharge the attachment, on the ground of its having been issued contrary to the provisions of article one of this chapter; and the judge, on an inspection of the piapers in the action, or of authenticated copies of them, shall have the same power of discharging the attachment, by his ^\Titten order, filed by the clerk, as he woiild have in coiu't; and shall have like i^ower to permit amendments by the plaintiff. 2. A plaintiff may, by an amended affidavit, conforming to section 196, cure a defect in the affidavit upon which he obtained an attachment; or may state a ground of attachment not mentioned in his first affidavit, whether it may have existed when he filed the first affidavit, or may have arisen afterward; and may thus acquire a lien upon the attached property, if the proceedings conform to law in other respects: but such lien shall not affect a LonaJ'de right to, or lien i^revi- ously acquired upon, the property, by attachment or otherwise. § 269 (295). — A plaintiff who desires a reinstatement of an attachment may have an entry made upon the record, of leave to apply therefor within a reasonable time, not exceeding twenty days; whereupon, the order of discharge shall be made, to take effect at the end of the period so limited, unless the attachment be rein- stated in the meantime. § 270 (296). — A judge of the covu-t of appeals, if the plaintiff have secured the right to apply for the reinstatement of an attachment, may, upon an inspection of a copy of the record, including the evidence read upon the motion to discharge, reinstate the attachment; and, if the order of reinstatement be filed in the clerk's office of the court in which the action is piending, M^ithm the time limited as pro- vided in section 269, the execution of the order of attachment shall iiroceed; other- wise, it shall stand discharged, and restitution shall be made of any projierty taken under it. Ko lien on constructive service except by attachment, etc.— Sec 418. Equitable action on judgments enforced by — Sees. 439-443. May be issued on Sunday — Sees. 664, 665. Date of reception of writ to be indorsed — Sec. 674. Two justices may grant in absence of judge — Sec. 689. Action for \^Tongful attachment — General Stats. 1883, sec. 3. For rent — Sees. 5-26, p. 602; for taxes, sees. 1-7, p. 736. Exemptions— Stats. 1884, p. 75; and 1880, p. 172, sees. 142-145; Gen. Stats-, p. 431, sees. 7-16. Mechanics' liens — Stats. March 20, 1876. Against vessels — Gen. Stats., p. 984-5, sees.. 1-6; and Stats. 1880, p 175. 536 LOUISIAXA. LOUISIANA. [VooEHiEs' Code of 1875.1 OF ATTACHMENTS IN THE HANDS OF THIRD PERSONS. Art. 239. — An attacLrcent in the hands of third persons, is a mandate •which a creditor obtains from a competent judge, commanding the seizure of any prop- erty, credit, cr right, belonging to his debtor, in whatever hands they may be found, to satisfy the demand which he iatends to bring against him. Akt. 2-10. — A creditor may obtain such attachment of the jDroperty of his debtor, in the follo-wing cases: 1. When such a debtor is about leaving permanently the state, without there being a pocsibility, in the ordinary course of judicial proceedings, of obtaining or executing judgment against him previous to his departure, or M'hen such debtor has ah'cady left the state permanently. 2. When such debtor resides out of the state. 3. V/hen he conceals himself to avoid being cited and forced to answer to the suit intended to be brought against him. 4. Vv hen he has mortgaged, assigned or disposed of, or is about to mortgage, assign or dispose of his jiroperty, rights or credits, or some parts thereof, with intent to defraud his creditors or give an imfair preference to some of them. 5. When he has converted, cr is about to convert his property into money or evidences of debt, with intent to place it beyond the reach of his creditors. Aet. 241.— a creditor may, in like manner, obtain a mandate of seizure against all species of property belonging to his debtor, real or personal, whether it consists c;f credits cr rights of action, and whether such property be in the debt- or's possession or in that cf third i;ersons, by whatever title the same be held, either as deposit or placed under their custody. Ar.T. 242. — The property of a debtor may be attached in the hands of third persons bj- his creditor in order to seciire the pajTnent of a debt, whatever may be its nature, whether the amount be liquidated or not, jirovided the creditor, hi agent or attorney in fact, who prays for the attachment, state expressly and posi- tively the amount which he claims. Aet. 243. — A creditor wishing to have the property of his debtor attached, must demand it in a petition presented to a competent judge, and to obtain the issuance of .such attachment it shall be sufficient for the creditor to swear to the existence of the debt demanded by him, and that he verUy believes that the debtor has left the state permanently, or is on the eve of leaving the state permanently, cr that he resides out of the state, cr conceals himself, so that citation can not be served on him, or that he has mortgaged, assigned or disposed of, or is about to mortgage, assign or dispose of his property, rights or credits, or some part thereof, v.-ith intent to defraud his creditors or give an unfair preference to some of them, or that he has converted or is about to convert his property into money or evidences of debt with intent to place it beyond the reach of his creditors. Aet. 244. — That in cases where the debt or obligation is not yet due, such at- tachment may be granted, on the oath of the creditor, or of his agent or attorney in fact, if such creditor be absent; and it shall be lawful for any judge of compe- tent jurisdiction to order a %\Tit of attachment to issue, whenever the said judge shall be satisfied by the oath of the creditor or his agent or attorney, of the exist- ence cf caid debt, and upon the said creditor, his agent or attorney in fact, taking oath to the requisites contained in any one of the numbers one, two, three, four or tlve of article two hundred and forty, or swears that said debtor is about to remove his property out of the state before said debt becomes diie; and it chaU be sufficient for the oath required to be taken by the agent or attorney in fact to be to the best of his knowledge and belief. Aet. 245. — A creditor, his agent or attorney in fact, praying such attachment, must berJdes, annex to his petition his obligation in favor of the clerk i 'f the court be- fore which the writ issues for a sum equal to that which he claims, vrith the surety LOUSIANA. 537 of one poocl and solvent person residing wdthin the jurisdiction of tlie court to whicli the petition is presented, as a security for the pajTnont of sucli damages as such defendant may recover against him in case it should be decided that the attach- ment was wrongfully obtained. [Amended Stats. 1880, p. 21.] Art. 246. — If a creditor know or suspect that a third person has in his posses- 6ession property belonging to his debtor, or that he is indebted to such debtor, he may make .such a person a party to the suit, by having him cited to declare on oath what property belonging to the defendant he has in his possession or in what sum he is indebted to such defendant; even when the term of payment has not yet arrived. The person thus made a party to the suit is termed the garnishee. And whenever a party plaintiff in a cause has ai^plied for a writ of fieri facias against the defendant, and has reason to believe that a third person has jjroperty or effects in his possession, or under his control, belonging to the defendant, or is indebted to him, lie may cause such third person to be cited to answer under oath, such interrogations as may be propounded to him touching f:aid property and effects, or such indebtedness, in the same manner and with the same regulations as are provided in relation to garnishees in cases of attaclinicnt. Such third person shall thereupon be bound to answer in the same manner, and shall be liable in the same manner for his neglect or refusal to answer, and Ids an- swers may be disproved in the same manner as those of the garnishee. In case such thhd person shall confess in his answers that he has property or effects in his possession, or imder his control, belonging to the defendant, cr is indebted to him in any sum of money, the court shall order him forthwith to deliver up said prop- erty, to pay such sum (if the same be due, and if not, when the same shall be due), to the sheriff, and a copy of said order with a receipt of the sheriff indorsed thereon, shall be delivered to the said thh-d person, and shall be decreed equivalent to a receipt from the debtor himself. The property and e&'ects in the possession of a third person, belonging to the defendant, or debts due by him to such defendant, shall be decreed to be levied as by the sheriff, from the date of the service of the interrogatories on such person. And no seizure shall bind any property, money or effects, rights or claims in the hand of a garnishee, either under i^rocess of attachment, or fieri facias, unless service of the interrogatories has been personal upon such garnishee. Art. 247. — A creditor may likewise annex to his petition interrogatories on facts and articles, to be answered categorically under oath by such garnishee, as to the natm-e of the property belonging to the defendant w"hich may be in his possession, and as to the amount of the sums for which he may be indebted to him. And in case a garnishee acknjwledges himself indebted to the defendant, it shall be lawful for the judge to order said garnishee to be held to bail in the same case as if he was the original defendant, unless he prefers depositing the money in court. Art. 248. — If a creditor who has filed interrogatories on facts and articles to be answered by a garnishee, declare upon oath that he verily believes that such gar- nishee has in hands, propei ty or effects belonging to his debtor, or is indebted to the defendant in any sum of money, whether the same be due or not, and that such garnishee is about to depart from the state without having filed his answers to such interrogatories, such garnishee may be arrested and confined imtil he gives good and sufficient security, in a sum exceeding by one-half the amount claimed by the plaintiff, that he shall appear whenever cited so to do before any judge or justice of the peace, to answer the interrogatories put to him, and that he shall answer them in the manner provided in the preceding article. Art. 249. — The garnishee may, nevertheless, be discharged, without being obliged to give security, if he prove to the satisfaction of the court which had given the order of arrest, after notice in writing having been served on the defend- ant of his intention of making such i^iroof, that he has no intention of leaving the state; or, if he immediately, in the jDresence of the court, answer in writing and pertinently the interrogatories i^ut to him, and file such answer in the office of the clerk of the com:t. Art. 250. — A garnishee may be made party to a suit, and be cited to answer interrogatories on facts and articles, either by joraying to that effect in the original petition, or by a supplemental petition filed at any stage of the suit previous to ren- dering the judgment. Art. 2-j1. — When an order to attach property in the hands of a third person has been given by a court, the clerk of such court shall deliver or send to the fiheriff a copy of such order as well as of the petition, together with a citation to 538 LOUISIANA. the person made party to tlie suit to answer sucli petition ■within the usual delay granted in ordinary cases. Art. 252.— If there be a garnishee made party to the suit, the clerk must de- liver or send to the sheriff a copy of the petition and of the interrogatories annexed to it, if there be such, with a sxunmons directed to such garnishee to answer the same within the delay given in ordinary suits. Art. 253. — The sheriff must serve such citation; 1. On the person of the defendant, or at his domicile if he has one in the place, or if he be about to leave the state; 2. At the place where the defendant has resided last, if he had a domicUe in the place, and conceal himself to avoid being cited. Art. 254. — If, on the contrary, the defendant has no known place of residence, conceal his person, be absent or reside out of the state, in such case the sheriff shall serve the attachment and citation by affixing copies of the same on the door of the room where the court in which the siut is pending is held. Art. 255. — In the latter case the sheriff must keep the copy of the petition, in order to deliver the same to such party should he appear, or to the advocate appointed to defend him, in his absence. Art. 256. — The sheriff, as soon as he shall have served the copy of the petition, in the manner prescribed in the preceding articles, and notified the garnishee of the same in the form required to be observed as relates to garnishees, if there be such made party to the suit, must seize and detain so much of whatever property the debtor may possess within the parish over which his powers extend, whether it consists of goods, effects, rights, credits, or right of actions, as may be equal in value to the amount claimed in the suit; and he mxist immediately after deliver or send to the clerk of the court by which the attachment was granted, his return in writing, stating the manner in which he has executed the same. Art. 257. — The sheriff must take charge and keep possession of all the goods and effects which he may have attached, with the exception of such sum which may be due by the garnishee, and he shall make, in the presence of two witnesses, an exact and miaute inventory of the same, which he shall be bound to deliver or send, an- nexed to his return, to the office of the clerk of the court whose mandate he has executed. Art. 258. — If the defendant thus made a party to a suit appear, after having been served with the citation, or prove in a summary way, after having given due notice in writing to the adverse party, that the allegations on which the order for attachment had been obtained were false, such attachment shall be dissolved, and the party will be allowed to proceed in his defense as in ordinary suits. Art. 259. — The defendant, if he appear either in person or by his advocate, may, moreover, in every stage of the suit, have the property attached released by delivering to the sheriff his obligation for the sum exceeding by one half the value of the i^roperty attached, with the surety of a good and solvent person residing within the jurisdiction of the court where the action was brought, that he will satisfy such judgment, to the value of the property attached, as may be rendered against him in the suit pending. \Yhen the defendant has given such obligation with security, the sheriff shall be bound to return the bond so taken by him into court in the same manner as is provided for bail bonds; and the plaintiff shall have the same right and same time to object to the insufficiency of the security on such bond as to the secm-ity on bail i)onds; and in case the securitj' on said bond should be declared insufficient, the sheriff shall be liable as surety on the said bond, and the said act of surety shall be assigned by the sheriff to the plaintiff in same manner as bail bonds. And when the defendant fails to satisfy the judgment rendered against him, the plaintiff may on return of the sheriff that no property has been found, and on exhibiting to the court said obligation duly transferred to him, obtain judgment against the siu-ety on said obligations, upon motion, after ten days' previous notice to said surety, which motion shall be tried summarily and without the intervention of a jury, unless the said surety shall allege under oath, that the signature to the bond purporting to be his, is not genuine, or that judgment has been satisfied. Art. 260. — If, on the contrary, the party fail to appear, either in person or by his attorney, the coiu-t shall appoint an advocate to represent him and defend the suit, and a reasonable delay shall be given to such advocate to enable him to com- municate -nith the party he represents, in order to obtain the information neces- sary to defend the suit. h LOUISIANA. 539 Art. 261. — If the property attached and whicli has been seized, be of a perish- able nature, and subject to be lost or deteriorated dui'ing the pendency of the suit, the court may, at the request of the plaintiff, order the sale of such property at Eublic auction, after the usual advertisement, and after the same has been appraised y two experts appointed for that pui-pose, in order that the proceeds of such sale may remain in deposit in the hands of the sheriff until the definitive decision of the suit. Art. 2C2. — The garnishee who has been cited in a suit, must put in his answer within the usual delay, declaring in the same, fau'ly and ti'uly, what property Ijc- longing to the defendant he has in his possession, by whatever title he may f)os- sess the same, as well as what sums he may owe to such defendant, whether the same be due or not yet due, and if interrogated on facts and articles, he must answer under oath, clearly and categorically, each question put to him touching such matter. Art. 263. — If the garnishee, to whom interrogatories have been put, refuse or neglect to answer the same under oath in the delay of the law, such refusal or neglect shall be considered as a confession of his having in his hands property belonging to the debtor, sufncient to satisfy the demand made against such debtor, and judgment shall be rendered against him for the amount claimed by the defend- ant, with interest and costs. Art. 2G4. — Although the answer of the garnishee to the question put to him, be made under oath, the plaintiff may, nevertheless, show the same to be false, either by positive written proof, or by the oath of two witnesses worthy of belief, in the same manner as when interrogatories on facts and articles have been Eut to a party in a suit; and if it be proved by such evidence that tlie garnishee as in his hands property or effects belonging to the party against whose property the attachment has been granted, or that he be indebted to him in any amount, such property and effects, as well as such sum as may be due by him, shall be subject to satisfy such judgment as may be rendered against the defendant. Art. 2G5.— In suits where attachment is demanded after answer fded, or if the defendant has failed to answer, the plaintiff must proceed in the ordinary form to obtain judgment, and on execution of the same, have so much of the property attached and sold as will suffice to satisfy the judgment. Art. 26G. — If the debtor whose property has been attached has filed his answer? or has given instruction to the advocate appointed by the court to defend him, the act of surety given by the plaintiff shall be canceled as soon as judgment shall have been rendered in favor of such plaintiff. But if the residence of the debtor whose property has been attached be un- known, and the advocate appointed to defend him has been unable to communicate with him, the act of surety so given by the jdaintiff shall continue in full force one whole year after the date of the judgment given in favor of the plaintiff, in order to secure the recourse which the debtor may have, as provided in the following article. Art. 2G7. — The absent debtor, against whom judgment has been so rendered, may, within two years after such judgment, obtain the reversal of the same, if he prove that the distance at which he lived from the place where the attachment was obtained, has prevented his being appraised of the proceedings had against him, and that the plaintiff has availed himself of his absence to obtain paA'ment of a debt either already paid in totality, or partly discharged, or which did not exist. Art. 2G8. — In case such evidence be shown by the party whose property has been attached, judg-ment shall be given against the plaintiff in the first suit, not only for such amount as he may have recovered above the sum which was really due to him, but also for such damages as may have been sustained by the defend- ant; but as relates to the security, such action, if brought against him, must be instituted within the year following the judgment wrongfully obtained. Twenty days allowed to plaintiff to disprove or traverse the answers of gar- nishee — Stats. 1877, p. 45. Exemptions — Arts. 644, 645. Before justices of the peace— Sees. 1116, 1123, 1126, 1127, Stats. 1882, p. 42, Intervention in attachment — Stats. 1870, p. 92. Professional services — Arts. 284-293. 540 MAINE, MAINE. [Revised Statutes, 1884.] CHAPTER 81. ATTACHMENT OF PERSONAL PROPERTY. §24. — An goods and chattels may be attached and held as security to satisfy the judgment for damages and ccsts which the plaintiff may recover, except such as, from their nature and situation, have been considered as exempt from attach- tnent according to the principles cf the common law as adopted and practiced in the state, and such as are hereafter mentioned. Such personal property may be attached on writs issued by a trial justice, or judge of a police or municipal court in any coiuity, when directed to the proper officer. § 25. — When hay in a barn, horses, or neat cattle are attached, and are suffered to remain by permission of the officer, in the defendant's possession on security given for their safe keeping and delivery to the officer, they are not subject to a second attachment to the prejudice of the first. § 26. — When any personal property is attached, which by reason of its bulk or other special cause cannot be immediately removed, the officer may, within five days thereafter, file in the office of the clerk of the town, in which the attachment is made, an attested copy of so much of his retm-n on the Vv'rit, as relates to the attachment, with the value of the defendant's property which he is thereby com- manded- to attach, the names cf the parties, the date of the writ, and the court to which it is returnable; and such attachment is as effectual and valid, as if the prop- erty had remained in his possession and custody. The clerk sh.all receive the copy, noting thereon the time, enter it in a suitable book, and keep it on file for the in- spection of those interested therein, for which he is entitled to ten cents. When the attachment is made in an uniucorjorated place, such copy .shall be filed and recorded in the ofiice of the clerk of the oldest adjoining town in the county. § 27. — When the share or interest of any person in an incorporated company is at- tached on mesne process, an attested copy cf the writ with a notice thereon of the attachment, signed by the of^cer, .'^hall be left with the clerk, cashier or treasurer of the company; and such attachment is a lien on such share or interest, and on all ac- cruing dividends; and if the officer having the writ exhibits it to the cfiiccr of the company having custody of the accoimt of shares or interest of the stockholders, and recaiests a certificate of the number held by the defendant, and such company officer unreasonably refuses to give it, or willfully gives him a false certificate thereof, he shall pay double the damages occasioned bj' such refusal or neglect; to be recovered against him in an action on the case by the creditor. § 28. — The franchise and all right to demand and take toll, and all ether jirop- erty of a corporation, may be attached on mesne process, and the attaching officer shall leave an attested copy of the writ with a notice of the attachmtnt thereon, signed by him, with the clerk, treasurer, or some ofiicer or member of the corpora- tion, as provided in section nineteen. § 29. — Diff'erent attachments in one or more counties may be made successively upon the same writ, and by different officers, before service of the summons upon the person whose property is attached; but none after such service. Personal propei-ty attached by a coroner may be again attached by a sheriff, deputy sheriff, or constable, subject to the former attachment, by giving notice thereof tothe coroner and furnishing him with a copy of the precept within a reasonable time, and so property attached by the last-named officers may be again attached by a coroner in like manner; and personal property attached by a constable may be again attached by a coroner or by a deputy in the same manner. WHEN PERSONAL PROPERTY ATTACHED MAY BE SOLD ON WRIT. § 30. — Whien personal property is attached, the officer, by consent of the debtor aaad creditor, may sell it on the writ before or after entry, observing the directions MAINE, 641 for selling' on execBtion; and if it is atteched hj different officers, it may he so sold by the first attaching officer; or in case of his death, if he was a dejmty sheriff, by the sheriff or another deputy by -RTitten consent of the debtor and all attaching creditors; and the proceeds, after deducting necessary expenses, shall be held by the first attaching officer or the sheriff, subject to the successive attachments, as if Bold on execution. § 31. — When personal property liable to perish be wasted, greatly reduced in value by keeping, cr kept at ^reat expense, is r.ttached, and the parties do not con- sent to a sale thereof, the same may be examined and appraised before or after entry of the action, as follows: § 32. — At the request of either party interested, the officer shall grive notice of the time and place of appraisal, with the names of the parties to the action, and of the supi30sed owner of the property, by posting notices thereof in two or more pub- lic places in the town where it was attached, or by giving personal notice thereof to all parties to the suit in which it is attached, four days at least before the ap- praisal. He shall prepare a schedule of the property, and cause three disinterested appraisers, acquainted with the nature and ^ alne of such goods, to be appointed, one by the creditor, one by the debtor, and one by himself; and if the creditor or debtor neglects to appoint, he shall ajtpoint one in his behalf. § 33. — The appraisers_ shall be sworn by the officer without fee, or by a justice of the jieace or trial justice, and shall examine such property; and if, in theiropin- ion, any part of it is liable to perish, be wasted, be greatly reduced in value by keeping, or kept at great expense, they shall appraise it at its value in money. § 34. — Thereujion, at the request of the debtor, the property shall be delivered to him, on his depositing with the officer the aiJi-raised value thereof in money, or giving bond to him with two sufficient sureties, conditioned to pay him said value, or satisfy all judgments recovered in the suits in which the property is attached, if demanded before the attachments expire, or within thirty days after the time when the creditors might demand pajTnent cut of the proceeds of the property if sold as hereinafter provided; and he shall ret\nn such bond with the writ on which the first attachment is made, with a return of his doings in relation thereto. § 35. — If the bond is forfeited, any one or more of the creditors may bring an action of debt thereon in the name of the officer, and shall indorse their names on the writ. If judgment is for the defendants, execution for costs shall be issued against them jointly, or one against each for his proportion, as the court thinks just. If judgment is for the plaintifi's, the money recovered shall be applied to pay their necessary expenses in prosecuting the suit, not reimbursed by costs re- covered of the defendants; and the residue belongs to the attaching creditors ac- cording to their priorities; but no execution shall be awarded for the use of any creditor, without reserving what may be due on any prior attachment, whether the creditor therein is a party to the suit on the bond or not. § 36. — An attaching creditor not a party to such suit, on his motion before final judgment therein, may become a party on such terms as the court orders, as if he had been a i>arty originally, and his name shall then be indorsed on the ■vvrit; or he may bring scire facias on the judgment and recover the sum due him on the bond. But no creditor whose cause of action on the bond accrued more than a year jjrior to the suit thereon, shall have judgment or execution therein, nor bring such scire facias unless within a year after the cause of action accrued. § 37. — If such property, after its appraisal, is not delivered to the debtor as aforesaid, the officer shall sell it, make return of all his doings relating thereto, and hold and dispose of the proceeds as in a sale by consent. § 38. — The proceeds of such property sold by consent or after an appraisal, may be further attached by the officer as property of the defendant while remaining in his hands, and held and dispo.sed of as if the pro^jerty itself had been attached; but after retaining enough to satisfy all attachments existing thereon at any time, nothing herein shall prevent his paying the sui-pjlus to the debtor. § 39. — When goods which are sold, or appraised and delivered to the debtor in the manner before provided, have been attached by several creditors, any one of them may demand and receive satisfaction of his judgment, notwithstanding any prior attachments, if he is otherwise entitled to demand the money, and a sufficient sum is left, of the proceeds of the goods, or of tlieii- appraised value, to satisfy all prior attachments. § 40. — When personal property, attached on mesne process, is claimed by a person not a party to the suit, he may replevy it within ten days after notice given 5 42 MAINE. liim therefor by the attaching creditor, and not aftenrard; and after that, the at- taching oiEcer, ■without impaii-ing the rights of such person, at the request and on the z-esponsilility of the plaintiff, and with consent of other attaching creditors, if any, may sell it at auction as on execution, unless the debtor claims it as his, and forbids the sale. HOW PEOPEETT OF PAET OWNEES, WEEN ATTACHED, MAT BE DISPOSED OF. § 41. — When personal property is attached in a suit against one or more part owners thereof, at the request of another part owner, it shall be appraised as here- inbefore provided, one appraiser to be chosen bj' the creditor, one by the officer and the other by the requesting part ov,-ner; and thertupon it shall be delivered to such part owner en his giving bend to the cfficer with two sufficient sureties, conditioned to restore it in like good order, pay the appraised value of the defendant'.? share therein, or satisfy all judgments recovered in the attaching .suits, if demanded within the time during which it would be held by the attachments. Such bord shall be returned with the writ, with the doings of the officer thereon, and if for- feited, like proceedings may be had as are provided in section thirty-five. § 42.— If any part of such appraised value is so paid, the defendant's share of the property is thereby pledged to the party paying; and if not redeemed he may sell it, and account to the defendant for the balance, if any; but if the attachment is dissolved, he shall restore such share to the defendant or to the attaching officer for him. ATTACHMENT OP PEOPERTY MORTGAGED OR PLEDGED, § 43. — Personal property not exempt from attachment, mortgaged, pledged, or subject to an J- lien created by law, and of which the debtor has the right of re- dempition, may be attached, held, and sold as if unincumbered, if the attaching creditor first tenders or pays to the mortgagee, pledgee, or holder, the full amount unpaid on the demand so secured thereon. § 44.^"^Tien personal property, attached on a writ or seized on execution, is claimed by virtue of such mortgage, pledge, or lien, the claimant shall not bring an action against the attaching cfficer therefor until he has given him at least forty- «ight hours' written notice of his claim and the trae amount thereof; and the offi- cer or creditor may, within that time, discharge the claim by paying or tendering the amount due thereon, or he may restore the prop)erty. § 45. — The officer may give the claimant written notice of his attachment; and if he does not, within ten daj's thereafter, deliver to the cfficer a true account of the amount due on his claim, he thereby waives the right to hold the property thereon; and if his account is false, he forfeits to the creditor double the amount of the excess, to be recovered in an action on the case. § 46. — If the creditor redeems such property, and it is subsequently sold by the officer, he shall, from the proceeds, first pr.y to the creditor the amount, with in- terest, paid by him to redeem, and apply the balance, if any, to the debt on which it was attached or seized on execution. WHEN ATTACHING OFFICER DIES, OR IS REMOVED, OR PROPERTY IS EEPLETIED. § 47.^ — Personal property attached by an officer and in his possession, and his clainj for damages when it is taken from him, remain subject to such attachment in case, of his death, as if he were alive, and ai'e not assets belonging to his estate. § 48.— Such property replevied from the officer is liable to further attachments, as if in his possession; and if there is judgment for a return in the replevin suit, the pilaintift' and his sureties are liable for the whole property or its value, although some attachments were made after the replevin. § 49. — If an attaching officer dies or is removed from office ■while the attachment is in force, whether the property was in his possession or not, it and its proceeds may be further attached by any other officer, the same as it might have been by the first officer. Such' further attachments shall be made by a return setting forth an attachment in common form and by whom the property was previously attached; and if the goods have not been replevied, by leaving a certified copy of the vncit, omitting the declaration, and of the return of that attaclunent, ■with the former officer, if living, or if dead, ■with his executor or administrator, or if none has been appointed, with the person having possession of the goods; or if the goods have been replevied, and the officer who made the original attachment is dead, such copy shall be left with the plaintiff in reisle^rin, or his executors or administrators; and the attachment shall be considered as made when such copy is delivered in either of the modes before described. MAINE. 543 § 50. — GrOod3, taken by replevin from an attaching- officer, shall not be further attached r,s property of the original defendant in any other manner than that pro- vided in the two preceding sections, so lon;^ as they are held by the person who replevied them, or by any one holding under him, unless the original defendant has acquired a new title to the goods. ATTACHMENTS AND ACTIONS WHEN A PARTY DIES. §51. — The attachment of personal property continues in force after the death of the debtor aa if living, unless before a sale thereof on execution, his estate is decreed insolvent; but it is dissolved by such a decree, and the ofiicer, on demand thereafter, shall restore such property to the executor or administrator on payment of his legal fees and charges of keeping. §52. — If, after such decree and before such demand, the officer has sold the property on execution, he is liable to the executor or administrator in an action, not of trespass, but for money had and received, for the proceeds, if in his hands; but if paid over to the judgment creditor, such creditor is so liable; and he shall not sat o'l any demand which he has against the executor or administrator, or against the estate of the deceased. § 5.3. — After the death of a defendant and before a decree of insolvency on his estate, the executor or administrator may demand of the attaching oiScer a certi- fied copy of liis return on the writ, with a description of the property attached, so that it may be described in the inventory of the estate subject to the attachment, and the appraisers may demand a view thereof so as to appraise it; and if the officer fails to comply with either demand, he forfeits to the executor or administrator not less than ten nor more than thirty dollars. § 51:. — An action, brought by an officer for taking from him personal property attached by him, does not abate by the death of either party; but mr,y be prose- cuted by or against his executor or administrator. If the officer is dead and his representative recovers the property or money, it shall be held and applied as if he were alive ; but if he fails to recover, he shall return the property or x^ay the dam- ages awarded in full, although the estate of the deceased is insolvent. § 55. — If an officer authorized to serve precepts dies pending a suit for or against him for official neglect or misconduct, and no administration is granted on his estate within three months thereafter, the party for whose benefit the suit is so prosecuted or defended, may carry it on in his own name by entering his appear- ance and giving security for costs, as the court directs. ATTACHMENT OF EEAL ESTATE. § 56. — All real estate liable to be taken in execution as provided in chapter seventy-sizi; the right to cut and carry away grass and timber from land sold by this state or Massachusetts, the soil of which is not sold; and all other rights and interests in real estate, may l;ie attached on mesne process,- and held to satisfy the Judgment recovered by the plaintiff; but the officers need not enter on or view the estate to make such attachment. § 57. — If a municipal or police court has a regular seal, and a recorder, and has jurisdiction in any action where the amount of damage claimed exceeds twenty dollars, real estate and interests in real estate attachable on ^^'rits from the su- preme judicial court may be attached on writs, or taken on executions from such court, where the amount of the debt or damage, exclusive of costs, exceeds*twenty dollars. § 58. — When a right of redeeming real estate mortgaged or taken on execution is attached, and such estate is redeemed or the incumbrance removed before the levy of the execution, the attachment holds the premises discharged of the mort- gage or levy, as if they had not existed. § 59. — No attachment of real estate on mesne process creates any lien thereon, unless the nature and amount of plaintiff's demand is set forth in proper counts, or a specification thereof is annexed to the writ, nor unless the officer making it, within five daj-s thereafter, files in the office of the register of deeds in the county or district in which some part of said estate is situated, an attested copy of so much of his return on the writ as relates to the attachment, with the value of the defendant's jiroperty which he is thereby commanded to attach, the names of the parties, the date of the writ, and the court to which it is returnable. If the copy is not so filed within five days, the attachment takes effect from the time it is filed, if before the entry of the action, although it is after service on the defendant. No seizure of real estate on execution where there is no subsisting attachment 544 MAINE. thereof made in the suit in which such execution issues, creates any lien thereon, unless the oiriccr making it, within five days thereafter, files in the office of the register of deeds in the county or district in which some part of said estate h situ- ated, an attested copy of so much of his return on said execution as relates to the seizure, with the names of the parties, the date of the execution, tlio amount of the debt and costs named thei-ein, and the court by which it was issued. If the copy if not so filed, the seizure takes effect from the time it is filed. And such proceedings shall be had in such office, by the register of deeds, as are prescribed in chapter seven: Provided, hoiixvcr, that all recorded deeds take precedence over im- recorded attachments and seizures. § CO.— When a right to redeem real estate under mortgage, levy, sale on execu- tion or for taxes, cr a right to a conveyance by contract, is attached, the plaintiff in the suit, before or after sale on execution, may pay or tender to the person en- titled thereto, the amount required to discharge such incumbrance or fuluil such contract; and thereby the title and interest of such person vest in the plaintiff, subject to the defendant's right to redeem; but such redemption by the defendant or any person claiming under him by a title subsequent to the attachment, shall not aiicct such attachment, but it shall continue in force, and the prior incum- brance, as against it, shall be deemed discharged. § 61. — Such person, on written demand, shall give the plaintiff a true written statement of the amount due him; and on payment or tender thereof, shall release all his interest in the premises; and if he refuses, he may be compelled to do so by a bill in equity. But such release shall recite that under authority of this and the preceding section, the plaintiff had attached the premises and paid or tendered the amount due the grantor; the plaintiff shall thereupon hold such title in trust for the defendant, and subject to his right of redem2:>tion, without power of aliena- tion until after one year from the termination of said suit, or from the sale of the equity on any execution recovered therein. HOW A2fD WHEN ATTACHJIEXT3 ARE DISSOLVED. § G7. — An attachment of real or personal estates continues for thirty days and no longer, after final judgment in the original suit, and not in review or error; except attachments of equities of redeeming real estate mortgaged or taken on execution; or equities of redemption sold on execution; or an obligee's conditional right to a conveyance of real estate on execution; or property attached and replevied; or property attached belonging to a person dying thereafter, or specially provided for in any other case. § GS. — All attachments of real or personal estate are dissolved by final judgment for the defendant; by a decree of insolvency on his estate before a levy or sale on execution; by insolvency proceedings commenced within four months, as provided in section thirty-three of chapter seventy; by a reference of the suit and all demands between the parties thereto, by a rule of court, and judgment on the report of the referees; and by an amendment of the declaration, by consent of parties, so as to embrace a larger demand than it originally did, and judgment for the plaintiff thereon, unless the record shows that no claims were allowed the plaintiff not originally stated in the writ. § G9. — When an attachment is dissolved by judgment for the defendant, the clerk of the court, on pajanent of twenty-five cents, shall give any person applying therefor a certificate of that fact, whieh the register of deeds shall note on the margin of the record of the attachment; and before or after judgment, the plaintiff in sucii suit may cause a discharge of such attachment, signed by him, to be en- tered on the margin of the recoi-d thereof; or he may give a certificate, signed, sealed, and acknowledged by him, that such attachment is, in whole or in part, discharged; which the register of deeds shall record, with a reference thereto on the margin of the record of the attachment, for which he is entitled to twenty-five cents, and for entering such discharges, twelve cents each. § 70. — Any defendant, whose interest in real estate is attached on mesne i)roc- ess, may petition in writing to a justice of the supreme judicial court, in term time or vacation, setting forth the names of the parties to the suit, the court and county in which it is returnable or pending, the fact of the attachment, the particular real estate, and his interest therein, its value, and his desire to have it released from the attachment. Such justice shall issue a written notice, which shall be served on aU parties to the suit living in the state, including trustees mentioned in section sev- enty-five, and on the plaintiff's attorney, ten days at least before the time fixed therein for a hearing. § 71. — If, at t'ae hearing, such justice finds that such interest is worth as much as the amount ordered in tlie writ to be attached, lie shall order such defendant to MAINE. 545 give bonds to the i)laintiff, with sufficient sureties, conditioned to pay the judg- ment recovered by the jilaintifiF, with his costs on the petition, within thirty d.ij-3 after judgment. If he finds that it is worth less, the bond shall be conditioned to pay the value of such interest so found and costs on the petition, within said time. § 72. — The petition and proceedings thereon shall be filed in the clerk's office in the county where the action is pending or returnable, and recorded as a part of the case; and the bond, when api^roved by such justice, shall also be filed therein for the use of the plaintiff. § 73. — The clerk shall give the petitioner an attested copy of the petition and proceedings, with a certificate, under seal of tlie court, attached thereto, that such bond has been duly filed in his office; and the recording of such copy and certifi- cate in the registry of deeds in the county where such real estate or interest therein lies, vacates the attachment. §74. — When personal property is attached and actual possession is taken by the attaching officer, the same ])roceedings may be had, as provided in the four preceding sections, and the officer shall also be notified of the hearing; and the de- livery to him <:if the copy and certificate mentioned in the preceding section va- cates the attachment, and he shall return the property to the petitioner on demand. When the property attached is stock in a banking or other corporation, or is such that the attachment must be recorded in the to-\^Ti clerk's office, such copy and cer- tificate shall ]je filed with the officer of such corporation or with the town clerk with whom the attachment is filed; and thereby the attachment is vacated. § 75. — In cases of foreign attachment, the same proceedings originated by any principal defendant may be had, except that the bond to the plaintiff shall be con- ditioned to i^ay the amount, if any, which he may finally recover against the trustees, with costs on the petition, within thirty days after judgment, not exceed- ing the amoimt of the judgment against the principal defendant. The justice shall also require the petitioner to give bond to each trustee named in the petition, with sureties, in a sum sufficient to protect him against any judgment recovered by the plaintiff and paid by him, and his legal costs in the suit, and the costs allowed him by such justice at the hearing on the petition, if he appears. Such bonds, when approved by such justice, shall be filed in the clerk's office for the use of the trustees. The delivery of the copy and certificate, hereinbefore mentioned, to the trustees, vacates the attachment of any goods, effects, or credits in their hands be- longing to the petitioner. § 76. — The clerk is entitled to two dollars for recording the petition and pro- ceedings, and making the copy and certificate; the register of deeds, seventy-five cents for recording the same; and the officer or clerk, twenty cents for each filing and necessary certificate thereof; and the party finally i^revailing in the suit shall recover the costs of these proceedings, taxed as costs of court in other cases, and certified by such justice, and execution shall issue therefor. Attachment not revived, when — Page 69.5, sees. 7, 8. May issue against new- parties — Sec. 1.3. Not affected by change of venue — Sec. 14. Grantee may defend suits in — Sec. 19. Subsequent attaching creditors may defend suits — Sees. 4G-51. In Bankruptcy — Sec. 53. Trustee process — Page 731, sees. 1-90. Corporate franchise subject to attachment— Page 402, sees. 20 and 22. Shares in aqueduct — Page 503, sec. 6. Steamboats — Page 496, sec. 6. Lien on share in partition — Page 752, sec. 28. Liens enforced by— Page 767, sees. 8-42; and Stats. 1885, p. 229. Fences — Page 268, sec. 6. Warehouse — Page 332, sees. 6, 7. Of insurance company — Page 447, sec. 28. In forcible entry and detainer — Page 787, sec. 4. Waste by owner of attached real estate — Page 789, sees. 7-13. Eeplevin of goods attached— Pages 793-4, sees. 15, 16. II Attachment— 10 546 MARYLAND. MARYLAND. [Revised Code of 1878.] ATTACHMENTS AGAINST NON-RE&IDENTS AND ABSCONDING DEBTOES. § 1. —Every person, and every body corporate that has the right to become a Elaintiff in any action or jiroceeJing before any judicial tribunal in this state, shall ave the right to become a i>laiutifi' in an attachment against a non-resident of this state, or against a person absconding. § 2. — Every person who doth not reside in this state, and every person who ab- sconds, may be made a defendant in an attachment; and any corporation not char- tered by this state, or any coi-poration chartered by this state, but not having the president or a majority of the directors or managers thereof residing in this state, may be made a defendant as other non-residents. § 3. — Every person who shall actually run away, abscond, or fly from justice, or secretly remove himself from his place of abode ^\-ith intention to evade the pay- ment of his just debts, or to injure or defraud his creditors, shall be considered as having absconded; and an averment in the oath of the plaintiff against a person as having absconded shall, without other words, be a sufficient averment of any such conduct. § 4. — No attachment shall issue (except as hereinafter mentioned), unless there be an affidavit that the debtor is bona fide indebted to the creditor in the sum of ■ — , over and above all discounts; and at the time of making the affidavit the creditor shall produce the bond, account, or other evidences of debt, by which the said debtor is so indebted; and shall also make affidavit that he knows, or is credi- bly informed, and verily believes, that the said debtor is not a citizen of this state, and that he doth not reside therein; or if the said debtor resides in this state, that he doth know, or is credibly informed, and verily believes, that the said debtor hath absconded. § 5. — The affidavit required by the preceding section may be made before any justice of the i^eace, or any judge of a com-t of law of this state, or before any judge of a court of record of the United States, or of any state, district, or territory of the United States, or before a commissioner appointed by the state to take ac- knowledgments of deeds, or before a notary public, or if out of the United States, before a consul or vice-consul of the United States. § 6. — If the affidavit is made in this state, and before a justice of the peace, or judge in any other county than that in which the attachment is to be issued, there shall also be a certificate under the seal of the court from the clerk of the circuit court of the county in which it is made, that the justice of the i^eace or judge be- fore whom the said affidavit was made, was, at the time the same was made, a justice of the peace or judge, or the same may be certified by the clerk of the supe- rior com-t of Baltimore city, when tlje affidavit is made in that city; or if the affi- davit be made out of the state, and before a judge of a court of record, there shall be a certificate from the clerk of said court, under the seal thereof, that at the time the same was made he was a judge of said court, and that the same is a court of record; or if made before a commissioner of this state, the same shall be certified under his official seal. § 7. — The affida^dt required by the i^receding sections maybe made by the cred- itor, or one of them, where there are more than one, or by the agent of the creditor or creditors, by the president, cashier, or other officer of a corporation, by any ex- ecutor or administrator, or where the attachment is to be issued in the name or in behalf of an infant, by the guardian of such infant, or by the infant himself, or by the husband of a feme covert, or by the committee of a lunatic. § 8. — Upon the affidavit being made, and the proofs produced before a justice of the peace, or judge of the county or city where the attachment is to be issued, he shall forthwith issue his warrant to the clerk of the circuit court or the superior court of Baltimore city, or court of common pleas, as the case may require, to issue MARYLAND. 547 an attachment against the lands, tenements, goods, chattels, and credits of the said debtor, and upon the receipt of said warrant, with the proofs on which the same was granted, and not otherwise, the clerk shall issue such attachment. § 9. — If the affidavit was made before any person authorized to take the same, other than a judge or justice of the comity or city where the attachment is to be issued, then, upon producing the same, certified, ■wdth the proofs as heretofore required, before a justice of the peace of the county or city where the attachment is to be issued, he shall forthwith issue his warrant to the clerk to issue an attach- ment in the same manner as if the affidavit had been made before said justice; and the clerk, iipon receipt of the warrant, affidavit and proofs, shall issue an attach- ment, as required by the preceding section. § 10. — There shall be issued •with every attachment a writ of summons against the defendant, and a declaration or short note expressing the plaintiff's cause of action shall be filed, and a coi)y thereof shall be sent with the writ to be set up at the court-house door by the sheriff or other officer. § 11. — Any Icind of property or credits belonging to the defendant, in the plaint- iff's o'mi hands, or in the hands of any one else, may be attached; and credits may be attached which shall not then be due. § 12. — Every attachment issued under the preceding sections shall contain a clause commanding the sheriff or other officer, at the time of executing the said attachment, to make kno'wn to each person in whose hands or possession the lands, tenements, goods, chattels, and credits so attached are, if to him or them it shall seem meet, to be and appear on the return of such attachment before the court out of which it is issued, to show cause why such lands, tenements, goods, chattels, or credits so attached, should not be condemned, and execution thereof had and made as in other cases of recoveries and judgments given in courts of record. [Amended 1880, p. 40.] § 1.3. — If neither the defendant nor the garnishee on whose hands the property or credits may be attached shall apx^ear at the return of the attachment, the court shall and may condemn the firoperty and credits so attached, and award execution thereof: Provided, that no such execution issue unless the plaintiff give bond or sufficient security before the court awarding the execution, to make restitution of the lands, tenements, goods, chattels, or credits so as aforesaid condemned, or the value thereof, if the defendant shall at any time within a year and a day — to be counted from the retiu-n of said attachment — appear to the said original action, and make it appear that the claim of the said plaintiff, or some part thereof, is not due to the said plaintiff. § 14. — ISTo sheriff or other officer shall levy by way of execution against the gar- nishee, more than the plaintifi''s debt and costs, nor more than what the said i^laint- iff shall make appear to be the value of the property and credits attached in the hands of such garnishee, together with such costs only as the garnishee shall put the plaintiff to by denying himself to be indebted to the defendant and contesting the same. § 15. — The garnishee in every attachment issued in pursuance of the f)receding sections may plead in behalf of the defendant any plea or ijleas which the defend- ant might or could plead if the summons had been served upon him and he had appeared. § 16. — Any judgment of condemnation against a garnishee and execution thereon, or payment by such garnishee, shall be sufficient, and pleadable in bar in any action brought against him by the defendant in the attachment for or con- cerning the property or credits so condemned. § 17. — In all cases of attachment, whether upon warrant, judgment, or decree, the plaintiff may exhibit interrogatories in writing to the garnishee, who shall by rule of cotu-t answer each and every of said interrogatories touching or concerning the property of the defendant in his possession or charge, or by him due or o%ving at the time of serving such attachment, or at any other time; and if such garnishee shall neglect or refuse so to do, the com-t is hereby directed to adjudge that such garnishee hath in his jDOssession property of the defendant, or is indebted to such defendant to an amount and value sufficient to pay the debt, damage, and interest of said plaintiff and costs, and execution shall issue as in other cases of condemna- tion in the hands of garnishees. § 18. — In all attachments, the garnishee may appear in court on the return day of such attachment, or within four days thereafter, and confess the amoimt of goods, chattels, or credits in his hands; and if the plaintiff will not take judgment 548 MARYLAND. of condemnation for the amount so acknowledged, but shall claim a larger sum, then the garnishee shall be allowed the costs of suit, imless on a final decision the plaintiff shall recover a larger amount than the garnishee acknowledged as aforesaid. § 19. — Any ] ilaintiff in an attachment may have the same laid upon debts due the defendant upon judgments or decrees rendered or passed by any of the courts of law or equity in this state, and may have judgment of condemnation thereof as upon any other debts due said defendant; and an execution may, on application of any party to the court rendering such judgment or decree, be issued for enforcing the pajmient thereof, notwithstanding the attachment: Provided, the money pay- able on .such judgment or decree be in the said writ of execTition required to be brought into the said court, to be by such court preserved or deposited, or invested in stocks, to abide the event of the piroceedings in slich attachment. § 20. — An attachment may be laid on any interest which the defendant has or may be entitled to in the stock of any corporation, or in the debt of any corpora- tion, transferable upon the books of such corporation; and it shall be the duty of the sheriff or other officer, in laying said attachment, to comply with the require- ments contained in this article, in relation thereto, subtitle Proceedings against Corporations. § 21.— Xo attachment shall be dissolved unless every defendant appears to the action, and unless a bond be given by or on behalf of the defendant or defendants, in a sum of money equal to the value of the xjroperty attached, mth security to be approved by the court or judge thereof, if in recess, to satisfy any judgment that shall be recovered in such case against the defendants. § 22. — Any absent defendant, or any one in his behalf, may file a petition to the judge of a court from which an attachment has issued, before the retm-n day of such attachment, praying that the said writ be quashed and set aside, and thereupon the judge shall order the sheriff to return said writ with the proceedings thereunder immediately before him, and the said judge shall, upon such return and after such notice as he shall prescribe to be given to the adverse party or his attorney, proceed to hear said petition and receive evidence and adjudicate thereon, in the same man- ner and to the same extent as the said judge would be empowered to do while sit- ting in court at the return day of said \\Tit, on motion to quash and set aside the same: Provided, such petition shall not prevent the further execution of said attach- ment, untU the judge shall order the same to be quashed. § 2.3. — Either party shall be at liberty to appeal from the decision of the judge on said petition within sixty days thereafter. § 24. — If the judge shall quash said attachment and the plaintiff shall appeal and give bond in such penalty and with such security as said judge may ajiprove, conditioned to prosecute said appeal with effect, or in default thereof to pay such costs and damages as the absent defendant or other i)ersons interested in said prop- erty or credits may incur, or suffer by reason of such attachment and appeal, the attachment shall remain in force as if no such petition had been filed. §25. — The party appealing imder the preceding sections shall have ten days from the date of the judgment qtiashing any such -writ of attachment within which he may file his a^jpeal bond, and the writ of attachment shall remain in force during that time. § 26. — If any person of full age residing out of this state, is entitled by descent or devise to any lands or tenements lying in this state, and the person from whom such lands descended or by whom the same were devised, was indebted to any per- son, the court in which any suit against such heir or devisee may be instituted may award an attachment against the lands and tenements of such heir or devisee, held Ijy descent or devise from the person so indebted, in the same manner and to have the same effect as attachments awarded against other persons residing out of -the state. § 27. — Any of the courts of this state, in which an attachment suit is pending, either on original or appellate jurisdiction, or any judge thereof, in vacation, may order a sale of any perishable projoerty which may be levied on by virtue of such attachment, whenever the court or judge may deem such sale expedient, on such tei-ms and notice as the order may prescribe, and such sale may be ordered before or after the return of the attachment; and the proceeds of such sale, after payment of the expenses incident thereto, shall be paid into court, and deposited with the clerk, subject to the order of the comrt, on the final decision of the case. §28. — No writ of attachment shall be quashed by reason of the omission or misspelling of the Christian name of any non-resident or absconding debtor, but MARYLAND. 549 the court shall allow such writ of attachment to be amended at any time before judgment thereon. § 29.— Xo attachment sued out for a debt due to any minor, feme covert, or lu' natic, on the oath or afiirmation of the guardian, husband, or committee of such minor, /eme covert, or lunatic, shall be quashed or set aside for any defect in matter of form. ATTACHMENTS AFTER TWO NON ESTS. § 30. — When two summonses have been returned non est aj^ainst the defendant in any of the courts of law of this state, the plaintiff, upon proof of his claim as hereinbefore requu-ed, shall be entitled to an attachment, and the judge of the com-t where such action is pending shall order such attachment to issue, and the same proceedings shall be thereupon had as in attachments issued against absconding debtors. ATTACHMENTS ON JUDGMENTS OK DECEEES. § 31. — Any plaintiff having a judgment or decree in any court of law or equity in this state may, instead of any other execution, issue an attachment against the lands, tenements, goods, chattels, and credits of the defendant in the plaintiff's own hands, or in the hands of any other person, which attachment shall contain the clause of scire facias required in an attachment against a non-resident or ab- sconding debtor. § 32. — If neither defendant, nor the garnishee in whose hands such property or credits were attached, appear at the return of the attachment and show sufScient cause to the contrary, the court shall condemn the said property and credits so attached, and award execution thereof. § 33. — The plaintiff may have more than one attachment or writ of attachment, to be laid in the hands of different persons or levied on other property or eft'ects than that taken under the first, though the first be still outstanding: Provided, that but one satisfaction of the debt or demand shall be made, and that it shall be in the discretion of the com-t in all such cases whether any costs, or, if any, what amount of costs shall be allowed on the subsequent attachment or attachments. ATTACHMENTS ON ORIGINAL PROCESS. § 34. — Every person and every body corporate that has the right to become a plaintiff in any action or proceeding, before any judicial tribunal in this state, shall have the light to proceed by attachment in the following cases, upon the conditions and in the manner herein provided: Before any such WTit of attachment shall be issued, the i^laintiff, or some i^ersou in his behalf, shall make an affidavit before the clerk of the court from which said attachment shall issue, stating that the defendant or defendants named in the writ of attachment is bojtafdemdebtedto the plaintiff, or plaintiffs, in the sum of dollars, over and above all discounts; and that the plaintiff knows, or has good reason to believe either (first) that the debtor is about to abscond from this state; or (second) that the defendant has assigned, dis- posed of, or concealed, or is about to assign, dispose of, or conceal his property, or Bome portion thereof, with intent to defraud his creditors; or (third) that the de- fendant fraudulently contracted the debt, or incurred the obligation resf)ecting which the action is brought; or (fourth) that the defendant has removed, or is about to remove, his property, or some portion thereof, out of this state, with intent to defraud his creditors. § 35. — At the time of making said affidavit, the plaintiff shall produce the bond, account, or other evidence of the debt, by which said debtor is indebted, and the same shall be filed among the p)apers in the cause. § 36. — There shall be issued with every attachment issued, under the provisions of the two preceding sections, a writ of summons against the defendant, as is usual in actions at law. § 37. — Every clerk, before issuing an attachment under the preceding sections, shall take from the plaintiff', or some person on his behalf, bond to the state of Maryland, with security to be approved by said clerk, in double the sum alleged to be due by the defendant or defendants, conditioned for satisfying all costs which may lie awarded to such defendant or defendants, or to any other person or persons interested in the proceedings, and all damages which shall be recovered against the plaintiff for wrongfully suing out such attachment, which bond shall be filed in the office of the clerk issuing such attachment; the condition of said bond shall be sub- stantially in the following form: The condition of this obligation is such that, whereas the above bounden , hath, on the day of the date hereof, ordered an attachment out of (namiug the court from which the said attachment shall issue) 550 MARYLA^^^. at the suit of v. , for the sum of , and the same bein.? about to be sued out of said court, retmniable on the. day of next: Xow, if the gaid shall prosecute his suit with effect, or in case of failure thereof, shall well and truly pay and satisfy the said , all such costs in said suit, and such damages as shall be awarded against , his heirs, executors, or administrators, in any suit or suits which may be hereafter brought for wrongfully suing out said attachment, then the above obligation to be void, otherwise to remain in full force and effect. Every attachment issued \vithout a bond and affidavit taken as afore- said, is hereby declared illegal and void, and shall be dismissed. § 38. — In all cases where two or more persons are jointly indebted, either as partners or othenvise, and an affidavit shall be filed as hereinbefore provided, so as to make one or more of such joint debtors amenable to the i^rocess of attachment, then the writ of attachment shall issue against the lands and tenements, goods, chattels, and credits of such as are so brought within the provisions of this law; but the writ of summons shall issue against the joint defendants, as in other ac- tions against joint defendants. § 39. — In case the defendant is not satisfied ^vith the sufficiency of the surety or sureties, or any one of them, or with the amount specified in the bond aforesaid, he may, at any time before judgment, apjily to the judge of the com-t in which the said bond is filed for an order requiring the plaintiff to give additional secm-ity, no- tice of which application shall be given to the plaintiff, not less than four days before the same is made; and the said judge, if satisfied, from evidence of the in- sufficiencj^ of the said bond, may order or require the plaintiff to give an additional bond, -tt-ith secm-ity to be approved of by the court, in such sum and ^vithin such time as he may deem proper; and in case the plaintiff shall fail to comply with such order, the said writ of attachment shall be quashed and the property attached, or its proceeds, if the same shall have been sold by order of the court, shall be re- turned to the defendant. § 40. — The practice and pleadings, under the writ of attachment issued in com- pliance with the foregoing sections, shall in all other respects, not herein provided for, conform, as near as may be, to the practice and proceedings under writs of attachment against non-resident and absconding debtors. CLAIMANTS OF PROPEETT. § 41. — In all attachments and writs of execution, whenever the same shall be levied upon any personal property, goods, or chattels, which are claimed by a per- son or persons or corporation other than the defendant or defendants in said at- tachment or writ of execution, such person or persons or corporation may iile a petition with the court issuing such attachment or ■RTit of execution, or with the court before whom such attachment or writ of execution is returnable, if it be re- turnable before a court other than the court issuing the same, which petition shall clearly set forth the claim and right to the property so levied upon, and be verified by the oath or aflSrmation of the petitioner or some person in his behalf; and it shall be the duty of the clerk to docket a suit against both the plaintiff and de- fendant in such attachment or writ of execution, and issue a summons directed to said plaintiff and defendant giving notice of such claim, which summons shall bo returnable to the same term with the attachment or writ of execution. § 42. — Upon the filing of a bond by or on behalf of such petitioner and claimant of property so levied ui^on, in a sum of money equal to double the appraised value of the jjroperty, with security or securities residents of this state, to be approved by the court or the judge thereof if in recess, or by the clerk if by reason of the absence or sickness of the judge his approval cannot be had at the time of the filing of such petition, as bonds are now approved by law, and conditioned for sat- isfying all costs and such damages as shall be awarded the plaintiff in such attach- ment or writ of execution in case the plaintiff shall recover judgment of condemnation, the property so levied upon shall be discharged from the levy: Provided, that the damages, if any, recovered by the plaintiff in the attachment or writ of execution shall not exceed the real value of the property so discharged from levy by these proceedings: And provided further, if the i3laintiff fails to recover judgment of condemnation for the property so levied upon, the petitioner shall be awarded his costs, and shall recover damage for the wrong and injury done him by reason of the illegal seizure and detention of his property. § 43. — In case the plaintiff in such attachment or writ of execution, is not satis- fied with the sufficiency of the surety or sureties in the bond taken under the pre- ceding section, he may at any time before judgment apply to the judge of the court in which the said bond is filed, for an order requiring the petitioner to give MASSACHUSETTS. 551 addional security, notice of which application sball oe given to the petitioner not less than five days before the same is made, and the said judge, if satisfied from evidence of the insufBciency of the bond, may order or require the petitioner to give an additional bond within such time as he shall deem jDroper, and in case of refusal to comjily with such order, judgment may be entered against such peti- tioner to the amount of the real value of the property levied upon, upon which execution may issue as provided by law, and said plaintiff may also have an execu- tion against the defendant m the original attachment or ■svrit of execution: Provided, that but one satisfaction of the debt or demand shall be made, and it shall be •within the discretion of the court in all such cases to dispose of the matter of costs. Before justices of the peace — Page G80, sees. 44-52; p. 733, sec. 6. Corporation, interest in liable to — Page C89, sec. 23-23. Exemptions — Burial lots, p. 329, sec. 84; wages, x^- 682, sees. 53, 54; general, p. 623, sec. 150, and Stats. 1884, p. 672. MASSACHUSETTS. [Public Statutes, 1882.] CHAPTER 161. ATTACHMENT OF PROPERTY — GENERAL PROVISIONS. § 38. — All real and personal estate liable to be taken on execution (except such personal estate as, from its natm-e or situation, has been considered as exempt according to the principles of the common law as adopted and practiced in this commonwealth, and except as provided in the following section) may be attached upon the original writ in any action in which debt or damages are recoverable, and may be held as security to satisfy such judgment as the ijlaintiff may recover; but no attachment of real estate shall be made on a wi-it returnable before a trial jus- tice, or police, district or municipal court, unless the debt or damages demanded therein exceed twenty dollars. § 39. — Railroad cars and engines in use and making regular passages on rail- roads, and steamboats so in use upon water-routes, shall not, within forty-eight hours previous to their fixed time of departure, be attached upon mesne process, unless the officer making such attachment has first demanded of the owners or managers thereof other property, upon which to make such attachment, equal in value to the ad damnum in the \xv\t, and such owners or managers have refused or neglected to comply with said demand; and such attachment shall be void unless the officer certifies in his return that he has made such demand, and that the same has been refused or neglected; and no ship or vessel shall be attached on mesne process in an action at law unless a declaration is inserted in the writ before service thereof, nor unless the plaintiff or some jierson in his behalf makes affidavit and proves to the satisfaction of some justice of a court of record, police, district, or municipal court, master in chancery, commissioner of insolvency, and, except in the county of Suffolk, trial justice, or justice of the peace, that he has a good cause of action, and reasonable expectation of recovering a sum amounting, exclusive of all costs, to at least one-third the damages demanded in such writ, which affidavit, and the certificate of the magistrate that he is satisfied that the same is true, shall be annexed to the writ. § 40. — Different attachments may be made successively upoin the same writ by one or more officers and in one or more counties, at anj' time before the service of the summons; but no further attachment shall be made thereon after the summons is served. § 41. Personal property attached or taken on execution by a constable may be further attached by a deputy sheriff or other competent officer, upon any wiit of 552 MASSACHUSETTS. attajlimcnt or execution which such constable is not authorized to serve; andthere- uijou such constable shall make return upon anl deliver his ■writ, with the posses- sion of the property, to such deputy sheriff or other officer, who shall complete the service thereof. If such writ of attachment has been returned into court, the constable shall file in the case a certificate of the fact of such surrender of pos- session. § 42. — "When personal property is attached, or is taken on execution, the officer may appoint a keeper thereof, if necessary, and in such case shall, upon the ■wrlbten request of the defendant, remove such property or the keeper without unreason- able delay. § 43. — Personal property attached may be kept, subject to the provisions of the preceding section, upon the premises where the same is found, unless the owner or occupant of such premises in writing- requests the officer to remove his keeper therefrom; and when the defendant in ^vriting- requests the officer to allow property attached upon the premises of the defendant to remain there until he may give bond to dissolve the attachment, the property shall not be removed until he has had reasonable opportunity to give such bond. § 44.— VvTien goods are sold or disposed of by consent of the parties or after an appraisement as hereinafter provided, the proceeds, while remaining in the hands of the officer, shall be liable to be further attached by him as the property of the original defendant, in like manner as the goods themselves would have been liable if they had remained in the p)Ossession of the officer; and the proceeds so attached shall be held and disposed of in the same manner as if the attachment had been made on the goods themselves before the sale thereof. But this shall not prevent the officer from jiaying over to the defendant the surplus of the proceeds of such sale, after retaining enough to satisfy all the attachments actually existing at the time of such payment. § 45. — All goods taken by replevin from an officer who has attached them shall be considered as still remaining in his custody and control so far as to be liable to further successive attachments, in like manner as if the goods themselves had remained in his possession. § 4G. — If there is judgment for a return of the goods so replevied, the jilaintiff in the replevin and his sureties shall be liable for the whole of the goods, or the value thereof, although the attachment for which they are eventually held was made after the taking of the goods by the replevin. § 47. — If an officer, after making an attachment of goods, dies, or is removed from office while the attachment remains in force, the same goods, whether replev- ied or remaining in possession of the officer or of his executors or administrators, may be fvurther attached by any other officer so as to bind the goods or the proceeds thereof, in like manner as if the latter attachment had been made by the first- mentioned officer. § 48. — The officer making the latter attachment in such case shall not take the goods themselves, but the attachment shall be made by a return setting forth an attachment in the conmaon form, and stating by whom the goods were previously attached, and. if the goods have not lieen replevied, by leaving a certified copy of the writ (without the declaration), and of the return of that attachment, with the former officer if living, or, if he is dead, ^^•ith his executor or administrator, or v/hoever else then has possession of the goods; or if the goods have been replevied, and the officer who made the original attachment is dead, such copy shall be left Vvith the plaintiff in replevin or with his executors or administrators, and the attachment shall be considered as made when such copy is delivered in either of the modes before provided. §49. — Goods taken by reple%'in from an attaching officer shall not be fiu-ther attached as the property of the original defendant in any other manner than that Erovided in section forty-one and in the four preceding sections, so long as they are eld by the jierson who replevied them, or by any one holding under him, unless the original defendant has acquired a new title to the goods. § 50. — Goods and chattels attached by an officer, whether remaining in his cus- tody at the time of his death or taken from him by replevin or otherwise, and also all claims for damages to goods so taken from hun, shall remain subject to the attachment in like manner as if the officer had lived, and shall not be considered as assets in the hands of his executors or administrators. § 51. — If real estate that is attached is subject to a mortgage or other incum- brance, and the mortgage is redeemed or the incimibrance removed before the le\'y MASSACHUSETTS. 553 of the execution, the attachment shall hold the premises discharged of the mort- gage or incumljrance, and the executi(jn may be ievied in the same manner and with the same effect as if the mortgage or other incumbrance had never existed. § 52. — If final judgment in a case is rendered for the plaintiff, the goods and estate attached shall be held for thirty days after the judgment, in order to their being taken on execution; and if the attachment is made in the county of Nan- tucket and the judgment is rendered in another county, or if the judgment is ren- dered in Nantucket and the attachment is made in another county, the goods and estate shall be held for sixty days after final jud,gment, unless in either case the attachment has been dissolved as hereinafter provided. § 53. — In suits in equity when an appeal may be claimed from a final decree of a single justice, the goods and estate attached shall be held for thirty days after such right of appeal exi^ires. § 54. — If the final judgment is for the defendant, the attachment, except as pro- vided in the preceding section, shall be forthwith dissolved. §55. — The final judgment intended in sections fifty-two and fifty-four is that which is rendered in the original action, whether upon appeal or otherwise, and not such as may be rendered upon a ■s^-rit of error or writ of review. § 50. — When real estate, goods, chattels, or effects are attached, and the debtor dies before they are taken or seized on execution, the attachment shall be dis- solved, if administration of the estate of the deceased is granted in this common- wealth within one year after his decease, or if application therefor is made within said year, and administration is afterward granted upon such application. If no such administration is granted, the jiroperty attached shall continue bound by the attachment in like manner as if the debtor were still living. § 57. — When the attachment is of goods, the officer shall upon demand deliver them to the executor or administrator, if any is appointed in this commonwealth within the time limited in the preceding section, upon receiving from the executor or administrator his legal fees and charges for attaching and keej)ing the goods. §58. — If the officer sold the goods on execution before such demand, or if he has sold in like manner any other chattel interest, or a right of redeeming real estate attached as aforesaid, he shall not be considered a trespasser for so doing; but he shall be liable only for the proceeds of the sale after deducting his legal fees and charges for attaching, keeping, and selling the goods, and such proceeds may be recovered by the executor or administrator in an action of contract for money had and received. § 50. — If the officer in such case has paid over the proceeds of the sale to the jud.gment creditor before such demand, he shall be exempt from all further liability therefor, and the executor or administrator, if appointed as before provided, may recover from the judgment creditor the amount so j)aidto him, in an action of con- tract for money had and received. § CO.— The defendant, in an action founded on either of the three preceding sections, shall not be allowed in any manner to set off a demand against the exec- utor or administrator, or against the estate of the deceased. ATTACHMENT OF REAL ESTATE AND LEASEHOLD ESTATES. § Gl. — In attaching real estate or a right or interest in land, the officer need not enter iipon the land, or be within view of it. In attaching leasehold estates, the officer shall state in his return in general terms the leasehold property attached. § G2. — No attachment of real estate or of any leasehold estates on mesne proc- ess shall be valid against a subsequent attaching creditor, or against a person who afterward purchases the same for a valuable consideration and in good faith, unless the original writ or a copy thereof (which copy shall be certified by the offi- cer, but need not contain the declaration in the wi-it), and so much of the officer's return thereon as relates to the attachment of the estate, is deposited as follows, to wit: if the lands attached lie in a county (except Suffolk) where there is but one office for the registry of deeds, such writ or copy shall be deposited in the office of the clerk of the courts for such county; if in Suffolk County, in the registry of deeds for said county; and if in a county where there is more than one office for the registry of deeds, then in the registry of deeds for the district where the attached lands lie. § 03.— Every officer making such attachment shall deposit the writ or copy in the clerk's office, or in the registry of deeds, according to the provisions of the 554 MASSACHUSETTS. preceding section; and he stall be entitled to receive four cents a mile for his travel from the place of service to the office of the clerk or to the registry, together with his fee for the copy. § 64. — The clerk or register of deeds shall note on every such writ or copy the day, hour, and minute when he receives it, and shall file the same in his office. He shall also enter in a book to be kept for that pm-pose the name of the plaintiff and the name of each defendant whose estate is attached, the time when the attach- ment was made, and the time when the ■m-it or copy was dejDOsited. His fee in each case shall be twenty-five cents, which shall be paid on the delivery of the writ or copy, and may be taxed for the plaintiff in his biU of costs. When a dis- solution of an attachment so entered in a registry of deeds appears of record in a court where the suit in which it was made is pending, the clerk of such court shall forward to such registry of deeds a certificate of the fact of such dissolution, stat- ing how such dissolution was made, and the register shall file the same with the copy of the original %vrit, and shall enter the same in his docket of attachments. § 65. — If the writ or copy is deposited as aforesaid within three days after the day when the attachment was made, the attachment shall take effect from the time it was made, otherwise from the time when the writ or copy is so deposited; but attachments of real estate, and of leasehold estates having an original term of more than seven years, shall not be valid against purchasers in good faith for a valuable consideration, other than parties defendant to the suit, except from the time when the writ or copy is deposited as aforesaid. §66. — When an attachment on mesne process is made of real estate or of a right or interest therein which has been fraudulently conveyed by the debtor to a third person, or which has been piirchased, or the purchase-money of which has been directly or indirectly paid by the debtor, and the title thereto retained in the vendor or conveyed to another person, with the design and for the purpose of fraudulently seeming the same from attachment by a creditor of such debtor, or with the intent and for the purpose of delaying, defeating, or defrauding creditors, it shall not be valid against a subsequent attaching creditor, or against a person who afterward purchases the estate for a valuable consideration and in good faith, unless the officer in addition to the retiirn required by the preceding sections also returns a brief description of the estate attached, by its locality, situation, bound- aries, or otherwise, as known to him, and the name or names of the person or per- sons in whom the record or legal title stands. § 67. — The clerk or register in such case, in addition to the names of the parties to the writ which he is required to enter as provided in section sixty-fom-, shall also enter in his book of attachments the names of the persons in whom the record or legal title stands as returned by the officer, in the same manner as if the estate of such persons were attached as defendants in the writ. § 68. — Registers of deeds and clerks of courts shall perform the same duties with regard to the filing and entering of copies of writs and other papers, in suits originating in the courts of the United States and affecting the title to real estate by attachment or otherwise, as are required with regard to the filing and entering of such papers in such suits originating in the courts of this commonwealth. ATTACHITENT OF GOODS, ETC., WHICH CANNOT BE EEMOVED. § 69. — When an attachment is made of articles of personal estate which by rea- son of their bulk or other cause cannot be immediately removed, a certified copy of the writ (without the declaration), and of the return of the attachment, may at any time within three days thereafter be deposited in the office of the clerk of the city or town in which it is made; and such attachment shall be equally valid and effec- tual as if the articles had been retained in the iDossession and custody of the officer. § 70. — The clerk shall receive and file aU such copies, noting thereon the time when received, and keep them safely in his office, and also enter a note thereof, in the order in which they are received, in the books kept for recording mortgages of personal property; which entry shall contain the names of the parties to the suit and the date of the entry. The clerk's fee for this service shall be twenty-five cents, to be paid by the officer, and included in his charge for the service of the writ. ATTACHMENT OP SHAKES IN COEPORATIONS. § 71. — The share or interest of a stockholder in a corporation organized imder authority of this commonwealth, or under the laws of the United States and . located or having a general office in this commonwealth, may be attached by leaving an attested copy of the writ (without the declaration), and of the retiuni MASSACHUSETTS. 555 of the cottachment, with the clerk, treasurer, or cashier of the company, if there is such officer; otherwise with any officer or person who "has at the time the custody of the books and papers of the corporation. § 72.— A share or interest so attached, with all the dividends thereafter accru- ing thereon, shall, except as is othei-wise provided in section twenty-four of chapter one hunch-ed and five, be held as security to satisfy the final judgment in the suit, in like manner as other jjersonal estate is held. §73. — If the officer having a wi-it of attachment against such stockholder ex- hibits the vn-it to the officer of the company who is appointed to keep a record or account of the shares or interest of the stockholders therein, and requests a certifi- cate of the number of shares or amount of the interest held by the defendant in the suit, such officer of the company shall give such certificate to the officer holding the writ. If he unreasonably refuses to do so, or if he willfully gives a false certifi- cate thereof, he shall be liable for double the amount of all damages occasioned by such refusal or false certificate; to be recovered in an action oif tort, unless the judgment is satisfied by the original defendant. ATTACHMENT, ETC., OF PERSONAL PROPERTY MORTGAGED OR PLEDGED. § 74. — Personal property of a debtor that is subject to a mortgage, pledge, or lien, and of vv-hich the debtor has the right of redemption, may be attached and held in like manner as if it were unincumbered, if the attaching creditor pays or tenders to the mortgagee, pawnee, or holder of the property, the amount for which it is so liable, within ten days after the same is demanded as hereinafter provided. §75. — Every such mortgagee, pawnee, or holder shall, when demanding pay- ment of the money due to him, state in wi'iting a just and true account of the debt or demand for which the property is liable to him, and deliver it to the attaching creditor or officer. If the same is not paid or tendered to him within ten days thereaftei-, the attachment shall be dissolved, and the property shall be restored to him; and the attaching creditor shall moreover be liable to him for any damages he has sustained by the attachment. § 76. — If he demands and receives more than the amoxmt due to him, he shall be liable for the excess, with interest thereon at the rate of twelve per cent, a j^ear, to be recovered by the attaching creditor in an action of contract for money had and received. §77. — When property attached and redeemed as aforesaid is sold on mesne proc- ess or on execution, the proceeds thereof, after deducting the charges of the sale, shall be first applied to repay to the attaching creditor the amount so j^aid by him, with interest. § 78. — If the plaintiff, after having redeemed the goods, does not recover judg- ment in the suit, he shall nevertheless be entitled to hold the goods until the defendant repays to him the sum which he paid for the redemption, or as much thereof as the defendant would have been obliged to pay to the mortgagee, pa\vnee, or holder of the goods, if they had not been attached, with interest from the time when the same is demanded by the defendant. § 79. — Personal property of a debtor subject to a mortgage, and being in the Eossession of the mortgagor, may be attached in the same manner as if uniucum- ered; and the mortgagee or his assigns may be sunimoned in the same action in which the property is attached, as the trustee of the mortgagor or his assigns, to answer such questions as may be put to him or them by the court or by its order touching the consideration of the mortgage and the amount due thereon. § 80. — If upon such examination, or upon the verdict of a jury as hereinafter pro- vided, it appears that the mortgage is valid, the court, having first ascertained the amount justly due upon it, may direct the attaching creditor to pay the same to the mortgagee or his assigns within such time as it orders; and if the attaching creditor does not pay or tender the sum within the time prescribed, the attachment shall be void, and the property shall be restored. § 81.— If the attaching creditor denies the validity of the mortgage, and moves that the same may be tried by a jury, the court shall order such trial on an issue to be framed under the direction of the court, and, if upion such examination or verdict the mortgage is adjudged valid, the mortgagee or his assigns shall recover his costs. § 82. — "When the creditor has paid to the mortgagee or his assigns the sum directed by the court, he shall be entitled to retain out of the proceeds of the 556 MASSACHUSETTS. property attached, wlien sold, the sum so paid with interest, and the balance shall be applied to the payment of his debt. § 83. — If the attaching creditor after having- paid the sum directed by the court does not recover judgment in the siiit, he .shall nevertheless be entitled to hold the property until the debtor has repaid with interest the sum so paid. ATTACHMENT OF EEAL ESTATE OF NON-EESIDENT. Whenever the i-eal estate of a non-resident is attached in any suit now pending or hereafter brought in any court of this commonwealth, and no personal service is made upon the defendant, such suit shall be dismissed, unless notice thereof is given in such manner as the court may direct, within one year from the entry of the suit, or in suits now fiending within one year from the passage of this act. (Statutes 1884, p. 2i9.) SrPPLEJIEXTARY PROCESS. § 84. — When the service of a writ, process, or order is defective or insufficient, the coiul; or tribunal to which the same is returnable may, upon the motion of the plaintiff or petitioner, issue further writs, processes, and orders, to be served in such manner as may be therein directed; and upon due service thereof the court or tribunal shall thereby accjuire the same jurisdiction of the subject and of the Earties as it would have obtained if such service had been made in pursuance and y virtue of the original writ, process, or order. The action, suit, or ijroceeding shall be continued from term to term, or time to time, imtil such service is had. § 8.5. — At any time during the pendency of a suit, Hbel, petition, or other pro- ceeding at law or in equity, before a trial justice, police, district or municipal court, or before the superior court or supreme judicial court, upon the institution of which an attachment is authorized by law, such trial justice or the court in which such cause is i:)ending, or a ju.stice thereof in term time or vacation, may, on mo- tion, ex parte, upon good cause shown, direct by special precept that an arrest of the defendant, or an attachment of his property by trustee process, or otherwise, be made to secure the judgment cr decree which the plaintiff may obtain in said cause; but no an-est of the defendant shall be authorized unless the plaintiff or some person in his behalf makes affidavit and proves to the satisfaction of the court or trial justice the same facts that are reqxiired to be proved to authorize arrests on mesne process. §86. — The form of such precepts shall be the same, so far as practicable, aa that established for original writs of attachment and arrest; but the supreme ju- dicial court may, by general rules, at any time establish forms therefor. § 87. — Such precepts may be served by an officer authorized to serve the origi- nal process in the cause, and shall be returnable as may be directed by the court issuing the same. § 88. — Attachments and arrests so made shall be subject to all the provisions of law relating to attachments and arrests upon mesne process, so far as applicable. SALE OF PERSONAL PROPERTY ATTACHED. §89. — When personal property is attached, whether on one or more writs, and the debtor and all the attaching creditors consent in writing to the sale, the attach- ing officer shall sell it in the manner prescribed by law for selling like property on execution; and the proceeds of the sale, after deducting the necessary charges, shall be held by the officer subject to the attachments, and shall be disposed of ia like manner as the propertj' would have been held and disposed of if it had re- mained unsold. § 90. — "WTien an attachment is made of live animals or of goods or chattels which are liable to perish, waste, or be greatly reduced in value by keeping, or which cannot be kept without great and disproportionate expense, and the parties do not consent to a sale thereof as before provided, the property so attached shall upon the request of either of the parties interested be examiaed, appraised, and sold or otherwise disposed of in the manner following. § 91. — Upon such application made by either party to the attaching officer, he shall give notice to all the other parties or their attorneys, prepare a schedule of the goods, and cause three disinterested persons acquainted with the nature and value of such goods to be appointed and sworn before a magistrate or the attaching officer to the faithful discharge of their duty as appraisers. § 92. — If the defendant is not within the commonwealth and has no attorney thereia, the notice shall be left in writing at his last and usual place of abode in the MASSACnUSETTS, 557 commonwealth if he has any, other-w'ise it shall be deli\^retT to, or left at the dwell- ing-house or place of business of, the person who had possession of the property at the time of the a.ttachnient. § 93. — The appraisers shall be appointed, one by the creditor or creditors in the several suits, one by the debtor or debtors, and one by the officer, and if the debt- ors or creditors resi^ectively neglect to appoint such api:)raiser, or do not agree int the nomination, the officer shall appoint one in their liehalf. § 94. — The apjwaisers shall examine the attached property, and if they are of opinion that the same or a part thereof ir; liable to j^erish or waste, or to lie greatly reduced in value by keeping, or that it cannot be kept without great and disjiro- portionate expense, they shall proceed to appraise the same according to the best of their skill and judgment at the value thereof in money; and the goods shall thereupon be sold by the officer, and the proceeds held and disi^osed of in the man- ner before provided in the case of a sale hy consent of parties, unless the goods are taken by the debtor as provided in the following section. § 95. — The goods so appraised .shall be delivered to the debtor, if he requires it, upon his depositing with the attaching officer the appraised value thereof in money, or giving bpnd to him in a sufficient penalty and with two sufficient sureties, con- ditioned to pay to him the appraised vahie of the goods or satisfy all such judg- ments as may be recovered in the suits in which the goods were attached, if de- manded within the time during which the goods would have been held by the respective attachments, or within thirty days after the time when the creditors respectively would have been entitled to demand payment out of the proceeds of the goods if they had been sold as before provided. § 96. — The officer taking such bond shall return the same with the writ on which the first attachment is made in like manner as bail-bonds are returned; with a cer- tificate of his doings in relation thereto; and if the bond is forfeited, the creditors or any of them may bring an action of conti'act thereon in the name of the officer. § 97. — The -writ in such action shall in addition to the usual indorsement have also indorsed on it the names of the creditoi"3 by whom the action i3 brought; and if judgment is rendered for the defendants, executions for the costs shall be issued against all the creditors whose names are so indorsed. § 98. — If judgment is rendered for the plaintiff, the money recovered shall be first applied, under the order of the court, to pay the reasonable expenses of jirose- cuting the suit, so far as the same are not reimbursed by the costs recovered of the defendant; and the residue shall belong to all the attaching creditors, according to their respective rights. § 99. — The court may upon a hearing in equity determine the rights of the sev- eral attaching creditors, and award a sejiarate execution for the amount due or payable to each, to be served and levied to his owm use in the manner provided when a judgment is rendered on an administration bond; or they may award one execution for the whole sum due on the bond, and cause the money received to be distributed among the creditors according to their respective rights. § 100. — No judgment or execution shall be awarded for the use of a creditor without reserving as much as may be due upon any jDrior attachment, whether the creditor in such prior suit is or is not one of those by whom the action is brought on the bond. § 101. — A creditor entitled to the benefit of the bond, who has not joined in bringing the action thereon, may bring a writ of scire facias on the judgment, and. recover any sum due to him upon the bond; or he may upon motion, at any time before final judgment, be allowed upon such terms as the court prescribes to be- come a party to the action, as if he had been one of those by whom it was origi- nally brought. § 102. — No creditor whose cause of action on such bond accrued more than one year before the commencement of the action shall have judgment or execution ia such action, and no creditor shall sue out a writ oi scire facias on the juv^gment, unless within one year after his cause of action accrues. § 103. — When goods which are sold or appraised and delivered to the debtor in the manner before provided are attached by several creditors, any one of them may demand and receive satisfaction of his judginent, notwithstanding a prior at- tachment, if he is otherwise entitled to demand the money, and if a sufficient sum of the proceeds of the goods, or of their appraised value, ig, left to satisfy all prior- attachments. 558 MASSACHUSETTS. § 104. — Any Iwncl required to be given by a party in tte course of a civil suit or proceeding may be executed b}' any person other than the party to the suit or proceeding, and may be approved in the same manner as if executed by such party, if it appears to the magistrate approving it that there is good reason why the same is not signed by such party. JOINT PERSONAL PROPERTY ATTACHED ON A WRIT AGAINST PART OWNER. § 105. — \yhen personal property belonging to two or more persons is attached in a suit against one or more of them, it shall, upon the request of any other of the part o^^^lers, be examined and appraised in the manner before provided for an ap- praisement made at the request of a party in the suit; except that the part owner who makes the application shall appoint one of the appraisers, and the debtor shall not appoint any. § 106. — The property so appraised shall be delivered to the part owner at whose request it was appraised, upon his giving bond to the attaching officer in a suffi- cient penalty, with two sufficient sureties, and conditioned to restore such property in like good order or to pay the officer the appraised value of the defendant's share or interest therein, or to satisfy all such judgments as may be recovered in the suit in which it is attached, if demanded within the time during which the property would have been held by the respective attachments. § 107 i' — If such appraised value or any part thereof is so paid, the defendant's share of the i^roperty shall thereby become pledged to the party to whom it waa delivered, aud he may sell it, if not redeemed, and shall account to the defendant for the balance of the proceeds of the sale. § 108. — If the attachment is dissolved, the party to whom the defendant's share was delivered shall restore the same to the defendant or to the officer, to be by him delivered to the defendant. § 109. — The doings of the officer, together with the bond, shall be returned by him in the manner before provided for the case of a bond given by a debtor upon the delivery to him of proi^ertj' attached; and ujDon the forfeitm-e of such bond, like p>roceedings may be had as are j)rovided upon the forfeiture of the bond given by the debtor. ATTACHMENT DISPUTED BT PERSONS HAVING SUBSEQUENT LIENS, ETC. § 110. — When a person claims title or interest by force of a subsequent attach- ment, purchase, or mortgage, or in any other manner, in any estate real or per- sonal that is attached in a suit Ijetween other persons, he may dispute the validity and effect of the prior attachment, on the ground that the sum demanded in the first suit was not justly due, or was not payable when the action was commenced. § 111. — The i^erson objecting to the attachment may file his petition in the coiu^ in which the first suit is pending, at any time before final judgment therein, pray- ing that the prior attachment may be dissolved, and setting forth the facts and cir- cumstances on which his petition is founded, and the grounds of his own claim. § 112. — The petitioner or some person in his behalf shall make oath that his claim is just and legal, and that all the other facts set forth in the petition are true, or are believed by the deponent to be so. § 113. — The court upon the hearing of the petition shall on the motion of either party direct a trial Ijy jiu-y of any question of fact arising in the inquiry, and if it appears to the court that a part of the siun demanded in the prior suit is not justly due, or was not paj'able when the action was commenced, it shall order the attach- ment therein made to be dissolved in whole or in i^art as justice requires; but such order shall have no other effect on the prior suit. § 114. — The proceedings between the two adverse claimants or plaintiffs shall not be affected by any answer, plea, or other act of the defendant in the prior suit, nor by the judgment rendered therein. § 115. — No attachment shall be dissolved in manner aforesaid by reason of a de- fense to the action founded on the laws for the limitation of actions, requiring cer- tain contracts to be made in wi-iting, or of any other like defense, if it ajupears to the court that the demand is otherwise weU founded, and is justly and equitably due. § 110. — The court may upon such inquiry award to either party reasonable costs; and, if the prior attachment is maintained, may award to the attaching MASSACHUSETTS. 559 creditor reasonable damages; and execution may he issued for such costs and damages. § 117. — The court shall also, upon the filing of the petition, require a bond or recognizance of the petitioner, or of some person in his behalf, with sufficient surety or sureties, conditioned to jiay to the adverse party all such damages and costs as may be awarded to him in the proceedings upon the petition. § lis. — If, during the pendency of the proceedings, the action in which the at- tachment is made is carried to a higher court, the inquiry concerning the attach- ment shall be carried to the same com-t, and there heard and determined as if the action had been originally commenced there. § 119. — The decision or judgment of the court upon such an inquiry, whether the attachment is thereby vacated or held to be valid and effectual, shall be a bar to any action brought by the petitioner against the party who made the attach- ment, for any supposed fraud or deceit therein. § 120.— Nothing contained in the ten preceding sections shall apply to an ac- tion commenced before a trial justice. EEDUCTION OF EXCESSIVE ATTACHMENTS. § 121. — If an excessive attachment of goods or estate is made on mesne process, the defendant may apply in writing, in any county, to a justice of the court to which such process is returnable, for a reductron of the amount of the attachment; and such justice shall order a notice to the plaintiff, retiu'nable before himself or any other justice of the same court as speedily as circumstances i^ermit. If, upon summarily hearing the parties, it is found that the attachment is excessive, the justice shall order it to be reduced, or a part of the goods or estate to be released, and thereafter the attachment shall be deemed to be reduced or j)artially released, according to such order. DISSOLUTION OF ATTACHMENTS BY GIVING BOND. § 122. — A person or corporation Avhose goods or estate are attached on mesne process in a civil action may, at anj' time before final judgment, dissolve such at- tachment by giving bond with sufficient sureties, to be approved Ijy the plaintiff or his attorney in writing, or by a master in chancery, or by a justice of a court of record, or of a police, district, or municipal court, or commissioner of insolvency, when the attachment is made within the jurisdiction of such justice or commis- sioner, and with condition to pay to the j^laintiff the amount, if any, that he may recover within thirty days after the final judgment in such action; and also to pay to the plaintiff, Avithin thirty days after the entry of any special judgment in ac- cordance with chapter one huudi-ed and seventy-one, the sum, if any, for which such special judgment shall be entered. No sureties shall be deemed sufficient un- less they are satisfactory to the plaintiff, or unless it is made clearly to appear to the magistrate that each one, if there are only two, is worth, above what will pay his debts, a sum equal to that for which the attachment is laid; or, if there are more than two, that they are together worth twice such sum. § 123. — Before such bond is approved by a magistrate named in the preceding section, the party whose goods or estate are attached, or some one in his behalf, shall make application in wi-iting to the magistrate, specifying therein the names and places of residence of the persons proposed as sureties. The same notice of the time and place of the hearing thereon shall be given to the plaintiff or his attorney as is required upon the taking of depositions; but the plaintiff or his attorney may in writing waive such notice, or may approve the bond at any time. § 124. — The fees of the magistrate for approving such bond shall be one dollar for the hearing and decision, and fifty cents for the citation. If the attachment is dissolved, such fees shall be taxed in the defendant's costs, if he prevails in the suit. § 125. — Such bond shall be filed by the defendant with the clerk of the court to which the writ is retm-nable, or in which it is pending, within ten days after its approval by the plaintiff or his attorney, or by the magistrate; and the attachment shall not be dissolved until the bond is so filed. Such bond, and the bonds pro- vided for lay the three following sections, may be taken from the files, at any time, by the plaintiff, upon leaving on file a copy thereof attested by the clerk; and the plaintiff may tax the cost of such copy, as part of his costs, in a suit on such bond. § 126. — A defendant who does not desire to give the bond required by section one hundred and twenty-two may, at any time before final judgment, release the 660 MASSACHUSETTS. property attached, or sxich part thereof as he may elect, from such attachment; by giving liond to the plaintiff with sufficient sureties, to be approved by the plaintiil or by his attorney in \\Titing, or by a master in chancer}', or by a justice or commis- Bioner named in section one hundred and twenty-two, when the attachment is made within the jurisdiction of siich justice or commissioner, with condition to pay to the plaintiff within thirty days after final judgment in such action, or after the entry of a special judgment therein under chapter one hundred and seventy-one, the sum fixed as the value of the property so released, or so much of said sum as may be necessary to satisfj- the amount, if any, that the plaintiff may recover; and the propertj' so released shall be described in such bond. If the parties to the action do not agi-ee upon the value of the property, the defendant, or some one in his be- half, may make ^\'Titten apiolication to any magistrate authorized to approve said bond in the county where the property is, stating the names of the parties to the action, the name of the officer who made the attachment, and a description of the property which he desires to release from attachment, and the names and places of residence of the persons jiroj^osed as sureties. The magistrate shall forthwith cause written notice of the application to be served upon the plaintiff, if he resides in the county; if not, upon the ofS.cer who made the attachment, appointing a time and place for hearing the parties. Said notice shall be served twenty-four hours, at least, l:)efore the time appointed therein for a hearing, and as much more as the magistrate may order. At the time and place appointed, after hearing the parties, the magistrate shall appoint three disinterested persons to examine and appraise the property described in the application, who shall be sworn and shall aj^praise the same at its fair market value, and who shall make return of their doings in writing to the magistrate, at a time and place fixed by him, to which the hearing Bhall be adjourned. At such adjourned hearing, the defendant may give bond to the plaintiif, viith sufficient sureties, to be api^roved by the magistrate, as herein provided. Upon the filing of such bond, as required in the preceding section, the attachment uiaon the property described in such bond shall be dissolved. § 127. — The magistrate may adjourn such hearing from time to time as he may deem necessary. His fees shall be one dollar for each citation, and two dollars for each hearing and each adjournment thereof. The fees of the appraisers shall be determined by the magistrate according to the circumstances of each case. The applicant shall pay all fees; but in case of final judgment in his favor he shall be allowed to tax them as a part of his costs. The magistrate's certificate of the amount shall be required by the clerks of courts to be filed in the case before al- lowing said fees as a part of the taxable costs. § 128. — When an attachment of real property is made under the provisions of sections sixty-six and sixty-seven, the person in whose name the record title of the property attached stands, or some one in his behalf, ma}', before final judgment in the action, dissolve the attachment by giving bond to the plaintiff, with sufii- cient sureties, conditioned to pay to him, if he establishes his title to the land in a writ of entry against the person having the record title thereto at the time of the attachment, the sum ascertained to be the value of the land, or so much thereof as shall satisfy the amount, if any, which the plaintiff shall recover upon final judg- ment, or special judgment under chapter one hundred and seventy-one, in the suit in which such attachment was made. All proceedings required in the two preced- ing sections shall apply to the dissolution of an attachment imder this section. In the trial of a vrrit of entry, brought by the plaintiff in the suit, to try his right to the land so released from attachment, for the jjurpose of establishing his right to recover on said bond, the record of the attachment, and of final judgment or of special judgment, as the case may be, in the suit in which the attachment was made, shall be conclusive evidence of a momentary seizin of the land in the i)laint- ifl, so far as to enable him to maintain an action therefor upon his own seizin; but no such writ of entry shall be brought after the expiration of one year from the date of such final or special judgment. If the plaintiff recovers judgoncnt on such writ of entry, no execution for possession shall issue thereon, but execution may issue for costs of stut. § 129. — A defendant whose individual property is attached in an action against several defendants may dissolve such attachment, or any part thereof, in any of the modes provided in the seven preceding sections. But the bond to dissolve such attachment shall be so conditioned as to apply only to a judgment recovered against Buch defendant alone or jointly. "Writs and service of process — Pages 923, 924, sees. 14-17, 26, 29-34. Shares in corporations— Pages 5G7, 508, sees. 24, 28, 30; p. 1006, sees. 47, 60; pp. 929, 930, sees. 71, 73. Subsequent attachment of — Page 1005, sec. 44. MICHIGAN. 561 Attachment of property on which there is a mechanic's lien — Pages 1099, 1100, sees. 30-35. On liens against vessels — Page 1104, sec. 17. Conveying attached property without notice — Page 1147, sec. 68. Amendment, effect on subsequent attaching creditors — Page 974, sec. 85. Execution suspended by prior attachment — Page lOOG, sees. 52, 53. Waste of attached proi^erty— Page 1039, sec. 12. As to costs, see Stats. 1883, p. 373. In replevin — Page 10G4, sees. 14-17. and 24. MICHIGAN. [Howell's Annotated Statutes, 1883.] ATTACHMENTS AGAINST FOREIGN CORPOEATIONS. § 7086 (3292) (5519).--Sec. 1. Whenever an action shall be commenced by at- tachment against a foreign corporation, and proceedings by garnishment shall also be commenced in the same action, if it shall appear on the return of the •writ of attachment that a copy thereof, and also copies of all garnishee summons issued in said action, ha\e been j^ersonally served on any officer, member, clerk, or agent of such foreign corporation within this state, the same proceedings may be thereupon had in said action against said corporation, and in the same manner, as iipon the return of a summons personally served in actions against natural persons; and in all cases of proceedings by garnishment against corporations, whether forei;gn or domestic, service of any process in the manner above provided for in case of for- eigia corporations, shall have like force and effect as personal service upon natural persons. § 7087 (.3923) (5.520)._— Sec. 2. The rights and liabilities of garnishees in such cases, and the proceedings against them, shall be the same in all respects as is pro- vided by law in other cases of garnishment. PROCEEDINGS AGAINST DEBTORS BY ATTACHMENT. § 7986 (4742) (0397).— Section 1. Any creditor shall be entitled to proceed by attachment against his debtor in the circuit court of the county in which the cred- itor or the debtor (or in case of joint debtors, either of them) shall reside, if the debtor have property subject to attachment in said county; and in case the debtor has no {property in said county, or is a non-resident of this state, then in the circuit court of any county where the property of the debtor subject to attachment may be found, in the cases, upon the conditions, and in the manner provided in this chapter. § 7987 (4743) (0398).— Sec. 2. Before any such writ of attachment shall be exe- cuted, the plaintiff, or some jjerson in his behalf, shall make and annex thereto an affidavit, stating that the defendant therein is indebted to the j^laintiff, and specifying the amount of such indebtedness as near as may be, over and above all legal set-offs, and that the same is due upon contract, exjiress or imj^lied, or upon judgment, and containing a further statement that the deponent knows, or has good reason to believe, either: First. That the defendant has absconded, or is about to abscond from this state, or that he is concealed therein, to the injury of his creditors; or, Hecond. That the defendant has assigned, disjjosed of or concealed, or is about to assign, dispose of or conceal any of his property with intent to defraud his creditors; or. Third. That the defendant has removed, or is about to remove any of his prop- erty out of this state, with intent to defrauel his creditors; or, Fourth. That he has fraudulently contracted the debt, or incurred the obliga- tion respecting which the suit is brought; or. Fifth. That the defendant is not a resident of this state, and has not resided therein for three months immediately ijreceding the time of making such affi- davit; or, II Attachmest— 11. 562 MICHIGAN, Sixth. That the defendant is a foreign corporation: Provided, that such affidavit shall not be deemed insufficient by reason of the intervention of a day between the date of the jiirat to such affidavit, and the issuing of the writ, and that when the person making such affidavit shall reside in any other county in this state, than that in which the wi'it of attachment is to issue, one day's time for every thirty miles travel, by the usual post route, from the residence of such person to the place from which such writ shall issue, shall be allowed between the date of such jurat and the issuing of such writ. § 7988 (4744) (6399).— Sec. X Such writ of attachment shaU be indorsed in the same cases, and in the same manner, as original writs are required by law to be indorsed, by some person as security for costs, and with the like effect. § 7989 (4745) J6400).— Sec. 4. No writ of attachment shall be issued under the provisions of this chapter, unless the amount stateil in such affidavit as due to the plaintiff, over and above all legal set-offs, shall exceed the sum of one hundred dollars. § 7990 (4746) (6401).— Sec. 5. Such ^vrit shall command the sheriff or other officer to whom it may be directed, to attach so much of the lands, tenements, goods, chattels, moneys, and effects of the defendant not exempt from execution, wheresoever the same may be found within the county, as will be sufficient to sat- isfy the plaintiff's demand, and safely keep the same to satisfy any judgment that may be recovered by the plaintiff in such attachment, and also to summon the defendant, if to be found within his county, or in any county where he may have seized property under and by virtue of the provisions of section six of said chap- ter 114, of the Revised Statutes of 1846, as amended, to appear before the circuit court, at the time and place to be specified in such writ, to answer the plaintiff; and such writ shall be tested and made returnable in the same manner as other writs issuing out of the circuit court. § 7991 (4747) (6402).— Sec. 6. The sheriff or other officer to whom such -m-it shall be directed, shall execute the same on or before the return day thereof, by seizing so much of the lands, [tenements], goods, chattels, moneys and effects of the defend- ant, wheresoever the same may be found in his county, as will be sufficient to sat- isfy the demand and costs, and by making an inventory thereof, and serving a copy of such attachment and inventory, certified by him, upon the defendant, if he can be found in his county; and in case any property of the defendant is found and seized in said county, but not sufficient to satisfy the demand and costs, then said officer shall seize other property of the defendant, subject to attachment, suf- ficient with that seized within his county to satisfy the demand and costs, when- ever the same may be found within the state, and shall serve a copy of such at- tachment and inventory upon said defendant, if found within either county where property has been seized under this writ: Provided, however, that in case of several attachments of the same property, it shall be necessary to make an inventory, and serve a copy thereof only with the first. § 7992 (4748) (6403).— Sec. 7. The property so attached shall be appraised by two disinterested freeholders of the county in which said property was seized, who shall first be sworn by the officer to make a true appraisement thereof, which ap- praisement shall be signed by such freeholders and returned with the wi-it: Pro- vided, that in case of several attachments of the same property, one inventory and appraisal shall be sufficient, and the subsequent attachment shall be served on the property as in the hands of the officer, by reference to the inventorj' and appraisal under the first writ. § 7993 (4749) (6404).— Sec. 8. In attaching real estate, or any right or interest in land, it shall not be necessary that the officer should enter upon the land or be within view of it; and in attaching shares of stock, or the interest of a stockholder in any corporation organized imder the laws of this state, the levy shall be made in the manner provided by law for the seizure of such property on execution. § 7994 (4750) (6405).— Sec. 9. Such attachment shall bind the goods and chat- tels so attached from the time they were attached. § 7995 (4751) (6406).— Sec. 10. Real estate attached shall be bound, and the attachment shall be a lien thereon from the time when a certified copy of the at- tachment, with a description of the real estate attached, shall be deposited in the office of tte register of deeds in the county where the real estate attached is situated. § 7996 (4752) (6407).— Sec. 11. Each register of deeds shall note on every such certified copy the day, hour, and minute when he receives it; and shall also enter in a book to be kept by him for that purpose, the names of the parties in such writ, MICHIGAN. 563 Jesig:nating who is plaintiff and who defendant, the time when the land was a^itached, and the time when such copy was deposited. § 7997 (4753) (6408).— Sec. 12. The register of deeds shall he entitled to a fee of twenty-fi^'c cents for his services in each case, to be paid on the delivery of such copy; and the appraisers of the property attached pursuant to the provisions of this chapter, shall each be entitled to receive one dollar for each day, and fifty cents for each half day necessarily occupied by hun in the appraisal, and six cents per mile for traveling one way, to be paid on the rendition of the services; which fees and compensation may be taxed for the plaintiff in his bill of costs. § 7998 (4754) (6409).— Sec. 13. The property attached shall remain in the hands of the officer serving the attachment, unless the defendant, or any other person in whose possession such property may have been found, shall, before judgment in such suit, deliver to the officer a bond, executed to him by two or more Bufhcient sureties, being freeholders within this State, either with or without such defendant, or other person, to the satisfaction of such officer, as hereinafter pro- vided. § 7999 (4755) (6410).— Sec. 14. Such bond may be in a penalty double the amoimt specified in the affidavit annexed to the writ, as due to the plaintiff, con- ditioned for the payment of any judgment which may be recovered by the plaint- iff in the suit commenced by such attachment, within sixty days after such judg- ment shall be rendered; or in a penalty double the ai^praised value of the prop- ert J', and conditioned that such property shall be produced to satisfy any execution that may be issued on any judgment to be recovered by the i>laintiff uj^on such attachment. § 8000 (4756) (6411).— Sec. 15. _ Upon the execution and delivery of such bond as provided in the preceding sections, the i^roperty attached shaU be delivered by the officer to the defendant or person in whose possession the same shall have been found, but the suit shall not be discontinued or in any way affected by such delivery. § 8001 (4757) (6412).— Sec._16. In case of a failure to perform the condition of any such bond, the plaintiff in such attachment may prosecute a suit thereon for his benefit, in the name of such officer, or his successor in office, or may take an assignment of such bond and sue thereon in his own name; and shall be entitled to recover thereon the full value of the property attached, or so much thereof as shall be sufficient to satisfy the judgment rendered on such attachment, with interest and costs. § 8002 (4758) (6413).— Sec. 17. Upon the return of such writ, if it appear that a copy thereof has been personally served on the defendants, or either of them, or if either of the defendants shall appear in the suit, the same proceedings may be thereupon had in such suit, in all resiDects, as upon the return of an original writ of summons personally served, in a suit commenced by such summons. § 8003 (4759) (6414).— Sec. 18. If it appear by the return of such writ that any property has been attached thereon, and that neither of the defendants could be found, the plaintiff shall, within thirty days after such return, unless the defend- ants or some of them shall sooner appear in the siiit, cause a notice to be published in some newspaper printed in the county for which said circuit coiu-t is held, and if no newspaper is printed in said county, then in some newspaper printed in the judicial circiiit in which such wi-it shall be returned, which notice shall state the names of the parties, the time when, from what court, and for what sum the writ was issued, and when the same was returnable, and shall be published for six suc- cessive weeks, and if any plaintiff shall neglect to cause such notice to be so pub- lished, as required in this section, the attachment shall be dismissed with costs. § 8004 (4760) (6415).— Sec. 19. If any bond shall have been given to the sheriff or other officer serving the wTit, as hereinbefore pro\'ided, he shall state the fact in his return to the attachment, and return and file such bond therewith; and if any such bond shall be given after the return of the writ, and before judgment, such sheriff or other officer shall immediately cause the same to be filed in the clerk's office to which such writ was returned, and give notice thereof to the plaintiff or his attorney. § 8005 (4761) (6416).— Sec. 20. If a copy of the attachment shall not have been served upon any of the defendants, and none of them shall appear in the suit, the plaintiff, on filing an affidavit of the publication of the notice hereinbefore required for six successive weeks, may file his declaration in the suit, and proceed therein as if a copy of such attachment had been served upon the defendants. 664 MICHIGAN. § 8000 (4762) (6417).— Sec. 21. If anv defendant not served with a copy of the attacbment, shall appear at any time before judgment, he may be admitted by the court to defend the suit, upon such terms as the court may deem reasonable. § 8007 (4763) (6418.)— Sec. 22. When a copy of the attachment shall have been personally served on the defendant, or such defendant shall have appeared in the suit, judgment shall be rendered, and execution shall issue thereon, in the same manner and with the like effect as in a suit commenced by summons, in which the summons shall have been returned personally served, except that by virtue of such execution, the officer to whom the same shall be directed and delivered may sell any property attached in the suit, and remaining in the hands of the officer who served the attachment, wherever the same may be in this state. § 8008 (4764) (6419).— Sec. 23. When a copy of the attachment shall not have been served, and the defendant shall not have appeared in the suit, judgment shall be rendered, and execution may issue in the same form as if such copy had been personally served, but .such judgment shall not be conclusive against the defend- ant, and such execution shall only authorize the officer to whom it is directed to sell the x^roperty attached in such suit. § 8009 (4765) (6420).— Sec. 24. In the case specified in the last section, the attorney issuing the execution shall indorse thereon or annex thereto a description of the property so attached, with a direction to the officer to sell -the same, or so much thereof as may be sufficient to satisfy the execution, and not to levy the same or any part thereof upon any other property. § 8010 (4766) (6421).— Sec. 25. If a bond shall have been given to the officer, conditioned for the payment of the judgment, as provided in the thirteenth and fourteenth sections of this chapter, and judgment be rendered in favor of the plaintiff, it shall not be necessary to issue any execution upon such judgment, to entitle such plaintiff to sue on such bond. § 8011 (4707) (6422).— Sec. 26. When any of the property taken in attachment shall consist of animals or perishable property, the court, or any judge thereof, may make an order, directing such property to be sold, and the money arising from such sale to be brought into court, to abide the order of such court. § 8012 (4708) (6423). — Sec. 27. Upon such order for a sale being made, the offi- cer having such property shall advertise and sell the same, in the same manner that personal property is required to be advertised and sold on execution, andshaU deposit the proceeds thereof with the clerk to whose office the attachment is re- quired to be returned. § 8013 (4769) (6424).— Sec. 28. If the plaintiff recover judgment, the coiirt may order such money to be paid to the plaintiff thereon; but if judgment be rendered against the plaintiff, or the suit be discontinued, or the attachment dismissed, the court shall order such money to be paid to the defendant, or person entitled thereto. § 8014 (4770) (6425).— Sec. 29. The practice in actions commenced by attach- ment shall be the same in all respects as in personal actions commenced by sum- mons, as near as may be, except as otherwise i^rovided by law. § 8015 (4771) (6426). — Sec. 30. When two or more persons are jointly indebted as joint obligors, partners, or otherwise, and an affidavit shall be made, as pro- vided in section two of this chapter, so as to bring one or more of such joint debtors within its provisions, and amenable to the i^rocess of attachment, then the ■wi-it of attachment shall issue against the i^roperty and effects of such as are so brought within the provisions of said section; and the officer shall be also directed in said ^\Tit to summon all such joint debtors as may be named in the affidavit at- tached thereto, to answer to the said action as in other cases of attachment. § 8016 (4772) (6427).— Sec. 31. If any estate which shall be attached shall be subject to a mortgage, or other incumbrance, and the mortgage shall be redeemed, or the incumbrance removed before the sale on the execution, such estate may be sold on such execution in the same manner and with the same effect as if the mort- gage or other incumbrance had never existed. discharge of satisfied attachments from record. § 8017 (Section 1). — Sec. 32. Any attachment on real estate shall also be dis- charged upon the record thereof by the register of deeds in whose custody it shall be, whenever there shall be presented to him a certificate executed by the plaint- iff, his personal representatives or assigns, duly acknowledged, specifying that such MICHIGAN. 665 attachment has been removed or otherwise satisfied or discharged; or upon the presentation to such register of deeds of the certificate of the circuit court for the county, signed by the county clerk of said court and under seal thereof, certifying that it has been made to appear to said coui-t that said attachment has been duly removed or otherwise settled. ATTACHMENTS IN SUITS PREVIOUSLY COMMENCED BY SUMMONS OR DECLARATION. §8018(0432). — Sec. 1. In any action founded on contract, expressed or im- plied, which has been or may hereafter be commenced, by summons or declaration, in any court of record in this state, the plaintiff may, at any time before judgment shall be rendered therein, proceed by attachment, in the same action, against the property of the defendant, in the manner hereinafter provided. § 8019 (G433). — Sec. 2. At any time after said summons or declaration shall have been personally served on the defendant or defendants, or either of them, the plaintiiT, or some person in his behalf, may make and file with the clerk of the court in which such action shall have been commenced, an affidavit, which affidavit shall conform to and be governed by the provisions of section two, of chapter one hundred and fourteen, of the Revised Statutes of eighteen hundred and forty-six, and being chapter one hundred and forty of the Compiled Laws. § 8020 (6434). — Sec. 3. Upon filing such affidavit, said clerk shall issue a writ of attachment, which writ shall recite the commencement of said action, and shall command the sheriff to attach so much of the lands, tenements, goods, chattels, moneys and effects of the defendant not exempt from execution, wherever the same may be found in the county, as shall be sufficient to satisfy the plaintiff's demand, and safely keep the same, to satisfy any judgment that may be recovered by the plaintiff in such action; and such writ of attachment shall he made returnable in not less than fourteen nor more than thirty days from the issuing thereof. § 8021 (6435). — Sec. 4. The subsequent proceedings by virtue of such attach- ment, so far as the same are not herein provided for, shall be the same as provided in said chapter one hundred and fourteen, of the Revised Statutes of eighteen hun- dred and foi'ty-six, avid the amendments thereto, so far as the same are applicable, except that no additional declaration shall be made necessary by such writ of at- tachment; and any judgment recovered in the action, in favor of the plaintiff, shall be conclusive against the defendant, who shall have been personally served with the original summons or declaration; and the execution issued thereon shall authorize the levying upon and selling of any property of the defendant so per- sonally served, not exempt from execution, as well as the i:)roperty attached, whether such attachment shall have been personally served or not. § 8022 (6436). — Sec. 5. The defendant shall have the same right to procure said attachment to be dissolved, and in the same manner as is now provided by law for the dissolution of attachments; but the dissolution of such attachment shall have no other effect on the proceedings than to release the property attached. § 8023 (6437). — Sec. 6. The bond to be given by the defendant for the discharge of the property so attached shall be in a j^enalty at least double the amount speci- fied in the affidavit filed in the cause, as due to the plaintiff, and shall be condi- tioned for the payment of any judgment which may be recovered by the plaintiff in the cause in which such ^v^it of attachment is issued, within sixty days after such judgment shall be rendered; or in a jienalty double the appraised value of the property attached, and conditioned that such property shall be produced to satisfy any execution that may be issued, on any judgment to be recovered by the [ilaintiff in said cause. § 8023a (6438). — Sec. 7. The issuing of said writ of attachment, and the pro- ceedings under and by virtue of the same, shall in no manner stay the proceedings commenced by the original summons or declaration, but the defendant may, aside from the proceedings made necessary by such attachment, proceed in the cause in the same manner as though no attachment had been issued. COLLECTION OP DAMAGE FOR TRESPASS, ETC., ON LANDS BY ATTACHMENT. § 8024 (Sec. 1). — In all cases where a party has a right of action for the taking of timber or other trespass on lands, or for any injury to lands, whether direct or consequential, it shall be lawful for the party having such right of action to waive the tort and bring assumpsit therefor. § 8025 (Sec. 2). — When tort is waived, as provided in the preceding section, the jjlaintiff may commence his suit 1 ly attachment against the property of the defend- ant, as in other cases, and his affidavit for such attachment shall state the amount 566 MICHIGAN. due him as near as may be, and the fact that the damages are unliquidated shall not prevent the bringing and maiataioing of such writ. ATTACHMENT IX TORT AGAINST NOX-RESIDEXT DEFEXDAXT3, CAERTIXG OX BUSINESS IX THIS STATE. § 802oa (Sec. 1). — Actions of tort mar be commenced in courts of record within this state, by writ of attachment against non-residents where the cause of action has arisen, or hereafter may arise, in this state. Such writ shall be in the same form as in attachment suits on contract, and the proceedings shaU. be the same aa in actions of contract commenced by attachment, except as is herein provided to the contrary. § 80256 (Sec. 2). — An aflBdavit shall be annesed to said writ, ftdly describing the cause of action; also that the defendant is a non-resident; that the cause of ac- tion arose in this state, and that the defendant is carrying on business, or is the owner of j)roperty within the state, and no other or further affidavit shall be required. § S025c (Sec. 3). — ^Before any property shall be attached on said writ, an order must be indorsed thereon by a circuit court commissioner of the comity where the suit is commenced, or by any circuit or supreme judge, prescribing the amount of property that may be attached, which order shall be substantially as follows : ' ' Let the property of the defendant in the within writ be attached to the amount of dollars." Such order shall be signed by the officer allowing the same. Such property may be released in the manner prescribed in the geheral law relating to attachment suits on contract. § 802od (Sec. 4).— The same proceedings shall be had in serving and executing such writ of attachment as is now had in attachment proceedings in assimapsit, and service upon defendant shall be in all respects as prescribed in chapter two hun- dred and one of the ComfiUed Laws of eighteen hundred and seventy-one, and the acts amendatory thereto. But if the defendant has a manager, agent, superin- tendent, or other principal representative -within the county where the suit is brought, there shall be served upon such manager, agent, superintendent, or other principal representative, the same papers that are now required to be served upon defendants in attachment suits in addition thereto. DISSOLUTIOX'OF ATTACHMEXTS. § 8026 (4773) (6428). — Sec. 1. In aU cases where a writ of attachment has been or shall be issued and served imder the provisions of law, it shall be lawful for any defendant whose property may be attached by virtue of such writ, to apply to the judge of the circuit court, or to the circuit court commissioner of the county where such Writ issued, for a dissolution of such attachment; which application shall be in writing, and shall contain the reasons for such application. § 8027 (4774) (6429).— Sec. 2. Upon the presentation of such application, the judge or said commissioner shall issue a citation to the plaintiff in attachment, re- quiring him to show cause on a day and at a time and place in said citation to be named, before the said judge or commissioner, why the said attachment should not be dissolved, and the property be restored to the defendant in attachment. § 8028 (4775) (6430).— Sec. 3. The citation shall be served^ three days at least before the return day thereof, by reading it to the plaintiff in attachment (or to either of them, if there be more than one), if found within the county, and if not, then the same may be served upon the agent or attorney of the plaintiff, by the sheriff, either of his deputies, or any constable or other person authorized by such judge or commissioner; and on the retiu-n day thereof, or at such other day there- after as the judge or commissioner shall appoint for that purpose, he shall proceed to hear the proofs and allegations of the parties; and if said judge or commissioner shall be satisfied that such plaintiff had not a good and legal cause for suing out such writ, the said judge or commissioner may order such attachment to be dis- solved, and the property attached to be restored to the defendant, and may, at hia discretion, require the said defendant to enter his appearance to the plaintiff's ac- tion prior to the dissolution of such attachment. § 8029 (4776) (6431).- Sec. 4. The judge or commissioner shall have fidl power to issue subpoena,s, and, if necessary, attachments, to compel the attendance of witnesses to testify in such cases, and may, in his discretion, require the party moving for such dissolution to give security for the costs of such proceedings, and may order the costs of such proceedings to be paid by the party against whom the MICHIGAN. 567 decision shall be in the premises, and may issue execution therefor, returnable in sixty days from its date. APPEALS. § 8030 (Sec. .'>). — Either party conceiving himself aggrieved by the determina- tion, order, or judgment of any circuit court commissioner under the provisions of this act, may appeal therefrom to the circuit court of the same county, and a re- turn may be compelled, and the same proceedings shall be thereupon had as near as may be and with the like effect as in cases of appeal from judgments rendered before justices of the peace, and costs shall be awarded and collected in the circuit court in the same manner, and on perfecting the said appeal said attachment pro- ceedings and the levy thereunder shall be held in the same condition and of the same force and validity as when said x»roceedings for a dissolution of said attach- ment were commenced, and the officer executing said attachment shall continue to have the same rights and duties imder said attachment as regards the property at- tached as if said proceedings had never been commenced; and any order or judg- ment made by such commissioner dissolving said attachment shall have no force or effect to release the attached property from the attachment levy until the same shaU be aflirmed by the circuit court, if appealed from, and no such order shall be issued in any case by any commissioner until the expiration of five days after the making of the same; and the said circuit court shall also have full power and juris- diction over said cause and proceedings to hear and determine the same and render judgment therein, as if the said proceedings had been originally commenced before the said circuit judge thereof. And either party to said proceedings in said appeal shall, if he so elect, be entitled to have the issue in said proceedings tried by a jury as in ordinary suits in said court. PEOCEEDLN'GS AG.UyST GAEJTISHEES IX COURTS OF KECOED. § 80.j8 (64G5). — Sec. 1. In all personal actions arising upon contract, express or implied, brought in the several circuit comls or municipal courts of civil juris- diction, whether commenced by declaration, writs of capias, summons or attach- ment; and in all cases where there remains any sum unpaid upon any judgment or decree rendered in any of the ;.^veral courts hereinbefore mentioned, if the plaintiff, his agent or attorney, shall file with the clerk of the court at the time of or after the commencement of suit, or at any time after rendition of judgment or decree, an affidavit stating that he has good reason to believe, and does believe, that any fierson (naming him) has property, money, goods, chattels, credits or effects in his hands or under his custody or control, belonging to the defendant, or that such person is indebted to the defendant, whether such indebtedness is due or not, and that the principal defendant (naming him) is justly indebted to the plaintiff on such contract, judgment or decree in a given amount, over and above aU legal set-oifs; and that the f)Iaintiff or affiant is justly apprehensive of the loss of the same, unless a writ of garnishment issue to the aforesaid person; a writ of garnishment shall be issued, sealed and tested in the same manner as writs of sum- mons, and dii-ected to the sheriff, reciting the commencement of said suit, or the rendition of judgment or decree against the principal defendant, and the tQing of the affidavit aforesaid; and thereuiDon conmianding the said sheriff to warn and summon such person to appear before said court on a day named, not less than fourteen days from the date of issuing the same, to make disclosure in writing under his oath, to be filed with the clerk of said court, touching his liability as garnishee of the princii^al defendant (naming him), as charged in said affiua^"it, and thenceforth paj' no money and deliver no xjrojjerty to the principal defendant, and of said writ make due return. § 8059 (13406). — Sec. 2. From the time of the service of such writ, the gar- nishee shall be deemed liable to the plaintiff to the amount of i^roperty, money, goods, chattels and effects in his control lielonging to the principal defendant, or of any debts due or to become due from such garnishee to the principal defendant, or of any judgment or decree in favor of the latter against the former, and for all property, personal and real, money, goods, chattels, evidences of debt or effects of the principal defendant, which such garnishee defendant holds by a conveyance, transfer or title that is void as to creditors of the principal defendant; and such garnishee shall also be liable on any contingent right or claim against him in favor of the jjrincipal defendant. § 8060 (6407).— Sec. 3. Unless the plaintiff in such action shall within ten days after notice is served upon him or his attorney, of the filing of the garnishee's dis- closure with the clerk of the court, file special interrogatories thereto, or file a demand for an examination of such garnishee before the judge of the court or a circuit court commissioner, such disclosure shall be deemed sufficient unless the 568 MICHIGAN. ^udge of the coiirt on application and sho'udng shall extend the time for filing suet interrogatories or demand for such examination. § 80C1 (6468). — Sec. 4. If special interrogatories shall be filed to such disclosure as aforesaid, the garnishee or his attoi-ney in such action shall V)e served with a copy of the same, together with a notice from the plaintiff or his attorney that such garnishee is required to answer such interrogatories in writing within ten days after such service; said garnishee shall answer the same on oath and file such answer with the clerk of said court within said ten days : Provided, such time may Ije ex- tended on application and showing to said court. If such jjlaintLff shall file in said cause a demand for the examination of such garnishee before said judge or a circuit court commissioner, and shall cause a copy of the same to be served on such defend- ant, with a notice from the plaintiff or his attorney requiring such garnishee to appear before the judge or a circuit court commissioner, at a time and f)lace to be named in such notice, not less than three nor more than ten days after service of such notice, which time may be enlarged by the judge or commissioner on special cause shown, and submit to an examination, on oath, concerning all matters of his liabUitj- as such garnishee under this act, which copy shall be served, and such service proven, when required, in the same manner as in cases of service of a declaration in suits commenced by declaration. Such garnishee defendant shall appear and submit to such examination as required by such notice. And if such garnishee shall fail to appear for examination at the time and place appointed by such notice, or if such garnishee shall fail or refuse to file his answers to such written interrogatories as required by this act, or if such answers are not full and responsive to such written interrogatories, the judge of the court, or a circuit court commissioner, upon application of the plaintiff, shall make an order that the gar- nishee do appear before him and submit to such examination at such a time and place to be named in such order. The testimony or statement made on such per- sonal examination shall be reduced to ■writing by the commissioner or judge, and signed by the garnishee, and said commissioner or said judge shall report and file the same with the clerk of the court, and the same, and the answer to the written interrogatories, in cases where ■\\Titten interrogatories are filed and answered as above, shall be deemed part of the disclosure of such garnishee. § 80G2 (G4G9). — Sec. 5. If such garnishee does not appear and file his disclosure with the clerk of the court aforesaid, on or before the retiu-n day of such ^vrit, or if the time for so doing be enlarged, as hereinafter provided, then at the expiration of such enlarged period, or if special interrogatories shall be filed and served as provided by this act, and such garnishee does not file his answers thereto as re- quired by the notice thereon, or if demand for his examination before a judge or [a] circuit court commissioner be filed and a copy served as provided by this act, and such garnishee does not appear and submit to an examination, as required by the notice indorsed thereon, the default of such garnishee for want of appearance and disclosvire, or want of answers to such special inteiTogatories, or for want of appearance and submission to such examination, may be entered in the cause, and made absolute as in other personal actions, and in case of final judgment against the priacix^al defendant, judgment may be rendered and execution issued against such garnishee, his goods and chattels, lands and tenements, for such amount as the plaintiff shall recover against the principal defendant. Such defaults may be set aside for any cause for which default for want of appearance and plea may be set aside upon such terms as the court may impose. § 80C3 (G470). — Sec. 6. A circuit court commissioner of the county where such proceedings shall be commenced, or the circuit judge, may, for proper cause sho^wn, by afiidavit of any credible person, make an order enlarging the time for the garnishee to file his disclosure, and such order shall lie filed with the clerk of the court, and'a copy thereof served on the plaintiff in the action, or his attorney; but such time shall not be enlarged more than three times, nor enlarged except by assent, beyond the day previous to the fii'st day of the term at which the suit against the debtor may be properly returned noticed for triah Sec. 7.— Repealed, 1883, p. 398, Act 231. 8034 (G471). — Sec. 8. If upon the disclosure, or the trial of the statutory issue hereinafter provided for, it shall appear that the garnishee had in his jjossession at the time of the service of the process upon him, or thereafter, any promissory note, bill of exchange, order, receipt, bond, or other written promise for the payment of money, or the delivery of jiroperty belonging to the principal defendant, the garnishee shall deliver the same to the commissioner or other person ajspointed by the judge or commissioner as a receiver, if by him or the court so ordered; and it shall be his duty, under the direction of the court, to collect and apply the pro- ceeds upon any execution in favor of the plaintiff and against the garnishee, and to pay him the surplus, if any. MICHIGAN. 569 § 80G5 (6472).— Sec. 9. If it shall appear, as aforesaid, that the garnishee had in his possession, as aforesaid, any personal property of the principal defendant, and that the same is subject to any pledge, lien or mortgage, and at the time of the disclosure has not been sold by the garnishee, the same shall be delivered by the garnishee to the commissioner or receiver, if the commissioner or judge so order, to be by him disposed of under the direction of the com-t, if a greater amount than the incumbrance can be obtained therefor, and after paying the amount of such incumbrance, to apply the balance as aforesaid, or the plaintiff may be allowed by like order to pay or tender the amount due the garnishee. 80G6 (G473). — Sec. 10. If, in either of the cases specified in the two preceding sections, the garnishee shall refuse to comply with the order of the judge or com- missioner for delivering, such garnishee shall be held liable for the amount of the note, order, choses in action, or personal property, upon the report of the commis- sioner of such refusal and amount, and judgment shall be rendered and execution issued accordingly, as uiaon default. § 8067 (G474). — Sec. 11. In either of said cases the judge, commissioner, or receiver, shall add to his report a statement of an3' order made by him, and the delivering to him of any property or thing, with a descrii:tion and valuation thereof, to be ascertained by appraisement or inquiry upon uath, or in such mode as the commissioner or judge shall direct, to his satisfaction. § 80G8 (G475).— Sec. 12. The affidavit for the writ of garnishment shall be held and considered as a declaration by the idaintiff in trover a;;,;ainst the garnishee as defendant, where the garnishee is chargeable for proi^erty, and for money had and received, when he is chargeable upon indebtedness against the garnishee, and upon the filing of the garnishee disclosure, or upon filing of the answers to such written interrogatories in cases where the same are reqliired and filed, or r,pon the filing of the report of the testimony or statement made bj^ sucli garnishee on such personal examination in cases where such examination is had, the matter of such affidavit shall be considered as denied, except so far as the same is admitted by such disclosure, answers to interrogatories or report, which admissions shall have the effect of admissions in a plea, and also shall be prima facie evidence of the matters therein admitted. And thereupon a statutory issue shall be deemed framed for the trial of the question of the garnishee's liability to the plaintiff. And judgment may be rendered against such garnishee defendant, as iijion declara- tion and plea, or [on] plaintiff's motion to the court at any time after the final judgment against the defendant in the princi]:)al cause, without further notice to such garnishee: Provided, hotvever, if such plaintiff or such garnishee defendant shall within ten days after filing of such disclosure, answer, or statement, file with the clerk of such court a demand for trial of the cause, said cause shall stand for trial in the manner provided by this act. § 80G9 (0476). — Sec. 13. In case judgment shall have been rendered in favor of the plaintiff in the i^rincipal action, before the commencement of such garnishee proceedings, or before the framing of such statutory issue, such issue shall be brought to trial in the same manner as a personal action; but in case judgment shall not have been so recovered in the pa-incipal action, then such statutory issue shall stand for trial at the term at which the issue against the i:irincipal defendant shall be tried and finally disijosed of; and if the latter issue be determined against the plaintiff at any time thereafter, ui^on motion of the garnishee, judgment shall be entered in his favor ujion the statutory issue, and for costs against the plaintiff, reciting the framing of such issue, and the judgment in favor of the principal defendant. § 8070 (G477). — Sec. 14. If the jilaintiff obtain judgment against the pi-incipal defendant, in the circuit court, and the latter does not, within two days thereafter, serve upon the garnishee notice of motion for new trial, or of his intention to re- move the cause to the supreme court, the statutory issue shall stand for trial at the term of the court on the docket containing the suit in the order of formation of such issue: Provided, that in case the suit be on the court docket, and a jury be demanded by the garnishee, the court shall appoint a day for the jury trial of such cases, unless the jury be dismissed, and in that event, the case shall stand on the jury docket of the next term: Provided, further, that continuances may be applied for and granted, as in ordinary cases, and that the plaintiff shall cause the clerk to place the case on the docket in its proper position, and shall give notice thereof in ■writing to the garnishee at the same time. § 8071 (G478). — Sec. 15. Upon the trial, the report or any other competent evi- dence supporting or controverting it may be offered by the plaintiff, and the gar- nishee may offer any evidence not controverting the disclosm-e, or in the discretion of the coiirt he may be allowed to show errors and mista-kes in his disclosure, and 570 MICHIGAN, may also stow the amount of the judgment and costs against the principal defendant. §8072(6479). — Sec. 16. If by the verdict the garnishee be found liable, aa such, for an amount equal to or greater than the judgment and costs against the principal defendant, judgment shall i^ass only for the latter amount; in other cases it shall pass for the amount of liability ascertained by the verdict. § 8073 (6480). — Sec. 17. If on such trial judgment shall be rendered against the garnishee for a greater amount, or for other property than he would have been chargeable for on his disclosure, it shall carry full costs, otherwise the garnishee shall recover costs; execution shall issue as in ordinary cases. § 8074 (6481). — Sec. 18. Whenever, in case of recovery by the plaintiff against the principal defendant, he shall have removed the same to the supreme court, and the judgment shall have been aflormed, the statutory issue, in garnishment, shall be tried at the end of the next court, or at the term to which the cause may be continued, or at the end of that which was in process of disposal at the time of the affirmance. § 8075 (G482).— Sec. 19. When the garnishee shall be found indebted to the princij^al defendant, and the time of payment shall not have arrived, no judgment shall pass until after the time of maturity, which shaU be named in the finding or verdict. § 8076 (6483). — Sec. 20. When the garnishee shall be chargeable, by reason of any goods or chattels, other than monej', which he holds or is bound to deliver to the principal defendant, not subject to any lien, judgment shall be rendered and execution issued against the garnishee for so much thereof as may be necessary to satisfy the same, and he shall make delivery to the officer, who shall sell and ajjply and account for the proceeds as usual in ordinary executions. § 8077 (6484).— Sec. 21. If the garnishee be found to be under contract for the delivery of any specific article to the principal defendant, or to make payment therein, judgment shall be rendered and execution issued against the garnishee for so much thereof as shall be necessary to satisfy such execution, which articles shall be paid and delivered to the plaintiff according to the contract. § 8078 (6486). — Sec. 22. When such specific goods were to be delivered to the principal defendant at a certain time and place, the garnishee shall not be com- pelled, by reason of the garnishment, to deliver at any other time and place, but may deliver as provided for in the contract, imless previously adjudged liable aa garnishee. § 8079 (6486).— Sec. 23. The plaintiff shall be deemed the agent of the prmci- pal defendant for the purpose of recovering the goods, chattels and articles men- tioned in the two preceding sections, and may levy his execution thereon to the amount of his debt and costs; and if no division of such goods, chattels or articles can lie made, the whole may be sold; and the property unsold, and the overplus of the i^roceeds of the property sold, shall be delivered by the officer to the x>rincipal defendant on demand. ■ § 8080 (6487). — Sec. 24. If any person adjudged liable as garnishee for any goods, chattels, or other property whatever, shall refuse to expose the same so that the plaintiff may levy his execution thereon, the comi} shall, on return thereof made by the officer, grant a rule ui^on such garnishee to show cause why execution should not issue against said garnishee, his ovm goods and estate; and upon due service of such rule, and no sufficient cause sho\\Ti to the contrary, execution shall be issued against him for such sum as the court may adjudge. § 8081 (6488). — Sec. 25. All bills of, exchange and promissory notes in the hands of the garnishee at the time of the service of the writ of garnishment shall be deemed effects under the pro^asions of this act; and if it shall appear, by the disclosure, that the garnishee at such time, or thereafter, and prior to the disclos- m-e, is indebted to the principal defendant by such bUl or negotiable promis- sory note, and made payable in this state, or the parties to which, at the time of making the same, resided in this state, the judge or commissioner may issue a citation requiring the principal defendant to appear before him and answer on oath all interrogatories respecting the possession, transfer, or other disposition of said bills of exchange or i^romissory notes; and such order may contain the name of any other person supposed to claim an interest in such paper, so that he may ajipear and show that the same was transferred to him in good faith, and for an adequate consideration, before the sei-vice of the writ of garnishment; and such citation shall be of ten days, and may be served by any person at least five days MICHIGAN, 571 prior to the return day, and returned by affidavit, and sTiall be annexed to tho commissioner's re^jort. § 8082 (6489).— Sec. 26. The parties cited shall be examined in like manner as the garnishee, and if it shall not appear that the note or bill was so transferred, the maker or acceptor shall be charged as garnishee, and the payment of the judg- ment rendered against him shall Ije a discharge from the note, or such part thereof as is equal to the amount so paid by him, together with all costs taxed in his favor. § 8083 (6-190). — Sec. 27. If the principal defendant, or other party cited, shall refuse to appear upon such citation, upon the filing of the report, he may be pro- ceeded against as for a contempt, or brought before the court on a bench warrant, and fined in the discretion of the court, and held in custody until disclosure to the court, the same to be reduced to writing by the clerk and attached to the report. § 8084 (6491). — Sec. 28. No disclosure, as answer of any person, or any other proceeding under the provisions of this act, shall be used in evidence upon any criminal prosecution against such person, exce^jt upon a prosecution of the gar- nishee for perjury in making his disclosure. § 8085 (6492). — Sec._ 29. If any person shall claim any property as aforesaid, iu the hands of any garnishee, by assignment from the principal defendant, or other- wise, the coiu't may permit or cause him to appear and maintain his right in such mode as the court shall dii-ect. The testimony of the principal defendant, or of any competent witness, may be taken in such manner as the court shall direct, and attached to the disclosure, and the com-t may award such costs between such com- plainant, the plaintiff and the garnishee as justice and equity may require. § 8086 (6493). — Sec. 30. Any corporation, domestic or foreign, other than mu- nicipal, may be garnished under this act. If domestic, the writ of garnishment may be served upon the president, secretary, cashier or treasurer, sui:)erintendent or general agent, or such other officer as the corporation may apj^oint, or the court direct; and the officer served, and such other officer as the court or commissioner may order, Ijy rule or citation, as in cases hereinbefore provided for, shall make disclosure, and the same shaU be considered the answer of the corporation. § 8087 (6494). — Sec. 31. If the plaintiff, in addition to the allegations herein- ' before required to be contained in the affidavit for the writ of garnishment, shall set forth in such affidavit that the principal defendant is a non-resident, or a for- eign corporation created in any jurisdiction (naming it), the principal writ (or declaration) and affidavit may be filed of the day of issue, and the vrvit of garnish- ment may be served as in ordinary cases; and within sixty days after such service the plaintiff shall cause to be delivered to such non-resident defendant, or to the president, secretary, cashier or treasurer of such foreign corporation, residing out of this state, or upon any officer, clerk or agent, residing or to be found within this state, a true copy of the principal writ (or declaration), affidavit and writ of gar- nishment, with return of service thereon, and with a wi-itten or printed notice at- tached, signed by the plaintiff or his attorney, and stating that said non-resident defendant or foreign corx^oration is notified to appear and defend within thirty days after such service, or default will be entered, and judgment taken; and iqjon filing an affidavit of such service, further proceedings to judgment may be had, as in ordinary personal actions. • § 8088 (6495). — Sec. 32. Whenever the action shall be commenced by writ of attachment against a non-resident defendant or foreign corporation, and a writ of garnishment shall issue, the same proceedings shall be had in respect to personal Bervice upon the principal defendant, as are s]Decified in the i^revious section. § 8089 (6496). — Sec. 33. If the garnishee is about to leave the state before the return day of the writ, or can show other good cause, he may apply to the judge or commissioner to take his disclosure, on oath, at any time previous to the return day, to be fixed by the judge or commissioner, upon notice to the plaintiff: Fro- vidcd, the judge or commissioner shall be satisfied of the necessity and justice to both i^arties of such a coiu-se. § 8090 (6497). — Sec. 34. When the garnishee shall be adjudged liable as such, except when it is otherwise specially provided, judgment shall be rendered and execution issued against such garnishee, his ovm goods and estate, for the account [amount] of the judgment and costs against the principal defendant, if the gar- nishee's liability shall be for so much, otherwise for the amount thereof. § 8091 (6498). — Sec. 35. If any person garnished shall have in his possession any of the property aforesaid of the principal defendant, which he holds by a con- veyance or title that is void as to the creditors of the defendant, he may be adjudged 572 MICHIGAN. liable as garnishee on amoiint [account] of sucli property, althoufrli the principal defendant could not have maintained an action therefor against him. § 8092 (6499). — Sec. 36. Two or more persons, severally liable, may be garnished in the same action, and their disclosures and all other proceedinjr s shall be several, and judgment shall be rendered for such sum as the court shall order, for cr against each severally, and execution may issue accordingly. § 8093 (6500). Sec. 37. Execution may be issiied by the com-t against the principal defendant for any balance due the plaintiff, on his judgment against such defendant, b.cj'ond the amount for which the garnishee or garnishees rhall be found liable; and further execution may be issued from time to time, against .'-uch defend- ant, cr any garnishee, as the court naay order, until the satisfaction of the judg- ment is full. § 8094 (0501). — Sec. 38. The judgment against any person, as a c'arnishee, shall acquit and discharge such garnishee, his executor or administrators, from all de- mands by the iirincipal defendant, his executors or administrators, for all such moneys or ijroperty, as aforesaid, paid or delivered by the garnishee by force of such payment; and if any garnishee shall be sued therefor, or for anything done by virtue of the provisions of this chapter, he may, under the general issue, give the special matter in evidence. ■ § 8095 (G502). — Sec. 39. If auy person named in the affidavit for the v.-rit of garnishment shall be stated to reside out of the county in which the suit in gar- nishment i.i brought, the vrrit of garnishment or any execution against the gar- nishee shall be directed to the sheriff of any county in this state in which such person may reside; such sheriff shall serve said writ in the manner that Avrits of garnishment are required to be served in other cases, and shall make return of his doings to the clerk of the county from which the writ was issued. § 8090 (6503). — Sec. 40. !No jaerson shall be adjudged a garnishee in either of the cases following, to wit: First. Ey reason of any money or thing received or coUeeted by him as sheriff or other officer, by force of an execution or other legal process, in favor of the prin- •cipal defendant. Second. Hy reason of any money in his hands as a public officer, for which he is accountable, merely as such officer, to the principal defendant. Third. Kothing in this act contained shall be applicable to any indebtedness of such garnishee to the principal defendant, for the personal labor of such defend- ant, or his family, unless such indebtedness exceed the sum of twenty-five dollars, and in case of such excess, only to the amoimt of such excess. § 8097 (6504). ^Sec. 41. Every garnishee shall be allowed to deduct from the property in his hands all his demand against the principal defendant, of which he could have availed himself if he had not been garnished, whether by set-off at the trial or upon execution, and shall be liable for the balance only after adjustment of mutual demands: Provided, that in the adjustment no claims for unlicfuidated damages for wrongs or injuries shall be considered. § 8098 (C505). — Sec. 42. If the garnishee shall appear and make disclosure, as before provided, he shall be allowed his costs for trial and attendance as in case of a witness, and such fm'ther sum as the com-t shall think reasonable for his counsel fees and other necessary expenses; and in case he shall be adjudged liable, the same may be taxed and deducted from the proiicrty or money in his hands, and he shall be chargeable only for the balance; and if the garnishee shall be discharged, whether by reason of his having no money or jiroperty, or because the plaintiff shall not recover judgment against the principal defendant, or for any cause, his said costs and charges shall be paid by the i^lauitiff, and the garnishee maj' have the same taxed, and judgrment and execution therefor. § 8099 (6506).— Sec. 43. If any person summoned as a garnishee, or if any offi- cer, agent or other person who shall appear and answer for a corporation so sum- moned, shall, upon his disclosure or examination on oath, knowingly and willfully answer falsely, he shall, out of his own goods and estate, pay to the plaintiff in garnishment, or to his executors and administrators, the full amount due on the judgment recovered therein, with interest, to be recovered in a special action on the case; and he shall, moreover, on conviction thereof, ui^on indictment, be ad- judged goiilty of perjury. §8100 (0507). — Sec. 44. A failure to recover judgment against the principal defendant, or a satisfaction of such judgment, in any manner, shall be deemed a discontinuance of all proceedings against the garnishee. MICHIGAN, 573 § 8101 (6508).— Sec. 45. Any judgment or final order in a Buit in garnishment may bu set asitle or removed to the supreme court, in like manner and with the same effect as in other personal actions. § 8102 1 0509). —Sec. 46. Any party may have an order on the commissioner for amendment of his report, or fcr a further report upon the entry of a motion in the special motion book, the filing and service of affidavit and like notice, as in other cases; and upon like proceedings any party may have any other order on the com- missioner to which he may be entitled, at any time iu the progress of the caaise. § 8103 (0510).— Sec. 47. The fees of the sheriff and clerks shall be the same, as near as may be, as in other personal actions for the same or like duties. For serv- ice of the memorandum, the sheriff shall receive twenty-five per cent. The com- missioner's fees shall be the same as prescribed in section 5G43 of the compiled laws, for settling interrogatories, examining "witnesses, making orders, issuing notices, administering oaths, and decisions on habeas corpus, for the duties respectively analogous under this act. § 8104 (CjII). — Sec. 48. The supreme court m,iy, in its discretion, prescribe rules of i,ractice under this act, and imtil then the circuit com-ts may make rules therefor. § 8105 (G512). — Sec. 49. The principal defendant in any such action, wherein process of garnishment shall be commenced, may at any time after the service of such process, and previous to the rendering of judgTuent thereon, file with the clerk of the court his bond, with at least two sufficient sureties, to the plaintiff as obligee, in a penal sum equal to double the amount of the claim of the jjlaintiff, as sworn to in the affidavit filed for the vrsit of garnishment, and with conditions to pay any judgment oljtained against the defendant or defendants in such action, and abide the order of the court therein, and which bond and the sureties thereof shall be previously api^roved by the judge of the court, or circuit court commissioner, on a> notice cf at Icart tVv-enty-fctir hours, to the plaintiff or his attorney, of the time and place of presenting such bond for approval; and if neither the plaintiff nor his attorney shall reside within tWrty miles of the place so named, such notice shall be a notice of at least two day.-?, and at least one day shall be added to such notice for each additional thirty miles of distance; and such judge or commissioner shall examine the defendant and sureties on oath as to their sufficiency and responsibility, and may take other evidence in relation thereto, in his discretion, as either jjarty may offer. On filing such bond so approved, with the clerk of the court, the proceedings of garnishment shall be thereby discontinued, and the costs thereof shall abide the event of the principal suit; and if the plaintiff shall recover judgment against the principal defendant, on application to the court, execution thereon may be ordered to issue against the sureties in such bond, as well as the defendant. Whenever any proceedings in garnishment shall he discontinued, by reason of the filing of such bond, as above provided, the clerk of the court shall forthwith notify the attorney for the plaintiff in such suit, of the filing of such bond, and such attorney shall, within twenty-four hours after the receifit of such notice from the clerk, give notice in writing, to the persons against whom process of garnishment shall have been issued, that the proceedings in garnishment in such suit have been discon- tinued, which notice shall be served upon the attorney for the garnishee, if he shall have appeared by attorney, otherwise iipon the garnishee, and may be served in the same manner as other notices are requu-ed'to be served. § 8106. — Sec. 50. In all cases where the princij^al defendant does not appear in the cause within the time fixed by the statute and rules of court for such appear- ance, the plaintiff shall proceed and perfect his judgment against such principal defendant as soon as he shall be entitled thereto under the rules and practice of the court, and in default thereof such court may, in its discretion, on motion of the garnishee defendant, or any one interested in the proceedings, render judgment discontinuing such garnishee proceedings with costs against the plaintiff. In justices' courts— Pages 1758, 1764, sees. 6823, 6825, 6828, 6831, 6838-6856. Garnishment in justices' courts — Pages 1995-2001, sees. 8031-8057. Judgments against railroads enforced by — Page 881, sec. 3428. Against non- resident trespassers on state lands — Page 1392, sec. 5323. Attachment not to issue against estates of deceased persons — Page 1542, sec. 5902, Eight of purchasers at attachment sale — Page 1583, sec. G108. Exemptions — Soldiers, sec. 954; fire engines, sec. 3089; stock in corporations, sec. 393S; library, sec. 4421; cemeteries, sec. 4789; life insurance policies, sec. 6300: personal i^roperty, sees. 7686, 7715-lG; sewing-machine, sec. 7717; homestead, sec 7721. 674 MINNESOTA, MINNESOTA. [General Statutes, 1878, and subsequent Statutes.] ATTACHMENT. § 145 (Sec. 128). — In an action for the recovery of money, the plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, in the manner hereinafter prescribed, as security for the satisfaction of such judgment as the plaintiff may recover. § 146 (Sec. 129). — A writ of attachment shall be obtained from a judge of the court in which the action is brought, or a court commissioner of the county. § 147 (Sec. 130). — The writ of attachment shall be allowed whenever the plaint- iff, his agent or attorney, shall make affidavit that a cause of action exists against the defendant, specif jdng the amount of the claim and the ground thereof; and that the plaintiff's debt was fraudulently contracted; or that the defendant is either a foreign corporation or not a resident of this state; or has departed therefrom, as deponent verily believes, with intent to defraud or delay his creditors, or to avoid the service of a summons; or keeps himself concealed therein •with like intent; or has assigned, secreted or disposed of, or is about to assign, secrete or dispose of his property with intent to delay or defraud his creditors: Provided, that the writ of attachment shall not be allowed in actions for libel, slander, seduction, breach of promise of marriage, false imprisonment or assault and battery. [As amended 1867, chap. 66, sec. 1.] § 148 (Sec. 131). — Before issuing the writ, the judge or court commissioner shall require a bond on the part of the plaintiff, with sufficient sureties, conditioned that if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attaclmaent, not exceeding the penalty of the bond, which shall be at least two hundred and fifty dollars. § 149 (Sec. 132).— The writ shall be directed to the sheriff of any county in which the property of such defendant may be, and require him to attach and siifely keep all the property of such defendant within his county, and not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff "s demand, ■with costs and expenses, the amount of which demand shall be stated in conformity ■with the complaint. Several writs may be issued at the same time to the sheriffs of different counties. § 150 (Sec. 133). —All goods and chattels, real and personal, all property, real, personal and mixed, including all rights and shares in the stock of any corporation, all money, bills, notes, book-accounts, debts, credits, and all other evidences of indebtedness, belonging to the defendant, are subject to attachment. § 151 (Sec. 134). — The sheriff to whom the ■writ is directed and delivered shall execute the same without delay, as follows: First. Real estate shall be attached by the officer leaving a certified copy of the writ, and of his return of such attachment thereon, at the office of the register of deeds of the county in which such real estate is situated, or, if there is no register of deeds, with the clerk of the district court of the county, and ser'vong a copy of the same upon the defendant in the action, if he can be found in his coimty, ■with- out any other act*Dr ceremony. Second. Personal property capable of manual delivery to the sheriff shall be attached by taking it into his custody. Third. When an attachment is made of articles of personal estate which, by reason of their bulk or other cause, cannot be immediately removed, a certified copy of the writ and of the return of the attachment may, at any time within three daj's thereafter, be deposited in the office of the to'wn clerk of the to-wn, or clerk or recorder of the village or city in which the attachment is made; and such attach- ment shall be as valid and effectual as if the articles had been retained in the possession and custody of the officer, [Amended Stats. 1881, ^. 77.] MINNESOTA. 575 Fourth. The clerk shall receive and file all such copies, notinj? thereon the time when received, and keep them safely in his office, and also enter a note thereof, in the order in which they are received, in books hept for noting mortgages of per- sonal property; which entry shall contain the names of the parties to the action, and the date of the entry. The clerk's fee for this service shall he twenty-five cents, to be paid by the officer, and included in his charge for the service of the writ. Fifth. Other personal property shall be attached by leaving a certified copy of the writ, and a notice specifying the property attached, with a person holding the same; or if a debt, with the debtor; or if stock or interest in stock of a corporation, with the p'resident or other head of the same, or the secretary, cashier, or managing agent thereof. Si.cik. The sheriff shall serve a copy of the writ of attachment, and inventory served by him, upon the defendant, if he can be found within the county; and if he is a resident thereof, but cannot be found therein, the said sheriff shall leave such copy at the last usual place of abode of the said defendant. Seventh. He shall make a full inventory of the property attached, and return the same with the writ of attachment. § 152 (Sec. 135).^ — Whenever the sheriff, with a writ of attachment or an execu- tion against the defendant, applies to any person mentioned in the fifth subdivision of section one hundred and thirty-four, for the purpose of attaching or levying upon the property mentioned therein, such person shall furnish him with a certificate designating the number of rights or shares of the defendant in the stock of the corporation, with' any dividend or incumbrance thereon, on the amount and de- scription of the property, held by such corporation or j^erson for the defendant, or the debt owing to the defendant. If such person refuses to do so, he may be re- quired by the court or judge to attend before him and be examined on oath con- cerning the same; and disobedience to the order may be punished as a contempt. § 153 (Sec. 1.36). — If any of the property attached is perishable, the sheriff shall Bell the same, in the manner in which property is sold on execution. He may also take such legal proceedings, either in his own name or in the name of the defend- ant, as are necessary to collect all debts, credits and effects of said defendant, and discontinue the same at such times, or on such terms, as the com-t or jutlge may direct. § 154 (Sec. 137).— If any property levied upon or taken by a sheriff, by virtue of a writ of execution, attachment, or other process, is claimed by any other jier- son than the defendant or his agent, and such person, his agent or attorney, makes affidavit of his title thereto, or right to the jjossession thereof, stating the value thereof, and the ground of such title or right, the sheriff may release such levy or taking, imless the plaintiff, on demand, indemnify the sheriff against such claim, by bond executed by two sufficient sureties, accompanied by their affidr„vit that they are each worth double the value of the projjcrty as specified in the affidavit of the claimant of such jjroperty, and are freeholders and residents of the county; and no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff unless so made; and notwithstanding such claim, when so made, he may retain such property xuider levy a reasonable time to de- mand such indemnity. [As amended 1877, chap. 27, sec. 1.] § 155 (Sec. 138). — If, in such case, the person claiming the ownership of such property commences an action against the sheriff for the taking thereof, the obli- gors in the bond provided for in the preceding section, and the plaintiff in such execution, attachment, or other process, shall, on motion of such sheriff", be im- pleaded with him in such action. When, in such case, a judgment is rendered against the sheriff and his co-defendants, an execution shall be immediately isSued thereon, and the projierty of such co-defendants shall be first exhausted before that of the sheriff is sold to satisfy such execution. § 150 (Sec. 139). — If judgment is recovered by the plaintiff in such action, the sheriff shall satisfy the same out of the property attached by him, if it is sufficient for that purpose — First. By paying to the plaintiff the proceeds of all sales of perishable property Bold by him, or of all debts or credits collected by him, or so much as shall be necessary to satisfy the judgment. Second. If any balance remains due, and an execution has been issued on the judgment, he shall sell, under the execution, so much of the attached property, real or persona], as may be necessary to satisfy the balance, if enough for that purpose remains in his hands; and in case of the sale of any rights or shares in the stock of a corporation, the sheriff shall execute to the purchaser a certificate of the sale, and the purchaser shall thereupon have all the rights and privileges in respect thereto which were had by the defendant. 576 MINNESOTA. Third. If any of the attached property belonging to the defendant has passed out of the hands of the eherifF, \vitliout having been sold or converted into money, the 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 per- Bpn who shall willfully conceal or withhold such property from the sheriif shall be liable to double damages, at the suit of the party injured. § 157 (Sec. 140). — A defendant whose property has been attached may, at any time before trial, execute to the plaintiff a b(jnd, in double the amount claimed in the complaint, or, if the value of the projaerty attached be less than the amount claimed, then in double the value of the jiroperty, Anth two or more sureties, to be approved by the officer allowing the writ of attachment, or by the court commis- sioner cf the county in which the defendant resides, conditioned that if the plaint- iff recover judgment in the action, he will jtay such judgment, or an amount thereof equal to the value of the property attached; and the officer approving such bond shall make an order discharging such attachment. [As amended IStaS, chap. 69, eec. 1.] § 158 (Sec. 141). — The defendant may, at any time before the time for answering expires, or at any time thereafter when he has answered, and before trial, apply to the court, on notice, to vacate the writ of attachment. If the motion is made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same bj" affidavits in addition to those on which the writ of attachment was allowed. [As amended 1807, chap). G6, sec. 3.] § 159 (Sec. 142). — "WTien the writ of attachment is fully executed or discharged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action was brought. § 160 (Sec. 143). — Whenever any real estate has been attached by virtue of any Writ of attachment, such real estate shall be bound, and the attachment £hall be a Uen thereon, from the time that a certified copy of the attachment, with the de- scription of the real estate, has been delivered for record in the office of the register of deeds in the county where the same is situated, and not otherwise. Each register of deeds shall note the day, hour and minute when he receives such certified coi^y, and shall record and index the same in the books kept for the recording and index- ing of mortgages. Such real estate may be discharged and released from record of Buch attachment, in the following manner, to wit: First. By filing for record, in the office of the register of deeds of the county ■wherein such real estate is situated, a certified copy of the order discharging or vacating said attachment. Second. By filing for record, with such register of deeds, satisfaction of judgment rendered in such action. Third. By judgment being rendered in the action in favor of the defendant against whom the attachment is issued, upon filing for record, in the office of said register of deeds, a transcript of such judgment. Fourth. By filing for record, in tho office of such register of deeds, a satisfaction and discharge of such attachment, executed by the plaintiff in said action, or by the attorney of record of the said plaintiff, in the same manner as is required by law lor the execution of conveyances of real estate. [As amended Stats. 1883, \}. 129.] § 161 (Sec. 144). — The plaintiff in such action may, at any time before the final discharge of such attachment, release and discharge from such attachment any part or portion of such real estate incumbered by said attachment, by executing, in the same manner as conveyances of real estate are required by law to be exe- cuted, a release and discharge of such parts or portions of said real estate so desig- nated to be discharged and released, and particularly describing the same, and filing such release in the office of the register of deeds of the county wherein the lands are situated; and such release or discharge shall in nowise affect the Hen and incmnbrance of said ■\\Tit of attachment tipon the remainder of the real estate or property covered by said attachment, and not included in such release. § 162 (Sec. 145). — The register of deeds shall enter such discharge, release or satisfaction in the sama manner and in the same book provided for the filing and entry of writs of attachments, except that the names of the plaintiffs shall be al- phabetically arranged in said index; and he shall receive the same fees as are allowed him for the filing and entry of attachments in his office. § 163 (Sec. 146). — Any attachment of personal property, under subdivision three of section one hundred and thirty-four, may be discharged or released of record, by filing, in the proper office, an order, release, transcript or satisfaction-piece, as pro- vided in section one hundi-ed and forty -three aforesaid. r MINNESOTA. 577 GARNISHMENT. § 1C4 (Sec. 147).— In any action in a court of record or justice's court, for the recovery of monej', if the plaintiff, his agent or attorney, at the time of idling the complaint or issuing the summons therein, or at any time during the pendency of the action, or after judgment therein against the defendant, makes and hies, with the clerk of the court, or, if the action is in a justice's court, with the justice, an affidavit stating that he believes that any person (naming him) has i^roperty, money or effects in Iiis hands, or under his control, belonging to the defendant in such ac- tion, or that such person is indebted to the defendant, and that the value of such jiroperty or effects, or the amount of such money cr indebtedness, if the action is in the district coiu-t, exceeds the sum of twenty-tive dollars, or, if the action is in a justice's court, ten dollars, a summons may be issued against such jierson, as here- inafter provided; in which summons and all subsequent proceedings the plaintiff in the action shall be known and designated as plaintiff, the defendant as defendant, and the person against whom the summons is issued as garnishee. [As amended 1867, chap. G5, sec. 1.] § 165 (Sec. 148). — If the action is in a justice's court, the summons shall be- issued by the justice, and shall require the garnithee to appear before h'm, at a time and x^lace mentioned in such summons, not less than six nor more than twelve days from the date thereof, and answer under oath such c^uestions as maybe put to him touching his indebtedness to the defendant, and any jiroperty, money or effects of the defendant in his possession or under his control; which summons shall be served and returned in the same manner as a summons issued against a defendant in other causes in such court, except that no other than personal service shall be sufficient. A copy of such summons, together with a notice to the defendant stat- ing the time, xjlace and manner of service upon the garnishee, and signed by the justice of the peace or officer who served the same, and requiring such defendant to appear and take part in the examination, shall be served upon the defendant at least three days before the time specified in the summons for the appiearance of the garnishee. § 1C6 (Sec. 149). — In actions in a district court, such simimons may be issued by the plaintiff cr his attorney in the action, and shall be served and returned in the same manner as a summons issued against a defendant in other cases in said court, except that the service shall in all cases be personal. It shall require the garnishee to appear before the court in which the action is jiending, or the judge or the clerk thereof, or the court commissioner in the county. in which the action is pending, at a time and place mentioned therein, not less than twenty days from the service thereof, and answer touching his indebtedness to the defendant, and any property, money cr efTects of the defendant in his possession or under his control. A copy of the siunmons, together with a notice to the defendant stating the time, place and manner of service thereof upon the garnishee, and signed by the j)laintiff or his attorney, or the person or officer who served the summons upon the garnishee, and requiring such defendant to aj^pear and take part in such examination, shall be- served upon the defendant at least ten days before the time specified in the same for the appearance of the gai-nishee. Such notice and ci ipjr of the siunmons may be served in the manner provided by law for the service of a summons in ordinary cases. The garnishee shall be entitled in all cases, whether the action is in a dis- trict court or before a justice of the peace, to the same fees as if he were subi^cenaed as a witness in such action, and may be compelled to testify and disclose respecting- any matters contained in the affidavit, in the same manner as if he Avere a witness duly subi^cenaed for that piurpose. But no perswi shall be obliged to appear as garnishee, unless his fees for one day's attendance, and mileage according to law, is paid or tendered in advance. [As amended 1871, chaj^. G6, sec. 1.] § 167 (Sec. 150). The service of the summons upon the garnishee shall attacQ and bind all the i^roperty, money or efTects in his hands, or under his control, belonging to the defendant, and any and all indebtedness owing by him to the defendant, at the date of such service, to respond to final judgment in the action. § 168 (Sec. 151). — Any debt or legacy due from an executor or administrator,. and any other property, money or effects in the hands of an executor or adminis- trator, may be attached by this process. § 169 (Sec. 152). — Corporations may be summoned as garnishees, and may appear by their cashier, treasurer, secretary, or such officer as they may appoint, and the disclosure of such i^erson or officer shall be considered the disclosure of the- corporation: Provided, that if it appears to the court that some other member or officer of the corporation is better acciuainted with the subject-matter than the one making disclosure, the court may cite in such person to make answer in the premises; and in case such person neglects or refuses to attend, judgment may h& II Attachueki— 12. ' ' ' ' 578 MINNESOTA. entered as hereinafter provided npon default; and sennce of tae snnnnons upon the a;.;ent of any ccix-oraticn not located in this state, but doing business therein through such agent, shall be a valid service upon said corporation. § 170 (Sec. 153). — No person or corporation shall be adjudged a garnishee in either of the follctiing cases, viz. : Fi7'it. Ey reason of any money or any other thing dv.e to the defendant, unless, at the time of the service of the summons, the same is due absolutely, and without depending on any contingency. taond. By reason cf any debt due from said garnishee on a judgment, so long as Le is liable to r.n execution therecn. Third. Ey rer.son cf any liability incurred, as maker or otherwise, upon any draft, bill cf exchange or promissory note. § 171 (5ec. 1.^4). — Any money or otter thing due or belonging to the defendant may be attached l^y this process, before it has become payable, provided it is due or owing absolutely, and without depending on any contingency, as aforesaid; liut the garnishee shall not be compelled to pay or deliver the same before the time ap- pointed therefor by the contract. § 172 (Sec. 155). — Bills of exchange and promissory notes, whether under or over clue, drafts, bonds, certificates of deposit, bank-notes, money, contracts for the paj-ment cf money, and other written evidence of indebtedness, in the hands of the garnishee at the time of the service of the summons, shall be deemed " effects " under the i^rovisions of this section. § 173 (Sec. 156). — After the appearance of the garnishee before the com-t or offi- cer named in the Lummcns, on the day specined therein, or en the day to which an adjournment may be had, the said garnishee shall be examined on oath touching the matters alleged in the affidavit, and the examining officer shall take full min- utes of such examination, and file the same with the other papers in the cause: Provided, that, unless the defendant in the action apj^eai's at the time and place specified in the summons for the appearance of the garnishee, such officer or court shall not proceed to the examination of such garnishee, or to the taking of any evi- dence whatever therein, until the i:>laintiff produ;;es and files an affidavit, or return of an officer, showing the service of the summons and notice upon the de- fendant as i:'rescribed in sections one hundred and forty-eight and one hunda-ed and forty-nine aforesaid; but in case the pilaintiff is unable so to notify such defendant, the said court or officer may x^ostpone the examination for such reasonable time as may be necessary to enable the plaintiff to notify such defendant, and he may then be notified of the day to which such i^osti^onement is had iu the manner provided by law for the service of a summons in ordinary cases, except that it shall be a no- tice of ten days in a district court, and of four daj"s in a justice court: Provided, that when the defendant does not appear at the time and place si^ecified in the summons for the appearance of the garnishee, and the plaintifiF, or his agent or at- torney, files an affida^^t stating that the defendant is not a resident of this state, and is not within the same, as the affiant verily believes, it shall not be necessary to serve iipon the defendant a copy of such garnishee summons, or any notice to the defendant in such action, in any court; and the examination shall i^roceed in the same manner as if the defendant had been duly served with such copy and no- tice, or had appeared at the time and place specified in the summons for the appear- ance of the garnishee. [As amended 1871, ch. 66, sec. 1.] § 174 (Sec. 157). — If it appears from the evidence taken, or otherwise, that any person, not a party to the action, is interested or claims any interest in any of the property or efiects in the hands of the garnishee, by virtue of any agreement or matter which existed prior to the service of the summons, the examining officer, upon application, mky permit such person to appear in the action and maintain his right; and if he does not voluntarily appear, notice may be given him to appear or be barred of his claims, which notice may be served as such officer shall direct. In case such person voluntarily appears, or notice is given as aforesaid, he shall be joined as a partj^ to the action, and judgment therein shall bind him in the same manner as if he had been an original piarty. » § 175 (Sec. 158). ^If any person has in his possession any property or effects of the defendant, which he holds bj- a conveyance or title that is void as to creditors of said defendant, he maj- be charged therefor, although the defendant could not have maintained an action against him for the same; but in such cases, and in aU cases where the garnishee, upon full disclosure, denies any indebtedness to, or the possession or control of any property, money or effects of the defendant, there shall be no further proceeding, except in the manner following: If the jilaintiff in such ca.-e believes that such garnishee does not answer truly in response to the riuestions put to him upon such examination, or that the conveyance imder which he claims MINNESOTA. 579 title to property is void as against the creditors of the defendant, he may, on notice to such garnishee and to the defendant, at any time before the garnishee has been discharged by the court or ofiBcer, of not less than six days, apply to the court in which the action is pending, or a judge thereof, for permission to file a supple- mental complaint in the action, making the garnishee a party thereto, and setting forth the facts upon whicTi he claims to chai-ge such garnishee; and if probable cause is shown l>y the plaintiff, permission shall be granted, and such supplemental complaint shall be filed and served upon both the defendant and garnishee, either or both of whom may answer the same, and the plaintiff may reply if necessary; and the issues thus made up shall then be brought to trial, and tried, in the same manner, in all respects, as civil actions. The provisions of this section shaJi not apply to proceedings in justices' courts. § 170 (Sec. 159). — "When any person duly summoned as a garnishee neglects to appear at the time specified in the summons, or within two hours thereafter, he shall be defaulted, and jud^Tnent shall be rendered against him for the amoimt of damages and costs recovered by the jjlaintiff in the action against the defendant, jaayable in money; and execution may issxie directly against the goods and chattels and estate of said garnishee therefor: Provided, the com-t may, upon good cause shown, remove such default, and permit the garnishee to appeal* and answer, on such terms as may be just. § 177 (Sec. IGO). — No judgment shall be rendered against any garnishee until after judgrment is rendered against the defendant; but a garnishee may be dis- charged after examination and disclosure, if it appears that he ought not to be held; whenever a garnishee is not discharged as aforesaid, the cause shall be continued to abide the residt of the original action. And in case such original action pending in any com-t not a court of record shall, under the provisions of law, be transferred to any other com-t, except by appeal, any garnishee action, the judgment in which is conditioned on the judgment in such original action, shall be also transferred with such origdnal action; and written notice of such transfer shall be served on the garnishee defendant or defendants, by the plaintiff in such action, specifying the court to which such transfer is made, and the time when such garnishee action will be heard, which shall be jiot less than two days from the service of such notice; and such garnishee action, so transferred, shall carry with it all proceedings already had, and any disclosure aheady made therein. [As amended 1875, chap. 59, sec. 1.] § 178 (Sec. 161). — Xo judgment shall be rendered upon the disclosure of a gar- nishee, except by order of the judge of the court in M'hich the action is pending, or, in case of his absence or inabiLity to act, by order of a judge of another district. § 179 (Sec. 162). — Court commissioners, clerks of the district court, or any referee appointed by the court for that purpose, are hereby authorized and required to take the disclosure of any garnishee in MT-iting, together with any other testimony offered by the parties to the action, and reijort the same to the coui-t; all testimony offered by the parties to be taken subject to any objection seasonably interposed thereto. [As amended 1S71, chaj). GG, sec. 1.] § 180 (Sec. 1C3). — Any court commissioner, clerk or referee shall receive from the plaintiff ten cents per folio for all evidence taken and reduced to WTiting, and the fees so paid by the plaintiff may be taxed in the judgment agaiast the garnishee. [As amended 1871, chap. GG, sec. 1.] § 181 (Sec. 1G4).— When any person is charged as garnishee by reason of any property or effects, other than an indebtedness payable in money, which he holds, or is bomid to deliver to the defendant, such garnishee shall deliver the same, or so much thereof as may be necessary, to the officer holding the execi;tion, and the said property shall lie sold by the officer, and the proceeds accounted for, in the same manner as if it had been taken en execution against the defendant: Provided, the garnishee shall not be compelled to deliver any specific articles at any other time or place than as stipulated in the contract between him and the defendant. § 182 (Sec. 1G5). — Upon application and notice to the parties, the court may de- tennine the value of any profjcrty or efl'ects so in the hands of the garnishee for delivery, and may make any order relative to the keeping', delivery and sale of the same that is necessary to protect the rights of those interested, and may make any order touching the proi:ierty attached that is necessary for the protection of all parties interested, upon the api)lication of any party in interest; and may require, at any time after the service of such garnishee summons, the profjerty, money or effects so attached to be brought into court, or delivered to a receiver appointed by the court. § 183 (Sec. 166). — ^^^lenever it appears that any property or effects in the hands of the garnishee, belonging to the defendant, are properly mortgaged, pledged, or 580 MINNESOTA. in any way liable for the pajnnent of any debt due to said garnishee, the plaintiff may be allowed, under a sj^ecial order of court, to pay or tender the amount due; and the garnishee shall thereupon deliver the property or effects, as hereinbefore provided, to the officer holding the execution, who shall sell the same as in other cases, and out of the proceeds shall repay the plaintiff the amount i;aid by him to the garnishee for the redemption of such property or effects, with legal interest thereon, and applj^ the balance upon the execution. § 184 (Sec. 1G7). — If any garnishee refuses or neglects to deliver any property or effects as provided in the preceding section, he may be punished for contempt of court, and shall, in addition, be liable to the plaintiff for the value of such prop- ertj'' or effects, less the amount of the lien, if any, to be recovered by action. § 185 (Sec. 168). — Nothing herein shall prevent the garnishee from selling such property or effects so in his hands, for the payment of the demand ior which they are mortgaged, pledged, or otherwise liable, at any time before payment or tender of the amount due to him: Provided, such sale is authorized by the terms of the contract between said garnishee and the defendant. § 18G (Sec. 1G9). — If any such property or effects are destroyed, without any negligence or default of the garnishee, after judgment and before demand by the officer holding the execution, such garnishee shall be discharged from all liability to the platatitf for the non -delivery of such property or effects. § 187 (Sec. 170). — Judgment against a garnishee shall be rendered, if at aU, for the amount due the defendant, or so much thereof as may be necessary to satisfy the plaintiff's judgment against said defendant, with costs taxed and allowed in the proceeding against the garnishee. § 188 (Sec. 171).^ — Whenever any person is s\mamoned as a garnishee in the dis- trict court, he may, at any time before the return-day of the simamons, appear be- fore the officer named therein, or any justice of the peace competent to trj- causes between the parties, and, with the consent of the plaintiff, to be certified by said officer or justice, make his disclosure upon oath, A\'ith the like effect as if made on the day named in the summons. In case such disclosure is taken by a justice, he shall receive the same fees as are allowed by section one hundred and sixty-three aforesaid. § 189 (Sec. 172). ^If the plaintiff will not consent to such examination and disclosiire, the garnishee, in case he is compelled to be absent from the county until after the return day of the summons, may make affidavit to that effect, which, with a notice of the time, place, and the officer or justice, he shall serve upon the plaintiff or his attornej^, at least twenty-four hours previous to the time specified in it for the disclosure; and upon due proof of such service, his disclosure shall be taken as provided in the i^receding section, and with like effect. § 190 (Sec. 173). — If any person summoned as a garnishee appears and submits himself to an examination upon oath, as herein provided, he shall be allov.-ed his costs for travel and attendance, and, in special and extraordinary cases, such further sum as the coui't shall deem reasonable for his counsel fees and other necessary exjjenses. § 191 (Sec. 174). — If any such person is adjudged chargeable as garnishee, his said costs and allowance shall be deducted and retained out of the propertj\ money or effects in his hands, and he shall be accoimtable only for the balance, to be paid on the execution. § 192 (Sec. 175). — If such person is charged on account of any specific articles of personal property, he shall not be obliged to deliver the same to the officer serv- ing the execution, untd his costs allowed and taxed are fully paid or tendered; and if he is discharged for any cause, he shall recover judgment against the plaintiff for his costs, and have execution therefor. § 193 (Sec. 176). — The plaintiff, under the provisions of this section, shall in no cases, excefjt in cases provided for in section one hundi-ed and fiftj"-nine aforesaid, recover a greater sum for costs, including the costs allowed to the garnishee, than the amount of damages recovered. § 194 (Sec. 177). — Xo judgment shall be rendered against a garnishee in a jus- tice's court where the judgment against the defendant is less than ten dollars, ex- clusive of costs, nor where the indebtedness of the garnishee to the defendant, or the value of the property, money or effects of the defendant in the hands or under the control of the garnishee, as proved, is less than ten dollars. If the action is in a district court, no judgment shall bo iti^dtred against the garnishee where the in- debtedness proved against him, or the value of the money, property or effects of MISSISSIPPI. 581 the defendant in his hands or under his control, shall be less than twenty-five dol- lars; but in all such cases the garnishee shall be discharged, and shall recover his costs, and have execution therefor against the j^laintiff. § 105 (Sec. 178).— The judginent against a garnishee shall acquit and discharge him from all claims of all parties to the process, in and to the proiierty, money or effects paid, delivered or accounted for by such garnishee by force of such judgment. § ICG (Sec. 170). — If any person summoned as a garnishee is discharged, the judgment .shall be no bar to an action brought against him by the defendant or other claimants for the same demand. § 197 (Sec. ISO).— Any party to a proceeding under this title, deeming himself aggrieved by any order or final judgTner.t therein, may lemove the same from a justice's court to the district court, or from a district court to the supreme court, by r.pi^eal, in the same cases, in like manner, and with like effect, as in a civil action. § 198. — A defendant whose property, money or effects has been garnished, may, at any time before the trial of the action in which he is defendant, execute to the plaintiff a bond, in double the amount claimed in the complaint, with two or more sureties, who shall justify and be approved by the judge of the district, or coiu't commissioner of the county, in which the garnishee proceedings were instituted, conditioned that if the plaintiff recover judgment in the action, he will pay such judgment, or an amount thereon equal to the value of the money, property or ef- fects so gai'nished; and the officer approving svich bond shall make an order dis- charging such garnishment, and releasing such money, property or efiects therefrom, upon filing such bond with the court in which the garnishee proceedings were enti- tled, and serving upon the garnishee a copy of the order discharging such ptroceed- ings. The defendant shall have the same power to receive or collect the money, property and effects so garnished, in the same manner as if such garnishee pro- ceedings had never been instituted. [1871, ch. 67, sec. 1. See Stats. 1881, p. 72.] In justices' courts — Page 675, sec. 1; pp. 690-692, sees. 97-112. Venue where defendant is non-resident, p. 713, sec. 50. Attachment subjects corporation to jurisdiction, p. 717, sec. 71. Insolvency dissolves attachment — Page 193, sec. 1; costs, p. 196, sec. 6. Beneficiary funds not liable to — Page 444, sec. 369. Against executors, etc., p. 592, sec. 53. Liens on logs enforced by — Pages 342-346, sees. 40, 48-55, 65-67. Mechanics' liens against non-residents — Page 874, sec. 13. State debts to take precedence of — Page 90, sec. 41; p. 238, sec. 94, Exemptions— Page 756, sec. 310, and Stats. 1879, p. 20; Stats. 1881, p. 45; homesteads, p. 767, sec. 1; interest of purchaser at mortgage sale subject to, p. 844, sec. 17. MISSISSIPPI. [Revised Code, 1880.] CHAPTER 67. AN ACT IN RELATION TO ATTACHMENT AGAINST DEBTORS. § 2414. — The remedy by attachment shall apply to all actions or demands, foundeil upon any indebtedness, or for the recovery of damages for the lireach of any contract, express or implied, and to actions founded upon any jsenal statute. § 2415. — The creditor, his agent or attorney, shall make oath before a judge of the supreme court, a judge of a circuit court or a chancellor, or liefore a clerk of a circuit court or chancery court, or the deputy of such clerk, or any justice of the peace, or the mayor or chief magistrate of any incorporated city or town, of the 582 MISSISSIPPI. amount of his debt or demand, to the best of his knowledge and belief, and shall also make oath to one or more of the following particiilars : 1. That the defendant is a foreign corporation, or a non-resident of this state; or, _ 2. That he has removed, or is about to remove, himself, or his property, out of this state; or, 3. That he so absconds, or conceals himself, that he cannot be served with a summons; or, 4. That he contracted the debt or incurred the obligation in conducting the business of a ship, steamboat or other water-craft in some of the navigable waters of this state; or, 5. That he has property, or rights in action, which he conceals, and unjustly refuses to apply to the payment of his debts; or, 6. That he has assigned or disposed of, or is aboiit to assign or dispose of, his proi>erty, or rights in action, or some part thereof, with intent to defraud his cred- itors; or, 7. That he hath converted or is about to convert his property into money, or evidences of debt, with intent to place it beyond the reach of his creditors; or, 8. That he fraudulently contracted the debt, or incurred the obligation, for which suit has been, or is about to be, brought. § 2416. — The creditor, his agent or attorney, shall also give bond, with a surety or sureties, to be approved by the officer issuing the attachment, in double the sum for which the complaint is made, payable to the defendant, and conditioned in the form or to the effect following, to wit: "The condition of the above obligation is, that whereas the above bound prays an attachment against the estate of the said for the sum of , re- turnable to the court , on the day of next: " Now, if the said plaintiff shall pay to the said defendant all such damages as he shall sustain by the wrongful suing out of the said attachment, and all costs which may be awarded against the said plaintiff in said suit, then the said obliga- tion shall be void, but otherwise it shall remain in full force:" "Which bond, together Avith the affidavit for the attachment, shall be re- turned by the officer taking the same to the coiurt to which the attachment is returnable. § 2417. — If such bond ]5uri3ort to be executed by an agent or attorney in fact of the attaching creditor, it shall be prima facie evidence that the agent or attorney in fact had due authority to act. § 2418.— On affidavit being made and bond given as aforesaid, the officer be- fore whom it is made shall issue one or more writs of attachment against the es- tate of the debtor, which attachment shall be directed to the sheriff, or any constable, or other proper officer of the county or counties in which the defendant ehall have property, or debts, and shall be returnable to the next term of the cir- cuit court of any county, or of a justice of the i')eace of any district, in which the defendant, or property or debts of the defendant, may be found, and shall be the leading process in the suit. [Amended Stats. 1884, p. 78.] § 2419. — The writ shall be in the form or to the effect following, to wit: The state of Mississippi, To the sheriff (or coroner) or any constable of county, greeting: Whereas, A. B. (or agent or attorney of A. B.) hath complained on oath (or affirmation), to , one of the judges of the supreme court (or other officer as the case may be), that C. D. is justly indebted to the said A. B., to the amount of S , and that the said C D. is a non-resident, etc. (reciting the affidavit), and bond and security ha\ing been given according to the statute: We therefore command you, that you attach the said C D. by his estate, real and personal, in your county, to the value of the said demand, and costs of suit, and that yon safely keep the same according to law, so as to compel the said C. D. to appear before the court, to be held at , in and for the county of , on the Jlonday of , to answer the above complaint. And that you summon the said C. D., if to be found in your county, to appear and an- swer accordingly. And have there then this ■writ, ■with your proceedings thereon. Witness my hand this day of , 188 — . Such writ shall be signed by the officer granting the same, or if issued by a clerk or his deputy, shall be dated, signed, and sealed, as other ■writs; and no at- tachment shall be quashed or abated for want of form, if the substantial matters expressed in the foregoing precedents be contained therein. § 2420. — "NATien two or more persons, not residing in this state, are jointly in- debted, the ■iTOt of attachment may be issued against such debtors, or anj" of , them, by their proper names, or by the name of the partnership, or by whatever MISSISSIPPI. 583 other name sucli debtors may be called or known in this state, or ag'ainst the heirs, executors, or administrators of them, or any or either of them, and may be levied upon the separate or joint estate, or both, of such debtors, and the lands, tene- ments, money, goods, chattels, effects, rights and credits of such debtors, or any or either of them, shall be liable to lie seized and taken, for the satisfaction of any debt or demand for which an attachment will lie by this act. § 2421. — The officer granting an attachment may issue duplicate writs to any other county, in which the defendant may have property or debts due him, which writs shall be returnable to the court to which the original is returnable, and shall be executed and returned in like manner; and where the attachment has not been executed, or where no property has been found, or not suincient to satisfy the debt, or where the plaintiff desires to garnish other persons, the clerk of the court, to which the same is returnable, may issue alias writs, to the same or other covui- ties, without a renewal of the bond or affidavit. § 2422. — If, at the time of issuing the writ of attachment, the attaching cred- itor shall suggest that anj^ j^erson is indebted to the debtor, or has property of his in his hands, or knows of any other person so indebted, or who has effects or projD- erty of the debtor in his hands, the officer issuing the writ of attachment shall in- sert therein a command to the officer, to summon such person to apjiear on the return day of the attachment, and answer, in writing, under oath, as garnishee of the defendant in attachment; and a summons of garnishment may be issued to any county. § 2423. — The officer who shall receive such attachment shall forthwith serve and levy the same upon the lands and tenements, money, goods, chattels and debts of the defendant, wherever the same may be foimd, or in the hands of any person in- debted to or having effects of the defendant, and shall .summon such person as a garni-shee, to appear at the court to which the attachment is returnable, there to answer, on oath, what he is indebted, or was indebted, to the defendant, at the time of the service of the attachment, or between that time and the time of an- swering, or what effects of the defendant he hath in his hands, or had at the time of the service of the attachment, or since, and what effects or debts of the defend- ant there are in the hands of any other person, to his knowledge or belief; and such officer shall have power to seize the books of account, and other evidences of indebtedness, belonging to the defendant, and to summon, as garnishees, all per- sons apj)earing thereby to be indebted to the defendant, and to levy on the stock, share or interest which the defendant may have or own in any cop)artnership or incorporated company; and all property, debts and choses in action attached, shall be bound by such attachment from the date of the service thereof; if the defend- ant can be found, the said officer shall also summon him to appear and answer the action. § 2424. — Every writ of attachment shall be executed in the following manner, that is to say: In case of a levy on real estate the officer shall go to the house or land of the defendant, or to the person or house of the person in whose p)ossession the same may be, and then and there shall declare that he attaches the same, at the suit of the plaintiff in the writ named. Biit in the event the land is wild, un- cultivated or unoccu2jied, a return upon the ■writ, bj' the piroper officer, that he has attached the land, giving a description thereof by numbers, metes and Iwunds, or otherwise, shall be a sufficient levy ^^ithout going upon the land. In case of a levy on the stock, share or interest of the defendant in any copartnershixi or incor- porated comjiany, the officer shall go to the office or plac^ of business of such j^art- nership or company, and in the presence of such officers, clerks, or agents thereof as may be present, shall make a similar declaration as in case of real estate. In case of a levy on the rights, credits, and choses in action of the defendant, the offi- cer shall seize and take into possession the books of account and all other evidences of inroperty attached, conditioned to have said property forthcoming to answer and abide the judgment of the court in said suit. § 2425. — The officer serving an attachment shall maJie a full return thereon of all his proceedings, on or before the return day of the writ. He shall deliver to the com-t or clerk all bonds which he may have taken pursuant to law. § 242G. — If a writ of attachment, returnable to the circuit court, be served by a constable, or coroner, or marshal of a city, or by any other person specially ap- 584 MiGsrssippi. pointed for that purpose, the writ of attachment, "nath the return thereon, of the action of sucii person r,nd all property and effect.* levied on, ehcAl forthwith he handed to the sheriff of the proper county, who shall lie responsihle for the prop- erty so seized, and shall return the WTit to the proper officer with a statement of his action uu'.ler it, unless such sheriff should he a j arty, in Y.'hich event the (jfficer serving the attachment shall make the return, and likewise retain the jiroperty, unlesa the court, or judge, in vacation, shall make lome order for the safekeeping and forthcoming thereof; which order such court, or judge in vacation, is author- ized to make. § 2427. — The defendant, at any time before final judgment, may reple\^ the person;il property seized and taken into possession by the cfHcer serving an attach- ment, by ; iviiig to such officer a Lend, with cufacient sureties, to be approved by him, payable to the plaintiff, in double the value cf such i:rcperty, conditioned ta have said ]>rcperty fcrthccming, to answer and abide the judgment of the court in said suit, or in default thereof, to j ay and satisfy the judgment to the extent of the value of said property; and on the execution cf such bond, the said officer shall re- store to the defendant the property so replevied, and shall return the bond so taken, mth the said ^vrit of attachment, and all his proceedings thereon. Such replevin shall not aHect the lien of tlie attachment, or the proceedings thereon, as to any rights, credits, or choses in action of the defendant. § 2428. — If any defendant in attachment shall, at any time before the return thereof, execute and deliver to the ofHcer serving the same a bond, with two or more suflicient sureties, to be approved by said cfEcer, payable to the plaintiff in attachment, in a penalty double the amount claimed by said plaintiff, conditioned to pay and satisfy any judgment which may be recovered by the plaintiff in said suit, with all costs, the said attachment shall be thereby discharged; and all the property of every kind levied en, attached, or seized by virtue thereof, shall be re- leased and restored to such defendant. The said bend shall be retiu-ned with the attachment; and in case of any recovery by the plaintiff in said suit, judg-ment shall be entered up against the defendant and the sureties in the said bond. After the return of said attaohmeut, the bond herein provided for may he given, at any time l/cfore llnal judgment, and may be taken by the sheriff, cr officer by whom the attachment was served, in ease any of the attached f)roperty remains in his hands, or otherwise, by the clerk of the court in which the attachment is pending. § 2429. — The defendant in attachment in the circuit court may file a plea in aba-tement, verified by afiidavit, traversing the truth t f the alleged causes for which said attachment was sued cut, and upon such flea being filed, the court, on motion of the defendant, may order a jm-y to be impanneled, during the term to which the attachment is returnable or the term of the appearance of the defendant, to try and determine the truth of said cause ■; and if the jury shall find for the de- fendant, they shall assess the damages against the plaintiff, for wrongfully suing out the same. § 2430. — On the trial of such issue, the defendant may give e\-idence as to the actual damages, if any, which the issuance of such attachment has occasioned him; but the tlefendant, when he files his plea in abatement, shall give plaintiff written notice of what special damages he will insist upon at the trial. If such issue be decided for the defendant, he shall have j udgment that the attachment be dis- charged, and against plaintiff, and the sureties in his attachment bond, for the damages assessed by the jury, and the costs of suit: Provided, that such judgment against the sureties in the attachment bond shall not exceed the penalty thereof. § 2431. — If the issue be decided for plaintiff, the defendant shall be ijermitted to plead to the merits, on such terms as the court may impose. § 2432. — The plaintiff may dismiss his attachment, but defendant shall have a jury impanneled forthwith, to assess the damage sustained, by reason of suing out the attachment. §2433.— The judgment in favor of the defendant against the plaintiff for the damages assessed and the costs may be pleaded by the defendamt as a pa>TiKnt, in the same action, or in any other suit, on the same cause of action on which the at- tachment was sued out. No execution shall be issued on such judgment imtil after the dismissal of the action or final juolgment on the merits. If_ the action shall be dismissed, or if, upon a trial on the merits, judgment shall be in favor of the de- fendant, without his having obtained the benefit of the judgment in his favor for damages and costs, as aforesaid, he shall have execution of said judgment in his favor. If the plaintiff shall recover in the trial on the merits, and on such trial the defendant did not avail of his judgment against the plaintiff for damages and costs, the greater recovery shall be credited with the sum of the smaller, and MISSISSIPPI. 585 jud^Ttacnt shall be rendered by the court in favor of the party to whom the diflFer- ence may be due. § 2434. — If the issue on a plea in abatement be found for the defendant, the attachment shall bo thereby clischarjired, and all property seized under it, and all persons famimoned as frarnisheea shall be released from it, but the action, unless dismissed Ly the iilr.intiLi, shall be proceeded ^vith, in all respects, as if it had been an ordinary action in its commencement, and the costs accruing' in it, after the trial of the issue on the plea in abatement, shall abide the result of such action. § 2435. — If the plaintiff, within five days after the expu-ation of the term of the court r.t which judgment is rendered discharging his attachment, shall perfect an appeal from, such jud,rmeiit, the attachment shall not be discharged, nor ^-amishces nor property be released therefrom by such judgment, but such appeal shall pre- serve the attachment in full force, to await the result of the appeal. ■ § 2436. — The defendant in attachment may appear, by himself, or attorney, without replevying the property attached, and defend the suit, as in other actions for tlie recovery of money, at any time before final judgment; but no judgment by default regularly tahen, shall be set aside, except on cause shown; and in case the defendant shall have been personally summoned or shall appear and i^lead to the action, the judgment therein shall have the same force and effect against the per- son and property of the defendant, as in other actions where a summons has been pez'scnally served on him: Provided, hoiccvcr, that such axopearance shall not vacate or alTcct any bond taken under this act, nor discharge any garnishee, nor affect any lien created by the attachment, but the proceedings in respect to any property attached, or any garni.ihee summoned, shall be the same as if fmal judgment had been entered by default, Avithout any appearance of the defendant. § 2-137. — Y/hen any writ of attachment shall be executed and returned, if the defendant be not summcned, the clerk of the court shall cause a notice to be p>ub- lishcd, once a vi-eek for four weeks, in some newspaper published within the county or in some convenient county, and having a circulation in the county in which the suit is pending, stating the issuance of such attachment, at whose suit, against whose estate, for what sum, and in what court the same is jiending, and that unless the defendant appear on the fh-st day of the next succeeding term of the said court, and plead to said action, judgment will be entered, and the estate attached will be sold. Such publication may be made before or after the return term of the court: Provided, that in cases cf attachment against persons residing out of this state, the creditor, his agent or attorney, shall file with the clerk his affidavit, if the allidavit for the attachmer-t does not contain such statement, showing the post-olSce of the defendant, or that he has made diligent inquiry to ascertam it without success; and if the poct-ofUco shall be stated, the clerk shall send by mail to such defendant, at his post-office, a copy of such notice, and shall make it appear to the court that he has dene so, before judgment sh:dl be rendered on publication of notice, and for a failure of duty in this respect, the clerk may be punished as for a contempt, and shall be guilty of a misdemeanor, and be punishable accordingly. § 2438. — Such publication of notice shall not be necessary, if it shall be served on tho non-resident defendant, and proof of such service be made as provided for in case cf non-resident defendants in chancery, but such proof of service of notice shall be as effectual as if such defendant had been served with a summons. § 2439. — The notice of the attachment, Avhich the clerk is required to cause to be published, may be in the following form, or to that effect, to wit: "To : An attachment at the suit of , against your estate, for dollars, returnable before the circuit court of county, Mississippi, has been executed, and is now pending in said court; and unless you appear before said court on the ilonday of , 188 — , and plead to said action, judgment will be entered, and the estate attached wiU be sold. , 188—. , Clerk." § 2440. — If there should be no newspaper published within the county in which the attachment is pending, or in a convenient county, such notice shall be ported at the door of the court-house of the county, and that shall be instead of publica- tion in a newspaper. § 2441. — The declaration may be filed on or before the return day of the attach- ment or before any order of non pros, be taken, and the defendant shall i)lcr.d thereto, as in other cases, er.cept that when he has pleaded in abatement of the attachment, he shall not plead to the action until the issue made by the jilea in abatement has been disposed of. 586 MISSISSIPPI. "GAE^^SHsrE^^' A^'D proceedings thereon. § 2442. — The manner of summoning a garnishee shall be to read to him the writ of attachment, if he requires it, and to inform him that he must appear at the court to which the •writ of attachment is returnable, there to answer, on oath, in writing, what he is indebted or was indebted to the defendant ia the attachment, at the time of the summoning of such garnishee, or since that time, or what effects of said defendant he has in his hands, or had at the time of such simimons, or has had since, and what other persons, to his knowledge or belief, are indebted to said defendant or have effects of his in their hands; and 'a return by the officer executing it, on the attachment, that he has summoned certain persons, naming them, as garnishees, shall be a sufficient return of the summoning of such garnishees. § 2443. — It shall not be necessary to furnish a garnishee with a copy of the writ of attachment, but he may demand and receive from the officer summoning him a notice in writing of the answer he is required to make as above set forth; and it shall be the duty of the officer, upon such demand^ to deliver to the garnishee such written summons. § 2444. — Garnishees shall, in all cases, answer under oath, in writing, within the three first days of the return term, unless the court, for cause shown, shall grant fiurther time; and if, upon the answer or examination of any garnishee, it shall appear that there is any estate of the defendant in the hands of any person not simimoned, an alias attachment may at once be issued, to be levied on the prop- erty in the hands of such person, or he may be summoned as a garnishee and shall appear and answer, and be liable, as other garnishees. § 2445. — If a garnishee admits an indebtedness not then due, execution shall be stayed until its matm'itj'; and if he admits the possession of goods or chattels of the defendant, not seized by the sheriff, such goods or chattels shall be delivered to the sheriff, unless the garnishee shall give bond for the forthcoming thereof, as hereinbefore iDrovided. § 2446.-^ When any gamishpe, duly summoned, shall fail to appear and dis- cover, as by this chapter directed, the court shall enter a judgment against him for the amount of the plaintiff's demand, and all costs, and such judgment shall be final, unless cause be shown to the contrary during the same term, and execution shall issue thereon: Provided, any such garnishee may answer under oath, to be certified by any person authorized to admiaister an oath, and forward the answer to the com-t in which said suit is pending. § 2447. — If a garnishee in attachment shall i)ay over or deliver, in pursuance of the judgment or process of the court, any money or property, which has been due, or belonging to the defendant before notice of any sale, assignment or transfer thereof, by the defendant, to any other person, such garnishee shall not thereafter be liable for said debt or pro^Dcrty to the vendee or assignee thereof. § 2448. — The garnishee shall be allowed for his attendance, out of the debt or effects in his possession, or against the plaintiff in attachment, in case there be no debt or effects in his possession, provided he shall \m.t in his answer at the return term of the attachment, within the time prescribed by law, the pay and mileage of a juror; and in exceptional cases, rendering it proper, the com-t may allow the gar- nishee reasonable compensation additional to the foregoing, and to be obtained in the same way. § 2449. — When a garnishee, by his answer, or at any time before or after final judgment against him, shall allege that he has been notified that another person claims title to or an interest in the debt or property which has been admitted by him, or found by a jury to be due, or to be in his j)ossession, the court shall suspend all further proceedings, and cause a ci'«ation to issue to the person so claiming, to appear at the next term of the com-t, and contest with the plaintiff the right to such money or property; or, if such claimant be a non-resident, publicr.tion shall be mad& in the same manner as against non-residents in attachment. [Amended Stats. 1884, p. 74.] § 2450. — If the claimant fail to appear, the court shall adjudge the money or property to the plaintiff. If he ajjpear, he shall propound his claim to the debt or disputed j)roperty, in ■miting, under oath or affii'mation, and the plaintiff may take issue thereon, and the same shall be tried and determined as other causes in said court, if the issue be found in favor of the plaintiff; if found for the claimant, judgment must be rendered in favor of the claimant against the garnishee; and in all such cases the garnishee shall be jDrotected from all further liability to either party, in respect to such debt or property. [Amended Stats. 1SS4, p. 74.J MISSISSIPPI. 587 § 2451. — When the plaintiff or claimant shall allege that the garnishee has not made a full and true uiscovery of the debt due by him to the defendant, or of the property in liis possession belonging to the defendant, he shall, at the tei-m wlicn the answer is filed, rnless the court thall giant further time, controvert the sameinwritr iug, specifying in v/hat particulars he believes the answer to be incorrect. The court may du-ect a jury to be impanneleu immediately, unless good cause be shown for a continuance, to inquire what is the true amount due from such garnishee to the defendant, and what goods or chattels are in his possession belonging to the de- fendant; and the court shall g-rant judgment upon the verdict of the jury, as if the facts found had been confe.'ssed by the garnishee in his answer. If the answer of the garnishee be found true, he shall recover his costs against the plaintiff. [Amended Stats. 1884, p. 74.] § 24.52. — The defendant in attachment may contest the answer of any garnishee and may allege that the garnishee is indebted to him in a larger sum than he has admitted, cr that he holds property of the defendant not admitted by the answer, and thall specify, in writing, in what particulars the answer is untrue or defective; and thereupon an issue shall be made up, or the answer and exception shall constitute an issue, to be tried bj'' a jury; but this controversy shall not prevent the plain tiif from taking judgment for the sum admitted by the garnishee, or for the condemnation of the projperty admitted to be in his hands. § 2453.— If the garnishee, whose answer is contested, shall not be a resident of the county in which the suit is pending, then, upon an issue being made upon his f.nswer, the venue for the trial of the issiie sliall be changed, on his application, to the county of his residence. The court in which the issue is tried, shall be author- ized to grant new trials and continuances, as in other cases, and the verdict of the jury shall be certified by the clerk, and returned with the issue, to the court in v.-hich the suit is pending, and judgment shall be entered thereuijon, as if the ver- dict had there been found. § 2454. — If the issue be found against the garnishee, judgment shall be rendered against him for the amount of money or property in his hands not admitted by him, which judgment shall L^e in favor of the plaintiff, if necessary to satisfy his judgment or claim against the defendant, or in favor of the defendant, if the judg- ment of the plaintiff has been satisfied, or for so much thereof as may remain after satisfjdng said judgment. [Amended Stats. 1884, p. 74.] § 2455. — If the personal property attached, or any part thereof, shall have been left in the hands of the garnishee, on his' giving bond, as prescribed, or shall have been rejolevied by the defendant, the jury trying the issue between the parties, if they find for the plaintiff, shall a.ssess the value of the property so left in the hands of the garnishee, cr replevied by the defendant, as well as the debt or damages due the plaintiff; and if the value of the i)roperty shall equal the amount found due the plaintiff, judgment shall be entered against such garnishee and his sm-eties, or against the defendant and his sureties, on such replevin bond, for the amount of said verdict; and if the value of the property be less than the amount found due the plaintiff, judgment shall be entered against the defendant, for the amount- of the verdict, and against the sureties in his replevin bond, or against the garnishee and his sureties, for the value of the property so replevied, or left in the hands of such garnishee; and if judgment by default shall be entered, in such case, against the defendant, a writ of inquiry shall be awarded, to assess the value of the prop- erty so replevied, or left in the hands of the garnishee; and on the execution thereof, judgment shall be entered, as above provided. In all cases provided for in this section, the judgment against the sureties of the defendant, or against the garni.-hee and his sureties, shall be satisfied and discharged, by the delivery to the sheriff of the county, of the property replevied or left in the hands of the gar- nishee, within ten days after execution on such judgment shall have come to his hands; and such sheriff shall sell the property so delivered to him, and apply the proceeds to the payment of the execution; and, in all cases, the valuation of the P'roperty, liy the officer taking such bond, shall be prima facie evidence in favor of the iJlaintiff, of the value of the iDroperty. § 245G.^]Nro final judgment upon a garnishment shall go against a surety or ac- commodation indorser, until judgTnent shall go against the principal, and the pre- cetling indorsers or co-sureties, who may be liable to judgment, if they be residents of this state. § 2457. — Executors and administrators may be garnished for a debt due by their testator or intestate to the defendant; but no judgment shall be entered, in such case, against an executor or administrator, until the lapse of six months after the gi-ant of his letters; and they may be garnished as having efi'ects due to legatees or 588 MISSISSIPPI. distributees, but no jud.^ment shall be rendered against ttem in such case, except with their consent, until a linal settlement of the estate. § '2ii>S. — If any garnishee shall die, like i^roceedings may be had as provided for in case of the death of a party in any action. § 2 1j9. When any crecUtor, whose debt is not due, shall make affidavit of any of the tl:reo last p.'irticulara specified in this act a-3 grounds for an attachment, or that he has just cause to suspect, and verily believes, that his debtor will remove himself, or Lis ejects, out of the state, before the said debt will become payable, with intent to hinder, delay or defraud his creditors, or that he hath removed, with like intent, leaving property in this state, and shall give bond, as in other case"!, he may obtain an attachment in the county where the debtor resides, or last resided, or where his property may bo found; which attachment shall be issued, executed and returned, and the like i^roceedings had thereon, as in other cases of attachment; and if the debtor shall not, on or before the return day thereof, enter into bond to the plaintiH, in double the sum due, with sufficient securitj-, for the payment of the said debt, when it shall become i^ayable, and the costs of the attachment, the court, on due proof of the justice thereof, shall grant judgment, as in other cases of at- tachment; and on giving such bond, the same shall be handed over to the said plaintifif, and the attachment shall thereupon be discharged. When judgment shall be rendered, execution against any garnishee indebted to the defendant thall be stayed until the claim of the plaintiff, or garnishee's debt to the defendant, shall become due, and the goods and property attached shall be sold on a credit, until the time when the plaintiff's claim shall be payable. The sheriff, or other officer selling such property, shall take bond from the i^m-chasers, payable to the x^Iaiutiff in the attachment, for the amount of his debt, interest and costs, which bond shall be returned, with the execution, and, if not paid at maturity, shall have the fores and effect of a judgment, and execution may issue thereon, as on a judgment of a court of record; and where the property shall sell for more than the debt, interest and costs, the ofhcer shall take a bond for the surplus to the defendant, and deliver the same to him; but no more i^roperty shall be sold than is necessary to satisfy the judgment, except where the j^roperty cannot be div^ided, and the officer making the sale shall only be entitled to commissions on the amount of the plaintiff's de- mand, and the costs and commissions shall be included in the bond or bonds, taken to the plaintiff, who .shall be liable thei-efor to the officers of the court. If the de- fendant chall have replevied the proi^erty, execution against the defendant and the sureties in the replevin bond shall be stayed, tmtil the plaintiff's claim becomes due and payable. § 2430. — All the provisions of law, in relation to third persons claiming property levied on by virtue of a writ oi fieri facias, shall extend and apply to claimants of property levied on by virtue of writs of attachment: Providtd, hovKvcr, that any person, other than the defendant, claiming property attached, may interplead with- out giving bond, but the property attached shall not thereby be replevied, and a trial of tiio right of property shall not be had until after judgment in favor of the plaintiff in the attachment suit. § 24G1. — When a suit shall have been commenced, the plaintiff may obtain an attachment against the defendants, or one or more of them, on making affidavit and giving bond as required in other cases of attachment, which attachment shall be granted and issued by the same officei-s, and executed and returned, and the like proceedings, as far as applicable, shall be had thereon, as in other cases i:)rovided for by this act; and the affidavit, bond and attachment, when retm-ned, shall be filed with the iwpers in the original suit, and constitute a part thereof, and the original suit shall not be delayed thereby. But, if the plaintiff shall obtain judg- ment in the original suit, he shall have judgment in the attachment, as in other attachments. § 24G2. — ^Vhen goods and chattels levied upon, under an attachment, are in danger of immediate waste and decay, the officer holding them shall sell them to the highest bidder, for cash, after a written notice, posted at three pubhc places in the supervisor's district where the goods may be, for two entire days bci'ore t-ie sale; or on such other or shorter notice as the nature of the goods may requh-e; the proceeds of such sale shall be held by the officer, to abide the result of the suit, un- less replevied. The o\vnerof such goods may reple\y the s.nme, as in other cases, at any time before such sale occm-s, and after such salt the money .shall represent the goods. § 24G3. — 'When an officer shall levy an attachment on live st'o rata in the proceeds of said property; but in all cases the first attachment levied shall be first satisfied: Provided, furilitr, that the first writ placed in the hands of the officer shall be levied first. §203. — There shall be kept in the recorder's office of the county recorder of each coimty a book called "Attachment Book," in which shall be entered by such recorder, in alph.abetical form, the names of any person or persons against whom any writ or notice of attachment has been filed in his office; there shall also be en- tered in said book the time such writ was filed. Such entries shall be made under appropriate heads for that purpose. For making such entry the recorder shall re- ceive twenty-five cents, to be paid by the plaintiff in the action, and taxed and allowed to him as other costs and disbursements in the action. Attachment of boats— Sees. 204-220. Before justices of the peace — Sees. 734-737. Of cattle, etc., on range — Stats. 1885, p. 111. For taxes— Sec. 1028. Mortgaged chattels taken on — Stats. 1881, p. 4, sec. 5. Exemptions — Page G36, sec. 1078, y. 100; sees. 310, 311; may be is.?ned on any day, sec. 514; may issue from probate court, sec. 690; sale of property attached. Bee. 524. 606 NEBRASKA. NEBRASKA. [Compiled Laws, 1881.] CHAPTER III. ATTACHMENTS. § 198. — The plaintiff in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defend- ant, and upon the grounds herein stated: Fb'st. When the defendant, or one of several defendants, is a foreign corpora- tion, or a non-resident of this state; or, Second. Has absconded with the intent to defraud his creditors; or. Third. Has left the county of his residence to avoid the service of a summons; or, Fourth. So conceals himself that af summons cannot be served upon him; or. Fifth. Is about to remove his jiroperty, or a part thereof, out of the jurisdic- tion of the court, with the intent to defraud his creditors; or. Sixth. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, Seventh. Has property, or rights in action, which he conceals; or. Eighth. Has assigned, removed, disposed of, or is about to dispose of, his prop- erty, or a part thereof, with the intent to defraud his creditors; or. Ninth. Fraudulently contracted the debt or incurred the obligation for which Biiit is about to be or has been brought. But an attachment shall not be granted on the groimd that the defendant is a foreign corporation, or a non-resident of the state, for any claim other than a debt or demand arising upon contract, judgment, or decree. § 199. — An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the ijlaintiff, his agent, or attorney, showing: First. The nature of the plaintiiS's claim. Second. That it is just. Third. The amount which the affiant believes the plaintiff ought to recover. Fourth. The existence of some one of the groimds for an attachment enumer ated in the preceding section. § 200. — ^\^len the ground of the attachment is, that the defendant is a foreign corporation, or a non-resident of the state, the order of attachment may be issued without an undertaking. In all other cases, the order of attachment shall not be issued by the clerk until there has been executed in his office, by one or more suf- ficient sureties of the plaintiff, to be approved by the clerk, an vmdertaking not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attach- ment, if the order be wrongfully obtained. § 201.— The order of attachment shall be directed and delivered to the sheriff. It shall requu-e him to attach the lands, tenements, goods, chattels, stocks, or in- terests in stocks, rights, credits, moneys, and effects of the defendant in his county not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as wiU satisfy the i^laintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action, not exceeding fifty dollars. § 202. — Orders of attachment may be issued to the sheriff of different counties; and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but such only as have been executed shall be taxed in the costs, unless otherwise directed by the court. § 203. — The return day of the order of attachment, when issued at the com- mencement of the action, shall be the same as that of the summons; when issued afterward, it shall be twenty days after it is issued. NEBRASKA. 607 EXECUTION AND EETURN. § 204. — When there are several orders of attachment against the same defend- ant, they shall be executed in the order in which they are received by the sheriff. § 205. — The order of attachment shall be executed by the sheriff without delay. He shall go to the place where the defendant's property may be found, and there in the i^resence or two residents of the county, declare that by virtue of said order he attaches said property at the suit of such plaintiff; and the officer, with the said residents, who shall be first sworn or affirmed by the ofiicer, shall make a true inven- tory and appraisement of all the property attached, which shall be signed by the officer and residents, and retm-ned with the order. Where the property attached is real property, the officer shall leave with the occupant thereof, or, if there be no oc- cupant, in a conspicuous place thereon, a copy of the order. Where it is personal property, and accessible, he shall take the same into his custody, and hold it subject to the order of the court. § 206.— The sheriff shaU deliver the property attached to the person in whose possession it wa.s found, upon the execution by such person, in the presence of the sheriff, of an imdertaking to the plaintiff, with one or more sufficient sureties, resi- dent in the county, to the effect that the parties to the same are bound in double the appraised value thereof, that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by un- avoidable accident, the value thereof shall be remitted to the person so bound. § 207. — When the plaintiff, his agent or attorney, shall make oath, in writing, that he has good reason to and does believe that any person or corporation, to be named and -w-ithin the coimty where the action is brought, has property of the defendant (describing the same) in his possession, if the officer cannot come at such property, he shall leave with such garnishee a copy of the order of attachment, with a -m-itten notice that he appear in court, at ttie retm-n of the order of attach- ment, and answer, as provided in section two hundred and twenty-one. § 208. — The copy of the order and the notice shaU be served upon the garnishee as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president or other officer of the same, or a managing agent thereof. § 209. — Different attachments of the same property may be made by the same officer, and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order. § 210. — "Where the property is under attachment, it shaU be attached imder sub- sequent orders as follows: First. If it be real property, it shall be attached in the manner prescribed in section two hundred and five. Secornl. If it be personal property, it shall be attached as in the hands of the officer, and subject to any previous attachment. Third. If the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him, in the manner prescribed in section two hundred and seven. § 211. — The officer shall return upon every order of attachment what he has done under it. The return must show the property attached, and the time it was attached. ^Vhen garnishees are served, their names, and the time each was served, must be stated. The officer shall also return with the order all undertakings given under it. § 212. — An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment fcr all property, monej's, and credits in his hands, or due from him to the defendant, from the time he is served with the written notice mentioned in section two hun- dred and seven; but where the property is attached in the hands of a consignee, his lien thereon shall not be affected by the attachment. DISPOSITION OF ATTACHED PROPERTY. § 21.3.— The court, or any judge thereof during vacation, may, on the applica- tion of the plaintiff, and on good cause shown, appoint a receiver, who shall take an oath faithfully to discharge his duty; and shall give an undertaking to the state of Nebraska, in such sum as the court or judge may direct, and with such security as shall be approved by the clerk of the court, for the faithful performance of his duty as such receiver, and to pay over all money, and account for all property. 608 NEBRASKA. which may come into his hands by virtue of his apjKjintment, at such times and in such manner as the court maj' direct. § 214. — Such receiver shall take possession of all notes, due-bills, books of ac- count, accounts, and all other evidences of debt, that have been taken by the sher- iff or other officer, as the i:)roperty of the defendant in attachment, and shall proceed to settle and collect the same. For that purpose, he may commence and maintain actions in his ovm name as such receiver; but in such action no right of defense shall be impaired or affected. § 215.— Such receiver shall forthwith give notice of his appointment to the per- sons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors by copy personally, or by copy left at the residence; and from the date of such service, the debtors shaU stand liable to the plaintiff in attachment for the amount of moneys and credits in their hands, or due from them to the defendant in attachment, and shall account therefor to the receiver. § 216. — Such receiver shall, when required, report his proceedings to the court, and hold all moneys collected by him, and property which may come into his hands, subject to the order of the court. § 217. — "Where a receiver is not appointed by the covtrt or a judge thereof, as provided in section two hundred and thirteen, the sheriff or other officer attaching the property shall have all the powers and perform all the duties of a receiver ap- pointed by the court or a judge, and may, if necessary, commence and maintain actions in his own name as such officer. He may be required to give security, other than his official undertaking. § 218. — The court shall make proper orders for the preservation of the property during the pendency of the suit. It may direct the sale of property when, because of its perishable nature, or the costs of keeping it, a sale will be for the benefit of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescribed for the sale of Uke projierty on execution, and shall be made in such manner, and upon such terms of credit, with security, as the court or judge, having regard to the probable duration of the action, may direct. The proceeds, if collected by the sheriff, with aU the moneys received by him from garnishees, shall be held and paid over by him, un- der the same requirements and responsibilities of himself and sureties as are pro- vided in respect to money deposited in lieu of bail. PKOCEEDIN'GS UPON ATTACHMENT. § 219. — If the defendant, or any other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff by one or more sureties resident in the county, to be approved by the coxirt, in double the amount of the plaintiff's claim as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof. Such undertaking shall also discharge the UabiUty of a garnishee in such action for any p)roperty of the defendant in his hands. § 220. — The undertaking mentioned in the last section may, in vacation, be exe- cuted in the presence of the sheriff having the order of attachment in his hands, or, after the return of the order, before the clerk, with the same effect as if executed in court; the sureties in either case to be approved by the officer before whom the imdertaking is executed. § 221. — The garnishee shall appear as follows: If the order of attachment be returned during a term of court, he shall appear at that term; if the order be rC' turned during vacation, he shall appear at the term next after its retiuTi. He shall appear and answer under oath all the questions put to him touching the prop- erty of every description and credits of the defendant in his possession or under ms control, and he shall disclose truly the amount owing by him to the defendant, whether due or not, and in case of a corporation,' any stock therein held by or for the benefit of the defendant, at or after the service of notice. But a garnishee shall not be required to appear in this or in any other case, unless there is tendered to him the same fees as a witness is entitled to in the suit in which t'.e garnishee proceedings are had, and such fees may be taxed and collecteti in the same manner as other costs in such jjroceedings. (Amended 1877, 10. Took effect June 1, 1877.) § 222. — A garnishee may pay the money owing to the defendant by him to the sheriff ha\ing the order of attachment, or into court. He shall be discharged from liability to the defendant, for any money so paid, not exceeding the plaintiff's NEBRASKA. 609' claim. He shall not he subjected to costs beyond those caused by his resistance of the claim against him; and if he disclose the property in his hands, or the true amount owing- by him, and deliver or pay the same according to the order of the coiu-t, he shaU be allowed his costs. § 223. — If the garnishee do not appear in court and answer, as required by sec- tion two hundred and twenty-one, the court may proceed against him by attach- ment as for a contempt. § 224. — If the garnishee appear and answer, and it is discovered on his examina- tion that at or after the service of the order of attachment and notice upon lum, he was possessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property and the payment of the amount owing by the garnishee, into the court; or the court may i^ermit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaint- iff by one or more sufficient siu"eties, to the effect that the amount shall be paid, or the property forthcoming, as the court may direct. § 225. — If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure is not satisfactory to the plaintiff, or if he fail to comply with the order of the court, or deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action, by filing a petition in his own name, as in other cases, and causing a summons to be issued ui^on it; and thereiipon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff, for the amount of the property and credits of every kind of the defendant in the possession of the garnishee, and for what shall aj^pear to be owing by him to the defendant, and for the costs of the proceedings against the gamisbee. If the plaint- iff proceed against the garnishee by action, for the cause that his disclosure was unsatisfactorj^, unless it appear in the action that such disclosure was incomplete, tbe plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases. When the claims of the plaintiff in at- tachment are satisfied, the defendant in attachment may, on motion, be substi- tuted as the plaintiff in the judgment. §226. — Final judgment shaU not be rendered against the garnishee until the action against the defendant in attachment has been determined; and if in such action judgment be rendered for the defendant in attachment, the garnishee .shall be discharged and recover costs. If the plaintiff shall recover against the defend- ant in attachment, and the garnishee shall deliver up all the property, moneys, and credits of the defendant in his possession, and pay all the moneys from him due as ■ the coiu-t may order, the garnishee shall be discharged, and the costs of the pro- ceedings against him shall be paid out of the property and moneys so surrendered, or as the com-t may think right and proper. § 227. — If judgment be rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him. § 228. — If judgment be rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the monej^s arising from the sale of perishable property, and so much of the personal jjroperty, lands and tenements, if any, whether held by legal or equitable title, as may be neces.sary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regnlations as if the same had been levied on by execu- tion; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be apj^lied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases. Any siu-plus of the attached property, or its proceeds, shall be retm-ned to the defendant. § 229. — The court may compel the delivery to the sheriff, for sale, of any of thq attached property for which an undertaking may have been given, and may pro- ceed summarily on such undertaking, to enforce the delivery of the property, or the pajTQent of such sum as may be due upon the undertaking, by rules and attach- ments, as in cases of contempt. § 230. — The court may order the sheriff to repossess himself, for the piu-pose of selling it, of any of the attached property which may have passed out of his hands ■ without having been sold or converted into money; and the sheriff shall, xmder such order, have the same power to take the property as he would have imder au- order of attachment. • II ATTArTTMRXT— 14. 610 NEBRASKA. § 231. — If personal property which has been attached, be claimed by any person other than the defendant, it shall be the duty of the officer to have the validity of such claim tried, and such proceedings must be had thereon, ■with the like effect, as in case the property had been seized upon execution, and claimed by a third person. § 232. — Where several attachments are executed on the same property, or the same persons are made garnishees, the court, on the motion of any of the plaintiffs, maj' order a reference to ascertain and report the amoimts and priorities of the several attachments. GENERAL PE0VISI0N3. § 233. — From the time of the issuing of the order of attachment, the' court shall be deemed to have acquired jurisdiction, and to have control of all subsequent pro- ceedings under this chapter; and if, after the issuing of the order, the defendant, being a person, should die, or a corporation and its charter should xpire by lim- itation, forfeiture, or otherwise, the' proceeding shall be carried on; but in all cases other than where the defendant was a foreign corporation, his legal representatives shall be made parties to the action. § 234.— The defendant may, at any time before judgment, after reasonable no- tice to the i^laintiff, move the court for additional security on the part of the plaint- iff ; and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has removed from this state, or is not sufficient for the amount thereof, it may vacate the order of attachment, and direct restitution of any property taken under it, unless in a reasonable time, to be fixed by the court, sufficient security is given by the plaintiff. § 235. — The defendant may, at any time before judgment, upon reasonable no- tice to the plaintiff, move to discharge an attachment, as to the whole or a part of the property attached. § 236. — If the motion be made upon affidavits on the part of the defendant, or pajjers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of at- tachment was made. § 236 a (Sec. 1). — That whenever an attachment shall issue to any other county than the one in which the action is brought, and any lands shall be attached by virtue thereof, it shall be duty of the officer attaching said property to make out a true copy of said order of attachment, and file the same in the office of the recorder of deed^ of the county where the lands so attached are situated. He shall also certify upon said copy of said order of attachment, that the same is a true copy of the original writ received by him, and he shall also indorse thereon the description of the projierty attached, and the time when the same was attached under and by virtue of the original order of attachment. (G. S. 714. ) § 236 h (Sec. 2). — It shall be the duty of the recorder of deeds of the coxmty, when the copy of the order of attachment has been filed as provided in this act, to record the same in the miscellaneous record together with the certificate of the officers heretofore mentioned, and such copy of said orders of attachment, and cer- tificate so filed and recorded, shall be sufficient notice to subsequent purchasers of said land so attached as aforesaid. § 236 c (Sec. 3). — If the order of attachment be discharged, it shall be the duty of the clerk of the com-t in which the action is brought, to certify that fact, to- gether ■uith the time when the order was discharged, to the recorder of deeds in whose office the copy of said order has been recorded as aforesaid; whereupon such recorder shall file such certificate, and write across the record of such copy the word "discharged," and also the time of discharge, as shown in said certificate. § 236 d (Sec. 4). — The officer for making out said copy of the order of attach- ment, and the clerk for recording the same, shall each receive such compensation as is now allowed by law for similar services, to be taxed in the costs, unless other- wise ordered by the coiut. § 236 e (Sec. 1). — That when an order discharging an order of attachment is made, and any party affected thereby shall except thereto, the court or judge shall fix the number of days, not to exceed twenty, in which such party may file his petition in error, during which time the property attached shall be held by the sheriff or other officer, during which period the petition in error shall be filed, and the party filing the same shall give an undertakmg to the adverse party, ^vith surety or sureties, to be approved by the court, in double the amount of the appraised value of the property attached, conditioned to pay said adverse party aU damages NEBRASKA. 611 Bostained by such party in consequence of the filing of said petition in error, in the event that such order of attachment shall be discharged bj' the court, in which said petition in error shall be filed, as having been unlawfully obtained. (G. S. 715.) §236/ (Sec. 2). — The original action shall proceed to trial and judgment in every other respect as though no writ of error had been prosecuted. ATTACHMENTS IN CERTAIN ACTIONS. § 237. — A creditor may bring an action on a claim before it is due, and have an attachment against the p'-operty of the debtor, in the following cases: First, where a debtor has sold, conveyed, or otherwnse disposed of his prop- erty, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts. Second. Where he is about to make such sale, conveyance, or disposition of his property, with such fraudulent intent. Third. Where he is about to remove his property, or a material part thereof, with the intent or to the effect of cheating cr defrauding his creditors, or of hinder- ing or delaying them in the collection of their debts. § 238. — The attachment authorized by the last section may be granted by the court in which the action is brought, or by a judge thereof, or by the probate judge of the county; but before such action shall be brought, or such attachment shall be granted, the plaintiff, his agent, or attorney, shall make an oath, in writing, showing the nature and amoimt of the plaintiffs claim, that it is just, when the same shall become due, and the existence of some one of the grounds for attach- ment entmierated in the preceding section. § 239. — If the court or judge refuse to grant an order of attachment, the action shall be dismissed, but without prejudice to a future action; and in all such actions application for an attachment must be made. §240. — The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a simi sufficient to satisfy the plaintiff's claim and the probable costs of the action. § 241. — ^The order of attachment, as granted by the court or judge, shall not be issued by the clerk until there has been executed in his office such undertaking on the part of the plaintiff as is directed by section two hundred. § 242. — ^The plaintiff in such action shall not have judgment on his claim before it becomes due, and the proceedings on attachment may be conducted without delay. § 243. — The proceedings in the first article of this chapter subsequent to section two hundred, shall, so far as they are applicable, regulate the attachments author- ized by this chapter. GARNISHMENT IN CERTAIN CASES. § 244. — In all cases where an execution issued upon any judgment of a court of record, or of a justice of the peace, shall be retm-ned by the officer in whose hands the same was placed for service, unsatisfied for want of sufficient joroperty whereof to levy and collect the same, and the judgment creditor in such execution, his agent or attorney, shall file an affidavit in the office of the clerk of the court, or justice of the peace, from which said execution issued, that he has good reason to and does believe that any person or corporation (naming them) have projjerty of and are indebted to the judgment debtor, the said clerk, or justice of the peace, shall issue a summons as in other cases, requiring such person or corporation to appear in coiu-t and answer such inteiTogatories as shall be jiropounded tti him, it or them, touching the goods, chattels, rights, and credits of the said judgment debtor in his, its or their, possession or control. § 245.— The siimmons shall be made returnable, and the said persons or corpora- tions shall be reqxiired to appear, as in ordinary cases of summons, and thereafter like proceedings shall be had therein, and said garnishees shall be held liable, in all respects, as in cases of garnishees before ji^dgment. § 246. — The simimons shall be served as a summons in an original action is served; the said persons or corporations so summoned shall be liable to the judg- ment creditor in said execution for all property, money, or credits in his, its or their, hands, or due from him, it or them, to the judgment debtor in said execution, at the time of, and which may come into his, its or their, hands or control after the service of, said summons. 612 NEVADA. § 247. — Xo proceedings against such garnishee or garnishees shall be quashed, or such garnisliee or garnishees discharged, by reason of any informality or irregu- laritj', merely, of the affidavit or summons provided for in this article. § 24S. — In cases where the garnishee, in answering such interrogatories, shall disclose that he has property in his possession, or under his control, belonging to the defendant or defendants in execution, the court shall order the same to be taken and sold by the officers upon execution, as in other cases. § 249. — In cases where the garnishee, in answering such interrogatories, shall dis- close that he is indebted to the defendant in execution, the com-t shall order the garnishee to pay over the amount found to be due from the said garnishee to the de- fendant in execution, which amount shall be collected by execution, as in other cases, as near as may be, and such amount, when paid or collected, shall be credited on the original judgment, and the garnishee shall be credited for the amount so paid or collected. Before justices of the peace — Sees. 925-950. In probate coiu-ts— Page 207, sec. 16; against estates, p. 239, sec. 27; p. 245. sees. 272. 273. To enforce mechanics' liens — Page 345, sec. 9. Exemptions— Sees. 521, 530, 531, 531 a; city property, p. 101, sec. 100; ceme- teries, p. 141, sec. 53; fire engines, p. 285, sec. 4; homestead, p. 295, sec. 1; money from sale of, p. 297, sec. 16; public libraries, p. 333, sec. 11. NEVADA. [General Statutes, 1885.] CHAPTER IV. ATTACHMENT. § 3145 (Sec. 123). — The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided in the following cases: First — In an action upon a contract for the direct payment of money, made, or by the terms thereof, payable in this state, which is not secured by mortgage, lien, or pledge upon real or personal property situated or being in this state, if so secured, when such security has been rendered nugatory by the act of the defendant. Second — In an action upon a contract against a defendant not residing in this state. § 3146 (Sec. 124). — The clerk of the court shall issue the -m-it of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, show- ing: First — That the defendant is indebted to the plaintiff (siiecifj-ing the amount of such indebtedness over and above all legal set-offs or counter-claims^ upon a contract for the direct payment of money, and that such contract was made, or is, by the terms thereof, payable in this state, and that the pajTnent of the same has not been secured by any mortgage, lien, or pledge upon real or personal property situate or being in this state, or, if so secured, that said security has been rendered nugatory by the act of the defendant; or, Second — That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness as near as maybe over and above all legal set-offs or counter-claims), and that the defendant is a non- resident of the state. Third — That the sum for which the attachment is asked is an actual bona fide existing debt, due and owing from the defendant to the plaint- iff, and that the attachment is not sought and the action is not prosecuted to hin- der, delay, or defraud any creditor of the defendant. § 3147 (Sec. 125). — Before issuing the writ the clerk shall require a written un- dertaking on the part of the jjlaintiff, in a sum not less than two hundred dollars. NEVADA. 613 not exceeding the amount claimed by the plaintiff, in gold coin of the United States, with sufficient sureties, to the effect that if the defendant recover judgment the plaintiff will pay, in gold coin of the United States, all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. § 3148 (Sec. 126). — The writ shall be directed to the sheriff of any county in which property of such defendant may be, and require him to attach and safely keep all the property of such defendant within his county not exempt from execu- tion, or so much thereof as may be sufficient to satisfy the plaintifE's demand, the amount of which shall be stated in conformity with the complaint, unless the de- fendant give him security by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs, in the money or cur- rency of the contract, in which case to take such undertaking. Several verits may be issued at the same time to the sheriffs of different counties. § 3149 (Sec. 127). — The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profits therein, and all debts due such defendant, and all other property in this state of such de- fendant not exempt from execution, may be attached, and, if judgment be re- covered, be sold to satisfy the judgment and execution. § 3150 (Sec. 128). — The sheriff to whom the writ is directed and delivered shall execute the same ■ivithout delay, and if the undertaking mentioned in section one hundred and twenty-six be not given, as follows: First — Real property shall be attached by leavirig a copj' of the writ with the occupant thereof; or. if there be no occupant, by posting a copy in a conspicuous place thereon, and filing a copy, together with a description of the property attached, with the recorder of the county. Second — Personal property capable of manual delivery shall be attached by taking it into custody. Third — Stock or shares, or interest in stock or shares, of any corporation or company shall be attached by leaving with the president, or other head of the same, or the secretary, cashier, or managing agent thereof, a copy of the -nTit, and a notice stating the stock or interest of the defendant is at- tached in pursuance of such writ. Foy.rth — Debts and credits, and other personal property, not capable of manual delivery, shall be attached by leaving with the person owing such debts, or having in his possession, or under his control, such cretUts or other personal property, a copy of thp writ, and a notice that the debts owing by him to the defendant, or the credits and other personal proi^erty in his possession or under his control, belonging to the defendant, are attached in pursu- ance of such writ. § 3151 (Sec. 129). — Upon receiving information in writing, from the plaintiff or his attorney, that any person has in his possession, or under his control, any cred- its or other personal property belonging to the defendant, or is owing any debt to defendant, the sheriff shall serve upon such person a copy of the writ, and a notice that such credits or other property or debts, as the case may be, are attached in pursuance of such writ. § 3152 (Sec. 130). — All persons having in their possession, or under their con- trol, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as provided in the last two sections, shall be, unless such jiroperty is delivered up or transferred, or such debts be paid to the sheriff, liable to the plaint- iff for the amount of such credits, property, or debts, irntU the attachment be dis- charged or any judgment recovered by him be satisfied. § 3153 (Sec. 131).— Any person owing debts to the defendant, or having in his possession or under his control any credits or other personal property belonging to the defendant, may be required to attend before the court, or judge, or a referee appointed by the court or judge, and be examined on oath respecting the same. The defendant may also be required to attend for the pm-pose of giving informa- tion respecting his proi^erty, and may be examined on oath. The court or judge may, after such examination, order personal property capable of manual delivery to he delivered to the sheriff on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof. § 3154 (Sec. 132).— The sheriff shall make a full inventory of the property at- tached, and return the same with the writ. To enable him to make such returns as to debts and credits attached, he shall request at the time of service the party owin,'.,'- the debt, or having the credit, to give him a memorandum stating the amount anl}-ing- creditor of the said deLtor, assign the said bond "U'ithout fee or reward to such person as the court shall direct, to bo jjrosecuted for the benefit of the i>laintiff and such creditors as shall have ap- plied to the court or auditors under such attachment, in conformity to this act. § 34. — That a judp-e of the court out of which any attachment has issued or may issue, may in term or vacation, upon five daj's' notice to the plaintiff, or to any creditor admitted by rule under such attachment, or by the report of auditors do. file, order the attachment and all proceedings therein to be set aside as against such plaintiff or creditor upon the defendant entering his appearance at the suit of such plaintiff or creditor, and in case any personal property, money or rights in action shall have been attached upon the defendant entering into such bond with like surety, to be approved by said judge, as is directed in the next preceding sec- tion of this act, or upon the defendant entering into bond with like surety, and ap- proved by said judge, to such creditor or plaintiff, in double the sum sworn to in the affidavit filed by him, conditioned for the return of such goods and chattels, rights and credits, moneys and effects attached, if judgment be rendered for such obligee. § 35. — That the plaintiff in such attachment .shall not be permitted to discon- tinue the same, without the consent of, or satisfaction made to, each of the said creditors who shall have applied to the court or auditors as aforesaid. § 3G. — That when said attachment shall be set aside as against the plaintiff and all creditors admitted by rule entered on affidavit or by report of auditors on file, all property attached, except real estate, shall be free from the lien thereof, and no creditor shall be admitted under any attachment after the same shaU have been set aside as to the iDlaintiff therein. §37. — That if the said defendant, instead of giving any of the bonds before mentioned, shall make, execute and fUe in the office of the clerk of the court out of which any attachment shall have issued, a bond, with two or more sureties, to be approved of by said court or a judge thereof, to the plaintiff in attachment, and a like bond to each of the creditors, who shall have apphed as aforesaid, in double the sums respectively sworn to by them, conditioned for the payment of such moneys as may be adjudged to be due to them severally; and shall also enter his appear- ance to the suit of the said i:)laLntiff and each of said creditors; then it shall he law- ful for the said coiu't or a judge thereof, either in term time or vacation, if it shall appear just so to do, to order the said attachment to be set aside, and that both the real and personal estate of the defendant be released and discharged from the hen thereof. § 38. — That it shall be lawful for any defendant or defendants, in any suit com- menced by attachment, to enter his, her or their appearance to the suit of the plaintiff or plaintiffs therein, or of any creditor or creditors under said attachment, without giving bond for the return of the personal property attached by \-irtue thereof; which appearance shall be entered in the clerk's book, and notice thereof given to such plaintiff or plaintiffs, creditor or creditors, or his, her or their attor- ney or attorneys within twenty days thereafter; and after such appearance and notice, the suit or suits of such plaintiff or plaintiffs, creditor or creditors, shall proceed in all respects as if commenced by summons, and no other or further claim shall be put in under such attachment after the entry of such appearance. § 39. — That in any case of an appearance by virtue of the foregoing section, the lien of the attachment shall continue, and proceedings by scire facias may be had against any garnishee, and the movable property attached shall remain in the cus- tody of the sheriff or his bailee, and be subject to the order and control of the court or the judge thereof, and the court or judge may, if occasion require, order the property sold as ijerishable, and appoint an auditor with like powers in all re- spects as if no appearance had been entered; but a judge of the coiu-t may discharge the lien of such attachment as to all or any i^art of the personal property attached, upon four days' notice to all parties interested, and upon the defendant or defend- ants giving bond, with securities, in such amount and in such condition as said judge may direct. § 40. — That the plaintiff in attachment, by and with the consent of all of the creditors who may have entered a rule to be admitted as creditors under anv at- tachment as aforesaid, may enter a discontinuance of such attachment in vacation; and in case no creditor or creditors shall have entered a rule to be made creditor or creditors as aforesaid, the plaintiff in attachment shall discontdnue all proceedinga in attachment, upon settlement of his debt. KEW JEHSET. G25 § 41. — That it shall be the duty of the officer by whom any writ of attachment shall be execiiteil, to deliver anj' property attached by vh-tue of such writ to the person in whose possession the same is found, upon the execution, in the presence of the officer, of a bond to the plaintiff, by such person, with one or more sufficient sureties, in double the value of the property, conditioned that the defendant shall perform the judrrment of the court in the action, or that the property, laintiff therein, the money thereby recovered, whether collected by execution or other\vise, shall be x^aid 1 1 the said auditor in attachment, to be by him disposed of according to law; and if judgment shall x^ass against the x^laintiff in such suit, the said auditor shall pay the costs of such suit, and shall be allowed to retain the same out of any moneys or effects that may come to his hands as such auditor. § 51. — That where judgment, on the report of the said auditor, shall be entered against the said defendant hy default, the said auditor may, by virtue of an order of court for that purpose, make sale and assurance of the goods and chattels, lands and tenements, of the said defendant, which were attached and taken as aforesaid, and upon which the attachment remains a lien, or such i^art thereof as shall be nec- essary to satisfy the debts of the xJaintiff, and the creditors who may have applied agreeably to thfe directions of this act; but notice of the sale of such goods and chattels shall be set uj? at live of the most i>ublic x>lace3 in the county, and be ad- vertised in some one of the newsx^ax^ers circulating in this state, for the sx^ace of thirty days x^rior to such sale; nor shall any sale of such lands and tenements be made in less than twelve months from the time of executing the writ of attach- ment, nor of any goods or chattels, till judgment be obtained against the defendant as aforesaid, unless the com-t in its discretion or a judge thereof shall, on the re- turn of the said writ, or at any other time before judgment, order the said sheriff or the auditor to sell such goods and chattels; in which case advertisements set up for the space of five days prior to the time of sale, in four of the most public places in the townshix?, x^recinct or ward, shall be sufficient. § 52. — That when the goods and chattels, lands and tenements of the defendant shall be sold as aforesaid, then it shall be the duty of the said auditor to serve a written notice on each of the creditors whose claim shall have been admitted, or to cause public notice to be given in one or more of the newspapers cu'culating in this state, requu-ing a meeting of the x>laintiff and creditors, who may have appjlied, a.gree- ably to the direction of this act, at a certain time and place in the said notice to be Sfjecified, which time shall not be less than six nor more than ten weeks after such notice given, for the purjiose of making distribution of the moneys arising from such sale; at which meeting, or other subsecxuent meeting, to be continued by ad- journment, if necessary, the said auditor shall distribute among the said plaintiff and creditoi's equally, and in a ratable proportion, according to the quantiun or amount of their respective debts, as ascertained by the said rejiort and the judg- ment thereon, all the moneys arising from the sale of the said goods and chattels, lands and tenements, and all other monej-s in his hands as auditor, first deducting legal costs and charges; and if the said monej-s be not sufficient to satisfy the said debts, then the said auditor shall assign to the said plaintiff and creditors the choses in action, rights and credits of the said defendant, in x^roportion to their respective debts, so as aforesaid ascertained; which assignment shall vest the prop- erty and interoet of the said defendant in such assignee, so as he may sue for and recover the same in his o-mi name and for his o^vn use; and in the said distribution and assignment, no x^reference shall be allowed to debts due on sx^ecialties: And further, that the moneys so distributed, as also the moneys which may be received by virtue of such assignment, shall operate as payment of such debt, in whole or in part, as the case may be; and the said auditor is hereby directed to make report of such distribution, assignment and other proceedings under this section, to the coiu-t at the next term, in order that the same may be filed in the clerk's office. § 53. — That every grant, bargain, sale, assignment, transfer, assiu^ance, aliena- tion, and conveyance, made by the said auditor, imder and by virtue of this act, shall be as good and effectual in law as if executed by the said defendant, at and before the time when such attachment became a lien upon the estate, real or per- sonal, so sold, assigned or conveyed. NEW JERSEY. 627 § 54. — That any creditor, whose debt is not due, may apply to the court oi auditor in the same manner as if it were due, and thereupon shall be admitted and considered as a creditor under this act, and shall receive a dividend of the defend- ant's estate in proportion with the other creditors, deducting only a rebate of legal interest for what he shall receive on such debt, to be computed from the actual payment thereof to the time such debt would have become due. § 55.- -That if any creditor, whether his debt be due or not, shall neglect or re- fuse to apply to the court or auditor in the manner prescribed by this act, he shall not be entitled to any dividend or distributive share; but all the moneys arising from the sale of the defendant's goods and chattels, lands and tenements, or which may be collected under this act, shall be distributed among, and his choses in ac- tion, rights and credits, shall be assigned to, such of the creditors as shall have duly applied to the said court or auditor. § 5G. — That no plaintiff or other creditor shall receive any dividend or assign- ment as aforesaid by virtue of this act, until he shall have entered into bond to the defendant, with one or more sureties, being freeholders and residents in this state, to be approved by the court or by the auditor in double the sum so to be received or assigned, with condition that he shall appear to any suit that may be brought against him by the said defendant within one year next after the date of the said bond, and shall pay unto such defendant any sum of money which, by the judgment or decree of the court, shall appear to have been received by him, and not due or owing, with costs of suit, which bond shall be filed with the clerk for the benefit of the defendant. § 57. — That if any defendant shall die after the return day of the writ of attach- ment, the said action shall not be thereby abated or discontinued, but the same shall be carried on to judgment, sale, transfer, distribution, and final determina- tion, as if such death had not intervened and the defendant had been alive; and all proceedings and deeds which shall be had and made in such case are hereby declared to be as valid and effectual in law a» if they were had and made in the lifetime of such defendant; and the bond entered into in pursuance of the preceding section may, notwithstanding the death of such defendant, be prosecuted in Lis name to judgment and effect in the same manner as if he were living. V. PROCEEDINGS AGAINST GARNISHEE. § 58. — That the plaintiff, notwithstanding the garnishee's denial of his having any moneys, goods, chattels, or effects of the defendant in his custody or posses- sion, or of his being indebted to him, may, if he really believes that the said gar- nishee hath such moneys, goods, chattels, or effects in his custody or possession, or that he is indebted to the defendant, and is in fear of the said garnishee's abscond- ing before judgment and execution can be had against such garnishee, and shall make oath or affirmation thereof, and deliver the same to the clerk as aforesaid, in- stitute a suit against the said garnishee by summons, or, in case of fraud duly proved according to the statute in such case made and provided, by capias ad respondendum; in which suit the plaintiff may declare against the said garnishee for the moneys, goods, chattels, or effects so as aforesaid in his custody or possession, in trover and conversion, as of such j^laintiff's own proper moneys, goods, chattels, and effects; or if the said garnishee be indebted to the defendant in attachment, then the jilaintiff may declare for so much money had and received by such gar- nishee to the use of the plaintiff, and, on the trial, may give the special matter in evidence, and thereupon the jury shall find for the said plaintiff, and assess dam- ages to the full value of the moneys, goods, chattels, or effects so proved to be in the custody or possession of such garnishee, or to the full value of the debt so due from such garnishee to the defendant in attachment; on which verdict, judgment shall be given, with costs of suit, and execution issued thereon against the goods and chattels, lands and tenements, and the body of the said garnishee, as is or shall be by law allowed in actions of trespass on the case. § 59. — That the suit so instituted against the said garnishee shall be continued by the court, without trial or decision, until the action against the defendant in at- tachment shall be adjudicated upon and determined; and if in such action nothing shall be found due from the defendant to the plaintiff, then the garnishee sh:^ll re- cover costs against the plaintiff, notwithstanding he may be indebted to tlio defend- ant, or have the moneys, goods, chattels, or effects of such defendant in his custody or possession. § CO. — That if, in the suit so instituted against the garnishee, the plaintiff shall be nonsuited, or shall discontinue, or verdict and judgment shall be given against him, then the said garnishee shall recover costs. '628 NEW JERSEY. § 61. — That wtere judgment on the report of the auditor shall be entered against the defendant by default, a scire facias shall (except only as is herein- before mentioned) issue against the garnishee, to appear at the next term after entry of such judgment, and show cause why the plaintiff should not have execu- tion of the money so as aforesaid due by him to the defendant, and in his hands, or the value of the goods and chattels of the defendant, which were in the custody or possession of such garnishee at the time of executing the writ of attachment; and if the garnishee shall appear at the return of the said scire facias, and on oath or otherwise, to the satisfaction of the auditor, confess the amount of the debt due from him to the defendant, or the true value of the defendant's goods and chattels, which were as aforesaid in his custody or possession, and tender the same to the auditor, and he accei)t thereof, then he, the said garnishee, shall, by the judgment of the court, be acquitted and discharged from the debt, or goods and chattels afore- said, with costs; and if, the said scire facias having been returned served, or in case no service thereof can be made, having been published as prescribed by law, the garnishee shall not a^jpear, confess, and tender as aforesaid, then judgment shall be entered against such garnishee by default, and a writ of inquiry shall be awarded to the sheriff or other officer, to inquire and certify to the court, by the oath or affirmation of twelve good and lawful men of his bailiwick, the amount of the debt due from such garnishee, or the value of the goods and chattels so as afore- said in his custody or possession, and on the return of such inquisition, judgment shall be entered against the said garnishee for the sum so found and certified, with costs; and if the garnishee shall appear at the return of the said scire facias, and plead thereto that he had no goods or chattels of the defendant in his custody or possession, either at the time of executing the writ of attachment, or at any time since, or that he was not indebted to the defendant, and the plaintiff, on trial, shall prove that he was indebted, then the j ury shall find for the plaintiff, and assess damages to the amount or value of such debt, goods, or chattels, with costs, and judgment shall be entered accordingly, and execution awarded against the goods and chattels, lands and tenements, and also the person of the said garnishee; but if the jm-y find for the garnishee, then he shall recover costs against the plaint- iff, and have execution for the same, and the said auditor shall pay the same out of any moneys in his hands; the moneys realized by such proceedings shall go to the auditor for distribution under this act. GENERiUi PROVISIONS. § 75. — That this act shall be construed in all courts of judicature in the most liberal manner for the detection of fraud, the advancement of justice, and the benefit of creditors. § 76. — That all orders for the appointment of auditors, for the sale of perishable property, for advertising the attachment, for the sale of the defendant's i)roperty, and all other orders not specifically required by this act to be made in open court, may be made out of com-t by a judge of the com-t in which the action is pending, in term-time or vacation. § 77. — That in all cases where writs of attachment have heretofore been issued, or may hereafter be issued, and no proceedings have been or shall be had thereon, for the period of twenty years, the same shall cease to bind the property and estate of the defendant so attached at the expiration of the said twenty years. Before justices of the peace— Page 53, sees. 62-71, and Stats. 1879, p. 115; fees, B£cs. 72-74. Ships, liens against— Page 586, sees. 1-44, and Stats. 1878, pp. 158> 159. Railroads operating in New Jersey — Page 921, sec. 71. In district (city) courts— Page 1.328, sees. 159-166. Mandamus on foreign corporations enforced by attachment of goods — Stats. 1881, p. 95, sec. 2. Exemptions— Personalty, p. 44, sec. 12; of merchandise, p. 79, sec. 20; to fam- ily of decedent, p. 762, sec. 52; homestead, p. 1055, sec. 63; wages, etc., p. 1265, sec. 2. NEW MEXICO. 629 NEW MEXICO. [Compiled Laws, 1884.] CHAPTER VII. ATTACHMENTS. § TJ23. — Creditors, whose demands amount to one hundred dollars or more, may Bue tlieu" debtors in the district court, by attachment, in the following cases, to wit: Fird. When the debtor is not a resident of, nor resides in this territory. Scrond. When the debtor has concealed himself, or absconded, or absented him- self from his usual jilace of abode in this territory, so that the ordinary process of lav.' cannot lie passed upon him. Third. When the debtor is about to remove his property or effects out of this territory, or has fraudulently concealed or disposed of his property or effects so as to defraud, hinder, or delay his creditors. Fourth. When the debtor is about fraudulently to convey or assign, conceal or dispose of his property or effects, so as to hinder, delay, or defraud his creditors. Fifth. When the debt was contracted out of this territory, and the debtor has absconded or secretly removed his property or effects into the territory, with the intent to hinder, delay, or defraud his creditors. Si.cth. AVhere the defendant is a corporation whose principal office or place of business is out of this territorj', unless such corporation shall have a designated agent in the territory, upon whom service of process may be made in suits against the corporation. Scre.ith. Where the defendant fraudulently contracted the debt or incurred the obligation respecting which the suit is brought, or obtained credit from the plaintiff by false pretenses, an attachment may issue on a demand not yet due in any case ■where an attachment is authorized, in the same manner as upon demands akeady due. § 191!4. — In all cases commenced by attachment issued on a demand or demands not yet due, it shall be sufficient for the plaintiff to file in the office of the clerk of the district court an affidavit and bond as now required by law, but he shall not file in such office his petition or declaration until after said demand or demands shall become due. If such demand or demands become due during a term of the court from which the attachment issued, said plaintiff shall file his declaration within such reasonable time thereafter as may be fixed by the court; and if said demand or demands become due at any time when the court from which the attach- ment issuer! i.3 not in session, said i^laintiff shall file his declaration within twenty days after the last of such demands shall become due, unless the judge of said court shall for good cause showTi enlarge said time, and after the declaration is filed as hereinbefore provided, the suit shall proceed the same as in ordinary cases. § 1925. — At the term to which any writ of attachment issued upon a demand not yet due shall be made returnable, the defendant shall be required to appear genei-ally in the case, and he may put in his answer, withor.t oath, denying the truth of any material fact contained in the affidavit to which the plaintiff" may reply, and thereiipon a trial of the truth of the affidavit shall be had in the man- ner now iH-ovided Ity law. If upon such trial the issue is found in favor of the defendant, the attachment shall be dissolved, but such dissolution shall not nhate the suit, and the defendant shall l^e held to be in court so that he may be ruled to plead to the jilaintiff's declaration when the same is filed in the manner and within the time hereinbefore provided. § 192(j. — Wherever an attachment may issue against the property of any per- son ui)on any debt or other action founded upon a writ of contract for the same cause.;, the attachment may also issue upon any action founded upon a tort or other action ex delicto; this law shall apply to actions which have heretofore or may hereafter accrue. § 1927. — A creditor wishing to sue his debtor by attachment, may place in the clerk's office of the district court of any county in this territory a petition or other 630 NEW MEXICO. lawful statement of his cause of action, and shall also file an affidavit and bond; antl thereupon such creditors may sue out an original attachment against the lands, ■tenements, goods, moneys, effects and credits of the debtor in whosesoever hands they may be. § 1928. — The affidavit shall be made by the plaintiff, or some person for him, and shall state that the defendant is justly indebted to the plaintiff after allowing all just credits and offsets, in a sum (to be sj^ecified in the affidavit), and on what account; and shall also state that the affiant has good reason to believe, and doea believe, the existence of one or more of the causes which, according to the provi- sions of section 1923, will entitle the yjlaintiff to sue by attachment. § 1929. — The bond shall be executed by the plaintiff or some responsible person as principal, and two or more sureties, residents of the ten-itory, in a sum at least double the amount sworn to, i^ayable to this territory, conditioned that the plaint- iff shall i^rosecute his action without delay and with effect, and refund all sums of money that may be adjudged to be refunded to the defendant, and pay all damages that may accrue to any defendant or garnishee by reason of this attach- ment or any i^rocess of judgment thereon. § 19.30. — The securities on attachment bonds shall be residents of this territory, and shall acknowdedge the execution of such bond by them, in the manner and before such officer, as may be prescribed by law for the acknowledgment of con- veyances of real estate. § 1931. — The clerk shall judge of the sufficiency of the penalty and the security in the bond; if they be approved, he shall indorse his approval thereon, and the same, together with the affidavits and petition or other lawful statement of the cause of action, shall be filed before an attachment shall be issued. §1932. — The bond given by the plaintiff, or other person, in a .suit by attach- ment, may be sued on by any party injured, in the name of the territory, and shall proceed as in ordinary suits, and shall recover such damages as he may sustain. § 1933. — Original writs of attachment shall be directed to the sheriff of the proper county, commanding him to attach the defendant, by all and singular his lands and tenements, goods, moneys, effects, and credits, in whosesoever hands the same may be found, with a clause of the natiure and to the effect of an ordinary citation to answer the action of the plaintiff. § 1934. — Original writs of attachment shall be issued and returned in like man- ner as ordinary writs of citation; and w^hen the defendant is cited to answer the action, the like proceedings shall be had between him and the plaintiff as in ordi- nary actions on contracts, and a general judgment may be rendered for or against the defendant. § 1935. — The manner of serving writs of attachment shall be as follows: First. The writ, or other lawful statement of the cause of action, shall bo served on the defendant as an ordinary citation. Second. Garnishees shall be summoned by the .sheriff, declaring to them that he summons them to appear at the return term of the ^vrit to answer the interrogato- ries which may be exhibited by the plaintiff, and by reading the writ to them if required. Third. When lands or tenements are to be attached, the officer shall briefly describe the same in his return, and state that he attached all the right, title and interest of the defendant to the same, and shall moreover give notice to the actual tenants, if any there be. Fourth. When goods and chattels, moneys, effects, or evidences of debt are to be attached, the officer shall seize the same and keep them in his custody if accessible, and if not accessible he shall summon the person in whose hands they may be as garnishee. Fifth. — \\Tien the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant that he attached in his hands aU debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt, interest, and costs, and summon such person as garnishee. § 1936.— All persons shal be summoned as garnishees who are named as such in the writ, and such others as the officers shall find in the possession of goods, money, or effects of the defendant not actually seized by the officers and creditors of the defendant, and also such as the plaintiff or his agent shall direct. § 1937.— Notice of garnishment shall have the effect of attaching all personal property, money, rights, credits, bonds, bills, notes, drafts, checks or other choses in action, 'due or to become due, from the garnishee to the defendant, or belonging to NEW MEXICO. 631 the defendant and in the garnishee's possession, charge, or under his control at the time of the service of the garnishment, or which may come into liis possession or charge, or under his control, or, for or on account of which he may become indebted to the defendant, between that time and the time of filing his ans^y■er; but he shall not be liable to a judgment in money on account of such bonds, bills, notes, drafts, checks, or other choses in action, unless the same shall have been converted into money since the garnishment, or he fail in such time as the court may prescribe to deliver them into court, or to the sheriff, or other person desig- nated Ijy the court. Any debt or legacy due or to become due, by an executor or administrator, and any goods, effects or credits in the hands of an executor, or administra.tor as such, may be attached in his hands by process of garnishment, and in like manner money, effects, and credits, due or belonging, or to become due to an executor or administrator, as such, may be attached in the hands of the debtor or person holding the same. § 1938. — When the defendant cannot be cited, and his property or effects shall be attached, if he do not appear and answer to the action at the return term of the ■writ, within the fii'st two days thereof, the court shall order a publication to be made, stating the nature and amount of the plaintiff's demand, and notifying the defendant that his proj^erty has been attached, and that unless he ajipears at the next term, judgment will be rendered against him, and his property sold to satisfy the same; which notice shall be published four weeks successively in some news- paper Y>rinted in this territory, the last insertion to be not less than two weeks before the first day of the next term; but if there should be no newspaper printed in this territory, said notice shall be published by not less than six hand-bills put up at six different public places in the county, at least six weeks before the first day of the next term. § 19.39. — The law of this territory in regard to attachments, is so amended, that where the defendant cannot be served personally with the process, and shall have no place of residence in this territory, and the property of the defendant shall have been attached in time to make the necessary publication as now required by law, the officer executing the said process, or the agent or attorney of the plaintiff in said case, is hereby authorized to make publication of notice to tha defendant in such attachment in thj manner now prescribed by law, which shall have the same force and effect to compel the appearance of t'ne defendant in any such suit in attachment, as if such publication of notice had been in conformity to an order of com't ai heretofore required; and upon satisfactory proof being made to the com-t of the publication of said notice, the plaintiff may proceed in said case as if the process had been served personally upon the said defendant. § 1940. — "When the defendant shall be notified by publication, as aforesaid, and shall not appear and answer the action, judgment by default may be entered, which may be i^roceeded on to final judgment as in ordinary actions, but such judgment shall only bind the property attached, and shall be no evidence of indebtedness against the defendant in any subsequent suit. § 1941. — When property of the defendant found in his possession, or in the hands of any other i^erson, shall be attached, the defendant, or such other person, may retain jjossession 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 shaU direct, and shall abide the j udgment of the court. § 1942. — The officer executing the writ of attachment shall return, with the writ, all bonds taken by him in virtue thereof, a schedule of all property and effects attached, and the names of all the garnishees, the times and places when and where respectively summoned. § 1943. — If the officer willfully fail to return a good and sufficient bond, in any case*vhere bond is required by this law, he shall be held and considered as security for the jjerformance of all acts, and the i^ajonent of all money to secure the p>er- formance of which such bond ought to have been taken. § 1944. — In all cases when property or effects shall be attached, the defendant may, at the court to which the writ is returnable, put in his answer, without oath, denying the truth of any material fact contained in the affidavit, to which the plaintiff may reply; a trial of the truth of the affidavit shall be had at the same term, and on such trial the plaintiff shall be held to prove the existence of the facts set forth in the affidavit, as the ground of the attachment, and if the issue shall be found frjr him the cause shall proceed, but if it be found for the defendant the cause shaU be dismissed at the cost of the plaintiff. G32 NEW MEXICO. § 1945. — The plaintiff may exhibit in the cause, -VTritten allegations and inter- rogatories at the retiirn term cf the writ, and not afterward, touching the jjrop- erty, effects and credits attached in the hands of any garnishee. The gami.shee shall exhibit and file his answer thereto, on oath, during such term, unless the court for good cause shown shall order otherwise. In default of such answer, or of a sufficient answer, the plaintiff may take judgment by, default against him, or the court may, upon motion, compel him to answer by attachment of hij body. § 1940. — Such judgment by default may be proceeded on to final judgment in like manner as in cases of the defendant in actions upon contracts, but no final judgment shall be rendered against the garnishee imtil "there shall be final judg- ment against the defendant. § 1947. — The plaintiff may deny the answer of the garnishee in whole or in part, and the issue shall be tried as ordinary issues between plaintiffs. If on such trial the property or effects of the defendant be found in the hands of the gar- nishee, the value thereof shall be assessed and judgment shaU be rendered for the proper amount of money. If the answer of the garnishee be not excepted to nor denied at the same term at which it is filed, it shall be taken to be true and sufHcient. § 1943. — If by the answer, not excepted to nor denied, it shall appear that the garnishee is possessed of property or effects, of the defendant, or is indebted to tha defendant, the value of the property or effects, or of the debt, being ascertained, judgment may be rendered against the garnishee. § 1949. — In all cases of controversy between the plaintiff and garnishee, the parties may be adjudged to pay or recover costs as in ordinary cases between plaintiff and defendant. § 19 jO. — -Vny person wishing to sue his debtor by attachment, where the debt or sum claimed exceeds the sum of one hundred dollars, may do so by first filing with the clerk of the district comi; of the county in which the debtor lives, or before the clerk of the probate court of the county in which the suit is brought, an affidavit and bond, as now requh-ed to be done before the clerk of the district coiu't, which shall authorize the clerk before whom said affidavit anel bond shall be filed to issue Avrits of attachment, the same as clerks of the district court, which attachment, together with the affidavit and bond, when issued by clerks of the i:)ro- bate court, shall be by them made returnable to the next term of the district court for the proTJer count j', and shall be by them retiuned to said district court on or before the first day of said term. § 19.31. — The form of said affidavit shall be as follows, to wit: Territoiiy of New Mexico, ) County of — j ^^" This day personally appeared before me the undersi jne J clerk of the [district court or probate coiu-t, as the case may bo], A. B. [or C. D., agent for A. B., as the case may be], and, being duly sworn, says that E. F. i.j justly indebted to the said A. B. in the sum of dollars, after allow- ing all just offsets, and that the said E. F. is [setting forth one of the causes of attachment.] A. B. — . or C D., agent for A. B. — . Sworn to and subscribed before me this day of A. D. . Clerk. § 19j2. — The form of said bond shall be as follows, to wit: Know all men by these presents, That we [A. B., principal, or C D., agent for A. B., principal, as the case may be], and X. N. and M. ^I. his securi- ties, arc held and firmly bound unto the territory of Xew }.Iexico, in the sum of dollars, for the pajTnent of which, well and truh' to be made, we bind our- selves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals and dated this day of A. D. . The condition of the said above obligation is such that, whereas the above fiamed A. B. has this day sued out an attachment before J. J., clerk of the [district court or probr.te court, as the case may [ts], against E. F., for the sum of dollars, returnable to the next term of the district court for the county of : Now, if the said A. B. shall prosecute his said action without delay, and with effect, and refund all sums of money that maj' be adjudged to be refunded to the defendant, and pay all damages that may accrue to any defendant or garnishee by reason of said attachment, or any process of judgment thereon, then this obliga- tion to be null and void, otherwise to remain in full force and effect. A. B. [l. s.] X. X. [L. s.' M. M. [L. s.' NEW MEXICO. 633 §1053. — In all suits in the district courts by attachment, when the property attached shall be of a perishable nature, and liable to be lost or diminishetl in value before the final adjudication of the case, and the defendant shall not give bond to retain possession of the same, the plaintiff or defendant may make out a petition in writing setting forth the kind, nature and condition of the proj^erty, and present said ]ietition to the judge of the district in vacation; and if he shall find it sufficient in form and conditions, he may hear the testunony of witnesses as to the property, and if he shall believe that the interests of both x'laintiff and defendant will be jiromoted by the sale of the property, may order such sale to be made and direct the manner thereof. § 1954. — In such case the judge may appoint some one to make such sale, and require such bond and security to be given for the faithful performance of the same and the accounting for the proceeds and paying the same over, as the nature of the case may demand. § 1955. — The judge may, if he shall find the safety of the property or the seciu'ity of the proceeds shall require it, appoint a special receiver to tr.ke possession. of the same, after giving such bond and security as the judge shall ai^prove. § 1956. — All such proceeds of sale of property shall be delivered to such person as the judge or court shall determine entitled to the same upon the final disposi- tion of the suit. § 1957. — The judge or court may allow to the receiver, or jDerson making said sale, a reasonable compensation for his services, and the necessary costs for keep- ing and preserving the property. § 1958. — Hereafter in any civil suit pending, or which may hereafter be brought, when the summons against the defendant has been returned "executed," the plaintiff, his agent, or attorney, may at any time before judgment file an affidavit with the clerk of the court in which the suit is pending, and give bond Mith secu- rity as in cases of original attachments; and thereupon the clerk must issue an attachment, returnable as in other cases of original attachments. §19.59. — In all cases when attachments are sued out ancillary to the original suit, the suit must thereafter proceed in all resi^ects as if it had been commenced originally by attachment. § 19G0.— In all cases hereafter commenced by attachment, in which the truth of the afiidavit for attachment, or of any material allegation therein contained shall be denied, and the issue thus formed shall, upon the trial, be found for the defendant, the attachment shall be dismissed, and all i^roperty, rights, effects, and credits held or affected thereby, pr thereunder, shall be released and discharged from the operation thereof; but such dismissal of the attachment shaU not abate the suit, but the same shall firoceed as in ordinary cases. § 19G1. — When the process of attachment shall issue against a party, who shall have or o'«ti any interest or amount of shares in any company doing business in, or corporation incorporated under the laws of this territorj', or any foreign cor- poration doing business in this territory, the same may be attached in the follow- ing manner: The officer in whose hands the attachment is placed sha.l indorse an entry thereon of his levy, on the corporate shares or interest of the defendant, and shall forthv/ith serve a copy of the attachment so indorsed upon the president of the company or corporation at the office of the company, or by leaving the same at the usual and most notorious place of doing business of such company or corporation in this territory, which entry and service shall amount to and be considered a seizure of said corporate interest or shares, to all intents and pur- poses, and imder an execution issued on such attachment, may be sold as in other cases of ordinary execution. § 19G2. — Any transfer by the defendant of the stock or interest so attached after the levy of such attachment, shall be void, and when an execution is issued the said stock or interest shall be sold by the sheriff or his deputy, according to the existing provisions of law in this territory in regard to the sale of personal property under attachment. § 1963. — Certificates of purchase shall be granted by the officer selling, which, on presentation to the proper officer of the company or corporation, shall author- ize a transfer of the stock to the purchaser, and it shall be his duty to make such transfer on the proper books of the corporation or company, if necessary; and afford the purchaser such evidence of title to the stock purchased as is usual and necessary with other stockholders. 634 NEW YORK. § 1964. — From the time of issuing the order of attachment, the court shall be deemed to have acquired jm-isdiction and to have control of all subsequent pro- ceedings in relation thereto; and if after the issuing of the order, the defendant, being a person, should die, or a corporation, and its charter should ex^jtre by limit- ation, forfeiture or otherwise, the j^roceedings shall be carried on, but in all such cases other than where the defendant was a foreign corporation, his legal repre- sentatives shall be made parties to the action. § 1965. — The defendant may at any time before judgment, after reasonable notice to the plaintiff, move the comrt for additional secm-ity on the part of the plaintiff, and if on such motion the court is satisfied that the surety in the plaint- iff 's undertaking has removed from this territory, or is not sufficient for the amount thereof, it may vacate the order of attachment and direct restitution of any property taken under it, unless in a reasonable time to be fixed by court, sufficient secm-ity is given by the plaintiif. Before justices of the peace — Sees. 2372-2389. Shares of stock, attachment and sale of — Sees. 227. 228. May be served on Sunday — Sees. 933, 936. Exemptions — Sees. 1243-1245, 1533. Clerk of probate court may issue — Sec. 1855. On. officer's return 7wn est inventus, attachment may issue — Sec 1904. NEW YORK. [Code or Civil Procedure^ 1883.] CHAPTER 7. CASES WHERE A WAEEANT OF ATTACHMENT MAT BE GRANTED, AND PROCEEDINGS UPON GRANTING THE SAME. § 635. — A warrant of attachment against the property of one or more defendants in an action, may be granted upon the ajipLication of the lalaiatiff, as specified in the next section, where tlie action is to recover a sum of money onlj', as damages for one or more of the following causes: 1. Breach of contract, express or implied, other than a contract to marry. 2. Wrongful conversion of personal property. 3. Any other injury to personal property, in consequence of negligence, fraud, or other wrongful act. § 636. — To entitle the plaintiff to such a warrant, he must show, by affidavit, to the satisfaction of the jiidge granting the same, as follows: 1. That one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a simi stated therein, over and above all counter-claims known to him. 2. That the defendant is either a foreign corporation or not a resident of the state; or, if he is a natural person and a resident of the state, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a sum- mons, or keeps himse-f concealed therein with the like intent; or, if the defendant is a natural jDerson or a domestic corporation, that he or it has removed, or is about to remove, property from the 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 property, with the like intent. § 637.— A warrant of attachment, against the property of one or more defendants in an action, may also lie granted, upon the application of the plaintiff, where the complaint demands judgment for a sum of money only; and it appears, by affida- NEW YORK. 635 vit, that the action is brought to recover money, funds, credits, or other property, held or owned by the state, or held or owned, officially or otherwise, for or in be- half of a imblic or governmental interest, by a municipal or other puljlic corpora- tion, board, officer, custodian, agency, or agent, of the state, or of a city, county, town, village, or other division, subdivision, department, or portion of the state, which the defendant has, without right, obtained, received, converted, or disposed of; or in the olitaining, reception, payment, conversion, or disjiosition of which, without right, he has aided or abetted; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same, or the aiding or abetting thereof. In order to entitle the plaintiff to a warrant of attachment, in a case specified in this section, he must show, by affidavit, to the satisfaction of the judge granting it, that a sufficient cause of action exists against the defendant for a sum stated in the affidavit. § G38. — The warrant may be granted by a judge of the court, or by any county judge, to accompany the summons, or at any time after the commencement of the action, and before final judgment therein. Personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof; or else, before the exi^iration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the state, pursuant to an order obtained therefor, as prescribed in this act; and if ijublication has been, or is thereafter commenced, the service must be made comi^lete, by the continuance thereof. § G39. — The plaintiff procuring the warrant must, within ten days after the granting thereof, cause the affidavits, upon which it was granted, to be filed in the office of the clerk. § 640. — The judge, before granting the warrant, must require a written under- taking, on the part of the plaintiff, with sufficient sureties, to the effect, that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs which may be awarded to the defendant, and all damages, which he may sustain by reason of the attachment, not exceeding the sum specified in the under- taking, which must be at least two hundred and fifty dollars. But this section does not apply to a case, where the action is brought for a cause specified in section 637 of this act, or where it is specially prescribed by law that secm-ity may be dis- pensed with, or where the security to be given is specially regulated by law. § 641. — The warrant must be subscribed by the judge and the plaintiff's at- torney, and must briefly recite the ground of the attachment. It maybe directed, either to the sheriff of a particular county, or, generally, to the sheriff of any county. It must require the sheriff to attach and safely keep so much of the property, within his county, which the defendant has, or which he may have at any time before final judgment in the action, as will satisfy the plaintiff's demand, with costs and expenses. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit. Warrants may be issued at the same time, to sheriffs of different counties. § 642. — It is not a defense to an action upon an undertaking, given upon grant- ing a warrant of attachment, that the warrant was granted improperly, for want of jurisdiction, or for any other cause. EXECUTING THE WARRANT, PENDING THE ACTION. § 643.— [Section 643 was stricken out in 1877.] § 644. — The sheriff must immediately execute the warrant, by levying upon so much of the riersonal and real property of the defendant,^ within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff's demand, with the costs and expenses. He must take into his custody all books of account, vouchers, and other x^apers, relating to the personal property attached, and all evidences of the defendant's title to the real property attached, which ho must safely keep, to be dis^Dosed of, as prescribed in this title. _ The sheriff, to whom a warrant of attachment is delivered, may levy, from time to time, and as often as is necessary, until the amount, for which it was issued, has been secured, or final judgment has been rendered in the action, notwithstanding the expiration of his term of office. § 64-5. — The real property, which may be levied upon by virtue of a -warrant of attachment, includes any interest in real property, either vested or not vested, which is callable of being aliened by the defendant. § 646. — Under a warrant of attachment against a foreign corporation, other than a corporation created by or under the laws of the United States, the sheriff 636 NEW YORK. may levy upon tlie sum remaining unpaid upon a subscription to the capital stock of the corporation, made by a person within the county; or upon one or more shares of stock therein, held by such a person, or transferred by him, for the pur- pose of avoiding pajonent thereof. § G47. — The rights or shares which the defendant has in the stock of an asso- nation or corporation, together with the interest and profits thereon, may be levied upon; and the sheriff's certificate of the sale thereof entitles the purchaser to tlie same rights and privileges, with respect thereto, which the defendant had, when they were so attached. § G48. — The attachment may also be levied upon a cause of action arising upon contract; including a bond, promissory note, or other instrument for the paj^nent of money only, negotiable or otherwise, whether past due, or yet to become due, executed liy a foreign or domestic government, state, county, public oflicer, asso- ciation, municipal or other corporation, or by a private pe son, either within or without the state; v.-hich belongs to the defendant, and is found within the county. The levy of the attachment thereupon is deemed a levy upon, and a seizure and attachment of, the debt represented thereby. § 649. — A levy under a warrant of attachment must be made as follows: 1. Upon real property, by filing ■«'ith the clerk of the county, where it is situ- ated, a notice of the attachment, stating the names of the parties to the action, the amount cf the plaintiff's claim, as stated in the warrant, and a description of the particular property levied upon. The notice must be subscribed by the plaintiff's attorney, addinghis office address; and must be recorded and indexed Ijy the clerk, in the same book, in like manner, and with like effect, as a notice of the pendency of an action. 2. Upon personal property, capable of n[ianual delivery, including a bond, prom- issory note, or other instrument for the payment of money, by taking the same into the .sheriff's actual custody. He must thereupon, without delay, deliver to the i^erson from whose possession the- property is taken, if any, a copy of the war- rant, and of the afSdavits iipon which it was granted. 3. Upon other personal property, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same; or, if it consists of a demand, other than as specified in the last .subdivision, with the person against whom it exists; or, if it consists of a right or share in the .stock of an association or corporation, or interest or profits thereon, with the president or other head of the association or corporation, or the secretary, cashier, or managing agent thereof. [Thus amended by L. 1879, ch. 542.] § GoO. — Upon the application of a sheriff, holding a warrant of attachment, the president or other head of an association or corporation, or the secretary, cashier, or managing agent thereof, or a debtor of the defendant, or a person holding prop- erty, including a bond, i^romissory note, or other instrument for the payment of money, belonging to the defendant, must furnish to the sheriff a certificate, under bis hand, specifying the rights or number of shares of the defendant, in the stock of the association or corporation, with all dividends declared, or incumbrances thereon; or the amoimt, natiu-e, and description of the property, held for the ben- efit of the defendant, or of the defendant's interest in property so held, or of the debt or demand owing to the defendant, as the case requires. § C51. — If a person, to whom api^lication is made, as prescribed in the last sec- tion, refuses to give such a certificate; or if it is made to appear, by affidavit, to the satisfaction of the court, or a judge thereof, or the county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given by him is untrue, or that it fails fully to set forth the facts, required to be shown thereby; the com-t or judge may make an order, directing him to attend, at a specified time, and at a place within the county to which the warrant i? issued, and submit to an examination under oath, concerning the same. The order may, in the discretion of the coiu-t or judge, direct an appearance before a referee named therein. § 052. — Except as otherwise prescribed in the next section, the owner or master of a vessel, on board of which goods of a defendant, against whom a warrant of attachment is issued, have been shii:)ped for transportation, without reshipment or transshipment in the state, to a port or place without the state, may transport and deliver them according to their destination, notwithstanding the wan-ant; unless the plaintiff, his agent or attorney, executes to the owner or master of the vessel, a written undertaking, with sufficient sm-eties, in a sum specified therein, to pay him all expenses, damages, and charges, which may be incurred by him, or to which he may be subjected, for unlading the goods from the vessel, and for all NEW YORK. G37 necessary detention of the^ vessel, for that purpose. The tmderta'cing- must be approved, witli resjsect to its form, the sum specified therein, and the sufBciency of the sureties, by a judge of the court, or the county judge of the county wherein the vessel is situated, or, in the city and county of New York, by a judge of a, superior city court ^vithin that city and county. § 65.3. — The la-st section does not apply, -where the owner or master, before the shipment of the goods, had actual information of the granting of the warrant, or where he has, in anj'wise, connived at, or been privy to, the shipment thereof, for the purjiose of screening them from legal process, or of hindering, delaying, or defrauding creditors. § 654. — The sheriff must, immediately after levying under a warrant of attach- ment, make, with the assistance of two disinterested freeholders, a description of the real property, and a just and true inventory of the personal property, iipoa which it was levied, and of the books, vouchers, and other papers taken into his custody, stating therein the estimated value of each parcel of real property at- tached, or of the interest of the defendant therein, and of each article of personal property, enumerating such of the latter as are perishable. The inventory must be signed by the sheriif and the appraisers; and must, within five days after the levy, be filed in the office of the clerk of the county, where the property is attached. § 655. — The sheriff must, subject to the direction of the court or judge, collect and receive all debts, effects, and things in action, attached by him. He may maintain any action or special proceeding, in his own name, or in the name of the defendant, which is necessary, for that puqiose, or to reduce to his actual pos- session an article of personal property, capable of manual delivery, but of which he has been unable to obtain iDossession. And he may discontinue such an action or special proceeding, at such time and on such terms, as the court or judge directs. § 65G. — If property attached, other than a vessel, is perishable, the court oi judge may, by an order made v.'l'di or Y\'ithout notice, as the urgency of the case in its or his opinion requires, direct the sheriff to sell it at public auction, and thereupon the sheriff must sell it accordingly. If it consists of live animals, the same proceedings may be had, but such notice sliall be given to the parties to the action, of the application for the order, as the court or judge prescribes. The order directing the sale must prescribe the time and place of the sale, and notice thereof must be given in such manner, and for such time, as is prescribed in the order. The sheriff must retain in his hands the proceeds of the sale, after deducting his erpenses as allowed by the com-t or judge. § 657. — If goods or effects, other than a vessel, attached as the property of the defendant, are claimed by or in behalf of another person, as his property, the sheriif may, in his discretion, impannel a jury to try the validity of the claim. § 658. — If, by their inquisition, the jury find the property of the goods or effects to have been in the claimant, at the time of the levy, the sheriff must forthwith deliver them to him or his agent; unless the plaintiff gives an imdertaking, with sufficient sm-eties, to indemnify the sheriff for the detention thereof. If the under- taking is given, the sheriff must detain the goods or effects, as the property of the defendant. §659. — If the property is found to be in the defendant, the finding does not prejudice the light of the claimant to bring an action to recover the goods or effects, or the value thereof. § 660. — Where a vessel, belonging to a port or place in the United States, or a share or interest therein, is attached, the court or judge, on the application, within thirty days thereafter, of a person claiming title thereto, or of his agent, must appoint three indifferent persons to make a valuation thereof. § 661. — A valuation of a vessel, or of a share or interest therein, made as pre- scribed in this article, must be in writing, and subscribed by the appraisers; each of whom must take and subscribe an affidavit, annexed thereto, to the effect, that the valuation is, in all respects, just and fair, and that the value of th? voFsel, share, or interest, is truly stated therein, according to the deponent's bell^J. The valuation must be immediately returned to the court or judge; and, after an un- dertaking is given, or after the expiration of the time to give an undertaking, as prescribed in the next section, it must be delivered to the sheriff. § 662. — Within two days after the valuation is returned, the claimant or his agent may execute an undertaking to the sheriff, with sufficient sureties, approved by the court or judge, who must justify in twice the appraised value, to the effect, that, in an action to be brought on tlie undertaking, the claimant wiU. establish. 638 NEW YORK. that he "was the owner of the vessel, share, or interest, at the time of the levy there- upon; and that in case of his failure to do so, he will pay the amount of the valu- ation, with interest from the date of the xindertaking, to the sheriff; or, if the war- rant is vacated or annulled, to the defendant or his jjersonal representative. § G63. — Upon such an undertaking being executed and delivered to the sheriff, the court or judge must make an order, directing the vessel or share to be dis- charged from the attachment. Thereupon the sheriff must discharge the same accordingly. § 664. — The court or judge may, upon the application of either party, at any time before the warrant is vacated or annulled, direct the sheriff to commence an action upon the undertaking, upon such terms and conditions, and under such reg- ulations, between him and the applicant, as it or he deems just. And if the war- rant of attachment is vacated or annulled, the defendant in the attachment, his assignee or personal representative, may commence and maintain an action upon the undertaking, or may be substituted, in place of the sheriff, in an action pend- ing thereupon. § 665. — In such an action, the claimant may show, in bar of a recovery, that he was the owner of the vessel, share, or interest, at the time when it was attached. If judgment passes against him, the plaintiff is entitled to recover the amount of the valuation, with interest from the date of the undertaking. § 666. — Where a foreign vessel, or a share or interest therein, is attached, it must be valued, as prescribed in sections 660 and 661 of this act, upon the applica- tion of a person, who makes affidavit, to the effect that he is the owner thereof, or that he is the agent of a person, naming him and his residence, whom he believes to be the owner of the vessel, share, or interest attached. § 667. — Such notice of the application must be given to the plaintiff, as the court or judge deems reasonable. § 668. — Within three days after the valuation is returned, the plaintiff must give, to the i^erson in whose behalf the claim'is made, an undertaking, with suffi- cient sureties, approved by the coiui; or judge, who must justify in t\vice the ap- praised value, to the effect that they will pay such damages as may be recovered for seizing the vessel, share, or interest, in an action brought against the sheriff, or the plaintiff in the attachment, within three months from the approval of the un- dertaking, if it appears therein that the vessel, share, or interest belonged, at the time of attaching it, to the f)erson in whose behalf the claim is made. § 669. — Unless such an undertaking is given, the court or judge must grant an order discharging the vessel, share, or interest so claimed, from the attachment; whereupon the sheriff must discharge the same accordingly. § 670. — If, after such an undertaking is given by the plaintiff, the warrant is vacated or annulled, or the attachment is discharged as to the vessel, share, or interest, the defendant or his agent is entitled to claim the same, or the proceeds thereof, if it has been sold, only upon his showing, to the satisfaction of the court or judge, that the undertaking has been discharged; or giving to the plaintiff an undertaking, ■with sufficient sureties, approved Ijy the court or judge, who must justify in twice the appraised value, to the effect, that they will indemnify the plaintiff against all charges and expenses, in consequence of the undertaking. § 671. — If the undertaking of the plaintiff is not discharged, or he is not indem- nified, as prescribed in this article, within one month after the defendant becomes entitled to claim the vessel, share, or interest, as so prescribed, it may be sold by the sheriff, in whose custody it is, upon an order of the court or judge; and the proceeds of the sale must be paid to the persons who executed the undertaking, for their indemnity. § 672. — If a claim is not made, by or in behalf of an owner of a domestic vessel, or of a share or interest therein, within thirty days after it is attached, or if the projier undertaking is not executed by the claimant; or if a claim is not made, within that time, by or in behalf of the owner of a foreign vessel, or of a share or interest therein; the vessel, share, or interest, may be sold by the sheriff, under an order of the court or judge, upon the application of the plaiatiff, if, in the opinion of the court or judge, a sale is necessary. § 673. — -Where a share or interest in a vessel, foreign or domestic, is attached, if the proper claim to it is not made, by or in behalf of an owner thereof, within thirty days thereafter, it may be sold by the sheriff, under an order of the court or judge, upon the application of a joint owner, or his agent. NEW YORK. 639 § C74.— The sheriif must keep the property attached by him, or the proceeds of property sold, or of a demand collected by him, to answer any judgment that may DC obtained against the defendant in the action. § G75.— But the court, upon the application of either party to the action, may direct the sheriff, either before or after the expiration of his term of ofHce, to pay into court the proceeds of a demand collected, or property sold; or to deposit them in a designated bank or trust company, to be drawn out only ui^on the order of the court. § G76.— Where the proceeds of the property sold, and of the demands collected by the sheriff, exceed the amount of the plaintiff's demand, with the costs and ex- penses, and of all other warrants of attachment or executions in the sheriff's hands, chargeable upon the same; the court, or the judge who granted the warrant, upon the ajiJi^lication of the defendant, or of an assignee of, or purchaser from the de- fendant, and ujion notice to the plaintiff, and the plaintiffs in the other warrants or executions, may, at any time during the pendency of the action, make an order, directing the sheriff to pay over the surplus to the applicant, and to release from the attachment the remaining real and personal property attached. § G77. — The plaintiff, by leave of the court or judge, procured as prescribed in the next section, may bring and maintain, in the name of himself and the sheriff jointly, by his own attorney, and at his own expense, any action which, by the provisions of this title, may be brought by the sheriff, to recover property attached, or the value thereof, or a demand attached, or upon an undertaking given as pre- scribed in this title, Ijy a person other than the plaintiff. The sheriff must receive the proceeds of such an action, but he is not liable for the costs or expenses thereof. Costs may be awarded, in such an action, against the i^laintiff in the warrant, but not against the sheriff. § 678. — The coiui; or judge must grant leave to bring such an action, where it appears that due notice of the application therefor has been given to the sheriff; but, before doing so, the court or judge may require that notice of the application be given to the x^laintiff in any other warrant against the same defendant. And such terms, conditions, and regulations may be imposed, in the order granting leave, as the com-t or judge thinks proper, for the due protection of the rights and interests of all persons, interested in the distribution of the proceeds of the action. §079. — Leave may, in like manner and with like effect, be granted to the plaintiff in the warrant, to be joined with the sheriff, in an action brought by the sheriff, in a case where he might have procured leave to bring the action, as pre- scribed in the last two sections. Upon an application therefor, the court or judge may, in a proper case, require the plaintiff to provide for the expenses in the action, already incurred by the sheriff. The application must be denied, in case of an unreasonable delay in making it; or where an application was made, before the action was brought, and the plaintiff neglected or refused, without a good excuse therefor, to comply with the terms, conditions or regulations, then imposed. § G80.— The coiu't or judge may, upon the application of the sheriff, or of the defendant in the warrant, during the pendency of an action, brought as i)rescribed in the last three sections, direct as to the conduct, discontinuance, or settlement of the same, and as to the application or disposition of the money or property recov- ered therein, as justice requires. § G81. — Upon the application of either party, and proof of the neglect of the sheriff, the court or judge may, by order, require the sheriff to return an inventory. Disobedience to such an order may be ijunished, as a contempt of the coiu-t. VACATING OR MODIFYING THE WARRANT; DISCHARGING THE ATTACHMENT. §682.— The defendant, or a person who has acquired alien upon, or interest in, his property, after it was attached, may, at any time before the actual applica- tion of the attached property, or the proceeds thereof, to the payment of a judg- ment recovered in the action, apply to vacate or modify the warrant, or to increase the secm-ity, given by the jjlaintiff, or for one or more of those forms of relief, together, or in the alternative. § G83.— An application, specified in the last section, may be founded only upon the papers upon which the warrant was granted; in which case, it must be made to the court, or, if the warrant was gi-anted l\y a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper. Or it may bo founded upon proof, by affidavit, on the part of the defendant; in ■which case, it must be made to the court, or, if the warrant was granted by a judge out of coiirt, to any judge of the court, upon notice; and it may be opposed 640 NEW YORK. by new proof, by affidavit, on the part of tLe plaintiff, tending to sustain any ground for tlie attachment, recited in the warrant, and no other, unless the de- fendant relies uj^on a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings; in which case, the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial. § G84 and § 085.— [Stricken out in 1877.] § 686. — The denial of such an application does not prejudice a suTisequent ap- plication, seasonably made, founded upon the failiu^e of a complaint which had not been filed or served at the time of the former application, to set forth any of the causes of action mentioned in section 635 and section 6-37 of this act. § C87. — The defendant may, at anytime after he has appeared in the action, and Ijefore final jud.gment, apply to the judge who granted the warrant, or to the court, for an order to discharge the attachment, as to the whole or a part of the property attached. _ § 688. — Upon such an application, the defendant must give an undertaking, with at least two sufficient siu-eties, to the effect that he will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specified in the undertaldng, with interest. The sum so specified must be at least equal to the amount of the plaintiff'.'; demand, as specified in his affidavit; or, at the of)tion of the defendant, equal to the appraised value, according to the inventory, of the property attached; or, if the application is to discharge the attachment, as to a i^art only of the property attached, to the appraised value of that portion. § 089. — Where there are two or more defendants, and an application is made as prescribed in the last two sections, by one or more, but not by all of them, the undertaking must provide for the payment of anj^ judgment, which may be recov- ered a^'ainst anj^ of the defendants in the action, unless the applicant makes jsroof, by affidavit, to the satisfaction of the court or judge, that the property, with respect to which the application is made, belongs to him separatelj-; in which case, the undertaking must provide for the payment of any judgment, which may be recov- ered in the action against the applicant, either alone, or jointly with" any other defendant. Where an application is made, as prescribed in this section, at least two days' notice thereof, with a copy of the affidavit, must be served upon the plaintiff '.s attorney, who may oppose the application by proof, by affidavit, that one or more of the other defendants own, or have an interest in, the property. § 690. — An undertaking, given as prescribed in the last two sections, must be forthwith filed with the clerk. A copy thereof, with a notice of the filing, must be forthwith served upon the plaintiff's attorney; who may, within three days thereafter, give notice to the sheriff, that he excepts to the sufficiency of the sure- ties. Thereupon the sureties must justifj', upon the like notice, and in like man- ner, as bail upon an arrest; or a new undertaking must be given, mth new sureties, who must justify in like manner. If the plaintiff does not except, as prescribed in this section, he is deemed to have waived all objection to the" sureties. § 691. — The sheriff is responsible for the sufficiency of the sureties; and he may retain possession of the property attached, and the proceeds thereof, until the ob- jection to them is waived, as prescribed in the last section, or they, or the new sureties, justify. § 092. — The last five sections are applicable, where a vessel, or a share or inter- est therein, is attached. If it is necessary, to enable the defendant to discharge the attachment, the court or judge may, by order, stay any proceeding specified in article second of this title, or extend the time to do any act therein specified. § 093.— If a warrant of attachment is levied upon the interest of one or more partners, in goods or chattels of a partnership, the other partners, v.-ho are not defendants in the action, or any of them, may, at any time before final judgment, apply to the judge who granted the warrant, or to the court, upon an affidavit showing the facts, for an order to discharge the attachment, as to that interest. § 094. — Upon such an application, the applicant must give an undertaking, with at least two sufficient s'oreties, to the effect that they will pay to the sheriff, on demand, the amount of any judgment, which may be recovered against the partner who is defendant in the action; or which may be recovered against him, in any other action, wherein the other jiartners are not defendants, and wherein a warrant of attachment, or an execution, may come to the sheriff's hands, at any time before the warrant of attachment, which was so levied, is vacated or an- nulled; not exceeding a sum, specified in the undertaking, which must not be lesa NEW YORK. 641 than the value of the interest of the defendant, in the goods or chattels seized, by- virtue of the attachment, as fixed by the court or judge. If the value, in the opin- ion of the court or judge, is uncertain, the sum shall be such as the court or judge determines. § (595. — For the purpose of fixing the sum, or determining the sufficiency of the sureties, the com-t or judge may receive affidavits or oral testimony, or may direct a reference. § 696. — The court or judge may direct, that the plaintiff have notice of an ap- plication for a discharge of property, as prescribed in this article, or of the hearing under an order of reference, made as prescribed in the last section; and if the ap- plicant does not appear, where notice has been given, the application m£fy be dis- missed or denied. BEGULATIONS WHEKE THERE ARE TWO OR MORE WARRANTS AGAINST THE SAME DEFENDANT. § 697. — Where two or more warrants of attachment, against the same defend- ant, arb delivered to the sheriff of the same county, to be execiited, their respective preferences, and the rules, where a levy, or a levy and sale, have been made under a junior warrant, are the same, as where two or more executions, against the jirop- erty of the same defendant, are delivered to the sheriff of the same county, to be executed. § 698. — Where a domestic vessel, or share or interest therein, has been attached, and afterward released, as prescribed in this title; or where the personal property of a partnership, of which the defendant was a member, has been attached, and the attachment afterward discharged, upon the application of another partner, as prescribed in this title; another warrant, against the same defendant, shall not be levied on the same property, by the sheriff of the same or of any other county, un- til after the first warrant has been vacated or annulled. But, except as thus pre- scribed, where a second warrant, against the same defendant, is delivered to the same sheriff, he must execute it, hj a levy ujion property within his county, and he must thereupon take the same proceedings, as if the levy was made under the first warrant. § 699 and § 700.— [Stricken out by the amendatory act of 1877.] § 701. — Where a foreign vessel, or a share or interest therein, has been attached and valued, as prescribed in article second of this title, and the plaintiff, in the first wan-ant of attachment, fails to give an undertaking to prevent the release thereof, the court or judge may grant to the plaintiff in a second warrant, then in the sheriff's hands for execution, an extension, of not more than three days there- after, within ^^ich to furnish an undertaking, in all respects like the one to be furnished by the first plaintiff. And if he furnishes it, within that time, he has the same rights and privileges, and is subject to the same duties and liabilities, with respect to the vessel and its proceeds, and the subsequent proceedings relating thereto, as if his was the first warrant. § 702. — If a foreign vessel, or a shai'e or interest therein, has been attached, and afterward released, by reason of the failure of the plaintiff, in the first or the sec- ond warrant, to give an undertaking to prevent the release, it shall not be again attached, under a warrant against the same defendant, which had been delivered to the sheriff of the same county, before the expiration of the time within which the imdertaking should have been furnished. But it may be again attached, under a subsequent warrant against the same defendant; in which case, the plaintiff therein, and the plaintiff in each warrant subsequently delivered to the sheriff, have the same rights and privileges, and are subject to the same duties and lia- bilities, with respect to the vessel and its proceeds, and the subsequent proceed- ings relating thereto, as if the warrant, under which it was attached, was the first warrant. § 703. — Where the plaintiff in a warrant of attachment has commenced an ac- tion, in the name of himself and the sheriff jointly, as i^rescribed in this title, a plaintiff in a junior warrant may apply to the court or judge, to direct as to the conduct, discontinuance, or settlement of the same, or to impose terms, conditions, and regulations as to the continuance thereof, in the interest of the applicant; and such order may be made thereupon, as justice requires. If the first warrant is va- cated, or the attachment thereunder is released or discharged, without affecting the cause of action prosecuted by the plaintiff therein and the sheriff jointly, the plaint- iff in the warrant next in order, may, upon his own application, be substituted as joint plaintiff with the sheriff, by an order, made as upon an application for leave to bring such an action. II Attacuueni— 16. 642 NEW YORK. § 704. — A plaintiff in a second warrant may apply to the court or judge, upon notica to the plaintiH in the first warrant, and to the sberiii, for leave to bring and maintain, in the name of himself and the sheriff jointlj', any action, which might Le brought in the name of the senior plaintiff and the sheriff. If it appears that the plaintiff in the first warrant neglects or refuses to be joined with the sheriff in such an action, or to comply with the terms, conditions, and regulations, imposed, either upon granting him an order for that purpose, or upon the hearing of an ap- plication, made as prescribed in this section, the court or judge may grant to the plaintiff in tlie second warrant, leave to bring and maintain such an action, in the name of himself and the sheriff jointly, with lilve effect, as if his was the first warrant. § 705. — Where there are more than two warrants of attachment, against the same defendant, the plaintiffs in the third and each subsequent warrant have, ac- cording to their respective priorities, the same rights and privileges, as against the plaintiffs in all senior warrants, which the plaintiff in the second warrant has, as i gainst the plaintiff in the first, and are subject to the same duties and liabilities; except that a second extension of the time, within which to furnish an tmdertaking to prevent the release of a foreign vessel, or a share or interest therein, shall not be granted. And the plaintiffs in two or more j unior warrants of attachment may, by agreement among themselves, take jointly, and for their common benefit, any proceeding, j^ermitted by this title to be taken, by the plaintiff in a second or sub- sequent Avarrant of attachment; provided that it does not interfere with the prefer- ential or other right of an intermediate plaintiff. PROCEEDINGS AFTER JUDGMENT; EIGHTS OF PARTIES AND DUTIES OF THE SHERIFF, AFTER THE WARRANT IS VACATED OR THE ATTACHMENT DISCHARGED. § 703. — ^Where a levy, under a warrant of attachment in an action, has been made, an execution against property, upon a final judgment in favor of the plaint- i J tlierein, recovered after the expiration of the term of office of the sheriff who made the levy, must nevertheless be directed to and executed by that sheriff, unless another person is desigTiated by law to complete the unfinished business pertaining to his office; or, in that case, to the person so designated. § 707. — Where a defendant, who has not appeared, is a non-resident of the state, or a foreign corporation, and the summons was served without the state, or by a publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, the judgment can be enforced only against the property which has been levied upon, by virtue of the warrant of attachment, at the time when the judgment is entered. But this section does not declare the effect ol Such a judgment, with respect to the apj)lication of any statute of limitation. § 708. — Where an executic.r against property is issued upon a judgment for the plaintiff,, in an action in whicn . warrant of attachment has been le^aed, the sheriff must satisfj' it, as follows: 1. He must pay over to the plaintiff all money attached by him, and the pro- ceeds of all sales of perishable jjroperty, or of any vessel or share or interest therein, or animals, sold by him, or of any debts, or other things in action col- lected or sold by him; or so much thereof as is necessary to satisfy the judgment. 2. If any balance remains due, he must sell, under the execution, the other per- sonal property attached, or so much thereof as is necessary; including rights or shares in the stock of an association or corporation, or a bond or other instrument for the payment of money, executed and issued, with the interest coupons an- nexed, if any, by a government, state, county, fjublic officer, or municipal or other corporation, which is in terms negotiable, or payable to the bearer or holder, the principal whereof is not then payable; but not including any other debt cr thing in action. If the proceeds of that profierty are insufficient to satisfy the judgment, and the execution requires him to satisfy it out of any other personal property of the defendant, he must sell the f)ersonal property, upon which he has levied by virtue of the execution. If the proceeds of the personal property, applicable to the execution, are insufficient to satisfy the judgment, the sheriff must sell, under the execution, all the right, title, and interest which the defendant had in the real property attached, at the time when the notice was filed, or at any time afterward, before resorting to any other real joroperty. 3. If personal property attached, belonging to the defendant, has passed out of the hands of the sheriff, without having been sold or converted into money, and the attachment has not been discharged as to that property, he must, if practica- ble, regain possession thereof; and, for that pin-pose, he has all the authority which he had, to seize the same under the warrant. A person, who willfully conceals or withholds such property from him, is liable to double damages, at the suit of the party aggrieved. NEW YORK. 643 4. Until the judgment is paid, he may collect the debts and other things in action attaclied, and prosecute any imdertaking which he has taken in the course of the proceedings, and apply the proceeds thereof to the payment of the judgment. 5. At any time after levying the attachment, the court, upon the petition of the plaintiff, accompanied with an affidavit, specifying fully all the proceedings of the sheriff, since the levy under the warrant, the property attached, and the dispo- sition thereof; and the affidavit of the sheriff, showing that he has used diligence, n endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected; may direct the sheriff to sell the remaining portion, upon such terms, and in such manner, as it thinks proper. Notice of the application must be given to the defendant's attorney, if the defendant appeared in the action. If the summons was not personally served on the defendant, and he did not appear, the com-t may make such order as to the service of notice as it thinks projjer, or may grant the application without notice. § 709.— Where a warrant of attachment is vacated, or annulled, or an attach- ment is discharged, upon the application of the defendant, the sheriff must, except in a case where it is otherwise specially prescribed by law, deliver over to the de- fendant, or to the person entitled thereto, upon reasonable demand, and upon payment of all costs, charges, and expenses, legqjly chargeable by the sheriff, all the attached personal i^roperty remaining in his hands, or that portly n thereof as to which the attachment is discharged; or the proceeds thereof, if it has been Bold by him. § 710.— Wliere the sheriff is required, by this title, to deliver attached property, or the nroceeds thereof, to the defendant, he must also deliver to him, imless other- wise specially directed by the court or judge, all books of account, vouchers, evi- dences of debt, muniments of title, or other papers, relating to the property, either real or personal, or to its proceeds; together with all undertakings, relating thereto, which he has taken in the course of the proceedings, and which have not Ijeen fully satisfied; except an undertaking, given by the defendant, upon the discharge of property.^ He must also deliver a written assignment, duly acknowledged, of each undertaking, so delivered, and of each other instrument, to which the defendant is thus entitled, an assignment of which is necessary to perfect or protect the defend- ant's title thereto. The defendant must also, but upon his own application only, be substituted in place of the sheriff, or the sheriff and the jilaintiff jointly, in an action brought as prescribed in this title; but the court or judge may impose, as a condition of granting the order of substitution, such terms as justice requires, with respect to indemnity and payment of expenses. The defendant's rights, with re- spect to property attached and not disposed of, and an undertaking, or other in- strument, to which he is thus entitled, are the same as those of the sheriff, while the warrant was still in force, except where his rights are specially defined or regu- lated by law. § 711. — At any time after the warrant of attachment has been vacated or an- nulled, or the attachment has been discharged as to real property attached, the court may, in its discretion, upon the apj^lication of any person aggrieved, and upon such notice as it deems just, direct, that any notice, filed for the purpose of attaching the property, be canceled of record, by the clerk of the county where it is filed and recorded. The cancellation must l;)e made by a note, to that effect, on the margin of the record, referring to the order; and, unless the order is entered in the same clerk's office, a certified coj^y thereof must, at the same time, be filed therein. § 712.— Where a warrant of attachment has been vacated or annulled, the sher- iff must forthwith file, in the clerk's office, the warrant, mth a return of his jiro- ceediugs thereon. Upon the application of either party, and proof of the sheriff's neglect, the com-t may direct him so to do, f orthvfith, or within a specified time. Before justices of the peace— Sees. 2905-2918, .3058. In the marine court -Sees. 327, 339, 3109, 3175. In district courts New York city— Sees. 3210, 2905, 2111, 2119. Additional costs — Sec. 3252. When annulled — Sec. 334.3. Order of preference — Sees. 140G-1408. Actions — Partners, sec. 1415; officers, sec. 1421. Liens against vessels — Banks' Eev. Stats. , p. 2405, sees. 4-33. Exemptions— Sees. 1.389-1.399, 24G3-3028, and Stats. 1883, p. 1.55; 1884, p. 112; Kev. Stats., Banks' edition, p. 1G90, sec. 10, p. 1700; chap. 310, p. 1719, sec. 20; p. 1729, chap. 202, sec. 2; p. 1900, chap. 39a 644 KOETH CAROLINA. NORTH CAROLIM, [Code «f 1883.] CHAPTER IV. ATTACHMENT. § 347. — A -warrant of attachment against the property of one or more defend- ants in an action may be granted upon the application of the plaintiff, as specified in this chapter, when the action is to recover a sum of money only, or damages for one or more of the following causes: 1. Breach of contract, express or implied. 2. Wrongful conversion of personal property. 3. Any other injury to personal property, in consequence of negligence, fraud, or other wrongful act. § 348. — The warrant of attachment may be granted to accompany the siunmons, or at any time after the commencement of the action. Personal service of the summons must be made upon the defendant against whose property the attachment is granted, within thirty days after the granting thereof, or else upon the expira- tion of the same time, service of summons by publication must be commenced pur- suant to an order obtained therefor, and if publication has been, or is thereafter, commenced, the service must be made complete, by the continuance thereof. § 349. — To entitle the plaintiff to such a warrant, he must show by affidavit to the satisfaction of the court granting the same, as follows: 1. That one of the causes of action specified in section three hundred and forty- seven exists against the defendant. If the action is to recover damages for breach of contract, the defendant must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims known to him. 2. That the defendant is either a foreign corporation, or not a resident of the state; or, if he is a natural person, and a resident of the state, that he has departed therefrom, with intent to defraud his creditors, or to avoid service of summons, or keeps himself concealed therein with like intent; or, if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the 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, property with the like intent. § 350. — The plaintiff, within thirty days after obtaining a warrant of attachment from a justice of the peace, shall cause publication thereof to be made for four suc- cessive weeks at the court-house door and four other public places in the county where the warrant is returnable. § 351. — If the action be not founded on a contract, or if founded on a contract and the sum demanded exceed two hundred dollars, a warrant of attachment may be obtained from the judge of the district embracing the county in which the ac- tion has been instituted, or from the clerk of the superior court from which the summons in the action issued; and it may be issued to any county in the state where the defendant has property, money, effects, choses in action, or debts due him, and shall be made returnable in term time to the court from which the sum- mons issued. § 352. — When the warrant of attachment is taken out at the time of issuing the summons, and the summons is to be served by publication, the order shall direct that notice be given in said pulilication to the defendant of the issuing of the at- tachment, and when the warrant of attachment is obtained after the issuing of the summons, the defendant shall be notified by publication of the fact for four suc- cessive weeks in some newspaper published in the county to which it is retm-nable, or if there be none such, then in one jiublished in the judicial district including said county, and if there be no newspaper published in the district, then in any newspaper published in the state. Said publication shall state the names of the parties, the amount of the claims, and in a brief way the nature of the demand and the time and place to which the warrant is returnable: Provided, that in proceed- NORTH CAROLINA. G43 iDfrs by attaebment begun and liarl before justices of the peace, advertisement in a newsiiiiju'r sliiill not bo uecfssary, but in all Kuch cases, advertisement at tlie court- Louse (lour and four other public places in the county shall be sufficient publica- tion, both as to the summons and warrant of attachment. § 353. — If the action be not founded on contract, and the value of the property in controversy does not exceed the sum of fifty dollars, the warrant of attachment may, or if tho action be founded on contract, and the sum demanded does not ex- ceed two liundred dollars, the warrant of attachment must, lie obtained from and made returnable before some justice of the peace of a county, to the superior court of which it mi^lit have been returnable had the sum demanded exceeded two hun- dred dollars, or had the action not have been founded on contract. § 354. — If the attachment be levied on real property, the justice shall proceed to try the aetion, but shall issue no execution to sell the real property, and shall return the papers in the case to the office of the clerk of the superior court of his county, where the judi,Tnent shall be docketed. The levy of the attachment, how- ever, shall be a lien on the real estate. _ § 355. —It shall be the duty of the plaintiff procuring a warrant of attachment, within ten days from the issuing thereof, to file the aftidavits on which the pame was granted in the office of the clerk of the superior court to which, or with the justice of the peace before whom the process is made returnable. § 353.— Before issuing the warrant, the officer issuing the same shall require a WTittcn laidertaking on the part of the plaintiff, with sufficient surety, to the effect that if the defendant recover judgment, or the attachment be set aside by order of the court, the i)laintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two himdred dollars. § 357. — The warrant shall be directed to the sheriff of any county in which the property of such defendant may be, or in case it be issued by a justice of the peace to such sheriff, or to any constable of such countj', provided such county be that of the justice issuing the warrant, and shall require such sheriff or constable to at- tach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint, together with costs and expenses; it must also state when and where it shall be returned. Several war- rants may be issued at the same time to the sheriffs of different counties. § 358. — It shall not be a defense to an action upon an undertaking, given upon granting a warrant of attachment, that the warrant was granted improperly, for want of jurisdiction, or for any other cause. § 359. — The officer to whom such warrant of attachment is directed and de- livered shall seize and take into his possession the tangible personal property of the defendant, or so much thereof as may be necessary, and he shall be liable for the care and custodj'' of such f)rox)ert}', as if the same had been seized under execu- tion; he shall levy on the real estate of the defendant as prescribed for executions; he shall make and return with the warrant an inventory of the property seized or levied on; subject to the du-ection of the coiu't, he shall collect and receive into bis possession all debts owing to the defendant, and take such legal proceedings, either in his own name or in that of the defendant, as may be necessary for that i^urpose. § 3G0. — If any property, so seized, shall be perishable, or of such character that the expense of keeping it until the determination of the suit would be likely to ex- ceed one-fifth of its value, or if any part of it consists of a vessel, or of any share or interest therein, and the person to whom it belongs, or his agent, shall not within ten days after the serving of such attachment reclaim the same, the sheriff or other officer having possession thereof shall apply to the com-t for authority to sell the same, stating the circumstances; and the same shall be sold, under the or- der and direction of the court, and the proceeds of such sale shall be liable to the judgment obtained upon such attachment, and shall be retained by the sheriff or other officer to await such judgment. § 3C1. — The person owning the property advertised to be sold according to the provisions of this sub-chapter, his agent or attorney, may, at any time before sale, replevy the same, by giving an undertaking, in double the amount of the value of the property, with sufficient surety, to the effect that he will return the ^iroperty to the sheriff, or other officer, if return thereof be adjudged by the court, and pay all costs that may be awarded against him; and if return of said property cannot be had, then that he will pay j)laintiff the value of said property, and all costs and damages that may be awarded against him. And upon the execution of this un- 646 NORTH CAROLINA. dertakincf, the sheriff, or other officer, shall deliver said property to the person owning the same. § 362. — The rights or shares which the 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 on, and sold to satisfy the judgment and execution. § 363. — 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 bv leaving a certified copy of the warrant of attachment with the president or other head of the association or corporation, or with the secretary, cashier, or man- aging agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on. § 364. — When the sheriff or other officers shall serve an attachment on any per- son supposed to be indebted to, or to have any effects of the defendant in the at- tachment, he shall at the time summons such person as a garnishee in writing, to appear at the court to which the attachment shall be returnable, or, if issued by a justice of the peace, at a jDlace and time named in the notice, not exceeding twenty days from date of notice, to answer upon oath what he owes to the defendant, and wliat effects of the defendant he hath in his hands, and had at the time of serving such attachment, and what effects or debts of the defendant there are in the hands of any other, and what person, to his knowledge and belief; and when an attach- ment shall be served on any garnishee in manner aforesaid, it shall be lawful upon his appearance and examination to enter up judgment and award execution for the plaintiff against such garnishee, for all siims of money due to the defendant from him, and for all effects and estates of any kind belonging to the defendant, in his possession or custody, for the use of the plaintiff, or so much thereof as shall be sufficient to satisfy the debt and costs and all charges incident to levj-ing the same; and all goods and effects whatsoever in the hands of any garnishee belong- ing to the defendant shall be liable to satisfy the plaintiff's judgment, and shall be delivered to the sheriff or other officer serving the attachment. § 365. — When any garnishee shall be summoned as aforesaid, and shall fail to appear and discover on oath as directed, the court, after solemnly calling the gar- nishee, shall enter a conditional judgment against him, and thereupon a notice shall issue against him returnable to the court having jm-isdiction, to show cause why final judgment shall not be entered against him; and if, upon due execution thereof, such garnishee shall fail to appear at the time and place named in the no- tice, and discover on oath in manner aforesaid, the court shall confirm said judg- ment and award execution for the plaintiff's whole judgment and costs; and if, upon examination of the garnishee, it shall appear to the com-t that there is any of the defendant's estate in the hands of any person who has not been summoned, the court shall, upon motion of the plaintiff, grant a judicial attachment, to be leaned in the hands of every such person having any of the estate of the defendant in hia custody or possession, who shall appear and answer, and shall be liable as other garnishees. § 366. — When any garnishee shall deny that he owes to, or has in his possession any property of, the defendant, and the plaintiff shall on oath suggest to the court the contrary; or when any garnishee shall make such a statement of facts that the court cannot proceed to give judgment thereon, then the com-t shall order an issue to lie made up, which shall be tried by a jm-y, and on their verdict judgment shall be rendered: Provided, that in a court of a justice of the peace, he may try such issue, unless a jm:y be demanded, and then proceedings are to be conducted, in all respects, as in jury trials before courts of justices of the peace. § 367. — When a garnishee shall on oath confess that he has in his hands any property of the defendant of a specific nature, or is indebted to such defendant by any security or assumption for the delivery of any specific article, except as here- inafter excepted, then the coiu-t shall immediately order a jury to be impaimeled and sworn to inquire of the value of such specific property, and the verdict of the jury shall subject such garnishee to the fiajTiient of the valuation, or so much thereof as shall be sufficient to satisfy the debt or damages, and costs to the plaint- iff: Provided, that in a court of a justice of the peace, he may try such issue, imless a jury be demanded, and then proceedings are to be conducted in all respects as in jury trials before courts of justices of the peace. Provided, further, that if such garnishee shall also state in his answer that said specific property was left, or de- posited, in his possession by the defendant as a bailment, or that he hath tendered said specific articles agreeable to contract, and that they were refused by the de- fendant, and that he then was, and always had been, ready to deliver the same; or that lie had such specific articles at the time and place specified in such covenant NOKTH CAROLINA. 647 or as^reement ready to be delivered, and is still ready to deliver the same; and such statement shall be admitted by the plaintiff or found by a jury or the court, then in any such case, the garnishee shall be exonerated by the delivery of such specific articles to the sheriff, who shall j)roceed as if the attachment had been originally levied on the property. § 3G8. — When any garnishee shall declare in his answer that the money or spe- cific article due by him will become payable or deliverable at a future day, and the same shall be admitted by the plaintiff or found by a jury or the court, in such case conditional judgment shall be entered against the garuishee, and the plaintiff may obtain judgment against the defendant for his demand, but shall not take final judgment against the garnishee wdthout notice to show cause. § 3C9. — "Whenever the sheriff or other lawful officer with a warrant of attach- ment or execution shall apply to any officer mentioned in section three hundred and sixty-three, or to any debtor or individual, for the purpose of attaching or levying on the property of the defendant in such warrant, such officer, debtor, or individ- ual shall furnish him u-ith a certificate under his hand, designating the number of rights or shares of the defendant in such association or corporation, with any divi- dend or any incumbrance thereon, or the amount and description of the property held by such association, cori^oration, or individual, for the benefit of, or debt owing to the defendant. If such officer, deljtor, 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 order may be enforced by attachment. § 370. — 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 property sold by him, and of all 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, excejit as provided in subdivision four of this section, as may be necessary to satisfy the lialance, if enough for that jjurpose shall remain in his hands; and in case of the sale of anj^ rights or shares in the stock of a corpora- tion or association, the sheriff shall execute to the purchaser a certificate of sale thereof, and tlie purchaser shall thereupon have all the rights and privileges in re- spect 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 shfill repossess himself of the same, and for that purpose shall have all the authority wliich he had to seize the same tinder the attachment; and any i^er- son 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 pro- ceed 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 jolaintiff, 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 afiida\-it of the sheriff that he has used due diligence, and endeavored to collect the evidences of debt in his hands so attached, and that there remains un- collected 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 to his attorney, if the defendant shall have appeared in the action. In case the summons has not been personally served on tho defendant, the court shall make such rule or order, as to service of notice, and time of service, as shall be deemed just. When the judgment and aU costs of the proceedings shall have been i^aid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the attached property, or the proceeds thereof. § 371. — The actions herein authorized to be brought by the sheriff may be pros- ecuted by tho plaintiff, or under his direction, upon the delivery by him to the sheriff of an undertaldng executed by two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff from all tlamages, costs, and expenses on account thereof, not exceeding two himdi-ed and fifty dollars in any one action. Such sure- 648 NORTH CAROLINA. ties shall, in aU cases when required by the sheriff, justify by making an affidavit that each is a freeholder, and •>vorth double the amount of the penalty of the bond, over and above all demands, liabilities, and exemptions. § 372. — If the foreign corporation, or the absent, absconding, or concealed de- fendant, recover judgment against the i^laintiff in such action, any bond taken upon the issuing of the warrant of attachment, and any bond taken by the s aerijF, except such as are mentioned in the preceding section, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his Lr.ncb, shall be delivered by him to the defendant or to his agent, on request, and the warrant shall be discharged and the property released. § 373. — "Whenever the defendant shall have appeared in such action, he may ap- ply to the court in which the action is pending, or to the judge thereof, for an order to discharge the same; and if the same be granted, all the proceeds of sale, and naoneys collected in such action, and all the property attached remaining in the hands of any ofBcer of the court, under any process or order in such action, shall be delivered or paid to the defendant or to his agent, and released from the attach- ment. 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 i^roperty has been seized, may apply in like manner for relief. § 374. — Upon such application the defendant shall deliver to the court an un- dertaking, executed by two sureties residing in this state, approved by such comi;, to the effect that such surety ^vill, on demand, pay to the plaintiff the amoimt of judgment that maybe recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed bj' the plaintiff in his complaint. If it shall appear by affidavit that the property attached be of less value than the amount claimed by the plaintiff, the court or judge may order the same to be appraised, and the amount of the imder- taking shall then be double the amount so appraised. 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 deliver to the court an undertaking, in accordance with this sec- tion, to the effect that he will, on demand, pay to the plaintiff the amount of judg- ment that may be recovered against such defendant. And all of this section, applicable to such an undertaking, shall be applied thereto. § 375. — When the property attached shall be claimed by any other person, the claimant may interplead, as provided in section three hundred and thirty-one. § 376. — The sheriff shall retm-n the warrant of attachment, and the undertaldnga provided for in this chapter, with a statement of his proceedings thereon, at the time and place at which it is on its face returnable, and upon, or at any time after, such return, he may obtain from the court to which the same was returriable a certified copy thereof, which shall be held and deemed for the pm-pose of giving him authority, the same as the original; and when the warrant shall have been fully executed or discharged, the sheriff shall return the same, with his proceed- ings, to said court. § 377. — The defendant, or a person who has acquired a lien upon, or interest in, his property after it was attached, may at any time before the actual application of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, aj)ply to the com't having jurisdiction to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief, together or in the alternative, as in cases of other provis- ional remedies. § 378. — The sureties to all undertakings in all proceedings for attachment may be excelled to, and justified as reqiured in action for claim and deli%"ery. Exemptions — Personalty, sec. 501; homestead, sec. 511; dower, sees. 2104, 2105; things exhibited at fairs, etc., sec. 2797; laborers' liens enforced by, sec. 179.j; poU tax, sec. 3G75. Code ai^pUcable to justices of the peace — Sec. 853. OHIO. 649 OHIO. [Eevised Statutes of 1880, and Subsequent Statutes.] TITLE 1, DIV. 6, CHAP. 2. GROUNDS OP ATTACHMENT. § 5521. — In a civil action for the recovery of money, the plaintiff may, at or after the commencement thereof, have an attachment against the property of the defendant, upon the gi-ounds herein stated: 1. When the defendant, or one of several defendants, is a foreign corporation, or a non-resident of this state; or, 2. Has absconded, ^vith intent to defraud his creditors; or, 3. Has left the county of his residence, to avoid the service of a simamons; or, 4. So conceals himself that a summons cannot be served upon him; or, 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defi-aud his creditors; or, 6. . Is about to convert his property, or a part thereof, into money, for the pur- pose of placing it beyond the reach of his creditors; or, 7. Has property, or rights of action, which he conceals; or, 8. Has assigned, removed, disposed of, or is about to dispose of his property, or a part thereof, with the intent to defraud his creditors; or, 9. Has fraudulently or criminally contracted the debt, or incmTed the obliga- tion, for which suit is about to be or has been brought. But an attachment shall not be granted on the ground that the defendant is a f oreig-n corporation, or a non-resident of this state, for any claim other than a -debt or demand arising upon contract, judgment, or decree, or for causing death by a negligent or wrongful act. [62 v. 10, § 191.] HOW ATTACHMENT OBTAINED. §5522. — An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showings 1. The nature of the plaintiff's claim; 2. That it is just; 3. The amount which the affiant believes the plaintiff ought to recover; and 4. The existence of any one of the grounds for an attachment enumerated in the preceding section. [51 v. 57, § 192.] § 5523. — WTien the ground of the attachment is that the defendant is a foreign corporation, or a non-resident of this state, the order of attachment may be issued without an undertaking; but in all other cases the order shall not be issued by the clerk until there is executed in his oflSce, by sufficient surety of the plaintiff, to be approved by the clerk, an undertaking, in a sum equal to double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment if the order prove to have been wrongfully obtained. [51 v. 57, § 193.] § 5524. — The order of attachment shall be directed and delivered to the sheriff, and shall require him to attach the lands, tenements, goods, chattels, stocks, or in- terest in stocks, rights, credits, money, and effects of the defendant,_in his county, not exempt by law from being ajiplied to the pajTnent of plaintiff"s claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action, not exceeding fifty dollars. [51 v. 57, § 194.] § 5525. — Orders of attachment may be issued to the sheriffs of different counties; and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but such only as have been executed shall be taxed in the costs, unless otherwise directed by the court. [51 v. 57, J^195J 650 OHIO. § 5526. — The return day of tte order of attactment, when the order is issued at the commencement of the action, shall be the same as that of the summons; and when issued afterward, it shall be twenty days after it issued. [51 v. 57, § 196.] EXECUTION AND EETDEN THEREOF. § 5527. — tVhen there are several orders of attachment against the same defend- ant, they shall be executed in the order in which they were received by the sheriff. [51 V. 57, § 197.] § 5528. — The sheriff shall execute the order of attachment without delay; he shall go to the place where the defendant's property is, and there, in the presence of two freeholders of the county, declare that, by virtue of the order, he attaches the property at the suit of the plaratiff; the officer, with the freeholders, who shall be first sworn by the officer, shall make a true inventory and appraisement of aU the property attached, which shall be signed by the officer and freeholders, and re- turned with the order; when the property attached is real property, the officer shall leave with the occupant thereof, or, if there is no occupant, in a conspicuous place thereon, a copy of the order; and when it is personal property, and can be come at, he shall take it into his custody, and hold it subject to the order of the court. [51 v. 57, § 198.] § 5529. — The sheriff shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in the presence of the sheriff, of an undertaking to the plaintiff, with sufficient surety, resident in the county, to the effect that the parties to the same are bound, in double the appraised value of the property, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it appear to the court that any part of such property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound. [51 v. 57, § 199.] § 5530. — When the plaintiff, his agent or attorney, makes oath, in writing, that he has good reason to believe, and does believe, that any person, partnershii) or corijoration in the affidavit named has property of the defendant in his possession, describing the same, if the officer cannot get possession of such property^ he shall leave with such garnishee a copy of the order of attachment, with a written notice that he appear in court and answer, as provided in section fifty-five hundred and forty-seven; and if the garnishee does not reside in the coimty in which the order of attachment was issued, the process may be served by the proper officer of the county in which the garnishee resides, or may be personally served. [Stats. 1881, p. 93.1 § 5531. — The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, or marshal of a municipal corporation, or other officer having in his possession any money, claim, or other property of the defend- ant, or in which the. defendant has an interest, shall bind the same from the time . of such service, and shall be a legal excuse to such officers, to the extent of the de- mand of the plaintiff, for not paying such money or delivering such claim or prop- erty to the defendant, as by law, or the terms of the process in his hands, he would otherwise be bound to do. [74 v. IGO, § 200.] § 5532. — The answer of the garnishee shall be made before the clerk of the court of common pleas of the county in which he resides, or, if he resides out of the state, before the clerk of the coiui; of conanon pleas of the coimty where he was served, or where the action is pending; a special examination of the garnishee shall be had; and actions against him under section fifty-five hundred and fifty-one shall be brought in the county in which he resides. [74 v. IGO, § 200.] § 5533. — The clerk of the court of common pleas before whom the answer is made, shall transmit the same to the clerk of the court in which the suit is pend- ing, in the same manner as depositions are required to be directed and transmitted, and shall receive for his services such fees as are allowed by law for taking deposi- tions, and to clerks for furnishing certificates, with their seals of office attached; and if the garnishee admit an indebtedness to the defendant, and the com-t order the payment of the same, or any part thereof, to the plaintitf, and the garnishee fail to jyaj the same according to such order, execution may issue thereon as upon judgments for the payment of money. [74 v. ICO, § 200.] § 5534. — If the garnishee is a person, the copy of the order and notice shall be served upon him i^ersonally, or left at his usual place of residence; if a partnership garnisheed by its company name, they shall be left at its usual place of doing busi- ness; and if a corx^oration, they shall be left Avith the president or other principal OHia 651 officer, or the isecretary, cashier, or managinc^ agent thereof; and if such corpora/- tion is a railroad companj', they may be left with any regular ticket or frei'^ht agent thereof, in any county in which the railroad is located. [Stats. 1881, p. 03.} § 5535. — Different attachments of the same property may be made by the same officer; and one inventory and appraisement shall be sufficient^ and it shall not be necessary to return the same with more than one order. [51 v. 57, § 202.] § 553G. — When the property is under attachment, attachments of the same un- der subsequent orders shall be as follows : 1. If it is real property, it shall be attached as in the manner prescribed in sec- tion fiftj^-five hundred and twenty-eight. 2. If it is personal property, it shall be attached as in the hands of the officer, . and subject to any previous attachment. 3. If a person be made a garnishee more than once with respect to the same indebtedness or liability, a copy of the order and notice shall be left with him, in the manner prescribed in section fifty-five hundred and thirty. [51 v. 57, § 203.] § 5537. — The officer shall return upon every order of attachment what he has done under it, and the return must show the property attached, and the time it was attached; when garnishees are served, their names, and the time each was served, must be stated; and the officer shall return with the order all undertakings given under it. [51 v. 57, § 204.] § 5538. — An order of attachment shall bind the property attached from the time of service; and the garnishee shall stand liable to the plaintiff in attachment for all property of tlie defendant in his hands, and money and credits due from him to the defendant, from the time he is served ■with the written notice mentioned in section fifty-five hundred and thirty; but when property is attached in the hands of a, consignee, his lien thereon shall not be affected by the attachment. [51 v. 67, § 2050 DISPOSITION OF ATTACHED PKOPERTT. § 5539. — The court, or a judge thereof in vacation, may, on the application of the f)laintiff, and on good cause shown, appoint a receiver, who shall take an oath, and give an undertaking, as is provided in other cases. [51 v. 57, § 20G.] §5540. — The receiver shall take possession of all notes, due-bills, books of ac- count, accounts, and all other evidences of debt, that have been taken by the sheriff or other officer as the i^roperty of the defendant in attachment, and shall proceed to settle and collect the same, and for that purpose he may commence and main- tain actions in his owia name, as such receiver; but in such actions no right of de- fense shall be impaired or affected. [51 v. 57, § 207.] § 5541. — The receiver .shall forthwith give notice of his appointment to the per- sons indebted to the defendant in attachment, which notice shall be ^vritten or printed, and shall be served on the debtor by copy personally, or by copy left at his residence; and, from the date of such service, the debtors shall stand liable to the plaintiff in attachment for the amount of money and credits of the defendant in attachment in their hands, or due from them to him, and shall account therefor to the receiver. [51 v. 57, § 208.] § 5542. — The receiver shall, when required, report his proceedings to the coiirt, and hold all money collected by him, and property which may come into his hands, subject to the order of the court. [51 v. 57, § 209.] §5543. — When a receiver is not appointed, the officer who attaches the prop- erty shall have all the powers, and perform all the duties, of a receiver appointed by the court or a judge, and may, if necessary, conamence and maintain actions in his o^\-n name, as such officer; and he may be required to give security other than his official undertaking. [51 v. 57, § 210.] § 5544. — The com^, or a judge thereof in vacation, may make proper orders for the preservation of the property during the pendency of the suit, and may direct a sale of x^roijerty when, because of its perishable nature, or the cost of keeping it, a sale will be for the benefit of the jiarties; the sale shall be public, after such advertisement as is prescribed for the sale of like property on execution, and shall be made in such manner, and upon such terms of creclit, with security, as the court or judge, having regard to the i^robaljft duration of the action, may direct; and the sheriff shall hold and pay over all proceeds of the sale collected by him, and all money received by him from garnishees, under the same requirements and respon- sibilities of himself and sureties as are provided in respect to money deposited in lieu of bail. [51 v. 57, § 211.] 652 OHIO. PE0CEEDING3 TJPOX ATTACITMENT": § 5545. — If the defendant, or other person on his behalf, at any time before jud,5:ment, cause an undertaking to be executed to the plaintiif, by suScient surety resident in the county, to be approved by the court, in double Lhe amount of the plaintiff's claim as^tated in his affidavit, to the effect that the defendant shall ijer- form the judgment of the court, the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof; and such undertak- ing shall also discharge the liability of a garnishee in the action, for any property of the defendant in his hands. [51 v. 57, § 212.] § 554G. — The undertaking mentioned in the preceding section may, in vacation, be executed in the presence of the officer having the order of attachment in his hands, or, after the return of the order, before the clerk, with the same eUect as if executed in court; the sureties, in either case, to be approved by the ofHcer before whom the undertaking is executed. [51 v. 57, § 213.] § 5547. — The garnishee, if the order of attachment be returned during a term of court, and twenty days before the close thereof, shall appear at that . term, and if the order be returned during vacation, he shall appear at the term next after its return; and he shall answer, under oath, all questions put to him touching the property of every description, and credits, of the defendant, in his i)os3e33ion or under his control, and he shall disclose, truly, the amount omng to him by the de- f jndant, whether due or not, and, in case of a corporation, any stock therein held by or for the benefit of the defendant, at or after the service of notice. [51 v. 57, § 214.] § 5543. — A garnishee may pay the money owing to the defendant by him to the ofHcer having th? order of attachment, or into court; he shall be discharged from liability to the defendant for any money so paid, not exceeding the plaintiii's claim, and shall not be subjected to costs beyond those caused by his resistance of the claim against him; and if he disclose the property in his hands, or the true amount owing by him, and deliver or pay the same according to the order of the court, he shall be allowed his costs. [51 v. 57, § 215.] § 5549. — If the garnishee fail to appear in court and answer, as required by sec- tion fifty-five hundred and fortj'-seven, the court may i^roceed against him by attaahment as for a contempt. [51 v. 57, § 21G.] § 5550.— If the garnishee appear and answer, and it be discovered on his exam- ination, that at or after the service of the order of attachment and notice upon him, he was possessed of any property of the defendant, and was indebted to him, or either, the court may order the delivery of such property, and the payment of the amount owing by him, into com't, or either; or the court ma;,' permit the gar- nishee to retain the property, or the amount owing, upon the execution of an un- ' dertaking to the plaintiif, bj'' sufScient surety, to the effect that the amount shall be paid, or the property forthcoming, as the court may direct. [51 v. 57, § 217.] § 55.51. — If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure be not satisfactory to the plaintiff, or if he fail to comply with the order of the com't to deliver the property and pay the money owing into court, or to give the undertaking required in the last section, the i^laintiff may proceed against him by civil action; and thereupon such proceedings maybe had as in other actions, and jud.gment may be rendered in favor of the plaintiff for the amount of property and credits of every land of the defendant in possession of the garnishee, and for what may appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee. [51 v. 57, § 218.] § 5552. — If the plaintiff proceed against the garnishee by action, for the cause that his disclosure was imsatisfactorj', unless it appear in the action that such dis- closure was incomplete, he shall pay costs of such action; and when the claim of the plaintiff in attachment is satisfied, the defendant may, on motion, be substi- tuted as the plaintiff in the judgment. [51 v. 57, § 218.] §.5553. — Final judgment shall not be rendered against the garnishee until the action against the defendant in attachment is determined; if in such action judg- ment be rendered for the defendant in attachment, the garnishee shall be dis- charged, and recover costs; and if the plaintiff recover against the defendant in attachment, and the garnishee deliver up all the projierty and credits of the de- fendant in his possession, and pay all the money due from him, as the court may order, the garnishee shall be discharged, and the costs of proceedings against him shall be paid out of the property and money so surrendered, or as the court deems eight and ijroper. [51 v. 57, § 219.] OHIO. 653 §5554.— If jnclgraent in the action bo rendered for tie defendant, tlie attach- ment shall 1)0 discharged, and the property attached, or its proceeds, shall be re- turned to him. [51 V. 57, § 220.] § 5555. — If judgment be rendered foi^the plaintiff, it shall be satisfied as follows: So much of the proi^erty remaining in toe hands of the officer, after applying the money arising from the sale of perishable property, and so much of the personal property, lands and tenements, if any, whether" held by legal or equitaljle title, as may be necessary to satisfy the judgment, shall be sold by order of the court, un- der the same restrictions and regulations as if the same had leen levied on by execution; and the money arising therefrom, with thd amount which may be recov- ered from the garnishee, sliall be applied to satisfy the judgment and costs; if there be not enough to satisfy the same, the judgment shall stand, and execution may issue tiiereon for the residue, in all respects as in other cases; and any surplus of the attached property, or its proceeds, shall be returned to the defendant. [51 v. 57, § 221.] § 5556. — The court may compel the delivery to the sheriff, for sale, of any of the attached i^roperty for which an undertaking has been given, and may proceed summarily on such undertaking to enforce the delivery of the property, or the pay- ment of the money due upon the undertaking, by rules and attachment as in cases of contempt. [51 v. 57, § 222.] § 5.557. — The court may order the officer to repossess himself, for the purpose of selling it, of any of the attached property which has passed out of his hands with- out having been sold or converted into money; and the officer shall, under such order, have the same power to take the property as he would have under an order of attachment. [51 v. 57, § 223.] § 5558. — If personal property which has been attached be claimed by any person other than the defendant, the officer shall have the validity of such claim tried; and such proceedings muit bj had thereon, with the Uks eifect, as if the property had been seized upon execution, and claimed by a thu-d person. [51 v. 57, § 224.] § 5559. — "When several attachments, are executed upon the same property, or the same person is made a garnishee by several p)arties, the court, on the motion of any of the plaintiffs, may order a reference to ascertain and report the amounts and priorities of the several attachments. [51 v. 57, § 225.] GENERAL PROVISION'S. § 5560. — From the time of the issue of the order of attachment the court shall be deemed to have acquired jurisdiction, and to have control, of all subsequent pro- ceedings under this chapter; and if, after thte issue of the order, the defendant, being a person, die, or being a corporation, its charter expire by limitation, for- feiture, or otherwise, the ^proceedings shall be carried onp but in all such cases, other than where the defendant was a foreign coriioration, the legal representatives of the defendant shall be made jiarties to the action. [51 v. 57, § 226.] § 5561. — The defendant may, at any time before Judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the com't is satisfied that the surety in the plaint- iff's undertaking has removed from the state, or is not sufficient for the amomit of the undertaking-, it may vacate the order of attachment, and direct restitution of any property taken under it, unless, in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff. [51 v. 57, § 227.] § 5562. — The defendant may, at any time befoife judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or any of the proi^erty attached; and the motion may be heard and decided by the court at any term or regular session thereof, or it may be made, heard, and decided by any judge thereof in vacation. [51 v. 57, § 228.] § 55G3. —When the motion is made upon affidavits on the part of the defendant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to the evidence on which l.io order of attachment was made. [51 v. 57, § 229.] SUPPLEMENTARY PROVISIONS. § 5563a. — A party to a suit affected by an order discharging or refusing to dis- charge an order of attachment, m.ay file a petition in error to reverse, vacate, or modify the same, as in other cases; and the original action shall proceed to trial and judgment in every resi^ect, as though no petition in error had been prosecuted. [54 V. 26, §^ 1, 4.] C54 OHIO. § 5563?). — When an order discTiarging an order of attachment is made, and a party affected thereby excepts thereto, the court or judge shall fix the number of days, not to exceed thirtj', in which such party may file his petition in error, and during which it shall be filed, and the attached property held by the sheriff or other officer; the party who files the petition in ei-ror shall give an imdertaking to the adverse party, with surety to be approved by the clerk of the district court, in double the amount of the ai^praised value of the property attached, conditioned to pay such adverse party all damages sustained by him in consequence of the filing of the same, in the event of the discharge of the order of attachment by the court in which the petition in error is filed, because the same was wrongfully obtained; and when such petition in error is filed, and an undertaking given, the sheriff, or other officer, shall continue to hold the property attached, subject to the further order of the court. [58 v. 14, § 2.] § 5563c. — If a party who excepts to an order discharging or refusing to discharge an order of attachment die within the time limited for filing his petition in error, the administrator or executor of such deceased party may, at any time within thirty days after his appointment and ciualification, file his petition in error, and thereby become a party to the action, and shall not be required to give the under- takir.g required by the ijreceding section; but no such petition in error shall be filed by an executor or administrator after one year from the time such order is made. [54 v. 26, § 3.] ATTACHMENT BEFORE DEBT DUE. § 5564. — A creditor may bring an action on his claim before it is due, and have an attachment against the jiroperty of the debtor — 1. When a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; or, 2. Is about to make such sale, conveyance, or disposition of his property, with such fraudulent intent; or, 3. Is about to remove his property, or a material part thereof, with the intent, or to the effect, of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts. [51 v. 57, § 230.] § 5565. — The attachment authorized by the last section may be granted by the court in which the action is brought, or by a judge thereof; but before such action ehall be brought, or such attachment granted, the plaintiff, or his agent or attor- ney, shall make an oath, in writing, showing the nature and amount of the plaint- iff's claim, that it is just, v^^hen it will become due, and the existence of any one of the grounds for attachment enumerated in the last preceding section. {51 v. 57, § 231.] § 5566.— If the court or judge refuse to grant an order of attachment, the action shall be dismissed, but ■\\ithout i^rejudice to a future action; and in all such actions application for an attachment must be made. [51 v. 57, § 232.] § 5567. — The order of the com-t or judge granting the attachment shall si)ecify tie amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action. [51 v. 57, § 233.] § 5568. — The order of attachment, as granted by the court or judge, shall not be issued by the clerk until there is executed in his office such undertaking on the part of the i^laintiff as is directed by section fifty -five hundred and twenty-three. [51 V. 57, § 234.] § 5569. — The plaintiff in such action shall not have judgment on his claim be- fore it becomes due; and the proceedings on attachment may be conducted without delay. [51 v. 57, § 235.] § 5570. — Proceedings authorized by the next preceding chapter shall govern attachments under this chapter, so far as the same are applicable. [51 v. 57, § 236.] Before justices of the peace— Sees. 6489-6525. In collection of taxes — Sec. 1102. In bastardy proceedings— Sees. 5632-5636. Claims out of thestate collected by — Sec. 7014. Exemptions — Notaries, sec. 113; cemetery, sec. 1469; unmarried women, sec 6426; beneficiary funds, sec. 5427; benevolent societies, sec. 5428; fire companies, see. 5429; head of family, sec. 5430; physicians, etc., sec. 6431; see also Stata. 1882, p. 197; 1884, p. 148; wages, «ec. 5483. OREGON. 655 OREGON. . [General Laws 1872, and Subsequent Statutes.] CHAPTER 1.— TITLE XV. OF ATTACHMENT. § 142. — The plaintiff, at the time of issuing the summons, or any time after- ward, may have the property of the defendant attached, as security for the sat- isfaction of any judgment that may be recovered, unless defendant give seciu-ity to pay such judgment, as in this chapter provided, in the following cases: 1. In an action upon a contract, express or implied, for the direct payment of money, which contract is made or is payable in this state, and is not secm-ed by mortgage, lien or pledge upon real or personal property; or, if so secured, that such security has been rendered nugatory by the act of the defendant. 2. In an action upon a contract, express or implied, against a defendant not residing in this state. [Laws 187(5, pp. 35, 3S.] § 143. — The clerk of the court must issue the writ of attachment upon receiving an affidavit by or on behalf of plaintiff, showing: 1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, over and above all legal set-offs or counter-claims) upon a con- tract, exjiress or implied, for the direct payment of money, and that such contract was made or is payable in this state, and that the x^ayment of the same has not been secured by any mortgage, lien or pledge upon real or personal property; or, 2. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs or counter-claims), and that the defendant is a non-resident of the state; and 3. That the sum for which the attachment is asked is an actual, bona fide, exist- ing debt, due and owing from the defendant to the plaintiff, and that the attach- ment is not sought, and the action prosecuted, to hinder, delay or defraud any creditors of the defendant. [Laws 1876, pi^. 35, 30.] § 144. — Upon filing the affidavit with the clerk, the plaintiff shall be entitled to have the writ issue, as soon thereafter as he shall file with the clerk his undertak- ing, with one or more sureties, in a sum not less than one hundred dollars, and equal to the amount for which the i^laintiff demands judgment, and to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the attachment, if the same be wrong- ful or without sufficient cause, not exceeding the sum si^ecified in the undertaking. V\^ith the undertaking, the plaintiff shall also file the affidavits of the sureties, from which affidavits it must appear that such sureties are ciualified, and that taken together they are worth double the amount of the sum specified in the imdertak- ing, over all debts and liabilities, and iDroperty exempt from execution. jSTo person not qualified to become bail upon an arrest, is qualified to become security in an undertaking for an attachment. § 145.— The writ shall be directed to the sheriff of any county in which prop- erty of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thefcof as may he sufficient td satisfy the plaintiff's demand, the amount of which shall be stated in conformity with the complaint, together with costs and expenses. • Several writs may be issued at the same time to the sheriffs of different counties. § 14G. — The rights or shares which such defendant may have in the stock of any association, together with the interests and profits thereon, and all other prop- erty in this state of such defendant, not exempt from execution, shall be liable to be attached. The sheriff shall note upon the writ, the date of its delivery to him, and shall make a full inventory of the property attached, and return the same with the writ. § 147. — The sheriff to whom the writ is directed and delivered shall eyecute the same without delay, as follows: 656 OREGON. 1. Real property shall be attached by leaving with the occupant thereof, or if there be no occupant, in a conspicuous place thereon; a copy of the -writ, certified by the sheriff. 2. Personal property, capable of manual delivery to the sheriff, and not in the possession of a third person, shall be attached by taking it into his cu.-tody. 3. Other personal propertj" shall be attached, by leaving a certified copy of the writ, and a notice specifying the j^rcperty attached, with the person having the possession of the same, or if it be a debt, then with thedebtor, or if it be rights or shares in the stock of an association or corporation, or interest, or profits thereon, then with such person or officer of such association or corporation, as this code authorizes a summons to be served upon. § 148. — From the date of the attachment until it be discharged or the writ exe- cuted, the plaintiff, as against thu'd persons, shall be deemed a purchaser in good faith and for a valuable consideration, of the profierty, real or personal, attached, subject to the conditions prescribed in the next section as to real projoerty. Any person, association or corporation mentioned in subdivision 3 of section 1-17, from the service of a copy of the writ and notice as therein provided, shall, unless !.uch property-, stock, or debts, be delivered, transferred, or jjaid to the sheriff, be liable to the plaintiff for the amount thereof, until the attachment be discharged or any judgment recovered by him be satisfied. § 149. — If real property be attached, the sheriff shall make a certificate con- taining the title of the cause, the names of the parties, a description of F.uch real property, and a statement that the same has been attached at the suit cf the plaintiff, and the date thereof. Within ten days of the date of the attachment, the sheriff shall deliver such certificate to the county clerk of the county in which such real property ii situated, who shall file the same in his office, and record it in a book to be kept for that j)urpose. When such certificate is so filed for record, the lien in favor of the plaintiff shall attach to the real property described in the certificate from the date of the attachment, but if filed afterward it shall only attach as against third persons, from the date of such subsequent filing. V.\hen- ever such lien shall be discharged, it shall be the duty of the county clerk, when reciuested, to record the transcript of any order, entry of satisfaction of judgment, or other proceeding of record, whereby it appears that such lien has been discharged, in the book mentioned in this section. The clerk shall also enter on the margin cf the page on vrhich the certificate is recorded, a minute of the discharge, and the page and book where recorded. § 150. — WTienever the sheriff with a writ of attachment against the defendant, shall apply to anj' person or officer mentioned in subdivision 3 of section 147, for the piu-pose of attaching any property mentioned therein, such person or ofacer shall fm-nish Htm -ndth a certificate, designating the amoimt and description of aiiy property in his possession belonging to the defendant, cr any debt ov.-ing to the defendant, or the number of rights or shares of the defendant in the stock of the association or corporation, ■with any interest or profits or incumbrance thereon. If Buch person or officer refuse to do so, or if the certificate when given be unsatis- factory to the plaintiff, he may be required by the court or judge thereof when the action is pending, to appear before him and be examined on oath concerning the same, and disobedience to such order may be punished as contempt. § 151. — If any of the property attached be perishable, the sheriff shall sell the same in the manner in which property is sold on execution. The i:)roceeds thereof and other property attached, shall be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment. Personal property mentioned in subdivision 3 of section 147, may be deliv 'red, transferred, or paid to the sheriff, without suit, and his receipt therefor shall be a sufficient discharge accordingly. § 152. — The sheriff may deliver any of the property attached to the defendant, or to any other person claiming it, upon his giving a ■written undertaking therefor, executed by two or more sufficient sureties, engaging to redeliver it, or pay the value thereof to the sheriff, to whom execution upon a judgment obtained by the plaintiff in that action may be issued. § 1.53. — If an action be brought upon such vmdertaking against the principal or his sureties, it shall be a defense that the property for which the imdertaking was given, did not, at the execution of the ■writ of attachment, belong to the defendant against whom it was issued. § 154. — If any personal property attached be claimed by a third person as his property, the sheriff may summon a jury to try the validity of such claim, and OREGON. 657 the same proceedings shall be had thereon, with the like effect, as in cases of seiz- ure upon execution. § 1-55. — If judgment be recovered by the plaintiff, and execution issue thereon, the sheriff shall apply the jiroperty attached by him, or the proceeds thereof, upon the execution, and if there be any of such property or proceeds remaining after satisfjing such execution, he shall, upon demand, deliver the same to the defendant. § 156. — If judgment be not recovered by the plaintiff, all the property attached, or the proceeds thereof, or the undertaking therefor, shall be returned to the defendant, upon his serving u^oon the sheriff a certified copy of the order discharg- ing the attachment. § 157. — ^\Tienever the defendant shall have appeared in the action, he may apply, upon notice to the plaintiff, to the court or judge where the action is x^end- ing, or to the clerk of such court, for an order to discharge the attachment upon the execution of the undertaking mentioned iu the next section; and if the aijpli- cation bo allowed, all the proceeds of sales, and property remaining in his hands, shall be released from the attacliment and delivered to the defendant, upon his serving a certified copy of the order on the sheriff. § 153. — Upon such application, the defendant shall deliver to the court or judge to whom the application is made, an undertaking executed by one or more sureties, resident householders or freeholders of this state, to the effect that the sureties wiU pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action. If the plaintiff demand it, the sureties shall be required to justifj' in the same manner as bail uj^on an arrest. § 159. — The defendant may, at any time before judgment, except where the cause of attachment and the cause of action are the same, apply to the court or judge thereof, where the action is pending, to discharge the attachment, in the manner and with the effect as provided in sections 128 and 129, for the discharge of a defendant from arrest. § 160. — When the -writ of attachment shall be fully executed or discharged, the sheriff shall return the same, with his proceedings indorsed thereon, to the clerk of the court where the action was commenced. § IGl. —The order provided for in section 150, shall require such person or officer to appear before such court or judge at a time and place therein stated. In the proceedings thereafter upon such order, such person or association, or corporation, shall be known as the garnishee. § 162. — After the allowance of the order, and before such garnishee or officer thereof, shall be thereby required to appear, or mthin a time to b^sjiecified in the order, the plaintiff may serve upon such garnishee or officer thereof, wi-itten allegations and intei-rogatories touching any of the property liable to attachment, as the property of the defendant, as provided in subdivision .3 of section 147, and to which such garnishee or officer thereof is required to give a certificate as x^ro- vided in section 150. § 163. — On the day when the garnishee or officer thereof shall be required to appear before the coiart or judge thereof, he shall return the allegations and inter- rogatories of the plaintiff, to the court or judge, with his written answer thereto, unless for good cause shown, a further time be allowed. Such answer shall be on oath, and shall contain a full and direct response to all the allegations and inter- rogatories. § 164. — If the garnishee or officer thereof fail to answer, the court or judge thereof, on motion of the lolaintiff, may compel him to do so, or the plaintiff may, at any time after the entry of judgment against the defendant in the action, have judgment against the garnishee for want of such answer. In no case shall judg- ment be given against the garnishee for a greater amount than the judgment against the defendant in the action. § 165. —The plaintiff may except to the answer of the garnishee or officer thereof for insufficiency, within such time as may he prescribed or allowed, and if the same be adjudged insufficient, such garnishee or officer may be allowed to ament'aohed thereby; and (3d_) that if any person indebted to the defendant in the attachment, or having possession of any of his property, shall bona fide pay the said debt, or deliver the said ]H-0)ierty to the said defendant, without notice or knowledge of the attachment, he shall not be liable to pay or deliver the same to the trustees; and (4th) that the wife and family (if any) of such debtor shall be en- titled to retain for their o^vn use such articles as may by law be exempted from levy and sale upon execution. § 25. — The trustees aforesaid may summon before them, and examine upon oath or affirmation, which they are hereby authorized to administer, and by interroga- tories or other^vise, all jiersons residing within the county, supposed to bs indebted to the defendant, and such other persons, residing as aforesaid, as they shall think fit, touching the real or personal estate of the defendant, and such other things as may tend to disclose their estates, or their secret grants or alienation of their efifects. § 2G. — If any person summoned to attend before the trustees as aforesaid shall refuse to attend, or shall refuse to be sworn or affirmed, or to make answers to such questions or interrogatories as shall be administered to him by or on behalf of the said trustees, it shall be lawful for the said trustees to commit such person to the jirison of the county, there to be detained until he shall submit to be examined as aforesaid. § 27. — Provided , that any person arrested or detained by virtue of any such warrant may be enlarged upon bail given, with contUtion that he shall appear at the next court of common pleas, to be holden for such county, then and there to answer all such interrogatories as shall be exhibited to him, under the direction of such court, and abide all orders which shall be made by such cotu-t on behalf of the said trustees. § 28. — The like proceedings also may be had, in case any person having books, papers, vouchers, or effects belonging to the defendant in the attachment, and discovered by the trustees, subsequent to the attachment executed as aforesaid, shall refuse to deliver the same to the said trustees, upon being legally required thereto. § 29. — If any garnishee or other person, having possession of the effects of the defendant in the attachment, or having knowledge of the same, or being indebted to the defendant, shall reside in another countv, it shall be lawful for the trustees to exhibit interrogatori'^s, in writing, to such person, in the manner authorized by law in the case c.f foreign attachment, and thereupon, the court of common pleas of the county in which such jierson shall reside shall have power to compel such person to answer thereto, in like manner as in the case of a foreign attachment is- sued out of such court. § 30. — It shall be lawful for the said trustees, by warrants, under their hands and seals, to cause to be broken open, in the day-time, houses, chambers, shops, stores, or warehouses of the defendant, or any doora therein, and any trunks or chests of the defendant, in which his goods and effects, books of account or jjapers relating to his estate, shall be, or shall be reputed to be, and to seize the same for the benefit of his creditors. § 31. — If the defendant in any attachment as aforesaid shall, prior to the issuing thereof, have conveyed or transferred any part of his real or personal estate to his wife and children, or either of them, or to any person in trust for them, or either of them, or shall have conveyed or transferred the same to any other person, with intent to defraud his creditors, the trustees aforesaid shall have power to recover and dispose of the same, as fully and effectually as if the said defend- ant had been actually seized or j)ossessed thereof at the time of the attachment. §32. — If the defendant in the said attachment shall have conveyed or trans- ferred any of his real or personal estate unto any person, upon condition or power of redemption, by i^ajnuent of money?or otherwise, it shall be lawful for the trus- tees to make tender of money, or other performance, according to the nature of such condition, as fully as the said defendant might have done; and after such per- formance or tender, the said trusteed shall have power to sell, or otherwise dispose of, the said real or personal estate, for the benefit of the creditors, in the manner herein provided. 664 PENNSYLVANIA. § 33. — It shall be lawful for the said trustees, at any time after the term next succeedinpr that to which the writ was returnable, to make public sale and assur- ance of all the goods and chattels of the defendant, and of his real estate, at any term after the third term succeeding that to which the original 'WTit was retum- ablo, and to £rrant and assign or otherwise to order and dispose of, for the benefit of the creditors, all or anj'of the debts due or to become due to the defendant; and every such sale, grant, assurance, or other disposition shall be good and va'M in law against the said defendant and his legal representatives, and shall vest all the right, title, and interest of the defendant in the piu-chaser, grantee, or per:5 on to whom the same shall have been disposed of, so that such pm-chaser, gTantee, or other person may sue for and recover any such i^roperty or debts, in his own name, and to his own use; and after such grant, assignment, or other disposition of such debts, neither the said defendant nor any other to whom such debts shall be due shall have power to recover, release, or discharge the same. § 34. — Provided^ that before making sale of any of the real or personal estate of the defendant as aforesaid, it shall be the duty of the trustees to give at least ten days' notice thereof, in the manner practiced in the case of sales Ijy sheriffs, upon execution: And provided also, that the said trustees may, at any time after their appointment, make sale of any perishable goods, upon leave of the court, or of a judge, granted in the manner hereinbefore provided. OF THE DISTRIBUTION AMONG THE CREDITORS. § 35. —At some time after the expiration of six months from the first public no- tice given, as hereinbefore provided, the trustees, having previously given public notice of the time and place fixed by them for the purpose, shall proceed to receive the proofs of the several creditors, and shall detennine upon the same, and having stated their accounts, and ascertained the proportionate sum payable to each cred- itor, shall file their report of the same, in the office of the prothonotary of the court out of which the attachment was issued. § 33. — It shall be the duty of such prothonotary to give public notice of the filing of such report, by advertisement, in the manner directed by law in the case of the accounts of asngnee3 under a voluntary assignment; and at the next stated ' term of the court, after the filing of the report, if exceptions shall not b? pre- sented at such time as may be du-ected by the rules of such court, the report may be confirmed by the- comts, and the trustees shall thereupon make roceed by scire facias against the garnishee, and execution against the estate and effects attached, as in other cases of attach- ment, except that a recognizance to restore as aforesaid shall not be necessary. PROCEEDINGS ON ATTACHMENT OF REAL ESTATE. § 29. — In every case of a writ of attachment executed upon land, which shall have been demised for years or otherwise, with a reservation of rent, the delivery of a copy of the writ of attachment to the tenant, as hereinbefore proviiled, shall have the effect of seciuestering, in the hands of the tenant, all such sums or amoimt of rent as shall be due at the time of the execution of the writ, or that shall ac- crue until the execution against the garnishee, unless the attachment be sooner dissolved. § 30. — It shall be lawful for the court, at any time after the return of the at- tachment, on application by the plaintiff and affidavit of a just cause of action, to issue a wi-it to the sheriff, reqioiring him to collect and recover from the tenant <-f the premises all such rent as 4hall have accrued at the time of the execution of the writ of attachment, or as may accrue thereafter, until the further order of the court. § 31. — The sheriff or other officer shall, by virtue of such writ, proceed, from time to time, to recover such rents, in like manner and with the like powers as are or shall be possessed by a landlord under the laws of this commonwealth, and it shall be his duty, forthwith, on the receipt of any moneys arising from the recovery of such rents, to bring the same into court. §32. — After judgment obtained on a scire facias sugainst such tenant as gar- nishee, it shall be lawfid for the plaintiff to have execution, as hereinbeiv^re pro- vided, if the rents of the premises, or any part thereof, shall have remained in the hands of such tenant; or if such rents or any part thereof shall have been paid into court as aforesaid, then, upon award of execution as aforesaid, the plaintiff may have such money paid into his hands, on his giving security as herein provided. PENNSYLVANIA. 669 § 33. — If tLe rents and profits of the real estate as aforesaid shall not be suffi- cient to satisfy the umount of the judgment, witli the interest, coh'ts, and charyes as aforesaid, the plaintiff, on giving security to restore as aforesaid, niaj^ have a writ oijicri fuciaa, upon which tlie like proceedings may be had for the condemna- tion and sale of real estate as in other cases. § 34. — After the execution of any writ of foreign attachment upon the lands and tenements of the defendant, or upon lands held by the lien of any judgment or mortgage owned by the defendant, as provided in the third section of this act, it shaJl be lawful for any court, if in session, or any judge in vacation, upon petition and afiidavit, in the usual form, of the plaintiff, or some one in his behalf, to award and allow a writ of cstrcpcmcnt to stay waste upon all such lands and tenements, as in other cases. PROCEEDINGS WHERE ONE OF SEVERAL DEFENDANTS IS LIABLE TO AN ATTACHMENT. §35.— In all cases where two or more persons irhall be jointly, but not sev- erally, liable to the suit of another, if one or more of such persons shall be liable to process of attachment as aforesaid, and another or others of them sliall not bo lia- ble to such process, it shall be lawful for the person to whom such liability is due to sue out and prosecute thereon a WTit of attachment and summons, in the fol- lowing form, to wit: [L. S.] ■ county, ss. The commonwealth of Pennsylvania: To the sheriff of said county, greeting: We command you, that you summon , so that they and every of tliem be and appear before our court of , to be holden at , in and for the said county, on the day of next, there to answer of a [setting forth briefly the cause of action or complaint as in the prwcipc], and that you attach , late of your county, by all and singu- lar his goods anil chattels, in whose hands or possession soever the same may be found; and also that you summon the person and persons, and every of them, in whose hands the goods or effects, or any of them, of the said may lie found, so that they be and appear before the said court, at the day and x)lace aforesaid, to answer what shall be objected to them, and abide the judgment of the court in the premises, and have you then there this writ. Witness, etc. § 3G. — The plaintiff in such writ shall be entitled to proceed thereon against the defendants named in tlio clause of summons [or c','_pi«.s-J, in like manner, and with lUve effect, as if one writ of summons [or cipias] had been issued against all the defendants, insteatl of a writ in the form aforesaid; and he shall also be entitled to proceed against the defendants named in the clause of attachment, and their estate or effects, seized or bound thereby, in the manner hereinbefore provided where all the defendants in such writ are attached. § 37. — If a judgment be rendered against the defendants who shall have ap- peared as aforesaid, execution thereof may Ite had, in like manner as in the case of a judgment rendered upon the confession of the defendant; and if such defendants have nothing, or not sufficient whereof to levy such judgment, it shall be lawful for the i^laintiff to levy his judgment, or the residue thereof, of the goods and ef- fects which may remain, subject to the attachment, jDrocceding therein in all re- spects in the manner hereinbefore provided, where none of the defendants enter bail as aforesaid. § 38. — Provided, nevertheless, that the court may, if they see cause, award exe- cution of the whole or any part of such judgment against the goods or effects of the defendants attached, in the first instance, saving, nevertheless, to all the de- fendants, their respective rights and claims against each other in that behalf. § 39.— If any of such defendants against whom a summons [or capias] shall is- sue as aforesaid shall jjlead any plea in bar of the whole action, in the manner and form in which it is brought, and a verdict and judgment absolute thereon be ren- dered for such defendant, the attachment against the other defendant shall, upon the motion of any p)erson interested, be dissolved, and the goods and effects thereby bound shall be discharged, unless the i^laintiff shall, within a year and a day there- after, sue out and prosecute a writ of error to reverse such judgment; and in the meantime, and until such judgment be reversed, no further proceediuga '.. :.ll l^e had upon any judgment which may have been rendered against any defendant attached. Attachment against vessels — Page 95, sees. 11-25. Estate of convicts — Page 278, sees. 1, 2. Exemptions— Page 030, sec. 20; p. C38, sees. 27, 28; p. 521, sec. 24; Stats. 1876, p. 171; btats. 1883, p. 34, 670 RHODE ISLAND. Execution attachment— Page 639, sees. 29-43. Justices of the peace— Page 8GG, sees. 114-118, and Stats. 1874, p. 123. Foreign attachment, justices of the peace — Page 857, sees. 76-84; Stats. 123, sees. 1-4. In orphans' court— Page 1106, sees. 29-39; Stats. 1873, p. 49. Executors — Stats. 1873, p. 37. Attachment of goods in hands of bailees — Stats. 1874, p. 285. Sheriiis to have interpleader in foreign attachment — Stats. 188], p. 106. 1874, RHODE ISLAND, [Public Statutes, 1882.] CHAPTER 206. WRITS OF ATTACHMEXT. § 12. — An original writ commanding the attachment of the real or personal estate of the defendant, including his personal estate in the hands or possession of another person as trustee of the defendant, and his stock or shares in any banking association or other incorporated company, may be issued from the supreme com^, cornet of common pleas, or any justice comrt, whenever the plaintiff in the action to be commenced by such writ, his agent or attorney, shall make affida\dt to be in- dorsed thereon or annexed thereto, that the plaintiff has a just claim against the defendant that is due, upon which the plaintiff expects to recover in such action a sum sufficient to give jurisdiction to the court to which such writ is returnable, and also, either that the defendant is an incorporated company estabhshed out of the state, or that he resides out of the state, or that he has left the state, and is not expected by the affiant to return within the same in season to be served with process returnable to the next term of such court, or that the defendant or some one of the defendants has committed fraud in contracting the debt upon which the action was founded, or in the concealment of his property or in the disposition thereof, or that since the contracting of such debt the defendant has been the owner of property or in the receipt of an income which he has refused or neglected to apply towards the payment thereof, though requested by the plaintiff so to do. § 13. — An original writ of attachment, issued from the supreme court or court of common pleas, shall be substantially in the following form: The State of Rhode Island and Providence Plantations. [seal.] sc. To the sheriffs of our several counties or to their deputies, greet- ing: We command you to attach the goods and chattels and real estate of of , and them in safe custody keep, and also to attach the personal estate of the eaid , in the hands or possession of of , as trustee of the said , and also to attach his stock or shares in any banking association or incorporated com- pany to the value of dollars, and to summon the said to answer the com- plaint of at the next court to be holden at , within and for the said county of , on the Monday of next ensuing the date hereof, in an action of , as by declaration to be filed in court will be fully set forth; to the damage of the plaintiff dollars. Hereof fail not, and make true return of this wi-it Avith your doings thereon. Witness, Hon. , chief justice of oior supreme court, at , this day of , in the year of . , Clerk. § 14. — An original writ of attachment, issued from a justice's court, shall be substantially in the following form: The State of PJiodc Island and Providence Plantations. [seal.] sc. To the sheriff of the county of , his deputies, or to either of the town sergeants or constables in the county of , greeting: We command you to attach the goods and chattels of of and them in safe custody keep, and also to attach his personal estate in the hands or possession of of • , as the trustee of the said ; and also to attach his stock or shares ja RHODE ISLAND. 671 any banking association or incorporated company to the value of dollars, and to summon the said to answer. [The remainder as in a writ of sum- mons.] WKITS OF MESNE PROCESS. § 1.5. — Whenever an action has been commenced by an original writ of sum- mons, the plaintiff therein may, at any time before final judgment in such action, sue out of the court to which such original writ was returnable a vait of mesne process commanding the arrest of the defendant, or a writ of mesne process com- manding the attachment of his goods and chattels and real estate, and of his stock or shares in any banking association or other incorporated company, and of his personal estate in the hands or possession of any person, copartnership, or corpora- tion, as the trustee of the defendant, upon such plaintiff, his agent or attorney, making an affidavit to be indorsed on or annexed to such writ setting forth facts which would have authorized such arrest or attachment upon the original writ in such action had such affidavit then been made. Such writ of mesne process shall conform as nearly as may be to an original writ commanding an arrest or attach- ment, and shall be made returnable forthwith. § IG. — Whenever a writ of attachment can be issued by any court, it may com- mand the attachment of the goods and chattels of the defendant and his real estate and his personal estate in the hands of another person as his trustee, and his stock or shares in any banking association or incorporated company, and may be varied so as to command the attachment of one or more of such classes of property of the defendant. § 17. — Writs of replevin and scire facias shall be substantially in the following form: WRIT OF REPLEVIN. The State of Rhode Island and Providence Plantations. [sE.VL.] sc. To the sheriffs of our several counties and to their deputies, greeting: We command you, that you replevy, if to be found within your pre- cinct, the goods and chattels following, viz. : [here enumerate and particularly de- scribe them]: belonging to of , now taken [detained or attached, as the case may be] by of , at , in the county of , and them deliver unto the said , provided the same are not taken, attached, or de- tained upon original writ, mesne i^rocess, warrant of distress, or upon e.xecution as the property of the said , and summon the said , that he appear be- fore oiu" court next to be holden at , within and for the county of . on the Monday of , to answer unto the said in a plea of replevin; that the said , on the day of , at said , un- lawfully, and without justifiable cause, took the goods and chattels of the said as aforesaid, and them unlawfully detained unto this day [or unlawfully de- tained the goods and chattels aforesaid, as the case may be], to the damage of the said , as he says, dollars. Hereof fail not, and make true return of this writ with your doings thereon, together with the bond you shaU take of the plaintiff. Witness, Hon. , chief justice of our supreme com-t, at , this day of , in the year . , Clerk. WRIT OF SCIRE FACIAS. The State of Rhode Island and Providence Plantations. [SE.VL.] sc. To the sheriffs of oiu* several counties and to their deputies, greeting: Whereas, of , by the consideration of the court, holden at , in said county, on the day of , recovered judgment against ■ of , for the smn of dollars and cents, and costs taxed at , as appears of record, and execution thereof remains to be clone: We command you, theretore, to summon the said to appear before the court , to be holden at , in said county of , on the • day of , to show cause, if any he has, why the said should not have execution against for the sums aforesaid. Hereof fail not, and make true return of this writ with your doings thereon. Witness, Hon. , chief justice of ovu" supreme court, at , this day of •, in the year . , Clerk. § 18. — The form of a writ of scire facias may be varied from the above to adapt it to service by arrest or attachment. § 19. — Whenever an original writ shall issue against more than one defendant, the forms hereinbefore given may be altered so as to combine the \\Tit of arrest. G72 RHODE ISLAND. the writ of summons and the ■writ of attachment, in order that the same may be served on one or more of the defendants by one form of service and on the other or others bj^ another form of service. § 22. — Real estate shall not be attached upon an original writ or writ of mesne process issued by a justice court. § 29. — Every person who shall willfully swear falsely to any statement in an afi&davit made by him, by means of which affidavit a writ of arrest or attachment shall have issued and which shall have been served by arrest or attachment, shall be deemed guilty of perjury. CHAPTER 207. SERVICE OP WRITS OF ATTACHMENT. § 12. — The officer commanded by any original writ or writ of mesne process to attach real estate or the right, title and interest of any defendant therein, shall at- tach the same by leaving an attested copy of such writ, with a copy of his doings thereon, with the town clerk of the to'wni in which such real estate shall be situ- ated, unless such real estate shall be situated in the city of Providence, in which case he shall leave such copy with the recorder of deeds of said city, and the said recorder of deeds shall note upon such copy the time, as neai' as may be, when the same was left with him, and shall also enter in a book, to be kept by him for that pinrpose, the names of the i^arties in such writ, the amount of the damages claimed, the time when such copy was left with him, and the court and term to which such writ is returnable, and shall be entitled to demand and receive from such officer a fee of twentj'-five cents in each case; and such officer shall in all cases also leave an attested copy of such writ, with a general reference thereon to the real estate at- tached therein', together with a statement of the date and time of day of such attachment, vrith the defendant personally or with some person at his last and usual place of abode, if any he have, within the precinct of the officer, or if he have none, then such officer shall send such copy by mail to such defendant, if his address be known to or can be ascertained by such officer, and shall also in the last-named event leave a like copy with the person, if any, in possession of such real estate. § 13. — Whenever an original writ or writ of mesne process shall command the officer to whom the same is directed to attach the goods and chattels of a defend- ant, such officer shall attach the same to the value commanded in the writ, if so much can be found by him, and may attach any less value, if the plaintiff or his attornej^ shall give order therefor on such ^vrit. § 14. — The officer making such attachment shall serve the defendant, as soon as may be, with an attested copy of such wi-it, having indorsed thereon a general ref- erence to the class or kind of good.? and chattels so attached, together \vith a state- ment of the place in which they were found, and of the date and time of day of such attachment, by delivering such copj'' to the defendant, if he can be found by such officer within his precinct, or by leaving the same with some person at the last and usual place of abode of the defendant; or if he have none within the pre- cinct of such officer, by sending such copy by mail to such defendant, if his ad- dress be kno^vn or can be ascertained by such officer, and in the last-named event by leaving such copy ^vith some i^erson, if any there be, in laossession of such goods and chattels at the time of their attachment. § 15. — Such officer shall keep the goods and chattels so attached in his custody, as security to satisfy such judgment as the plaintiff may obtain, until by due process of law either he shall sell the same or they shall be withdrawn from his custody. § IG.^The defendant in any writ upon which goods and chattels shall have been attached may, at any time within forty-eight hours, exclusive of Simday, after such attachment, deliver to such officer a bond in the x^enal sum of the amount of damages laid in the writ, signed by the defendant or some one in his behalf, %vith sureties to the satisfaction of such officer, with a condition therein that the same shall be null and void if the final judgment in the action in which such writ was served shall be forthwith paid and satisfied after the rendition thereof. § 17. — If the defendant in such writ shall deem the damages laid therein ex- cessive, he may, before giving such bond, complain in writing to any justice of the court from which such ■«Tit issued, requesting their reduction, anil such justice may, after due notice to the plaintiff in such writ, or to his attorney, and upon RHODE ISLAND. 673 cause stown, reduce such damages, and the amount so fixed shall be the penal sum ill such bond. § 18. — Upon accepting a bond given to satisfy a judgment as herein required, such officer shall lodge the same with the clerk of the court, if there be a clerk, otherwise Avith the justice of the court to which the writ in such action shall be re- turnable, and shall forthwith surrender the goods and chattels attached by him to the person whose interest therein shall have been attached, or from whose posses- sion the same were taken by virtue of such writ. § 19. — If the defendant in such writ shall not, within the time required, either give such bond or a bond for the value of the goods and chattels attached, in the manner by law jjrovided, such officer shall make an inventory of the goods and chattels by him attached upon such writ, and return the same as a part of his doings in his return upon such. § 20. — Every officer having goods and chattels attached by him in his custody shall suiTender the same at any time after such attachment and before final judg- ment to the person whose interest therein has been attached, or from whose posses- sion they have been taken, upon being tendered a bond by the defendant, or some one in his behalf, with sufficient sureties to the satisfaction of such officer in double the value of the goods and chattels so attached, or in the penal sum of the amount of damages laid in said writ, with condition that such bond shall be null and void if at any time after final judgment in the action in which such attachment shall have been rendered, such goods and chattels shall upon request therefor be, in as good order and condition as when surrendered, returned to the officer taking such bond, or to any oflSicer who shall be charged with the service of an execution levied upon the judgment rendered in such action, unless such judgment shall have been paid, or shall be immediately paid, together with the costs upon such execution,, upon the making of such request, or the return of such goods and chattels. § 21. — If the defendant in any vsrrit shall deem the damages laid therein exces- sive, or if the property, either real or personal, held under any attachment, shall greatly exceed in value the amount of the damages laid in such writ, such defend- ant maj', at any time before final judgment, complain, in writing, to any justice of the court from which such writ issued, requesting the reduction of the amount of" such damages or a release of a portion of the property attached, and such justice may, after due notice to the plaintiff in such writ or to his attorney, and upon cause- shown, order such damages to be reduced or a part of the property attached to be released, and thereafter the attachment shall be deemed to be reduced or partially released, according to such order. § 22. — Whenever a writ shall command the attachment of the shares of the de- fendant in any corporation, or of his personal estate in the hands of any person,, copartnership or corporation as trustee, it shall be served by leaving an attested copy thereof, having indorsed thereon the date and time of day of such service, with the person or some member of the copartnership named in such writ as trus- tee, or if such trustee or the corporation whose shares shall be directed to be at- tached shall be a bank, with the cashier thereof; if an insiu-ance company, with the president or secretary thereof; and if any other coi-poration, it shall be served by leaving an attested copy thereof at the manufactory where the person is em- ployed whose wages are to be trusteed, or at the usual place where the payment of said wages is made, upon the treasurer thereof or the person executing the duties of treasurer thereof or the agent or superintendent thereof, or at the office of such corporation with some person there employed, and such officer shall also leave an attested copy of such writ so indorsed with the defendant or at his last and usual place of abode, or if he have none within the precinct of such officer, the latter shall send such copy to the defendant by mail, if his address is known to or can be ascer- tained by such officer. § 23. — Whenever any writ of attachment shall be duly served upon the defend- ant by any officer properly charged with the service thereof either by readingthe same in the presence and hearing of such defendant or by giving him a certified copy thereof in hand or by leaving such copy at his last and usual place of abode, such service shall be sufficient to bring the cause of action upon which said writ shall have been issued to trial upon its merits, whether any valid attachment of l^roperty shall have been made upon said writ or not. § 24. — If the property attached be in one county, and the defendant be or have his usual place of abode in another county, the attachment may be made by any E roper officer of the county where the property is situated, and the defendant may e summoned by any such officer of any other county where the defendant may be found or may have his usual place of abode: Provided, that the officer making th© U Attachmeui— IS. 674 RHODE ISLAND. attachment shall not be required to send a copy of the writ by mail to the address of the defendant in case the summons shall Le served as by law provided. § 25. — After the making of any attachment of property upon any such writ of attachment, sulisequent attachments of other property oJf the defendant may be made by any projier officer at any time before the defendant Ls served with the said writ, and if need be, the plaintiff may amend his writ for the purpose of having Buch subsequent attachment made. § 26. — If no property shall have been attached on any writ of attachment, no costs of service of the writ of attachment shall be taxed against the defendant. SEBVICE UPON NON-RESIDENT GUARDIANS, ADMINISTRATORS AND EXECUTORS. § 27.— Service of any process at law or in equity may be made by any disinter- ested person upon any non-resident guardian, executor or administrator appointed or approved by any court of probate of the state, by reading such process to him or by leaving an attested copy thereof with him or with, some person at his last and usual place of abode. GENERAL PROVISIONS RELATING TO SERVICE BY ATTACHMENT, § 28.^The officer to whom a writ of attachment shall be directed, commanding therein the attachment of different kinds of property, shall be entitled to charge for only one attested copy of such writ for any one person with whom such copy is required to be left. § 29. — Such officer shall give to any defendant, his agent or attorney, or any other person interested in any action in which a writ of attachment shall have been served, upon his request, an attested copy thereof with his doings thereon, upon being paid therefor a fee of twenty cents for every page of two hundred words of BUch copy. § 30. — The officer who shall make any such attachment shall, in his return, set forth the time of the day when such attachment was made, to the end that the priority of attachment may be known. § 31. — Nothing herein contained shall be so construed as to destroy or impair any lien or claim of any person or body corporate upon any stock or shares at- tached under the pirovisions of this chapter. § 32. — In case any officer shall distrain for taxes, or by any warrant of distress whatsoever, the goods and chattels of any person, he shall proceed in the same manner and be holden to the same rules as hereinbefore directed in attachments in ■civil actions. § 33. — In all actions at law or in equity against the owners of telegraph and telephone lines residing out of the state, the leaving of a certified copy of the proc- ess, including the process of garnishment by the proper officer, at any office of said owner.s, within the state, with some person there in charge, shall be deemed a legal and sufficient service. § 34. — No civil process whatsoever shall be served on Sunday, but every such. . service shall be utterly void. CHAPTER 208. CERTAIN PROVISIONS CONCERNING ATTACHMENTS. § 1. — In all attachments of real estate, or of goods and chattels, or of personal estate in the hands of, a trustee, or of stock or shares in any banking association or other incorporated company, he who shall first procure any such attachment to be made for any just debt or damages shall be entitled to have his debt or damages satisfied before any other demand for which the same shall be attached or taken by ■execution at the suit of any other person, and all others in order of attachment. § 2. — Whenever any officer shall attach on an original writ any live animals or any goods or chattels which are liable to perish or waste, or to l^e greatly reduced in value by keeping, or which cannot be kept without great and disproportionate expense, the court in which the same shall be pending in term time, or any justice thereof in vacation, or the trial justice of any justice court in which such •ni-it shall be pending, may, on the written application of any person interested in such prop- erty, cause the defendant and the attaching creditor, their attorneys or agents, to be notified to appear at a time and place appointed for that purpose, to show causa why the same should not be sold. RHODE ISLAND. 675 § 3. — If, after reasonable notice, no person appear, or no sufficient cause to the contrary be shown, the court or justice may direct the officer to sell the same, in the manner jirescribed by law for selling goods and chattels on execiition; and such officer shall bold the proceeds of such sales, after deducting therefrom the necessary- charges thereof, as secm-ity to satisfy such judgment as the attaching creditor may recover, in the same manner as if he held the property itself. § 4. — Personal estate, when mortgaged and in the possession of the mortgagor, and while the same is redeemable at law or in equity, may be attached on mesne process against the mortgagor, in the same manner as his other personal estate. § 5. — When attached, such mortgaged estate may be sold, upon the application of the mortgagee or of either of the parties to the suit, in the manner provided for the sale of perishable goods and chattels when attached on mesne process. § 6. — Upon any such sale, the attaching officer shall ffi:st apply so much of the proceeds of the sale as may be necessary to pay the amount for which the said prop- erty was mortgaged, with such deduction for interest for the anticipated payment, or allowance for damages for such anticipated payment, as may be allowed by the court or judge directing the sale; and the officer shall hold only the balance for the purposes of the attachment. § 7. — The plaintiff in any such attachment may redeem the mortgaged estate in the same manner as the mortgagor might have done, and in case of such redemp- tion the plaintiff shall have the same lien on the property for the amount paid by him, with interest, as the mortgagee had. § S.^If the mortgage be not redeemed by the plaintiff or sold as before men- tioned before the redemption expires, the attachment shall become void. I 9. — Whenever any banking association or incorporated company shall be served with a copy of a writ attaching its stock or shares, if a bank the cashier thereof, if an insm-ance company the president or secretary thereof, and if any other corporation the treasurer thereof or person executing the duties of treasurer, shall render an account upon oath to the com-t to which such writ shall be return- able of what stock or shares the defendant had in such company at the time of serving such writ. § 10. — The person, member of the copartnership or officer of the coi-poration with whom a copy of a writ .shall have been left for the pmrpose of attachmg the personal estate of the defendant in the hands or possession of such person, ct)part- nership or corporation, as trustee, shall render an account, in writing, upon oath, to the covu-t to which such writ is returnable, of what estate such person, copart- nership or corporation had in his hands or possession at the time such writ was served, if any, or if he had none either directly or indirectly, shall retiu:n such fact in writing, under oath, to such court. § 11.— The disclosure made by virtue of either of the two preceding sections shall be sworn to before any person authorized to administer oaths, and shall be filed with the clerk of the court, if there be a clerk, otherwise with the court to which such writ shall be returnable. § 12. — Either party may examine the person so making oath, upon vsritten in- terrogatories, to be filed with such clerk, or court, if there be no clerk, and such per- son, after having been furnished with a copy of such interrogatories, shall answer the same responsively in -m-iting, imder oath administered as aforesaid, and shall return tlie answer to such clerk, or to such court, if there be no clerk, at such time as such coiu-t shall by general rule or by special order in such case direct. § 13.— If it shall appear by the disclosure of the person making such oath that the person, copartnershiii or corporation served with a copy of such -writ had at the time of service thereof any of the personal estate of the defendant in his or their hands, then and in such case the plaintiff, after having recovered judgment against such defendant, may bring his action against such person, copartnership or corpo- ration to recover so much as will satisfy such judgment, with interest and costs, _ if there shall appear by such disclosure to be a sufficiency for the same, otherwise for so much as shall appear by the same to be in his hands. § 14. — Whenever it shaU appear that several persons, copartnerships or corpo- rations had property of the defendant as such trustee, the plaintiff may sue each separately and recover the amoimt in his hands, until such plaintiff shall receive full payment of his judgement against the original defendant, with interest and costs. § 15.— Any trustee, after final judgment against the defendant, may satisfy such judgment or any part thereof, to the amount of the estate attached in hia 676 RHODE ISLAND. hands, before any suit shall be brought against him therefor, and such payment shall avail for his discharge, as against both plaintiff and defendant, for the amount thereof. § 16. — If it shall appear by the disclosure that the personal estate in the hands of the trustee belonging to the defendant did not consist of monej-, but of one or more specific articles, such trustee may, after final judgment shall have been ren- dered against the defendant, surrender or deliver to the officer charged with the execution issued on such judgment such specific articles, that the same may be taken on such execution. § 17. —Such surrender or delivery shall be a good discharge to the trustee for Buch articles, as to both plaintiff and defendant iu the action. § 18. — If any person, copartnership or corporation, after being served as trustee with a copy of any writ, and after having been tendered at the time of such serv- ice two dollars and his traveling fees as a witness in the supreme court or court of common pleas, and one dollar and like traveling fees in any other court, shall re- fuse or neglect to render such an account on oath as aforesaid, of what personal estate of the defendant he had in his hands at the time of the service of such copy, such trustee shall be liable to satisfy the judgment that the plaintiff shall obtain against the defendant in such writ, to be recovered by action on the case, except as provided in section twenty-two, chapter two hiindred twenty-two. § 19. — If several trustees shall neglect or refuse to render an account upon oath in the same case, then the plaintiff shall bring his action against all such trustees jointly, and in no other manner. § 20. — Every person who shall be served with such copy of a writ against any defendant may file an answer to such action, and defend the suit in behalf and in the name of the defendant. § 21. — If it shall appear by such disclosure that the person, copartnership or corporation who had been served as trastee with a copy of such writ had not any of the personal estate of the defendant in his hands, then such action shall be dis- missed and the person who shall appear to defend the same shall recover his costs, unless the writ has been duly served on the defendant. § 22. — Every person, copartnership or corporation served with a copy of a writ for attaching the estate of another in their hands shall be paid all lawful costs and charges which they shall incur in consequence of their being served mth such writ of attachment by the person who brings the action, and so much of such charge as shall be judged reasonable by the court before whom the cause shall be pending shall be allowed in the bill of costs. § 23. — The word trustee, wherever occurring in this title, shall be deemed to in- clude the words attorney, agent, factor and debtor. CHAPTEE 433. AS ACT IN AMENDSfEXT OF AND IN ADDITION TO CHAPTER TWO HrNDRED AND EIGHT OP THE PUBLIC STATUTES, ENTITLED " OP CEETAIN PROVISIONS CON- CERNING ATTACHMENTS." § 1. — Whenever the personal estate of any defendant is attached on trustee process, any person claiming said personal estate under an assignment or otherwise may, on his owa motion, become a party to the action so far as respects the title to said personal estate. § 2. — The answer sworn to by a trustee shall be considered true in deciding how far such trustee is chargeable; but either party to the suit, or any claimant of the estate so attached, may allege and prove any facts not stated nor denied by said trustee that may be material in so deciding. § 3. — Any question of fact arising upon such additional allegations may be tried and determined by the coiu-t or justice, and in the court of common pleas, and in the supreme court the same may be submitted to a jiiry in such manner as the court shall direct. § 4. — No assignment of future eaxnings hereafter made shall be valid except as between the parties thereto until the ^ame has been recorded in the oflice of the town clerk, or of the recorder of deeds, as the case may be, of the town where the assignor resides, if a resident of this state, ia the oflice of the town clerk or of the SOUTH CAROLINA. G77 recorder of deeds, as the case may be, in the town where said assignor is employed, in a book kept for that pui'pose. [Amended by acts of January, 1884, p. 184, and May, 1884, p. 13.] § 5. — In all cases the costs may be apportioned either for or against the claim- ant in the manner prescribed in section 5 of chapter 217 of the Public Statutes. § 6. — This act shall take effect on and after the first day of July, a. d. 1884. NO. 115. FOBEIGN ATTACHMENT TO ACTIONS EX DELICTO. § 1. — The forty-second section of an act relating to commencement of actions, approved the thirteenth day of June, Anno Domini one thousand eight hundred and thirty-six, is so amended as to allow the issuing of a writ of foreign attach- ment, i)rescribed by the forty-third section of said act, in all cases wherein any person who, being a resident of this commonwealth, shall have removed therefrom, after having become liable in an action ex, delicto. § 2. — But no such writ shall issue in the cases provided by this supplement, ex- cept upon oath or affirmation, previously made by the 25erson having such right of action ex. delicto, or by some one in his behalf, of the truth of the claim and of the facts upon which such attachment shall be founded, as well as that he verily be- lieves that the person has removed to escape service of jarocess to answer for such alleged tort, which oath or affirmation shall be filed of record. § 3.— All the proceedings subsequent to the issue of such writ of foreign attach- ment in the cases aforesaid shall be the same as those provided by the act to which this is a supplementf.&nd the various supplements thereto. § 4. — The remedy provided by this supplement shall be in addition to all other remedies provided by law, in actions ex delicto. [Ajaproved the 15th day of May, A. D. 1874.] Pending appeal — Page 605, sec. 7; p. 606, sec. 12. Execution against goods in hands of trustee, and relief of tmstee —Page 611,. sees. 20-22. Dissolved by assignment — Page 659, sec. 12. Exemptions — Page 541, sec. 29; p. 575. sec. 4; p 755, sec. 69. SOUTH CAROLINA. [General Statutes, 1882; Code of Civil Procedure.] CHAPTER 4. ATTACHMENT. § 248. — In any action arising for the recovery of money or for the recovery of property, whether real or personal, and damages for the wrongful conversion and detention of personal property, or an action for the recovery of damages for injury done to either person or pi-operty, or 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, disj>ose of, or secrete any of his or its property, with intent to defraud creditors, as hereinafter mentioned, the ])laintiff, at the time of issuing the sum- mons, or a)iy time afterward, may have the prox^ei-ty of such defendant or coi-iJO- 678 SOUTH CAROLINA. ration attached, in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the ijlaintiff 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 pub- lication thereof commenced within thirty days. § 249. — A warrant of attachment must be obtained from a judge, or clerk of the court, or trial justice, in which or before whom the action is brought, or from a circuit judge. § 250. — 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 groimds 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 keeps himself concealed therein, with the like intent, or that such corporation 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, disjjosed 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 plaintifif procuring 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 court of common pleas, or with the trial justice, in which, or before whom, the action is to be tried. § 251. — Before issuing the warrant, the judge, clerk, or trial justice shall require a written undertaking, on the part of the plaintiif, with sufficient surety, to the effect that if the defendant recover judgment, or the attachment be set aside by order of the court, the plaintiff will pay aU costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars, except in case of a warrant issued by a trial justice, when it shall be at least twenty -five dollars. § 252. — The warrant shall be directed to any sheriff or constable of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant ■\vithin his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand, together with costs and expenses, the amoimt of which must be stated in conformity with the com- plaint, together with costs and expenses. Several warrants may be issued at the same time to the sheriffs or constables of different counties. § 25.3. — The sheriff or constable to whom such warrant is directed and delivered shall immediately attach all the real estate of such debtor, and all his personal estate, including money and bank-notes, except such real and personal estate as is exempt from attachment, levy, or sale, by the constitution, and shall take into his custody all books of account, vouchers, and papers relating to the property, debts, credits and effects of such debtor, together with all evidences of his title to real estate, which he shall safely keep, to be disposed of as hereinafter directed. When real estate is attached, a true ond attested copy of such attachment, together with a description of the real estate attached, shall be, by the officer serving the same, delivered to the party whose real estate is attached, or left at his last and usual place of abode; and the officer making such service shall also leave a true and attested copy of such attachment, together with a description of the real estate so attached, in the office where, by law, a deed of such estate is required to be recorded; and, if the party whose estate is attached does not reside in this state, then such copy shall be delivered to his tenant, agent, or attorney, if any be known; and if no such agent, tenant, or attorney, be known, then a copy of such warrant of attachment, with the officer's return thereon, lodged iu the office where, by law, a deed of such real estate ought to be recorded, shall be deemed sufficient service. It shall be the duty of the clerk or register of the office wherein said warrant of attachment is required to be lodged, to receive the same, and enter in a book kept for that purpose the names of the parties, the date of the warrant of attachment, the sum demanded, and the officer's return thereon. Said attachment shall be a lien, subject to all prior liens, and bind the real estate at- tached from the date of lodgment: Provided, that all attachments lodged upon the same day shall take rank together. § 254. — He shall, immediately on making such seizure, -with the assistance of two disinterested freeholders, make a just and true inventory of all the property so seized, and of the books, vouchers, and papers taken into custody, stating therein the estimated value of the several articles of personal property, and enu- merating such of them as are perishable, which inventory, after being signed by SOUTH CAROLINA. 679 the sheriff and appraisers, shall, Avithin ten days after such seizure, be returned to the officer who issued the warrant; and the sheriff or constable shall, under the direction of such officer, collect, receive, and take into his possession, all debts, credits, and effects of such debtor, and commence such suits, and take such legal proceedings, either in his own name or in the name of such debtor, as may be nec- essary for that purpose, prosecute and discontinue the same at such times, and on such terms, as the court may direct. The jiroperty so seized, or the proceeds of cuch as shall have been sold and debts collected, shall be kept to answer any judg- ment which may be obtained in such action. § 255.— If any property so seized shall be perishable, or if any jjart of it be claimed by any other jjerson than such defendant, or if any jmrt of it consist 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. If the person in whose possession such i^roperty shall be attached shall appear at the return of the writ and iile his answer thereto, and deny the possession or control of any property belonging to the defendant, or claim the money, lands, goods and chattels, debts and books of account, as creditor in possession, or in his own right, or in right of some third person, then if the plaintiff be satisfied therewith, the party in possession shall be dismissed and the i^laintiff pay the cost of his return. But if the i^laintiff shall contest the said return, an issue shall be made up under the direction of the judge to try the question. And the court shall direct the time and place of trial; and the party that shall prevail in said issue shall recover his full costs of the opposite party, and judgment shall be given accordingly. But if the party in possession reside in a different county from that in which the action. is brought, and an issue be made up between him and the jjlaintiff, the action shall be tried in the county where the party in i^ossession resides. § 256. — The rights or shares which such defendant may have in the stock of any association or corporation, together -with the interest and profits thereon, and all other property in this state of such defendant, except that exempt from attachment by the constitution, shall be liable to be attached and levied upon, and sold to satisfy the judgment and execution. § 257. — The execution of the attachment upon any such rights, shares, or any debts or other property incai^able of manual delivery to the sheriff or constable, 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. § 258. — Whenever the sheriff or constable shall, with a warrant of attachment or execution against the defendant, apjjly to such officer, debtor, or individual, for the purjiose 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 cor- poration, with any dividend or 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 ex- amined on oath concerning the same, and obedience to such order may be enforced by attachment. § 259. — In case judgment be entered for the plaintiff in such action, the sheriff or constable 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 prop- erty, 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 fom- of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his hands; and, m case of the sale of any rights or shares in the stock of a cor- poration or association, the sheriff or constable 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 or constable without having been sold or converted into money, such sheriff or constable shall repossess himself of the same, and for that purpose shall have all the authority which he had to seize the same under the 680 SOUTH CAROLINA. ftttaehment; and any person who shall willfully conceal or withhold such property from the sheriff or constable, 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 or con- stable may proceed to collect the notes and other evidence.^ 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 jjetition of the plaintiff accompanied by an affidavit, setting forth fully all the proceedings which have been had by the sheriff or con- stable since the service of the attachment, the property attached, and the disposi- tion thereof, and also the affidavit of the sheriff or constable that he has used diligence and endeavored to collect the e\ddences of debt in his hands so attached, and that there remains uncollected of the same any i>art or portion thereof, to order the sheriff or constable to sell the same, upon such terms and in such man- ner as shall be deemed proper. jSTotice of such application shall be given to the defendant, or hi^ attorney, if the defendant shall have ajjpeared 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 or constable, upon reasonable demand, shall deliver over to the defendant the residue of the attached property, or the proceeds thereof. § 2G0. — The action.s herein authorized to be brought by the sheriff or constable may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff or constable of an undertaking executed hy two sufacient sure- ties, to the effect that the plaintiff will indemnify the sheriff or constable from aU 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 or constable, 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. § 2G1. — If the foreign corporation, or absent or absconding or concealed defend- ant, recover judgment against the plaintiff in such action, any bond taken by the sheriff or constable, except such as are mentioned in the last section, all the pro- ceeds of sales and moneys collected by him, and all the property attached remain- ing in his hands, shall be delivered by him to the defendant, or his agent, on request, and the wan-ant shall be discharged and the property released therefrom. § 202. — 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 jiroceeds of sales and moneys collected by him, and all the property attached renuuning 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 the 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. § 263. — Upon such application, the defendant shall deliver to the court or officer an undertaking executed by at least two siu-eties, who are resident and freeholders or householders in this state, approved by such court or officer, to the effect that such 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 speci- fied in the imdertaking, which shall be at least double the amount claimed by the plaintiff in his complaint. If it shall appear by affidavit that the pro joerty attached be les3 than the amount claimed by the plaintiff, the court, or officer issuing the attachment, may order the same to be appraised, and the amoimt of the under- taking shall then be double the amount so appraised. And in all cases the defend- ant, or any person who establishes a right to the property attached, may move to discharge the attachment, as in the case of other provisional remedies. And where there is more than one defendant, and the several proi>erty of either of the defendants has been seized by virtue of the order of attachment, the defend- ant whose several property has been seized may deliver to the coiu't or officer an undertaking, in accordance %vith the jirovisions of this section, to the effect that he will, on demand, pay to the plaintiff the amount of judgment that may lie re- covered against sucli defendant. And all the provisions of this section applicable to such undertaking shall be applied thereto. TENNESSEE. 681 § 204.— \^Tien the -warrant shall be fully executed or discharged, the sheriff or con'stal)le shall return the same, with his proceedings thereon, to the court in which the action was brought. Before justices— Sees. 71, 88, 807. In mechanics' liens —Sees. 237(3-2380^ On vessels— Sec. 2392. Exemptions— Public property, sec. 440; homestead, sec. 1994; personal prop- erty, sec. 1999; none for purchase-money, sec. 2001. Costs— Plaintiff's, sec. 2426; guardian's, sec. 329; assignee's, sec 334. TENNESSEE. pMiLLiKEN & Ventree's Code, 1884.] FOR WHAT CAUSES AN ATTACHMENT MAY ISSUE, IN WHOSE FAVOR, BT WHOK GRANTED, AND TO WHAT TRIBUNALS RETURNED. § 4192. — Any person having a debt or demand due at the commencement of an action, or having a claim for damages for a tort; or, a plaintiff, after action for any cause has been brought, and either before or after judgment, may sue out an attach- ment at law or in equity against the profierty of a debtor or defendant in the fol- lowing cases: 1. Where the debtor or defendant resides out of the state. 2. Where he is about to remove, or has removed himself or property from the state. 3. Where he has removed, or is removing himself out of the county privately. 4. Where he conceals himself, so that the ordinary process of law cannot be served upon him. 5. Where he absconds, or is absconding, or concealing himself or property. 6. Where he has fraudulently disposed of, or is about fraudulently to dispose of, his property. 7. Where any person liable for any debt or demand, residing out of the state, dies, leaving property in the state. § 4193. —When the debtor and creditor are both non-residents of this state, and residents of the same state, the creditor shall not have attachment against the property of his debtor unless he swear that the property of the debtor has been fraudulently removed to this state to evade the larocess of law in the state of their domicil or residence. § 4194. — An attachment may, in like manner, be sued out upon debts or demands not due, in any of the cases mentioned in the preceding section except the first, when the debtor or defendant resides out of the state. § 419.5. — Any accommodation indorser or surety may, in like manner, sue out an attachment against the property of his principal, as a secm-ity for his liability, whether the debt on which he is bound be due or not. §4190. — But no final judgment or decree shall be rendered iipon such attach- ment, until the debt or demand upon which it is based becomes due; nor shall any property levied upon thereby be sold, until final judgment or decree, except prop- erty of a perishable natiure, which may be sold as in other attachment cases. §4197. —And the attachment by indorser or surety shall be dischai-ged, if the principal will give bond and security, to be approved by the court, in term-time, or its clerk in vacation, to indemnify the plaintiff. §419S.—Suitsby original attachment may be brought in any com-t, or before any magistrate, having jurisdiction of the cause of action. 682 TENNESSEE. §4199. — Any person may also sue out an attachment in the chancery court, upon debts or demands of a purely legal nature, except causes of action founded on torts, without first having recovered a judgment at law, whenever the amount in controversy is sufficient to give the court juiisdiction. § 4200,— When any non-resident having choses in action, or other property, in this state, is rudebted to another non-resident, who is himself indebted to any per- son, resident or non-resident, such person, without first having recovered a judgment at law, may file a bill in equity, to have such choses in action, or other property, attached, making said non-resident debtors, and the person in possession of such choses in action, or other property, defendants to said bill. § 4201. — Attachments sued out in aid of a suit already brought, shall be made returnable to the court or justice before whom the suit is pending. § 4202. — The attachment may be granted by any judge of the circuit, criminal or special court, by any chancellor or justice of the peace, or by the clerk of the court to which the attachment is made returnable. § 420.3. — In all suits commenced by original attachment in any court of record, or before a justice of the peace, it shall be the duty of the clerk or justice issuing the attachment to issue also, upon application of the plaintiff, a summons against the defendant for the same cause of action; and, if the summons is executed, no publication shall be made, and there shall be no stay of judgment as now required by law in attachment cases where the defendant is made a party by at- tachment and publication only. § 4204.— The summons shall be in the usual form, except that it shall also notify the_ defendant that an original attachment suit has been commenced against him, and it shall be returned to the same court or justice as the attachment. § 420.5. — The process of attachment issues against the property of the defendant wherever the same may be found. § 4206. — The officer granting the attachment may direct, upon proper applica- tion, that counterpart writs of attachment issue to any coimty in which property of the defendant may be found, or such coimterparts may be subsequently applied for and obtained upon good cause shown. §4207. — In any civil action, when the summons has been returned "Not to be found in my county," as to all or any one of the defendants, residents of the county, the platatiff may have an alias and phwies summons for the defendant, or, at lua election, sue out attachment against the estate of such defendant. § 4208. — Upon the return of the attachment levied on any property of the de- fendant, the cause proceeds against such defendant, iu aU respects, as if originally commenced by attachment. § 4209. — Xo judicial attachment shall issue against the estate of any person residing without the limits of the state, unless such process is grounded on an original attachment, or unless the leading process in the suit has been executed on the person of the defendant when within the state. MODE OP SUING OUT ATTACHMENT. § 4210, — In order to obtain an attachment, the plaintiff, his agent or attorney, shall make oath in writing, stating the nature and amount of the debt or demand, and that it is a just claim; and also, that one or more of the causes enumerated in section 4192 exists. § 4211. — It is no objection to the attachment that the bill, affidavit, or attach- ment states in the alternative, or otherwise, more than one of the causes for which attachment may be sued out. § 4212. — The officer to whom application is made shall, before granting the at- tachment, require the plaintiff, his agent, or attorney to execute a bond in double the amoimt claimed to be due, with, sufficient security, payable to the defendant, and conditioned that the plaintiff will prosecute the attachment with effect, or, in case of failure, pay the defendant all costs that may be adjudged against him, and also all such damages as he may sustain by the wrongful suing out of the attach- ment. § 421.3. — The affidavit and bond shall be filed by the officer taking them, in the com-t to which the attachment is returnable, and shall constitute a part of the record in the cause. TENNESSEE. 683 § 4214.— The writ shall be addressed to the sheriff of the county, unless the suit be before a justice of the peace, and then it may be addressed to a constable; and it shall command him to attach and safely keep, repleviable upon security, the estate of the defendant, wherever the same may be found in the county, or in the hands of any person indebted to or having- any of the effects of the defendant, or so m\ich thereof as shall be of value sufficient to satisfy the debt or demand, and the costs of the complaint. § 4215. — It may be substantially in the following form: State of Tennessee, county. To the sheriff of county, greeting: Whereas, A. B. [or CD., as the agent or attorney of A. B.] hath complained on oath to me, E. F., judge [chan- cellor, justice of the peace, or clerk], that G. H. is justly indebted [or liable] to the said A. B. in the sum of dollars; and affidavit having also been made in wTiting, and bond given as required by law in attachment cases, you are hereby commanded to attach so much of the estate of the said G. H.as -will be of value suffii-ieiit to satisfy the debt and costs according to the complaint; and such estate, unless reple\ied, so to secure that the same may be liable to ftu-ther proceedings thereon to be held at the court, to be held for the county of , on the day of next [or before a justice of the peace of county, on the day of ], when and where you will make known how you have exe- cuted this writ. Witness, E. F., judge of the court [chancellor, justice of the peace, or clerk], this day of , 18 — . E. F. §4216. — No objection will lie to the form of the attachment, if the essential matters in the foregoing precedent be set forth in such attachment. § 4217. — Attachments issued without affidavit and bond, as herein prescribed, may be abated by jplea of the defendant. § 4218. — The attachment law shall be liberally construed, and the plaintiff, before or during trial, shall be permitted to amend any defect of form in the_ affi- davit, bond, attachment, or other proceeding; and no attachment shall be dismissed for any defect in, or want of bond, if the plaintiff, his agent or attorney, will sub- stitute a sufficient bond. ATTACHMENT BY GAKNISHMENT. § 4219. — When property, choses in action, or effects of the debtor are in the hands of third persons, or third persons are indebted to such debtor, the attachment may be by garnishment. § 4220. — Attachment by garnishment is effected by informing the debtor of the defendant, or person holding the property of the defendant, that the i^roperty in his hands is attached, and by leaving with him a written notice that he is required to appear at the return term of the attachment, or before a justice of the peace at a time and place fixed, to answer such questions as may be asked him touching the property and effects of the defendant. § 4221.— The notice should also require the defendant not to pay any debt due by him, or thereafter to become due, and to retain possession of all property of the defendant, then or thereafter in his custody or mider his control, to answer the garnishment. § 4222. — A copy of the notice served upon the garnishee should be returned by the officer, -with, the attachment and levy, duly executed. § 4223. — The garnishee shall be examined as prescribed in sections 3801, 3802. § 4224. — A garnishee may, at any time after answer, exonerate himself from further responsibility, by paying over and delivering to the officer before, or court after, the return of the attachment, the money or property of the defendant, or so much thereof as may be equal to the property directed to be attached; and such property or money delivered or paid over, may afterward be treated as though at- tached in the usual manner. §4225. — If it appears that the garnishee is indebted to the defendant, or has property and effects of the defendant, subject to the attachment, the court may, in case recovery is had by the plaintiff against the defendant, give judgment against the garnishee for the amount of the recovery, or of the indebtedness and property. § 4226. — If the debt of the garnishee to the defendant is not due, execution mU be suspended until its maturity. § 4227. — If, when duly summoned, the garnishee fail to appear and answer the garnishment, he shall be presumed to be indebted to the defendant to the full 684 TENNESSEE. amount of the plaintiff's demand, and a conditional judgment stall be entered up against him accordingly. §4228. — Upon this conditional judgment a scire facias shall issue to the gar- nishee, returnable to the next term of the court, or to a day and place fixed before a justice, to show cause why final judgment should not be entered against him. § 4229.— Upon the return of this scire facias duly served, or two returns of " Not to be found in nay county," the conditional judgment will be made final, and exe- cution isdued aooordingly. § 4230. — If, upon the examination of any garnishee, it appears that there is any of the defendant's estate in the hands or under the control of any person not sum- moned, the court or justice shall, upon the motion of the plaintiff, grant attach- ment, to be levied on the estate in the hands or under the control of such person, •who shall be siunmoned and made liable as other garnishees. § 4231. — The garnishee is allowed the pay and privileges of a witness, for his attendance and answer, and all costs to be paid hy the plaintiff, subject to the provisions of section 3815. § 4232. — If the garnishee die after he has been summoned in garnishment and pending the litigation, the proceedings may be revived by or against his heirs or legal representatives. § 4233. — An appeal lies in all garnishment cases, at the instance of the plaintiff, the defendant, or the garnishee. §4234. — The judgment in the garnishment suit, condemning the property or debt in the hands of the garnishee to the satisfaction of the plaintiff's demand, ia conclusive as between the garnishee and defendant. § 423.5. — The garnishee against whom a judgment for money is rendered by a justice of the peace, is entitled to the stay of execution allowed by law on justice's judgments. §4236. — The garnishee shall not be made liable upon a debt due by negotiable or assignable paper, unless such paper is delivered, or the garnishee completely exonerated or indemnified from all liability thereon, after he may have satisfied the judgment or decree. LEVY OF ATTACHMENT. §4237. — Constables may execute attachments returnable before justices of the peace, and in cases where the defendant is about to abscond or remove. The pro- visions of this chapter in relation to the duties of attaching officers, embrace con- stables whenever they are authorized to serve attachments. § 4238. — The writ of attachment should direct so much of the property of the defendant to be attached as will be sufficient to satisfy the plaintiff's debt, or de- mand, and all costs. § 4239. — The officer to whom the writ is delivered shall attach and take into his possession, in the first instance, so much of the personal property of the de- fendant as may be necessary to meet the exigency of the writ, and shall levy the attachment, when necessary, upon the defendant's real estate. § 4240. — If the officer make an excessive levy, he shall be liable as in case of ex- cessive levy by execution. § 4241. — Attachments may be levied upon any real or personal property of either a legal or equitable nature, debts or choses in action, whether due or not due, in which the defendant has an interest. § 4242. — If debts or choses in action not due are levied upon, no final judgment or decree shall be rendered until they become payable. § 4243. — In all cases where choses in action are attached, the officer levying the attachment may collect the same until the writ is returned, imless otherwise or- dered. § 4244. — The court of justice before whom the suit is pending, may, at any time, appoint a receiver to take possession of the property attached under the provisions of this chapter, and to collect, manage, and control the same, and pay over the proceeds according to the nature of the property and exigency of the case. § 4245. — Perishable property may be sold by order of the court or justice before ■whom the sidt is pending, unless replevied by the defendant. TENNESSEE. 685 § 42-16. — If any or all of the property is of so peristable a nature, or so expensive, as to render a sale necessary for the interest of the parties, before the officer can make his return, lie may sell the same, upon advertisement as in the case of exe- cution sales, and make return of the facts with the proceeds of sale. § 4247. — I\Ioney attached liythe officer, or coming to his hands by virtue of the attachment, shall fortliwith lie paid over to the clerk of the court in which the suit is pending, to ha by him retained until the further action of the court. § 4248. —Any transfer, sale or assignment, made after the filing of an attach- mentbill in chancery, or after the suing out of an attachment at law, of jiroperty mentioned in the bill of attachment, as against the plaintiff, shall be inoperative and void. § 4249.— If after the service upon him of copy of the bill, or levy of the attach- ment at law upon debts or effects in his hands, any person should jiay the debt or secrete the effects, or purchase in any other claim against the defendant, he shall be liable to the same extent as before the payment, secreting or purchase. REPLEVY OF PROPERTY ATTACHED. § 4250. — The defendant to an attachmentsuit may always replevy the property attached by giving bond, with good security, payable to the plaintiff, in double the amount of the plaintiff's demand, or at defendant's option, in double the value of the property attached, conditioned to pay the debt, interest, and costs, or the value of the property attached, with interest, as the case may be, in the event he shall be cast in the suit. § 4251.— The officer le-^ying the attachment shall take the bond, if tendered, at any time before he has made sale of the property, or return of the process, in which case he will fix the value of the property, and judge of the sufficiency of the security. § 4252. — After the return of the attachment, and at any time before sale of the property attached, the justice to whom the writ is returned, or the clerk of the court to which return is made, shall take the replevy bond and fix the value of the property, and judge of the sufficiency of the security. § 4253. — Replevy bonds are subject to the rules prescribed in sections 9G1-2. § 4254. — The bond, if given to the officer levying the attachment, shall be re- turned by him with the attachment; and, whether given to such officer, to the clerk or justice, it constitutes a part of the record. § 42.55. — The court may enter up judgment or decree upon the bond, in the event of recovery by the plaintiff, against the defendant and his sm-eties for the penalty of the bond, to be satisfied by delivery of the i^roperty or its value, or payment of the recovery, as the case may be. § 4256. — The death or destruction of the property, without any fault of the defendant, after the replevy, is no defense to the liability on such bond. MODE OF PROCEDURE IN ATTACHMENT CASES. § 4257. — The aflidavit and bond shall be returned by the officer granting the attachment to the tribunal to which the attachment is made returnable. § 4258. — Alias writs of attachment, or new writs of garnishment, may issue without new bond or affidavit, when no property has been found, or not sufficient to satisfy the debt, or when, pending the suit, the plaintiff wishes to garnishee other persons. § 4259. — The officer granting the attachment may, at the time, direct that as soon as the attachment is levied publication be made in some newspaper, requiring the defendant to appear at a time and place to be mentioned in such publication, before the court or justice having cognizance of the attachment, and defend the action thus commenced, otherwise the cause may be proceeded with ex parte. § 4260. — If the order of publication is not then made, the clerk of the court, the court itself, or the justice before whom the attachment is returned, may make such order at any time thereafter. § 4261. — The order .-hould be entered upon the justice's docket, as well as in- dorsed upon the paperd in all attachment cases retiu-ned before a magistrate. In all other cases, the entry should be upon the minutes or rule-docket of the court. § 4262. — As soon as the attachment is levied upon property of the defendant, the justice, or clerk of the court, shall make out, in ptirsuance of the order of 686 TENNESSEE. publication, a memorandum or notice thereof, and cause the same to be published forthwith in some convenient newspaper according to law. § 4263. — This memorandimi or notice shall contain the names of the parties, the style of the court to which the attachment is made returnable, the cause alleged for suing it out, and the time and place at which the defendant is required to appear and defend the attachment suit. § 4264. — The publication shall be made for four consecutive weeks in a news- paper piiblished in the county in which the suit is brought, if any, and if not, in some convenient newspaper to be designated in the order, the last publication to be at least one week before the time fixed for the defendant's appearance. § 4265. — The attachment and publication are in lieu of personal service upon the defendant, and the plaintiff may proceed, upon return of the attachment duly levied, as if the suit had been commenced by summons. § 4266. — If the debt or demand on which the attachment suit is brought, is not d,ue at the time of the service of the attachment, the i^laintiEE is not required to file any pleadings until the maturity of such debt or demand. § 4267. — Should the defendant appear in time, he may make defense, and the cause proceed as if the suit had been commenced by personal service of process. If he fail to appear, or make defense, the plaintiff may take judgment at law, or ob- tain a decree in equity, in like manner as if the defendant had faded to appear and defend upon personal service of process. §4268. — Where the defendant does not appear, the comH; may, and a justice shall, stay final judgment or decree, not exceeding twelve nor less than six months from the time of the return. § 4269. — WTiere the attachment is sued out because the defendant is a non- resident, the stay shall be allowed unless sufficient cause appear to the contrary. § 4270. — In all cases of attachment sued out because the defendant resides out of the state, or has merely removed himself or property from the state, the judg- ment or decree by default may be set aside, upon application of the defendant and good cause shown, within twelve months thereafter, and defense permitted upon such terms as the court of justice may impose. § 4271.— In all other cases of judgment or decree by default, the defendant can- not deny or put in issue the ground upon which the attachment was issued, but may at any time thereafter, and within one year after the smng out of the attach- ment, commence an action on the attachment bond, and may recover such damages as he has actually sustained for wrongfully siung out the attachment. § 4272. — If sued out maliciously, as well as wrongfully, the jury may, on the trial of such action, give vindictive damages. § 4273. — Persons laboring under the disabilities of coverture, infancy, or un- soundness of mind at the rendition of the judgment or decree by default, have six months after the removal of such disability, to appear and show cause against such judgment or decree. § 4274. — The death of the defendant proceeded against by attachment, without personal service, whether the death occurred before or after the commencement of the action, does not render the proceedings void, but his heirs or representatives, aa the case may be, have the right, within three years from the rendition of final judgment or decree, to make themselves parties by petition showing merits verified by affidavit, and contest the plaintiff's demand. § 4275. — The judgment or decree, if executed before it is set aside, under any of the foregoing provisions, will be a protection to all persons acting under it, and will confer a good title to all property sold by virtue thereof. § 4276. — If the property attached has been replevied by the defendant, the justice or court, upon recovery by the plaintiff, is authorized to render judgment against the defendant and his sureties in the reple^"y bond, for the penalty of such bond, but to be satisfied by the payment of the value of the propertj', with interest from the date of the bond, or by the payment of the plaintiff's demand as ascer- tained, with interest and costs, or by the forthcoming of tht, property, as the case may be. § 4277. — The property attached, if not replevied, with its proceeds or increase from the date of levy, will be subjected to the satisfaction of the judgment or de- cree by sale ui^on such terms and conditions as may, in the discretion of the court, TEXAS. 687 be deemed most for the interest of all parties, by order of sale, or by other process necessary to effect the object. § 4278. — In all attachment cases returnable before- a justice of the peace, when land has been levied upon, either by the attachment or by execution under the judgment, and it is necessary to sell the land to satisfy the judgment, the papers shall be returned to the circuit court, and the land condemned, as in other cases of levy upon land by justice's execution. § 4270. — When the property attached is not sufficient to satisfy the recovery, execution, may issue for the residue as in other cases. Justices of the peace— Sees. 4900, 4948-4950. Jvidges and chancellors may grant — Sees. 4714, 5179; .or order attached prop- erty to be delivered to party entitled, sec. 5199. By surety on replevin bond— Sec. 4418. Liens enforced by — Journeymen, sees. 2746, 2747; ships, sees. 2751, 2752, and 4293-4305; wharfage, sec. 2753; pasturage, sees. 275G-2759; cotton-sellers, sees. 2761, 2762; employees corporations, sees. 2708-2770; farm laborers, sees. 2771-2773; crops, sees. 4280-4282; furnishers of goods, sees. 4284, 4285; mechanics, sees. 4286, 4290, 4291. Exemptions — Policies of insurance, sec. 1813; personalty, sees. 2931-2934; home- .Btead, sees. 2935-2939; widows, sees. 3125, 3126. TEXAS. [Reh/ised Statutes, 1879.] TITLE IX.— CHAPTER ONE. OBIGINAL ATTACHMENT. Ahticle 152. — The judges and clerks of the district and county courts, and jus- tices of the peace, may issue writs of original attachment, returnable to their re- spective courts, upon the plaintiff, his agent or attorney, making an affidavit in writing, stating — 1. That the defendant is justly indebted to the plaintiff, and the amount of the demand; and, 2. That the defendant is not a resident of the state, or is a foreign corporation or is acting as such; or, 3. That he is about to remove permanently out of the state, and has refused to pay or secure the debt due the plaintiff; or, 4. That he secretes himseif so that the ordinary process of law cannot be served on him; or, 5. That he has secreted his property for the purpose of defrauding his cred- itors; or, 6. That he is about to secrete his property for the purpose of defrauding his creditors; or, 7. That he is about to remove his property out of the state, without leaving sufficient remaining for the payment of his debts; or, 8. That he is about to remove his property, or a part thereof, out of the county where the suit is brought, with intent to defraud his creditors; or, 9. That he has disposed of his property, in whole or in part, with intent to de- fraud his creditors; or, 10. That he is about to dispose of his property with intent to defraud his cred- itors; or, 11. That he is about to convert his property, or a part thereof, into money, for the purpose of ijlacing it beyond the reach of his creditors; or, 12. That the debt is due for j)roperty obtained under false pretenses. 688 TEXAS. Art. 153. — The affidavit shall further state — 1. That the attachment is not sued out for the purpose of injuring' or harassing the defendant; and, 2. That the plaintiff will probably lose his debt unless such attachment is issued. Art. 154. — No such attachment shall issue until the suit has been duly insti- tuted, but it may be issued in a proper case either at the commencement of the suit or at any time during its progress. Art. 155.— The writ of attachment above provided for may issue, although the plaintiff's debt or demand be not due, and the same proceedings shall be had thereon as in other cases, except that no final judgment shall be rendered against the de- fendant until such debt or demand shall become due. Art. 156. — Before the issuance of any writ of attachment the plaintiff must execute a bond, with two or more good and sufficient sureties, payable to the de- fendant, in a sum not less than double the debt sworn to be due, conditioned that the plaintiff wiU prosecute his suit to effect, and will pay all such damages and costs as shall be adjudged against him for ^vrongfuIly suing out such attachment. Art. 157. — Such bond shall be delivered to and approved by the officer is- suing the writ, and shall, together with the affidavit, be filed with the papers of the cause. Art. 158. — The following form of bond may be used: The state of Texas, county of , We, the undersigned, A. B. as principal, and ^and as sure- ties, acknowledge ourselves bound to pay to C. D. the sum of dollars, con- ditioned that the above bound A. B. , plaintiff in attachment against the said C D. , defendant, will prosecute his said suit to effect, and that be will pay all such damages and costs as shall be adjudged against him for wrongfully suing out such attachment. Witness our hands this day of , 18 — . A. B. E. F. G. H. Art. 159. — Every original attachment issued without affidavit and bond as herein provided, shall be abated on motion of the defendant; but such affida'idt and bond shall not be void for want of form, provided they contain all essential matters. Art. 160. — Upon the execution of such affidavit and bond, it shall be the duty of the judge or clerk, or justice of the peace, as the case may be, immediately to issue a ^vrit of attachment, directed to the sheriff or any constable of any county where property of the defendant may be supposed to be, commanding him to at- tach so much of the property of the defendant as shall be sufficient to satisfy the demand of the plaintiff and the probable costs of the suit. Art. 161. — Several writs of attachment may, at the option of the plaintiff, be issued at the same time, or in succession, and sent to different counties, until suffi- cient property shall be attached to satisfy the writ. Art. 162. — The following form of writ may be issued: The state op Texas, To the sheriff or any constable of county, greeting: We command you that you attach forthwith so much of the jjroperty of C. D. , if to be found in your county, reple\aable on security, as shall be of value sufficient to make the simi of dollars, and the probable costs of suit, to satisfy the demand of A. B. , and that you keep and secure in your hands the property so attached, unless replevied, that the same may be liable to further proceedings thereon, to be had before our court in , in the county of , on the day of , 18 — , when and where you shall make known how you have executed this writ. Art. 16.3. — The writ of attachment shall be dated and tested as other writs, and may be delivered to the sheriff or constable by the officer issuing it, or he may deliver it to the plaintiff, his agent or attorney, for that purpose. Art. 164. — The sheriff or constable receiving the writ shall immediately proceed to execute the same by le\'ying iipon so much of the property of the defendant sub- ject to the writ, and found within his county, as may be sufficient to satisfy the cornmand of the writ. Art. 165. — Whenever an officer shall levy an attachment it shall be at his own risk; and such officer may, for his own indemnification, require the plaintiff in at- TEXAS. 689 tacliment to execute and deliver to him a bond of indemnity to secure him, if it shdiild afterward appear that the property levied upon by him does not belong to the defendant. Art. 166. — The writ of attachment may be levied on such property, and none other, as is or may be by law subject to levy under the writ of execution. Art. 167. — The writ of attachment shall be levied in the same manner as is or may be the writ of e.xecution upon similar property. Art. 168. — "When personal property is attached, the same shall remain in the hands of the officer attaching until fiual judgment, unless a claim be made thereto and bond be given to try the right to the same, or unless the same be replevied or be sold as provided by law. Art. 169. — Any person other than the defendant may claim the personal prop- erty so levied on, or any part thereof, upon making the affidavit and giving the bond reqidred by the provisions of the title relating to the trial of the right of property. Art. 170. — At any time before judgment, should the property not have been previously claimed or sold, as provided in this chapter, the defendant may replevy the same, or anj'' part thereof, Ijy giving bond, with two or more good and sufficient sureties, to be approved by the officer who levied the writ, payable to the plaintiff, in double the amount of the plaintiff's debt, or, at the defendant's option, for the ' value of the property replevied, to be estimated by the officer, conditioned that should the defendant be condemned in the action he shall satisfy the judgment which may be rendered therein, or shall pay the estimated value of the property, with lawful interest thereon, from the date of the bond. Art. 171. — Whenever personal property which has been attached shall not have been claimed or reple^'ied as above provided, the judge or justice of the peace out of whose court the writ was issued may, either in term-time or in vacation, order the same to be sold, when it shall be made to appear that such property is in dan- ger of serious and immediate waste or decay, or tliat the keeping of the same until the trial will necessarily be attended with such expense or deterioration in value as greatly to lessen the amount likely to be realized therefrom. Art. 172. — In ascertaining the facts which authorize the making of such order of sale under the preceding article, the judge or justice of the peace, as the case may be, may require or dispense with notice to the parties, and may act upon such information, by affidavit, certificate of the attaching officer, or other proof, as may seem to him necessary to protect the interest of the loarties. Art. 173. — Such sale shall be conducted in the same manner as sales of per- sonal proi^erty under execution, except as to the time of advertisement, which may be fixed by the judge or the justice for a shorter period, according to the exigency of the case. Art. 174. — The proceeds of such sale shall, within five days thereafter, be paid over by the officer making the sale to the clerk of the court or justice of the peace, as the case may be, accompanied by a statement in writing, signed by such officer officially, to be filed with the papers, stating the time and place of the sale, the name of the purchaser, and the amount received, with an itemized account of the expenses attending the sale. Art. 175. — If the personal property be not replevied or claimed or sold under the several provisions of this chapter, the judge or justice of the peace, as the case may be, may, either in term-time or in vacation, make such order for the i^reser- vation or use of the same as shall appear to be to the interest of the parties. Art. 176.— The officer executing the writ of attachment shall return the writ, with his action indorsed thereon or attached thereto, signed by him officially, to- the court from which it issued, on or before the first day of the next term thereof. Art. 177. — Such return shall describe the property attached with sufficient cer- tainty to identify it, and shall state when the same was attached, and whether any personal property attached remains still in his hands, and if not, the disposition made of the same; and when personal property has been replevied he shall de- liver the replevy bond to the clerk, to be filed with the papers of the cause. Art. 178. — When the j^roperty levied on is claimed, replevied, or sold, or other- wise disposed of, after the writ has been returned, the officer having the custody of the same shall immediately make a report in wiiting, signed by him officially, to the clerk or justice of the peace, as the case may be, showing such disposition of the property; and such report shall be filed among the papers of the cause. II AlIACUilEXI— 19. 690 TEXAS. Art. 179. — The execution of the writ of attachment upon any property of the defendant subject thereto, unless the writ should be quashed or otherwise vaeated, shall create a lien from the date of such levy on the real estarte levied on and on such personal property as remains in the hands of the attaching officer, and on the i^roceeds of such personal property as may have been sold. Art. 180. — Should the plaintiff recover in the suit, such attachment lien, shall be foreclosed as in case of other liens, and the court shall direct the proceeds of the personal property sold to be applied to the satisfaction of the judgment, and the sale of personal property remaining in the hands of the officer and of the real es- tate levied on, to satisfy the judgment. Art. 181. — '\Vhen personal property has been levied on as hereinbefore pro- \'ided, the judgment shaU. also be against the defendant and his sureties on his replevj- bond for the amount of the judgment, interest and costs, or for the value of the property replevied and interest, according to the terms of such replevy bond. Art. 182. — Should the attachment be quashed or otherwise vacated, or should judgment be for the defendant, the court shall make the necessary order restoring the property to the defendant or discharging the claim or replevy bond, as the case mav be. CHAPTER TWO. GARNISHSTENT. Article 183. — The clerks of the district and county courts and justices of the peace may issue writs of gamishinent, returnable to their respective coiirts, in the following cases: 1. "WTiere an original attachment has been issued as provided in the foregoing chapter. 2. Wliere the plaintiff sues for a debt and makes affidavit that such debt is just, due and unpaid, and that the defendant has not, within his knowledge, prop- erty in his possession, ■within this state, subject to execution, sufficient to satMy such debt; and that the garnishment applied for is not sued out to injure either the defendant or the garnishee. 3. Where the plaintiff has a judgment, and makes affidavit that the defendant Las not, within his knowledge, property in his possession within this state, subject to execution, sufficient to satisfy such judgment. Art. 184. — In the case mentioned in subdivision two of the preceding article, the plaintiff shall execute a bond, with two or more good and sufficient sm-eties, to be approved by the officer issuing the writ, payable to the defendant in the suit, in double the amount of the debt claimed therein, conditioned that he wiU prosecute his suit to effect and pay all damages and costs that may be adjudged against him for wrongfully suing out such garnishment. Art. 185. — Before the issxiance of the writ of garnishment the plaintiff shall make apf)lication therefor in ■writing, under oath, signed by him, stating the facts authorizing the issuance of the writ, and that the plaintiff has reason to believe, and does believe, that the gai-nishee, stating his name and residence, is indebted to the defendant, or that he has in his hands effects belonging to the defendant, or that the garnishee is an incorporated or joint-stock company, and that the defend- ant is the o'wner of shares in such company or has an interest therein. Art. 186. — When the foregoing requisites have been complied ■with, the judge, ^ or clerk, or justice of the peace, as the case may be, shall docket the case in the nane of the plaintiff as plaintiff, and of the garnishee as defendant, and shall im- mediately issue a writ of garnishment, dnected to the sheriff or any constable of the countj' where the garnishee is alleged to reside or be, commanding him forth- with to summon the garnishee to appear before the court out of which the same is issued, on the first day of the ensuing term thereof, to answer upon oath what, if anything, he is indebted to the defendant, and was when such -writ was served, and what effects, if any, of the defendant he has in his possession, and had when such ■svTit was served, and what other persons, if any, ■wiLnin his knowledge, are indebted to the defendant or have effects belonging to him in their possession. Art. 187. — Where it appears from the plaintiff's affidavit that the garnishee is an incorporated or joint-stock company, in which the defendant is the ovvner of shares, or i.s interested therein, the ■writ of garnishment shall further requii-e the garnishee to answer upon oath what number of shares, if any, the defendant owns • TEXAS. 691 in such company, or owned when such writ was served, and what interest, if any, he has in such company, or had when such writ was served. Art. 188. — The following form of writ may be used: The state of Texas, To the sheriff or any constable of county, greeting: Whereas, in the • court of county [if a justice's court, state also the number of the pre- cinct], in a certain cause wherein A. B. is plaintiff and C. D. is defendant, the plaintiff, claiming an indebtedness against the said C. D. of dollars, be- sides interest and costs of suit, has applied for a writ of garnishment against E. r. , who is alleged to be a resident of your county [or to be wdthin your county, as the case may be]; therefore you are hereby commanded forthwith to summon the said E. F. , if to be found wdthin your county, to be and appear before the said court at the next term thereof, to be held at , in said county, on the day of , 18 — , then and there to answer upon oath what, if anything, he is indebted to the said C D. , and was when this writ was served upon him, and what effects, if any, of the said C. D. he has in his possession, and had when this writ was served, and what other persons, if any, -svithin his knowledge, are indebted to the said C. D., or have effects belonging to him in their possession [and if the gar- nishee be an incorporated or joint-stock company, in which the defendant is al- leged to be the owner of shares or interested therein, then the writ shall proceed: and further to answer what number of shares, if any, the said C. D. owns in such company, and owned when such writ was served]. Hereof fail not, but of this writ make due return as the law directs. Art. 189. — The writ of garnishment shall be dated and tested as other writs, and may be delivered to the .sheriff or constable by the officer who issued it, or he may deliver it to the plaintiff, his agent or attorney, for that purpose. Art. 190. — The sheriff or constable receiving the writ of garnishment shall im- mediately proceed to execute the same by delivering a copy thereof to the gar- nishee, and shall make retmn thereof as of other citations. Art. 191. — From and after the service of such writ of garnishment it shall not be lawful for the garnishee to pay to the defendant any debt or to deliver to him any effects, nor shall the garnishee, if an incorjaorated or joint-stock company, in wMch the defendant is alleged to be the owner of shares or to have an interest, permit or recognize any sale or transfer of such shares or interest; and any such payment, dehvery, sale or transfer shall be void and of no effect as to so much of said debt, effects, shares or interest as may be necessary to satisfy the plaintiff's demand. Art. 192. — The answer of the garnishee shall be imder oath, in writing, and signed by him, and shall make true answers to the several matters inquired of in the writ of garnishment. Art. 193. — Should it appear from the ans-wer of the garnishee that he is not indebted to the defendant, and was not so indebted when the writ of garnishment was served on him, and that he has not in his possession any effects of the defend- ant and had not when the writ was served; and when the garnishee is an incorpo- rated or joint-stock company in which the defendant is alleged to be the owner of any shares of stock or interested therein, if it shall further appear frtftn such an- swer that the defendant is not and was not when the writ was served the o^vner of any of such shares, or interested in such company; and shoidd the answer of the garnishee not be controverted as hereinafter provided, the coiirt shall enter judg- ment discharging the garnishee. Art. 194. — ^Should the garnishee, being a resident of the county where the pro- ceeding is pending, fail to make answer to the writ, it shall be lawful for the court, at any time after judgment shall have been rendered against the defendant, and on or after default day, to render judgment by default against such ^rnishee for the full amount of such judgment against the defendant, with aU accruing interest and costs. Art. 195. — If the garnishee resides in some other county than that in which the proceeding is pending, and fails to make answer to the writ, the court shall, on mo- tion of the plaintiff, issue a commission addressed to the clerk of the district court, the county judge, the clerk of the county com-t, or any notary public of the county in which the garnishee is alleged to reside or be, lequiring bim to cite such gar- nishee to answer the writ of garnishment. Aet. 196. — The following form of commission may be used: The state of Texas. To the clerk of the district court, the county judge, clerk of the coimty court, or any notary public of coimty, greeting; Whereas, on the day of , 692 TEXAS. -, in a certain cause pending in this court, wherein A. B. is plaintiff and C D. is defendant, the plaintiff claiming an indebtedness against the said C. D. of dollars, besides interest and costs of suit, a writ of garnishment was issued by this court against E. F. , of your county, which was afterward returned duly served on the day of , 18—; and whereas the Kaid E. F. has failed to make answer to the said Avrit, now, therefore, you are hereby commanded forth- with to summon the said E. F. before you, to answer upon oath what, if anything, he is indebted to the said 0. D. and was when the said writ of garnishment was served upon him, and what eilects, if any, of the said C. D. he has in his posses- sion and had when the said writ was served, and what other persons, if any, within his knowledge, are indebted to the said C. D., or have effects belonging to him iu their possession [and if the garnishee be an incorporated or joint-stock company, in which the defendant is alleged to be the owner of shares, or interested therein, the commission shall proceed: and further to answer what number of shares, if any, the said C. D. owns in such company and owned when the said Avrit was served, and what interest, if any, he has in said company and had when the said wTit was served]. Herein faU not, but of this commission make return forthwith. Art. 197. — The commission shall be dated and tested as virrits usually are. Art. 198. — Upon the receipt of such commission, by any of the officers named in the preceding article, he shall immediately issue a citation, directed to the sher- iff or any constable of his coimty, commanding him forthwith to summon the gai-- nishee to ajipear before him at a time and place to be named in the citation, to answer upon oath as directed in article one hundred and ninety-six. Art. 199. — The following form of writ may be used in such cases: The state of Texas, To the sheriff or any constable of county, greeting: Whereas, in a cer- tain cause pending in the court of county [if a justice's court state the number of the precinct], wherein A. B. is plaintiff and C. D. is defendant, wherein the plaintiff claims of the said defendant the sum of dollars, besides interest and costs of suit, a writ of garnishment was issued against E. F. of your county, which was duly served upon him on the day of , 18 — , requir- ing him to answer thereto before the said court at its late term; and whereas, the said garnishee has failed to answer as required by said writ; and whereas, a com- mission has been issued liy the said court and lodged in my hands, whereby I am commanded to summon the said E. F. before me to make such answer: Therefore, you are hereby commanded forthwith to summon the said E. F. , if to be found within your county, to be and appear before me, at my office in , on the day of •, 18 — , then and there to answer upon oath what, if anything, he is indebted to the aforesaid C. D., and was when the aforesaid ^^Tit of garnishment was so served ujion him, and what effect.?, if any, of the said C. D. he has in his possession and liad when the said writ was so served; and what other persons, if any, within his knowledge, are indebted to tue said C D. , or have effects belong- ing to him in their possession [and if the garnishee is an incorporated or joint-stock company, in which the defendant is alleged to be the owner of shares, or inter- ested therein, the writ shall proceed: and further, to answer what number of shares, if any, the said C. D. owns in such company and owned when the said WTit was served? and what interest, if any, he has in such companj^, and had when the said writ was served]. Herein fail not, but of this writ make retiu-n forthwith. Art. 200. — The writ shall be dated and tested by the officer issuing it, with his official signatm-e and seal of office. Art. 201. — The sheriff or constable receiving such writ shall immediately jiro- ceed to execute the same by delivering a copy thereof to the garnishee, and shall make return thereof without delay to the officer who issued it. Art. 202.— Should the garnishee appear and answer, in obedience to the writ, the officer executing the commission shall return the same, together ^\•ith the an- swer of the garnishee, duly certified under his hand and seal of office, to the clerk of the court or justice of the peace who issued it; whereupon lilce proceedings "snail be had as provided in cases of answers of a garnishee residing in the county. Art. 203.— -Should the garnishee fail to appear in obedience to the writ, or hav- ing appeared, should he fail or refuse to answer, or to answer fully, the officer hold- ing such commission shall return the same, together with the citation for the garnishee issued by him, and the service indorsed thereon, and a statement duly certified by him under his hand and seal of office of such failure or refusal, to the clerk of the court or justice of the j^eace who issued the commission. Art. 204. — Upon the return of such commission with the citation for the gar- nishee, and the return thereon, and the certificate of such failure or refi:isal of the TEXAS. 693 garnishee to answer, as mentioned in the preceding article, it shall be lawful for the coui-t at any time after judgment shall have been rendered against the defend- ant, and on oi- after default day, to render judgment against such garnishee for the full amount of such judgTnent against the defendant, with all accruing interest and costs, unless the defendant shall have previously filed a full and complete ansv>'er to the writ, and shall have also shown some good and sufficient excuse for his fail- xu'e to appear and answer before the officer holding such commission. Art. 205. — Should it appear from the answer of the garnishee, made in either of the modes iirovided for in this chapter, or should it be otherwise made to appear as hereinafter provided, that the gr.rnishee is indebted to the defendant in any amount, or was so indebted when the writ of garnishment was served, the court shall render judgment for the plaintiff against the garnishee, for the amount so ad- mitted, or found to be due to the defendant from the garnishee, unless such amount shall exceed the amount of the plaintiff's judgment against the defendant, with in- terest and costs, in which case it shall be for the amount of such judgment, interest and costs. Art. 206. — Should it appear from the garnishee's answer, or otherwise, that the garnishee has in his possession, or had when the writ was served, any effects of the defendant liable to execution, the com-t shall render a decree requiidng the gar- nishee to deliver up to the sheriff or any constable j^resenting an execution in favor of the plaintiff against the defendant, such effects or so much of them as may be necessary to satisfy such execution. Art.' 207. — Should the garnishee be adjudged to have effects of the defendant in his possession as provided iu the pi'eceding article, fail or refuse to deliver them to the sheriff or constable on such demand, the officer shall immediately make return of such failure or refusal, whereupon, on motion of the plaintiff, the garnishee shall be cited to show cause at the next term of the court why he should not be at- tached for contempt of court for such failure or refusal; and should the garnishee fail to show good and sufficient excuse for such failure or refusal, he shall be fined for such contempt and imprisoned until he shall deliver such effects. Art. 208. — Where the garnishee is an incorporated or joint-stock company, and it appears from the answer, or otherwise, that the defendant is, or was when the writ of garnislmient was served, the o^vner of any .shares of stock in such company, or any interest therein, the court shall render a decree, ordering the sale under execution in favor of the plaintiff against the defendant of such shares, or interest of the defendant in such company, or so much thereof as may be necessary to satisfy such execution. Art. 209. — The sale so ordered sha'l be conducted in all respects as other sales of personal i^roperty under execution, and the sheriff or constable making such Bale shall execute a transfer of such shares or interest to the purchaser, with a brief recital of the judgment of the coiu-t under which the same was sold. Art. 210. — Such sale shall be valid and effectual to pass to the purchaser all the right, title and interest which the defendant had in such shares of stock, or in such company, and the proper officers of such company shall enter such sale and transfer on the books of the company in the same manner as if the same had been made by the defendant himself. Art. 211. — If the plaintiff should not be satisfied with the answer of any gar- nishee, he may controvert the same by an affidavit in ■writing, signed by him, stat- ing that he has good reason to believe, and does believe, that the answer of the garnishee is incorrect, stating in what particular he believes the same is incorrect. Art. 212. — The defendant may also, in like manner, controvert the answer of the garnishee. Art. 213.— If the garnishee whose answer is controverted, as provided in the two preceding articles, is a resident of the county in which the proceeding is pending, an issue shall be formed under the direction of the coiirt and tried as other cases. Art. 214. — If the garnishee whose answer is so controverted be a resident of some county other than that in which the proceeding is iiending, the plaintiff may file in any court of the county where the garnishee may reside, having jurisdiction of the amount of the judgment in the original suit, a duly certified copy of such original judgment and of the proceedings in garnishment, including the plaintiff's application for the writ and the answer of the garnishee and the affidavit contro- verting the same. Art. 21.5. — It shall be the duty of the clerk of such court or the justice of the peace, as the ease may be, on receiving such certified copies, to docket the case in 694 UTAH. the name of the plaintiff as plaintiff, and of the garnishee as defendant, and to issue a notice to the garnishee, stating that his answer has been controverted, and that the issue between him and the plaintiff will stand for trial at the next term of the court. Art. 216. — Such notice shall be directed to the sheriff or constable of the county, and shall be dated and tested as other process from such court, and shall be served by delivering a copy thereof to the defendant. Art. 217. — Upon the return of such notice served, an issue shall be formed under the direction of the court and tried as other cases. Art. 218. — No current wages for personal service shall be subject to garnish- ment; and where it appears upon the trial that the garnishee is indebted to the defendant for such current wages, the garnishee shall nevertheless be discharged as to such indebtedness. Art. 219. — Where the garnishee is discharged upon his answer, the costs of the proceeding, includiag a reasonable compensation to the garnishee, shall be taxed against the plaintiff; where the answer of the garnishee has not been controverted and the garnishee is held thereon, such costs shall be taxed against the defendant and included in the execution provided for in this chapter; where the answer is contested, the costs shall abide the issue of such contest. Art. 220. — It shall be a sufficient answer to ^ny claim of the defendant against the garnishee founded on any indebtedness of such garnishee, or on the pogsession by him of any effects, or where the garnishee is an incorporated or joint-stock com- pany in which the defendant was the owner of shares of stock or other interest therein, for the garnishee to show that such indebtedness was paid, or such effects were delivered, or such shares of stock or other interest in such company were sold imder the judgment of the court in accordance with the provisions of this chapter. County court may grant — Art. 1170. May be issued on Sunday — Art. 1184. Justices of the peace — Arts. 1542, 1644. Against estates of deceased persons — Art. 1822. Exemptions — Sees. 2335-23^. UTAH. [SXATCrTES OF 1884] CHAPTER IV. ATTACHMENTS. § 410. — The plaintiff, at the time of issmng the summons, or at any time after- ward, may have the property of the defendant attached, as security for the satis- faction of any judgment that maj' be recovered, unless the defendant give security to pay such judgment, as in this chapter provided, in the following cases: 1. In an action upon a judgment or upon a^ contract, express or implied, which is not secured by any mortgage or lien upon real or personal property situate or being in this territory, or, if originally so secured such security has, without any act of the plaintiff, or of the person to whom the security was given, become valueless. 2. In an action upon a judgment or upon a contract, express or implied, against a defendant not residing in this territory. 3. In an action upon a judgment or upon a contract, express or implied, against any person who, UTAH, G95 a. Stands in defiance of an officer, or conceals himself so that process cannot t be served upon him; or, 6. Has assigned, disposed of or concealed, or is about to assign, dispose of or conceal any of his property with intent to defraud his creditors; or, c. Has departed, or is about to depart from the territory, to the injury of his creditors; or, d. Fraudulently contracted the debt or inciu-red the obligation respecting which the action is brought. § 411. — The clerk of the court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, setting forth: 1. That the defendant is indebted to the plaintiff, specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs or counter-claims, and whether upon a judgment or an express or implied contract, and that the pay- ment of the same has not been secured by any mortgage or lien upon real or per- sonal i^roperty, or any pledge of personal pro^Derty, situate or being in this territory; or, if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the seciu-ity was given, become valueless; and that the same is an actual bona fide existing demand due and owing from the defendant to the plaintiff. 2. And in all cases that the attachment is not sought and the action is not pros- ecuted to hinder, delay or defraud any creditor of the defendant, and also specify- ing one or more of the causes set forth in the preceding section. § 412. — Before issuing the writ the clerk must require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, and not ex- ceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that if the defendant recover judgment, or if the attachment be %TTongfully issued, the plaintiff will pay all costs that may be awarded to the defendant, and all dam- ages which he may sustain by reason of the attachment, not exceeding the sum sj)ecified in the undertaking. § 413. — The -writ must be directed to the United States marshal, or to the sheriff of any county in which property of such defendant may be, and must require him to attach and safely keep all the property of such defendant within his jurisdiction not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, and the amount of which must be stated in conformity with the complaint, unless the defendant give him seciu-ity by the imdertaking, of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been or is about to be attached, in which case to take such undertaking. Several ^vrits may be issued at the same time to the marshal, or the sheriffs of different counties; and the plaintiff may have other writs of attachment as often as he may require at any time before judgment. § 414. — The rights or shares which the defendant may have in the stock of any corporation or comiDany, together with the interest and profit thereon, and all debts due siich defendant, and all other property in this territory of such defendant not exempt from execution, may be attached, and, if judgment be recovered, be sold to satisfy the judgment and execution. § 415. — The officer to whom the writ is directed and delivered, must execute the same without delay, and if the undertaking mentioned in section four hund- red and thirteen be not given, as follows: 1. Ileal property, standing upon the records of the county in the name of the defendant, must be attached by filing with the recorder of the county a copy of the %vrit, together with a description of the property attached and a notice that it is attached, and by leaving a similar copy of the writ, description and notice with an occupant of the property, if there is one; if not, then by posting the same in a conspicuous place on the property attached. 2. Ileal property or an interest therein, belonging to the defendant, and held by any other person, or standing on the records of the county in the name of any other person, must be attached by filing with the recorder of the county a cojiy of the writ, together with a description of the property and a notice that such real property and any interest of the defendant therein, held by or standing in the name of such other person (naming him) are attached; and by leaving with the occupant, if any, and with such other person or his agent, if known and within the county, or at the residence of either, if within the county, a copy of the writ, with a similar description and notice. If there is no occupant of the property, a copy of the writ, together with such description and notice, must be posted in a conspicuous place upon the ijroperty. The recorder must index such attachment 696 UTAH. when filed in tlie names both of the defendant and of the person by whom the property is held, or ia whose name it stands on the records. 3. Personal property capable of manual delivery must be attached by taking it into custody. 4. Stocks or shares, or interest in stocks or shares, of any corporation or com.- pany, must be attached by leaving ■\vith the president, or other head of the same, or the secretary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating the stock or interest of the defendant is attached in pursuance of such writ. 5. Debts and credits, and other personal property, not capable of manual de- livery, must be attached by leaving with the person owing such debts, or having in his po session, cr under his control, such cre('its or other jjcrsonal proioerty, or Vv'ith his ageut, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits or other personal property in his possession or imder his control belonging to defendant, are attached in piirsuance of said writ. § 41G — Upon receiving information in writing from the plaintiif or his attorney, that any person has in his possession, or under liis control, any credits or other personal property belonging to the defendant, or is owing any debt to the defend- ant, thj OiScer making the service must serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pursuance of such writ. § 417. — All persons having in their possession, or under their control, any credits or other personal property behjuging to the defendant, or owing any debts to the defendant at the time of ser\'ice upon them of a copy of the writ and notice as provided in the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the officer, liable to the plaintiff for the amount of such credits, proiDerty or debts, until the attachment be discharged, or any judgment recovered by him be satisfied. § 418. — Any person owing debts to the defendant, or having in his possession or under his control any credits or other personal property belonging to the defend- ant, may be required to attend before the court, or judge, cr a referee a;jpointed by the court, or judge, and be examined on oath respecting the same. The defend- ant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court, or judge, may, after such examination, order personal property, capable of manual delivery, to be delivered 1 3 the officer, on such terms as maj' be just, having reference to any liens thereon or claims agamst the same, and a memorandum to be given of all other personal property, containing the amount and description thereof. § 419. — The officer making the service must make a full inventory of the prop- erty attached and return the same with the ^vrit. To enable him to make such returns as to the debts and credits attached, he must request, at the time of serv- ice, the party owang the debt, or having the credit, to give him a memorandum stating the amount and description of each; and if such memorandum be refused, he must return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay the costs of any proceeding taken for the puri^ose of obtaining information respecting the amount and description of such debt or credit. § 420. — If any of the property attached be perishable, the officer must sell the same in the manner in which such projjerty is sold on execution. The proceeds and other property attached by him must be retained bj' him, to answer any judg- ment that may be recovered in the action, unless sooner subjected to execution upon another judgment recovered previous to issuing the attachment. Debts and credits attached may be collected by him, if the same can be done without suit. The receipt of the officer is a sufficient discharge for the amount paid. § 421. — "Whenever property has been taken by an officer under a MTit of attach- ment, and it is made to appear satisfactorily to the court, or a judge thereof, that the interest of the parties to the action will be subserved by a sale thereof, the court or judge may order such property to be sold in the same manner as property is sold under an execution, and the proceeds to be deposited in the court, to abide the judgment in the action. Suclf order can be made only upon notice to the ad- verse party or his attorney, in case such party has been personally served with a summons in the action. § 422. — If any personal property attached be claimed by a third person as his property, the officer may summon a jury of six men to try the validity of such claim, and such proceedings shall be had thereon, wi'.ii like effect, as in case of a claim after levy upon execution. UTAH, G97 §423. — If judgTOcnt be recovered by the plaintiff, the officer mu'^t satisfy the same out of tlio property attached by him wliiuh has not been delivered to the defendi.nt, or a claimant, as hereinbefore provided, or subjected to execution on aniit.her jud:-fment recovered previous to the issuing' of the attachment, if it be sufficient for that purpose: 1. By payiuLf to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the jud'-;ment. 2. If any balance remain due, and an execution shall have been issued on the judirment, he must sell under the execution, so much of the property, real or i^er- sonal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notice of the sales must be given, and the sales conducted as in other cases of sales on execution. § 424. — If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceed.? of any debts or credits col-, lected by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the officer must proceed to collect such balance, as upon an exe- cution in other cases. Whenever the judgment shall have been paid, the officer, upon reasonable demand, must deliver over to the defendant the attached property remaining' in his hands, and any proceeds of the property attached, unapplied on the judgment. § 42.5. — If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section four hundred and thir- teen (113), or section four hundi-ed and twenty -eight (428), or he may isroceed as in other cases upon the return of an execution. § 423. — If the defendant recover judgment against the plaintiff, any undertaking received in the action, all the proceeds of sales and money collected by the officer, and all the property attached remaining in his hands, must be delivered to the defendant, or his agent; the order of attachment shall be discharged, and the prop- erty released therefrom. §427. — Whenever the defendant has appeared in the action, he may, upon reasonable notice to the plaintiff, apply to the court in which the action is pending, or to the judge thereof, for an order to discharge the attachment, wholly or in jDart; and upon the execution of the undertaking mentioned in the next section, an order may be made, releasing from the operation of the attachment, any or all of the property attached and all of the property so released, and all of the proceeds of the sales thereof must be delivered to the defendant upon the justification of the sureties on the undertaking, if required by the i^laintiff. § 428. — Before making an order, the court or judge must require an undertaking on behalf of the defendant, by at least two sureties, residents and freeholders, or householders, in the territory, to the effect that in case the plaintiff recover judg- ment in the action, defendant wdll, on demand, redeliver the attached property so released, to the proper officer, to be applied to the payment of the judgment, or in default thereof, that the defendant and sm'eties will, on demand, pay to the plaintiff the full value of the property released. The court or judge, making such oi-der, ma;- fix the sum for which the undertaking must be executed, and if necessary, in fixing ouch sum, to know the value of the property released, the same may be ap- praised by one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify before the court or judge, and the property attached cannot be released from the attachment without *heir justification, if the same be required. § 429. — The defendant may, also, at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, upon reasonable notice to the plaintiff, ajiply on motion to the court in v/hicli the action is brought, or to the judge thereof, for the discharge of the writ of attach- ment, on the .ground that the same was improperly or irregularly issued. § 430. — If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other evi- dence, in addition to those on which the attachment was made. § 431. — If upon such application it satisfactorily appears that the writ of attach- ment was imjiroperly or irregularly issued, it must be discharged. § 432. — The officer making the service must return the writ of attachment with the summons, if issued at the same time; otherwise within twenty days after its receipt, with a certiiicate of his proceedings indorsed thereon or attached thereto; and whenever an order has been made, discharging or releasing an attachment G98 VIRGINIA. upon real property, a certified copy of sucli order may be filed in the office of the county recorder in which the notice of attachment has been filed, and be indexed in like manner. Before justices of the peace — Sees. 748-751. Exemptions — Sees. 569, 570. VIRGINIA. [Code op 1873, and Subsequent Statutes.] CHAPTER CSLVin. OF ATTACHMEXTS, AND OF BAIL. § 1. — When any suit is instituted for any debt, or for damages for breach of any contract, an affidavit stating the amount and justice of the claim, that there is present cause of action therefor, that the defendant or one of the defendants is not a resident of this state, and that the affiant believes he has estate or debts due him within the county or corporation in which the suit is, or that he is sued with a de- fendant residing therein, the plaintiff may forthwith sue out of the clerk's office an attachment against the estate of the non-resident defendant for the amount so stated. § 2. — An affidavit at the time of or after the institution of any suit that the plaintiff's claim is believed to be just, and, where the suit is to recover specific per- sonal property, stating the nature, and, according to the affiant's belief, the value of such property, and the probable amount of damages the plaintiff will recover for the detention thereof, or where it is to recover money for any claim or damages for any wrong, stating a certain sum which (at the least) the affiant believes the plaintiff is entitled to or ought to recover, and an affidavit also that the affiant be- lieves that the defendant is removing or intends to remove such specific property or his own estate, or the proceeds of the sale of his property, or a material part of such estate or proceeds, out of this state, so that process of execution on a judg- ment in said suit, when it is obtained, will be unavailing, in any such case the clerk shall issue an attachment as the case may require. If the suit be for specific property, the attachment may be against the specific property sued for, and against the defendant's estate for so much as is sufficient to satisfy the probable damages for its detention, or at the option of the ])laintiff, against the defendant's estate for the value of such specific property and the damages for its detention. If the suit be to recover money for a claim, or damages for a wrong, the attachment shall be against the defendant's estate, for the amount specified in the affidavit as that which the affiant believes the i^laintiff is entitled to or ought to recover. §3. — On complaint by any person, or his agent, to any justice, whether his claim is payable or not, that his debtor intends to remove, or is removing, or has removed his effects out of this state, so that there will probably not be therein suf- ficient effects of the debtor to satisfy the claim when jud.gment is obtained there- for, should only the ordinary process of law be used to obtain such judgment, if such person, or his agent, make oath to the truth of such complaint, to the best of his belief, as well as to the amount and justice of his claim, and at what time the same is payable, the justice shall issue an attachment against the estate of the de- fendant for the amount so stated. §4. — On complaint by any lessor, or his agent, to a justice, that any person liable to him for rent intends to remove, or is removing, or has, within thirty days, removed his effects from the leased premises, if such lessor, or his agent, make oath to the truth of such complaint, to the best of his belief, and to the rent which is reserved (whether in money or other thing), and ■will be payable within one year, and the tin^e or times when it will be so x^ayable, and also make oath either that VIRGINIA. C99 there is not, or he believes, unless an attachment issues, there will not be left on Buch premises property liable to distress sufficient to satisfy the rent so to become payable, such justice shall issue an attachment for the said rent against such goods as might be distrained for the same if it had become payable, and against any other estate of the person so liable therefor. §5. — If any person has any claim against the master or owner of any steam- boat or other vessel, raft or river-craft, or against any steamboat or other vessel, raft or river-craft found within the jurisdiction of this state, for materials or sup- plies furnished or provided, or for work done for, in or upon the same, or for whai'fage,- salvage, pilotage, or for any contract for the transportation of , or for any injury done to any person or property by such steamboat or other vessel, raft or river-craft, or by any person having charge of her or in her employment, such person shall have a lien upon such steamboat or other vessel, i-aft or river-craft, for such material or supplies furnished, work done, or services rendered, wharfage, salvage, pilotage, and for such contract or injury as aforesaid, and may, in a pend- ing suit, sue out of the clerk's office of the circuit coiurt of the county, or of the corporation court or circuit court of the corporation in which such steamboat or other vessel, raft or river-craft may be foiuid, an attachment against such steam- boat or other vessel, raft or river-craft, with all her tackle, apparel and furniture and appurtenances, or against the estate of such master or owner. Any attach- ment may be sued out under this section, for a cause of action that may have arisen without the juri^idiction of this state, if the steamboat or other vessel, raft or river- craft be within the jurisdiction of this state at the time the attachment is sued out or executed. [Stats. 1877-8, p. 216.] § G. — Any attachment, issued under this chapter, may be directed to the sher- iff, sergeant or constable of any county or corporation. If issued in a pending suit, it shall be returnable to a term of the court in which the same is pending, or to some rule-day thereof. Where issued by a justice, it shall, if the claim is over twenty dollars (exclusive of interest), be returnable, at the option of thej^laintiff, to the next term of the circuit, county or corporation court of the county or corpo- ration in which the debtor last resided, or in which the leased tenement may be. The jud'ice <-.f the circuit court to which any attachment may be made returnable, or any other circuit court judge, may, in vacation, upon ten days' notice to the at- taching creditor, h^ar testimony upon the question, and if of opinion that the attachment was sued out without sufficient cause, may quash or dismiss the attachment. § 7. — Every such attachment (except where it is sued out specially against spe- cified property) may be levied upon any estate, real or personal, of the defendant, or so much thereof as is sufficient to piay the amount for which it issues, and may be levied ux)on any estate of the defendant, whether the same be in the county or corporation where the suit is, or in any other, either by the officer of the county or corporation w*herein the action is brought, or by the officer of the county or corpo- ration where the estate is. It shall be sufficiently levied in every case, by a serv- ice of a copy of such attachment on such persons as may be designated by the plaintiif in AVTiting, or be known to the officer to be in possession of effects of, or to be indebted to, the defendant; and as to real estate, by such estate being men- tioned and described by indorsement on such attachment. § 8. — But if the plaintiff shall, at the time of suing out such attachment, or afterward, give bond with security, approved by the clerk or justice issuing the attachment, in a penalty of at least double the amount of the claim sworn to or sued for, with condition to pay all costs and damages which may be awarded against him, or sustained by any person, by reason of his suing out the attach- ment, the said officer shall take possession of the property speciiied in the attach- ment, or where no such property is specified, of any estate or effects of the defendant, or so much thereof as is sufficient to pay the plaintiff's claim. When such bond is given, the fact shall be indorsed on the attachment, or certified by the clerk or justice to the officer, Avho shall return the said certificate with the at- tachment; and the bond, when taken by a justice, shall be returned by him to, and filed in, the clerk's office of the cuvat to which the attachment is returnable. § 9. — In either case, the officer shall retiun with the attachment the names of the persons designated as having effects of, or o%vins debts to, the defendant; shall summon them to appear as garnishees, at the first day of the court to which the attachment is returnable, or if the attachment be returnable at rules, at the first day of the next term after it is returnable, and shall also return a list and descrip- tion of the property taken (if any) under such attachment; and likewise the dat© of the service, or execution thereof, on each person and parcel of property. 700 VIRGINIA. § 10. — Sucli attacliment may be issued or executed on Sunday, if oath be made tbat the defendant is actually removing- his effects on that day. § 11. — On a suggestion by the judgment creditor that by reason of the lien of his vn-it of Jicri facias there is a liability on any person other than the judgment debtor, a summons may be sued out of the said ofMce, or where the judgment does not exceed the jurisdiction of a justice, may be sued out from a justice against said person, to answer such suggestion, and a copy thereof shall be served upon the judgment debtor, or if he be non-resident of the state, he shall be proceeded against by publication, as is provided in section ten of chapter one hundred and sixty-six of the code of eighteen hundred and seventy -three; the return day of which sum- mons when sued out from the clerk's office may be to the next term of the court, although more than ninety days after the date of the summons; but if there be publication against a non-resident j udgment debtor who does not appear in the proceedings, there shall be no judgment against a garnishee prior to the term of the court after the completion of the order of publication; and when sued out from a justice, such summons may be made returnable before any justice of the county or corporation wherein the same shall be issued, and shall be made returnable within sixty days at some certain place within such county or corporation to be named in such summons, and within the distiict wherein such defendant may re- side at the time of the service of such summons: Provided, however, that in a pro- ceeding imder this statute before a justice, there shall be no order of j)ublication. [Amended 1883-4, p. 158.] § 12. — The plaintiff shall have a lien from the time of the lev3dng of such at- tachment, or serving a copy thereof as aforesaid, upon the personal property, choses in action, and other securities of the defendant against whom the claim is, in the hands of or due from any such garnishee on whom it is so served, and on any real estate mentioned in an indorsement on the attachment or subpoena, from the suing out of the same. § 13.— F Any property levied on or seized as aforesaid, under any attachment, where the plaintiff has given bond, may be retained by or returned to the person in whose possession it Avas, on his giving bond, with condition to have the same forthcoming at such time and place as the court may require; or the defendant against whom the claim i3 may release from any attachment the whole of the es- tate attached by giving bond, with condition to perform the judgment or decree of the court. The bond, in either case, shall be taken by the officer serving the at- tachment, with security payable to the plaintiff, and in a penalty in the latter case at least double the amount or value for which the attachment issued; and in the former, either double the same or double the value of the property retained or re- turned, at the option of the person giving it. § 14. — Every such bond shall be returned by the officer to and filed by the clerk of the court in which the suit is fiending, or to which the attachment is retiurn- able; and the plaintiff may, within thirty days after the retm-n thereof, file excep- tions to the same, or to the sufficiency of the security therein. If such exception be sustained, the court shall rule the said officer to file a good bond, with sufficient seciu-ity, to be approved by it, on or before a certain day to be fixed by the court. If he fail to do so, he and his sureties in his official bond shall be Liable to the plaintiff as for a breach of such bond; but the officer shall have the same rights and remedies against the parties to any bonds so adjudged bad as if he were a surety for them. § 15.^ — When any attachment is sued out, either at law or in equity, on such affidavit as is mentioned in the second or third section, although the property or estate attached be not rejjlevied as nforesaid, the interests and profits thereof, pending the suit and before judgment or decree, may be paid to the defendant, if the court deem it proper; and at anytime during such period, the court, or a judge of a circuit court in vacation, may discharge the attachment, as to the whole of the estate of the defendant against whom the claim is, on his giving bond, with secu- rity i:)aj-able to the plaintiff, in a penalty double the value of such estate, with condition, if judgment or decree be rendered for the plaintiff in said suit, to pay the said value, or so much thereof as may be necessary to satisfy the same. § 16. — All property seized under any attachment or enjoining order of a court of chancery, and not replevied or sold before judgment or decree, shall be kept in the same manner as similar jiroi^erty taken under execution; but such as is expen- sive to keep, or perishable, may be sold by order of the com-t, or if it be a circuit court or the coiirt of chancery of the city of Eichmond, in vacation thereof, by or- der of the judge; such sale to be made in the same manner as if it were a sale under execution, except that when the claim for which the attachment w'as sued out is not yet payable, or the court or judge sees other reason for directing a credit, the VIRGINIA. 701 sale under this or any other section of this chapter shall be on credit until the time it i.^ payable, or such other time as the court vr jud.!,'e may direct; and for tbu iiro- ceeds of sale, bond, with good security, sliall be taken, payable to the officer, for the benefit of the party entitled, and shall be returned by the officer to the court. § 17. — V7hen any garnishee shall appear, he shall be examined on oath. If it appear, on such examination, or by his answer to a bill inrequity, tliat at or after the service of the attachment he was indebted to the defendant against whom the claim is, or had in his possession or control any goods, chattels, monej', securities, or other effects belonging to the said defendant, tiie court may order him to pay the amount so due by him, and to deliver such effects to such person as it may ap- point as receiver; or such garnishee, with the leave of the court, may give bond, with sufEcient security, payable to such pei-son, and in such jjenalty as the court shall prescribe, with condition to pay the amount due by him, and have such ef- fects forthcoming, at such time and place as the court may thereafter require: Provided, that the judgment debtor may claim that the amount so found due from the garnishee shall be exempt from the payment of the debt to the judgment cred- itor; and if it shall appear that the said judgment debtor has not claimed and held as exempt the amount of his homestead in other property or thing, then the court shall not render a judgment for the amount so found due in favor tf the judgment creditor, except it be for the excess of the same over and above* the homestead exemption. § IS. — If any garnishee summoned as aforesaid fail to appear in an attachment at law, the court may either compel him to appear, or hear proof of any debt due by him to or of effects in his hands of the defendant in such attachment, and make such orders in relation thereto as if what is so proved had appeared on his exam- ination. § 19. — AATien it is suggested by the plaintiff in any attachment at law, that the garnishee has not fully disclosed the debts due by him to or effects in his hands of the defendant in such attachment, the court shall cause a jury to be impanneled, without any formal pleading, to inquire as to such debts and effects, and proceed, in respect to any such found by the jury, in the same manner as if they had been confessed by the garnishee. If the verdict be in favor of the garnishee, he shall have judgment for his costs against the jjlaintiff. § 20. — When any attachment, except under the third or fom-th section, is re- turned executed, an order of publication shall be made against the defendant against whom the claim is, unless he has been served with a copy of the attachment or ■with process in the suit in which the attachment issued. § 21. — Either of the defendants in any such attachment, or any garnishee, or any party to any forthcoming or replevy bond given as aforesaid, cr the ofRcer, who may be liable to the plaintiff by reason of such bond being adjudged bad, may make defense to such attachment; but the attachment shall not thereby be dis- charged or the property levied on released. § 22. — The right to sue out any such attachment may be contested; and when the court is of opinion that it was issued on false suggestions, or without sufficient cause, judgment shall be entered that the attachment be abated. When the at- tachment is projierly sued out, and the case heard upon its merits, if the court be of opinion that the claim of the plaintiff is not established, final judgment shall be given for the defendant. In either case he shall recover his costs, and there shall be an order for the restoration to him of the attached effects. § 23. — If the claim of the plaintiff be established, judgment or decree shall be rendered for him, and the court shall dispose of the specific property mentioned in the second section as may be right, and order the sale of any other effects or real estate, which shall not have been previously replevied or sold under tliis chapter, and direct the proceeds of sale, and whatever else is subject to the attachment, in- cluding what is embraced by such replevy or forthcoming bond, to be applied in satisfaction of the judgment or decree. But no real estate shall be sold until all other property and money subject to the attachment has been exhausted, and then only so much thereof as is necessary to pay the judgment or decree. § 24. — But if the defendant, against whom the claim is, has not appeared or been served with a copy of the attachment sixty days before such decree, the plaintiff shall not have the benefit of the pjreceding section, unless or until lie shall have given bond, wdth sufficient security, in such penalty as the court shall ap- prove, with condition to perform such future order as may be made ujjon the appearance of the said defendant and his making defense. If the plaintiff fail to give such bond, in a reasonable time, the court shall dispose of the estate attached, or the proceeds thereof, as to it shall seem just. 70!? VIRGINIA. § 25. — Any person may file his petition, at any time before the property attached as the estate of a defendant is sold, or the proceeds of sale paid to the plaintiff un- der the decree or judgment, disputing the validity of the plaintiff's attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or other\vise, and. its nature, and upon giving security for costs, the court, without any other pleading, shall impannel a jury to inqidre into such claim, and if it be found that the petitioner has title to, or a lien on, or any inter- est in, such property or its proceeds, the court shall make such order as is necessary to protect his rights; the costs of which inquiry shall be paid by either party, at the discretion of the court. § 26. — The attachment first served on the same property, or on the person hav- ing such property in possession, shall have priority of lien. § 27. — If a defendant, against whom, on publication, judgment or decree is ren- dered under any such attachment, or his personal representative, shall return to or api:>ear openly in this state, he may, within one year after a copy of such judgment or decree shall be served on him at the instance of the plaintiff, or within five years from the date of the decree or judgment, if he be not so served, petition to nave the proceedings reheard. On giving security for costs, he shall be admitted to make defense against such judgment or decree, as if he had appeared in the case before the same was rendered, except that the title of any bona fide fiurchaser to any property, real or personal, sold under such attachment, shall not be brought in question or impeached. But this section shall not apply to any case in which the petitioner, or his decedent, was served with a copy of the attachment, or with process in the suit wherein it issued, more than sixty days before the date of the judgment or decree, or to any case in which he appeared and made defense. § 28. — On any rehearing or new trial had under the preceding section, the court may order the plaintiff in the original suit to restore any money, paid to him under Buch judgment or decree, to the heir or representative of such defendant, as the same may be, the proceeds of real or personal estate, and enter a judgment or de- cree therefor against him, or it may confirm the former judgment or decree; and in either case adjudge the costs to the jjre vailing party. § 29. — Any creditor whose claim, whether legal or equitable, does not exceed twenty dollars, exclusive of interest, upon complaint on oath in the manner pre- Bcribed by the first, second, third and seventh sections, as the case may be, may obtain from any justice of any county or corporation in which any j)roperty or ef- fects of the defendant may be, or in which any person indebted to him may reside, an attachment against the estate of such defendant, directed to the sheriff or ser- geant, or any constable of his county or corporation, and returnable before any justice thereof; and thereupon such proceedings may be had before the justice as would, if the claim exceeded twenty dollars, be had before a court, except that the proceedings shall in all cases be without any formal pleadings, and an order of pub- lication need not be published in any newspaper, and the justice shall try and de- cide all questions ■without a jury. All bonds taken under such attachment shall be filed with the clerk of the court of the county to which the justice belongs. § 30. — If, upon defense being made, in any case in which property is seized un- der an attachment, that the attachment was sued out without sufficient cause, it be found, either by the comi; or by the jury, if one be impanneled, that the defense is well founded, judgment may be entered for the defendant against the plaintiff for the damages sustained by the defendant by reason thereof. §31. — Where judgment or decree in favor of the plaintiff is rendered in any case in which an attachment is sued out, and on appeal therefrom an appeal bond is given, with condition to prosecute the appeal mth effect or pay the debt, inter- est, costs, and damages, as well as the costs of the appeal, the oflicer in whose cus- tody any attached property may be shall deliver the same to the owner thereof. § 32.— Any bond authorized or required by any section of this chapter may be given either by the party himself or by any other person. Corporation garnishee — Chap. 56, p. 543, sec. 32-34. Court may order sale of goods — Chap. 134, p. 971, sec. 15. Actions for wrongful attachments — Chap. 145, p. 995, sec. 3. Exemptions— Chap. 49, p. 176, sees. 32, 33; and Stats. 1877-8, p. 239^ WASHINGTON. 703 WASHINGTON. [General Laws; Statutes 1885-6, p. 39.] § 1. — The plaintiff at the time of commencing an action, or at any time after- ward before judgment, may have the property of the defendant, or that of any one or more of several defendants, attached in the manner hereinafter prescribed, as Becurity for the satisfaction of such judgment as he may recover. § 2. — The writ of attachment shall be issued by the clerk of the court in which the action, is pending ; but before any such writ of attachment shall issue, the plaintiff, or some one in his behalf, shall make and file with such clerk an afiidavit showing that the defendant is indebted to the plaintiff (specifying the amount of Buch indebtedness over and above all just credits and offsets), and that the attach- ment is not sought, and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant; and either, 1. That the defendant is a foreign corporation; or, 2. That the defendant is not a resident of this territory; or, 3. That the defendant conceals himself so that the ordinary process of law can- not be served upon him; or, 4. That the defendant has absconded or absented himself from his usual place of abode in this territory, so that the ordinary process of law cannot be served upon him; or, 5. That the defendant has removed or is about to remove any of his property from this territory with intent to delay or defraud his creditors; or, 6. That the defendant has assigned, secreted or disposed of, or is about to assign, secrete or dispose of, any of his property with intent to delay or defraud his cred- itors; or, 7. That the defendant is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors; or, 8. That the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or, 9. That the damages for which the action is brought are for injuries arising from the commission of some felony, or for the seduction of some female. § 3. — ^An action may be commenced and the property of a debtor may be at- tached previous to the time when the debt becomes due, when nothing but time is wanting to fix an absolute indebtedness, and when the affidavit, in addition to that fact, states: 1. That the defendant is about to dispose of his property with intent to defraud his creditors; or, 2. That the defendant is about to remove from the territory, and refuses to make any arrangements for securing the payment of the debt when it falls due, and which contemplated removal was not known to the plaintiff at the time the debt was contracted; or, 3. That the defendant has disposed of his property, in whole or in part, with intent to defraud his creditors; or, 4. That the debt was incurred for property obtained under false pretenses. § 4. — If the debt or demand for which the attachment is sued out is not due at the time of the commencement of the action, the defendant is not required to file any pleadings until the maturity of such debt or demand, but he may, in his dis- cretion, do so, and go to trial as early as the cause is reached. § 5. — No final judgment shall be rendered in such action, unless the party con- sents, as in the last section, until the debt or demand upon which it is based becomes due. But property of a perishable nature may be sold as in other cases of attachment. § 6. — Before the writ of attachment shall issue, the plaintiff, or some one in his behalf, shall execute and file with the clerk a bond or undertaking, with two or more sureties, in a sum in no case less than three hundred (300) dollars in the district court, nor less than fifty (uO) dollars in a justice's coiirt, and double the 704 WASniNGTON". • amount for whicli plaintiff demands judgment, conditioned that the plaintiff will prosecute his action without delay, and will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the amount specified in such bond or undertaking as the penalty thereof, should the same be wrongfully, oppressively or maliciously sued out. With said bond or undertaking there shall also be filed the affidavit of the sureties, from which it must appear that such sureties are qualified, and that they are, taken together, worth the sum specified in the bond or undertaking, over and above all debts and liabilities and property exempt from execution. No person not qualified to become bail ujion arrest shall be qualified to become surety upon a bond or imdertaking for an attachment. § 7. —The defendant may, at any time before judgment, move the court or judge for additional security on the part of the plaintiff, and if, on such motion, the court or judge is satisfied that the surety in the plaintiff 's bond has removed from this territory, or is not sufficient, the attachment may be vacated, and resti- tution directed of any property taken under it, unless in a reasonable time, to be fixed by the court or judge, fxirther security is given by the plaintiff in form as provided in section six of this act. § 8. — Id an action on such bond the plaintiff therein may recover, if he shows that the attachment was wTongfully sued out, and that there was no reasonable cause to believe the ground upon which the same was issued to be true, the actual damages sustained and reasonable attorney's fees, to be fixed by the court; and if it be shown that such attachment was sued out maliciously, he may recover exem- plary damages, nor need he wait until the principal suit is determined before suing on the bond. § 9. — The writ of attachment shall be directed to the sheriff of any county in which property of the defendant may be, and shall require him to attach and safely keep the property of such defendant within his county, to the requisite amount; which shall be stated in conformity ■with the affidavit. The sheriff shall in all cases attach the amount of property directed, if sufficient not exempt from execution be found in his county, giving that in which the defendant has a legal and unquestionable title a preference over that in which his title is doubtful or only equitable, and he shall, as nearly as the circumstances of the case will permit, levy upon projjerty fifty per cent greater in valuation than the amount which plaintiff in his affidavit claims to be due. "When property is seized on attachment, the court may allow to the officer having charge thereof such compensation for his trouble and expenses in keeping the same as shall be reasonable and just. § 10. — Writs of attachment may be issued from the district courts to different counties, and several may, at the option of the plaintiff, be issued at the same time, or in succession and subsequently, until sufficient property has been attached; but only those executed shall be attached in the costs, unless otherwise ordered by the coiu-t, and if more i^roperty is attached in the aggregate than the plaintiff is entitled to have held, the surplus must be abandoned and the plaintiff pay all costs incurred in relation to such surplus. After the first writ shall have issued, it shall not be necessary for the plaintiff to file any further affidavit or bond, but he shall be entitled to as many writs as may be necessary to secure the amount claimed. §11. — Where there are several attachments against the same defendant, they shall be executed in the order in which they were received by the sheriff. § 12. — If, after an attachment has been placed in the hands of the sheriff, any property of the defendant is moved from the county, the sheriff may pursue and attach the same in an adjoining county, within twenty-four hours after removal. § 13. The sheriff to whom the writ is directed and delivered, must execute the same without delay as follows: 1. Real property shall be attached by filing a copy of the writ, together with a description of the property attached, w4th the county auditor of the coimty in which the attached real estate is situated. 2. Personal property, capable of manual delivery, shall be attached by taking into custody. 3. Stock or shares, or interest in stock or shares, of any corporation, association or company, shall be attached by leaving with the president, or other head of the same, or the secretary, cashier or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached in pursu- ance of such ^\•rit. 4. Debts and credits, and other personal property, not capable of manual deliv- ery, shall be attached by leaving with the person owing such debts, or having in WASHINGTON. 705 his possession, or under his control, such credits, or other personal property, a copy of the writ, and a notice in "»\Titing that the debts owing by him to the defendant, or the credits and other personal property in his possession, or under his control, are attached in pursuance of such WTit. § 14. — "Whenever it appears by the affidavit of the plaintiff or by the return cf the attachment that no property is known to the plaintiff or officer on which the attachment can be executed, or not enough to satisfy the plaintiff 's claim, and being shown to the court or judge by affidavit that the defendant has prop- erty within the territory not exem^Jt, the defendant may be required liy such court or judge to attend before the court or judge, or referee appointed by tho court or judge, and give information on oath respecting the same. § 15.— The court before whom the action is pending, or the judge thereof in vacation, maj^ at any time appoint a receiver to take possession of property attached under the provisions of this act, and to collect, manage, and control the same, and pay over the proceeds according to the nature of the i;iroj)erty and the exigency of the case. § 16. — If any of the property attached be perishable, or in danger of serious and immediate waste or decay, the sheriff shall sell the same in the manner in which such property is sold on execution. Whenever it shall be made to appear satis- factorily to the coiu-t or judge that the interest of the parties to the action will be subserved by a sale of any attached property, the court or judge may order such property to be sold in the same manner as like property is sold under execution. Such order shall be made only upon notice to the adverse party or his attorney in case such party shall have been personally served with a summons in the action. Debts and credits attached may be collected by the sheriff, if the same can be done without suit, and the sheriff's receipt shall be a sufficient discharge for the amount paid. § 17. — All moneys received by the sheriff under the provisions of this act, and all other attached property, shall be retained by him to answer any judgment that may be recovered in the action unless sooner subjected to execution ui^on another judgment recovered previous to the issuing of the attachment. § 18. — All persons having in their possession or under their control any credits or other jiersonal property belonging to the defendant, or owing any debts to the defendant at the time of the service upon them of a copy of the writ and notice, as provided in subdivision iovx of section thirteen of this act, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff for the amount of such credits, property or debts, until the attach- ment be discharged, or any judginent recovered by him be satisfied. § 19. — A sheriff or constable may be garnished for money of the defendant in his hands. 8o may a judgment debtor of the defendant when the judcjTaeut l.ft.3 not been previously assigned on the record or by writing filed in the office of the clerk, and by him minuted as an assignment on the margin of the execution docket, and also an executor or administrator may be garnished for money due from the decedent to the defendant. § 20. — When property to be attached is a fund in comrt, the execution of a writ of attachment shall be by leaving with the clerk of the court a copy thereof, with notice in %vriting specifying the fund. § 21. — The sheriff shall make a full inventory of the property attached and return the same with the writ. To enable him to make such retiu-n as to debts and credits attached, he shall request at the time of service the party owing the debt or having the credit to give him a memorandum in \vriting stating the amount and description of each, and if such memorandum be refused, he shall retm-n the fact of the refusal with the writ. The party refusing to give the memorandum may be required to attend before the court or judge, or a referee ajipointed by the court or judge, and answer under oath respecting such debts or credits, or other property. If, when duly summoned, he fail to appear and answer the interroga- tories propounded to him, without sufficient excuse for his delinquency, he shall be presumed to be indebted to the defendant to the full amount of the plaintiff's de- mand. But for a mere failure to appear he is not liable to pay the amount of plaintiff's jvidgment until he has had an opportunity to show cause against the issuing of an execution. § 22. — If upon the examination of such garnishee, as provided in the last sec- tion, it appears that the garnishee was indebted to the defendant, or had any credits or other property of the defendant in his possession or imder his control at the time of the service of the co^iy of the writ and notice upon him, as herein- II ATTACaMENI— 20. 706 WASHINGTON. before provided, or at any time subsequent thereto, he is liable to the plaintiff in case judgment is finally recovered by him to the full amount of that judgment, or to the amount of such indebtedness, and of the credits or other personal property held by him, and a judgment shall be entered up against him accordingly. § 23. — If the debt of the garnishee to the defendant is not due, execution shall be suspended tmtil its maturity. § 24. — The garnishee shall not be made liable on a debt due by negotiable paper, unless such paper is delivered, or the garnishee completely exonerated or indemni- fied from all liability thereon after he may have satisfied the judgment. § 25. — If judgment be recovered by the plaintiff, the sheriff shall satisfy the eame out of the property attached by him which has not been delivered to the defendant or claimant, as in this act provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose: 1. By appljdng on the execution issued on said judgment the proceeds of aU Bales of perishable or other property sold by him, or of any debts or credits col- lected by him, or so much as shall be necessary to satisfy the j'udgment. 2. If any balance remain due, he shall sell under the execution so much of the propertj^ real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notice of the sale shall be given, and the sale conducted as in other cases of sales on execution. § 26. — If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits col- lected by him, deducting his fees, to the payment of the judgnaent, any balance shall remain due, the sheriff shall proceed to collect such balance, as upon an exe- cution in other cases. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached imappUed on the judgment. § 27. — If the execution be returned unsatisfied, in whole or in part, the plaintiff may proceed as in other cases upon the return of an execution. § 28. — If the defendant recover judgment against the plaintiff, all the proceeds of sales and money collected by the sheriff, and all the property attached remain- ing in the sheriff's hands, shall be delivered to the defendant, or his agent. The order of attachment shall be discharged, and the property released therefrom. § 29. If the defendant, at any time before judgment, causes a bond to be exe- cuted to the plaintiff with sufficient sureties, to be approved by the officer having the attachment, or after the return thereof by the clerk, to the effect that he will perform the judgment of the court, the attachment shall be discharged and resti- tution made of property taken or proceeds thereof. The execution of such bond shall be deemed an appearance of such defendant to the action. § 30. —Such bond shall be part of the record, and, if judgment go against the defendant, the same shall be entered against him and siu-eties. § 31. — The defendant may at any time after he has appeared in the action, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the judge thereof, that the writ of attachment be discharged, on the grovmd that the same was improperly or irreg- ularly issued. § 32. — If the motion be made upon aflBdavits upon the part of the defendant, but not otherwise, the plaintiff may oppose the same by aflidavits, or other evi- dence, in addition to those on which the attachment was issued. § 33. — If upon application it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged. § 34. — The sheriff must return the writ of attachment with the summons, if issued at the same time; otherwise within twenty days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto; and whenever an order has been made discharging or releasing an attachment upon real prop- erty, a certified copy of such order may be filed in the offices of the county auditors in which the notices of attachment have been filed, and be indexed in like manner. I WASHINGTON. 707 « § 35. — This act shall be liberally construed, and the plaintiff, at any time when objection is made thereto, shall be permitted to amend any defect in the complaint, affidavit, bond, writ or other proceeding, and no attachment shall be quashed or dismissed, or the property attached released, if the defect in any of the proceedings has been or can be amended so as to show that a legal cause for the attachment existed at the time it was issued, and the court shall give the plaintiff a reasonable time to perfect such defective proceedings. The causes for attachment shall not be stated in the alternative. § 36. — The judge of any district court shall have power to make every order in vacation which, by the provisions of this act, may be made by the coui-t in term time. § 37. — The word "sheriff," as used in this act, is meant to apply to constables, when the proceedings are in a justice's court, and when the proceedings are in a justice's court, the justice is to be regarded as the clerk of the court for all pur- poses herein contemplated: Provided, that nothing contained in this act shall be construed to confer upon a justice of the peace power to issue a vnit of attachment to be served out of the county in which such justice shall have his office, or to confer upon a sheriff, constable or other officer, power or authority to serve a writ of attachment issued out of a justice's comrt beyond the limits of the county in which such justice shall have his office, except in cases provided for in section twelve of this act: And provided further, that nothing contained in this act shall be con- strued or held to authorize the attachment of real estate, or of any interest therein, under a wi-it of attachment issued out of any justice's court. § 38. — That chapter twelve of the Code of Washington Territory, and sections one thousand seven hundred and twenty-six to one thousand seven hundred and forty -five, each included, of the Code .of Washington Territory, and an act entitled " an act to amend chapter twelve, section one hundred and seventy-six, of the Code of Washington," approved November 28, 1883, and all other laws heretofore en- acted upon any subject-matter contained in this act, be and the same are hereby repealed: Provided, that rights acquired ia actions now pending under existing laws shall not be affected by anything herein contained. § 39.— This act shall take effect and be in force from and after its approval by the governor. [Approved February 3, 1886. 708 WEST VIRGINIA. WEST VIRGINIA. [Amended Code, 1884] CHAPTER CVL [Acts 1882, p. 513.] ATTACHMEXT — WHEN AND HOW StTEB OUT. § 1. — When any action at law or suit in equity is about to be or is instituted for the recovery of any claim or debt arising out of contract, or to recover dam- ages for any -^vrong, the plaintiff, at the commencement of the action or suit, or at any time thereafter, and before judgment, may have an order of attachment against the property of the defendant, on filing with the clerk of the court in which such action or suit is about tobeoris brought, his o\vn affidavit, or that of some, cred- ible person, stating the nature of the plaintiff's claim, and the amount at the least, which the affiant believes the plaintiff is justly entitled to recover in the action; and also, that the affiant believes that some one or more of the following grounds exist for such attachment: First. That the defendant, or one of the defendants, is a foreign corporation, or is a non-resident of this state; or, Second. Has left or is about to leave the state, with intent to defraud his cred- itors; or. Third. So conceals himself that a summons cannot be served upon him; or, Fourth. Is removing, or is about to remove his property, or a material part thereof, out of this state, with intent to defraud his creditors; or, Fifth.^ Is converting, or is about to convert, his property, or a material part thereof, into money or securities, with intent to defraud his creditors; or. Sixth. Has assigned or disposed of his property, or a material part thereof, or is about to do so, with intent to defraud his creditors; or. Seventh. Has property or rights in action which he conceals; or, Eiglith. Fraudulently contracted the debt or incurred the liability for which the action or suit is about to be or is brought. And unless the attachment is sued out upon the first of such grovmds, the affi- ant shall also state in his affidavit, the material facts relied on by him to show the existence of the grounds upon which his application for the attachment is based. The order shall be issued by the clerk, and may be in form or effect as follows: A B , plaintiff, \ vs. \ Order of attachment. C D— — — , defendant, j The plaintiff in this case having filed his affidavit as required by law, the sheriff of the county of • — , or a constable of any district therein, to whom this order may come, is required, in the name of the State of West Virginia, to attach the estate of the defendant, C D , sufficient to pay the sum of (the amount affiant states the plaintiff is justly entitled to recover), and the costs of this suit, and make return of his proceedings under this order to the next term of the court (or at rules to be held for the court, on the day of , naming in either case the court in which the action is brought). Witness E F , clerk of said court, this day of . E F , Clerk. And such attachment may be sued out in a comi; of equity for a debt or claim legal or equitable not due, upon any of the grounds aforesaid, but the affidavit in such case must show when it ^vill become due: Provided, that an attachment shall not be sued out against a foreign corporation for a debt not due upon the ground alone that it is a foreign corporation, nor against a non-resident defendant for a del)t not due imless the affiant show by his affidavit that he was a resident of this state when the debt was contracted, and that the plaiatiff believed he would remain a resident of this state at the time he gave him credit. WEST VIRGINIA. 709 § 2. — If the plaintiff at the time of suing out his attachment, or afterward, before jud.Ljment, give the bond and security required by the sixth section of thia chapter, such order may be in form or effect as follows: A B , plaintiff, ] vs. y Order of Attachment. C D- , defendant, j The plaintiff in this case having filed the necessary affidavit and bond, the sheriff of the county of , or a constable of any district therein, to whom this order shall come, is herel)y required, in the name of the state of West Vir- ginia, to attarli and take into his possession the estate of the defendant, C • D-; — ;— , sufficient to pay the sum of dollars (the amount affiant .states the plaintiff is justly entitled to recover), and the costs of this suit, and make return of his proceedings under this order to the next term of the court (or at the rules to be held fur the court on the day of , naming la either case the court in which the action is brought). Witness: E F , clerk of said court, this day of ■ F , Clerk. An order of attachment under this or the preceding section may be isued and directed to the sheriff or a co?.stable in any county of this state; and several such orders may be issued and delivered to different officers at the same or different times. § 3. — [See ch. 50, sec. 19.5.] On complaint by any lessor or his agent to a jus- tice, that any person liable for rent intends to remove, or is removing, or has within thirty days removed his effects from the leased premises, if such lessor, or his agent, make oath to the truth of such complaint to the best of his belief, and to the rent which is reserved (whether in money or other thing), and will be pay- able in one year, and the time or times when it will be payable, and also make oath either that there is not, or he believes, unless an attachment issues, there will not be, left on such premises property liable to distress sufficient to satisfy the rent so to become paj'able, such justice shall, if the rent so claimed exceed fifty dol- lars, exclusive of interest, issue an order of attachment for the said rent against the personal estate of the person so liable therefor, returnable to the next term of the circuit court thereafter. The order of attachment in such case shall be m form or effect as follows: A B , plaintiff, ^ District of , County, to wit; J C D , defendant. ) Order of Attachment. The aliove named plaintiff having filed with me the affidavit required by law, the sheriff of the county of or any constable therein to whom this order may come, is hereby required, in the name of the state of West Virginia, to attach and take into his possession the personal estate of the defendant, C D , sufficient to pay the sum of dollars (the sum afliant states will be due), and the costs of this attachment, and to make return of his proceedings under this oi-der to the next term of the circuit court of the said county. Given under my hand this day of . E F , Justice. The defendant in an attachment issued under this section may make defense thereto in the same manner and to the same extent as in other cases; and the same as to the rent claimed, shall be proceeded in, tried and determined, as if it were an original action brought in said court, and the afiidavit and attachment shall take the place of a declaration in the case. And the affidavit in such case shall be returned to the clerk of the circuit court by the justice. §4. — The officer to whom any attachment issued under this chapter shall be delivered for execution, shall execute and return the same as therein required, and if he fail to do so, he and his sureties in his official bond shall be liable to the plaintiff in the case for all damages he may sustain by reason of such failure. § 5. — Every attachment issued under the provisions of this chapter, may be levied upon any estate, real or personal, of the defendant named therein, or so much thereof as is sufficient to pay the amount for which it issues, except that an attachment issued under the third section shall be levied on personal estate only. The plaintiff may, by an indorsement on the order, designate any i^erson as being indebted to, or having in his p>ossession, the effects of the defendant, or one of the defendants; and in such case the clerk shall make as many copies of the order as there are persons designated, with an indorsement thereon that the person so designated is required to appear at the next term of the court in which the action or suit is pending, and disclose on oath in what sum he is indebted to the defend- ant, and what effects of the defendant he has in his hands; and it shall be suffi- ciently levied on such person by delivering him a copy of the order and indorse- 710 WEST VIRGINIA. ment, or by a service thereof upon him in the same manner as a notice may by law be served; and if the same be levied upon real estate, it shall be sufBciently served by an indorsement thereon, or upon a paper annexed thereto, stating as near as may be the quantity, or the supposed quantity, and the location thereof. ATTACHMENT BOND — ITS CONDITION, ETC. § 6. — But if the plaintiff shall, at the time of suing- out such attachment, or after- ward, give bond with good security, approved by the clerk issuing the attachment, in a penalty of at least double the amount of the claim sworn to, with condition to pay all costs and damages which may be awarded against him, or sustained by any person by reason of the suing out of the attachment, and to pay to any claimant. of any Eroperty seized or sold imder or by virtue of said attachment, all damages which may recover in consequence of such seizure or sale; and also to warrant and defend to any purchaser of the property such estate or interest therein, as is sold, the said officer shall take possession of the property levied on by virtue of such attachment. If such bond be given, no action shall be maintained against the officer levying such attachment uf)on property or effects not belonging to the debtor, unless it shall appear that such levy was %villfully and knowingly made. If the plaintiff has sued out an order of attachment without giving such bond, and afterward gave the same as aforesaid, it shall be the duty of such clerk, whether the attachment has been levied or not, to certify the fact that such bond has been given to the officer who levied the same, or in whose hands it was to be levied, or if he be absent or out of office, to issue a new order of attachment and to place the same in the hands of some other proper officer; and it shall be the duty of any such officer to take the attached property into his possession and make return of such order in like manner as if said bond had been given before the issuing of the original attachment. The defendant may except to the said bond, or to the suf- ficiency of the security therein, and if the exceptions be sustained by the court, the attached property shall be returned to the defendant, unless the plaintiff give a proper bond, with sufficient security, to be approved by the court within such time as the court shall direct. § 7. — ^The officer serving the attachment shall make return of the time and manner of service on each person designated as being indebted to, or having in his possession, the property of any such defendant; and shall also return a list and description of the property taken (if any) under such attachment, and likewise the date of such service, or execution thereof, on each person and parcel of property. § 8. — Such attachment may be issued or executed on Simday if oath be made that defendant is actually removing his effects on that day. ATTACHMENT LIEN — EEPLEVTING — KEEPING OR SELLING PEOPERTT. § 9. — The plaintiff shall have a lien, from the time of the levying of such attachment, or serving a copy thereof as aforesaid, upon the personal property, choses in action, and other securities of the defendant against whom the claim is, in the hands of, or due from, any garnishee on whom it is so served, and on any real estate levied on by virtue thereof, from the suing out of the same. But if no bond be given by the plaintiff, and such personal property, choses in action, or other securities of the defendant, or any part thereof, be sold or disposed of for a valuable consideration, the lien of 'the attachment thereon shall cease and deter- mine from the date of such sale or disposition. § 10. — Any property levied on or seized as aforesaid under an>- attachment, where the plaintiff has given bond, may be retained by or returned to the person in whose possession it was, on his giving bond, with condition to have the same forthcoming at such time and place as the court may require; or the defendant against whom the claim is may release from any attachment the whole of the estate attached, Ijy giving bond, with condition to perform the judgment or decree of the court. The bond, in either case, shall be taken by the officer serving the attachment, with security, payable to the plaintiff, and in a penalty, in the latter case, at least double the amount or value for which the attachment issued, and in the former, either double the same or double the value of the property retained or returned, at the option of the person giving it. § 11. — Every such bond shall be returned by the officer to, and filed by, the clerk of the court ia which the suit is pending, or to which the attachment is returnable; and the plaintiff may, within thirty days after the return thereof, file exceptions to the same, or to the sufficiency of the security therein. If such exceptions be sustained, the court shall rule the said officer to file a good bond, WEST YIRGINIA. 711 ■with sufficient security, to be approved by it, on or before a certain day to be fixed by the court. If ho fail to do so, he and his sureties in his official bond shall be liable to the plaintiff as for a breach of such bond. But the officer shall have the same rights and remedies against the parties to any bond so adjudged bad, as if he were a surety for them. § 12. — When any attachment is sued out, either at law or in equity (except against non-residents), on such affidavit as is mentioned in the first section of this chapter, although the property or estate attached be not replevied as aforesaid, the interest and profits thereof, pending the suit and before judgment and decree, ma^r be jjaid to the defendant, if the court deem it proper; and at any time during such period the court, or in vacation the judge thereof, may discharge the attach- ment, as to the whole of the estate of the defendant against whom the claim is, on his giving bond, with security, payable to the plaintiff in a penalty double the value of such estate, with condition, if judgment or decree be rendered for the plaintiff in said suit, to pay the said value, or so much thereof as may be neces- Bary to satisfy the same. §13. — All property seized under any attachment, and not replevied or sold before judgment, shall be kept in the same manner as similar property taken under execution. But such as is expensive to keep, or perishable, may be sold by order of the court, or in vacation thereof, by order of the judge; such sale to be made in the same manner aa if it were a sale under execution, except that where the claim for which the attachment was sued out is not yet payable, or the court or judge sees other reasons for directing a credit, the sale under this, or any other section of this chapter, shall be on credit until the time it is payable, or such other time as the court or judge may direct, and for the proceeds of sale, bond with good security shall be taken, payable to the officer, for the benefit of the party entitled, and shall be returned by the officer to the court. PROCEEDINGS WHERE THERE IS A GARNISHEE. §14. — When any garnishee shall appear he shall be examined on oath. If it appear on such examination, or by his answer to a bill in equity, that at or after the service of the attachment he was indebted to the defendant against whom the claim is, or had in his possession or control any goods, chattels, money, seciu-ities or other effects belonging to the said defendant, the court may order him to pay the amount so due by him, and to deliver such effects to such person as it may appoint as receiver; or such garnishee, with leave of the court, may give bond, with sufficient security, payable to such person and in such penalty as the court may prescribe, with condition to i^ay the amount due by him and have such effects forthcoming at such time and place as the court may thereafter require. § 1,5. — If any garnishee summoned as aforesaid fail to appear in an attachment at law, the court may either compel him to appear or hear proof of any debt due by him to, or effects in his hands of, the defendant in such attachment, and make such orders in relation thereto as if what is so proved had appeared in his exam- ination. § 10. — When it is suggested by the plaintiff in any attachment at law that the garnishee has not fully disclosed the debts due by him to, or effects in his hands of, the defendant in such attachment, the court shall cause a jury to be impanneled, without any formal pleadings, to inquire as to such debts and effects, and proceed in respect to any such found by the jury in the same manner as if they had been confessed by the garnishee. If the verdict be in favor of the garnishee, he shall have judgment for his costs against the plaintiff. ORDER OF PUBLICATION — DEFENSE TO THE ATTACHMENT — CONFLICTING CLAIMS AND JUDGMENT. § 17. — When any attachment, except under the third section, is returned exe- cuted, an order of publication, as prescribed in chapter one hundred and twenty- four, shall be made against the defendant against whom the _claim is, unless _he has been served with a copy of the attachment or with process in the suit in which the attachment issued. § 18. — Either the defendant in any such attachment, or any garnishee, or any party to any forthcoming or replevy bond given as aforesaid, or the officer who may be liable to the ijlaintiff by reason of such bond being adjudged bad, may make defense to such attachment, but the attachment shall not thereby be dis- charged or the property levied on released. § 19. — The right to sue out an attachment may be contested, and when the court is of opinion that the facts stated in the affidavit were not sufficient to 712 "WEST VIRGINIA. authorize the issuing thereof, or that the affidavit is otherwise insufficient, judg- ment shall be entered that the attachment be quashed. If the defendant desire to controvert the existence of the grounds for the attachment stated in the affidavit, he may file a plea in abatement denjnn;^ the existence of such grounds, and the issue on such plea shall be tried by a jury, unless the same be waived by the par- ties. The affirmative of such issue shall be with the plaintiff; and if he fail to prove to the satisfaction of the jury the existence of the grounds denied by the defendant, the verdict shall be for the defendant, and judgment shall be entered that the attachment be abated. But the court may grant new trials as in other cases. When the attachment is properly sued out, and the case heard upon its merits, if the court be of opinion that the claim of the plaintiff is not established, final julgment shall be given for the defendant. In either case the defendant shall recover his costs, and there shall be an order for the restoration to him of the attached effects. § 20. — If the claim of the plaintiff in any suit or proceeding under this chap- ter be established, judgment or decree shall be rendered for lum, and the court shall order th3 sale of any real or personal estate levied upon under and by virtue of any such attachment, which shall not have been previously sold or replevied under this chapter, and direct the proceeds of the sale of such property and what- ever else the attachment has been levied upon, including what is embraced by such replevy or forthcoming bond, to be applied in satisfaction of such judgment or decree. But no real estate shall be sold under such order until all other property and money so levied on as aforesaid has been exhausted, and then only so much .thereof as is necessary to pay the judgment or decree. § 21. — When a sale of real estate is so ordered, the court shall prescribe in the order the terms of such sale and the officer or person by whom it shall be made. The officer or person making such sale of real estate shall report to the court which ordered the sale, the real estate so sold by him, with the name of the pur- chaser, the sum for which it sold, and the time and place of such sale. The court for good cause, may refuse to confirm the sale, and order the property to be re- sold; but if good cause for setting the sale aside be not shown, the court shall con- firm the same, and shall direct a deed of conveyance of the real estate so sold to be made to the purchaser thereof, by the officer or person who sold the same, or by a special commissioner appointed for that purpose, whenever the iiurchase- money thereof, with its interest, shall have been fully paid. An officer heretofore or hereafter directed by the court to make such conveyance may make the same in his official character, notwithstanding his term of office shall have expired. And in case of death, removal, inabilitj^ or failure or refusal to act, of the officer or per- son heretofore or hereafter appointed to make any such sale or conveyance, before the same ii made, the circuit court of the county in which such judgment, decree or order was rendered or made, may appoint a special commissioner to malce such, sale or conveyance, or both, as required by such judgment, decree or order. WHEN PLAINTIFF MUST GIVE BOND BEFORE SALE. §22. — But if the defendant whose real estate is attached has not apjreared in the action or suit, or been served with a copy of the attachment sixty days before such judgment, decree or order, no sale of the real estate so attached shall be made until the plaintiff or some one for him, shall give bond, with sufficient secu- rity, in such penalty as the court shall approve, with condition that the plaintiff will perform such future order as may be made by the court in the action or suit, in case the defendant appear and make defense therein within the time prescribed by law: Provided, that after the right of a defendant to appear and make defense in any such action or suit shall have expired by limitation or otherwise as pre- scribed ii this chapter, a sale of such re?l estate may be made under the judg- ment, order or decree, whether such bond has been given or not. If personal property be levied upon and ordered to be sold, ■•vhere there has been no such appearance or service of the attachment, as aforesaid, and no bond has been given by the plaintiff as provided in section six of this chapter, the court shall require such bond to be given by the plaintiff, and if the plaintiff, or some one for him, fail to give such bond within a reasonable time, the court shall disjxjse of 6uch property, or the proceeds thereof, as to it shall seem just PETITION DISPUTING PLAINTIFF'S CLAIM, ETC. § 2.3.— Any person interested may file his petition at any time before the prop- erty attached, as the estate of a defendant, is sold under the decree or iudsment, or if the proceeds of the sale have not been paid over to the plaintiff or his assigns, within one year after such sale, disputing the validity of the i^laintiff's attachment thereon, or stating a claim thereto, or an interest in or lien on the WEST VIRGINIA. 713 same, imcler any other attachment or otherwise, and its nature, and upon givin» security for costs, the court, without any other pleading, shall itnpannel a jury to inquire into such claim, and if it be found that the petitioner has title to, or lien on, or any interest in such property or its proceeds, the coui-t shall make such order as is necessary to protect his rights; the costs of which inquiry shall be paid by either party, at the discretion of the court. PRIORITY OF ATTACHMENTS. § 24. — The attachment first served on the same personal property, or on the person having such property in his possession, shall have priority of lien; and tha officer making the levy shall note on the order of attachment the day and hour at which the levy is made: Provided, that where two or more attachments are deliv- ered to the .same officer at different times to be served, he shall serve them in the ordjr in which he receives them, and when they are delivered at the same time, they sliall be served at the same time and be satisfied pro rata out of the proceeds of the attached j)roperty. REHEARING AFTER JUDGMENT OR DECREE. §25. — If a defendant against whom, on publication, judgment or decree has been or shall hereafter be rendered, in an action or .suit in which an attachment has been or may be sued out and levied as provided in this chapter, or his personal representatives, sh.all return to or appear ojienly in this state, he may, within one year after a copy of such judgment or decree has been or shall be served upon him, at the instance of the plaintiff, or within five years from the date of such judg- ment or decree, if he be not so served, petition to have the proceedings reheard. On giving security for the costs which have accrued and shall thereafter accrue, Buch defendant shall be admitted to make defense against such judgment or decree, as if ho had ajipeared in the case before the same was rendered, except that the title of any bona fide purchaser to any property, real or personal, sold under such attachment, .shall not be brought in question or impeached. But this section shall not apply to any case in which the petitioner, or his decedent, was served with a copy of the attachment, or with process in the suit wherein it issued, more than sixty days before the date of the judgment or decree, or to a case in which he appeared and made defense. JUDGMENT OR DECREE ON REHEARING. § 26. — On any rehearing or new trial had under- the preceding section of this chapter, if the judgment or decree be for the defendant, the court may order the plaintilf in the original suit, or his personal representative, to restore any money pai 1 him under his judgment or decree therein, with interest from the date of such order, to the defendant, or his i^ersonal representative, entitled thereto, and may enter a judgment or decree against him therefor; and if the defendant or his per- sonal representative fail to recover on such rehearing or new trial, the original jud,gment or decree shall be confirmed; and in either case the costs shall be adjudged to the prevailing party. WHERE DAMAGES AGAINST PLAINTIFF; ON APPEAL FROM JUDGMENT; HOW BONDS ARE GIVEN IN ATTACHMENT dASES. § 27. — If upon defense being made in any case in which property is seized under attachment, that attachment was sued out without sufficient cause, it be found either by the court or by the jury, if one be impanneled, that the defense is well founded, judgment may be entered for the defendant against the plaintiff for the damages sustained by the defendant by reason thereof. § 28. — Where judgment or decree in favor of plaintiff is rendered in any case in which an attachment is sued out, and on appeal therefrom an appeal bond is given with condition to prosecute the appeal with effect, or pay the debt, interest, costs and damages, as well as the costs of the appeal, the officer in whose custody any attached piroperty may be shall deliver the same to the owner thereof. § 29. — Any bond authorized or required by any section of this chapter may be given either by the party himself or by any other person. Before justices of the peace— Stats. 1881, p. 92; Code of 1808, sees. 193-210; Stats. 1882, p. 401. Exemptions, Amended Code, 1884 — Personal property, chap. 41, sees. 23-29; homesteads, sees. 30-34; county property, Stats. 1881, p. 30; school-houses, Stats. 1881, p. 187. Damages for wrongful attachment — Chap. 103. Process returnable — Stats. 1882, p. 329. 714 WISCONSIN. AVISCONSIN. [Revised Statutes, 1878, and subsequent Statutes.J CHAPTER CXXIV. OF ATTACHMENT. § 2729. — Any creditor shall be entitled to proceed by attachment, in the circuit court for the proper county, against the property of his debtor, whether a natural person or corporation, in the cases, upon the conditions and in the manner pre- scribed in this chapter. No writ of attachment shall be issued against a municipal corporation. HOW ISSUED. § 2730. — The writ of attachment shall be issued on the request of the plaintiff, by the clerk of the court, either at the time of the issuiag of the summons in the action, or at any time thereafter before final judgment. It shall be directed by the style of " The state of Wisconsin," to the sheriff, or other proper officer, of some county in which the property of the defendant, so proceeded against, may be sup- posed to be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand, together with costs and exjienses. It shall be attested in the name of the presiding judge of the court, and be sealed with its seaL § 2731. — Before any writ of attachment shall be executed, the plaintiff, or some one in his behalf, shall make and annex thereto an affidavit, stating that the de- fendant named in such writ is indebted to the plaintiff in a sum exceeding fifty dollars, and specifying the amount of such indebtedness as near as may be, over and above all legal set-offs, and that the same is due upon contract, express or im- plied, or upon judgment or decree, and containing a further statement that the deponent knows, or has good reason to believe, either: 1. That the defendant has absconded, or is about to abscond, from this state, or is concealed therein, to the injury of his creditors, or keeps himself concealed therein, with intent to avoid the service of a simamons. 2. That the defendant has assigned, conveyed, disposed of or concealed, or is about to assign, convey, dispose of or conceal his property, or any part thereof, with intent to defraud his creditors. 3. That the defendant has removed, or is about to remove, any of his property out of this state, with intent to defraud his creditors; or 4. That the defendant fraudulently contracted the debt, or incurred the obliga- tion, respecting which the action is brought; or_ 5. That the defendant is not a resident of this state; or 6. That the defendant is a foreign corporation; or if created under the laws of this state, that all the proper officers thereof on whom to serve the summons do not exist, are non-residents of the state, or cannot be found; or 7. That the action is brought against the defendant, as principal upon an offi- cial bond, to recover money due the state, or to some county or other municipality therein; or that the action is brought against a defendant as principal upon a bond or other instrument given as evidence of indebtedness, for or to secure the payment of money embezzled or misappropriated by such defendant, whilst acting as an offi- cer of the state or of any county or municipahty thereia. [Amended Stats. 1880, P- 272.] An action may maiutaiued and a writ of attachment issued on a demand not yet due in any cases mentioned in this section, except the cases mentioned in the fifth, sixth and seventh subdivisions, and the same proceedings in the action shall be had, and the same affidavit shall be required, as in actions upon matured demands, except that the affidavit shall state that the debt is to become due: Fro- vided, that the undertaking, specified in section two thousand seven hundred and thirty- two, shall be conditioned in three times the amount demanded. In case an attachment be issued before the maturity of the debt, and a traverse to such at- tachment is sustained, the coiu-t shall dismiss the action and shall render a judg- ment of costs against the plaintiff. [Stats. 1880, p. 271.] WISCONSIN. 715 § 2732. — Before the writ of attachment shall be executed, a written undertaking on the part of the plaintiff, with sufficient surety, shall be delivered to the officer, to the effect that if the defendant recover judgment, the plaintiff shall pay all costs that may be awarded to the defendant, and all damages which he may sustain, by reason of the writ of attachment, not exceeding the sum specified in the undertak- ing, which sum shall not be less than two hundred and fifty dollars. The surety shall justify his responsibility, by affidavit, annexed to such imdertaking, stating that he is a resident, and householder or freeholder, within the state, and is worth the sHm specified in the undertaking, in property within the state, over and above all his debts, and exclusive of all property exempt from execution. § 2733. — In case the defendant shall not be satisfied Avith the amount specified in the undertaking, or with the sureties, he may, upon not less than five days' no- tice to the plaintiff, apply to a judge of the court for additional security, and such judge may, by order, require the plaintiff to give and file another undertaking, to be approved by him, in such sum as he shall deem proper, not exceeding the value of the property attached, as appears from the appraisement. The surety shall justify his responsibility as provided in the preceding section; but if there he more than one surety, they may be accepted, if it appear that they are jointly responsi- ble for the required sum. § 2734. ^The writ of attachment, the affidavit and undertaking therefor, shall be annexed together, but not to the summons in the action; the officer executing the writ shall return thereon all his proceedings under and hy virtue thereof, and thereafter, and within twenty days from receipt of the undertaking, shall file aU said papers with the clerk of the court. No action shall be maintained on any such undertaking until after fijial judgment in the action, unless the same be discon- tinued or dismissed. § 2735. — Alias writs of attachment in the same action may be issued to the sheriffs, or other proper officers, of different counties, at any time before judgment. In such case a copy of the affidavit annexed to the original shall be annexed, and such writ indorsed as an alias. Such other writs shall be executed and retm-ned in the same maimer as the originaL HOW EXECUTED. § 2736. — The officer having the writ of attachment shall execute the same with- out delay, by seizing so much of the property of the defendant, when the same can be found in his county, as will be sufficient to satisfy the demand of the plaintiff, with costs and expenses, and by making an inventory thereof; he shall cause aU. personal property attached by him to be appraised by two disinterested freeholders of the county, who shall be first sworn by him to make a true appraisement thereof, which appraisement shall be signed by the appraisers, and the appraisement and inventory shall be returned Avith the writ of attachment; he shall serve copies of the writ of attachment, affidavit and undertaking annexed, and inventory, upon the defendant in the same manner as a summons. In case of a non-resident or a foreign corporation, the sheriff shall serve such copies on anj'- agent of such defend- ant in the county, if any be known to him. § 2737. — To attach real estate, or any fight or interest therein, it shall not be necessary for the officer to enter upon or be within view of the land. But he shall file in the office of the register of deeds a copy of the writ of attachment, with his certificate indorsed or affixed, that hj virtue of the original ^vrit, of which such copy is a true copy, he has attached such real estate, or all the interes of the de- fendant therein, describing the same with convenient certaintj^, as the property of a defendant, naming him, in such ^^Tit. The real estate, or the right or interest therein so attached, shall be bound, and the attachment a Hen thereon, from the time of so filing such copy and certificate. § 2738. — All the property in the state of the defendant named in the writ, not exempt from execution, shall be liable to be attached. Rights or shares in the stock or piroperty of any association or corporation, ■\\'ith the interests and profits thereon, and other personal property, shall be attached in the same manner in which an execution may be levied on the same, and the provisions respecting the levy of an execution thereon shall be applicable to the execution of an attachment. Personal property shall be bound by the writ of attachment from the time the same is attached thereby. § 2739. — If in any case when an officer has a writ of attachment against prop- erty, there is any reasonable doubt as to the ownership of the property, or as to its liability so to be taken on the vrrit of attachment, the officer may require sufficient security to indenuiify him for attaching such property. 716 wiscoNsry. § 2710. — TVlien any property taken on a writ cf attachment or received by the officer from r.nj^ [;arnislie?, in any civil action, including actions commenced before a justice of the peace, r.nd appealed to the circuit court, shall be Kkcly to perish or to depreciate in value before the probablo end of the action, or the keeping thereof shall be attended with much loss or expense, the court or a judge may, by order, direct the same t j be sold, in tuch manner and upon such time and terms as the best interests of the parties demand, and the money realized fihall be held by the officer in lieu of the property sold. That defendant, notwithstanding the delivery of such undertaking, m."y deny any or all of the allegations of the affidavit an- nexed to the writ of attachment, as provided in section two thousand seven hun- dred and forty-live. [Amended Stats. 1881, p. 422.] § 2741. — The officer shall keep the property seized by him, and the proceeds of such as shall have been sold, to answer any judgment which may be recovered in such action; and shall, subject to the direction of the court or judge, collect and receive into liis possession all the debts, credits and effects of the defendant. The officer may also take such legal proceedings, either in his o'rni name, or in the name of such defendant, as taay be necessary for that iiurpose, and discontinue the same at such times and on such terms as the comrt or judge may direct. DISCHAEGING, VACATING OR DEFENDING ATTACHMENTS. § 2742. — The defendant may, at any time before judgment, deliver to the officer having the writ, or an alias Vv-rit, on which property has been attached, an under- taking executed by at least two cm-eties, to the effect that they wiU, on demand, pay to the xdaintiff the amount of the judgment, with all costs, that may be recov- ered against such defendant in the action, not exceeding the sum specified in the undertaking, Vvdth interest. Such sum shall be at least double the amount alleged to be due i.i the affidavit annexed to the ■wi-it, or, at defendant's ojition, at least double the value of the property attached upon such ■writ, or alias writ, according to the appraisement; or, if real estate, in a sum fixed by order of the com-t, or a judge, en notice. The sureties shall justify their responsibility, as provided in section tv.'o thousand seven hundred and thirty-two, but may be accepted if it ap- pears that they are j ointly resiaonsible for the required sum. § 2743. — The officer shall forth'with give to the i^laintiff a copy of such under- taking, with notice of the time Avhen the same was delivered to him; and the Elaintiff shall, within three daj's after receipt thereof, give notice to the officer that cxcept.'s to the sufficiency of the sureties, or he shall be deemed to have v.-aivcd all objections to them. W hen plaintiff excepts, the sureties shall justify in like manner as bail upon arrest, and the provisions of sections tv.'o thousand seven hun- dred and fom-, two tliousand seven hundred and five, and two thousand seven hun- dred and six, shall be applicable thereto. The officer shall be responsible for the sufficiency of such sureties, and may therefor retain possession of the attached proi^erty until they shall bo justify, or objection be so waived. Thereafter the officer shall deliver the property attached and held by him upon such •svrit to such defendant; if real estate, a certificate of the discharge thereof, which may be filed in the office of the register cf deeds; and the action shall thenceforward proceed as if no writ cf attachment had been issued; but if the plaintiff recover, all his costs and disbursements thereon shall be taxed and included in his judgment. At any time after judgment in his favor, the plaintiff may maintain an action upon any such undertaking, and shall recover the amount of such judgment, with interest and costs, not exceeding the sum specified in such undertaking. § 2744. — The court, or the presiding judge thereof, may, at any time before the trial of the action, or a release of the property under the preceding section, vacate or modify the writ of attachment, for iiTegularity or other sufficient cause, upon five days' notice of motion; and the motion therefor may be combined with a mo- tion to increase the plaintiff's security, under section two thousand seven hundred and thirty-three. § 2745. — At any time within ten days after notice of the issuing of a writ of at- tachment against his property, or within the time in which he may answer the complaint in the action, but before judgment, the defendant may by a special an- swer, verified, served and filed as a pleading is recjuired to be, deny the existence, at the time of the making of the affidavit annexed to the vrrit of attachment, of any or all the material facts stated therein, except the alleged liability, and the amount thereof. The issue so raised shall be tried by the court, before the trial of the action, if such issue be joined before such trial, and the affirmative thereof be ujjon the i)lain*iff. § 2746. — If the court, on the trial of such issue, find for the defendant, the judge presiding shall tax the defendant's costs of such trial, and an order shall be entered "WISCONSIN 717 that the property attached be forthwith delivered up to the defendant; and if such tiial be before the trial of the action, the jury shall on the latter trial assess the damages sustained by the defendant by reason of the taking and detention, or sale, of the jiroperty attached, or by reason of any injury thereto; and the same, to- gether with the costs so taxed, shall be applied by them as a set-off to the plaintiff's demand, and if in excess of it, or the plaintiff fail to recover, the verdict shall be for the defendant for the amount his due. But if such trial be after the trial of the action, the court may impannel a jury, or proceed itself, to assess such damages, and shall in like manner apply the same when so assessed, with the costs so taxed, as a set-off to the plaintiff's demand as established upon the trial, and give judg- ment accordingly. If the court on the trial of such issue find for the iilaintiff, the presiding judge shall tax the plaintiff's costs of such trial, and the amount so taxed shall, if he recover, be taxed by the clerk as disbursements in the action; and if the defendant recover judgment in the action, shall be applied toward payment thereof. §2747. — If on the trial of the action the jury find for the defendant, or the plaintiff be nonsuited, they shall specially assess the damages sustained by bim, by reason of the taking and detention or sale of any property attached, or by reason of any injury thereto, and the defendant shall have judgment therefor, in addition to any other damages found in his favor. If the action be dismissed or discon- tinued, the court, on request of either party, shall imjiannel a jiu'y to assess such damages, and the defendant shall have judgment therefor accordingly. ' § 2748. — Whenever the action shall be dismissed or discontinued, or the defend- ant in the writ of attachment shall recover judgment, all the money or property, held by any writ of attachment, shall be delivered up to him, subject to the plaintiff's rights on appeal, and he may maintain an action on the plaintiff's under- taking for the damages assessed, as sustained by reason of the Avrit of attachment and his costs. And in cases where real estate has been attached, upon the entry of final judgment in favor of the defendant in the action, either on the merits or on discontinuance or dismissal, or on satisfaction of a plaintiff's judgment, the clerk of court shall certify the fact of such judgment, or satisfaction, and on filing such certificate with the register of deeds in any county in which lands attached in the action are situated, such register shall enter such certificate upon the records of his office, in satisfaction of the lien of such attachments. [Stats. 1881, ]>. IGl.] § 2749. — When the plaintiff shall have recovered judgment in the action, the sheriff or officer shall satisfy the same out of the property attached, or received from any garnishee or otherwise, if sufficient therefor: 1. By i^aying over to such plaintiff all money attached or received upon sales of iiroperty, or from any garnishee, or upon any debts or credits, or so much thereof as shall be necessary. 2. By selling, under such execution as may be issued on such judgment, so much of the attached property, real or personal, as shall be necessary to satisfy the balance unpaid, according to the provisions regulating sales upon execution; ex- cept as provided in subdivision foiu" hereof. 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 writ of attachment; and any i^erson who shall willfully conceal or withhold such property from the sheriff, shall be liable to double damages at the suit of the party injm-ed. 4. Until the judgment against the defendant shall be paid, the sheriff may pro- ceed to collect the evidences of debt that may have been seized or attached by vir- tue of the writ of attachment, or that may have been delivered up by any person summoned as garnishee, 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 and costs. When the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the de- fendant the residue of the property attached, or that may have been received from any garnishee, or the proceeds thereof. § 2750.— The actions herein authorized to be brought by the sheriff or officer may be prosecuted by the plaintiff, or under his direction, upon the delivery by hini to the sheriff or officer of an undertaking, with two suflBcient sureties, to the effect that the plaintiff will indemnify him for all damages, costs and expenses thereon, not exceeding two hundred and fifty dollars in any one action; such sure- ties shall, when required by the sheriff or officer, justify by making an affidavit that each is a householder, and worth double the amount of the penalty named in the imdertaking, over and above all debts and exemptions. 718 WISCONSIN. § 2751. — If the property, money, credits or effects of any defendant in an action shall be seized by a ■writ of attachment issued in such action, and such defendant shall die pending the action, or after judgment and before execution issued thereon, and satisfaction thereof, the property, money, credits and effects so attached shall be applied to the payment of the judgment rendered in such action, either before or after the death of such defendant, and execution may be issued on such judgment, and satisfied out of the property so attached, in the same manner as if such de- fendant were living. CHAPTER CXXV. OF GAENISHMENT. § 2752. — Any creditor shall be entitled to proceed by garnishment, in the circuit court of the proper county, against any person (except a municipal corporation) who shall be indebted to, or have any property whatever, real or personal, in his pos- session or imder his control, belonging to such creditor's debtor, in the cases, upon the conditions and in the manner prescribed in this chapter. The term plaintiff is used in this chapter to embrace every judgment creditor, and the term defendant a judgment debtor. § 21m. — Either at the time of the issuing of the summons, or at any time there- after before final judgment, in any action to recover damages founded upon con- tract, express or implied, or ujDon judgment or decree, or at any time after the issuing, in any case, of an execution against property, and before the time when it is retm-nable, the plaintiff, or some person in his behalf, may make an af&davit, stating the amount of the plaintiff's claim against the defendant or defendants, over and over all effects, and stating that he verily believes that some person (nam- ing him) is indebted to, or has property, real or personal, in his possession or under Lis control, belonging to the defendant (or either or any of the defendants) in the action or execution (naming him), and that such defendant has not property liable to execution sufficient to satisfy the plaintiff's demand. And that the indebted- ness or property mentioned in such affidavit is, to the best of the knowledge and belief of the person making such affidavit, not by law exempt from seizure or sale upon execution. Any number of garnishees may be embraced in the same affi- davit, but if a joint liability be claimed against any, it shall be so stated in siich affidavit, and the garnishees named as jointly liable, shall be deemed jointly pro- ceeded against; otherwise the several garnishees shall be deemed severally pro- ceeded against. [Stats. 1881, p. 87] § 2754. — The plaintiff shall annex or subjoin to such affidavit a garnishee sum- mons, which shall be substantially in the following form: A. B. plaintiff, \ vs. ( Court, Coimty. C D., defendant, j The State of Wisconsin. — To the said garnishee: You are E. r. , garnishee. / hereby summoned, pursuant to the annexed affidavit, as gar- nishee of the defendant, C D. , and required, within twenty days after the service of this summons upon you, exclusive of the day of service, to answer, according to law, whether you are indebted to, or have in your possession or under j^our con- trol, any i^roperty, real or personal, belonging to such defendant, and to serve a copy of your answer on the undersigned at , in the county of ; and in case of your failure so to do, you will be liable to further proceedings, according to law. Of which the said defendant will also take notice. L. M., plaintiff's attorney. P. 0. address, , county. Wis. § 275;>. — Such garnishee summons and affidavit may be served by the sheriff of the coiinty, where any garnishee or defendant may be found, or by any other per- son not a party to the action. The service shall be made and the same returned, with proof of the service, to the person Avhoso name is subscribed thereto, with rea- sonable diligence. The person subscribing such garnishee .summons may, at his option, by an indorsement thereon, fix a time for the service thereof, and the Bervice shall then be made accordingly. § 2756. — The garnishee summons and annexed affidavit shall be served on each of the several garnishees named, in the manner provided in sections two thousand six hundred and thirty-six and two thousand six hundred and thirty-seven, for service of a summons in an action; and, except where service of the summons in the action is made without the state, or by publication, also on the defendant to the action, in like manner, either before, or within ten days after, service on a garnishee. When the defendant shall Lave appeared in the action by an attorney. WISCONSIN. 719 Bach, service may be made upon such attorney or upon the defendant. Unless the garnishee summons be so served on the defendant or his attorney, or the proof of eervice on the garnishee show that, after due diligence, such service cannot be made within the state, the service on the garnishee shall become void and of no effect from the beginning. § 2757. — The plaintiff may in like manner subsequently proceed, within the period limited, against other garnishees, or against the same garnishees after they shall have once been discharged, upon a new affidavit, if he shall have reason tu believe they have subsequently become liable; and he may summon garnib|heen resident in other counties than that in which the action is pending; but if an issue for trial shall be joined between the plaintiff and such garnishee, the court may, on motion, change the place of trial of such issue to the county of the garnishee's residence. § 2758. — If the plaintiff shall not have filed in the clerk's office, within ten days after service of a garnishee summons upon a garnishee, except in case of garnish- ment upon execution, his complaint duly verified, showing the amount of the indebtedness of the defendant in the action to him, the proceeding against the garnishee shall be dismissed, on motion of the defendant or garnishee, with costs, unless the court, or a judge, shall in discretion, and upon terms, permit the same to stand. §2759. — Within twenty days from the service of such garnishee summons, the garnishee may, if the truth warrant, file with the clerk of the court in which the action is pending, and serve a copy thereof upon the plaintiff, his aflidavit in the following form, substantially: A. B., plaintiff, ") vs. ( Court, County. C D., defendant, and j County, ss. — E. F., being duly sworn, says, that E. F., garnishee. ) on the day of A. D, 18 — , he was served with a garnishee summons in the above entitled action; that he was then and is now in no manner, and upon no account whatever, indebted or under liability to the de- fendant (naming him), and that he then had and now has in his possession, or under his control, no real estate and no personal property, effects or credits, of any de- scription whatever, belonging to said defendant, or in which he has any interest; and is in no manner liable as garnishee in this action. Subscribed and sworn to before me this day of A. D., 18 — . Thereby the proceeding against such garnishee shall be deemed discontinued^ and the plaintiff shall pay the garnishee one dollar for his costs, unless within twenty days thereafter the plaintiff serve notice on such garnishee, that he elects to take issue on his answer to the garnishee summons and will maintain him to be liable as garnishee. In which case the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the complaint, and the garnishee's affidavit the answer thereto. § 2760. — Unless the garnishee shall make the affidavit provided for in the pre- ceding section, he shall, within twenty days from the service of the garnishee sum- mons, file and serve in like manner an affidavit, in which he shall state: 1. Whether he was, at the time of the service of the garnishee summons, or has since become, indebted or under any liability to the defendant named in the gar- nishee summons, in any manner or upon any account; specifying, if indebted or liable, the amount, the interest thereon, the manner in which evidenced^ when payable, whether an absolute or contingent liability, and all the facts and circum- stances necessary to a complete understanding of such indebtedness or liability. When the garnishee shall be in doubt respecting any such liability or indebtedness, he may set forth all the facts and circumstances concerning the same, and submit the question to the court. 2. Whether he held at the time aforesaid, or now holds, the title or possession of any real estate, or any interest in land of any description, or of any personal property, effects or credits, or any instruments or papers relating to any such, be- longing to the defendant, or in which he is in any wise interested. And if he shall admit any such, or be in doubt respecting the same, he shall set forth a description of such pro]5erty, and all the facts and circumstances concerning the same, and the title, interest or claim of the defendant in or to the same. 3. If he shall claim any set-off, or defense, to any indebtedness or liability, or any lien or claim to such property, he shall set forth the facts and circumstances thereof fully. 4. He may state any claim of exemption from execution, on the part of the de- fendant, or other objection, known to him, against the right of the plaintiff to apply upon his demand the indebtedness or property disclosed. 720 ■WISCONSIN. 5. If lie shall disclose any indebtedness, or tlie possession of any property to which the defendant, and any other person as well, make claim, he may set forth the names and residences of such other claimants, and, so far as known, the nature of their claims. § 2761. — If any garnishee, havin,^ been duly summoned, shall fail to serve his affidavit, as required in the preceding sections, the court may render judgment against him for the amount of the judgment which the plaintiff shall recover against the defendant in the action for damages and costs, together with the costs of such garnishee action. Such garnishee may also be proceeded against, as for a contempt, according to the provisions of chapter one hundred and fifty. § 27G2. — In case the answer of the garnishee shall show indebtedness to the de- fendant, he may pay the amount thereof, less three dollars for his costs, to the offi- cer having a writ of attachment in the action, if any, or otherwise to the clerk of the court; or, if the garnishment be in aid of an execution, to the sheriff having the execution; and either such officer shall give him a receipt, sj^ecifying the facts, and such receipt shall be a complete discharge of all liability to any party for the amount so paid. If the answer disclose any money, credits or other property, real or personal, in the jjossession or under the control of the garnishee, the officer hav- ing a vrcit of attachment, or an execution, if any, may levy upon the interest of the defendant in the same; otherwise the garnishee shall hold the same until the order of the court thereon. § 27G3. — The answer of the garnishee shall, in all cases, be conclusive of the truth of the facts thei-eiu stated, unless the plaintiff shall, within twenty days, serve upon the garnishee a notice, in ^vriting, that he elects to take issue on his answer; in which case the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemel the complaint, and the gar- nishee's affidavit the answer thereto. The plaintiff may in all cases move the court, upon the answer of the garnishee, and of the defendant, if he shall also an- swer, for such judgment as he shall be entitled to thereon; but any such judgment shall be uo bar beyond the facts stated in such answers. § 2764. — The answer of a corporation summoned as a garnishee maj-be made by any officer thereof, and of any other garnishee, by any agent or attorney, in his behalf, who shall be acquainted with the facts. § 27C5. — The defendant may, in all cases, by answer, duly verified, to be served within twenty days from the service of the garnishee summons on him. defend the proceeding against any garnishee, upon the ground that the indebtedness of the garnishee, or any property held by him, is exempt from execution against such de- fendant, or for any other reason is not liable to garnishment, or upon any ground upon which a garnishee might defend the same; and may participate in the trial of any issue between the plaintiff and garnishee for the protection of his interests. And the garnishee may, at his option, defend the principal action for the defend- ant, if the latter does not, but shall be under no obligation so to do. § 2766. — The proceeding against a garnishee shall be deemed an action, by the plaintiff against the garnishee and defendant as parties defendant, and all the pro- visions of law relating to proceedings in civil actions at issue, including examina- tion of the parties, amendments and relief from default or proceedings taken, and api^eals, and all provisions for enforcing judgments, shall be applicable thereto; but when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, although it may be noticed for trial; and if the defendant have judgment, the gar- nishee action shall be dismissed with costs. The coui't shall render such judgment in all cases as shall be just to all the parties, and j)roperly protect their respective interests, and may adjudge the recovery of any indebtedness, the conveyance, transfer, or delivery to the sheriff, or any officer api^ointed by the judgment, of any real estate or personal property disclosed, or found to be liable to be applied to the plaintiff's demand, or by the judgment pass the title thereto; and may therein, or by its order, when proper, direct the manner of making sale, and of disposing of the proceeds thereof, or of any money or other thing paid over or delivered to the clerk or officer. The judgment against a garnishee shall acquit and discharge him from all demands by the defendant, or his representatives, for all money, goods, effects or credits, paid, delivered or accounted for, by the garnishee, by force of Buch judgment. § 2767. — AYhen the answer of the garnishee shall disclose that any other person than the defendant claims the indebte In-ss or property in his hands, and the name and residence of such claimant, the court may, on motion, order that such claimant be interpleaded as a defendant to the garnishee action, ai^ that notice thereof, set- WISCONSIN. 721 ting forth the facts, with a copy of such order, in such form as the court shall di- rect, be served upon him, and that after such service shall have been made, the garnishee may pay or deliver to the officer or the clerk such indelitedness, or prop- erty, and have a receipt therefor, which shall be a complete discharge from all lia- bility to any party for the amount so paid, or property so delivered. Such notice shall be served in the manner required for service of a summons in a civil action, and may be made without the state, or by publication thereof, if the order shall so direct. Upon such service being made, such claimant shall be deemed a defend- ant to the garnishee action, and, within twenty days, shall answer, setting forth his claim, or any defense which the garnishee might have made. In case of de- fault, judgment may be rendered, which shall conclude any claim upon the part of such defendant. § 2768. — From the time of the service of the suramons upon the garnishee, he shall stand liable to the plaintiff to the amount of the property, moneys, credits and effects in his possession, or under his control, beiunging to the defendant, or in which he shall be interested, to the extent of his right or interest therein, and of all debts due or to become due, to the defendant, except such as may he, by law, exempt from execution. Any property, moneys, credits and effects held Ijy a con- vej^ance, or title, void as to the creditors of the defendant, shall be embraced in such liability. In case such moneys, credits and effects, in the possession or under the control of the garnishee, shall exceed the amount of the plaintiff's claim, the garnishee shall stand liable to the plaintiff only for the amount of the plaintiff's claim as disclosed by his affidavit provided for in section two thousand seven hun- dred and fifty-three, together with such further amount as shall be equal to all costs and damages which the plaintiff may recover in the action and garnishee proceedings. [Stats. 1881, p. 88.] § 2709. — No judgment shall be rendered upon a liability of the garnishee arising either: 1. By reason of his having drawn, accepted, made, indorsed or guaranteed any negotiable bill, draft, note, or other security. 2. By reason of any money, or other thing, received or collected by him as sheriff, or other officer, by force of an execution, or other legal process, in favor of the defendant. 3. By reason of any money in his hands, as a public officer, and for which he is accountable to the defendant merely as such officer. 4. By reason of any money, or other thing, owing from him to the defendant, unless, before judgment against the defendant, it shall have become due absolutely and without depending on any future contingency. Judgment may be given for any money, or other thing owing, although it has not become payable, in which case the garnishee shall not be required to pay or deliver it before the time ap- pointed by the contract. § 2770. — No action shall be commenced by the defendant, or his assignee, against a garnishee upon any claim or demand liable to garnishment, or to recover any projierty garnished, or execution be issued upon a judgment in favor of defendant against such garnishee, subsequent to the service of the garnishee summons upon him, until the termination of the garnishee action; and if an action shall have been commenced or an execution issued, it shall be stayed by the court, or a judge thereof, upon the garnishee's application; excejit that upon cause shown, the court, or a judge, may by order permit the commencement of such an action, or the issue of an execution, or the further prosecution of one stayed. § 2771. — The defendant may, at anytime after the complaint is filed, and before judgment, file with the clerk of the court an undertaking, executed by at least two sureties, resident freeholders of the state, to the effect that they will, on demand, pay to the plaintiff the amount of the judgment, with all costs that may be recov- ered against such defendant in the action, not exceeding a sum si^ecified, which sum shall be not less than double the amount demanded by the comi>laint on file, or in such less sum as the court shall, upon application, direct. The sureties shall justify their responsibility by affidavit annexed, stating a sum which each is worth, in property within this state, over and above all his debts and liabilities and prop- erty exempt from execution, the aggregate of which sums shall be double the amount specified in the undertaking. The defendant shall serve a copy of such un- dertaking, with a notice where and when tlie same was filed, on the plaintiff. Within three days after the receipt thereof, the i^laintiff shall give notice to the defendant that he excepts to the sufficiency of the sureties, or he shall be deemed to have waived all objections to them. When the plaintiff excepts, the sureties shall justify in like manner as bail upon an arrest, and the provisions of sections two thousand seven hundred and fom-, two thousand seven hundred and five and two thousand seven hundred and six shall be applicable thereto. Thereafter all II Attacumbnt— 21. 722 WYOMING. the gramishees shall be discharged, and the garnishment proceedings shall be deemed discontinued, and any money or property, j)aid or delivered to any officer, shall be siirrendered to the person entitled thereto, and the costs shall be taxable as disbursements of the plaintiff in the action, if he recovers. § 2772. — In case of the trial of an issue between the plaintiff and any garnishee, costs shall he awarded to the plaintiff and against the garnishee, in addition to his liabilit^^ if the plaintiff recover more than the garnishee admitted by his answer; and if he do not, the garnishee shall recover costs of the plaintiff. In all other cases, under this chapter, not expressly provided for, the court may award costs in favor of or against any party, in its discretion. When there is no issue for trial, and any liability on the part of the garnishee is disclosed, the costs of the garnish- ment proceedings shall be taxed for the plaintiff, if he recovers, as disbursements in the principal action. Appeals from order vacating attachment — Sec. 3061. Liens on logs— Stats. 1881, p. 424; Stats. 1882, p. 985. Against ships — Sees. 3351-3356, and Stats. 1881, p. 79. Justices of the Peace — Sees. 3701-3732. Exemptions— Chap. 310, sec. 2982; Stats. 1879, p. 66; Stats. 1883, p. 956; Stats. 1882, p. 956. WYOMING. [Compiled Laws, 1876, and subsequent Statutes.] ARTICLE I. ATTACHMENT'. § 187. — The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the de- fendant, and upon the grounds herein stated: First. When the defendant or one of the defendants is a foreign corporation, or a non-resident of this territory; or. Second. Has absconded with the intent to defraud his creditors; or. Third. Has left the county of his residence to avoid the service of a summons; or, Fourth. So conceals himself that a summons cannot be served upon him; or, Fifth. Is about to remove his property, or a part thereof, out of the jurisdic- tion of the court, with the intent to defraud his creditors; or, Sixth. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or. Seventh. Has property, or rights in action, which he conceals; or, _ Eif/hth. Has assigned, removed or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud his creditors; or, ninth. Fraudulently contracted the debt or incmred the obligation for which suit is about to be or has been brought. But an attachment shaU not be granted on the ground that the defendant is a foreign corporation or a non-resident of this territory, for any claim other than a debt or demand arising upon contract, judg- ment or decree; or. Tenth. In all cases not exceeding two hundred and fifty dollars, in which the debt is not otherwise secured, and which has not been paid when due and within ten days thereafter on demand. This subdivision not to apply to causes of action already accrued. § 188. — An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, stating: First. The nature of the plaintiff's claim. Second. That it is just. Third. The amoimt which the affiant believes the plaintiff ought to recover. WYOMING. 723 Fourth. The existence of some one of the grounds for an attachment enumerated in the preceding section, or that the affiant has good reason to believe and does believe that some one of said grounds (stating what one) exists. § 189. — When the ground of the attachment is,-that the defendant isa foreign corporation, the order of attachment may be issued without an undertaking. §190. — In all other cases, the order of attachment shall not be issued by the clerk until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained. § 191. — The order of attachment shall be directed and delivered to the sheriff. It shaU require him to attach the lands, tenements, goods, chattels, stocks or inter- est in stocks, rights, credits, moneys and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the i^laintiff's claim, to be stated in the order, as in the affidavit, and the probable costs of the action, not exceeding fifty dollars. § 192. — Orders of attachment may be issued to the sheriffs of different counties; and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but such only as have been executed shall be taxed in the costs, unless otherwise directed by the court. §193.— The return day of the order of attachment, when issued at the com- mencement of the action, shall be the same as that of the summons; when issued afterward, it shall be twenty days after it issued. § 194. — When there are several orders of attachment against the same defend- ant, they shall be executed in the order in which they were received by the sheriff. § 195. — The order of attachment shall be executed by the sheriff without delay. He shall go to the place where the defendant's property may be found, and there, in the presence of two householders of the county, declare that, by virtue of said order, he attaches said property at the suit of such plaintiff; and the officer, with said householders, who shall first be sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and householders, and returned with the order. § 196. — Where the property attached is real property, the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal property, and can be come at, he shall take the same into his custody, and hold it subject to the order of the court. § 197.— The sheriff shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in the presence of the sheriff, of an undertaking to the plaintiff, with one or more sufficient sureties, resi- dent in the county, to the effect that the parties to the same are bound,_ in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound. § 198.— ^\^len the plaintiff, his agent or attorney, shall make oath, in -writing, that he has good reason to, and does, believe that any j^erson or corporation,_ in said affidavit named, has property of the defendant in his possession (describing the same), if the officer cannot get possession of such property, he shall leave with such garnishee a copy of the order of attachment, with a wi-itten notice that he appear in court and answer, as provided in section two hiindred and twelve. If the garnishee shall not reside in the county in which the order of attachment shall be issued, the process shall be served by the proper officer of the county in which the garnishee shall reside, and the answer of the garnishee shall be made before the clerk of the court of the proper county in which the garnishee may reside, within the time required for the filing of answers by garnishees. Any special examination of such garnishee which may be ordered by the court shall be made in the county in which he may reside; and should suit be lirought against such garnishee, under the provisions, of section two hundred and sixteen of this act, such suit shall be brought in the county in which the garnishee shall reside. The clerk of the court, before whom the answer aforesaid shall be made, shall transmit the same to the clerk of the court in which the suit shall be commenced, in the same manner as depositions are required to be directed and transmitted, and shall receive for his 724 "VNTOMING. services such fees as are allo\ved by law for taking depositions, and to clerks for furnishing certificates, with their seals of office attached. In all cases in which the garnishee shall admit an indebtedness to the defendant, and the court shall order the payment of the same, or any part thereof, to the plaintiff, if the garnishee shall not pay the same according to such order, execution may issue thereon as upon judgments for the payments of money. The service of process upon a sheriff, cor- oner, constable, master commissioner, marshal of an incorporated city or village, or other officer having any money, claim, or other property of the defendant in his possession, or in which the defendant may have an interest, shall bind the same from the time of such service, and shall be a legal excuse to such officers, to the extent of the demand of the plaintiff, for not paying such money or delivering such claim or property to the defendant, as by law, or the terms of the process in his hands, he would otherwise be bound to do. § 199. — The copy of the order and notice shall be served upon the garnishee, as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a cori^oration, they shall be left with the president, or other head of the same, or secretary, or cashier, or managing agent thereof. § 200. — Different attachments of the same property may be made by the same officer, and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order. § 201. — When the property is under attachment, it shall be attached under sub- sequent orders, as follows: Fi7'st. If it be real property, it shall be attached in the manner prescribed in section one hundred and ninety-six. Second. If it be i^ersonal property, it shall be attached as in the hands of the officer, and subject to any previous attachment. Third. If the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him, in the manner prescribed in section one hundred and ninety-nine. § 202. — The officer shall return upon every order of attachment, what he has done imder it. The return must show the property attached, and the time it was attached. When garnishees are served, their names, and the time each was served, must be stated. The officer shall, also, return with the order aU undertakings given under it. § 203. — An order of attachment binds the property attached, from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, moneys and credits in his hands, or due from him to the defendant, from the time he is served with the written notice mentioned in section one him^dred and ninety-eight; but where the i^roj^erty is attached in the hands of a consignee, his lien thereon shall not be affected by the attachment. § 204. ^The court or any judge thereof, during vacation, may, on the applica- tion of the plaintiff, and on good cause shown, appoint a receiver, who shall taks an oath faithfully to discharge his duty, and shall give an undertaking to the ter- ritory in such sum as the court or judge may direct, and T\"ith such secm-ity as shall be approved by the clerk of such court, for the faithful performance of his duty, as such receiver, and to pay over all money, and account for all property, which may come into his hands by ^'irtue of his appointment, at such times and in such man- ner as the court may direct. § 20-5. — Such receiver shall take possession of all notes, due-bills, books of ac- count, accounts, and all other evidences of debt, that have been taken by the sheriff or other officer, as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that ptupose, he may commence and main- tain actions in his own name as such receiver; but in such actions no right of defense shall be impaired or affected. § 206.— Such receiver shall forthmth give notice of his appointment to the per- sons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors, bj' copy, personally, or by copy left at the residence; and from the date of such service, the debtors shall stand liable to the plaiatiff in attachment for the amount of moneys and creiUts in then" hands, or due from them to the defendant in attachment, and shall account therefor to the receiver. § 207. — Such receiver shall, when required, report his proceedings to the court, and hold all moneys collected by him, unJ property which may come into his hands, subject to the order of the court. WYOMING. 725 § 208. — Wliere a receiver Ls not appointed hj the court or a judge thereof, as provided in section two Lundi-ed and four, the sheriff, or other officer attaching the proi)erty, shall have all the powers and perform all the duties of a receiver ap- pointed by the court or a judge, and may, if necessary, commence and maintain actions in his own name, as such officer. He may be required to give seciu-ity other than his official undertaking. § 209. — The court shall make proper orders for the preservation of the property during the pendency of the suit. It may direct a sale of property, when, because of its perisliable natm-e, or the costs of keeping it, a sale will be for the benefit of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescribed for the sale of like property on execution, and shall be made in such manner, and ui)on such tenns of credit, with security, as the court or judge, having regard to the proljaljle dura- tion of the action, may direct. The proceeds, if collected by the sheriff, with all the moneys received by him for garnishees, shall be held and paid over by him, under the same requirement and responsibilities of himself and siu-eties as are pro- vided in respect to money deposited in lieu of bail. § 210. — If the defendant, or other person on his behalf, at any time before judgment, cause an tmdertaldng to be executed to the plaintiff, by one or more sufficient sureties, resident in the county, to be appi'oved by the court, in double the amount of the plaintiff's claim, as stated in his affidavit, to the effect that the defendant shall perform the judgonent of the com-t, the attachment in such action shall be discharged, and restitution made of any iiroi^erty taken under it, or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action for any property of the defendant in his hands. § 211. — The undertaking mentioned in the last section, may, in vacation, be exe- cuted in the presence of the sheriff having the order of attachment in his hands, or, after the return of the order, before the clerk, with the same effect as if exe- cuted in court; the sureties in either case to be ax)proved by the officer before whom the undertaking is executed. §212. — The garnishee shall a2:ipear as follows: If the order of attachment be returned during a term of the court, he shall appear at that term; if the order be re- turned during vacation, he shall apjiear at the term next after its return. He shall appear and answer, under oath, all questions put to him touching the property, of every description, and credits, of the defendant, in, his possession or under his control, and he shall disclose truly the amount owing by him to the de- fendant, whether due or not; and in case of a corporation, any stock therein held by or for the benefit of the defendant, at or after the service of notice. § 21.3. — A garnishee may j)ay the money owing to the defendant by him, to the sheriff having the order of attachment, or into the court. He shall be dischai-ged from liability to the defendant for any money so paid, not exceeding the plaintiff's claim. He shall not be subjected to costs beyond those caused by his resistance of the claims against him; and if he disclose the i>roperty in his hands, or the true amount owing by him, and deliver or pay the same, according to the order of the court, he shall be allowed his costs. § 214. — If the garnishee do not appear in court and answer, as required by section tvi^o hunch-ed and twelve, the coiu't may proceed against him by attach- ment as for a contempt. § 21.5. — If the garnishee appear and answer, and it is discovered on his exam- ination, that at or after the service of the order of attachment and notice upon him, he was possessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property and the jjayment of the amount owing by the garnishee into the com't; or the court may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff, bj' one or more sufficient sureties, to the effect that the amount shall be paid or the pro^jerty forthcoming, as the court may direct. § 216. — If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure is not satisfactory to the plaintiff, or if he fail to comply w-ith the order of the coui-t to deliver the property and pay the money owing into court, or give the undertaking required in tlie preceding section, the plaintiff may proceed against him in an action, by filing a petition in his own name, as in other cases, and causing a summons to be issued upon it, and thereupon such proceeflings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of the property and credits of every kind of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the 726 WYOMING. defendant, and for the costs of tlie proceedings against the garnishee. If the plaintiff proceed against the garnishee by action, for the cause that his disclosure ■was unsatisfactory, unless it appear in the action that such disclosiu'e was incom- plete, the plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases. When the claims of the plaintiffs in attachment are satisfied, the defendant in attachment may, on motion, be substituted as the plaintiff in the judgment. § 217. — Final judgment shall not be rendered against the garnishee until the action against the defendant in attachment has been determined; and if in such action judgment be rendered for the defendant in attachment, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defend- ant in attachment, and the garnishee shall deliver up all the property, moneys and credits of the defendant in his possession, and pay all the moneys from him due, as the court may order, the garnishee shall be discharged, and the costs of the proceedings against him shall be paid out of the proxDcrty and moneys so surren- dered, as the court may think right and proper. § 218. — If judgment be rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him. § 219. — If judgment be rendered for the plaintiff, it shall be satisfied as follows: So much of the joroperty remaining in the hands of the of&cer, after applying the moneys arising from the sale of perishable propertj^, and so much of the personal jjroperty and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recov- ered from the garnishee, shall be applied to satisfy the judgment and costs. If there Ije not enough to satisfy the same, the judgment shall stand, and execution may issue thereon, for the residue, in all respects as in other cases. Any suri^lus of the attached jDroperty, or its proceeds, shall be returned to the defendant. § 221. — The court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking may have been given, and may pro- ceed summarily on such undertaking to enforce the delivery of the property, or the j)aj'ment of such sum as may be due ux)on the imdertaking, by rules and attachments as in cases of contempt. § 222. — The court may order the sheriff to repossess himself, for the purpose of selling it, of any of the attached property, which may have jjassed out of his hands withoixt being sold, or converted into monej'; and the sheriff shall, under siich order, have the same i^ower to take the property as he would have under an order of attachment. § 223. — If personal property which has been attached, be claimed by any person other than the defendant, it shall be tlie duty of the officer to have the validity of the claim tried, and such proceedings must be had thereon, with the like effect, as in case the property had been seized iJiJon execution, and claimed by a third person. § 224. — Where several attachments are executed on the same jiroperty, or the same persons are made garnishees, the court, on the motion of any of the plaintiffs, may order a reference to ascertain and report the amounts and priorities of the several attachments. § 225. — From the time of issuing the order of attachment, the court shall be deemed to have acquired jmisdiction and to have control of all subsequent jiro- ceedings under this title; and if, after the issuing of the order, the defendant, being a person, should die, or a corporation, and its charter should expire by limitation, forfeiture or otherwise, the i^roceedings shall he carried on; but in all such cases other than where the defendant was a foreign corporation, his legal representatives shall be made parties to the action. § 226. — The defendant may, at any time before judgment, after reasonable notice to the x^laintiff, move the com-t for additional security on the part of the plaintiff; and if, on such motion, the court is satisfied that the surety in the plaint- iff's undertaking has removed from this territory, or is not sufficient for the amount thereof, it may vacate the order of attachment, and direct restitution of any prop- erty taken under it, imless in a reasonable time to be fixed by the court, sufficient security is given by the plaintiff. § 227. — The defendant may, at any time before judgonent, upon reasonable notice to the plaintiff, move to dischai-ge an attachment, as to the whole or any of WYOMING. 727 the property attached, and the motion may be heard and decided by the court at any term or regular session thereof; or the motion may be heard and decided by any judge tliereof, in vacation. § 228.— If the motion be made upon affidavits on the part of the defendant, or papers and eWdence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of attachment was made. ATTACHMENTS IN CERTAIN ACTIONS. § 229. — First. Where a debtor has sold, conveyed, or otherwise disposed of hia property with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts. Second. Where he is about to make such sale, conveyance, or disposition of hia property with such fraudulent intent. Third. _ When he is about to remove his property, or a material part thereof, with the intent (or to the effect) of cheating or defrauding his creditors, or of hin- dering and delaying them in the collection of their debts. Fourth. Or when he is about to abscond or depart from Wyoming Territory, with the intent to defraud his creditors. [Stats. 1884, p. 32.] § 230. — A creditor may bring an action on a claim before it is due, and have an attachment against the property of the debtor in the above-mentioned cases. § 231. — The attachment authorized by the last section may be granted by the court in which the action is brought, or by a judge thereof; but before such action shall be brought, or such attachment shall be gTanted, the plaintiff, his agent or attorney, shall make an oath, in writing, showing the nature and amount of the plaintiff's claim, that it is just, when the same shall become due, and the existence of some one of the grounds for attachment enumerated in the preceding section. § 232. — If the court or judge refuse to grant an order of attachment, the action shall be dismissed, but without prejudice to a future action; and in all such actions application for an attachment must be made. § 233. — The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a sufficient sum to satisfy the plaintiff's claim and the probable cost of the action. § 234. — The order of attachment as granted by the court or judge, shall not be issued by the clerk until there has been executed in his office, such undertaking on the part of the plaintiff as is directed by section one hundred and ninety. § 235. — The plaintiff in such action shall not have judgment on his claim before it becomes due, and the proceedings on attachment may be conducted without delay. § 236. — The proceedings in the first article of this title, subsequent to section one hundred and ninety, shall, so far as they are applicable, regulate the attach- ments authorized by this article. Justices of the peace— Chap. 71, sees. 125-157, and Stats. 1884, p. 79, Exemptions — Chap. 48, sees. 1, 2. V TABLE OF CASES. i TABLE OF CASES. Abbott V. Stinchfield, 71 Me. 213, sec. 428. Abell V. Simon, 49 Md. 318, sees. 399, 522, 527. Abernatby v. Wbitebead, 69 Mo. 28, sec. 331. Abiiigton V. Duxbury, 105 Mass. 287, sec. 395. Adams V. Avery, 2 Pittsb. 77, sees. 428, 453, 460, 500. V. Barrett, 2 N. H. 374, sees. 421, 426, 447. V. CorcUs, 8 Pick. 260, sec. 531. V. FUer, 7 Wis. 306, sec. 503. V. Lane, 38 Vt. 640, sees. 404, 421. V. Newell, 8 Vt. 190, sees. 401, 409. v. Kobinson, 1 Pick. 461, sees. 371, 402, 437, 465, 4G9, 482. V. Scott, 104 Mass. 164, sec. 444. V. Tyler, 121 Mass. 380, sees. 419, 422. Adl\im V. Yard, 1 Rawle, 163; 18 Am. Dec. G08, sees. 380, 381, 396. Albany City Ins. Co. v. Whitney, 70 Pa. St. 248, sees. 331, 403, 410, 414. Aldrich v. Brooks, 25 N". H. 241, sees. 452, 473. V. Woodcock, 10 N. H. 99, sees. 330, 338, 414. Alleghany Sav. Bank v. Meyer, 59 Pa. St. 361, sec. 581. Allen V. Erie City Bank, 57 Pa. St. 129, sec. 407. V. Hall, 5 Met. 263, sees. 442, 479, 513, 518, 529. V. Meggnire, 15 Mass. 490, sec. 442. V. Ptussell, 78 Ky. 105, sec. 422. V. Watt, 79 111. 284, sec. 503. Alley V. Moore, 2 Tenn. Ch. 206, sec. 524. Alston V. Clay, 2 Hayw. (N. C.) 171, sees. 330, 347. V. NeweU, 8 Vt. 190, sec. 420. American Bank v. Kollins, 99 Mass. 313, sec. 494. V. Snow, 9 E,. I. 11, sec. 498. Ames V. Kansas, 111 U. S. 449, sec. 418. Amoskeag Manuf. Co. v. Gibbs, 28 N. H. 316, § 360. Amsbry v. Hinds, 48 K Y. 57, sec. 395. Anderson v. De Loer, 6 Gratt. 364, sec. 482. V. Van Allen, 12 Johns. 343, sees. 469, 471. V. Young, 21 Pa. St. 443, sec. 503. V. Wanzer, 5 How. (Miss.) 587; 37 Am. Dec. 170, sees. 353, 359, 486, 487. Andrews v. Herring, 5 Mass. 210, sec. 380. V. Ludlow, 5 Pick. 28, sees. 407, 411, 440. Anthony v. Wood, Ch. Leg. N. Oct. 4 1884, sec. 329. Antoni v. Greenhow, 107 U. S. 769, sec. 418. Arents v. Commonwealth, 18 Gratt. 750, sec. 467. Arledge v. White, IHead. 241, sees. 375, 457, 513. Armor v. Cockburn, 4 Mart. N. S. 667, sec. 444. Arnold v. Elwell, 13 Me. 264, sec. 412. V. Gul'att, 68 Ga. 810, sees. 504, 521. Arrington v. Screws, 9 Ired. 42; 49 Am. Dec. 408, sees. 327. Arthur v. Batte, 42 Tex. 159, sees. 326, 334, 338, 494. Ashby V. Watson, 9 Mo. 235, sees. 364, 513. Ashurst V. Given, 5 W. & S. 323, sec. 428. Atcheson v. Smith, 3 B. Mon. 502, sec. 505. Atkins V. Prescott, 10 N. H. 120, sees. 359, 486, 487, 490. Atlantic etc. Ins. Co. v. Wilson, 5 E. L 479, sec. 522, 527. Averill v. Tucker, 2 Craneh C. C. 544, sec. 422. Ayer v. Hutchins, 4 Mass. 370; 3 Am. Dec. 232, sec. 463. B. Backhouse v. Harrison, 5 Bam. & Adol. 1098, sec. 463. Badger v. Towle, 48 Me. 20, see. 399. Badlam v. Tucker, 1 Pick. 389; 11 Am. Dec. 201, sees. 330, 414, 440. Bailey v. Lacy, 27 La. An. 39. sees. 330, 35L (731) 732 TABLE OF CASES. Bailey v. Eoss, 20 N. H. 302, sees. 325, 338, 442. Baker v. Lancashire Ins. Co. 52 Wis. 193, sec. 528. V. ]Moody, 1 Ala. 315, sees. 438, 4G5. Balderstone v. Monro, 2 Cranch C. C. 623, sees. 437, 4G8. Baldwin v. Morrell, 8 Humpli. 74, sec. 532. Ball V. Citizens etc. Bank, 39 Ind. 364, sec. 519. V. Gilbert, 12 Met. 397, sees. 445, 453, 528. BaUiet -y. Bro%vn, 103 Pa. St. 546, sees. 410, 437, 450. V. Scott, 32 Wis. 174, sees. 469, 473, 474. Ballio V. Poisset, 8 Mart. K S. 336; 19 Am. Dec. 185, sec. 486. Ballston Spa Bank v. Marine Bank, 18 Wis. 490, sees. 330, 348, 429. Baltimore etc. R. Co. v. Gallahue, 14 Gratt. 563; 12 Gratt. 655, sees. 342, 412, 449, 483. Same v. Glenn, 28 Md. 287, sec. 343. V. May, 25 Ohio St. 347, sees. 500, 503. V. McCuUoTigh, 12 Gratt. 595, sees. 449, 451. V. Wheeler, 18 Md. 372, sec. 444. Bank V. Judson, 4 Seld. 254, sec. 402. V. Levy, 1 McMullen, 431, sees. 442, 473, 516. V. McCall, 3 Binn. 338, sec. 432. V. Payne, 21 La. An. 380, sec. 336. of America v. McNeil, 10 Bush 54, sec. 408. Augusta V. Earle, 13 Pet. 519, sec. 342. Chester v. Ralston, 7 Pa. St. 822, sec. 426. Commerce v. Bogy, 44 Mo. 18, sees. 465, 482. Noitliern Liberties v. Jones, 42 Pa. St. 536, sees. 411, 428. Pittsburg V. Neal, 22 How. 96, sec. 463. State of Mo. v. Bredow, 31 Mo. 523, sec. 329. St. Mary v. Morton, 12 Rob. (La.) 409, sees. 472, 48L Tenn. v. Dibrell, 3 Sneed, 378, sees. 346, 418. Banning v. Sibley, 3 Minn. 389, sec. 523. Barker v. Esty, 19 Vt. 131, sec. 447. Barker v. Osborne, 71 Me. 69, sees. 377, 440, 513, 523. Barker v. Tabor, 4 Mass. 81, sec. 365. V. Valentine, 10 Gray 341, sec. 467. Barnard v. Graves, 16 Pick. 41, sees. 422, 510. Barnes v. Treat, 7 Mass. 271, sec. 425. V. Wayland, 14 La. Ad. 791, sees. 367,381. V. Webster, 16 Mo. 258; 57 Am. Dec. 232, sec. 356. Bamett v. Weaver, 2 Whart. 418, sees. 404, 425. Barney v. Douglass, 19 Vt. 98, sec. 460. Barr v. King, 96 Pa. St. 485, sec. 456. V. Perry, 3 Gill 313, sec. 405. Barrow v. West, 23 Pick. 270, sec. 503. Barry v. Fisher, 39 How. Pr. 521, sec 490. V. Hogan, 110 Mass. 209, sec. 527. Bartell v. Bauman, 12 111. App. 450, sees. 419, 426. Bartlett v. Benson, 14 Mees & W. 733, sec. 467. V. Pearson, 29 Me. 9, sec. 471. V. Wilbur, 53 Md. 485, sees. 393, 396. V. Wood, 32 Vt. 372, sees. 452, 473. Barton v. Albright, 29 Ind. 489, sees. 503, 508, 525. V. Smith, 7 Iowa 85, sec. 503. Bass V. Goodsall, 1 Yoimge & C. 617, see. 428. Bassett v. Garthwaite, 22 Tex. 230, sec. 458. Bates V. Chicago etc. R. Co., Wis. Leg. K, May 15, 1884, sees. 359, 3G0. V. Forsyth, 64 Ga. 231, sec. 392. V. New Orleans etc. R. Co., 4 Abb. Pr. 72, sees. 328, 449. Battles V. Simmons, 21 La. An. 416, sees. 393, 414. Baxley v. Linah, 4 Harris, 241, sec. 402. Baxter v. Currier, 13 Vt. 615, sec. 328. V. Little, 6 Met. 7; 39 Am. Dec. 707, see. 466. V. M. K. & T. R. Co., 67 Barb. 383, sees. 380, 390, 393. V. Vincent, 6 Vt. 014, sees. 344, 413, 503, 508, 528. Baylies V. Houghton, 15 Vt. 626, see. 464 Beach v. VUes, 2 Peters 675, sec. 513. Bean v. Barney, 10 Iowa 498, sec. 521. V. Bean, 38 N. H. 279, sec. 413. V. Simpson, 16 Me. 49, sees. 469, 471. Beazier v. Chappel, 2 Brev. 107, sec. 465. Becker v. Dunham, 27 Minn. 32, sec. 410. Beckwith v. Baxter, 3 N. H. 67, sees. 416, 425. Beers v. Arkansaw, 20 How. 527, sec. 418. Belcher v. Grubb, 4 Harr. 461, sec. 497. Belknap v. Gibbons, 13 Met. 471, sees. 341, 457. BeU V. Jones, 17 N. H. 307, sees. 369, 394 473. V. Kendi-icli, 8 N. H. 520, sec. 370. Benson v. Halloway, 59 JNliss. 358, sec 505. Bently v. Shrieve, 4 Md. Ch. Dec. 412, sec. 423. Benton v. Burgott, 10 Serg. & R. 240, sec. 402. V. LindeU, 10 Mo. 557, sec. 520. Bumard v. Moore, 8 Allen 273, sec. 440. Berry «;. Anderson, 2 How. (Miss.) 049, sees. 399, 405. V. Harris, 22 Md. 30, sec. 490. Bibb V. Preston, 1 Iowa 460, sec. 523. V. Smith, 1 Dana 580, sees. 439, 479. Bickford v. Rice, 105 INIass. 340, sec 53L Bickle V. Chrisman, 76 Va. 678, sec. 426. TABLE OF CASES. 733 I Bi^elow V. Andress, 31 111. 322, sees. 325, 333. Bi£:a:s V. Kouns, 7 Dana 405, sees. 338, 354. Bills V. Nat'l Park B'k 47 N. Y. Supr. Ct. 302, sees. 410, 448, 449, 460, 4G2. Bingham v. Lamping, 26 Pa. St. 340, sees. 410, 412. V. Pushing, 5 Ala. 403, sec. 484. V. Smith, 5 Ala. 651, sees. 492, 494. Bishop V. Holcombe, 10 Conn. 444, sees. 471, 472. V. Young, 17 Wis. 46, sees. 328, 449. Bissell V. Briggs, 9 Mass. 462; 6 Am. L)ee. 88, sec. 402. V. Strong, 9 Pick. 5C2, sec. 329. Bitton V. Preston, 9 Vt. 257, see. 4G0. Bivens v. Harper, 59 111. 21, sees. 404, 422. Black V. Paul, 10 Mo. 103, sees. 465, 469. Blackburn v. Davidson, 7 B. Mon. 101, sees. 452, 473. Blackwood v. Jones, 27 Wis. 498, sec. 399. Blair v. Cantey, 2Speer34; 42 Am. Dec. 3G0, sees. 330, 347, 421. V. Ehodes, 5 Ala. 048, sees. 452, 473. Blaisdell v. Ladd, 14 N. H. 129, sees. 338, 457. Blake v. Williams, 6 Pick. 286; 17 Am. Dee. 372, sees. 438, 474. Blanehard v. Cole, 8 La. 160, sees. 514, 519. V. Vargas, 18 La. 486, sec. 375. Blin V. Pierce, 20 Vt. 25, sec. 482. Bliss V. Smith, 78 111. 359, sees. 329, 333. Blodgett V. Gardiner, 45 Me. 542, sec. 531. Blumerv. Gilbert, 124Mass. 215, sec. 526. Boardman v. Gushing, 12 N. H. 105, sees. 411, 518. V. Roe, 13 Mass. 104, sec. 447. Bolton V. Penn. Co., 88 Pa. St. 201, sec. 329, 39o. Boone Co. v. Keck, 31 Ark. 387, sees. 419, 422. Borden v. Fitch, 15 Johns. 121; 8 Am. Dec. 225, sec. 402. Born V. Staaden, 24 111. 320, sees. 435, 472, 504. Boston etc. R. Co. v. Oliver, 32 N. H. 172, sec. 518. Type Co. v. Mortimer, 7 Pick. 166; 19 Am. Dec. 266, sees. 516, 518. Eost-wick V. Beaeh, 18 Ala. 80, sec. 389. Bottom V. Clark, 7 Gush. 487, sec. 333. Bouner v. JNIartin, 37 Ala. 83, sec. 521. Bowden v. Schatzell, Bailey's Eq. 360, see. 420. Bowker v. Hill, 60 Me. 172, see. 407. Bowler v. European etc. Co., 67 Me. 395, sees. 330, 404, 416, 429. Boyd V. Bayless, 4 Humph. 386, sees. 341, 457. Boyd V. Chesapeake etc. Co. , 17 Md. 195, sees. 342, 360. Boyle V. Franklin F. Ins. Co., 7 Watts & S. 76, see. 453. Brackett v. Blake, 7 Met. .335, sec. 465. Bradford v. Mills, 5 R. I. 393, see. 41.3. Bradley v. Richmond, 6 Vt. 121, sec. 419, V. Root, 5 Paige, 641, sec. 482. Brainard v. Eevis, 2 Mo. App. 490, sec. 467. V. Shannon, CO INIe. 342, sees. 373, 377, 389, 395, .523. Branch Bank v. Poe, 1 Ala. 396, sees. 3'^7 338 Brannon v. Noble, 8 Ga. 549, sec. 502. Brashear v. Root, 8 Md. 95, sec. 422. V. West, 7 Peters 608, sec. 329. Brauser v. New Eng. F. Ins. Co., 21 •Wis. 506, sees. 342, 343. Bray v. WaUingford, 20 Conn. 416, sec. 419. Brazier v. Chappell, 2 Brev. 107, sec. 437. Breading v. Liegworth, 29 Pa. St. 396, sees. 508, 525, 528. Brealsford v. Mead, 1 Yeates 488, sees. 353, 480, 487. Brecht v. Corby, 7 Mo. App. 300, sec. 505. Brickey v. Davis, 9 lU. App. 362, sec. 494. Brigden v. Gill, 16 Mass. 522, sees. 374, 416, 447. Brings V. Block, 18 Mo. 281, sees. 411, 438. Brill V. Tuttle, 81 N. Y. 457; 37 Am. Rep. 515, sees. 465, 482. Briscoe v. Bank, 11 Peters 259, sec. 418. Britt V. Bradshaw, 18 Ark. 530, sees. 381, 396. Brittain v. Anderson, 8 Baxt. 316, sec. 458. Britton v. Bishop, 11 Vt. 70, sec. 466. Brook V. Smith, 1 Salk. 280, see. 50a Brooks V. Cook, 8 Mass. 246, sees. 404, 425, 426. V. Hatch, 6 Leigh 534, sec. 482. V. Hilrlreth,22Iowa 469, sec. 437, 475. Brown v. Brown, 55 N. H. 74, sec. 513. V. Davis, 18 Vt. 211, see. 415. V. Dudley, 33 N. H. 511, sees. 503, 508, 525. V. Foster, 4 Cush. 214, sees. 438, 476. V. Heath, 45 N. H. 168, sees. 345, 419. V. Hull, 33 Gratt. 28, sec. 466. V. SUsby, 10 N. H. 521, sees. 528, 529, 531. V. Somerville, 8 Md. 444, sees. 500, 502, 505. V. Warren, 43 N. H. 430, sees. 513, 514. V. Williamson, 30 Pa. St. 338, sec. 428. Bruce v. Cook, 6 GiU & J. 345, sees. 399, 405. V. Smith, 44 Ind. 1, sec. 408. Brunswick Bank v. Sewall, 34 Me. 202, sec. 412. , Brush V. Scribner, 11 Conn. 388, sec. 4G3. 734 TABLE OF CASES. Bryan v. Dean, 63 Ga. 317, sees. 399, 521. V. Lashley, 13 Smedes & M. 284, sec. 3"tJ3. Buchanan v. Alexander, 4 How. 20, sec. 422. Buckley v. Garratt, 47 Pa. St. 204, sec. 472. Buckner v. Jones, 1 Mo. App. 538, sec. 463. Buddig V. Simpson, 33 La. An. 375, sec. 4ie. Buflfam V. City of Racine, 26 Wis. 449, sec. 419. Buford V. Welborn, 6 Ala. 818, sees. 383, 387. Bulfinch V. Winchenback, 3 Allen 161, sees. 486, 490. Bulkley V. Eckert, 3 Pa. St. 368; 45 Am. Dec. 650, sec. 422. BuUard v. Hicks, 17 Vt. 193, sec. 530. Bunker v. Gilmore, 40 Me. 88, sees. 471, 481, 504. Burke v. Whiteomb, 13 Vt. 421, sec. 449. Burleson v. Millan, 56 Miss. 399, sees. 347, 421. Burlingame v. Bell, 16 Mass. 318, sees. 325, 338, 441. Burlock V. Taylor, 16 Pick. 335, sec. 480. Burnap v. Campbell, 6 Gray, 241, sec. 507. Burnell v. Weld, 59 Me. 423, sec. 490. Bumham v. Beat, 14 Allen 217, sec. 414. Bumham v. City of Fond Du Lac, 15 Wis. 193, sec. 419. V. Doolittle, 14 Neb. 214, sees. 410, 440, 441. V. Dunn, 35 N. H. 556, sees. 381, 390. V. Polsom, 5 N. H. 566, sec. 492. V. Hopkinson, 17 N. H. 259, sees. 328, 335, 351, 490. Bumside v. McKinley, 12 La. An. 505, sees. 437, 444. BurreU v. Letson, 1 Strob. 2.39; 2 Speers 378, sees. 330, 347, 372, 421, 498. Burrows v. Glover, 106 Mass. 324, sec. 465. Burrus V. Moore, 63 Ga. 405, sees. 365, 383, 387. Burt V. Parish, 9 Ala. 211, sees. 361, 363. Burton v. Dist. Township, 11 Iowa 166, sees. 526, 527. V. Wynne, 55 Ga. 615, sec. 460. Bush V. Foote, 58 Miss. 5; 38 Am. Eep. 310, sec. 482. Bushnell v. Allen, 48 Wis. 460, sees. 396, 399. Butman v. Hobbs, 35 Me. 232, sec. 377. Butterfield v. Hartshorn, 7 N. H. 345; 26 Am. Dec. 741, sec. 475. Byars v. Griffin, 31 Miss. 603, sec. 482. C. Cadwalader v. Hartley, 17 Ind. 520, sec. 460. Cady V. Comey, 10 Met. 459, sec. 425. Cahill V. Bigelow, 18 Pick. 369, sees. 470, 477, 516. Cahoon v. Ellis, 18 Vt. 500, sec. 396. V. Morgan, 38 Vt. 234, sees. 336, 301. Caignett v. Gillband, 2 Yeatea 35, sec. 489. Cairo etc. R. Co. v, Killenberg, 82 111. 295, sees. 380, 465, 466. Calcord v. Daggett, 18 Mo. 557, sec. 461. Caldwell V. Coates, 78 Pa. St. 312, sees. 397, 448. V. Stewart, 30 Iowa 379, sees. 345, 419. Callagan v. Pocasset Manuf. Co., 119 Mass. 173, sec. 473. Callender v. Fiu-bish, 46 Me. 226, sees. 378, 411, 440. Camberford v. Hall, 3 MeCord 345, sec. 356. Camden v. Allen, 26 N. J. L. 398, sec. 513. Cameron v. Stollenwerck, 6 Ala. 704, sees. 503, 508. Cammuck v. Floyd, 10 La. An. 351, sec. 437, 441. Camp V. Byrne, 41 Mo. 525, sec. 342. V. Clark, 14 Vt. 387, sec. 479. Campbell v. Foster, 35 N. Y. 361, sec. 428. V. Nesbitt, 7 Neb. 300, sec. 407. V. Steele, 1 Jones, 394, sec. 402. Canaday v. Detrick, 63 Ind. 485, sec. 466. Canal Co. v. Ins. Co. 2 Phila. 354, sec. 437. Candee v. Skinner, 40 Conn. 4G0, sec. 531. V. Webster, 9 Ohio St. 452, sec. 531. Cardany v. N. E. Furniture Co., 107 Mass. 116, sees. 377, 523. Carpenter v. Gay, 12 R. I. 306, sec. 327. Carr v. Waugh, 28 111. 418, sec. 465. Carrique v. Sidebottom, 3 Met. 297, sees. 367, 383, 387. Carroll v. Finley, 26 Barb. 61, sec. 364. V. Parkes, 1 Baxt. (Tenn.) 269, sec. 354. V. Sheehan, 12 R. I. 218, sec. 356. Carson v. AUen, 2 Chand. 123; 2 Pinney 457; 54 Am. Dec. 148, sec. 458. V. Carson, 6 Allen 397, sec. 425. Case Threshing M. Co. v. Merocle, 54 Wis. 295, sec. 404. Casey v. Davis, 100 Mass. 124, sees. 371, 422, 504. Center v. McQuestion, 18 Kan. 476, sees. 330, 349, 385, 429, 438. Central Bank v. Prentice, 18 Pick. 396, sees. 411, 440. Plankroad v. Sammons, 27 Ala. 380, sees. 330, 338, 349, 429. Chambers i^. Yamell, 37 Ala. 400, sec. 524. Chapin v. Conn. R. Co., 16 Gray 69, sees. 416, 428. V. Jackson, 45 Ind. 153, sec. 444. Chapman v. Williams, 13 Gray 416, sec. 329. Chase v. Alexander, 6 Mo. App. 506, sec. 465. V. Foster, 9 Iowa 429, sec. 528. V. Houghton, 16 Vt. 594, sees. 458, 460. TABLE OF CASKS. 735 Chase v. Manhardt, 1 Bland 333, sec. 531. Chatzelv. Bolton, 3McCord33, sec. 490. Cheairs v. Slatcn, 3 Humph. 101, sec. 503. Chealey v. Brewer, 7 Mass. 239, sec. 422. Cheatham v. Trotter, Peck (Tenn.) 198, sec. 372. Cheongwo v. Jones, 3 Wash. C. C. 359, sees. 500, 502. Cherry v. Hooper, 7 Jones 82, sees. 452, 473. Chesapeake etc. R. R. Co. v. Paine, 29 Gratt. 502, sees. 342, 354, 408, 435. Chesley v. Coombs, 58 N. H. 142, sees. 412, 438. Chicago etc. K. Co. v. Mason, 11 111. App. 525, sec. 525. v.Eagland,84I11.375, sees. 329,395,401. Chilcote V. Conley, 36 Ohio St. 545, sees. 373, 395, 401. Childress v. Dickens, 8 Yerg. 113, sees. 483, 484, 518. Childs V. Digby, 24 Pa. St. 23, sec. 411. Chisholme v. Ga., 2 Dall. 419, sec. 418. Christmas v. Russell, 14 Wall. 84, sees. 465, 482. Church V. Knox, 2 Conn. 514, sec. 490. V. Simpson, 25 Iowa 408, sec. 523. Citizens Bank v. Payne, 21 La. An. 380, sees. 325, 326, 336. City of Chicago v. Hasley, 25 111. 595, sec. 419. Elizabeth v. Hill, 39 N. J. L. 555, sec. 395. Memphis v. Laski, 9 Heisk. 511; 24 Am. Rep. 321, sees. 419, 454. Newark v. Punk, 15 Ohio St. 462, sec. 410. Claflin V. Iowa City, 12 Iowa284, sees. 345, 357, 3(30. V. KimbaU, 52 Vt. 6, sec. 437. Clapp-'y. Hancock Bank, 1 Allen, 394, sees. 341, 484, 518. V. Rogers, 38 N. H. 435, sec. 338. V. Walker, 25 Iowa 315, sec. 419. Clark V. Boggs, 6 Ala. 809; 41 Am. Dec. 85, sec. 422. V. Brewer, 6 Gray 320, sec. 444. V. Brown, 14 Mass. 271, sec. 327. V. Chapman, 45 Ga. 486, sees. 359, 360. V. CiUey, 36 Ala. 652, sec. 438. • r. Clark, 62 Me. 255, sees. 422, 456. V. Deadrick, 31 Md. 148, sec. 467. r. Farnum, 7 R. I. 174, sees. 335, 490. V. Foxworthy, 14 Neb. 241, sec. 523. V. Gardner, 128 Mass. 358, sec. 526. V. Gibson, 12 K H. 386, sec. 445. V. Great Barrington, 11 Pick. 259, sec. 422. V. King, 2 Mass. 524, sees. 452, 466. V. Meixsell, 29 Md. 221, sec. 405. V. Mobile School Comr's, 36 Ala. 621, sec. 419. Clark V. Powell, 17 La. An. 117, sec. 531. V. Viles, 32 Me. 32, sec. 407. Clement v. Clement, 19 N. H. 460, sec. 449. Cleneay v. Jimction R. Co. 26 Ind. 375, sec. 460. Clerks Sav. Bank v. Thomas, 1 Mo. App. 367, sec. 463. Cleveland v. Clap, 5 Mass. 201, sees. 375, 377, 513. Clinton Nat'l Bank v. Bright, 126 Mass. 535, sees. 380, 390. Clise V. Freeborn, 27 Iowa 280, sec. 500. Clodfelter v. Cox, 1 Sneed 330; 60 Am. Dec. 157, sees. 471, 498. Clo-aghv. Buck, 6 Neb. 343, sees. 458, 462. Clymer v. WiUis, 3 Cal. 363, sec. 421. Coane v. Freese, 16 N. J. L. 305, sec. 330. Coates V. Roberts, 4 Rawle 100, sees. 503, 505. Cabb V. Bishop, 27 Vt. 624, sec. 447. Coble V. Nonemaker, 78 Pa. St. 501, sees. 457, 529. Coburn v. Currens, 1 Bush, 242, sec. 502. V. Hartford, 38 Conn. 290, sec. 483. Cochran v. Fitch, 1 Sandf. Ch. 142, sees. 402, 479, 494, 500, 503, 510. V. Smith, 1 Sandf. Ch. 148, sec. 486. Cockey v. Leister, 12 Md. 124, sees. 420, 424. Coe V. Rocha, 22 La. An. 590, sec. 523. Coffman v. Ford, 56 Iowa 185, sec. 392. Cohen v. P. Ins. Co. 11 Mo. 374, sec. 531. Cohens v. Va., 6 Wheat. 375, sec. 418. Colby V. Coates, 6 Cush. 558, sees. 404, 423, 425. Cole V. Wooster, 2 Conn. 203, sees. 330, 421. Collins V. Brigham, 11 N. H. 420, sees. 428, 443, 444. V. Chase, 71 Me. 434, sec. 401. Colt V. Ives, 31 Conn. 25, sec. 437. Colvin V. Rich, 3 Port. 175, sees. 471, 472. Commercial Bank v. McLeod, Rep. Jime 18, 1884, sec. 421. V. Neally, 39 Me. 402, sec. 455. Commissioners v. Fox, Morris (Iowa) 48, sec. 460. of Los Animas Count v v. Bond, 3 Colo. 411, sees. 345, 419. Commonwealth v. Phoenix B'k, 11 Met. 129, sec. 342. Cornstalk v. Farnum, 2 Mass. 96, sees. 452, 471. V. Paine, 18 La. 479, sec. 376. Conant v. Bicknell, 1 Chip. D. 50, sees. 330, 347, 421. Conley v. Chilcote, 25 Ohio St. 320, sec. 510. Conn. etc. R. Co. v. Kerr, 17 Barb. 581, sec. 408. Connelly v. Harrison, 16 La. An. 41, sec. 438. Conner v. Allen, 3 Head 418, sec. 380. Connoly v. Cheeseborougb, 21 Ala. 166, sec. 465. 736 TABLE OF CASES. Conover v. Euckman, 32 N. J. Eq. 685, sec. 345. Conway v. Annington, 11 E. I. 116, sees. 404, 426. V. Cutting, 51 X. H. 407, sees. 465, 469,. V. Ionia Ct. Judge, 46 Mich. 28, sec. 356. Cook V. Dillon, 9 Iowa 407, sec. 428. V. Field, 3 Ala. 53; 36 Am. Dec. 436, sees. 502, 503. V. Walthall, 20 Ala. 334, sec. 447. Cooney v. Cooney, 65 Barb. 524, sec. 409. Copeland v. Weld, 8 Me. 411, sec. 407. Corbyn v. Bollman, 4 Watts & S. 342, sees. 422, 522. Corey v. Powers, 18 Vt. 587, sec. 341. Corser v. Craig, 1 Wash. C. C. 424, sees. 471, 482. Cotta V. Mishow, 62 Me. 124, sec. 513. V. O'Xeal, 58 N. H. 572, sec. 440. Cottrell V. Varnum, 5 Ala. 229; 39 Am. Dec. 323, sees. 484, 518. County of Cass v. Gillett, 100 U. S. 585, sees. 458, 463. Warren v. Marcy, 96 IT. S. 90, sec. 458. Covert V. Nelson, 8 Blackf. 265, sees. 466, 502. Cowles V. Coe, 21 Conn. 220, sees. 434, 439. Coykendall v. Ladd, 21 K W. Eep. 733, sees. 440, 453. Crabb v. Jones, 2 Miles 130, sees. 492, 497. Crain v. Gould, 40 lU. 293, sees. 375, 377, 481, 517, 523. Crane v. Freese, 16 N. J. L. 305, sees. .347, 404. Crawford v. Clute, 7 Ala. 157; 41 Am. Dec. 92, sees. 500, 501. V. Slade, 9 Ala. 887; 44 Am. Dec. 463, sec. 501. Crayton v. Clark, 11 Ala. 787, sees. 471, 472. Crone v. Brann, 23 Minn. 239, sees. 354, 435. Cronin v. Foster, 13 E. I. 196, sees. 344, 413, 456. Crook V. Jadis, 5 Bam. & Adol. 909, sec. 463. Crosby v. Hetherington, 4 Man. & C 933, sec. 402. Cross V. Haldeman, 15 Ark. 200, sees. 460, 472. Crossman v. Grossman, 21 Pick. 21, sees. 366, 367, 378, 379, 520. Crownover v. Bamberg, 2 HI. App. 162, sec. 426. Crozier v. Shants, 43 Vt. 478, sec. 465, 472. Cruett V. Jenkins, 53 Md. 217, sees. 458, 400, 463. Culver V. Parish, 21 Conn. 408, sec. 463. Cummings v. Feary, 44 Mich. 39, sees. 393, 395, 396. V. Garvin, 65 Me. 301, sees. 425, 426. Cunningham v. Hogan, 136 Mass. 407, sec. 390, Curie V. St. Louis P. T. Co. 12 Mo. 578, sec. 465. Curling V. Hyde, 10 Mo. 374, sees. 426, 455. Curry v. Woodward, 50 Ala. 258, sees. 353, 357; 53 Ala. 371, sec. 488. Curtis V. Alvord, 75 Conn. 569, sees. 326, 398. V. Isorris, 8 Pick. 280, sees. 442, 444. V. Eaymond, 29 Iowa 52, sees. 411, 440. Gushing v. Laird, 6 Benedict, 408, sees. 372, 381, 396. Gushman v. Haynes, 20 Pick. 132, sees. 438, 465. Custer V. White, 49 Mich. 262, see. 493. Cutter V. Baker, 2 Day 498, sec. 506. V. Perkins, 47 Me. 557, sec. 449. Cutters V. Baker, 2 La. An. 572, sec. 444. Cutts V. Perkins, 12 Mass. 209, sec. 482. Cuxon V. Chadley, 3 Bam. & C. 591, sec. 475. D. Dailey v. Coleman, 122 Mass. 64, sec. 525. Daily v. Jordon, 2 Gush. 390, sec. 532. Daley v. Cunningham, 3 La. An. 55, sees. 420, 497. Danf orth v. Penny, 3 Met. 564, sees. 343, 359. Daniel v. Eawlings, 6 Humph. 403, sec. 400. Daniels v. Clark, 38 Iowa 556, sees. 326, 340, 354. V. Meinhard, 53 Ga. 359, sees. 338, 357, 359, 360. V. WiUard, 16 Pick. 36, sec. 480. Danley v. State Bank, 15 Ark. 16, sec. 422. Darling v. Osborne, 51 Vt. 130, sec. 467. Darlington v. Eogers, 13 Phila. 102, sees. 343, 456. Davenport v. Swan, 9 Humph. 186, sec. 409. V. Woodbridge, 8 Me. 17, sees. 468, 469, 471, 472. Davidson v. Clayland, 1 Harr. & J. 546', sec. 421. V. Donnovan, 4 Granch C. C. 578, sec. 300. Davis V. Barr, 9 Serg. & E. 137, sec. 471. V. Davis, 2 Gush. Ill, sec. 426. V. Drew, 6 N. H. 399; 25 Am. Dec. 467, sec. 427. V. Fogg, 58 X. H. 159, sec. 435. V. Ham, 3 Mass. 33, see. 449. V. Holeombe, 1 Ohio 275, sec. 3.30. V. Knapp, 8 Mo. 657, sees. 364, 381, 396, 397. V. Marston, 5 Mass. 198^ sees. 416, 428. V. McFarland, 37 Gal. 638, sec. 351. V. Miller, 14 Gratt. 1, sec. 467. V. Oakford, 11 La. An. 379, sees. 383, 387. V. Powlette, 3 Wis. 300, sees. 458, 459. V. Wilson, 52 Iowa 187, sees. 330, 441, TABLE OF CASES. 737 Dawkins v. Ganlt, 5 Eich. L. 151, sees. 381, o'J6. Dawson v. Holeombe, 1 Ohio 275; 13 Am. Dec. C18, sees. 330, 347, 404, 421. Day V. Panpierre, 13 Ad. &. E. (N. S.) 802, sec. 363. V. Zimmerman, 88 Pa. St. 188, sec. 458; G8 Pa. St. 72, sees. 4G0, 463. Dayton v. Borst, 31 N. Y. 435, sec. 408. Deacon v. Oliver, 14 How. 610, sec. 407. Deaver v. Keith, 5 Ired. 374, sec. 447. DeBlanc n Webb, 5 La. 82, sees. 374, 383, 387. DebUeux v. Hotard, 31 La. An. 194, sec. 426. Decoster v. Livermore, 4 Mass. 101, sec. 423. Deer v. Lubey, 1 McArthur 187, sec. 418. De Graff v. Thompson, 24 Minn. 452, sees. 337, 415. Dehner v. Helmbaeher etc. Mills, 7 111. App. 47, sees. 371, 402, 465, 481. Delacroix v. Hart, 24 La. An. 141, sees. 332, 350, 428. De Liquero r. INIunson, 11 Heisk. 15, sec. 371. Dennie v. Hart, 2 Pick. 204, sec. 510. Dennis v. Twitchell, 10 Met. 180, sec. 482. Dennistoun v. N. Y. C. & S. Co. 6 La. An. 762, sees. 325, 331. Denny v. Hamilton, 16 Mass. 402, sec. 408. Desha v. Baker, 3 Ark. 509, sees. 363, 505. Detroit etc. Co. v. Eeilly, 46 Mich. 459, sec. 447. Devine v. Harvie, 7 Mon. 439; 18 Am. Dec. 194, sec. 418. DevoU V. BroA\TieIl, 5 Pick. 448, sees. 370, 396. Devries v. Buchanan, 10 Md. 210, sees. 364, 366,. 381, 396. Dew V. Bank of Ala., 9 Ala. 323, sec. 399. Dewey v. Garvey, 130 Mass. 86, sec. 418. Dewing v. Wentworth, 11 Cush. 499, sec. 423. Diamond v. Harris, 33 Tex. 634, sec. 467. Dickey V. Fox, 24 Mo. 217, sec. 461. Dickinson v. Parmer, 2 Pich. Eq. 407, sec. 421. V. Strong, 4 Pick. 57, sec. 407. Dickson v. Morgan, 7 La. An. 490, sec. 385. Diefendorf r. Oliver, 8 Kan. 365, sec. 475, Dispatch Line v. Bellamy Manuf . Co. , 12 N. H. 205; 37 Am. Dec. 203, sees. 33S, 414, 447. Dix V. Cobb, 4 Mass. 508, sees. 354, 402, 465, 4-19, 471, 472, 481. Dixon A Hill, 5 Mich. 404, sees. 390, 434, 4b9. Dobbins v. Hyde, 37 Mo. 114, sees. 432, 437, 504. V. Railroad Co., 37 Ga. 240, sees. 418, 422. Dodd V. Bratt, 1 Minn. 270, sec. 471. Doggett V. St. Louis etc. Co., 19 Mo. 201, sec. 532. II Attachment— 22. Dolby r. Mullins, 3 Humph. 437; 39 Am. Dec. 180, sec. 421. Dole r. Boutwell, 1 Allen, 286, sec. 503. Dolson V. Brown, 13 La. An. .551, sec. 437. Donnelly v. O'Connor, 22 Minn. 309, sees. 523, 52Gv Dore V. Dawson, 6 Ala. 712, sees. 465, 466. Downer v. Curtis, 25 Vt. 650, sec. 450. V. Topliff, 19 Vt. 399, sec. 453. . Doyle V. Gray, 110 Mass. 206, sees. 473, 513. Drane v. McGavock, 7 Humph. 132, sees. 380, 404, 420, 421. Dresser r. MeCord, 96 111. 389, sees. 371, 402, 465. DriscoU V. Hoyt, 11 Gray 404, sees. 328, 335, 377, 490. Dryden v. Adams, 29 Iowa 195, sees. 444, 516. Dubois v'. Dubois, 6 Cowen 494, sees. 330, 345, 347, 404, 421. Ducarse v. Keyser, 28 La. 419, sec. 468. Dudley v. Palkner, 49 Ala. 148, sees. 152, 425. Duke r. P. I. Locomotive Works, 11 R. I. 599, sec. 385. Duncan v. Berlin, 60 K Y. 151, sec. 473. Duncan v. Ware, 5 Stew. & P. 119; 24 Am. Dec. 772, sec. 505. Dunlap V. Patterson F. Ins. Co., 74 X. Y. 145; 30 Am. Rep. 283; 12 Hun 627; sees. 330, 347, 420. Dunmill v. Bedford, 3 Yes. 149, sec. 428. Dunnegan v. Byers, 17 Ark. 492, sees. 484, 518. Dunning v. Owen, 4 Mass. 162, sec. 399. Dupuy V. Sheak, 57 Iowa 361, sec. 456. Durant v. Iowa Co., 1 Woolw. 69, sees. 458, 463. Durham v. Payne, 20 La. An. 195, sec. 460. D wight V. Bank of Mich., 10 Met. 68, sec. 437. Dwinel v. Stone, 30 Me. 384, sec. 450. Dyer v. McHenry, 13 Iowa 527, sec. 516. E. Eagan v. Luby, 133 Mass. 543, sec. 470. Ealer v. McAllister, 14 La. An. 821, sees. 347, 420. Early v. Redwood City, 57 Cal. 193, sees. 450, 483. East Line etc. R. Co. v. Terry, 50 Tex. 129, sec. 397. Eastman v. Newman, 59 N. H. 581, sec. 400. Eddy V. Heath, 31 Mo. 141, sec. 447. V. O'Hara, 132 Mass. 56, sec. 501. Edgerly v. Sanborn, 6 N. H. 387, sec. 529. Edmondson v. DeKalb Co., 51 Ala. 103, sees. 354, 435. Edson V. Sprout, 33 Vt. 77, sec. 499. V. Trask, 22 Vt. 18, sees. 414, 428. Edwards r. Beugnot, 7 Cal. 162, sec. 408. V. Delaplaine, 2 Harr. 322, sec. 518. 738 TABLE OF CASES. Edwards v. Thomas, 2 Mo. App. 282, sec. 463. Egerton v. The Third Municipality, 1 La. An. 435, sec. 419. Ehrich^ r. DeMill, 75 N. Y. 370, sec. 482. Eichelberger v. Murdoch, 10 Md. 373, sees. 414, 438. Ellicott V. Smith, 2 Cranch C. C. 542, sees. 353, 359, 486, 487. EUiott V. Newby, 2 Hawks (N. C.) 21, sec. 426. ElHs V. Goodnow, 40 Vt. 237, sees. 444, 516. Ellison V. Tuttle, 26 Tex. 283, sees. 407, 499. Elmer v. Welch, 47 Conn. 56, sec. 394. Emanuel v. Smith, 38 Ga. 602, sec. 366. Embree v. Hanna, 5 Johns. 101, sec. 500. Emeric v. Gilman, 10 Cal. 404, sec. 422. Emerson v. Wallace, 20 N. H. 567, sees. 338, 434. Emmerson v. Partridge, 27 Vt. 8, sees. 460, 464. Emery v. Davis, 17 Me. 252, sees. 414, 428. V. Lawrence, 8 Gush. 151, sec. 470. Enos V. Tuttle, 3 Conn. 27, sees. 461, 478, 479. Epstein V. Salorgue, 6 Mo. App. 352, sec. 309. Erie v. Knapp, 29 Pa. St. 173, sec. 419. Bankr. Gibson, 1 Watts 143, sec. 402. Ersldne v. Sangston, 7 Watts 150, sees. 381, 396. Erwin V. Commercial Bank, 3 La. An. 186; 48 Am. Dec. 447, sec. 460. V. Heath, 50 Miss. 795, sec. 399. Estabrook v. Earle, 97 Mass. 302, sees. 414, 416, 428. Evans V. Adams, 81 Pa. St. 443, sec. 434. V. Matlock, 8 Phila. 271, sec. 500. V. Mohn, 55 Iowa 302, sec. 522. V. Monat, 4 Jones Eq. 213, sec. 342. Everdell v. Sheboygan etc. E. Co., 41 V/is. 395, sees. 330, 348, 429. Everett v. Harrin, 48 Me. 537, sec. 421. Exchange Bank v. Gulick, 24 Kan. 359, sec. 392. v. McLoon, 73 Me. 498; 4 Am. Eep. 388, sec. 437. r. Eain V. Jones, 3 Head 308, sees. .375, 51.3. Eairchikl v. Lampron, 37 Vt. 407, sees. 487, 491. Fairfield V. Madison Manuf. Co. 38 Wis. 346, sec. 399. Fanning v. First National Bank, 76 111. 53, sec. 409. Fanton v. Fairfield Co. Bank, 23 Conn. 485, sees. 354, 471. Farley v. Bloodworth, 66 Ga. 349, sec. 389. Farmer v. Simjjson, 6 Tex. 303, sec. 502. Farmers Back v. Beaston, 7 GiU & J. 421; 28 Am. Dec. 220, sees. 404, 420, 421, 424. V. Franklin B'k, 31 Md- 404, sec. 518. V. Gettenger, 4 W. Va. 305, sec. 517. Farmers etc. Bank v. King, 57 Pa. St. 202, sees. 416, 428. Farmers and Merchants Bank v. Wells, 23 Minn. 475, sees. 338, 412. FarweU v. Howard, 26 Iowa 381, sec. 327. FauJkner v. Waters, 11 Pick. 473, sees. 444, 449. Faulks V. Heard, 31 Ala. 516, sees. 521, 524. Faull V. Alaska etc. Co. 8 Sawyer 420; 14 Fed. Eep. 657, sees. 342, 357, 448. V. Tinsman, 36 Pa. St. 108, sec. 471. Faxon r. Mansfield, 2 Mass. 147, sec. 513. Fay V. Jones, 18 Barb. 340, sees. 354, 471. V. Eeager, 2 Sneed (Tenn.) 200, sees. 375, 513. V. Sears, 111 Mass. 154, sees. 390 466, 4G8, 472. V. Smith, 25 Vt. 010, sees. 484, 518.. Fearey r. Cimimings, 41 Mich. 376, sees. 327, 396. Fearle & Lewis, Hx parte, 13 jMo. 467; 53 Am. Dec. 155, sees. 420, 421. Featherstone v. Compton, 8 La. An. 285, sec. 405. FeUows V. Duncan, 13 Met. 332, sec. 447. V. Smith, 131 Mass. 363, sees. 449, 483. Fenton v. Black, 10 Mo. App. 536, sees. 437, 451. Field V. Crawford, 6 Gray 116, sees. 411, 410. V. Jones, 11 Ga. 413, sec. 424. V. Mayor of N. Y., 2 Seld. 179, sec. 335. V. McKinney, 60 !Miss. 763, sees. 436, 527. V. Watkins, 5 Ark. 672, sees. 375, 513, 518. V. Wood, 9 Iowa 249, sec. 522. Fifield V. Wood, 9 Iowa 249, see. 525. Final v. Backus, 18 INIich. 218, sec. 465. Finch V. Bullock, 10 Phila. 318, sec. 392. Finney v. Ackerman, 21 Wis. 268, sec. 395. Firebaugh v. Stone, 36 Mo. Ill, sec. 499. Fii-str. Miller, 4 Bibb (Ky.) 311, sees. 330, 347, 404, 421. Baptist Ch. v. Hyde, 40 HL 150, sec. 520. Kat'lB'kr. Davenport etc. E. Co., 45 Iowa 120, sees. 330, 348, 429. V. Dubuque etc. E. Co., 52 Iowa 378; Am. Eep. 280, sec. 482. V. Gan(!!y, 11 Neb. 431, V, MiUer* 45 Mich. 413, sees. 497, 502, 512. 1 TABLE OF CASES. 739 First Xat'l E'k v. Perry, 45 Iowa226, sec. 440. V. Weckler, 52 Md. 30, sec. 358. Fish V. Fieltl, 19 Vt. 141, sec. 447. V. Keeney, 91 Pa. St. 138, sees. 402, 435. Fisher v. Hall, 44 Mich. 493, sec. 399. V. Taylor, 2 Kawle 33, sec. 428. Fisk V. Brackett, 32 Vt. 798, sec. 464. V. Herrick, 6 Mass. 271, sees. 353, 490. V. Weston, 5 Me. 410, sec. 435. Fitch I'. Manhattan Ins. Co. 23 Kan. 30(5, sees. 391, 392. V. Waite, 5 Conn. 117, sees. 329, 407, 449. Fitchett V. Dolbee, 3 Har. 267, sees. 425, 426. Fithian v. N". Y. etc. R. Co. 31 Pa. St. 114, sees. 385, 497. Fitzgerald v. Caldwell, 1 Yeates 274; 2 Dall. 215; 4 DaU. 251, sees. 500, 501, 531. V. Hollingsworth, 14Neb. 188, sees. 428, 437, 451. Fitzsimmons v. Carroll, 128 Mass. 401, sec. 402. Flanagan v. Wood, 33 Vt. 332, sees. 349, 4.9, 430. Fhmdro, Be, 20 Him 36, sec. 497. Fljtcher V. Fletcher, 7 N. H. 452; 28 Am. Dec. 350, sec. 407. Flint V. Flint, Allen 34, sec. 467. Flower v. Parker, 3 ISIason 247, sec. 502. Fogg V. Wooster, 49 N. H. 503, sec. 377. Folcottr. Ogden, 1 Black. H. 135, sec. 464. Folsom V. Haskell, 11 Cush. 470, sees. 335, 490. Force v. Brown, 32 N. J. Eq. 118, sees. 404, 428. Ford V. Detroit Dry Dock Co. 50 Mich. 358, sec. 491. Ford V. Hurd, 4 Smedes and M. 683, sec. 405. V. Woodward, 2 Smedes and M. 260, sees. 399, 405. Forepaugh v. Appold, 17 B. Mon. 625, sec. 465. Fors V. Nutting, 14 Gray 484, sec. 464. Forster v. Fuller, 6 Mass. 58, sec. 453. Fortune v. City of St. Louis, 23 Mo. 239, sec. 419. V. State Bank, 4 Ala. 385, sec. 462. Foster -y. Dudley, 30 IST. H. 463, sees. 447,492. V. Jones, 15 Mass. 185, sees. 492, 495. V. Libliy, 24 Me. 448, sec. 377. V. Potter, 37 Mo. 525, sec. 441. V. SafiFell, 1 Swan 90, .sec. 380. V. Sinker, 4 Mass. 450, sec. 466. V. Walker, 2 Ala. 177, sees. 466, 472, 481. V. White, 9 Port. 221, sec. 471. Fowler v. McClelland, 5 Ark. 188, sec. 426. V. Pittsburg etc. R. Co. 35 Pa. St. 22, sees. 330, 340, 429, 430. Fowler v. Williamson, 52 Ala. 16, sees. 471, 481. Fox V. Reed, 3 Gratt. 81, sec. 514. Frank v. Frank, 6 Mo. App. 588, sees. 392, 397, 404, 428. Franklin Ins. Co. v. West, 8 Watts & S. 350, sees. 331, 338, 370, 453. Freeman v. Grist, 1 Dev. (N. C.) 217, sec. 338. V. Miller, 51 Tex. 443, sees. 386, 399; 53 Tex. 372, sec. 389. Freidenrich v. Moore, 24 Md. 295, sees. 522, 525. French v. Rogers, 16 K. H. 177, sec. 353. Frizzell v. Willard, 37 Ark. '478, sees. 359, 412. Frost V. Patrick,. 3 Smedes & M. 783, sec. 523._ Frothingham v. Haley, 3 Mass. 68, sec 449. Fuller, In re, 79 111. 99, sec. 395. V. Jewett, 37 Vt. 473, sec. 407. V. O'Brien, 121 Mass. 422, seca 452, 473. Fulweileri;. Hughes, 17 Pa. St. 440, sees. 479, 484, 518. Funkhouser v. How, 24 Mo. 44, sec. 461. G. Gaffney v. Bradford, 2 Bailey 441, sees. 458, 461. Gage V. HiU, 43 Barb. 44, sec. 402. V. Stimson, 26 Minn. 64, sec. 435. Gager v. Watson, 11 Conn. 168, sec. 497. Gails V. Schooner Osceola, 14 La. An. 64, sec. 475. Gaines v. Beirne, 3 Ala. 114, sec. 353. Galego V. Galego, 2 Brock. C. C. 285, sec. 501. Galena etc. R. Co. v. Menzies, 26111. 121, sec. 465. Galena etc. R. Co. v. Sthal, 103 111. G7, sec. 407. Gardner v. Lacklan, 4 Mylne & C. 129, sees. 469, 471. Garland v. Harrington, 51 N. H. 409, sec. 470. V. McKetrick, 52 Wis. 261, sec. 326. Garrett v. Cheshire, 69 N. C. 396; 12 Am. Rep. 647, sec. 395. Garrott v. Jafifrey, 10 Bush. 413, sec. 432. Gassett v. Grant, 4 Met. 486, sees. 404, 427. Gee V. Cummings, 2 Hayw. (jST. C.) 398, sec. 520. V. Warwick,' 12 Hayw. (N. C.) 354, sees. 426, 520. Geer v. Chapel, 11 Gray 18, sec. 447. George V. Ralls Co., 3'McCrearyC. C. 181, sees. 470, 473, 485. Georgia Ins. Co. v. Oliver, 1 Ga. 38, sec. 531. Gevjv. Ehrgood, 31 Pa. St. 329, sec. 409. Gerrish v. Sweetzer, 4 Pick. 374, sec. 469. Getchell v. Chase, 37 N. H. 106, sees. 327, 328, 447; 124 Mass. 366, sees. 338, 403, 479, 486, 510. Gibbons v. Cherry, 53 Md. 144, sec. 389, 740 TABLE OF CASES. Gibson v. Cooke, 20 Pick. 1.5; 32 Am. Dec. 194, sees. 46.5, 475, 482. V. Finly, 4 Md. Ch. 75, sec. 4(55. Giddings v. Coleman, 12 N. H. 153, sees. 4;;4, 481. Gies V. Bechtner, 12 Minn. 279, sees. 440,453. Gildersleve v. Carroway, 19 Ala. 246, sec. 505. Giles V. Ash, 123 Mass. 353, sees. 371, 435. Gill V. Cubitt, 3 Bam. & C. 466, sec. 403. Gillett V. Fairchild, 4 Denio 80, sec. 465. Gi!man r. Contra Costa Co. 8 Cal. 52, sec. 422. Gilmer v. Camaban, 81 Pa. St. 217, sec. 329. Girard P. Ins. Co. v. field, 45 Pa. St. 129, sec. 453. Glassel v. Thomas, 3 Leigh 113, sec. 515. Gleason v. Gage, 2 Allen 410, sec. 532. Glenn v. B. & S. Glass Co., 7 jMd. 287, sec. 412. V. Gill, 2 Md. 1, sees. 404, 420, 424. Iron Works, In re, 17 Fed. Pep. 324, sec. 338. Godbold V. Bass, 2 Rich. (S. C.) 202, sec. 427. Goddard v. Hapgood, 25 Vt. 351; 60 Am. Dec. 272, sec. 338. Godden v. Cowhurst, 10 Sim. 642, sec. 428. V. Pierson, 42 Ala. 370, sees. 335, 490. Godfrey v. Macomber, 128 Mass. 188, sees. 394, 449, 483. Goldr. Housatonic P. Co., 1 Gray 424, sec. 343. Golson V. Powell, 32 La. An. 521, sees. 371, 471. Goode V. Holcombe, 37 Ala. 94, sec. .521. Goodman v. Harvev, 4 Ad. & E. 870, sec. 463." V. Meriden Britannia Co., Pep. Dec. 19, 1883, sec. 473. V. Simonds, 20 How. 343, sec. 463. Gordon v. Coolidge, 1 Sumn. C. C. 537, sec. 380. Gore V. Clisby, 8 Pick. 555, sees. 329, 407, 437. Gorman v. Swaggerty, 4 Sneed 560, see. 426. Gouch V. Tolman, 10 Cush. 104, see. 380. Gould V. ileyer, 36 Ala. 565, sees. 523, 524. Gove V. Varrell, 58 :N'. H. 78, sec. 447. Grace v. Maxfield, 6 Hmnph. 328, sec. 447. Gracy v. Coates, 2 McCord 224, sec. 530. Graham v. Moore, 7 B. Mon. 53, sec. 447. Grant v. Shaw, 16 Mass. 341; 8 Am. Dee. 142, sees. 411, 442, 444, 449. Graves v. Cooper, 8 Ala. 811, sees. 509, 521. V. Kav, 3 Barn. & Adol. 313, see. 467. V. "Walker, 21 Pick. 160, sees. 377, 523. Gray v. Badgett, 5 Ark. 16, sec. 514. V. Henby, 1 Smedes & M. 598, sec. 497. Grayson v. Veeche, 12 Mart. 688; 13 Am. - Dec. 384, sec. 457. Great West. Tel. Co. He, 5 Biss, 333, sees. 458, 463. Greathouse v. Smith, 4 lU. .541, sec. 497. Green v. Doughty, G N. H. 572, sees. 439, 479. V. Farmers etc. Bank, 25 Conn. 452, sees. 344, 413. V. Gillett, 5 Day 485, sees. 464, 465, 480. V. Nelson, 12 IMet. 537, sec. 514. V. Powley, 1 Pittsb. 1, sec. 419. Greene r. Tripp, 11 P. I. 424, sec. 356. Greenleaf v. Perrin, 8 X. H. 273, sees. 327, 447. Greentree v. Posenstock, 61 X. Y. 593, see. 504. Greenwood v. Rector, Hemp. C. C. 708, sec. 494. Greer v. Powell, 1 Bush 489, sees. 458, 459. V. Powlev, 1 Pittsb. 1, sees. 345, 360. ' Gregg V. Hilson, 8 Phila. 91, sees. .333, 349. Gregory v. Hjggins, 10 Cal. 339, sees. 458, 460. Gridley v. Harraden, 14 Mass. 496, sec. 492. r. Phillips, 5 Kan. 349, sec. 334. Griel V. Loftin, 65 Ala. 591, see. 392. Griffin v. Wilcox, 21 Ind. 370, sec. 465. Grissom v. Reynolds, 1 How. (Miss. ) 570, sec. 507. Groome v. Lewis, 23 Md. 137, sec. 424. Grosvenor t;. Atlantic Fire Ins. Co., 17 jST. Y. 391, sec. 471. V. Farmers etc. Bank, 13 Me. 104, sec. 407. Groves v. Brown, 11 Mass. 334, see. 525. Guild V. Holbrook, 11 Pick. 101, sees. 407, 449. Guither v. Ballew, 4 Jones, 488, sec. 420. Gunn V. Howell, 35 Ala. 144, sees. 399, 503, 505; 27 Ala. 063, sees. 521, 524. Gutterson v. Morse, 58 X. H. 529, sec. 412. H. Hackett v. Martin, 8 Me. 77, sees. 471, 472. Haekleyr. Kanitz, 39 Mich. 398, sec. 389. V. Swigert, 5 B. Mon. 86; 41 Am. Dec. 256, sec. 420. Hadley v. Peabody, 13 Gray 200, sec. 419. Hagedon v. Bank of Wis., 1 Pinney 61, sec. 424. Haines v. Haines, 6 Md. 435, see. 453. V. OConnor, 5 111. App. 213, sees. 391 399. Hair v. Lowe, 19 Ala. 224, see. 527. Hall V. Brooks, 25 Hun 577, see. 389. V. Daniel, 62 Ga. 620, sees. 382, 400, 512. V. FUter :Manuf. Co., 10 Phila. 370, sees. 330, 349, 429, 430. V. Hale, 8 Conn. 336, sec. 463. TABLE OP CASES. 741 Hall V. Magee, 27 Ala. 414, sees. 447, 473. V. Page, 4 Ga. 428, sec. 441. V. Rose Hill etc. R. Co., 70 lU. 673, sec. 408. Halpin v. Barringer, 26 La. An. 170, sec. 410. Hamilton v. Catchings, 58 Miss. 92, sec. 474. V. Marks, 52 Mo. 78; 14 Am. Rep. 391, sec. 463: 63 Mo. . 107, sec. 463. Hammett v. Morris, 55 Ga. 644, sec. 327. Hancock v. Colyer, 99 Mass. 187, sees. 407, 449. Hanna v. IBry, 5 La. An. 651; 52 Am. Dec. 606, sec. 420. Hannibal etc. R. Co. v. Crane, 102 111. 249, sec. 343. Hansen v. Butler, 48 Me. 81, sees. 404, 427. Hanson v. Davis, 19 N. H. 133, sees. 353, 491. Hardesty v. CampbeU, 29 Md. 533, sec. 426. Hardy v. Hunt, 11 Cal. 343, sees. 374, 410. Harmon v. Birchard, 8 Blackf . 418, sees. 399 404 504. Harney v. Eliis, 11 Smedes & M. 348, sec. 400. Harper v. Butler, 2 Peters 239, sec. 464. Harrell v. Whitman, 19 Ala. 138, sees. 335, 447, 448, 490. _ Harris v. Aiken, 3 Pick. 1, sec. 367. V. Phoenix Ins. Co. 35 Conn. 310, sec. 379. V. Somerset etc. R. Co., 47 Me. 298, sec. 511. Hart V. Anthony, 15 Pick. 445, sees. 344, 413. V. Dahlgreen, 16 La. 559, sees. 377, 389, 523. V. Forbes, 60 Miss. 745, sec. 438. Hartle v. Long, 5 Pa. St. 491, sees. 425, 420. Hartley v. Tapley, 2 Gray 565, sec. 470. Hartman v. Olvera, 54 Cal. 61, sec. 416. Harvey r. Commonwealth of Va., lAm. L. J. 194, sec. 418. Haselton v. Monroe, 18 N". H. 598, sec. 500. Haskell v. Haskell, 8 Met. 545, sec. 428. Haskins v. Johnson, 24 Ga. 625, sees. 359, 487. Hassle v. God is With Us Cong., 35 Cal. 378, sees. 335, 448. Hastings v. Baldwin, 17 Mass. 551, sec. 441. Haswell v. Worsham, 2 Humph. 524; 37 Am. Dec. 572, sec. 421. Hatch V. Dennis, 10 Me. 244, sec. 47L Hathaway v. Reed, 127 Mass. 136, sees. 371, 4.35. V. Russell, 16 Mass. 472, sees. 353, 359, 487, 514. Haum V. Low, 2 N. H. 13, sec. 440. Haust V. Burgess, 4 Hughes C. C. 560, sec. 428. Haven v. Wentworth, 2 N. H. 93, sees. 328, 330, 437, 447. Hawes v. Langton, 8 Pick. 67, sees. 308, 390. Hawea v. Waltham, 18 Pick. 451, sees. 353, 491. Hawkins v. Graham, 128 Mass. 20, sec. 388. Hawley v. Atkinson, 39 Conn. 309, sec. 353. Hawthorn v. City of St. Louis, 11 Mo. 60, sec. 419. a V. IJnthank, 52 Iowa 507, sees. 375, 473. Haynes v. Gates, 2 Head 598, sec. 465. Hays V. Anderson, 57 Ala. 374, sees. 333, 350, 403. V. Lycoming etc. Co., 99 Pa. St. 621, sec. 342. Haywood v. Clerk, 50 Vt. 612, sec. 401, 409. Hazard v. Agricultural Bank, 11 Rob. (La.) 326, sec. 331. Hazeltine v. Page, 4 Vt. 49, sees. 381, 477. Hazen v. Emerson, 9 Pick. 144, sees. 306, 379. Hazzard v. Franklin, 2 Ala. (N. S.) 349, sec. 528. Head v. Merrill, 34 Me. 586, sec. 360. Hearn v. Adamson, 64 Ga. 608, sec. 388. V. Crutcher, 4 Yerg. 401, sees. 421, 428, 441. Hebel v. Amazon Ins. Co. 33 Mich. 400, sees. 336, 343, 359, 360, 361. Hecht V. Green, 61 Cal. 269, sees. 397, 437. Helme v. Pollard, 14 La. An. 306, sees. 381, 396. Hemmenway v. Pratt, 23 Vt. 332, sec. 447. Henry v. Gold Park M. Co. 15 Fed. Rep. 649, sec. 498. Herring v. Johnson, 5 Phila. 443, sec. 530. Hess V. Shorb, 7 Pa. St. 231, sees. 425, 420, 523, 528. Hewitt V. FoUett, 51 Wis. 265, sec. 435. V. Wagar Lumber Co., 38 Mich. 701, sec. 435. V. Wheeler, 22 Conn. 557, sec. 456. Hibbard v. Clark, 56 K H. 155; 22 Am. Rep. 432, sec. 513. Hibernia etc. Soc. v. Superior Court, 56 Cal. 205, sec. 389, Hicks V. Chapman, 10 Allen 403, sec. 427. V. Gleason, 20 Vt. 139, sees. 338, 421. Hightower v. Slaton, 54 Ga. 108; 21 Am. Rep. 273, sees. 404, 422. Hildreth v. Pinkerton Academy, 29 N". H. 227, sec. 453. Hill V. Beach, 12 N. J. Eq. 31, sees. 421, 490. V. Bowman, 35 Mich. 191, sec. 447. V. Kroft, 29 Pa. St. 186, sees. 458, 400, 403. V. La Crosse etc. R. Co., 14 Wis. 291, sees. 404, 42L Hinkelv. Currin, 2 Humph. 137, sec. 520; 1 Humph. 74, sec. 532. Hinkley v. Williams, 1 Cush. 490, sec. 416. 742 TABLE OF CASES. Hinsdill V. Safford, 11 Yt. 309, sees. 458, 460. Hitchcock V. Edgerton, 8 Vt. 202, sec. 407. V, Lancto, 127 Mass. 514, sec. 473. V. Miller, 48 Mich. 603, sees. 450, 470. V. Watson, 18 lU. 299, sec. 532. • Hitt V. Lacy, 3 Ala. 104; 36 Am. Dec. 440, sec. 492. Hoag V. Hoag, 55 N. H. 172, sec. 457. Hoar V. Marshall, 2 Gray 251, sec. 42.5. Hobbs V. INIemphis Ins. Co., 1 Sneed 444, sec. 471. Hocaday v. SaUee, 23 Mo. 219, sec. 416. Hodges V. Graham, 25 La. An. 380, sec. 33S. Hoffman v. Fitzwilliam, 81 111. 529, sec. 329. V. Simon, 52 jNIiss. 302, sec. 524. Hogan V. Emerson, 9 Pick. 144, sec. 520. Hoith V. Pfeifle, 42 Mich. 31, sees. 359, 399 487. Holbrook v. Baker, 5 Me. 309; 17 Am. Dec. 236, sec. 440. V. "Waters, 19 Pick. 354, sees. 410, 425. Holdman v. Hillsborough etc. R. Co., 2 Handy, 101, sec. 437. Holdship V. Patterson, 7 Watts 547, sec. 428. Holland v. Smith, 11 Mo. App. 6, sec. 504. Holman v. Fisher, 49 Miss. 472, sec. 420. Holt V. Experience, 26 Ga. 113, sec. 419. Holton V. South Pac. E. Co. 50 Mo. 151, sees. 381, 396. Home Mut. Ins. Co. v. Gamble, 14 Mo. 407, sees. 507, 512. Homestead Cases, 22 Gratt. 266; 12 Am. Rep. 507, sec. 395. Hood V. Parker, 03 Ga. 510, sec. 389. Hooper V. Hills, 9 Pick. 435, sees. 407, 479. Hooton V. Gamage, 11 Allen 354, sec. 499. Hopkins v. Ray, 1 Met. 79, sec. 407. Hopson r. Dinan, 48 Mich. 612, sees. 449, 470. Horton v. Bayne, 52 Mo. 531, sec. 463. V. Grant, 56 Miss. 404, sec. 374. V. Simimers, 62 Ga. 302, sees. 401, 409. Hosldns V. Johnson, 24 Ga. 625, sec. 353. Houghton V. Lee, 50 Cal. 101, sec. 409. Housmans v. Hilbron, 23 Ga. 186, sec. 327. Houston V. Nowland, 7 Gill & J. 480, ^sec. 480. V. Walcott, 1 Iowa 86, sec. 505. V. Wolcott, 7 Iowa 173, sees. 372, 374, 382. Hovey v. Crane, 12 Pick. 167, sec. 383. Hovey r. Hovey, 55 N. H. 172, sec. 341. How V. Field, 5 Mass. 390, sec. 329. V. White, 49 Cal. 658, sec. 407. Howard v. Card, 6 Me. 353, sees. 440, 441. V. Crawford, 21 Tex. 399, sec. 532. V. McLaughlin, 98 Pa. St. 440, sec. 490. Howe V. Jones, 57 Iowa 130, sees. 435, 465. V. Ould, 28 Gratt. 1, sees. 458,463. Howell V. Freeman, 3 Mass. 121, sees. 495, 496. Howland v. Spencer, 14 N. H. 530, sec. 407. Howley v. Atherton, 39 Conn. 309, sec. 487. Howry v. Eppinger, 34 Mich. 29, sec. 463. Hoyt V. Christie, 51 Vt. 48, see. 426. V. Robinson, 10 Gray 371, sees. 353, 359, 487. V. Swift, 13 Vt. 129; 37 Am. Dec. 586, sees. .335, 428, 448, 490. Hubbard v. WiLLiams, 1 Minn. 54, sees. 458, 459. Hudson V. Hunt, 5 ZST. H. 538, sees. 359, 440, 441, 487. V. McConneU, 12 111. 170, sec. 465. Huescamp v. Van Leuven, 56 Iowa 663, S6C. k)^*^. Huff V. Mills, 7 Yerg. 42, sees. 460, 492. Hugg V. Booth, 2 Ired. (X. C.) 282, eecs. 328, 447. Hughes V. Monty, 24 Iowa 499, sec. 510. Hull V. Blake. 13Mass.l53, sees. 438, 502. Hulbert v. Stimson, 6 Blackf. 398, sec. 497. Humphrey v. Warren, 45 Me. 216, sees. 370, 378. Hunt V. Coon, 9 Ind. 537, see. 335. V. Stevens, 3 Ired. 365, sees. 404, 420. Huntingdon v. Risdon, 43 Iowa 517, sees. 473, 4^5. Huntly V. Stone, 4 Wis. 91, sees. 412,438. Huntress v. Burbank, 111 Mass. 213, sec. 531. Huot V. Ely, 17 Fla. 775, sees. 416, 458, 460. Hurlburt v. Hicks, 17 Yt. 193; 44 Am. Dec. 329, sees. 404, 421, 431, 5.30. Hutchins v. Evans, 13 Vt. 451, sees. 458, 400. V. Hanley, 9 Yt. 295, sees. 338. 357. v. Watts, 35 Yt. 360, sec. 469, I. Ide V. Harwood, 30 Minn. 191, sec. 407. Iglehart v. Moore, 21 Tex. 501, sec. 458. I'lL Cent. R. Co. v. Cobb, 48 lU. 402, sees. 412, 444. V. Weaver, 54 lU. 319, see. 393. Ingalls V. Dumett, 6 Me. 79, sec. 518. International Bank v. German Bank, 71 Mo. 183; 36 Am. Rep. 468, sec. 464. Ins. Co. of Pa. v. Phcenis Ins. Co., 71 Pa. St. 31, sec. 465. Irvine v. Lumberman's Bank, 2 Watts & S. 190, sec 500. TABLE OP CASES. 743 Irwin V. Pittsburg etc. R Co., 43 Pa. St. 488, sec. 531. Ivens V. Ivens, 30 La. An. Pt. 1, 249, sees. 393, 414. Ives V. Vanscoyac, 81 111. 120, sees. 448, 490. J. Jackson v. Bank of U. S., 10 Pa. St. 61, sees. 416, 428. V. Shipman, 28 Ala. 488, sees. 520, 521, 524, 525. Jackson's Ex'ra v. Lloyd, 44 Pa. St. 82, sec. 531. Jacobs V. Copeland, 54 Me. 503, sec. 399. James v. Pellows, 20 La. An. 116, sec. 520. Jarvis v. Wilson, 46 Conn. 90; 33 Am. Rep. 18, sec. 474. Jason V. Antone, 1.31 Mass. 534, sec. 470. Jaquett v. Palmer, 2 Ilarr. 144, sec. 421. Jeffries v. Harvie, 38 Miss. 97, sec. 331. Jenks V. Osceola Township, 45 Iowa 554, sees. 345, 419. Jennings v. Summers, 7 How. (Miss.) 453, sees. 452, 473. Jewett V. Bacon, 6 Mass. 59, sees. 353, 359, 486, 510, 519. Johann v. liefener, 3 Wis. 195, sec. 510. Johns V. Johns, 1 Ohio St. 330, sec. 408. Johnson, v. Bloodgood, 1 Johns. Cas. 51; 1 Am. Dec. 93, sees. 469, 471. v. Carry, 2 Call 33, sec. 510. V. Delbridge, 35 Mich. 436, sec. 530. V. Dexter, 38 Mich. 695, sec. 390. V. Gorham, 6 Cal. 195, sees. 338, 359. V. Griffith, 2 Craneh C. C. 199, sees. 338, 339, 400. V. Hersey, 70 Me. 74; 35 Am. Eep. 303, sec. 428; 73 Me. 291, sec. 44. V. Howard, 41 Vt. 122, sec. 513. V. Hovle, 3 Head 53, sees. 375, 513. V. King, 6 Humph. 233, sec. 490. V. Lamping, 34 Cal. 293, sees. 335, 490. V. McCutchings, 43 Tex. 553, sec. 522. V. Pace, 78 111. 143, sees. 470, 483. V. Thaj^er, 17 Me. 401, sec. 469. Jonea v. Bank of Northern Liberties, 44 Pa. St. 253, sec 416. V. Crews, 64 Ala. 368, sees. 407, 429. V. Etna Ins. Co., 14 Conn. 501, sec. 416. V. Gorham, 2 Mass. 375, sec. 423. V. Howell, 1(5 Ala. 695, sec. 523. V. Hunting-ton, 9 Mo. 249, sec. 334. V. Jones, 1 Bland's Ch. 443; 18 Am. Dec. 327, sec. 421. V. Norris, 2 Ala. 526, sec. 407. V. N. Y. &E. R. Co., 1 Grant's Cas. 4.54, sees. 343, 352, 498. V. Thompson, 12 Cal. 198, sec. 351. V. Tracy, 75 Pa. St. 417, sec. 519. V. Winchester, 6 N. H. 497, sees. 344, 413. V. Witter, 13 Mass. 304, sees. 354, 471. Jones V. Wood, 30 Vt. 268, sec. 501. Jordon v. Gillen, 44 N. H. 424, sec. 46.5. V. Gower, 57 Tenn. 103, sec. 395. V. Harmon, 73 Me. 259, sec. 435. Judah V. Judd, 5 Day 534, sec. 472. Junction R. Co. v. Cleanay, 13 lud. 161, sec. 460. K. Kahnweiler v. Anderson, 78 N. C. 136, sec. 482. Kane v. Clough, 36 Mich. 436; 24 Am. Rep. 599, sees. 371, 402, 410, 470. Kapp V. Teel, 33 Tex. 811, sec. 458. Karnes v. Pritchard, 36 Mo. 135, sec. 388. Katz V. Sonsby, 34 La. An. 588, sec. 523. Kauffman v. Jacobs, 49 Iowa 432, sec. 450. Kearney v. Nixon, 19 La. An. 16, sees. 3T0, 378. V. Vau'^hn, 50 Mo. 284, sec. 334. Keating v. Spink, 3 Ohio St. 124, sec. 421. Keelt'. Ogden, 5 Mon. (Ky.) 362, sees. 377, 389, 523. Keep V. Sanderson, 12 Wis. 3c2, sees. 381, 396. Keith V. Harris, 9 Kan. 386, sec. 497. Kelley v. Lane, 42 Barb. 594, sees. 434, 439. V. Weymouth, 68 Me. 197, sec. 380. Kellogg V. Fancher, 23 Wis. 21, sec. 463. f. Freeman, 50 Miss. 127, sec. 327. Kelly V. Bowman, 12 Pick. 383, sees. 368, 377 523. V. Crapo', 45 N. Y. 86; 6 Am. R. 499, sec. 402. V. McMinniman, 58 N. H. 288, sec. 340. V. Roberts, 40 N. Y. 432, sec. 438. Kennedy v. Aldridge, 5 B. Mon. 141, sees. 422, 521. V. Brent, 6 Craneh 187, sees. 331, 338. V. Hibernia S. & L. Soc, -38 Cal. 151, sec. 330. Kergin v. Dawson, 6 111. 86, sec. 440. Kes.'iler v. St. John, 22 Iowa 565, sees. 439, 479. Kettle V. Harvey, 21 Vt. 301, sees. 327, 447, 450. Keys V. Rines, 37 Vt. 20.3, sec. 409. Kidd V. Shepherd, 4 Mass. 238, sec. 496. Kidder i;.fPackard, 13 Mass. 80, sees. 343, 353, 359, 486. Kidderlin v. Myer, 2 Miles 242, sees. 332, 346. Kieffer v. Ehler, 18 Pa. St. 388, sees. 458, 460, 463. Killsa V. Lermond, 6 Me. 116, sec. .503. Kimball v. Gay, 16 Vt. 131; see. 460. V. McComber, 50 Mich. 362, sees. .371, 436. V. Plant, 14 La. 511, sees. 458, 460. Kimborough v. Davis, 34 Ala. 583, sec. 471. King V. Moore, Ala. 100; 41 Am. Dec. 44, sec. 421. V. Murphy, 1 Stew. 228, sec. 482. V. Pagan, 18 Ark. 583, sec. 334. 744 TABLE OF CASES. Kinj V. "Vance, 4*5 Ind. 246, sees. 460, 4>3;j. 483, 484, 502, 518. King^levr. jMissouri etc. Co., 14 Mo. 467, S33. 4'JO. Kinsley t-. Evans, 34 Ohio St. 158, sec. 458. Kir by r. Corning, 54 Wis. 599, sec. 435. Kirkman v. Hamilton, 9 Mart. 297, sees. 441, 442, 516. Klauber v. Wright, 52 Wis. 303, sec. 335. Knabb v. Drake, 23 Pa. St. 489, see. 409. Knapp V. Alvord, 10 Paige 205; 40 Am. Dec. 241, sec. 482. V. Levanway, 27 Vt. 298, sec. 339. Knefler v. Shreve, 78 Ky. 297, see. 428 Knight T. B. )wley, 117 Mass. 551, sec. 407. V. Clyde, 12 R. I. 119, sec. 429. ?•. Gorham, 4 M3. 492, sec. 434. Knoxr. Protection Ins. Co., 9 Conn. 433; 25 Am. Dec. 33, sec. 311, 453. V. Schepeler, 2 HiU (S. C. ) 595, sec. 490. L. Ladd V. Gale, 57 N. H. 210, sec. 418. V. Jacobs, 64 Me. 347, sec. 503. Laidlaw v. Morrow, 44 Mich. 547; sees. 399, 534, 521. Lake v. Reid; 29 Iowa 258; 4 Am. Hep. 209, sec. 433. Lamb v. Franklin Manuf. Co. , 18 !Me. 187, sees. 375, 377, 339, 4S0. V. Stone, 11 Pick. 527, sees. 393, 439. Lamkin v. Phillips, 9 Port. 93, sees. 433, 437, 4G5, 471. Landreyw.Chayret, 5SN".H. 89, sec. .510. Lane v. Felt, 7 Gray 491, sees. 377, 407. V. Marshall, 1 Heisk. 30, .sec. 331. V. Norrell, 15 Me. 83, sees. 411, 412. Langdon v. Lockett, G A!a. 727; 41 iVm. Dec. 78, sees. 421, 424. V. Thompson, 25 Minn. 509, sec. 327. Langford v. Ottumwa W. P. Co., 53 Iowa 415, sec. 597. Langley v. Berry, 14 IST. H. 82, sees. 439, 475. Lannan v. Smith, 7 Gray 150, see. 470. I>ar-Te v. Moore, 17 Iowa 258, sees. 471, 431. Larkin v. Wibon, 103 Mass. 120, sec. 343. Larraboe v. Knight, 09 i\Ie. 320, sec. 471. V. Walker, 71 Me. 441, sees. 394, 4S3. Laschear v. White, 88 111. 43, sec. 380. Lasley v. Sisloff, 7 How. (Miss. ) 157, sees. 331, 393. Lawrence v. Bank of Republic, 35 X. Y. 320, sec. 434. V. Lane, 9 111. 354, sec. 504. V. Smith, 45 X. H. 533, sees. 341, 413. Lawton v. Branch, 62 Ga. 350, see. 366. Layman v. Beam, 6 Whart. 181, sees. 338, 357. Leo V. Selleck, 33 N. Y. 615; 32 Barb. 522, sec. 434. Lee:c r. Walker, 18 La. 1, sees. 447, 449. Legro V. Staples, 16 Me. 252, sees. 437, 4G5. Leiber v. U. P. R. Co., 49 Iowa G88, sees. 373, 395. Leigh r. Smith, 6 Ala. 583, sec. 327. Leitoh V. Wells, 48 jST. Y. 585, sees. 408, 453, 433. Leland v. Sabin, 27 K H. 74, sec. 465. Leslie v. Merrill, 58 Ala. 322, sees. 453, 432. Leasing v. Vertrees. 32 Mo. 431, sec. -15.5. Lems V. Dubose, 29 Ala. 219, sec. 447. V. Dunlap, 57 Miss. 130, sees. 371, 3S3, 433, 437, 481. V. Latner, 72 Me. 487, sec. 438. V. Prenatt, 24 Ind. 98, sees. 384, 393. V. Sheffield, 1 Ala. 134, sec. 529. V. Smith, 2 Cranch C. C. 571, sees. 447, 456. Lieber V. St. Louis etc. Ass'n, 33 Mo. 382, sec. 492. Lightner v. Steinagel, 33 HI. 510, sees. 421, 426. Life Ins. Soc. v. Pooley, 5 Jur. X. S. 129, sec. 471. Little V. Hale, 11 Vt. 482, sees. 458, 460. V. Owen, 33 Ga. 20, sec. 531. Littlefield v. Hodge, 6 Mich. 323, sees. 4.58, 459. V. Smith, 17 Me. 327, sec. 482. Littleton Bank v. R. & O. R. R., 58 N. H. 104, sec. .349. Livermore v. Blood, 40 Mo. 48, sec. 467. Livingston v. Dean, 2 Johns. Ch. 479, see. 471. Lock V. Johnson, 33 Me. 434, sec. 401. Locke V. Tippets, 7 Mass. 149, sees. 492, 495, 510. Locket V. Child, 11 Ala. 640, see. 489. Loekhart v. Johnson, 9 Ala. 223, sec. 523. Lodor V. Baker, 39 K J. L. 49, sees. 346. 418. Loftin V. Shackelford, 17 Ala. 455, sec. 515. Lomerson v. Huffman, 25 X. J. L. 625, sees. 328, 447- Long V. Crawford, 18 Md. 320, sec. 437. V. Emsley, 57 Iowa 11, sec. 422. Look V. Brackett, 74 Me. 347, see. 435. Loring v. Folger, 7 Gray 505, sec. 505. Lorman v. Phcenix Ins. Co., 33 Mich. 65, sees. 522, 523, 528, 530. ijouderman v. Wilson, 2 Harr. &. J. 379, sees. 452, 473. Louis v. Dunlop, 57 Miss. 130, see. 472. Lovejoy v. Albree, 33 Me. 414; 44 Anx. Dec. 630, sees. 344, 41.3. V. Lee, 35 Vt. 430, sees. 407, 421. Lovely v. Caldwell, 4 Ala. 684, sec. 469. Lowrey v. Stewart, 25 jS". Y. 241, sec. 482. Lowry v. Clements, 9 Ala. 422, sec. 363. V. Lumberman's Bank, 2 Watts & S. 21, sec. 502. Loyless v. Hodges, 44 Ga. 647, sees. 333 341, 415. Lucas V. Campbell, 88 HI. 447, sec. 339. Ludlow V. Bingham, 4 Dall. 47, sees. 404, 4S0. Lundie v. Bradford, 26 Ala. 512, sees. 444, 447. Lupton V. Cutter, 8 Pick. 298, see. 407. TABLE OF cases; 745 Lusk V. Galloway, 52 Wis. 164, sec. 302. Luton V. Hoehn, 72 111. 81, sec. 498. Lyford V. Demerritt, 32 K H. 234, sees. 508, 528. Lyle V. Barker, 5 Binn. 457, sec. 440. Lyman v. Orr, 2G Vt. 119, sec. 531. V. Parker, 33 Me. 31, sees. 370, 378, 390. V. Wood, 42 Vt. 113, sec. 457. Lynde v. Watson, 52 Vt. G48, sees. 375, 477, 516, 518. Lyndon v. (lorham, 1 Gallison C C. 3G7, sec. 490. Lyon V. Eussell, 72 Me. 519, sec. 242. M. Mack V. King, 15 Ala. 66, sec. 426. Mackey v. Hodgson, 9 Pa. St. 438, sec. 531. Macomber v. Wright, 35 Me. 153, sees. 353, 486. Madison v. Andrew, 1 Ves. Sr. GO, see. 428. Magee v. Badger, 34 N. Y. 247, see. 4G3. Mahany v. Kephart, 15 W. Va. 609, sec. 342. Maher v. Brown, 2 La. 492, sec. 434. Mahew v. Scott, 10 Pick. 54, sees. 409, 411, 444. Mahoney v. McLean, 28 Minn. 63, sec. 392. Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 438, sees. 407, 447. Malley v. Altman, 14 Wis. 22, sec. 341. Manchester v. Burns, 45 N. H. 482, sec. 419. Mandeville v. Welch, 5 Whart. 277, sees. 465, 475, 482. Mangles v. Dixon, 3 H. L. Cas. 703, sec. 471. Mankin v. Chandler, 2 Brock. C. C. 125, sees. 402 494. Mann v. Buford, 3 Ala. 312; 37 Am. Dec. 691, sees. 349, 431. INIansard v. Daley, 114 Mass. 408, sees. 437, 438, 470. Mansfield v. New Eng. etc. Co., 58 Me. 35, .sees. 370, 389. V. Rutland Manuf. Co., 52 Vt. 444, sec. 428. etc. R. Co. V. Hall, 23 Ohio St. 310, see. 408. Manufacturer's Bank v. O.sgood, 12 Me. 117, sec. 514. Marchand v. Noyes, 33 La. An. 882, sec. 522. Marks v. Freyhan, 16 La. An. 348, sec. 397. V. Reinberg, 16 La. An. 348, sec. 450. Marqueze v. Le Blanc, 29 La. An. 194. see. 344. Mars V. Va. Home Ins. Co., 17 S. C. 514, sec. 400. Marsh v. Davis, 24 Vt. 363, sees. 439, 470, 504. West etc. Manuf. Co., 46 N. Y. Sup.Ct. 8, sees. 382, 400. Marshall v. G. G. E. & B. Co., 5 La. An. 360, sees. 452, 473. Marston v. Carr, 16 Ala. 325, see. 407. Martin v. Foreman, 18 Ark. 249, sec. 338. V. Potter, 11 Gray 37, sec. 480. Martz V. Detroit etc. Co., 28 Mich. 201, sees. 328, 449. Marvel v. Houston, 2 Harrington, 349, sees. 404, 426. Marvin v. Hawley, 9 :Mo. 378; 43 Am. Dec. 547, sees. 404, 421. Masher v. Banking House, 6 Mo. App. 598, sees. 357, 3u3, 404, 421. Mason v. Ambler, Allen 124, sees. 473, 477, 516. V. McCr,mpbell, 2 Ark. 506, sees. 380, 381, 393. V. Noonan, 7 Wis. 609, see. 500. Mass. Natl Bank v. Bullock, 120 Mass. 83, see. 335. Matheson v. Eutledge, 12 Rich. 41, sec. 437. Mathews v. Smith, 13 Neb. 178, sec. 359. Mathis V. Clark, 2 Mill Const. 456; 12 Am. Dec. 688, sec. 519. Mathney v. Galloway, 12 Smedes & M. 475, see. 399. Matthews v. Houghton, 11 Me. 377, sec. 502. V. Park, 1 Pittsb. 22, sees. 425, 428. Mattingly v. Boyd, 20 How. 128, sees. 329, 331, 344, 500, 513, 531. May V. Baker, 15 111. 89, sees. 333, 335, 448, 490. Mayberry v. Morris, 62 Ala. 113, sees. 458, 46'3. Mayer v. Chattahoochie Nat'l Bank, 51 Ga. 325, see. 438. Mayes v. Phillips, 6 Miss. 547, sec. 407. Mayhew v. Davis, 4 McLean 213, sec. 513. Mayor v. Root, 8 Md. 95, see. 419. Mayor etc. v. Rowland, 26 Ala. 498, sees. 419, 454. V. Potomac Ins. Co., 2Baxt. 293, sees. 375, 377, 513, 523. of Baltimore v. Root, 8 Md. 95, sees. 345, 454. Maxwell v. McGee, 12 Cush. 137, sec. 329. McAllister v. Brooks, 22 Me. 80; 38 Am. Dec. 282, sees. 502, 503. V. Penn. Ins. Co., 28 Mo. 214. sec. 343. McCaffrey v. Moore, 18 Pick. 492, sec. 496. MeCarty v. Emlen, 2 Dall. 277; 2 Yeatea 10, sees. 490, 492. McCobb V. Tyler, 2 Cranch C. C. 199, sees. 338, 359, 400. MeCoid v. Beatty, 12 Iowa 299, sec. 471. McCormac v. Hancock, 2 Pa. St. 310, sec. 416. McCoy V. Williams, 6 111. 584, sec. 513. McCreary v. Topper, 10 Pa. St. 419, sec. 426. McCullough V. Carragan, 24 Hun 457, eec. 401. •46 TABLE OF CASES. McDaniels v. Hughes, 3 East 367, sec. ' 502. McDermott v. Donegan, 44 Mo. 85, sec. 499. McDonald v. Gillett, 69 Me. 271, sees. 349, 411. V. Karney, 8 Kan. 20, sec. 492. V. Simcox, 98 Pa. St. 619, sec. 527. McDowell V. Crook, 10 La. An. 31, sees. 375, 477, 513, 510. McDougal V. Board of Sup. of Hennepin Co. 4 Minn. 184, sees. 422, 454. . McElroy v. Raymond, 4 Cush. 317, sec. 412. McEvoy V. Lane, 9 Mo. 47, sees. 364, 380, 381, 396. McFadden v. O'Donnell, 18 CaL 160, sec. 501. McGee v. Eiddlesberger, 39 Mo. 395, sec. 468. McGlinchy v. "Winchell, 63 Me. 31, sees. 448, 453. McGuire v. Pitts, 42 Iowa 535, sec. 437. Mcllvaine v. Lancaster, 42 Mo. 96, sees. 404, 416. McKean v. Turner, 45 N. H. 203, sees. 447, 449, 453. McKee v. Anderson, 35 Ind. 17, sec. 384. V. Judd, 12 N. Y. 622, sec. 465. McKenzie r. Noble, 13 Eich (S. C.) 147, sees. 420, 424. McKeon v. McDermott, 22 Cal. 667, sec. 501. McKinney v. Alvis, 14 HI. 34, sec. 475. McLaughlin v. Swan, 18 How. 217, sec. 428. McLellan v. Young, 54 Ga. 399; 21 Am. Rep. 276, sees. 419, 422, 454. Mclilahon v. AUen, 22 How. 193, sec. 402. McMeekin v. Slate, 9 Ark. 553, sees. 418, 454. McMenomy v. Eerrers, 3 Johns. 72, sec. 482. McMillan v. Richards, 9 Cal. 418, sec. 460. McMinn v. Hall, 2 Tenn. 328, sees. 452, 473, 484, 518. ISIcNeill V. Roach, 49 ]\Ess. 436, sec. 460. McPhail r. Hyatt, 29 Iowa 137, sec. 507. McPherson v. Snowden, 19 Md. 197, sec. 424. McQueen v. ISIiddleton Manuf. Co., 16 Johns. 5, sec. 342. McSherry v. Brooks, 46 Md. 118, sec. 466. Meacham v. McCorbitt, 2 Met. 352, sees. 407, 409, 529. ^leadowcroft v. Agnew, 89 111. 469, sees. 380, 416. Mechanics Bank v. Hodge, 3 Rob. (La. ) 373, sees. 422, 454. ]\Ieeker v. Sanders, 6 Iowa 61, sec. 380. Memphis v. Laski, 9 Heisk. 511; 24 Am. Rep. 327, sec. 422. Menkin v. Gumbel, 57 Miss. 756, sees. 371, 402. Meriam v. Rundlett, 13 Pick. 511, sees. 458, 502. Merrick v. Phillips, 58 Mo. 436, sec. 463. Merwin v. Chicago, 45 111. 133, sees. 345, 419, 454. Metcalf V. Steele, 42 Miss. 511, sec. 327. Michigan etc. R. Co. v. Chicago etc. R. Co., 1 111. App. 399, sees. 375, 477, 513, 516. Middleton Paper Co. v. Rock R. Paper Co., 19 Fed. Rep. 252, sec. 332. Miller v. Hooe, 2 Cranch C. C. 622, sec. 344. V. IMcLain, 10 Yerg. 245, sec. 504. V. Richardson, 1 Mo. 310, sec. 491. Millison V. Eisk, 43 111. 112, sees. 404, 421, 422. Mims V. Parker, 1 Ala. 421, sees. 452, 473. V. West, 38 Ga. 18, sees. 458, 460, 463. Minard v. Lawler, 26 lU. 301, sec. 497. Minchen v. Moore, 11 Mass. 90, sec. 368. Mineral Point R. Co. v. Barron, 83 111. 365, sees. 373, 395. V. Keep, 22 lU. 9, sec. 342. Mines v. Pyle, 4 Houst. 646, sec. 473. Mitchells. Byrne, 6 Rich. (S. C.) 171, sees. 330, 414, 442. V. Milhooan, 11 Kan. 617, sec. 409. MobQe etc. R. Co. v. Whitney, 39 AJa. 468, sec. 512. Mobley V. Loubat, 7 How. (Miss.) 318, sec. 496. Moduel r. Mousseaux, 29 L^. An. 228, sec. 328, 449. Montague v. Myers, 11 Heisk. 539, sec. 354. Montidonico v. Page, 10 Heisk. (Tenn. ) 443, sec. 342. Mooar v. Walker, 58 Iowa 164, sec. 408. Moody V. Alter, 12 Heisk. (Tenn.) 142, sees. 357, 361, 386. Moore v. Greene, 4 Humph. 299, sees. 380, 458, 460. V. Holt, 10 Gratt. 284, sec. 338. V. Kidder, 55 IST. H. 488, see. 334. Moor V. Lowrey, 25 Iowa 336, sec. 531. V. Mayor of Chattanooga, 8 Heisk. 850, sees. 419, 454. V. McCoun, 64 Ga. 017, sec. 3P5. V. Moore, 12 Phila. 173, sees. 523, 528. V. Pillow, 3 Humph. 448, sec. 407. V. Spackman, 12 Serg. & R. 287, sees. 402, 503. V. Stainton, 22 Ala. 831, sees. 332, 426. V. Towle, 38 Me. 133, sec. 367. More V. Massini, 32 Cal. 50, sec. 465. Morehead v. Gilmore, 77 Pa. St. 118; 18 Am. Rep. 435, sec. 463. JMorey v. Sheltus, 47 Vt. 342, sec. 447. Morgan v. 2se\-i\le, 74 Pa. St. 52, sees. 329, 344, 395, 503. V. Peet, 8 Mart. 395, sec. 400. Morgner v. Bigelow, 3 ^Mo. App. 592, sec. 407. ISIorin v. Bailey, 55 !Miss. 570, sec. 354. Morrell v. Brown, 15 Pick. 173, sec. 407. TABLE OF CASES. 747 Morrill v. Eaymond, 28 Kan. 415; 42 Ain. Eep. ICZ, sec. 428. Morris v. I'enuiman, 14 Gray 220, sees. 347, 404, 421. V. U. P. R. li. Co., 56 Iowa 135, sees. 4S3, 484, 518, 523. Morrison v. New Bedford Inst., 7 Gray 267, sec. 505. Morse v. Holt, 22 Me. 180, sees. 411, 431. V. Marshall, 22 Iowa 290, sec. 523. V. Towns, 45 N. H. 185, sec. 419. Mortland v. Little, 137 Mass. 3S9, sees. 390, 400, Morton V. Webb, 7 Vt. 123, sec. 501. Moser v. Mayberry, 7 Watts 12, sec. 519. Moses V. McMullen, 4 Cold. 242, sees. 377, 380, 523. Mowry v. Crocker, 6 Wis. 326, sec. 480. V. Davenport, 6 Lea 80, sees. 473, 513. Mover V. Lobengier, 4 Watts 390, sec. 507. Mueth V. Sehardin, 4 Mo. App. 403, sec. 348 Muir'f. Schenck, 3 Hill (X. Y.) 228; 38 Am. Dec. G33, sec. 472. MulhaE V. Quinn, 1 Gray 105, sec. 470. Mullen V. IMaguire, 10 Phila. 435, sec. 389. Murdock v. Daniel, 58 Miss. 411, sec. 607. Murray v. Lardner, 2 Wall. 110, sees. 4G3, 467. V. Lylbum, 2 Johns. Ch. 441, sees. 458, 463, 471. MurreU v. Johnson, 3 Hill (S. C.) 12, sees. 404, 420. Myatt V. Lockart, 9 Ala. 91, sec. 438. Myer v. Liverpool etc. Ins. Co., 40 Md. 595, sees. 340, 428. Myers V. Baltzell, 37 Pa. St. 491, sec. 499. V. Beeman, 9 Ired. 116, sees. 458, 460. V. Smith, 29 OUo St. 120, sec. 490. V. Urich, 1 Binney 25, sec. 507. N. Nash V. Brophey, 13 Met. 476, sec. 510. Nathan v. Giles, 5 Taunt. 558, sees. 500, 516. National Bank v. Chicago etc. R. Co., 45 Wis. 172, sec. 520. V. King, Pa. St. 202, see. 416. V. Lake Shore etc. R. Co., 21 Ohio St. 221, sec. 408. V. Slaley, 9 Mo. App. 146, sec. 439. V. Texas, 20 Wall. 72, sec. 466. National Bank of Commerce v. Hunt- ingdon, 129 Mass. 444, sec. 343. Near v. ]Mitehell, 23 Mich. 382, sec. 500. Neilson v. Scott, Rice's S. C. Dig. 80, sees. 368, 383. Nelson V. Conner, 6 Rob. (La.) 339, sec. 424. N. E. M. I. Co. V. Chandler, 16 Mass. 275, sec. 428. Nesbitt V. Campbell, 5 Neb. 429, sec. 513. V. Ware, 30 Ala. 68, sees. 447, 448. :N"esmith v. Di-um, 8 Watts & S. 9; 42 xVm. Dec. 260, sees. 437, 482. Netler v. Chicago B'd of Trade, 12 111. App. 607, sec. 335. Neuer r. OTallon, 18 Mo. 277; 59 An. Dec. 213, sees. 422, 429, 438. Newburg IPetroleum Co. v. Weare, 27 Ohio St. 343, sec. 343. Newby V. Hill, 2 Met. (Ky.) 530, sec. 469. New Enor. Screw Co. v. Bliven, 3 Blatch- C. C. 240, sec. 500. New Hampshire etc. v. Piatt, 5 N. H. 193, sec. 407. New Haven v. Fowler, 28 Conn. 103, sees. 347, 421. New Orleans etc. R. Co. v. Long, 50 Ala. 498, sees. 510, 512. V. Wallace, 50 Miss. 214,secs.342,34,3. Newell r. Adams, ID. Chip. 346, sec. 466. V. Blair, 7 JNIich. 103, see. 437. V. Terris, 16 Vt. 135, sec. 529. Newlin v. Scott, 26 Pa. St. 102, sec. 530. Newman V. Manning, 79Tnd. 218, see. 371. Nichols V. Eaton, 91 U. S. 716, see. 428. V. Sehofield, 2 R. I. 123, sees. 484, 518. Nickerson v. Chase, 122 Llass. 296, sees. 411, 426, 514. Nickell V. Handly, 10 Gratt. 336, sec. 428. Noble V. Merrill, 48 Me. 140, see. 502. V. Smith, 6 R. I. 446, sec. '480. f. Thompson Oil Co., 69 Pa. St. 409, sec. 503; 79 Pa. St. 3.54; 21 Am. Rep. 66, sees. 354, 371, 399, 402, 437, 471, 498, 503, 504. Nolan V. Crook, 5 Humph. 312, sees. 441, 442. Norcross v. Benton, 38 Pa. St. 217, sees. 514, 519. Norris v. Burgoyne, 4 Cal. 409, see. 483. V. Hall, l8Me. 332, sees. 502, 531. V. E. M. E. Ins. Co., 25 N. H. 22, see. 531. North V. Turner, 9 S. & R. 244, sec. 465. Star etc. Co. v. Ladd, 20 N. W. Rep. 334, sees. 440, 453. Western Ins. Co. v. Atkins, 3 Bush. 328, sec. 453. Northam v. Cartwright, 10 R. 1. 19, sees. 377, 390, 472. Northern Cent. R. Co. v. Rider, 45 Md. 24, sees. 330, 360, 361, 363, DCS. Norton t'. Piseataqua Ins. Co., Ill Mass. 532, see. 465. I V. Sode, 75 Me. 385, sec. 419. •48 TABLE OF CASES. Norvell r. Porter, '02 Mo. 309, sec. 363. Koyes v. Brown, 33 Vt. 431, sec. 409. V. Foster, 48 Mich. 273, sees. 382, 400. Nugent V. Opdyke, 9 Rob. (La. ) 453, sees. 4V1, 481. Nutter V. Framin^ham E,. Co., 132 Mass. 427, sees. 513, 514, 516. Nye V. Liscombe, 21 Pick. 263, sees. 344, 413. O. O'Brien v. Collins, 124 Mass. 98, sees. 375, 513. V. Liddell, 10 Smedes & M. 371, S6C. 497. O'Callagban v. Thoinond, 3 Taunt. -82, sec. 4u4. O'Connor v. Cavan, 12G Mass. 117, sec. 371. O'Keefe v. Dunn, 6 Taunt. 305, sec. 467. Oakey r. Miss. etc. P. Co., 13 La, 567, sec. 380. Oberteufier v. Harwood, 2 McCreary C. C. 415, sees. 370, 376, 378. Ochiltree v. M. I. etc P. Co., 49 Iowa 150, .sec. 352. Odell V. Cray, 15 Mo. 342; 55 Am. Dec. 147, sec. 464. Oliio etc. P. Co. V. Alvey, 43 Ind. 180, sec. 505. Oldham v. Ledbetter, 1 How. (]VIiss.)43; 26 Am. Dec. <590, sees. 399, 403, 472. Olin V. Figeroux, 1 McMullen 203, sec. 504. Oliver v. Atkinson, 11 Port. 546, sec. 523. V. Chicago etc. P. Co., 17 lU. 587, sec. 360. V. Smith, 5 Mass. 183, sec. 423. Openheim ^■. Pittsb. etc. IL Co., 85 Ind. 471, sec. 505. Opdyke, Ex parte, G2 Ala. C8, sec. 374. Ordway v. Pemiugton, 12 P. I. 319; 34 Am. Pep. 046, sec. 356. Ormond v. Moye, 11 Ired. -564, sec. 460. Ormsby v. Anson, 21 Me. 23, sec. 378. V. Davis, 5 P. L 442, sees. 377, 523. V. Vt. Copper Co., 56 N. Y. 623, sec. 343. Orton V. Noonan, 27 Wis. 572, sec. 389. Osborne v. Schutt, 67 Mo. 712, sees. 373, 409. Otis V. Ford, 54 Me. 104, sec. 450. Ottumwax'. Water Power Co., 59 Iowa 283, sec. 410. Ouimet v. Sirois, 124 Mass. 162, sec. 371. Owens V. Estees, 5 JNIass. 330, sec. 444. Pace V. Smith, 57 Tex. 555, sec. 347. Packwood v. Gridley, 39 111. 388, sec. 463. Padden v. Moore, 58 Iowa 703, sec. 359. Page V. Crosby, 24 Pick. 211, sec. 437. V. Thompson, 43 N. H. 373, sec. 47L Park V. Matthews, 36 Pa. St. 28; 2 Grant 136, sec. 428. Parker v. Danforth, 16 Mass. 299, sees. 353, 359. V. Donnellj^ 4 W. Va. 648, sees. 404, 426, 455. V. Farr, 2 Browne (Pa. ) 331, sec. 333. v. Guillow, ION. H. 103, sec. 489. V. Kinsman, 8 Mass. 436, sec. 3.38. V. Page, 38 Cal. 522, sees. 377, 523. V. Parker, 2 Hill's Ch. (S. C.) 35, sees. 333, 510. V. Syracuse, 31 N. Y. 376, sec. 482. V. Wri^'ht, 66 Me. 392, sees. 351, 490. Parks V. Cushman, 9 Vt. 320, sees. 416, 426. Parmenter v. Childs, 12 Iowa 22, sees. 522, 525. Parmer v. Ballard, 3 Stewart 326, sees. 3'J9, 505. Parsons v. McGavock, 2 Tenn. Ch. 581, sees. 419, 454. v. Paine, |26 Ark. 124, sec. 395. V. Poot, 41 Conn. 101, sec. 518. Parton v. Griffin, 72 N. C. 3o2, sec. 469. Patten v. Wilson, 34 Pa. St. 299, sees. 402, 465. ■ Patterson v. Buckminster, 14 Mass. 144, sec. 389. V. Harland, 12 Ark. 158, sec. 440. Fattier etc. Manuf. Co. v. Taylor, 3 Mc- Ai'thur 4, sec. 418. Pattis v. Spaulding, 21 Vt. €6, sec. 353. Patton V. Gates, G7 111. 164, sees. 439, 479. V. Smith, 7 Ired. 438, sec. 447. Paul V. Johnson, 9 Phila. 32, sec. 510. V. Paul, ION. H. 117, sees. 328, 447. V. Peed, 52 N. H. 136, sec. 447. V. Witman, 3 Watts &, S. 409, sec. 402. Pawley v. Gaines, 1 Overton (Tenn.) 208, sees. 347, 421. Paxson V. Sanderson, 2 Phila. 303, sec. 416. Pavdras v. Delamere, 13 La. 98, sec. 465. Payne v. Ballard, 723 Miss. 88, sec. 334. V. Mobile, 4 Ala. 333; 37 Am. Dec. 744, sec. 470. Peace v. Jones, 3 Murphy 256, sees. 484, 518. Peacock v. Pembrooke, 4 Md. 280, sec 416. Pearce v. Shorter, 50 Ala. 318, sec. 407. Pearsall v. Dwight, 2 Mass. 84; 3 Am. Dec. 35, sec. 464. Pease v. Underwriters Union, 1 111. App. 287, sees. 342, 380. Peaslee v. Doane, 39 N. H. 494, sec. 377. Peck V. Barnum, 24 Vt. 75, sees. 344, 353, 359, 413, 486. V. Stratton, 118 Mass. 406, sec. 526. V. Walton, 23 Vt. 33, sec. 460. Peebles V. Meeds, 96 Pa. St. 150, sec. 328. Peet V. McDaniel, 27 La. An. 455, sec. 439. Peiffer v. Graves, 26 N. H. 258, sec. SSL I TABLE OF CASES. 749 Pellman v. Hart, Pa. St. 2G3, sees. 402, 47-2. Pendleton v. Perkins, 49 Mo. 565, sees. 345, 419. Penn. v. Pelan, 52 Iowa 535, sec. 3G5. Pennebaker v. Tomlinson, 1 Tenn. Cb. Ill, sees. 34G, 418. Pennellir. Grubb, 13 Pa. St. 522, sees. 517, 518, 520. Penniman v. Smith, 5 Lea 130, sec. 497. Ptnnoyerr. Neff, 95 U. «. 714, seo. 313. Pennsylvania li. Co. v. Peoples,31 Ohio St. 537, sec. 380. V. Pennock, 1 P. F. Smith 244, sec. 402. People V. Cass Co. Judge, 39 Mich. 407, see. 387. V. Jo'inson, 14 111. 342, sec. 43S. V. Tiotja C P., 19 Wend. 73, sec. 4G9. Perine v. Georg-e, 5 Ala. 641, sec. 523. Perkins v. Parker, 1 Mass. 117, sec. 502. Perry v. Coates, 9 Mass. 537, sec. 407. V. Thornton, 7 R. I. 15, sees. 404, 427. V. WashWn, 20Cal. 318, see. 513. Pert V. McDaniel, 27 La. An. 455, sea 447. V. Whitmore, 16 La. An. 48, sec. 529. Peters ?•. Lea-ne, 13Md. 58, sacs. 522,527. Peterson i: Sinclair, 83 Pa. St. 250, sees. 484, 518. Pettes V. Spaulding, 21 Vt. 66, sees. 359, 486, 487. Pettingill v. Androscoggin R. Co., 51 Me. 370, sees. 349, 412, 429, 430. Phelan v. Gaubin, 5 Colo. 14, sec. 404. V. Moss, 67 Pa. St. 59; 5 Am. Rep. 402, .sec. 46.3. Phelps V. Atchinson etc. R. Co., 28 Kan. 165, sec. 410. V. Boughton, 27 La. An. 305, sees. 325, 333, 3G1. Phillips V. Gorman, 43 Iowa 101, see. 526. Pickering v. Wendell, 20 N. H. 222, see. 416. Pickler v. Rainey, 4 Heisk. 335, sec. 3G5. Piquet v. Swan, 4 Mason 443, sees. 414, 425, 513. Pierce v. Carleton, 12 111. 358; 54 Am. Dec. 405, sees. 421, 420, 505, 523. Pierce v. Chicago etc. Co., 36 Wis. 283, sec. 401. Pierson v. McCahill, 21 Cal. 123, sec. 501. V. McCormick, 1 Clark (Pa.) 201, sec. 454. Pioneer Printing Co. v. Sanborn, 3 Minn. 413, see. 523. Piper V. Piper, 2 N. H. 439, sees. 341, 447. Pitts V. Mower, 18 Me. 361; 36 Am. Dec. 727, sec. 471. Planters Bank v. Andrews, 8 Port. 404, sec. 342. V. Leavens, 4 Ala. 753, sees. 342, 408. Platen v. Ryck, 50 Ga. 245, sec. 528. Piatt V. Brown, 16 Pick. 553, sec. 327. Plimpton V. Bigelo-w, 26 Hun 302; 12 Abb. C. Cas. 202; 63 How. Pr. 484j sees. 391, 408. Plummer v. Rundlett, 42 Me. 365, sees. 377, 380. Poe V. St. Mary's College, 4 Gill 499, see. 428. Pollard V. Mobile Savings Bank, 60 Miss. 946, sec. 505. V. Ross, 5 Mas-s. 319, sees. 347, 421. V. Somerset Mut. etc. Co., 42 Me. 221, sees. 354, 471. Poor V. Colbum, 57 Pa. St. 415, sec. 450. Pope V. Hibernia Ins. Co., 24 Ohio St. 481, sec. 399. PopesEx'rs v. EUiott, 8 B. Mon. 56, sec. 428. Porter v. Bullard, 26 Me. 448, sees. 469, 482. V. Giles, 129 Mass. 589, sec. 356. V. Stevens, 9 Cush. 530, see. 397. Post V. liove, 19 ria. 634, sec. 404. Potter V. Cain, 117 Mass. 238, sees. 473, 483. Powell V. Brown, 3 Johns. 100, sec. 453. V. Sammons, 31 Ala. 552, sees. 447, 513. Powers V. Neeson, 19 Mo. 190, see. 406. Prentiss v. Bliss, 4 Vt. 513; 24 Am. Dee. 631; sees. 330, 347, 404, 419, 421. V. Danaher, 20 Wis. 311, sees. 381, 382, 396. Prescott V. Hull, 17 Johns. 284, sees. 471, 504. Presnall v. Mabry, 3 Port. 105, sec. 455. Pressby v. McDonald, 1 Rich. (S. C.) 127, sec. 416. Price V. Bradford, 4 La. 35, sees. 439, 478. V. Brady, 21 Tex. 614, sec. 407. V. Higgins, 1 Litt. 273, sees. 525, 532. V. Mazouge, 31 Ala. 701, sees. 381, 396. V. IMott, .52 Pa. St. 315, sec. 395. Pringle v. Phillips, 5 Sandf. 157, see. 463. Probate Court v. Niles, 32 Vt. 775, sec 416. Proseus v. Mason, 12 La. 16, sec. 388. Prout V. Grout, 72 111. 45G, sec. 530. _ Providence Co. Bank v. Benson, 24 Pick. 204, sees. 437, 465. Puffer V. Graves, 26 K H. 258, sees. 508, 528. Pulliam V. Aler, 15 Gratt. 54, sec. 510. Pundt V. Clary, 13 Neb. 406, see. 327. Putney v. Famham, 27 Wis. 187, sec. 469. Q. Quarles v. Porter, 12 Mo. 76, sees. 421, 460, 461, 463. Quigg V. Kittridge, 18 N. H. 137, sees. 426, 531. R. Rachereau v. Guydry, 24 La. An. 294^ sec. 505. 750 TABLE OF CASES. Eaignel v. McConnell, 25 Pa. St. 3G2, sec. 407. Railroad v. Todd, 11 Heisk. (Tenn.) 549, sees. 3D7, 331. Eand v. White Mt. E. R., 40 N. H. 79, sec. 447. Randall v. Way, 111 Mass. 506, sees. 410, 428, 43G. Randolph v. Heaslip, 11 Iowa 37, see. 530. V. Little, 62 Ala. 396, sees. 395, 409. V. RaUs, 18 111. 29, sec 422. V. Randolph, 34 Tex. 181, sec 520. Eankin v. Simonds, 27 111. 352, sees. 364, 375, 380, 481, 513. Ransom v. Hays, 39 Mo. 445, sec. 447. Rasmussen v. McCabe, 46 Wis. 600, sec 401. Raventas v. Green, 57 Cal. 2.54, sec. 351. Ray V. Bancus, 43 Barb. 310, sees. 399, 402. V. Faulkner, 73 111. 469, sec. 437. V. Underwood, 3 Pick. 302, sees. 344, 413. Raymond v. Rockland Co. , 40 Conn. 401, sees. 300, 361. V. Squire, 11 Johns. 47, sees. 354, 471. Raynes v. Lowell etc. Soc, 4 Cush. 343, sees. 416, 428. Reagan v. Pacific R. Co., 21 Mo. 30, sec 397. Redd V. Burrus, 58 Ga. 574, sec 438. Reddick v. Smith, 4 111. 451, sees. 347, 404, 421. Reid V. McLeod, 20 Ala. 576, sees. 353, 359. Reifsnyder v. Lee, 44 Iowa 101; 24 Am. Rep. 733, sec. 421. Rennekerv. Davis, 10 Rich. Eq. (S. C.) 289, sec. 338. Reynolds v. McKinney, 4 Kan. 94, sec. 445. Rhine v. Danville etc. R. Co., 10 Phila. 336, sec. 378. Rhode Island Exeh. Bank v. Hawkins, 6 R. I. 198, sec. 527. Rice V. Stone, 1 Allen 666, sec. 465. Rich V. Reed, 22 Me. 28, sees. 377, 523. V. Waters, 22 Pick. 563, sec. 449. Richards v. Griggs, 16 Mo. 416; 51 Am. Dec 240, sees. 426, 455, 471. i). Stevenson, 99 Mass. 311, sees. 367, 377. Richardson ». Gurney, 9 La. 285, sec. 457. V. Hickman, 22 Ind. 244, sec. 504. V. Lacey, 27 La. An. 62, sec. 356. V. White, 19 Ark. 241, sees. 386, 387. V. Whitney, 18 Pick. 530, sec 44:7 Riddle V. Etting, 32 Pa. St. 412, sec. 532. Ridge V. Hardeastle, 8 T. R. 417, sees. 349, 431. V. Ohnstead, 73 Mo. 578, sec 371. Riley v. Hirst, 2 Pa. St. 346, sees. 349, 431. Rindge v. Green, 52 Vt. 204, sees. 386, 392, 413. Ripley «'. Severance,6 Pick. 474, 17 Am. Dec. 397, see. 434. Rippen v, Schoen, 92 lU. 229, sec. 397. Rischert v. Kuntz, 9 Mo. App. 283, sec. 395. Risley v. Smith, 64 N. Y. 576, sec. 482. Succession of, 11 Rob. (La.) 298, sees. 354, 471. iRiswick V. Lamon, 2 McArthur 172, I sec. 428. 'Rix i: Elliot, 1 N. H. 184, sees. 353,359, I 487. Roberts v. Austin, 26 Iowa 315, sees. 465, 482. V. Barry, 42 ISIiss. 260, sec. 327. V. Drinkard, 3 Met. (Ky.) 309, sec. 449. Robertson v. Beall, 10 Md. 125, sees. 421, 523. V. Roberts, 1 A. K. Marsh 247, sec. 504. V. Scales, 13 La. An. 545, sec. 438. Robeson v. Carpenter, 7 Mart. N. S. 30, sees. 503, 508, 528. Robins v. Bacon, 3 Me. 346, sees. 465, 469, 475, 482. Robinson v. Hall, 3 Met. 301, sees. 486, 510. V. Howard, 7 Cush. 257, sees. 347, 404, 421. V. Mitchell, 1 Harr. 365, sec. 466. V. Rapelye, 2 Stew. 86, sec 380. V. Starr, 3 Stew. 90, sec. 522. V. Tevis, 38 Cal. 611, sec 351. Roby V. Labuzan, 21 Ala. 60, sec. 529. Roche V. Rhode Island Ins. Co., 2 HL App. 3G0, sees. 382, 409, 494. Roekville etc. Turnp. R. v. Maxwell, 2 Cranch. C. C. 451, sec. 408. Rodman v. Musselman, 12 Bush 354; 23 Am. Rep. 724, sees. 419, 422. Eollo V. Andes Ins. Co., 23 Gratt. 509; 14 Am. Rep. 147; sees. 404, 418, 422, 454. Roosa V. Crist, 17 111. 450, see. 464. Roquest v. Steamer B. E. Clark, 13 La. An. 210, sec. 370. Rose V. Whaley, 14 La. An. 374, sec. 366. Ross V. Austin, 4 Hen. & M. 502, sec. 531. V. Clark, 1 DaU. 354, sees. 330, 404, 420. V. McKinney, 2 Rawle 227, sec. 451. V. Pitts, 39 Ala. 606, sec. 503. V. Ross, 25 Ga. 297, sees. 342, 404. Roth V. Hotard, 32 La. An. 280, sec 404. Rounds V. Hamner, 57 Ala. 342, sees, 333, 356, 403. Row V. Dawson, 1 Ves. 331, sec 482. Rowell V. Felker, 54 Vt. 526, sec. 328. Rowlett V. Lane, 43 Texas 274, sec 327. TABLE OF CASES. 751 Roy V. Heard, 38 Miss. 544, sees. 33G, 3J1, 3()3. Rudd V. Paine, 2 Cranch C. C. 9, sec. 409. Euddick V. Smitb, 4 111. 451, sec. 330. Euif r. ilud", 85 Pa. St. 333, sec. 398. Eundlett ■('. Jordan, 3 Me. 47, sees. 328, 353, 407, 447. Eushton V. Eowe, G4 Pa. St. 468, sec. 531. Euss V. Clark, 1 Dall. 354, sec. 347. Eussell V. Convers, 7 N. H. 343, sec. 473. V. Cling-an, 33 Miss. 535, sec. 449. V. Hinton, 1 Mtzrphy 408, sec. 519. V. Lewis, 15 Mass. 127, sec. 428. V. Ralph, 53 Wis. 328, sec. 356. V. Tunno, 11 Eich. 303, sec. 480. Rutter V. Boyd, 3 Abb. N. Cas. 6, sees. 307, 309. S. Sabin v. Cooper, 15 Gray 532, sees. 359, 486, 487. Saddler v. Trustees etc., 59 Miss. 572, sec. 3G3. Salim V. Cooper, 15 Gray 532, sec. 449. Sailer v. Ins. Co., 62 Ala. 221, sees. 402, 435. Sampson v. Hyde, 16 N. H. 492, sees. 375, 481, 513. Sanborn v. Little, 3 N". H. 359, sec. 465. Sandidge v. Graves, 1 Patten Jr. & Heath 101, sec. 437. Sanford v. Bliss, 12 Pick. 116, sec. 523. Sargeant v. Andrews, 3 Me. 199, sec. 502. Sargent v. Carr, 12 Me. 396, sec. 440. V. Wood, 51 Vt. .597, sec. 400. Savage's Case, 1 Salk. 291, sec. 502. Sawyer v. Thompson, 24 N. H. 510. sec. 344. V. Webb, 5 Iowa 315, sees. 370, 378, 390. Sajrward v. Drew, 6 Me. 263, sees. 449, 484, 518. Scales V. Swan, 9 Port. (Ala. ) 103, sees. 305, 377, 523. Schafer v. Vizena, 30 Minn. 387, sec. 397. Schatzel v. Bolton, 2 McCord 478; 13 Am. Dec. 748, sec. 490. Schindler v. Smith, 18 La. An. 476, sees. 333, 3G1, 505. Scbleuter v. Eaymond, 7 Neb. 28, sec. 410. Scholfield V. Bradlee, 8 La. 495, sec. 331. School Dist. V. Gage, .39 Mich. 484; 33 Am. Eep. 421, sec. 419. Schwab V. Gingerick, 13 111. 007, sees. 381, 396. Scofield V. Sanders, 25 Vt. 181, see. 411. Scott V. Brigham, 27 Vt. 516, sec. 409. V. First Nat'l Bank, 71 lud. 319, sec. 407. V. Hill, 3 Mo. 88; 22 Am. Dec. 462, sec. 400. V. Ray, 18 Pick. 360, sees. 377, 523. Scripture v. Francestown Soap Stone Co., 50 N. H. 571, sec. 408. Seamon v. Bank, 4 W. Va. 339, sec. 517. . Sebor v. Armsti'ong, 4 Mass. 20G, sees. 377, 523. Security etc. Ass'n v. Weems, 69 Ala. 584, sec. 392. Seise V. McCoy, 6 W. & S. 485, sec. 445. Self V. Kirkland, 24 Ala. 275, sees. 515, 518. Selheimer v. Elder, 98 Pa. St. 154, sees. 328, 447. Sells V. First Nat'l Bank, 55 Wis. 225, sec. 397. Selma etc. R. Co. v. Tyson, 48 Ga. 351, sec. 343. Sessions v. Stevens, 1 Fla. 233, sec. 502. Seward v. Heflin, 20 Vt. 144, sec. 505. Seybel v. Nat'l Bank, 54 N". Y. 288; 13 Am. Eep. 583, sec. 403. Seymour v. Kramer, 5 Iowa 285, sees. 327, 329. Sexton r. Amos, 39 Mich. 695, sees. 371, 390, 434. Shand v. Du Boisson, 18 Eq. Cas. L. R. 283, sec. 482. Shankland's Appeal, 47 Pa. St. 113, sec. 428. Sharp V. Clark, 2 Mass. 91, sec. 347. Shattuck V. Smith, IG Vt. 132, sec. 439. Shaughnessy v. Fogg, 15 La. An. 330, sees. 370, 376. Shaw V. Bunker, 2 Met. 376, sees. 367, 370. V. Beckett, 26 Vt. 482, sec. 513. V. Spencer, 100 Mass. 382; 1 Am. Eep. 115, sec. 408. Shealy v. Toole, 53 Ga. 210, sec. 501. Shearer v. Handy, 22 Pick. 417, sees. 377, 523. Sheedy v. Second Nat'l Bank, 62 Mo. 17, sees. 335, 351, 490. Sheets v. Culver, 14 La. 449, 452, sec. 460. V. Hobeusack, 20 Pa. St. 412, sec. 529. Shehan v. Marston, 132 Mass. 161, sec. 354. Sheldon v. Hinton, 6 111. App. 216, sees. 402 433, 435. V. Eoot,' 16 Pick." 567; 28 Am. Dec. 266, see. 407. V. Simons, Wright 724, sec. 519. Shelter v. Thomas, 16 Ind. 223, see. 466. Shephard v. Turner, 13 Allen 92, sec. 419. Shewell v. Keen, 2 Whart. 332; 30 Am. Dec. 266, sees. 404, 425, 455. Shiner v. Jones, 11 Wright 2G8, sec. 402. Shinn v. Zimmerman, 23 N. J. L. 150; 55 Am. Dec. 260, sec. 498. Shivers v. Wilson, 5 Harr. & J. 130; 9 Am. Dec. 497, sees. 399, 405. Short V. City of N. O., 4 La. An. 281, sec. 475. V. Moore, 10 Vt. 446, sees. 416, 426. Shuler v. Bryson, 65 N. C. 201, sec. 460. Shumway v. Stillman, 4 Cowen 292; 15 Am. Dec. 874, sec. 402. Shurer v. Brainard, 29 Barb. 25, sees. 399, 402. Shuttlesworth V. Noyes, 8 Mass. 229, sec. 416. 752 TABLE OF CASES. Sickman v. Lapsley, 13 Serg. &. R. 224, sec. 532. Sievers v. "Woodburn etc. Co., 43 Mich. 275, sees. 382, 400, 498. Silverwood v. Bellas, 8 Watts 420, sec. 416. Simo's Estate, Myrick's Prob. Rep. (Cal.)lOO, sec. 404. Simirions v. Guyon, 57 Ala. Ill, sees. 371, 402, 434, 435, 405, 472, 481. Simon v. Huot, 8 Hun 378, sec. 458. Simpson v. Bibber, 59 Me. 190, sec. 437. V. Hall, 47 Conn. 418, sec. 467. V. Harry, 1 Dev. & Batt. 202, sees. 416, 433. V. Tippin, 5 Stew. & P. 208, sees. 434, 435. Singers. Townsend, 53 Wis. 126, sec. 353. Sise V. Drew, 18 N. H. 409, see. 381. Skipper v. Foster, 29 Ala. 333, sec. 497. Skowhe-ran Bank v. Ferrar, 46 Me. 293, sees. 407, 414. Satter r. Tieruan, La. An. 567, sees. 522, 523. Small V. Browder, 11 B. Mon. 212, sees. 354, 471. Smith V. Ainseow, 11 N"eb. 476, sees. 371, 402, 4.33, 481. V. Baker, 10 Me. 458, sees. 492, 495. Smith V. Boston C. & M. R. R., 33 N. H. 3-37, sees. 342, 516. V. BlatL-hford, 2Ind. 184, sees. 460, 4G4, 472, 501. V. Bowes, 38 Md. 463, sec. 334. V. Brimer, 23 Miss. .508, sec. 523. V. Cahoon, 37 ]Me. 281, sees. 328, 440, 447, 450, 490. V. Chapman, 6 Port. 305, sees. 452, 473. V. Clark, 9 Iowa 241, sees. 437, 441, 442, 516, 522, 525. V. Davis, 1 Wis. 388; 60 Am. Dee. 390, sees. 452, 473. V. Dickson, 58 Iowa 444, sees. 330, 505. V. Durbridge, 26 La. An. 531, see. 492. V. Eaton, .36 Me. 307, see. 413. V. Foley, Wall. 492, sec. 467. V. Heideeker, 39 Mo. 157, sees. 364, 381, 396. V. Kennebec etc. R. Co., 45 Me. 547, sec. 407. V. McCutchen, 38 Mo. 415, see. 399. V. McMicken, 3 La. An. 319, sec. 490. V. Mulhern, 57 Miss. 591, sec. 391. V. Picket, 7 Ga. 104; 50 Am. Dee. 385, sec. 44.5. v. Stearns, 19 Pick. 20, sees. 514, 516, 518, 531. ■ V. Sterritt, 24 Mo. 230, sees. 472, 481. Smoot V. Eslava, 23 Ala. 659; 58 Am. Dee. 310, sec. 504. V. Hart, 33 Ala. 69, sees. 419, 454. Somers v. Losey, 48 Mich. 294, sec. 357. Somerset M. Co. v. Partridge, 25 N. H. 309, sec. 531. Somerville v. Brown, 5 GiU 399, sec. 460. ! South Bend Bank v. Gandy, 11 Neb. 431, sec. 428. Southern Bank of Mo. v. McD maid, 46 Miss. 31, sees. 333, 359, 505. Spalding v. Imley, 1 Root 551, sees. 422, 454. Speak V. Kinsey, 17 Tex. 301, sees. 353, 483. Spears v. Chapman, 43 Mich. 541, sees. 377, 523. Speed V. Brown, 19 B. Mon. 108, sees. 345, 454. V. Mav, 5 Harris 91; 5 Wall. 307, sec. 402. Speight V. Brock, Freem. 389, see. 458. Spencer v. Blaisdell, 4 N. H. 198; 17 Am. Dec. 412, sec. 407. V. School Dist., 11 R. I. 537, see. 419. Spicer v. Spieer, 23 Vt. 678, see. 495. Spoonerv. Rowland, 4 Allen 485, sec. 510. Sprague v. Steam Nav. Co., 52 Me. 592, sees. 348, 429. Spring V. Aver, 23 Vt. 516, sec. 532. Sproule V. McXulty, 7 Mo. 62, sec. 438. Spruill V. Trader, 5 Jones 39, sees. 508, 528. Stackpole v. Newman, 4 Mass. 85, sec. _ 308. Stadler v. Parmlee, 14 Iowa 175, sec. 452. Stahl r. Webster, 11 111. 511, sec. 532. Staniels v. Raymond, 4 Cush. 314, sees. 330, 409, 412, 414. Staples V. Staples, 4 Me. 532, sees. 349, 421, 431. State V. Brownlee, 2 Speers 579, sec. 4.38. V. Crawford, 11 Kan. 32, sec. 395. V. Curran, 7 Eng. 322, see. 422. V. Eberley, 12 Neb. 616, sec. 345. V. Krebs, 6 Harr. & J. 31, sec. 416. V. Lawson, 7 Ark. 391, sec. 407. V. Norwood, 12 Md. 195, sec. 395. Stebbins v. Fitch, 1 Stew. 180, see. 399. Stedman v. Vickery, 42 Me. 132, sees. 334, 411, 440. Steel V. Smith, 7 Watts & S. 447, see. 402. Steen v. 'Norton, 45 Wis. 412, sees. 399, 401. Steers v. Morgan, 66 Ga. 552, sec. 357. Stetson V. Cleneay, 14 Ind. 453, sec. 460. Stevens v. Dillman, 86 111. 233, see. 386. V. Guathmey, 9 Mo. 636, sec. 531. V. Pugh, 12 Iowa 430, see. 465. V. Stevens, 1 Ashm. (Pa.) 190, sees. 354, 402, 439, 472. Stewart v. Stokes, 33 Ala. 494, see. 334. V. West, 1 Harr. & J. 536, sees. 483, 518. Stickley v. Little, 29 111. 315, sees. 522, 524. Stickney v. Batchelder, 18 N. H. 40, sec. 412. Still V. Spear, 45 Pa. St. 168, see. 428. Stille V. Layton, 2 Harr. 149, sec. 505. Stillman v. Isham, 11 Conn. 124, sees. 418, 419, 422, 454. Stimpson v. Maiden, 109 Mass. 313, see. 504. Stinson v. Caswell, 71 Me. 510, sec. 402. TABLE OF CASES. St. Louis V. Regenfuss, 28 Wis. 144, sees. 477, 516. V. Wiggins Ferry Co., 40 Mo. 58, sec. 343. St. Louis Perpet. Ins. Co. v. Cohen, 9 Mo. 417, sees. 331, 399. Stocton V. Hall, Hard. (Ky.) 160, sees. 354, 469, 472. Stone V. Dean, SN. H. 502, sees. 407, 458, 460, 489. V. Elliot, 11 Ohio St. 252, sees. 458, 463. V. Hodges, 14 Pick. 84, sec. 411. V. Magi-uder, 10 Gill & J. 383; 32 Am. Dec. 177, sec. 405. Storm V. Adams, 56 Wis. 137, sec. 347. Stratton v. Ham, 8 Ind. 84, sees. 404, 425, 455. Strauss v. Railroad, 7 W. Va. 368, sec. 449. Strong V. HoUon, 39 Mich. 411, sees. 389, 392. V. Mitchell, 19 Vt. 644, sees. 477, 518. V. Smith, 1 Met. 476, sec. 416. Strong's Ex'rs v. Bass, 35 Pa. St. 333, sees. 499, 513.- Stuart V. West, 1 Harr. & J. 536, sees. 460, 484. Stubblefield v. Haggerty, 1 Ala. 38, sec. 472. Sturgesv. Kendall, 2 La. An. 565, sec. 522. Stui-tevant v. Robinson, 18 Pick. 175, sees. 390, 474, 511. SuUivan v. Langlev, 128 Mass. 23.5, see. 358; 124 Mass. 264, sees. 396, 439. SwaU V. Clarke, 51 Cal. 227, sec. 463. Swamscot Machine Co. v. Partridge, 25 N". H. 369, sec. 518. Swann v. Summers, 19 W. Va. 15, sec. 335. Sweeney v. Allen, 1 Pa. St. 380, sees. 492, 497. Sweet V. Brown, 5 Pick. 178, sees. 337, 338, 415, 441. V. Read, 12 R. L 121, sees. 380, 388. Swett V. Ordway, 23 Pick. 266, sees. 475, 477, 516. Swift V. Tyson, 16 Peters 1, sec. 463. Swisher v. Fitch, 1 Smedes & M. 541, sec. 474. T. Taberv. Nye, 12 Pick. 105, sec. 449. Tabor v. Van Vranken, 39 Mich. 793, sees. 371, 436, 465, 472, 481. Taft V. MiUs, 5 R. I. 593, see. 343. Talbot V. Harding, 10 Mo. 350, sees. 338, 359, 400. Tamm v. Williams, 2 Chitty, 438; 3 Doug. 281, sees. 344, 359. Tarns V. BuUitt, 35 Pa. St. 308, sees. 503, 508, 525. Tapp V. Green, 22 La. An. 42, sec. 383. Tarbell's Case,l Saund. 67, sees. 349, 431. Tate V. Morehead, 05 K C. 681, sees. 33.3, 426. Tatlock V. Harris, 3 T. R. 174, sec. 475. Taylor v. Burlington etc. R. Co. 5 Iowa 114, sees. 342, 473. n Attachment— 23. Taylor v. Gardner, 2 Wash. C. C, 488, sec. 518. V. Gillian, 23 Tex. 508, sees. 407, 424. V. Lynch, 5 Gray 49, sec. 470. V. Phelps, 1 Harr. & Gill 492, sec. 503. V. Sherman, 12 Mass. 441, sees, 349, 431. Tazewell v. Barrett, 4 Hen. & M. 259, sec. 531. Templeman v. Fauntleroy, 3 Rand. 434, sec. 531. Terry v. Lindsay, 3 Stew. & P. 317, sees. 426, 455, 486, 523. V. Sisson, 125 Mass. 560, sec. 436. Texas v. Hardenburg, 10 Wall. 68, see. 467. Thayer v. Partridge, 47 Vt. 423, sees. 513, 519. V. Pratt, 47 N. H. 470, sees. 447, 496. V. Southwiek, 8 Gray 229, see. 447. V. Tyler, 5 Allen 94, sees. 347, 404, 425. Thomas v. Fuller, 26 La. An. 625, sec. 383. V. Goodwin, 12 Mass. 140, sec. 434. V. Hopper, 5 Ala. 442, sees. 375, 514. V. Kinsey, 8 Ga. 421, sec. 467. V. Lusk, 13 La. An. 277, sec. 490. V. Price, 30 Md. 483, sec. 366. V. Wooldridge, 2 Woods C. C. 667, sec. 498. Thompson v. Allen, 4 Stew. & P. 184, sees. 399, 530, 531. V. Allison, 28 La. An. 733, sec. 513. V. Brown, 17 Pick. 462, sees. 330, 347, 420, 421. V. Fischesser, 45 Ga. 369, sec. 523. V. Lewis, 34 Me. 167, sec. 490. V. Pennell, 67 Me. 159, sec. 410. V. Shelby, 3 Smedes & M. 296, sees. 460, 466. V. Stewart, 3 Conn. 171; 8 Am. Dec. 168, sees. 381, 414, 428. V. Tavlor, 13 Me. 420, sec. 489. V. W^allace, 3 Ala. 132, sec. 532. Thome v. Matthews, 5 Cush. 544, sec. 510. V. Woodruff, 5 Ark. 55, sees. 353, 404, 426. Thomdike v. De Wolf, 6 Pick. 120, sees. 328, 450, 491, 492, 495, 496. Thorp V. Preston, 42 Mich. 511, sec. 449. Thrasher v. Buckingham, 40 Miss. 67, see. 492. Tillinghast v. Johnson, 5 Ala. 514, secs^ 425, 426. '54 TABLE OF CASES. Timmons v. Jobnson, 15 Iowa 231, sec. 532. Tindell V. Wall, Busbee (L.) 3, sec. 3.38. Tingley v. Bateman, 10 Mass. 343, sees. 344, 413. V. Dolby, 13 Neb. 371, sec. 397. Tirrell v. Canada, 25 Tex. 455, sec. 407. Toledo etc. E. Co. v. McNulty, 34 Ind. 531, sec. 510. Tome V. Dubois, 6 Wall. 548, sec. 46.5. Town V. Griffith, 17 N. H. 165, sec. 416. Towne v. Leach, 32 Vt. 747, sec. 490. Townsenc^ v. Atwater, 5 Day 298, sec. 453. Tracy v. Hornbuckle, 8 Bush. 336, sees. 418, 422, 454. V. McGarty, 12 R. I. 168, sees. 371, 436, 437, 465, 472, 481. Travis v. Tartt, 8 Ala. 574, sees. 353, 486. TreadweU v. Brown, 41 K H. 12; 43 IST. H. 290, sees. 334, 351, 490. Triebel v. Colhwcu, 64 111. 376, sees. 345, 422, 426. Trieber v. Commercial Bank etc., 31 Ark. 128, sec. 463. Trimbey v. Vigmer, 1 Bing. N. C. 159, sec. 464. Trombley v. Clark, 13 Vt. 118, sec. 496. Troyer v. Schweiser, 15 Minn. 241, sec. 507. Truitt V. Griffin, 61 lU. 26, sees. 380, 428. Tryon v. Merrill, 116 Mass. 299, sec. 390. Tubb V. Madding, Minor 129, sec. 505. Tucker v. Atkinson, 1 Humph. (Term. ) 300; 34 Am. Dec. 650, sees. 330, 347, 421. V. Butts, 6 Ga. 580, sec. 349. V. Clisby, 12 Pick. 22, sec. 449. V. Marsteller, 1 Cranch C. C. 254, sec. 470. Tudor V. Perkins, 3 Day 364, sec. 471. Tunstall v. Worthington, Hemp. (C. C.) 662, sec. 332. ' Tupper V. Cassell, 45 Miss. 352, sees. 326, 398, 530. Turbill's Case, 1 Saund. 67, sec. 502. Turner v. Armstrong, 9 Yerg. 412, sees. 447, 400. V. Burnell, 48 Wis. 221, sec. 394. V. Fendall, 1 Cranch 117, sees. 330, 347, 404, 420, 421. Tweedy v. Nichols, 27 Conn. 519, sec. 390. Twopenny v. Peyton, 10 Sim. 487, sec. 428. Tyler v. Winslow, 46 Me. 348, sec. 532. Tyson v. Keynolds, 52 Iowa 431, sec. 401. IT. Ullmeyer v. Ehrmann, 24 La. An. 32, sec. 367. Underbill v. Calhoun, 63 Ala. 216, sec. 419. Union Bank v, Dillon, 75 Mo. 380, sec. 392. United States v. Amedy, 11 Wheat. 392, sec. 342. V. Arredondo, 6 Peters 691, sec. 395. V. Graff, 67 Barb. 304, sec. 3.33. V. Heth, 3 Cranch 399, sec. 395. V. Langton, 5 Mason C. C. 280, sec. 380. V. Vaughn, 3 Binney (Pa.) 394; 5 Am. Dec. 375, sees. 340, 402, 428, 437. Ex. Co. V. Bedbury, 34 111. 459, sec. 522. Updegraff v. Spring, 11 Serg. & E. 188, sec. 531. Upham V. Naylor, 9 Mass. 490, sec. 490. Upton V. Tribilcock, 91 U. S. 45, sec 408. Van Amee v. Jackson, 35 Vt. 173, sec. 407. Van Buskirk v. Hartford F. Ins. Co., 14 Conn. 141 ; 14 Conn. 583, 36 Am. Dec. 473, sees. 472, 480, 481. V. Warren, 24 Barb. 457, sec. 402. Van Eiswick v. Lamon, 2 McArthur 172, sec. 424. Van Staphorst v. Pearce, 4 Mass. 258, sees. 470, 474, 475. Vance v. McLaughlin, 8 Gratt. 289, sees. 416, 425. Varnell v. Speer, 55 Ga. 132, sees. 342, 357. Vason V. Clarke, 4 La. An. 581, sees. 377, 523. YeHreesv. Hicks, 4 Baxt. (Tenn.) 380, sec. 389. Victor V. Hartford Ins. Co., 33 Iowa 210, sec. 447. VierheUer v. Brutto, 6 HI. App. 95, sec. 427. Vincent v. Watson, 18 Pa. St. 96, sees. 474, 475. W. Wadleigh v. Jordan, 74 Me. 483, sees. 514, 520. Wadsworth v. Clark, 14 Vt. 139, sees. 495, 496. Waite V. Osborne, 11 Me. 185, sees. 404, 426, 455. Wakefield v. Martin, 3 Mass. 558, sees. 402, 437, 465. Walcott V. Keith, 22 K H. 196, sec. 338. Walden v. Valient, 15 Mo. 409, sees. 460, 466. Waldnian v. O'Donnell, 57 How. Pr. 215, sec. 345. Wales V. Muscatine, 4 Iowa 302, sees, 345,454. TABLE OF CASES. 755 Walke V. McGehee, 11 Ala. 273, sees. 41,', 44 J. "Walker v. Cook, 129 Mass. 577, sec. 345. V. Detroit etc. R. Co. 49 Mich. 44G, sees. 397, 412. V. Gibbs, 2 DaU. 211, sees. 484, 518. V. Wallace, 2 Dall. 113, sec. 530. Wallace v. Lawyer, 54 Ind. 501; 23 Am. Rep. GGl, sec. 422. V. McConnell, 13 Reters 136, sees. 494, 498, 500. V. Patterson, 2 Harr. &McH. 403, sec. 490. V. Walter Hayward etc. Co., 16 Gray 209, sec. 470. Walling V. Miller, 15 Cal. 38, sec. 437. Walters v. Wash. Ins. Co., 1 Iowa 404, sec. 471. Ward V. County of Hartford, 12 Conn. 404, sees. 419, 422. V. Lamson, 6 Pick. 358, sec. 411. V. Morrison, 25 Vt. 593, sees. 472, 481. Wardle v. Briggs, 131 Mass. ,518, sees. 402, 504. Wardville v. Jones, 58 N. H. 305, sec. 395. Ware v. Bucksport, 69 Me. 97, sees. 363, 525. V. Gowan, 65 Me. 534, sees. 328, 450. Warner v. Perkins, 8 Cush. 518, sees. 353, 359, 486, 487. Warren v. Batchelder, 15 N. H. 125, sec. 475. V. Perkins, 8 Cush. 518, sees. 353, 359, 486, 487. V. Sullivan, 123 Mass. 283, sec. 470. Wart V. Mann, 124 Mass. 586, sec. 473. Washburn v. N. Y. etc. Mining Co., 41 Vt. 50, sees. 362, 399. Watson V. Bogaley, 12 Pa. St. 164; 51 Am. Dec. 595, sec. 469. V. Todd, 5 Mass. 271, sec. 421. Watkins v. Cason, 46 Ga. 444, sees. 507, 512. V. Blatchinski, 40 Wis. 347, sec. 409. V. Field, 6 Ark. 391, sees. 512, 513, 516, 518. V. Gray, 5 Mo. App. 571, sec. 400. V. Otis, 2 Pick. 88, sees. 414, 428. V. Pope, 38 Ga. 514, sec. 473. Weatherwas v. Paine, 2 Mich. 555, sees. 327, 391, 399. Weaver v. Davis, 47 111. 235, sees. 347, 424, 426. Webb V. Holt, 57 Iowa, 712, sees. 401, 409. V. Lea, 6 Yerg. 473, sec. 399. V. McCauley, 4 Bush 8, sees. 422, 454. V. Miller, 24 Miss. 638, see. 512. V. Pearle, 7 Pick. 247, sec. 428. Webber V. Bolte, (Mich.) Rep. Oct. 24, 1883, sec. 449. V. Carter, 1 Phila. 221, see. 531. V. Doran, 70 JNIe. 140, sec. 449. Webster v. Adams, 58 Me. 317, sees. 400, 499. V. Lowell, 2 Allen 123, sec. 505. V. McDaniel, 2 Del. Ch'y, 297, sec. 497. V. Randall, 19 Pick. 13, see. 445. V. Steele, 75 111. 544, sees. 393, 448, 532. Weed V. Jewett, 2 Met. 608; 37 Am. Dec. 115; sees. 409, 470, 483. Weill;. Tyler, 38 Mo. 545, sees. 452,473. Weiner v. Pretchartt, 16 Mo. 252, sec. 453. Weinstock v. Bellwood, 12 Bush 139, sees. 465, 482. Weit V. Thayer, 118 Mass. 473, sec. 463. Welch V. Gurley, 2 Hayw. 334, sees. 426. 455. Weller v. Weller, 18 Vt. 55, sec. 515. Wellover v. Soule, 30 Mich. 481, sees. 336, 359, 303, 487. WeUs V. Am. Ex. Co., 55 Wis. 23, sees. 356, 402. V. Banister, 4 Mass. 514, see. 416. V. Green, 8 Mass. .504, sec. 456. V. Mace, 17 Vt. 503, sees. 514,519. Wendell v. Pierce, 13 N. H. 502, sees. 419, 422, 454. Wentworth v. Whittemore, 1 Mass. 471, sees. 447, 449. West V. Piatt, 116 Mass. 308, sees. 358, 510. Western R. R. v. Thornton, 60 Ga. 300, sec. 412. WetheriU v. Planagan, 2 Miles 243, sec. 397. Wetter v. Rucker, 1 Brod. & B. 491, sees. 505, 506, 507. Weymouth v. Penobscot Log. Co., 75 Me. 41, sec. 419. Wheat V. Piatt City etc. R. Co., 4 Kan. 370, sec. 344. . Wheatley v. Stroube, 12 Cal. 92, sec. 482. Wheeler v. Aldrich, 13 Gray 51, sees. 505, 525. V. Bowen, 20 Pick. 563, sees. 416, 425, 426. V. Day, 24 Minn. 554, see. 483. V. Emerson, 45 N. H. 526, sees. 513, 517. V. Moore, 13 N. H. 478, see. 416. V. Smith, 11 Barb. 345, sees. 347, 421. V. Wheeler, 9 Cowen 34, see. 482. Wheeloek v. Tuttle, 10 Cush. 123, see. 520. Whiden v. Drake, 5 K H. 13, sees. 419, 454. Whipple V. Robbins, 97 Mass. 107, sec. 494. V. Thayer, 16 Pick. 25, see. 480. White V. Boyd, 20 La. An. 188, see. 376, V. Coleman, 130 Mass. 316, sec. 354. V, Dunn, 134 Mass. 271, sec. 395. 756 TABLE OF CASES. Wliite V. Jenkins. 16 ilass. G2, sees. 414, 428, 447. V. Eichardson, 12 N. H. 93, sees. 474, 477, 516. V. Sprin;:^fiel(l Inst., 134 Mass. 232, sec. 377. Whitehead r. Walker, 11 L. & J. Exch. 108, sec. 407 Whitney v. Dean, 5 N. H. 249, sec. 441. V. Munroe, 19 Me. 42; 36 Am. Dec. 733, sees. 353, 490, 491. Whittier v. Prescott, 48 Me. 367, sec. 433. Wick V. Branch Bank of INIobile, 12 Ala. 594, sees. 422, 472, 481. Wiggins V. Lewis, 19 X. H. 548, sec. 476. Wigwall V. Union etc. Co., 37 Iowa 129, sees. 409, 503. Wilcox V. Mills, 4 Mass. 218, sees. 529, 5.30. Wilcus V. King, 87 111. 107, sec. 483. Wild V. Ferguson, 23 La. An. 752, sees. 418, 422, 454. Wilder v. Bailey, 3 Mass. 289, sees. 347, 359, 404, 421. V. Weatherhead, 32 "Vt. 765, sees. 359, 400. Wildes V. Nahant Bank, 20 Pick. 352, sec. 407. Wilhelmi' v. Haffner, 52 lU. 222, sees. 466, 472. Wilkinson v. Hall, 6 Gray 568, sec. 382. Willard v. Butler, 14 Pick. 550, sees. 452, 473. V. Sheafe, 4 Mass. 235, sees. 411, 449, 484, 518. Willard v. Sturtevant, 7 Pick. 194, sec. 428. Willet V. Equitable Ins. Co., 10 Abb. Pr. 193, sees. 343, 359, 413. V. Price, 32 G a. 115, sec. 527. Williams v. A. & K. E. Co., 36 Me. 201, sec. 531. V. Boardman, 9 Allen 570, sees. 422, 456. V. Gage, 49 Miss. 777, sees. 351, 448, 490. V. Galliek, 3 Pac. Eep. 469, sec. 441. V. Gayle, 7 Gratt. 152, sec. 51.5. V. Housel, 2 Iowa 154, sec. 320. V. Ingersoll, 89 K Y. 508, sec. 402. V. Jones, 38 ]Md. 555, sees. 420, 424. V. Marston, 3 Pick. 65, sec. 449. V. Pomeroy, 27 Minn. 85, sec. 371. V. Eeed, 5 Pick. 480, sec. 428. V. Young, 46 Iowa 140, sec. 376. Williamson v. Doby, 36 Ark. 689, sec. 4G7. V. N. J. etc. E. Co., 29 N. J. Eq. 311, sec. 395. WiUiar v. Bait. etc. Ass'n, 45 Md. 546, sec. 395. Willing V. Consequa, Peters C. C. 301, sec. 531. Willis V. Henderson, 43 Ga. 325, sees. 351, 490. Wilson V. Albright, 2 G. Greene, 125, sees. 359, 407, 460, 487. v. Bank of La., 55 Ga. 98, sees. 418, 419, 422, 454. V. Bartholomew, 45 Mich. 41, sec. 401. V. Burney, 8 Xeb. 39, sec. 505. V. Carson, 12 ]\Id. 54, sec. 480. V. Lewis, 10 E. I. 285, sees. 419, 454. V. Wood, 34 ^le. 123, sec. 407. Wimer v. Pritchartt, 16 Mo. 252, sec. 445. Winchell v. Allen, 1 Conn. 385, sees. 404, 425. Windwart v. Allen, 13 Md. 196, sec. 527. Winslow V. Bracken, 57 Ala. 368, sec. 43.5. Winston v, Euring, 1 Ala. 29; 34 Am. Dec. 768, sec. 490. V. Westfeldt, 22 Ala. 560; 58 Am. Dec. 278, sees. 458, 463. Winthrop v. Carleton, 8 Mass. 456, sec. 501. Withers v. Fuller, 30 Gratt. 547, sees. 399, 521. Wisconsin v. Duluth, 2 Dill. 406, sec. 418. Wise V. BQlton, 4 Me. 435, sec. 504. Woodr. BodweU, 12 Pick. 268, sec. 479. Wolf V. Tappan, 5 Dana 361, sees. 333, 334. Wood V. Buxton, 108 Mass. 102, sees. 328, 449. V. Lake, 13 Wis. 84, sec. 494. ^■. Partridce, 11 Mass. 488, sees. 447, 449. V. Wall, 24 Wis. 647, sees. 366, 370, 389. Woodbridge v. Morse, 5 N. H. 519, sees. 347, 404, 421. • r. Winthrop, 1 Eoot (Coim.) 557, sec. 384. Woodfolkr. Whitworth, 5 Cold. (Tenn.) 56, sees. 336, 362. Woodhouse v. Commonwealth Ins. Co., 54 Pa. St. 307, sec. 529. Woodruff V. Bacon, 35 Conn. 97, sec. 531; 34 Conn. 182, sec. ^399. V. French, 6 La. An. 62, sec. 338. Woods V. MUford etc. Sav. Inst., 58 X. H. 184, sec. 503. Woodward v. Woodward, 9 X. J, L. 115, sec. 404. Woolfolk V. Bank of America, 10 Bush 504, sec. 403. Wooster v. Page, 54 X. H. 125; 20 Am. Eep. 128, sec. 409. Worcester Co. Bank v. Dorchester B'k,, 10 Cush. 488, sec. 463. Worthington v. Jones, 23 Vt. 546, sees. 389, 473. TABLE OF CASES. 757 ■WrigHt V. Baseworth, 7 IST. H. 590, sec. 329. V. Foord, 5 N. H. 178, sees. 397, 414, 428. Wrigley v. Geyer, 4 Mass. 102, sees. 452, 473. Wyatt's Adm'r v. Rambo, 29 Ala. 510, sees. 399, 505. Wybrants v. Rice, 3 Tex. 458, sees. 460, 466. Wyman v. Hichbom, 6 Cusb. 264, sees. 482, 483. V. Stewart, 42 Ala. 163, sec. 523. Y. Yarborough v. Tbompson, 3 Smedes & M. 291; 41 Am. Dec. 626, sec. 460. Yeates v. Groves, 1 Ves. Jr. 281, sec. 482. Yerbey v. Lackland, 6 Ilarr. & J. 446, sees. 399, 405. Yocum V. White, 36 Iowa 288, sees. 504, 507. Yorgue v. Linton, 6 Rich. 275, sees. 441, 442. Young V. Cooper, 59 111. 121, sec. 497. V. Ross, 31 N. H. 201, sees. 344, 359, 412. V. Young, 2 Hill (S. C.) 425, sees. 425, 498. Zang V. Stover, 2 N". Mex. 29, sec. 304, Zurcher v. Magee, 2 Ala. 253, sees. 347, 421. i INDEX. 4 INDEX TO VOLUME II. Abatement, matter of, cannot be placed in issue by garnishee's answer, § 372. may be by answers to interrogatories, 390 (p. 117). prior garnishment pleaded in, by attachment defendant, 500. acceptance of order to pay sum certain, takes precedence of garnish- ment, 371 (p. 84.) of notice of assignment of debt, where drafts not accepted, held equit- able assignment, 437 (p. 225). of drafts against fund, prior to service, releases garnishment, 437 (p. 226), 444 (p. 237). necessary to render drawee liable to holder, 438. Accounts, between garnishee and defendant to be disclosed in answer, 367 (p. 78), 370. open, possession of, does not authorize garnishment, 407. assignment of, 469. Acquiescence, of garnishee, will not bind defendant, 336, 361. Action, cause of, against garnishee, rule as to, and exceptions, 327. garnishment is an, 332, 350, 392 (p. 122). subject of, jurisdiction of, 391. pending for same demand at date of garnishment, 492, 496. Actual possession, of defendants' property by garnishee, distinguished from constructive possession, 411. Additional answers, filed by garnishee, 383. Administrators, when not subject tj garnishment, 404 (p. 148), 42Si, 426, 455. Admissions, as evidence on trial of issues, 384, 396 (p. 130). Affidavit, required in garnishment, 325, 356. furnished by plaintiff, 326. requisites of, and errors in, 356. cannot be contradicted by garnishee, 372. waivers of defects in, by garnishee, 386. insufficiency of, as a defense, 405. which garnishee believes to be true, annexed to answer, 369. Agent, or servant of debtors, Avhen not liable in garnishment, 330, 349, 430. of private corporation, service of garnishment on, 360, 429. answering for principal, 385, 522 (p. 393). possession of property by, renders principal liable as garnishee, 411 (p. 164). fiscal, of government, cannot be effectually garnished, 422 (p. 193). of defendant, garnishee's promise to pay does not affect liability, 438 (p. 229). service on, will not bind principal, when, 456. Alabama, statutes as to claims of interveners, 425. statutes relating to attachment, (pp. 419-28). issue of the writ, p. 419. in what manner, and upon what property executed, p. 421. for advances to make crops, p. 422. replevy and claim of property, p. 423. proceedings against garnishees, p. 423. collateral issues, p. 423. ancillary attachments, p. 426. judicial attachments, p. 423. (761) 762 INDEX. Alabama - -Continued. pleadings, trial and execution, p. 425. against steamboats, p. 426. ne exeat, equitable attachment, and other writs of seizure, p. 427. Allowance made to garnishee for answering, p. 3S9. Amendment, of process, § 358. of garnishee's answer, to disclose assignment of debt after service, 371 (p. 85). generally, 383. after exceptions taken and sustained, 387 (p. 1 12). Amount, due from garnishee, uncertainty of, will not defeat garnishment, 450. Annuity, when and when not recoverable by garnishment of person, by whom payable, 449 (p. 249). Answer, of garnishee, 364-89. to bind defendant, must be under regular process, 336. property received or debts contracted after, unaffected, 338 (p. 30). may be several, when garnishees jointly summoned, 353. may be written or oral, 357 (p. 61). by attorney of corporation, 3G0, (p. 67). as waiver of service of process, 361. considered generally, and as a pleading, 364. written, 365. to interrogatories, as means of discovery, 366. direct denial of possession, or indebtedness, by^ 367. facts not placed in issue by, 372. disclosure of matters of belief, 368. documents annexed to answer, 369, disclosure of accounts, relevancy of interrogatories, 370. • prior assignment, 371, 481. as to capacity in which property held, 374. as to garnishee's interest in fund or property, 375. privileged communications, 376. when doubtful or uncertain, construed against garnishee, 377, 523 (p. 397). when need not be certain and explicit. 378. of statute of limitations, 379. extent to which taken as true, 380. taken as evidence, 381. of prior garnishment, 382. , amendment of, 383. estoppel, 384. by private corporations, through agents, 385. effect of, as general appearance, 386. exceptions to sufficiency of, 387. time within which must be made, 388. consequences of failure in making, 389, 522. to be construed fairly, according to import of language, 377 (p. 96). issues on, between plaintiff' and garnishee, 390-97. evidence on trial of traverse of, 396, 523. indebtedness prior to, 483. judgment on, 523. Appeal, duty of garnishee to prosecute, 402 (n. 5). default not set aside on, 525. Appearance, of garnishee, when voluntary, will not bind defendant, 336, 331. of defendant, as waiver of process, etc. , 362. of garnishee, as waiver of error in return to process, 363 (p. 71). effect of answer as, 386. of claimant of attached property, how procured, 435. Arizona, statutes relating to attachment, pp. 429-32. actions in which will lie — issue of writ — affidavit, bond, p. 429. execution and return, pp. 429-30, 432. perishable propertj^ p. 430. adverse claims — judgment and execution, p. 431. Arkansas, statutes relating to attachment, pp. 4.32-41, _ INDEX. 763 Arkansas —Continued. the statutory grounds, p. 432. execution and return of writ, p. 434, disposition of attached property, p. 435. proceedings, p. 435. before debt due, p. 437. attachments specific, p. 438. discharge and reinstatement, p. 438. interpleader, p. 440. boats, vessels, etc., p. 440. Assent, of assignee to transfer of wliich lie was ignorant, not presumed, § 438. Assets, concealed, disclosed by answers to interrogatories, 366. of partnership-credits, 490. Assignee, of debt, not bound by garnishee's voluntary appearance, 336 (p. 24). not affected by subsequent garnishment, 338 (p. 30). not bound by judgment against garnishee, with notice, who fails to disclose assignment in answer, 371, (p. 83) 500, 504 (p. 348). in bankruptcy and insolvency, cannot be garnislieed, 423. for benefit of creditors, may purchase demands against debtor, 434, (p. 220). not subject to garrushment until he has surplus, 437 (p. 226). of warehouse receipt, rights of as against attaching creditors, 445 (p. 240). Assignment, effect of, when fraudulent, 327, 330. of debt not in existence creates no attachable demand, 335. of chose in action, notice to debtors essential, 371. disclosed by answer, 371. should be made in good faith, 371 (p. 86). validity of in issue between plaintiff and garnishee, 390 (p. 118), 397. prior to service, as defense, 402. equitable, prior to service, 437, 500. of policy of insurance, held binding without notice, 437 (p. 225). of garnishee's indebtedness and contracts affecting his liability, 465, 482. equitable assignment of chose in action, 465. of instruments non-negotiable, 466. ov^erdue commercial paper, 467. of debts evidenced by writing, 468. of open accounts, 469. of future indebtedness, 470. notice of, importance to debtor, 471. when and by whom should be given, 472. contract relations with defendant, 473. with third person, 474. consideration, 475. must be with party capable of contracting, 476. garnishee's liability as surety for defendant, 477. defendant's representative capacity, 478. contracts and assignments, held fraudulent, 479. law that determines validity of, 480. duty of garnishee to disclose rights acquired by, 481. form and substance of, 482. Assumpsit, when will lie for tortious cause of action, 447 (p. 246). cause of , action for which, would lie, alone support garnishment, 447, 448. Attachment, garnishment a mode of, 325. cause of, necessary to support garnishment, 327. by garnishment and by seizure, distinguished, .338. Attorney, of corporation, when may not accept service, 336 (p. 24). of debtors as garnishee, 349 (p. 48), 431. of corporation may answer, 360 (p. 67). in fact, answer of, denying indebtedness, 372. holding money or property, to secure payment for future services, 375 (p. 91). communications to, not always privileged, 376. ■ 7G4 INDEX. Attorney — Continued. power of, authorizing transfers of stock, held equitable assignment, § 437 (p. 225). Bailee, of defendant, should not be garnished, when, 3oO. should disclose cajjacity in which property held, 374. of surety as garnishee, 412. using money as his own will not subject his stakeholder tagamishment, 416 (p. 174). Bank, officer of, as garnishee, 330 (p. 12), 348, 429 (p. 213). stock, not attachable after assignment, 340 (p. 34). bills of, seized when, 407 (p. 154). as garnishee of trustee, 41G (p. 174), 428 (p. 211). held as garnishee of depositor, notwithstanding notice of intended drafts, 438. deposit in, evidenced by certified check, cannot be reached, 460 (p. 269). Bankruptcy, assignee in, not required to answer as garnishee, 423. Bar, of judgment, in garnishment, to subsequent action by garnishee's credit- or, 502. Belief, knowledge or, denial of in answer, when sufficient, 367, 368. of garnishee in facts, not in issue by traverse, 390 (p. 117). Bill, of exchange, acceptance of prior to service releases garnishee, 437 (p. 22G), 444 (p. 237). necessary to render drawee liable to holder, 438. negotiable, garnishment of party to, 458-64. (See Negotiable Ix- STJiUMENTS. ) of exchange as equitable assignment^ 465 (p. 230), 482. Bona fides, of transfers on assignment, to defeat garnishment, 434. (See Fraud, Fraudulent Assigxmexts and Transfers.) of judgment against garnishee, 505 (p. 360). Bond, required in garnishment prior to summons, 325, 356. furnished by plaintiff, 326. (See Statutes in Appendix.) not available for pi-otection of garnishee, 333 (p. 18), 356, 403. insufficiency of, as a defense, 405. Bonds, of corporation, in hands of its officers, not attachable, 407 (p. 156). Brokers, board of, not subject to garnishment, in suit against insolvent mem- ber, 434 (p. 220). Burden of proof, cast upon plaintiff by answer, 380, 381, 397. not sliifted by merely contradicting answer, 381. California, statutes relating to attachment, pp. 442-45. actions in which will lie, p. 442. affidavit and bond, p. 442. execution and return of writ, p. 442-5. garnishment, p. 443. adverse claims — forthcoming bond, p. 444^ discharge for irregularity, etc., p. 445. sheriff's return, p. 445. Capacity, in which property held by garnishee prior to service, 330, 417-431. answer as to, 374. issues raised on by plaintiff, 390 (p. 118). as a defense to the proceeding by garnishment, 404* general effect on garnishee's liability, 418. when the party summoned cannot be sued, 418. municipal corjiorations, 419. officers of the law — clerks of courts, 420. sheriffs and other executive officers of courts, 421. treasurers and other public officers .and agents, 422. assignees, etc. , in l)ankruptcy and insolvency, 423. receivers and similar officers, 424. executors, 425. administrators, 426. guardians and curators, 427. trustees of private trusts and powers, 428. officers, agents, etc., of private corporations, 429. INDEX. 765 Capacity — Continued. agents and servants of other defendants, § 430. attorneys-at-law, 431. in wiiicli debt was contracted by garnishee, 454-457. in private, representative, 478. Carrier, as defendant, when garnishee owes for freight, 404 (p. 148). summoned on account of possession of defendant's goods, 412 (p, 167), 444 (p. 339). Certainty, of demand in defendant's favor, 328, 394, 449-451. of statement of counter-claim, etc., required in answer, 375 (p. 91). required in answer, 377. Avlieu not required in disclosure, 378. Certificate, another name for garnishee's answer, 364 (p. 73). Chancery, attachment in, 334. Chattel mortgage, cfifect of, on rights of creditors of mortgagor, 440. on policies of insurance on mortgaged property, 440 (p. 291). Check, certified, bank no longer debtor of holder, 460 (p. 269). considered as payment, 510. Choses in action, cannot be reached by garnishment of holder, 329 (p. 10), 407. equitable assignment of, generally, 465. Claimant, of property on credits attached, may intervene, 354. burden of contest cast upon, 374 (p. 90). when garnishee is, in his own right, 414. to appear and propound claim on notice, 43.'5. Clerk of court, money in hands of, not subject to garnishment, 347, 420. Collateral attack, on judgment in garnishment, 527. Collusion, between garnishee and plaintiff, that renders judgment void, 505 (p. 360). Colorado, statutes relating to attachments, pp. 445-454. actions in which will lie, p. 445. affidavit of grounds, p. 445-446. bond — on debts not due, p. 446. execution on return of writ, p. 447-450. adverse claims, p. 448. delivery bonds, p. 449. garnishment, pp. 450-454. Competency of interrogatories propounded to garnishee, 370 (p. 82). Conditions, to garnishee's liability, 451. essential to effectiveness of judgment and satisfaction as defense to sub- sequent action, 504. Connecticut, statutes relating to attachments, pp. 454-461. service of mesne process, etc. , and interests thereby acqviired, 454. intervention by creditors, p. 460. foreign attachment, p. 460-461. Consideration, for assignment of demand, immaterial to debtor, notified, 371 (p. 85). for transfer of property, in issue on answer, 433, 434. of debt owing by garnishee, 453. must be lawful, 448 (p. 247), 453. of contract with tlurd person, that affects garnishee's liability, 475. failure of, as defense to defendant's cause of action, 519. Consolidation of actions, to subject same credits to satisfaction of different deljts, 354. Constructive possession of defendant's property by garnishee, 411. Consuls of foreign governments, subject to process in state courts, 346. Continuance, for further answer, allowed, .392 (p. 122). of suit, brought subsequent to garnishment, 501. Contracts, that create demand, attachable by garnishment, 328. between defendant and garnishee, that afi'ect latter'a liability, 443-445, 473-482. to deliver property to owner, 443. that qualify garnishee's liability, 444. by whie?! garnishee's liability unaffected, 445, 766 INDEX. A Contracts — Cojitlnued. of indemnity, § 453. • consideration of, 475. . . must be with parties capable of contracting, 476. fraudulent, effect of, on assignments, 479. Control, of defendant's property by garnishee, actual or legal, 412. Corporations, private, garnishment of officer of, against company, 330, 348, 412 (p. 167), 429. attorney of, may not accept service, ■when, 336 (p. 24). as garnishee generally, 342. municipal, as garnishee, 345. private, service of notice on, 359 (p. 63), 360. answer by, 385. bonds of, in hands of its officers, not attachable, 407 (p. 156). shares of, in capital stock, not property, 408. authority of agent of, to appear for, 522 (p. 393). Costs, garnishee required to pay, 389. liability of, for, 530. Counter-claim and set-off, in favor of garnishee, against defendant, 375 (pp. 91-92). Court, having jurisdiction in garnishment, 391. of inferior jurisdiction, limitation of, as to amount, 399 (p. 138). in which action pending, and garnishment for same debt, 492. Courts, only inferior have jurisdiction in England, 492. of concurrent jurisdiction, in which action and garnishment pending for same demand, 493. of different jurisdiction, in which action and garnishment for same de- mand pending concurrently, 494. Creditors, attaching, rights of, as against assignee, etc. , 432—442. (See Fraud- ulent Assignments and Teansfeks.) in possession, lien of, 442, judgment and executioQ, garnishment of, 524. Credits, difference in rules as to garnishment of, and of property, 329, 407. claims against county for jury service, held not to be, 456. negotiable, cannot be reached by garnishment, 45S-459. (See Gar- nishee's Indebtedness, evidenced by Negotiable Instrument.) jointly owned, whether as jmrtners or otherwise, 489-491. Curators, immunity of, from garnishment, 427. Custodia legis, property in, exempt from garnishment, 330 (p. 13), 347, 421. Dakota, statutes relating to attachment, pp. 461-465. actions in which will lie, p. 4G1. warrant — affidavit— bond, p. 462. execution of the writ, pp. 462-463. custody — perishable property, p. 462. garnishment, p. 463, et seq. delivery bonds, p. 464. on debts not due — sheriff's return, p. 465. Damages, arising on contract, as set-oft', etc. , in gamisliment, 513 (p. 375). Death of partner, and succession of survivor to assets, 490. Debt, secured by garnishment, must be legal, 335, 393 (p. 124), 448, 490. nature of, and how contracted, 447-457. must be owing at time of service, 449. neeil not be due, or absolutely certain in amount, 450. garnishment before maturity of, 483-485. payable in the future, 484. joint, and joint and several, 486-491. Debtor, of garnishee, cannot be jjursued by garnishment, 333. of defendant as garnishee, 341, 446-457. Declarations, of garnishee, prior to service, as evidence on trial of traverse, § 396 (p. 130). Default, judgment by, against garnishee, 522. Defendant, in garnishment, is the debtor, 326. ownership of property or credits vinder garnishee's control, 327. INDEX. 767 Defendant — Continued. _ _ * _ must have cause of action against garnishee, § 327. nature of demand of, against gamisliee, 328. cannot be made garnishee, 330. not bound by garnishee's voluntary appearance, 336. indebtedness to, denied, 337. under no obligation to protect garnishee, 337. may demand property pending proceedings, 338 (p. 29). represented in garnisliment by plaintiff, 340. may waive process, 362. may confess judgment, and bind garnishee, 393 (p. 123). when must be protected by garnishee, 399, (p. 136). appearance of, and waiver, excuses garnishee's failure to object, 399 (p. 138), interest of, in property held by garnishee, 410, 416. Defenses, that cannot be interposed under denial of indebtedness, 372. fruitless, made by garnishee, consequences, 389. of exemption, etc., 395, 401. must be made by garnishee at his own expense, 398. want of jurisdiction, 399. prior garnishment, 400. prior assignment, 402. of payment, no goods, etc., 403. of garnishee to defendant's cause of action, 509- -520. which garnishee may make in his own behalf, 509. prior payment to defendant, 510. manner and time of, 511. under compulsory process, 512. set-off, or cross-demand, 513. considered as to parties interested, 514. character of demand, whether legal or equitable, 51 5» collateral liability for defendant, 516. when acquired to become available. 517. whether due or to become due, 5 18. failure of consideration, 519. statute of limitations, 520. Delaware, statutes relating to attachments, pp. 465-469. attachment generally, p. 465. mesne process, p. 468. shares of stock, p. 468. Delivery, of goods, necessary to create indebtedness, 328. to garnishee, necessary before service of process, 444 (p. 238). Demand in favor of defendant must be absolute, liq "^dated. ex contractv^ and certain, 328, 447. may be either for specific articles or money, 328. secured by garnishment, must be legal and not equitable, 335, 448. necessary to render debt due, 394. debt should not be contingent, 449-451. payable in money, 452. consideration of, 453. character of, whether legal or equitable, to be set-off to defendant's claim, 515. Denial, of indebtedness, what may be proved under, 364 (p. 73), 367. of possession, what suiScient, 367. not sufficient answer when garnishee has been notified of aaaignmeni, 371 (p. 83). facts not to be placed in issue by, 372. Depository, as garnishee, 349 (p. 48). Devise, trusts created by, unaffected by garnishment, 428 (p. 207). Diligence, showing of, required from garnishee in default, 522, 523L Discharge, of garnishee on payment, 334 (p. 20). by judgment of court, 528. Discovery, interrogatories and answer as a means of, 366. 7G8 INDEX. Disclosure, in answer of one of several garnishees, cannot affect another, § 353. of prior assignment, 371, 481. of trusts, 374. of matters of belief, 368. Discretion, of court to admit documents offered with garnishee's answer, 369. whether garnishee shall be allowed attorney's fee, 389. Dismissal of proceedings disposes of intervenor's claim, 3o4. Dissolution, for irregularity or on traverse of affidavit, 325, Documents, annexed to garnishee's answer, 369. treated as genuine until contrary shown, 380 (p. 100). Doubtful answers, construed against garnishee, 377. but only where doubt arises from his equivocal manner, 377 (p. 97). Draft, acceptance of, prior to service, releases garnishee, 437 (p. 226). necessary to render drawer liable to holder, 438. Effect of garnishment, regularly served, 338. Effects, possession of, which will authorize garnishment, 407. Equitable rights, not subject to garnishment, 335, 351. Equity, will not aid garnishment, 334. will relieve against judgment obtained by fraud, but not- where gar- nishee is negligent, 527 (p. 402). Errors, of procedure, whether amendable or not, 358. in return of officer held waived by appearance, 363 (p. 71). Estoppel, the doctrine of, applied to garnishees, 384, 396 (p. 130). Evasive answers construed most strongly against garnishee, 377 (p. 96). Evidence, garnishee's answer considered as, 364 (p. 73), 381, 396, 523. how far conclusive — burden of proof, 380, 381. on trial of the traverse, 39j, 523. burden of proof, 397. Examination, of garnishee by plaintiff, 366. abuse of, guarded against by courts, 310. ordered by court for refusal to furnish "certificates," 380 (p. lOOV penalty for failure to appear for, 389 (p. 115). Exceptions, taken to sufficiency of answer, 387, 390. otherwise cannot be stricken out, 387 (p. 112). Execution, money collected by officer on, exempt from attachment, 347. stay of, in case of prior garnishment for same demand, 501. payment under, held essential to satisfy debt, 507, 512. creditors, garnishment of, 524, Executors, when not subject to garnishment, 404, (p, 148) 425. and administrators, garnishment of, for debts, 455, claim in favor of, as set off to defendant's demand, 514. Exemption, from garnishment of municipal corporations, 345, 419. of states from process of garnishment, 346, 418, of money collected on execution, 347. as a defense, 373, 395, 401, 409. must be under the laws of state where suit pending, 373, 395 (p. 128), 409 (p. 161). in issue on trial of traverse, 397. from execution is also exemption from attachment, 401 (p. 141-142). statutory, garnishee not chargeable for property embraced in, 409. from garnishment of state officers, 418 (p. 181). of officers of the law — clerks of courts, 420. Explicit, answers required from garnishee, 377. Extent, to which garnishee required to defend, 398-404^ want of jurisdiction, 399. generally, 398. prior garnishment, 400. exemption, 401. assignment prior to service, 402. payment, no goods, etc., 403, capacity in which garnishee holds property, 404, other matters of defense, 405. of garnishee's liability, 529-532. INDEX. 769 Extent — Continued. fixed by amount in garnishee's hands, § 529. for costs, 530. for interest, 531. limited by amount of principal judgment, 532. Factor, synonymous with garnishee, 325. Factorizing, same in effect as garnishment, 325. Facts, not to be placed in issue by denial, 372. constituting exemption should be stated in answer, 373. constituting assignment or trust affecting funds or property, disclosed, in answer, 374. in issue between plaintiff and garnishee, 390. Failure of garnishee to answer, consequences of, 389. Fees, i^aid attorney, when allowed to garnishee, 389. Florida, statutes relating to attachment, pp. 469-477. attachment by direct levy, p. 469. when will issue — affidavit, p. 469. bond — replevy — service of writ, p. 471. pleading, dissolution, etc., p. 472. water-craft— mortgaged property, p. 473. garnishment, jip. 474-477. Foreign corporations, service of notice of garnishment on, 359 (p. 63), 361. cannot bind its creditor by voluntary appearance as garnishee, 3G1. debt due from, cannot be attached by service on agent, 456 (p. 260). Foreign governments, their re^jresentatives as garnishees, 346. Form, objections to matters of, held waived by appearance, 386. and substance of assignment, etc. , affecting garnishee's liabiUty, 482. Fourth party to the controversy, 432. Fraud, that defeats defendant's right of action against garnishee, does not prevent garnishment, 327. may be disclosed to defeat garnishee's title, by interrogatories* and an- swer, 370. to be taken advantage of, should be against creditor complaining, 394 (p. 125). evidence of, in trial of traverse, 396 (p. 130). judgment obtained by, relief against, in equity, 527 (p. 402). Fraudulent assignment, effect of, on subsequent attachment, 327, 4305 462. prior to sei'vice, cannot be reached by garnishment, 338 (p. 30). may b; disclosed by examination of garnishee, 316 (p. 94). or transfer will not always charge transferee, 412 (p. 167), 434. effect of, u^jon subsequent garnishment, 47 9. Fraudulent transfer, of personalty, contested by plaintiff, 434, 438, 439. Gambling, debt created by, wiU net support garnishment, 448 (p. 247). Garnishee, styled as "trustee " or "factor," 325, 340. one of the necessary parties, 326. regarded as a stakeholder between plaintiff and defendant, 326, 331, 340, 389, 398. duty of, to resist proceeding, 326, 340, 399. liability of, to plaintiff, 327, 331, 406-410. capacity in which, holds property of defendant, 330, 404^ as custodian of attached property, 331, 337. judgment against, will not support garnishment, 333. cannot avail himself of attachment bond, 333. discharged on pajrment of the debt, 334 (p. 20). acquiescence of, in proceeding will not bind defemlant, 336L who may be, 340 (p. 35), 341. plaintiff as, 341. Btate cannot be held as, 346. agent or servant of debtor as, 349^ wife of debtor as, 350. co-debtor of defendant as, 351. judgment debtor as, 352. II— Attacument— 24 770 INDEX. Garnishee — Conthnied. waiver of process by, § 361, 399. protection of, after answer, 371. bound to disclose assignment of wliicli lie is notified, 371 (pp. 83-4-5), 436, 481. interest of, in property in fund attached, 375. may challenge competency and relevancy of interrogatories, 370 (p. 82). doubtful and uncertain answers construed against, 377. regarded as a witness for plaintiflf, 381 (p. 102). embarrassing position occupied by, 308 (p. 134). extent to which, bound to defend the action, 398-405. liability of, in respect to, personally in possession, 406-41(X character of possession, 411-416. capacity in which property is held, 417-431. double liability of, 436. liability of, as debtor of defendant, 446-457. maker of negotiable paper as, 458-464 defense of, to defendant's cause of action, 509-520. must show diligence and meritorious defense to set aside default, 523, 525. discharge of, by judgment of court, 528. Garnishees, jointly indebted and credits jointly owned, 486-491. jointly and severally indebted, 486. jointly indebted, 487. severally indebted, 488. credits jointly and severally owned by defendants, 489. . partnership credits, 490. jointly owned by defendants, not as partners, 491. of judgment and execution creditors, 524. Garnishee's indebtedness, evidenced by negotiable instrnments, 45& 464. maker of negotiable paper as garnishee, 458. reasons for rule, that cannot be held, 459. circumstances that destroy negotiability no exception, 460. conditional garnishment of, before maturity, 461. where instrument has been fraudulently assigned, 462. effect of notice of garnishment on rights of indorser, 463» by what law negotiability to be determined, 464. affected by existing contracts, 478-482. Garnishee's liability, in respect to personal property in his poase38ioD, 406-410. the kind of property — effects, credits, choses in action, 407. shares in capital stock of corporations, 408. property exempt from execution, 409. defendant's interest in, 410. as a debtor of defendant, 446-457. general rules governing, 446. nature of defendant's demand, 447. a legal debt, 448. debt should not be contingent, 449. contingencies by which garnishee's liability unaffected, 450. conditional obligation as a foundation for garnishment, 451 . a debt payable in money, 452. consideration — contracts of indemnity, 453. capacity in which, contracted — municipal corporations, etc., 454. executors and administrators, 455. in private representative capacity, 456. plaintiff as garnishee, 457. affected by prior assignments, etc. , 465-472. affected by contract relations with defendant, 473, 477. affected by contracts with third persons, 474-476. as surety of defendant, 477. Garnishment, generally considered, 325-339. process in, described and distinguished from seizure, 325. necessary parties, 326. INDEX. 771 Garnishment — Continued. garnishee's liability to plaintiff, § 327. defendant's demand against garnishee, 328. property that may be reached, 329. capacity in which property held bygarnishee before service, 330. after service, S31. nature and object of the proceeding, 332. purely statutory, 333. unaided by equity, 334. equitable rights not subject to, 335, 448. judgment depends on regularity of process, 336. when garnishee opposed to both principal parties, 337. effect of, regularly served, 338. the term preferred to "trustee process" or "fotorizing," 325 (n. 10). nature of lien on specific articles created by^ 329. regarded as a suit, 332, 340. of ganiishee's debtor not permitted, 333. whether joint or several, 353. prior, set up in garnishee's answer, 382, 400. at an end by plaintiff's failure to traverse denial of indebtedness, 390 (p. 118). of debts before maturity, 483-485. indebtedness at the time of service or prior to answer, 483. debts payable in the future, 484. garnishee not required to pay until his debt is payable, 485» after suit by defendant against garnishee, 492-499. actions pending in same court, 492. in different courts of concurrent jurisdiction, 493. in distinct court of different jurisdiction, 494. where judgment against garnishee will bar action by defendant, 495.. where action by defendant will bar garnishment proceedings, 496. judgment debtors charged as garnishees, 497. cannot be garnished, 498. prior judgment in favor of party summoned, 499; effect of, prior to suit by defendant, 500-508. pleaded in abatement by attachment defendant, 500^ as ground for continuance of subsequent suit or stay of execation, 501. effect of judgment of garnishee, 502. and satisfaction thereof, 503. essential conditions to the effectiveness of, 504. validity of, 505. how satisfied, to constitute valid defense, .'506. payment under execution, 507. judgment in, in favor of garnishee, 508. Georgia, statutes relating to attachment, pp. 478-490^ issuing writ, p. 478. affidavit, bond, writ, form of, p. 480. execution and return, property subject to, etc., p. 480. purchase-money, p. 481. fraudulent debtors, 482. garnishment proceedings, p. 482. pleading and defenses, p. 483. replevy and disposition of property, p. 485. claims and proceedings therein, p. 485. lien of attachment, judgment and execution, p. 486. garnishment, p. 487. Gift, conditions of, not disturbed by garnishment, 428 (p. 207), 433. Guaranty, of debt, without knowledge of debtor, 434 (p. 219). Guardian, when cannot be held as garnishee, 404 (p. 149), 427. Heir, interest of, in decedent's estate attached, 425, 426. before and after distribution ordered, 426. Husband, or wife, as garnishee in suit against the other, 350. title of, to wife's personal property, 416 (p. 176). 772 INDEX. Idaho, statutes relating to attachment, pp. 490-493. actions in whicli will lie, p. 490. affidavit in bond, p. 490. execution of the writ, p. 491. garnishment, p. 491, ct seq. perishable property — judgment and execution, p. Ao2, delivery bonds — officer's return, p. 493. Illinois, garnishee's debtor cannot be garnished in, § 333. statutes relating to attachment, pp. 494-509. in courts of record, p. 494 et seq. before justice of the peace, pp. 499, 505. of water craft, p. 501. garnishment, p. 506. Implication, neither operation of statute nor effect of judgment extended by, 333. Incumbrance, subsequent, will not disturb lien, 338 (p. 28). Indebtedness, of garnishee, must be present, absolute, liquidated and legal, 328, 336, 394. legal distinguished from equitable, 335. to defendant denied, 337. not anticipated by garnishment, 338 (p. 31). denial of, in answer, how supported, 364 (p. 73). possibility of, not assignable, 371 (p. 84). of defendant to plaintiff not in issue on trial of traverse, 393 (p. 123). of garnishee in issue on trial of traverse, 393 (p. 123). must be absolute before judgment, 394. evidenced by negotiable instruments, 458-464. future, assignment of, 470. cannot be attached, 470 (p. 286). affected by existing contract, 473-474. garnishment prior to maturity of, 483—485. Indemnity, money held as, for obligations assumed, not subject to garnish- ment, 444 (p. 238). contracts of, garnishable debts created by, 453. Indiana, statutes relating to attachment, pp. 510-514. affidavit of grounds — bonds, p. 510. property subject to seizure — service and return, p. 511. garnishment, p. 512 et seq. Indorser of garnishee's negotiable obligation must be protected, 458 (p. 264). Infant ward, guardian of, cannot be garnished in suit against ward, 437 (p. 205). Information given by garnishee, no \'iolation of duty, 336 (p. 25). Inquiry, for the purpose of discovering concealed property, 366 (p. 76). general scope of, on trial of traverse, 393. Insolvency, assignee in, not held as garnishee, 423. Insurance, policy of, amount due on for loss, not set-off by premiums due on assigned policy, 375 (p. 91), 416 (p. 172). company not garnishable when they have option to rebuild, 394, 449 (p. 249), nor after assignment of policy, 437 (p. 225). assigned to mortgagee, effect of, where mortgage imrecorded, 440. Interest, of garnishee in fund on property attached, 375. Absence of, 326, 331, 340, 389. may be inquired into on trial of traverse, 393 (p. 123), of defendant in property held by garnishee, 410, 416. on demand, garnishee's liability for, 531. Interplea, remedy by, in equity denied, 354. required in Wisconsin, 435 (p. 222). Interrogatories, filing of, not permitted, until joint possessors of property summoned, 359 (p. 64). and answers as means of discovery, 364 (p. 73). may be corrected when erroneous, 364 (p. 74). examination by, when written answer filed, 365.. and answer as means of discovery, 366. when fully answered by direct denial of indebtedness, etc., 367'. INDEX. 773 Interrogatories — Continued. relevant and irrelevant, § 370. supplemental and amended, after answer, 383. garnishee must answer pertinent, or suffer judgment, 389 (p. 114). may object to impertinent or irrelevant, 390 (p. 118). answers to, evidence on trial of traverse, 396, 523. default for failure to answer, 522. judgment on answers to, 523. Intervenor, a possible fourth party, 340, 354, 432. claim of, as proprietor, 433. issues made with, 435. to appear and profiound claim, 435. judgment in favor of, 535 (j). 222). against, 526. Iowa, statutes relating to attachment, pp., 615 521. attachment for garnishment, p. 515. for debts not due, p. 515. bond, p. 516. manner and mode, p. 516. partnership property, p. 517. garnishment, p. 517. mode, p. 518. judgment, p. 518. release of property, p. 519. perishable property, p. 519. specific attachments, p. 519. indebtedness due state, p . 520. Irregularity, dissolution of attachment for, 325. waived by defendant, when cannot be taken advantage of by gamishee, 326. judgment hy default not set aside for, 525. Issues, on answer, between plaintiff and garnishee, 390 397. general nature of — of law and fact, 390. jurisdiction of subject of action, 391. practice and pleading to raise, 392. scope of inquiry and investigation, 393. further consideration of garnishee's liability— to defendant, 894. defense of exemption, 395. evidence on trial of traverse, 396. burden of proof, 397. made without the intervenor, 435, Joint debtors, as garnishees, 351, 353 (p. 54), 487. service on, 359 (p. 63), 487. Joint garnishees, how served, etc., 353, 412 (p. 166). and credits jointly owned, 486-491. Joint tenants, of personalty, must be all summoned as gamisheea of owner, 412 (p. 166). Judgment, when void, no protection to garnishee, 326, 327, 401 (p. 141). against defendant essential to recovery from garnishee, 327, 399 (p. 136), 521. against garnishee depends on regularity of process, 336, 359. distinguished as to form, from ordinary judgment, 338. not set aside on account of defects of procedure, when, 357 (p. 61), 366 (P- 76). may be set aside on account of defective process, 359 (p. 64). held void when jirocess omitted, 361, 505. satisfaction of, no defense to action by assignee of debt, 371 (p. 84), 402 (n. 5). former, for same demand, defense of, not raised by denial, 372. against garnishee when he fails to answer explicitly, 377. vahdity of, 505. as a bar to subsequent garnishment, 382 (p. 104). when garnishee cannot safely submit to, 389, 502-505. 774 INDEX. Judgment— Continued. for failure to answer fully, § 389 (pp. 114-115). process for contempt, but no default taken for, 389 (p. 115). when ineffectual against claimant of property, 432. in favor of claimant on interplea, 435 (p. 222). against garnishee, will not bmd indorsee of negotiable paper, 458. will bar action by defendant, 495, 502-507. eflfect of, 502, 525. and satisfaction thereof, 503, 504, 506. prior, in favor of garnishee, 499, 508. against intervener, 526. collateral attack on, 527. discharging garnishee, 528. in garnishment generally, 521-528. upon which judgment against garnishee depends, 521. by default against garnishee, 522. set aside, 522, 525. on garnishee's answer, 523. against garnishees of judgment and exeoutLon creditors, 524. force and effect of, against garnishee, 525. against intervenor, 526. collateral attack on, 527. discharging garnishee, 528. limited in amount by sum or value in gamishee'a hands, 629. by amount of principal judgment, 532. Judgment debtor, as garnishee of co-debtor, 351. generally, 352, 497-499. cannot be garnished, except by creditor of legal owner of judgment, 393 (p. 124). Juiisdiction, must be complete to render judgment valid against defendant, 326, 327, 339 (p. 136), 522 (p. 393.) to determine question of, garnishment held a suit, 332. cannot be effectually conferred by consent of garnishee, 361. of subject of action, 391. want of, as a defense, 399. defeated by failure to negative exemption, 401 (p. 141)- of courts in which garnishment and suit for same demand, simultane* ously pending, 493, 494. when question of, decided against garnishee, held conclusive, 505. of action against defendant, essential valid judgment against garnishee, 527. Jury, answer to go to, when, 381 (p. 102). Justice of peace, in proceedings before, pleading unnecessary, 392 (p. 121). as garnishee in respect to money held officially, 422 (p. 194). can only render judgment against garnishee after judgment against de- fendant, 521. return of, on certiorari, sufElciency of, 524. Kansas, statutes relating to attachment, pp. 522-527. attachment, p. 522. execution and return of writ, p. 523. disposition of property, p. 524. proceedings, p. 526. general provisions, p. 526. in certain actions, p. 526. Kentucky, statutes relating to attachment, pp. 527 -BSS. grounds of attachment, p. 527. how obtained, p. 528. execution and return of writ, p. 628. disposition of property, p. 530. proceedings, p. 531. in certain actions, p. 532. specific attachments, p. 533. discharge and reinstatement of attachment, p. 634. I INDEX. 775 Knowledge, of garnishee, when matter of inquiry, not with, in answer need not be positive, § 378. and notice distinguished, 4G3. Law, issues of, between plaintiff and garnishee, 390. only deJjts at common, recovered by garnishment, 448. of place of contract governs negotiability of instruments, 464. governs validity of assignments, 480. Legacies due wife, subjected to husband's debts, 416 (p. 176), 425 (p. 199). Letters, from strangers to suit, offered as matters of disclosure, 3Gi8. Lex loci, governs as to negotiability of notes and bills, 464. as to validity of assignments, 480. Liability, of garnishee must be absolute, unconditional, etc., 328. as custodian, pending proceedings, 338 (p. 29). fixed by service, 338 (p. 30). dependent on process regularly served, 336, 361. double, notwithstanding diligence by garnishee, 371 (p. 85-6), 389, 402, 435 (p. 222). assumed in behalf of principal debtor as defense to garnishment, 375 (p. 92). not presumed, where answers responsive, 377 (p. 97). further consideration of, 394. in respect to personalty in his possession, 406-410. (See Garnishee's Liability. ) double, for failure to give notice of assignment, 410 (p. 162), 436. as affected by the capacity in which he holds property, 417. as debtor of defendant, 446^57. as affected by contract relations with defendant, 443-445, 473-482. double, should be provided against, 492-496. collateral, as defence to defendant's cause of action, 516. extent of, 529-532. limitations to, fixed by amount in garnishee's hands, 529^ for costs, 510. for interest, 531. limited by amount of principal judgment, 532. Lien, no specific,, created by garnishment, 325, 334, 338 (p. 28). quasi, created by garnishment, 329, 334, 338. in favor of garnishee on fund or property in his hands, 375.. secured prior to garnishment, .preserved, 442. for indemnity of party in poasession, unaffected by gamiahee, 444 (p. 2.3S). Limitations, statute of, set up in garnishee's answer, 379. as defense to defendant's cause of action against garnishee, 520. to garnishee's liability fixed by amount in hand, 529. by amount of principal judgment, 532. Louisiana, statutes relating to attachment, pp. 536-539. garnishment — seizure — affidavit— bond, pp. 536-537. interrogatories — issue of writ, p. 537. summons in garnishment, p. 538. appearance of garnishee — delivery bond, j). 538. perishable property — issues on answer, p. 539. Maine, statutes relating to attachment, pp. 540-545* personal property, p. 540. when may be sold on writ, p. 540. of part owners, how disposed of, p. 542. mortgaged or pledged, p. 542. death or removal of officer, or replevy of property, p. 642. death of fjarty, p. 543. real estate, p. 543. dissolution of attachment, p. 544. Maryland, statutes relating to attachment, pp. 646-551 . against non-resident and absconding debtors, p. 546. after noii est return, p. 549. 776 INDEX. Maryland — Contlvued. ou judL,'meuts or decrees, p. 549. on original process, p. 549. claimant of property, p. 550. Massachusetts, statutes relating to attacliment, pp. 551-561* general provisions, p. 551. of real estate and household estates, p. 553. of immovable goods, etc., p. 554. of shares in corporations, p. 554. of mortgaged or pledged pe' sonal property, p. 555, of real estate of non-resident, p. 556. supplementary proceedings, p. 556. sale of attach<-d personal property, p. 556. bonds, p. 558. interest of part owner, p. 558. adverse claims by subsecjuent lienors, p. 558. reduction of excessive, p. 559. dissolution of, by bond, p. 559. Maturity, of debts, garnishment before, §§ 48.3-485. indebtedness at time of ser\ace or priqr to answer, 483. debts 1 ayable in the future, 4S4. garnishee not required to pay until, 485. Michigan, statutes relating to garnishment, pp. 561-573. against foreign corporations, p. 561. proceedings against debtors by, pp. 561-564. di^ciii4^3 of satisfied attachments, p. 564. in suits previously commenced by summons, etc., p. 565L in suits for trespass on lands, p. 565. tort, against non-residents doing lousiness in. state, p. 566k dissolution of attachments, p. 566. a|ipeals, 567. garnishment in courts of record, p. 567. Minnesota, statutes relating to attachment, pp. 514-581. attachment, pp. 574-576. affidavit — bond — service of writ, pp. 574-573. return — real estate — discharge, p. 576. garnishment, pp. 577-581. jurisdiction of courts — service — corporations, p. 577» appearance and examination of garnishee, p. 578. judgment in, p. 579. answer before return-day, p. 580. release bond given by defendant, p. 581. • Mississippi, statutes relating to attachments, pp. 581'-590» against debtors generally, p. 581. affidavit, p. 581. bond, p. 582. form of affidavit, bond and writ, p. 582. garnishment and proceedings thereon, pp. 586-590. Missouri, statutes relating to attachment, pp. 590-601. attachment by direct levy, p. 590. actions in which will lie — grants — affidavit, pp. 590-591. jurisdiction of courts — bond, p. 591. issue and service of writ, pp. 592-593. return, pp. 593-594. plea in abatement, p. 595. garnishment, p. 598, et seq. service of notice— return of bonds, p. 598. answer — interrogatories, etc., p. 599. Money, attachment of, by garnishment, 329 (p. 10). in hands of receiver, secure from attachment, 424 (p. 196). debt from garnishee to defendant payable in, 452, Montana, statutes relating to attachment, pp. 602-605. actions in which will lie — affidavit — bond, p. 602. execution — delivery bond, p. 603. INDEX. 777 Montana — Continued. garnishment, ])p. 604-605. Mortgage, of chattels jmor to garnishment of party in possession, § 440. recording of, generally required, 440 (p. 231). of real estate, waste under, trees severed, 440 (p. 233). Motion, objection to answer raised by, 390. Municipal corporations, as garnishee, 345. exempt from garnishment, 419. debts contracted by, not garnishable, 447, 454. Nebraska, statutes relating to attachment, pp. 606-6LL by direct levy, p. G06. execution and return, p. 607. disposition of attached property, p. 607. proceedings, p. 60S. general provisions, p. 610. in certain actions, p. 611. garnishment in certain actions, p. 611. Negligence, garnishee not protected from consequences of his own, 374 (p. 90), 522. not permitted to file answers to overcome, 383 (p. 107). Negotiable instruments, garnishee's indebt dness evidenced by, 458-464. maker of, as garnishee — indorsee not bound by judgment, 458. cannot be reached — reason of the rule, 459-460. condition, garnishment of, 461. where instrument fraudulently assigned, 462. effect of notice on right of indorsee, 463. by what law negotiability determined, 468. overdue, cease to be protected, 460. Nevada, statutes relating to attachment, pp. 612-615. direct levy, p. 612. issue of writ — affidavit — bond, pp. 612-613. execution — garnishment, p. 613. perishable property — discharge — bond, pp. 614-615. New Hampshire, statutes relating to attachment, pp. 615-619. property subject to^exemptions, pp. 615-616. real estate, p. 616. perishable and immovable property, etc., p. 617. eustody of property — reple\'y, etc., bonds, p. 618. in equity, p. 619. New Jersey, statutes relating to attachment, pp. 620-628. when and against whom issued, p. 620. effect of writ and mode of execution, pp. 621-622. appearance by defendant, pp. 623-624. proceedings on return — auditor and his duties, pp. 625-627. proceedings against garnishee, pp. 627-628. general provisions, p. 628. New Mexico, statutes relating to attachment, pp. 629-634 by direct levy, p. 629. affidavit and bond, p 630. service and return, p. 630. form of affidavit and bond, p. 632. New York, statutes relating to attachment, pp. 634-643. cases where will issue, and proceedings, p. 634. executing warrant pending the action, p. 635. vacating or m.idifying the warrant, p. 639. two or more warrants against the same defendant, p. 641. proceedings after judgment, warrant vacated, etc., p. 642. Non-residence of garnishee alleged in answer, taken as true when not trav- ersed, 392 (p. 121). Non-resident as garnishee, 344, 359 (p. 63), 402 (p. 145). possession of defendant's property by, 413. North Carolina, statutes relating to attachment, pp. 644-648. actions in which warrant will be granted, p. 644. affidavit, p. 644. 778 INDEX. North Carolina — Continued. publication of summons, p. 6441 bond, p. 645. execution and return, p. 645. judgment and satisfaction, p. 647. Notes and bills, negotiable, §§ 458-464. (See Negotiable Insteuments). imjjoundiug to prevent negotiation, 460 (p. 267). when negotiable, assignable under law merchant,. 466. overdue, negotiable in form, 467. Notice, served on garnishee, 357. on private corporations, 360. omission of service of, renders judgment void. 361. service of, waived by garnishee, 361. by defendant, 362. of assignment of choses in action, necessary, 371, 410 (p. 162),^ 471. when and by whom given, 472. from plaintiff of dissatisfaction with answer, 392. in absence of contracting party, not required to anticipate garmshment, 399 (p. 136). of assignment of chose in action, effect of, 402. of transfer of title to property, effect of, and consequences of failure to give, 436. claimants required to appear, 435. of transfer of title to prox^erty, to whom given by garnishee, 436^ of garnishee, effect of, on rights of indorsee of negotiable paper, 463. Nulla bona, plea of scire facias — what may be shown under, 403. Objections, which garnishee may waive, 399 (p. 137). Officer, of court in possession of property, 330 (p. 13). as garnishee, 347. of private corporation as garnishee, 3S4, 385, 429. garnishment of, does not bind corporation, 660. service on, sufficient, 360 (p. 66). return of, of service of j^rocess, 363. of corporation who may answer when company garnished, 384 (p, 109). of the state exempt from garnishnsent, 418 (p. 181), 454. of the law exempt from garnishment, 420, 421, 454. public, who holds property exempt from garnishment, 422, 423, 424, 454. Ohio, statutes relating to attachments, pp. 649-654. grounds of, p. 649. how obtained — affidavit and bond, p. 649. execution and return, p. 650. disposition of attached property, p. 651. proceedings — delivery bond — garnishment, p. 652, general provisions, p. 653. supplementary provisions, p. 653. before debt due, p. 654. Onus probandi, rests upon plaintiff, 380, 381, 397, 435. on garnishee as to trusts under which he holds, 397. on plaintiff to disprove assignment, 434 (p. 222). on garnishee as to affirmative matter of defense, 520 (p. 387). Open accounts, assignment of, 469. Order, acceptance of, and notice of garnishment served, priority between, 371 (p. 84). Oregon, statutes relating to attachment, pp. 655-658. actions in which will issue, p. 655. affidavit and bond, p. 655. execution and return — property personal and real, p. 656» garnishment, p. 657. Overdue commercial paper, assignable by indorsement, 467. Ownership, of jjroperty in garnishee, 393. when held with claim of, 414. INDEX. 779 Parties, necessary to proceeding, §§ 326, 330, 447. garnishee may be opposed to both principals, 337. to hearing on tiaverse — defendant, 395. interested in claim to be set off against defendant's demand against garnishee, 514. to the proceedings, 340-355. their relation to each other, 340. the third — debtors and parties in possession of deiendanf a property, 341. priv^ate corporations, etc., as garnishees, 342. foreign corporations, 343. non-residents, 344. municipal corporation, 345. state, exemption of, .346. officer of court as, 347. officer of private corporation, 348. agent or servant of debtor, 349. wife of defendant, 350. debtors and partners, .^51. judgment debtors, 352. whether joint or several, 353, 486-491. intervenors, 354. Partner, as garnishee of co-partner, 351. generally, 353. service on, 359 (p. 64). Pamership, attachm:;nt of interest of member of, by garnishment, 334 (p. 21) 351. affairs unsettled, no attachable demand can arise from, 335 (p. 23), 351 (p. 51). service on, in action against firm creditors of, 353. property, assignment of, for benefit of creditors of one memberj effect of, 427 (p. 227). credits, 490. Payment, prior to service, a good defense, 403, 508, 507, 510-512. contracts of, in peculiar manner, undisturbed by garnishment, 444. from garnishee not required until debt payable, 4S5. of judgment against garnishee, what sufficient to satisfy debt, 507. (See Satisfaction.) as a defense to defendant's cause of action, 510-512. Pennsylvania, statutes relating to attachment, pp. G58-670. of the writ, p. G58. service and return, p. 659. subsequent proceedings, p. 660. dissolution, p. 660. Domestic attachment, pp. 660-664. writ and proceedings thereon, p. 660. appointment of trustees, and their powera and duties, p. 662L distribution among creditors, p. 664. Foreign attachment, pp. 665-666. the writ, p. 665. of interest in decedent's estate, p. 665. service, p. 665. on garnishees — on real estate, p. 666. garnishment, p. 666. effect of attachment, p. QQQ. judgment and process against garnishee, p. 666. execution, p. 667. dissolution, p. 668. proceedings on attachment of real estate, p. 668. when one of several defendants liable, p. 669. Pension, money due for, exempt from execution, 409. Persons, corporations considered as, 342. Plaintiff, one of the parties to garnishment proceeding, 326. liability of garnishee to, 327. depends on cause of action, and cause of attachment, 327. 780 INDEX. PlaintiE —Continued. when garnishee opposed to, § 337. in garnishment takes place of defendant, 340. in attachment as garnishee, 341, 457. Pleading, garnishee's answer considered as a, 364. to raise issues on answer, 392. in United States courts, p. 417. Pledge, of personal prcjperty, rights secured by, unaffected, 330, 414 (p. 169), 441. subsequent to service, ineffectual, 338 (p. 28). Possession, validity of garnishment does not depend on officer's taking, 325. of defendant's property as an element of garnishee's liability, 327, 337, 410. of propei-ty by defendant will not support garnishment, 330. of defendant's property need not bo under contract, 337, 410. loss of, does not defeat garnishee's lien, 338. may be held by garnishee pending proceedings, 338 (p. 28). in general must be at date of service, 338 (p. 30). denial of, as defense, 403. exempt from execution, garnishee not liable for, 409. immaterial how acquired, 410 (p. 162), 41.3. upon which garnishee's liability depends, 411—416. whether actual or constructive, 411. actu d control more important than legal control, 412. by non-resident garnishee, 413. whether with claim of ownership or not, 414. whether rightful or otherwise, 415. question of defendant's interest in or title to, 416. Practice, in United States courts, p. 417. Practice and pleading, to raise issues on answer, 392. Priority, as between garnishors and other claimants, 338 (pp. 30, 31). gained by prior service, 359. as between garnishors and judgment creditors of defendant, 382 (p. 104), 497-499, 500-508, 512. as between courts in acquiring jurisdiction of subject by action, 494. Privileged communications, not required to be disclosed in garnishee's an- swer, 376. Privity, of contract and interest necessary to bind garnishee, 416 (p. 173). between debtor and guarantor, 434, (p. 219). Process, in garnishment, distinguished from seizure, 325. regularity of, judgment depends on, 336. preliminaries to affidavit and bond, 356. primary object of, and how styled, 357. amendment of, 358. service of — co-debtors — partners, 359. on corporat'ons, 360. waiver of, by garnishee, 361. by defendant, 362. officer's return, 363. to bring in claimant of property attached, 435. compulsory, payment under, necessary to constitute defense, 512. Pro confesso, interrogatories taken, when answers not explicit, 377. Property, the possession of which sustains garnishment, is personal, 327 (p. 6), 329. character in which held by garnishee after service, 331. need not be held under contract with defendant, 337. Real estate, possession of, no cause for garnishment, 329, 407. Receiver, of court, not required to answer as garnishee, 424. Recital, of acts of officer, required in return, 363. Record, interrogatories and answer pai't of, 364 (p. 73). in principal case, evidence on trial of traverse, 396 (p. 130). Regularity of process, judgment dependent on, 336. Relevancy, of interrogatories propounded to garnishee, passed on by court, 370 (p. 82). i INDEX. 781 Removal of causes, from state to United States court — statutes, p. 417. Rent, to become due in future, cannot be recovered by garnishment, § 449 (p. 249). Replication, to answer of garnishee, in Missouri, 392. Representations, by which garnishee may be estopped, .384. Representatives, personal, of decedent, as garnishees, 404, 425, 455. Residence, of garnishee within state, as it affects jurisdiction, 344. Res judicata, judgment in garnishment is, 528. Retrospective, garnishment not, in its operation, 338 (p. 30). exemption law not, 395 (p. 127). Return, day of process, service after, ineffectual, 336 (p, 24). errors in fixing may be corrected, 336 (p. 24). of service of j)rocess, rerj^uisites of, 363. may be amended, 363 (p. 70). error in, waived by appearance, 363 (p. 71), day of execution, sheriff cannot be garnished prior to, 421 (p, 187,) Rhode Island, statutes relating to attachments, pp. 670-677. original writ, form, etc, p. 670. mesne process, p. 671. writ of replevin, 671. scire facias, p. 671. service of writ of attachment, p. 672. upon non-resident guardians, etc. , p." 674. general provisions relating to, p. 674. certain provisions, priority, etc. , p. 674. amendments to, p. 676. foreign attachments to action, ex delicto, p. 677. Satisfaction, of judgment against garnishee whether necessary to defense, 502 (p. 354). effect of as a bar to further action against garnishee, 503, 504. manner of, to constitute a bar, 506. Scire facias, examination under, doubtful answers construed against gar- nishee, 377. to raise issues on answer, 392, 525. Seizure, garnishment distinguished from attachment by, 325. of attachable property may be by breaking open trunk, etc., 333. Servant, of debtor, when and when not liable as garnishee, 330, 349. Service, garnishee held liable for effects or credits in possession at time of, 333. of notice must be regular, 336 (p. 24), .359, 363. when may be by voluntary acceptance, 336 (p. 25). relations between principals prior to, unaffected, 338 (pp. .29, 30). of summons on joint debtors, 353, 359 (p. 63), 523 (p. 394). amendment of writ after, 358. on private corporations, 360. waiver of by garnishee ineffectual to bind defendant, 361. by defendant effectual, 362. ofi&cer's return of, what it should show, 363. errors in waived by appearance, 363 (p. 71.) indebtedness at time of, or prior to answer, 483. Set-off, in favor of garnishee fully stated in answer, 375 (p. 91). in garnishee's favor as defense to defendant's cause of action, 513-518» claim considered as to parties interested, 514. character of demand, whether legal or equitable, 515. collateral liability, 516. when should be acquired, 517. whether due or to become due, 518. Sheriff, may reclaim as trustee money deposited in his own name, 416, (p. 174). Situs, of personal property, as it affects jurisdiction, 344 (pp. 40, 41), 402 (p. 145), 486. Schedule, to accompany officer's return, 363 (p. 70). Soldiers, pay of cannot be stopped by garnishment of paymaster, 422. South Carolina, statutes relating to attachment, pp. 677-681. actions in which will lie, p. 677. 782 INDEX. South Carolina — Continued. warrant, affidavit and bond, p. 678. execution and return, p. 678. property attachable, p. 679. indemnity and dissolution, p. 680. Stakeholder, garnishee regarded as a, §§ 326, 331, 340, 389. State, exempt from process of garnishment, 346, 418, 454. exemption law of, where suit pending governs, 373, 409 (p. 161.) officers of, exempt from garnishment, 418 (p. 181), 454. where instrument made controls its negotiability, 464. Statute, garnishment i^roceeding wholly regulated by, 333, 398. of limitations set up in garnishee's answer, 379. exempting property in. force at date of grant, governs, 395 (p. 127.) actions in name of assignee of chose in action, authorized by, 465. Statute of frauds, will not avoid garnishee's liability for defendant, against which he holds indemnity, 375 (p. 93). Statutes, of different states and territories, relating to attachment, pp. 417- 725. (See name of state or territory in question.) Stay, of proceedings in suit subsequent to garnishment for same demand, 501. Stock, shares of, how owners' interest in reached on execution or attachment, 408. Stockholders, of corporation, as garnishee when corporation defendant, 342. Stranger to suit not affected by judgment on the answer, 3S0 (p. 101). Sufficiency, of answer, exceptions taken to, 387, 390. Suit, garnishment a, 332, 350. pendency of prior, as defense to garnishment, 382. Summons, defects in, how reached, 357. service of in garnishment, 359-362. on co-debtors — partners, 359, 399 (p. 137). ■ on corporations, 360. waiver of, by garnishee, 361. by defendant, 362. Taxes, due and unpaid, do not create a debt to be set-ofi!, 513. Tender, as a discharge of garnishee from liabihty, 519. Tennessee, statutes relating to attachment, pp. 681-687. for what causes, in whose favor, by whom granted, and where return- able, p. 681. mode of suing out, p. 682. garnishment, p. 683. levy of, p. 684. replevy of attached property, p. 685. Texas, statutes relating to attachment, pp. 637-694 original attachment, p. 687. issuing writ — affidavit, p. 687. bond, p. 688. form of writ, p. 688. - levy of return, p. 689. garnishment, p. 690. form of writ — answer, p. 691. commission to another county, p, 692. Third parties, garnishees styled as, 341. Time, of service, importance of, in fixing garnishee's liability, 338 {pp. 30, 31), 359. within which answer must be made, 388. may be extended for cause, 388, 389. of payment by garnishee, as defense to defendant's cause of actional 1. when claim acquired to be available as set-off, 516 (p. 380), 517. and place of payment when not available in defense, 520. Title, to goods, iincertainty of, will not defeat garnishment, 328 (p. 7). lien upon created by garnishment, 338. to real estate affected by answer to interrogatories, no excuse, 370. simulated or fraudulent, to real estate not attacked by garnishment, 378 (p. 98). INDEX. 783 Title — Con tinned. of gcaruishee to property, inquiry as to, §§ 393 (p. 123), 414. of defendant to property held Ijy garnishee, 416. Tort, liability f(jr, not an attachable debt, 447 (p. 244). when waived, an 1 suit will lie in assumpsit, 447 (p. 246). Transfer, of prope' ty after service ineffectual, 338, (p. 28). prior to servise garnishee unaffected, 338 (p. 30), 410. validity of depends on assent of transferrer, 416 (p. 177). attempted transfer ineffectual against creditors, 438. or incumbrance of proj^erty prior to garnishment, 432-442. the fourth party to the controversy, 432. the intervenoi-'s claim as proprietor, 433. consideration put in issue by answer, 434. issues made with the intervener, 435. garnishee's failure to give notice of, 436. eqiiitable assignment prior to service, 437. ineffectual, 438. fraudulent, 439. rights of parties affected by prior mortgage, 440. pledge as garnishee, 441. other liens, 442. Traverse, of affidavit, effect of in garnishment, 325. of answer by plaintiff, 380 (p. 100), 390 (p. 117, 393). places facts, and not garnishee's belief therein, in issue, 390 (p. 117). may be amended, 392 (p. 121). evidence on trial of, 396. Treasurers, when may not be garnished in respect to funds in possession, 422. Trial, of traverse, evidence on, 396. Trustee, when term used as equivalent to "garnishee," 325. property held not attachable, 330 (p. 14). of private trusts and powers cannot be garnished, 428. of resulting trust held as garnishee of cestui que trusty 428 (p. 209). Trustee process, same in effect as garnishment, 325. Trusts, not to be affected by garnishment, 330 (p. 14), 416, 428. should be affected by garnishee's answer, 374. illegal, no protection to garnishee, 374 (p. 90). onus of proving, on garnishee, 397, 404. when conditions of, not violated, garnishee will be held, 428 (pj). 209- 210). Truth, of answer, extent to which presumed, 380. , in issue on traverse, 393. (See Traverse. ) Uncertain, answers construed against garnishee, 377. United States, statutes relating to attachment, pp. 417-419. removal from state court, p. 417. practice, p. 417. debts or property of United States, p. 418. Unliquidated demands, not the proper subject of garnishment, 447. Utah, statutes relating to attachment, pp. 694-698. actions in which will issue, p. 694. issues of writ — affidavit and bond, p. 695. execution and return, pp. 695-696. delivery bonds, p. 697. Virginia, statutes relating to attachment, pp. 693-791. attachment and bail — affidavit, p. 698. execution and return, p. 699. bond, p. 700. garnishment, pp. 700-701. Voluntary appearance, of garnishee, ineffectual against defendant, 336. when effectual, 336 (p. 25). Voluntary association, of brokers, transactions under by-laws protected, 434 (p. 220). 784- INDEX. Wages, due defendant, exemption of, shown by garnishee'^, answer, §§ 373 395 (p. 126), 401. may be placed in issue by traverse, 397. when should be claimed by defendant, 401 (p. 141). Waiver, of process, by garnishee, ineffectual to bind defendant, 336, 361, 399. by defendant, 362. of errors in officer's return by appearance, 363 (p. 771). of certain matters to which objection might be taken, 399 (p. 137). Ward, guardian not garnished for debt of, 427. Warehouseman, liable to assignee of warehouse receipt, 445 (p. 240). Washington, statutes relating to attachment, pp. 703-707. writ, affidavit and bond, p. 703. execution, real property, p. 704. personal property, p. 704. garnishment, p. 705. ' return, p. 706. West Virginia, statutes relating to attachment, pp. 7C3-713. when and how sued out — writ and affidavit, p. 708. bond, pp. 709-710. for rent, p. 709. the lien — replevjang — keeping or selling, p. 710. garnishment, p. 711. order of publication — defense — conflicting claims, p. 711. plaintiff's bond before sale, p. 712. petition disputing plaintiff's claim, etc., p. 712, priority — rehearing after judgment, etc., p. 713. Wife, of debtor, as garnishee, 350. interest of, in decedent's estate, subjected to payment of husband's debts, 416 (p. 176), 425 (p. 199). Wisconsin, statutes relating to attachment, pp. 714^722. how issued, affidavit, p. 714. bond — how executed, p. 715. discharging, vacating or defending, p. 716. garnishment, p. 718. affidavit and summons, p. 718. garnishee's affidavit — answer, p. 719. release bond, p. 721. Witness, garnishee considered as a, 357, 381 (p. 102). Writ, or notice, several garnishees may be named in, 353. Wyoming, statutes relating to attachment, pp. 722-727. affidavit, pp. 722-723. garnishment, pp. 722-724. release bond, p. 725. answer and default, p. 725. attachment in certain actions, p. 727. ff I i jx^y KARYQ^ ^EUNIVER 1IF0% ^"^^33NVSm^'^ •^^l^DNVSOl^ ^lOSANGE[£j>. ^^tLiiiKMV6//: \NGELfj> ^OFCMIFO/?/^ :SJi3AlNf]]\^ !o:^ "^ ;=l^ ^\\^[UNIVER% ;=5!/^ -^o^ oAl-LlBRARY6^/. 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