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the case, it shall be the duty of the justice to issue a summons against each person so summoned, requiring him or her 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, and show cause, if any he or she has, why a judgment shall not be entered against him or her, for the amount of the judgment and costs against the defendant in attachment, which summons shall be served and returned by some constable of the county, and on the return day thereof, if any person so summoned shall fail to appear, the justice shall enter judgment against the person so failing to appear, for the amount of the judgment obtained against the defendant in attachment, and execution shall be issued thereon, as in other cases.
Sec. 12. If any garnishee shall appear at the time and place required by the constable as aforesaid, and shall upon oath deny all indebtedness to the defendant in the attachment, and deny having any property or effects or choses in action in his possession or power belonging to such defendant, the justice shall forthwith discharge him, unless the plaintiff in the attachment shall satisiy the justice by other testimony that the garnishee was indebted to the defendant in the attachment, or had property, effects, or choses in action in his possession or power, at the time he was garnisheed; in which case the justice shall give judgment in the premises according to the right and justice of the cause, and issue execution as in other cases.
Sec. 13. Judgments obtained under the provisions of this chapter, where the defendant has been personally served with process, or shall have appeared to the action, shall have the same force and effect as judgments obtained upon a summons; but the property attached shall be sold before any execution is issued upon such judgment, and if such property shall not sell for a sum sufficient to pay the judgment and costs, execution may be issued to collect the balance.
Sec. 14. Judgments obtained under the provisions of this chapter, when the defendant has not been personally served with process, and no appearance being entered, shall only authorize a sale of the property levied upon, and proceedings against garnishees to collect the amount thereof. Defendants in attachments issued under the provisions of this chapter, where property may be levied upon, or the person in whose possession the property may be found, may retain possession of such property upon executing a bond to the plaintiff in the attachment with good security, in a penalty of double the amount claimed by the attachment, conditioned that the property shall be delivered to any constable of the county whenever demanded, to be sold in satisfaction of any judgment which may be obtained in the attachment suit, or in case the property is not delivered, that the obligors will pay and satisfy the said judgment and costs; and when a bond shall be executed, the constable shall return the same with the attachment, and upon a breach of any condition thereof, the plaintiff shall have a right to prosecute suit thereon, and to recover the amount due upon his judgment and costs.
Sec. 15. In all cases arising under the provisions of this chapter, when two or more attachments shall be levied on the same property, or be proved on the same garnishee, and judgment shall be entered on the same day, the proceeds of the
property attached, or the money obtained from garnishees, shall be divided among the several plaintiffs in attachment, according to the amount of their judgments respectively: Provided, That when the property sought to be attached shall have been removed from the county in which the attachment issued, and shall be overtaken and returned to such county, the claim of such attaching creditor shall have priority over attachments subsequently issued.
Sec. 16. Persons summoned as garnishees, may set up the same defence in trials under this chapter, as they might against the defendant in the attachment; and may, in like manner, make any set-off against the defendant, whether the same be due or not.
Sec. 17. Whenever judgment shall have been rendered against any garnishee, and it shall appear that the debt from him to the defendant in the attachment, is not yet due, execution shall not issue against him until twenty days after the same shall become due: Provided, The plaintiff may swear out execution as in other cases, after said debt becomes due.
Soc. 18. Any garnishee having effects of the defendant in his hands, may, by delivering the same, or any part thereof to the constable, and taking his receipt therefor, be discharged from his liability respecting such effects so delivered.
Sec. 19. When two or more persons not residing in this State, are jointly indebted, either as joint obligors, partners or otherwise, the writ or writs of attachment may be issued against the separate and joint estate of such debtors, or any of them, either by their proper names, or by, or in, the name or style of the partnership, or by whatever other name or names such joint debtors shall be generally reputed, known or distinguished in this State, or against the heirs, executors or administrators of them or either of them; and the goods, chattels, rights, credits and effects of such debtors, or either or any of them shall be liable to be seized and taken for the satisfaction of any just debt or other legal demand, and may be sold to satisfy the same.
Sec. 20. The right of property may be tried, and appeals taken in all cases arising under this chapter, in the same manner, as when property is taken on execution, or judgment rendered in ordinary cases.
Sec. 21. The affidavit required in the first section of this chapter may be sworn to in the manner prescribed in section thirty-two of chapter nine of the Revised Statutes.
Sec. 22. This chapter shall be construed in all courts in the most liberal manner for the detection of fraud.
Sec. 23. The provisions of chapter one of the Revised Statutes shall apply as well to suits in attachment, as to other cases.
APPROVED: March 3, 1845.
ATTACHMENTS IN CIRCUIT COURTS.
tents; writ may issue; against what pro
perty. 2. Form of writ. 3. Oficer to execute writ; on what property; to
what amount; may pursue and retake property; personal service of writ on defendant; return of writ.
davit to be filed; when writ void.
titles, &c., valid; proceedings may be had
against heirs, &c., of deceased persons. 8. Want of form not fatal, if amended; writ quash
ed, if, on trial had, issue be for defendant.
be given for its forthcoming; then, to be res
tored. 10. If bond forfeited, may be assigned to plaintiff; or
judgment may be against the sheriff'; remedy
of sherift. 11. Proceedings against sheriff, when he fails to re
turn sutficient bond. 12. When sufficient property is not found, sheriff
to summon garnishees. 13. When defendant is not personally served, pub
lication to be made ; defendant not required to
contents of notice; if defendant appear and
to be jold; judgment aguinst garnishee; effect
thereof. 16. Conditional judgment, when to beentered against
garnishee; sci. fa. to issue; further proceedings. 17. When judgment is had against garnishee and his
debt w defendant is not due, execution stayed;
no judgment on negotiable instruments not due. 18. Plaintiff may file interrogatories and compel gar
nishee to answer; duty of garnishee. 19. If garnishee does not make true return, trial to
be had; judgment in such case and its effect. 20. Testimony of non-resident witnesses, how taken. 21. Other parties interested, may interplead; trial
of right of property.
on appearance and trial.
replevied; money, how applied. 24. When live stock is attached, it may be fed; sher
ift's compensation therefor. 25. Defendant may be allowed to set off claims against
plaintiff; garnishee may be allowed to set off
claims against both. 26. When several judgments at same time, creditors
to be paid out of etfects, pro rata; proviso, credi
tor retaking removed property has preference. 27. Attachments may be served on Sunday, in cer
tain cases. 28. Either party may have appeal or writ of error;
may try the right of property. 29. Plaintiff desiring return of property, to give
bond for payment of judgment; attachment to be dissolved and property restored, and all pro
ceedings set aside. 30. Plaintiff may have writ of attachment pending a
suit at law, in aid thereof. 31. When writ issues to other county, sheriff
thereof shall levy and return as in other cases. 32. Before what officer atfidavit shall be sworn to;
when sworn to out of State, how authenticated. 33. Non-resident joint debtors, proceedings against;
whose property liable in such cases.
tection of fraud.
SECTION 1. If any creditor, his agent or attorney shall file an affidavit in the office of the clerk of the circuit court of any county in this State, setting forth that any person is indebted to such creditor, in a sum exceeding twenty dollars, stating the nature and amount of such indebtedness as near as may be, and that such debtor has departed, or is about to depart from this State, with the intention of having his effects removed from this State; or is about to remove his property from this State, to the injury of such creditor ; or that such debtor conceals himself, or stands in defiance of an officer, so that process can not be served upon him; or is not a resident of this State, it shall be lawful for such clerk to issue a writ of attachment, directed to the sheriff of his county, returnable like other writs, commanding him to attach the lands, tenements, goods, chattels, rights, credits, moneys and effects of said debtor, of every kind, or so much thereof as will be sufficient to satisfy the claim sworn to, with interest and costs of suit, in whose hands or possession the same may
be found. Sec. 2. The writ of attachment required in the preceding section shall be substantially in the following form: “ The people of the State of Illinois, to the sheriff of
county, greeting : Whereas, A. B. (or agent or attorney of A. B. as the case may be,) hath complained on oath (or affirmation) to clerk of the circuit court of county, that C. D. is justly indebted to the said A. B. to the amount of
and oath (or affirmation) having been also made, that the said C. D. resides out of this State, or absconds, or conceals himself or herself, or stands in defiance of a civil officer authorized to arrest him or her with civil process, so that the ordinary process of law can not be served upon him, or is about to depart this State with intention to have his effects and personal estate removed without the limits of the same, or has left the State with the intention of having his effects and personal estate removed therefrom (as the case may be) and the said having given bond and security according to the directions of the act in such case made and provided: We there
attach so much of the estate, real or personal, of the said C. D. to be found in your county, as shall be of value sufficient to satisfy the said debt and costs according to the complaint : and such estate so attached in your hands to secure, or so to provide, that the same may be liable to further proceedings thereupon, according to law, at a court to be holden at for the county of
next, so as to compel the said C. D. to appear and answer the complaint of the said A. B., and that
as garnishee, to be and appear at the said court on the said
next, then and there to answer to what may be objected against him, when and where you shall make known to the said court how you have executed this writ, and have you then and there this writ. Witness, clerk of the said court, this
in the year of our Lord,” &c., which attachment shall be signed by the clerk, and the seal of the court affixed thereto.
Sec. 3. Such officers shall, without delay, execute such writ of attachment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, of sufficient value to satisfy the claim sworn to, with costs of suit, as commanded in said writ. If the defendant, or any person for him, shall be in the act of removing any personal property, the officer may pursue and take the same in any county in this State, and return the same to the county from which such attachment issued. He shall also serve said writ upon the defendant therein if he can be found, by reading the same to him or delivering a copy thereof. The return to such writ shall state the particular manner in which the same was served.
Sec. 4. Every clerk before granting an attachment as aforesaid, shall take bond and security from the party for whom the same shall be issued, his or her agent or attorney, payable to the defendant in double the sum sworn to be due, conditioned for satisfying all costs which may be awarded to such defendant, or to any others interested in said proceedings, all damages which shall be recovered against the plaintiff for wrongfully sueing out such attachment; which bond, with affidavit or affirmation of the party complaining, his or her agent, or attorney, shall be filed in the office of the clerk granting the attachment. Every attachment issued without a bond and affidavit taken and returned as aforesaid, is hereby declared illegal and void, and shall be dismissed.
Sec. 5. The condition of the bond required in the preceding section, shall be substantially in the following form:
“ The condition of this obligation is such, that whereas the above bounden hath, on the day of the date hereof, prayed an attachment out of the circuit court of said county, at the suit of against the estate of the above named for the sum of
and the same being about to be sued out of said court, returnable on the day of next, to the term of the court then to be holden: Now if the said shall prosecute his suit with effect, or in case of failure therein shall well and truly pay and satisfy the said all such costs in said suit, and such damages as shall be awarded against the said his heirs, executors or administrators, in any suit or suits which may hereafter be brought for wrongfully sueing out the said attachment, then the above obligation to be void, otherwise to remain in full force and effect.”
Sec. 6. In all cases where two or more persons are jointly indebted, either as partners or otherwise, and an affidavit shall be filed as provided in the first section of this chapter, so as to bring one or more of such joint debtors within its provisions, and amenable to the process of attachment, then the writ of attachment shall issue against the property and effects of such as are so brought within the provis
ions of this chapter; and the officer shall be also directed in said writ to summon all such joint debtors as may be named in the affidavit filed in the case, to answer to the said action, as in other cases of attachment.
Sec. 7. It shall be sufficient in all cases of attachment, to designate defendants 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 known; and heirs, executors and administrators of deceased defendants shall be subject to the provisions of this chapter, in all cases in which it may be applicable to them.
Sec. 8. No writ of attachment hereafter to be issued shall be quashed, nor the property taken thereon restored, nor any garnishee discharged, nor any bond by him given cancelled, nor any rule entered against the sheriff discharged, on account of any insufficiency of the original affidavit, writ of attachment or attachment bond, if the plaintiff, or some credible person for him, shall cause a legal and sufficient affidavit or attachment bond to be filed, or the writ to be amended in such time and manner as the courts shall in their discretion direct; and in that event the cause shall proceed as if such proceedings had originally been sufficient : Provided, That in case any plea in abatement traversing the facts in the affidavit shall be filed, and a trial shall be thereon had, if the issue shall be found for the defendant, the attachment shall be quashed.
Sec. 9. The officer serving the writ, shall take and retain the custody and possession of the property attached, to answer and abide by the judgment of the court, unless the person in whose possession the same may be found, shall enter into bond and security to the officer, to be approved by him, in double the value of the property so attached, with condition that the said estate and property shall be forthcoming to answer the judgment of the court in said suit. The sheriff shall return such bond to the court in which the suit is brought, on the first day of the term to which such attachment is returnable.
Sec. 10. If such bond shall be forfeited, the sheriff may assign such bond to the plaintiff in the attachment, by a writing thereon, under his hand, in the presence of two or more credible witnesses, and after such assignment the plaintiff may bring a suit in his own name thereupon. If the plaintiff will not accept such assignment of such bond, and the court shall adjudge such security insufficient, such sheriff shall be subject to the same judgment and recovery, and have the same liberty of defence as if he had been made defendant in the attachment, unless good and sufficient security shall be given, and bond filed during the term of the court to which such attachment is returnable, at which term the objections to the sufficiency of the security taken, shall be made to entitle the party sueing out the attachment, to proceed against the sheriff; and execution may issue thereupon as in other cases of judgment. And whenever the judgment of the plaintiff, or any part thereof, shall be paid or satisfied by any such sheriff, he shall have the same remedy against the defendant for the amount so paid by him, as is now provided by law for bail against their principal, where a judgment is paid or satisfied by them.
Sec. 11. If the sheriff shall fail to return a bond taken by virtue of the provisions of this chapter, or shall have neglected to take one when he ought to have done so, in any attachment issued under any provisions of this chapter, the plaintiff in the attachment may cause a rule to be entered at any time during the first two days of the term, to which the writ is returnable, requiring the said sheriff to return the said bond; in case no bond has been taken, to shew cause why such bond was not taken.