Courts of record.

and effect as in suits commenced by summons; and execution may issue thereon not only against the property attached, but the other property of the defendant. [R. S. 1845, p. 65, § 12.

35. JUDGMENT BY DEFAULT-SPECIAL EXECUTION.] § 35. When the defendant shall be notified as aforesaid, but not served with process, and shall not appear and answer the action, judgment by default may be entered, which may be proceeded upon to final judgment as in other cases of default, but in no case shall judgment be rendered against the defendant for a greater sum than appears, by the affidavit of the plaintiff, to have been due at the time of obtaining the attachment, with interest, damages and costs; and such judgment shall bind, and a special execution shall issue against the property, credits and effects attached, and no execution shall issue against any other property of the defendant; nor shall such judgment be any evidence of debt against the defendant in any subsequent suit. [R. S. 1845, p. 65, § 12.

36. WHAT PROPERTY LEVIED UPON.] § 36. The property attached may be levied upon by execution issued in the attachment suit, whether in the hands of the officer or secured by bond as provided in this act, and shall be sold as other property levied upon by execution.

37. DIVISION OF PROCEEDS-PRIORITY.] § 37. All judgments in attachments against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata, according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise: Provided, 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 purpose 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. [R. S. 1845, p. 69, § 26.

38. STATEMENT OF PARTICIPATING JUDGMENTS—OFFICER TO DIVIDE PROCEEDS.] 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 the costs thereon, which shall be entitled to share in such proceeds, 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 proceeds 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. [R. S. 1845, p. 69, § 26.

39. PAYMENT INTO COURT.] § 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. APPEAL-WRITS OF ERROR.] $ 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 other cases. [R. S. 1845, p. 69, § 28.

41. FRAUD.] § 41. This act shall be construed in all courts in the most liberal manner for the detection of fraud. [R. S. 1845, p. 70, § 34.

[§ 42, repeal, omitted. See "Statutes," ch. 131, § 5. ]

BEFORE JUSTICES OF THE PEACE.

AN ACT in regard to attachments before justices of the peace. [Approved February 9, 1872. In force July 1, 1872.]

42. WHEN MAY ISSUE.] 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That 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 attachments may be issued out of courts of record, and upon filing with the justice a sufficient affidavit and bond to the defendant with sufficient security, to be approved by the justice, in a penalty at least double the amount of the plaintiff's claim, conditioned substantially as hereinafter provided. [R. S. 1845, p. 58, § 1.

43. FORM OF AFFIDAVIT.] § 2. Affidavits for attachment before justices of the peace may be substantially in the following form:

A B. being duly sworn, says: That (here state if affiant is agent or attorney of the creditor, and if the suit is by firm, the name of the partners,) 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 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 (naine of debtor) (here state some one or more of the causes which authorize an attachment,) the said (name of debtor) (here state the residence of the debtor if known, or if not, that the affiant has made diligent inquiry and cannot ascertain his place of residence.)

44. CONDITION OF BOND.] § 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 prosecute his suit with effect, or in case of failure therein, shall well all such costs in such snit, and such damages as the said

and truly pay and satisfy the said

may

sustain, by reason of wrongfully 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..

[ SEAL. ]

[R. S. 1845, p. 59, § 4.

45. FORM OF WRIT.] § 4. The writ of attachment shall be substantially in the following form:

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 complained that E Fis justly indebted to the said A B in the amount of dollars; and that the said E F (here state the cause as in the affidavit), and the said 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 sufficient 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 proceedings 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 garnishces, all persons who the plaintiff or his agent shall direct, to appear before me at the same time and place, then and there to answer what may be objected 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

[R. S. 1845, p. 58, § 2.

......

day of

18..

C D, Justice of the Peace. [ SEAL. ]

46. WRIT RETURNABLE.] § 5. The writ of attachment shall be made returnable not less than five nor more than thirty days from the date thereof. [R. S. 1845, p. 59, § 1.

47. SERVICE OF WRIT-RETURN.] § 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 agent shall direct to be summoned as garnishees, and make return thereof, stating how he has executed the same. [R. S. 1845, p. 59, § 5.

Before justices of the peace.

48. PURSUIT.] § 7. If the defendant, or any other person for him, shall be in the act of removing such personal property, the officer may pursue and take the same, in any county in this state, and convey the same to the county from which such attachment issued. [R. S. 1845, p. 59, § 5.

49. TRIAL.] § 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 without such service, the justice shall proceed to hear and determine the cause, as in cases of proceeding by summons. [R. S. 1845, p. 60, § 7.

50. CONTINUANCE-NOTICE.] § 9. But if it does not appear that the defendant has been served, and no appearance be entered by the defendant, the justice shall continue the case not less 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, judgment 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 pub. lic places in the neighborhood 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 residence; 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 he posted and mailed copies as herein required. [R. S. 1845, p. 60, § 7.

51. CONTINUANCE FOR NOTICE.] § 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.

52. TRIAL AFTER NOTICE.] § 11. When notice shall be given of any proceeding by attachment, as required 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 personally served upon the defendant, and if judgment be given against the defendant, shall order a sale of the property attached, or so much thereof as will satisfy the judgment and all costs of suit. [R. S. 1845, p. 60, § 8.

53. GARNISHMENT.] § 12. When an attachment shall be returned served upon any person as garnishee, 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 proceed with the cause as against the defendant in the attachment, as though the attachment had been levied on personal property. [R. S. 1845, p. 60, § 10.

54. GARNISHEE SUMMONED TO DISCLOSE PROPERTY, ETC.] § 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, requiring 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 defendant, or in which he has any interest, or he had in his possession or power at the time of serving the attachment. [R. S. 1845, p. 60, § 11.

55. PROCEEDINGS AGAINST GARNISHEE.]

§ 14. The further proceedings against garnishees shall be had in pursuance to the act on garnishments. [See ch. 62.

Before justices of the peace.

56. OTHER PROVISIONS APPLICABLE-PLEADINGS.] § 15. The provisions of law governing attachments in courts of record, shall apply to attachments before justices of the peace, so far as the same are applicable 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 pleadings in any attachment before a justice of the peace.

57. EXCEPTIONS TO BOND.] § 16. Exceptions to the bond taken by the constable shall be taken at or before the first bearing of the case after the same shall have been returned to the justice, but the hearing of such exceptions may be adjourned for the purpose of giving notice to the constable, or for other good cause. 58. APPEALS.] § 17. Appeals may be taken in cases of attachment before justices of the peace, in the same manner as in cases by summons before justices of the peace. [R. S. 1845, p. 62, § 20.

[§ 18, repeal, omitted. See "Statutes," ch. 131, § 5.]

-21

AN ACT to revise the law in relation to attachments of boats, vessels and rafts. [Approved March 25, 1874. In force July 1, 1874.]

1. FOR WHAT LIEN GIVEN.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That 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 in navigating the waters or canals of this state, or used in trade and commerce between ports and places within this state, or having their home port 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 shipshusband of such craft, on account of supplies and provisions furnished for the use of such water craft, on account of work done or services rendered on board of such craft by any seaman, master or other employee thereof, or on account of work done or materials furnished by mechanics, tradesmen or others, in or about the building, repairing, 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 due for towage, labor at pumping out or raising, when sunk or disabled, and to shipshusband or agent of such water craft, for disbursements due by the owner on account of such water craft.

Fourth-For all damages arising for 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.