condition. sum to be attached, payable to the defendant, for satisfying and Form of the paying all costs which may be incurred by the defendant, in case the plaintiff suing out such attachment shall discontinue or be cast in his suit, and also all damages which may be recovered against the said plaintiff for suing out the same; which bond shall be returned to the court to which such attachment may be made returnable on or before the last day of the term; and the party entitled to such cost and damages may bring suit, and recover thereon; and every attachment issued without such bond taken, or where no bond shall be returned as aforesaid, is hereby declared to be illegal, and shall be dismissed with costs: Provided always, that every attachment which may be issued, as aforesaid, shall be attested by the judge of the superior, or jus- How attested. tice of the inferior court, or justice of the peace, issuing the same, and be by the sheriff, or person authorized to serve the same, publicly advertised at the court-house of the said county, Advertised at least thirty days before the sitting of the court; and if any thirty days. attachment shall be issued within thirty days of the next court, such attachment shall be made returnable to the court next after the expiration of the said thirty days, and not otherwise; and all attachments issued and returned in any other manner than is Informal atherein-before directed, shall be, and the same are declared to void. be null and void; and all goods, chattels, lands, and tenements, subject to such attachments, shall be repleviable by appearance Replevy. and putting in special bail, or by the defendant's giving bond, with good and sufficient security, to the sheriff, or other officer serving the same; which bond he is hereby empowered to take, compelling the defendants to appear at the court to which such attachments shall be returnable, and to abide by and perform the order and judgment of such court: Provided always, that all goods and effects attached and not replevied, as aforesaid, where the same shall appear to be of a perishable nature, on motion of Perishable the plaintiff, or his attorney, the court, or, if not in term time, be sold by orthe judge of the superior, or any two or more of the justices of der of court. the inferior court, may, and are hereby authorized and required to order a sale of such perishable property; and the moneys arising from such sales shall be deposited in the clerk's office by the sheriff, or other officer selling the same, to answer the demands of the plaintiff, if established, and the balance, if any, after satisfying such demands and costs, shall, by order of the said court, be returned to the defendant or his attorney. tachments property may after return, 3. Sec. III. If any attachment shall be returned executed, Proceedings and the property attached shall not be replevied, as aforesaid, the where there subsequent proceedings thereon shall be the same as on original is no replevy. process against the body of the defendant, where there is a default of appearance ;* and all such goods and chattels, lands and tenements, not replevied, shall, after the plaintiff has established his demand, be, by order of the court, sold and disposed of, for and towards the satisfaction of the plaintiff's judgment, in the like manner as if the same had been taken under execution; and where any attachments be returned, served in the hands of a third person, it shall be lawful, upon his appearance and exami- Ahlust gar * And sec. 13 and 18. nishees. nation, in the manner heretofore directed, to enter up judgment as against the original debtor, and award execution against such third person for the moneys due by him to the absent debtor, and against such property or effects as may be in his hands or keeping, belonging to such debtor, or so much thereof as will be of value sufficient to satisfy the judgment and costs thereon. 4. Sec. IV. Where an absent debtor hath property lying in ors in differ- different counties, the same shall be liable to attachment, and an original and copies shall issue for each county where the property may be found; the whole to be returnable to the court from whence the first original issued.* Property of absent debt ent counties. Claims to personal pro perty attach ported and tried. Sec. V. Directing suits to be brought on debts returned by garnishees, re-enacted. [See sec. 7.] An Act to amend the foregoing-Passed November 22, 1814. WHEREAS the above recited act has been found by experience to be inadequate to the complete effectuation of the purposes intended, and to require amendment, 5. Sec. I. Be it enacted, &c. That where any sheriff or conIstable shall levy any attachment on personal property, claimed ed, how re- by any person not a party to such attachment, such person, his agent, or attorney, shall make oath to such property; and it shall be the duty of such sheriff, or constable, to return the fact of such claim to the court to which the attachment shall be made returnable; and such court shall cause an issue to be joined between the plaintiff and such claimant, and the right of property to be decided on by a jury at the same term, unless sufficient cause be shown to induce the court to continue the same : Provided, the person claiming such property, his agent, or attorney, shall give bond (to the sheriff or constable serving such attachment,) with security, in a sum equal to the amount of such attachment, conditioned to pay to the plaintiff all damages which the jury, on the trial of the right of property, may assess against such claimant, in case it should appear that such claim was made for the purpose of delay. And every juror on the trial of such claim shall be sworn, in addition to the oath usually administered, to give such damages, as may seem reasonable and just to the plaintiff, against the claimant, in case it shall be sufficiently shown that such claim was intended for the purpose of delay only; and it shall be lawful for the plaintiff to enter up judgment, and have execution against such claimant, for the amount of such verdict; and where the jury shall find the property not subject to the attachment, the claimant may enter up judgment, and have execution against the plaintiff for the costs by him incurred in establishing his claim. Land, how attached, 6. Sec. II. Land or real estate shall not be subject to be attached under or by virtue of any attachment issuing and returnable out of the county in which such land is situate; and in all cases of claims to land, levied on by virtue of any attachment, the proceedings shall be the same as those pointed out by the * But see sec. 6 and 7. preceding section for claims to other property, except that such and claimed. claim shall be returned to, and tried in the superior court of the county where the land is situate. obliged to his county. ed by the with the ment to be to the attach 7. Sec. III. No person, who may be summoned as garnishee, No garnishee shall be compelled to answer to any attachment out of the coun- answer out of ty in which such garnishee lived at the time of serving such attachment; and where any garnishee shall return that he has Debts returnin his hands a note or notes, bond or bonds, or other evidences garnishee to of debt, belonging to the absent debtor, the same shall be forth- be deposited with deposited with the clerk of the court in which the attach- clerk. ment is pending, subject to the order of said court; and after the plaintiff shall have established his demand against the absent After judg debtor, the court may, in its discretion, direct the clerk to de- turned over liver to the plaintiff, in such attachment, his agent, or attorney, ing creditor. such note or notes, bond or bonds, or other evidence of debt, or so much thereof as will be sufficient to discharge the amount of the demand which the plaintiff shall have established against the defendant, taking a receipt therefor, which receipt shall be filed with the papers appertaining to such attachment, and shall be considered as a payment to that amount; unless the plaintiff shall make it appear, that, after due diligence used by him, he was unable to collect the amount; and where the evidence so deposited is of a debt greater than the plaintiff's demand, and will not admit of division, the court shall order the same to be sued for, in such manner as will, in their discretion, best ensure recovery; and the money, when collected, to be deposited with the clerk of the court in which the attachment pended, a part to be applied to the discharge of the amount due the attaching creditor, the balance to remain subject to the future order of said court. to be made. 8. Sec. IV. No suit by way of attachment shall abate by the Parties, bow death of either party, where the cause of action would survive to the executor or administrator; but such death being suggested on the record, the cause shall proceed under the restrictions and regulations following: When a plaintiff in attachment shall die, where the the executor or administrator of such plaintiff shall, within six plaintiff dies. months after the probate of the will, and obtaining letters testamentary, or obtaining letters of administration, cause to be issued by the clerk of the court in which such attachment is pending, a scire facias returnable to the next term of the said court, giving notice of his intention to become a party in the place and stead of the deceased testator or intestate, which shall be published at the door of the court-house in the county in which such attachment is pending, by the sheriff of said county, at least twenty days prior to the term at which such scire facias is made returnable; which being done, such executor or administrator may, on motion, be made party plaintiff, and the cause proceed; and where Where the the defendant shall die, scire facias shall issue in manner afore- dies. said, immediately after the expiration of twelve months, which scire facias shall contain a notice to the legal representatives of the defendant, whether executor or administrator, of the pendency of such attachment, and of the intention of the plaintiff to proceed with the same; which, being published in like manner, it shall be lawful for the plaintiff to proceed with his attachment. defendant Property of absent debt ent counties. nation, in the manner heretofore directed, to enter " as against the original debtor, and award execution third person for the moneys due by him to the and against such property or effects as may be 1 keeping, belonging to such debtor, or so muc be of value sufficient to satisfy the judgment and 4. Sec. IV. Where an absent debtor hath ors in differ- different counties, the same shall be liable an original and copies shall issue for each co perty may be found; the whole to be r from whence the first original issued.* Sec. V. Directing suits to be broug garnishees, re-enacted. [See sec. 7.] An Act to amend the foregoing-Pas Vol. III. Claims to personal property attach ported and tried. WHEREAS the above recited act to be inadequate to the comples intended, and to require amend $ 5. Sec. I. Be it enacted, Se stable shall levy any attachme ed, how re- by any person not a party to agent, or attorney, shall m shall be the duty of such of such claim to the court returnable; and such con tween the plaintiff and si to be decided on by a cause be shown to ind tided, the person clam shall give bond (to 1) ment,) with security tachment, condition the jury, on the tri such claimant, in e. for the purpose of claim shall be sw to give such d plaintiff, against that such clair it shall be l execution a and whe , that ppear at In terms easted to manner that in justices' aments shall not entatives of the e proceed. being urts are holden, he me at which 1 terampon be made, - wir of this state, or may be pending, and », 1-7ll be bowf i for : ne ufice of the clerk enting, and publishing nd county, that such ursion in like manner, uticiary act of 1799, camy in other cases. chment årst served shall ted by the levying of an nent obtuned by any crethe utching creditor. the foregoing act as is repug remiutory of an Act, to regulate as wet massed December 18, 1816. -:ent hereafter sued out, the pro→ it to the person or persons against ve issued, upon the defendant or stirent security to the officer serv ie the debt or demand for which been issued and granted:* or the my nie bis, her, or their defence of the attoching creditor, or credie same refence as if the property attached wars s, or are removing, or about to remove, 298 d 28 stite, in turment may issue against seg tugone, de debtors; but the defendant may where a person or persons has been in court. A surety, who is sued on the tachment a note, obligation, or other instrument compelled to pay off the same by legal has paid, or by being called on by the person or per- contract, may obligation, or other instrument in writing; have an atsuit is pending upon any such note, obliga- against the in writing, against the principal, and security principal. gainst either or any of them; and in cases obligation, or other instrument, to which there yor securities, is, or are not due, and the prin- is not due. debtors, in any such case, is or are removing, or Or if the debt been paid. t to remove, or have removed without the limits of any county; and oath being made by the security or s, her, or their agent, or attorney, in fact or at law, , and of his, her, or their liability on said note, obliother instrument in writing, and that his, her, or their 11s, or are removing, or about to remove, or have rewithout the limits of this state, or any county therein, hment may issue against the property and effects of such pal debtor or debtors, in favour of such security or secu; and in cases where the debt has been paid by such How to proceed to judg Purity or securities before the issuing such attachment, the men where d security or securities shall be authorized to proceed to the debt has dgment on such attachment, and to recover judgment for the amount to which the person suing out such attachment is entitled ; and in case of suing out such attachment by a security or secu- Where the rities, in a case where a suit or suits may be pending, as afore- due, or is in said, or on a demand where the note, obligation, or other instru- suit. ment of writing, is not due, such security or securities shall have alien upon the property and effects of the principal attached until such property is replevied, or the principal debtor or debtors shall give good and sufficient security to the person suing out such attachment, his, her, or their agent, or attorney, in fact, or at law, for the payment of such note, obligation, or other instrument of writing, when it may or shall become due, or at the termination of said suit or suits; and in case the property shall Establishnot be replevied, the person attaching shall be admitted to pro- plaintiff's de ceed to establish his demand as though the debt was due, or the mand. debt is not ment of |