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If the said sheriff shall not return the said bond within one day thereafter, or shew legal and sufficient cause why the said bond had not been taken, judgment shall be entered up against him for the amount of the plaintiff's demand, with costs of suit; execution may thereupon issue for the same, whenever judgment shall have been entered against the defendant in the attachment.
Sec. 12. When the sheriff shall be unable to find property of any defendant, sufficient to satisfy any attachment issued under the provisions of this chapter, he is hereby required to summon all persons within his county, whom the creditor shall designate, as having any property, effects, or choses in action, in their possession or power belonging to the defendant, or who are in any wise indebted to such defendant, to appear before the court to which the writ is returnable, on the return day of the attachment, then and there to answer upon oath, what amount they are indebted to the defendant in the attachment, or what property, effects or choses in action he or she had in his or her possession or power, at the time of serving the attachment. The person or persons so summoned, shall be considered as garnishees, and the sheriff shall state in his return, the names of all persons so summoned, and the date of service on each.
Sec. 13. When any attachment shall be issued out of the circuit court and levied or served on a garnishee, it shall be the duty of the sheriff to return the same if required by the plaintiff, and on return thereof, the clerk shall give notice for four weeks successively in some newspaper published in this State, most convenient to the place where the court is held, of such attachment, and at whose suit, against whose estate, for what sum, and before what court the same is pending, and that unless the defendant shall appear on the return day of such writ, judgment will be entered, and the estate attached will be sold: Provided, That in case of foreign attachment, if sixty days shall not intervene between the first insertion of such notice, and the first term of the court, then the cause shall be continued until the next term of the court. Any defendant in attachment may appear and plead, without giving bail or entering into any bond.
Sec. 14. On the return of any writ of attachment against a defendant, it shall be the duty of the clerk of the court in which the suit is pending, to give notice for four weeks successively in some newspaper published in this State, most convenient to the place where the court is held, of such attachment, and at whose suit, against whose estate, for what sum, and before what court the same is pending; and that unless the defendant shall appear, give bail, and plead within the time limited for his or her appearance in such case, judgment will be entered, and the estate so attached will be sold. If the defendant appear, put in sufficient bail, and plead as aforesaid, his estate so attached shall be liberated, and the garnishee or garnishees, if any, discharged.
Sec. 15. If any attachment as aforesaid shall be returned executed, and the estate attached shall not be replevied, or defence shall not be made as this chapter directs, the plaintiff shall be entitled to judgment for his whole debt and costs, having established the existence of such debt, by legal testimony, and may thereupon take execution for the same according to law, as provided in other cases in debt. All the estate attached and not replevied, shall be sold for, and towards satisfying the plaintiff's judgment in the same manner as such property is required to be when taken in execution on a writ of fieri facias. Where an attachment shall be returned served in the hands of any garnishee, it shall be lawful upon his or her appearance and examination in the manner as is by this chapter directed to enter up judgment and
award execution against every such garnishee, judgment having been first entered against the original debtor, for all sum or sums of money due from him or them, to the defendant in the attachment, or in his, her, or their custody, or possession, for the use of such original debtor, or so much thereof as shall be of value sufficient to satisfy the debt and costs of the complaint. All goods and effects whatsoever in the hands of any garnishee or garnishees belonging to such defendant, shall also be liable to satisfy such judgment.
Sec. 16. Where any garnishee shall be summoned by the sheriff or other officer in the manner aforesaid, and shall fail to appear and discover on oath or affirmation, as by this chapter, is directed, it shall be lawful for the court, after solemnly calling the garnishee, and such court is hereby authorized and required to enter a conditional judgment against such garnishee, and thereupon a scire facias shall issue against such garnishee, returnable to the next term of the court, to shew cause if any, he have, why final judgment should not be entered against him upon such scire facias being duly executed and returned ; if such garnishee shall fail to appear, accordingly, and discover on oath or affirmation in the manner aforesaid, the court shall confirm such judgment and award execution for the plaintiff's whole judgment and costs, and if upon the examination of any garnishee, it shall appear to the court that there is any of the defendant's estate in the hands of any person or persons who have not been summoned, such court shall, upon motion of the plaintiff, grant a judicial attachment, to be levied upon the property in the hands of such person or persons having any of the estate of the defendant in his or their possession or custody, who shall appear and answer, and be liable as other garnishees. When any garnishee shall deliver to the sheriff all the goods, chattels and effects whatsoever, found or confessed to be in his or her possession belonging to the defendant, or any part thereof, the same shall be received in discharge of so much of the judgment as the same shall be appraised to by the jury aforesaid, who shall enquire and return the value thereof, according to the evidence which may be submitted to them relative thereto.
Sec. 17. Whenever judgment shall be 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 ; nor shall judgment be rendered against a garnishee, for a debt founded on a negotiable instrument, unless the same shall be due at the time of rendering the judgment.
Sec. 18. If any such writ of attachment shall be served as aforesaid, it shall and may be lawful for any such plaintiff at any time during the return term of the said court, to prepare, exhibit and file, all and singular such allegations and interrogatories in writing, upon which he or she shall be desirous to obtain, and compel the answer of any and every garnishee, touching the lands, tenements, goods, chattels, moneys, credits and effects of the said defendants, and the value thereof, in his, her or their possession, custody or charge, or from him, her or them, due and owing to the said defendant at the time of the service of the said writ, or at any time after, or which shall or may thereafter become due; and it shall be the duty of each and every such garnishee, to exhibit and file under his oath or affirmation, on or before the third day of the next succeeding term, full, direct and true answers to all and singular the allegations and interrogatories by the said plaintiff supported, exhibited and filed, in the manner herein before directed and described.
Sec. 19. Whenever the plaintiff in any attachment shall allege, that any garnishce summoned in such attachment, hath not discovered the true amount of debts due
from him to the defendant, or what goods and chattels belonging to the defendant, are in his or her possession, the court shall direct, without the formality of pleading, a jury to be empannelled immediately, (unless good cause be shown by either party for a continuance,) to enquire what is the true amount due from such garnishee to the defendant, and what goods and chattels are in his possession, belonging to the defendant. Upon such examination, witnesses may be examined by the respective parties, as in ordinary cases. If the finding of the jury shall be against such garnishee, the court shall grant judgment in the same manner as if the facts found by the jury had been confessed by him or her, on his or her examination, and costs of inquest; and if the jury find in favor of the garnishee, he shall recover his costs against the plaintiff.
Sec. 20. Where any witness resides out of the State, or out of the county in which any attachment may be pending, and in which the testimony of such witness may be required, it shall be lawful for either party or garnishee in such attachment, on filing interrogatories with the clerk of the court from which such attachment has issued, and giving ten days' notice of the time and place of taking such testimony, by serving a copy of such notice on the opposite party, or if such party shall be absent from, or reside out of the county, then by affixing a notice in writing thereof on the door of the court house of such county, at least ten days before the day set for the taking thereof, to obtain a commission from the clerk of the court to take the testimony of such witness or witnesses on such interrogatories ; such examination may be read on the trial on motion of either of the parties or garnishee.
Sec. 21. In all cases of attachment, any person other than the defendant, claiming the property attached, may interplead without giving bail, but the property attached shall not thereby be replevied; and the court shall immediately (unless good cause be shewn by either party for a continuance,) direct a jury to be empannelled to enquire into the right of property ; in all cases where the jury find for a claimant, such claimant shall be entitled to his costs ; and where the jury find for the plaintiff in the attachment, such plaintiff shall recover his costs against such claimant.
Sec. 22. If judgment by default shall be entered on any attachment against the estate of the defendant, in any court of this State, no execution shall issue thereon except against the goods and chattels, lands and tenements, on which the attachment may have been served, or against a garnishee or garnishees, who shall have money or other property in his or their hands belonging to the defendant: if the defendant shall appear, put in bail, and plead to the suit, the judgment rendered therein shall have the same force and effect as if a capias al respondendum had been served on the person of the defendant.
Sec. 23. When any goods and chattels shall be levied on by virtue of any attachment, and the sheriff or other proper officer, in whose custody such goods and chattels are, shall be of opinion that the same are of a perishable nature, and in danger of immediate waste and decay, such sheriff or other officer as aforesaid, shall summon three respectable freeholders of his county, who shall examine the goods and chattels so levied on; and if the said freeholders shall on oath or affirmation certify that, in their opinion, they are of a perishable nature, and in danger of immediate waste and decay, and if the person or persons to whom such goods and chattels belong, his, her or their agent or attorney, shall not within twenty days after serving such attachment, replevy the same, then such goods and chattels shall be sold at public vendue by the sheriff or other proper officer, he having first advertised such sale at the court house, and two other public places in his county, at least ten days
before the sale; the money arising from such sale shall be liable to the judgment obtained
upon such attachment, and deposited in the hands of the clerk of the court to which the process shall be returnable, there to abide the event of such suit.
Sec. 24. When any sheriff or other officer shall serve an attachment on slaves, or indentured or registered colored servants, or horses, cattle or live stock, and the same shall not be immediately replevied or restored to the debtor, it shall and may be lawful for such officer, and he is hereby required to provide suflicient sustenance for the support of such slaves indentured, or registered colored servants, and live stock, until the same shall be sold, or otherwise legally disposed of, or discharged from such attachment. He shall receive therefor a reasonable compensation, to be ascertained and determined by the court out of which the attachment issued, and the same shall be charged in the fee bill of such officer, and shall be collectable as part of the costs in the attachment.
Sec. 25. Any defendant against whom an attachment may be sued out under the provisions of this chapter, or garnishee, may avail himself in his defence of any set-off properly pleadable by the laws of this State, notwithstanding such set-off may not be due at the time of sueing out such attachment, or at the trial thereof; any claim due or not due, may be set off by the garnishee, whether it exist against the plaintiff or defendant in the attachment.
Sec. 26. In all cases where more than one attachment shall be issued against the same person or persons, and returned to the same term of the court to which they are returnable, or when a judgment in a civil action shall also be rendered at the same term against the defendant, who is the same person and defendant in the attachment or attachments, the court shall direct the clerk to make an estimate of the several amounts each attaching or judgment creditor will be entitled to out of the property of the defendant attached, either in the hands of any garnishee or otherwise, after the sale and receipt of the proceeds thereof by the sheriff, calculating such amount in proportion to the amount of their several judgments, with costs, as the same will respectively bear to the amount of the sum received, so that each attaching and judgment creditor will receive his just part thereof in the proportion to his respective demand; the clerk shall thereupon certify the several amounts thereof to the sheriff, who shall pay over to the respective parties the several sums so certified, and endorse such payments on their respective executions : 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 or creditors, shall have priority over other attachments.
Sec. 27. On proof being made before any judge or justice of the peace, or clerk of the circuit court within this State, that a debtor is actually absconding, or concealed, or stands in defiance of an officer duly authorized to arrest him on civil process as aforesaid, or has departed this State with the intention of having his effects and personal estate removed out of the State, or intends to depart with such intention, it shall be lawful for the clerk to issue, and sheriff or other officer to serve an attachment against such debtor, on a Sunday as on any other day, as is directed in this chapter.
Sec. 28. The plaintiff or defendant in any attachment, the garnishee 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 other cases; and trials of the right of property may be had in the same manner as when property is taken in execution.
Sec. 29. Any defendant in attachment, desiring the return of property attached, may, at his option, instead of the bond required in the ninth section of this chapter, give like bond and security, in a sum sufficient to cover the debt and damages sworn to in behalf of the plaintiff, with all interest, damages and costs of suit, conditioned that the defendant will pay the plaintiff the amount of the judgment and costs which may be rendered against him in that suit, on a final trial, within ninety days after such judgment shall be rendered. In term time, a recognizance, in substance as aforesaid, may be taken in open court, and entered of record, in which case the court shall approve of the security and the recognizance made to the plaintiff. In either case, the attachment shall be dissolved, and the property taken restored, and all previous proceedings either against the sheriff or against the garnishees, set aside, and the cause shall proceed as if the defendant had been seasonably served with a writ of summons.
Sec. 30. Plaintiffs in any action of debt, covenant or trespass, or on the case upon promises, having commenced their action or actions, by summons, may, at any term pending such suit, and before judgment therein, on tiling in the office of the clerk where such action is pending, a sufficient affidavit and bond, sue out an attachment against the lands and tenements, goods and chattels, rights, moneys, credits and effects of the defendant, which attachment shall be entitled in the suit pending and be in aid thereof, and such proceedings shall be thereupon had, as are required or permitted in original attachments, in all things as near as may be.
Sec. 31. When any attachment has issued out of the circuit court in any county, it shall be lawful for the plaintiff, at any time before judgment, to cause an attachment to be issued to any other county of this State, where the defendant may have lands, goods, chattels, rights, credits or effects, which writ of attachment, the sheriff to whom it shall be directed shall levy on the lands, goods, chattels, rights, credits and effects of the defendant in such county, and make return thereof as in other cases.
Sec. 32. The affidavit required in the first section of this chapter may be sworn to before
officer authorized by the laws of this State to administer oaths, or by any officer of any State, territory or district of the United States ; the fact that the person administering such oath is duly authorized, to be proved in the same manner as in the acknowledgment and authentication of deeds.
Sec. 33. When two or more persons not residing in this State, are jointly indebted, either as joint obligors, partners or otherwise, then the writ or writs of attachment shall and may be issued against the separate estate of such debtors, or any of them, or against the heirs, executors or administrators of them or either of them; and the lands and tenements, goods and chatteis, rights, credits and effects of such debtors or either 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
Sec. 34. This chapter shall be construed in all courts in the most liberal manner for the detection of fraud.
Sec. 35. The provisions of chapter one of the Revised Statutes shall be applicable as well to proceedings in attachment as to other cases.
APPROVED : March 3, 1845.