TIT. 13. $ 2. Plaintiff to declare, and serve copies of the declara 2. And be it further enacted, That the person or persons who sue out a writ of attachment, shall be obliged to file his, her, or their declaration, within two months after the return of the said writ, unless sufficient cause shall be shewn to the justices for a longer time, and shall serve the wife or attorney of such absent debtor, if any or either are known to be within this province, with a copy of the said declaration with a spe- tion. cial order of court endorsed thereon, ordering when such absent debtor shall plead or make his defence in the said action; and the said justices shall have power to allow any time for the same not exceeding a year and a day; and in case the said absent debtor shall have no wife or attorney known to be within this province, then such notice shall be given as afore- Notice to said, once every three months during the said year and day. plead. And if the absent debtor shall not appear and make his defence, within a year and a day from filing a declaration as aforesaid, then final and absolute judgment shall be forthwith given and awarded for the plaintiff in the attachment. The effects 3. And be it further enacted, That the monies, goods, chat- A. A. 1744. tels, debts, and books of accompt, attached as aforesaid, shall, P. L. 188. on filing the declaration as aforesaid, be immediately paid and $ 3. delivered into the hands of the plaintiff, the said goods and attached to be chattels being first inventoried and appraised by two or more delivered to persons to be appointed by the court for that purpose. And the plaintiff, the plaintiff shall be obliged, before the said monies, goods who shall give and chattels, debts and books of accompt, or any of them are security, &c. delivered to him, to enter into a recognizance with security in double the value of the goods attached, to prosecute his, her or their suit with effect, and that the monies and the appraised value of the goods and chattels, and also the said debts and books of accompt shall be forthcoming, in case the said absent debtor shall appear in court within the said year and day, and discharge himself of the plaintiff's demand against P. L. 189. him; and that if the said absent debtor shall not appear as aforesaid, that then he, she, or they will render and deliver into the hands of the clerk of the court of common pleas aforesaid, the residue of all such monies, goods, chattels and debts, and the said books of accompts, after payment and satisfaction of such sums as shall be awarded him, her or them by the judgment of the said court, which said residue of the monies, goods, chattels and other things shall be subject to the order of the said court. tachment aul 4. And the plaintiff in the attachment, into whose hands $4. any bonds, notes or books of accompt shall be delivered as Plaintiff in ataforesaid, shall have full power and authority to sue for, re- thorised to recover and receive the same in the name of the absent debtor, cover debts of and from all and every person and persons whatsoever due the de from whom the said bonds or notes are due and payable, and fendant. who shall appear by the said books of accompt to be indebted to such absent debtor, and shall have full power and authority to give sufficient receipts and discharges for all such sum and sums of money as he, she, or they shall receive as due to the said absent debtor, and such receipts and acquittances shall be a full and absolute discharge to the parties making any pay TIT. 13. $ 5. Plaintiff to swear to the sum due. $ 6. Garnishee to be allowed his debt after filing a declaration & proving it. on reasonable application. ment to such plaintiff against the absent debtor, for the sums therein mentioned, as fully and absolutely to all intents and purposes as if done and given by such absent debtor himself. 5. The plaintiff on filing his, her or their declaration as aforesaid, shall make oath to the debt or sum demanded, and that no part of the same is paid, and that he doth not in any wise, or upon any account whatsoever, stand indebted to the defendant; and in case the plaintiff shall be indebted to the defendant, then such sum shall be allowed and deducted out of the sum demanded; and in such a case a stated account shall be sworn to and filed together with the said declaration. 6. And in case the absent debtor or defendant, whose money, goods, chattels, debts or books of accompt shall be attached in the hands of any person, be really and truly indebted to the person in whose hands the money, goods, chattels, debts or books of accompt are attached, then such person or persons, if his, her or their possession of the said monies, goods, chattels, debts, or books of accompt was obtained legally and bona fide without any tortious act (and not otherwise) shall be first allowed his, her or their own debt, he, she or they forthwith filing his, her or their declaration, and in every other respect proceeding as if he, she or they were plaintiff's in the attachment. $ 7. 7. In case any negro or other slaves, or cattle or horses shall Goods attach- be attached, or any other goods or chattels, the chief justice. ed may be sold aforesaid, or in case of his sickness or absence as aforesaid, any one of the justices aforesaid shall and may on any reasonable application to him made, grant an order for the sale of such negroes, cattle, horses or other goods as aforesaid; the provostmarshal by whom the said negroes, cattle, horses, or other goods and chattels are sold, first giving public notice thereof by fixing an advertisement at the watch house in Charleston, and at the door of the house where the courts of judicature are or shall be uaually held, at least twenty-one days before such sale, and the money arising therefrom shall either be paid into court, or into the hands of the plaintiff, he, she or they giving security to return the same, in case he, she or they shall not obtain judgment against the defendant as aforesaid. $ 8. Bail to the action may be put in, which will dissolve the attachment. $ 9. If defendant shall appear and disprove appear 8. If at any time within the year and day any person shall as attorney to the absent debtor, and will put in bail to answer the action and pay the condemnation, that then and in such case the attachment shall be dissolved, and the monies, goods, chattels, debts and books of accompt so attached shall be forthwith paid and delivered to the person and persons appearing and giving bail as aforesaid; and such person and his security shall be obliged to satisfy, and be liable to pay all such sum and sums of money, as the plaintiff in the attachment shall obtain judgment for against the absent debtor, together with all such costs and charges as shall be taxed by the chief justice aforesaid. 9. And in case any absent person against whom an attachment is issued by virtue of this act, shall appear within two years, and disprove the debt, duty or demand which shall have been recovered against him, he shall recover against the plain &c. tiff in attachment the full damages which he may have sustain- TIT. 13. ed for his unjust vexation, with treble costs of suit: Provided, That in case any person who is about to depart this province, the debt, &c. shall at any time one month next before his departure, give no- within 2 years tice in the gazette, and in case no gazette shall be printed, at -his remedy, the most public place in Charleston, and in the parish where such person resides, that he is about to depart this province, and is ready to answer any suit that shall be brought against him, in such case the person or persons refusing to commence What persons his or their suit, while the person to defend was present and shall not have offered to answer the same as aforesaid, shall not have the be- the benefit of nefit of this act, and attach the absent party's money, goods, chattels, debts or books of accompt, for any cause or causes of action that did arise before such notice given.* this act. Persons con 10. All and every merchant, factor, shopkeeper, and other A. A. 1759. persons concerned in trade, who shall abscond or conceal him, P. L. 252. her or themselves, in such manner that mesne process or exe- $ 14. cution cannot personally be served on him or her, by the space cerned in of three months, shall be deemed and adjudged to have depart- trade, who abed this province; and all and every his, her and their monies, sconds, &c. ligoods, chattels, debts and books of accompt, in the hands of able to this any other person or persons whosoever, shall be subject and process. liable to be attached, in the same manner as is directed and appointed, with respect to debtors who shall withdraw themselves out of the limits of this province, in and by an act passed in the 17th year of his present majesty's reign, entitled, An act for the better securing the payment and more easy recovery of debts due from any person or persons residing beyond the seas, or elsewhere without the limits of this province, by attaching the monies, goods, chattels, debts and books of accompts of such person or persons, if any he, she, or they shall have within this province, and to empower and enable a feme-covert, that is a sole trader, to sue for and recover such debts as shall be contracted with her as a sole trader; and to subject such feme-covert to be arrested and sued, for any debt contracted by her as a sole trader.† *From the construction given to this Act, in the case of Crocker and Hitchborn v. Radcliffe, decided in the constitutional court of appeals at Charleston, in January, 1812, the proceeding by attachment is to be regarded as an action against the person of the defendant, and not as a mere proceeding in rem. The provisions of the act are calculated to give the absent defendant notice, so that he may not be surprised by an unexpected judgment, without an opportunity of making a defence; and sufficient time is allowed for that purpose. It was decided that the death of the defendant pending the action, and before any dissolution of the attachment by bail or replevin, abates the suit; and that the lien on the property actually attached, created by the levy made under the attachment, is not to be considered as an absolute, but only a qualified and partial lien, operating, in the first place as a coercing mean, to enforce the personal appearance of the defendant; and in the second place as a sequestration of the property to respond the judgment in case of default. †The A. A. 1744, ut supra, passed the 17th Geo. 2. L TIT. 13. A. A. 1783. Lands, lease hold estates and chattels real, shall be liable to attachment. Vid. ante A. A 1744. May issue a gainst the real estate of an' absentee for 11. Whereas by an act commonly called the attachment act, the monies, goods, chattels, debts, and books of accompt, belonging to an absent debtor, may be attached by his creditor, but it frequently happens that the absent debtor has neither monies, goods, chattels, debts, or books of accompt, within this state, but is seized and possessed of lands, leasehold estates, and chattels real, within the same, and it is right and proper that such real property should be liable to attachment to satisfy the just debts and demands of an honest creditor: Be it therefore enacted, That all lands, leasehold estates, and chattels real, within this state, which are the property of an absent debtor, shall be liable to be attached to satisfy the just debts and demands of his, her, or their creditors, in the same manner, by the same process, and for the same causes, as the monies, goods, chattels, debts, and books of accompt of an absent debtor, are now liable; so that every benefit and advantage arising to creditors from the said act, commonly called the attachment act, shall be, and they are hereby extended as well to the real as the personal estate of an absent debtor, in as full and ample a manner as if the real estate of an absent debtor had been made liable to attachment by the said act. 12. And whereas the benefit of the said act, commonly called the attachment act, is confined to such person or persons as have occasion to commence any suit or action against an absentee upon judgment, bond, bill, note of hand, book debt, covenant, contract, or assumpsit,* and it sometimes happens, that one person after having done considerable damage and substantial injury to another, absconds, and withdraws himself from the limits and jurisdiction of this state, by which the injured party is left without redress, as there is no mode established by the laws of this state for prosecuting the absent wrong-doer, to outlawry, or for rendering the property he leaves in this state liable to make good the damage he has committed; for remedy, therefore, and prevention of such injuries, 13. Be it further enacted, That from and immediately after the passing of this act, any citizen of this state, may sue out and personal a writ of attachment against the real and personal estate of an absentee, for any tort, trespass or injury, actually done any tort, tres- by such absentee, to his, her, or their property, real or perpass, or injury sonal; and the real and personal estate of such absentee, shall done by him, be, and is hereby made liable to satisfy the damage sustained by such citizen, by the same process, and in as full and ample a manner, as the personal estate of an absent debtor, is by the said act liable to satisfy the damage sustained by such in the same manner as for The county courts had original cognizance to any amount where the debt was liquidated by bond, or note of hand; or where the damages on open account, assumpsit, detinue or trover, did not exceed fifty pounds; and in all other personal actions, where the damages did not exceed twenty pounds, or where the title of lands was not in question. When the county courts were abolished, this branch of their jurisdiction as well as many others, devolved to the courts of common pleas for the districts. citizens, by the same process, and in as full and ample a TIT. 13. manner as the personal estate of an absent debtor, is by the said act liable to satisfy the just debts and demands of his, debts due by her, or their creditor. him. 14. It shall be lawful for any justice of the peace, upon A. A. 1785. complaint to him made, upon oath by any person, that his P. L. 367-8. debtor is removing out of the county privately, or absconds, [Domestic.] and conceals himself, so that the ordinary process of law can- Against debtors removing not be served upon him; to grant an attachment against the privately, abestate of such debtor, or so much thereof, as shall be of value sconding, &c. sufficient to satisfy the debt and cost of such plaintiff, which to be granted attachment, where the debt or demand would have been ori- by any justice ginally cognizable in the county court, shall be returnable to of the peace. the next court of the county where the same was issued, and shall be directed to, and served by the sheriff of the county, or his deputy; and it shall be lawful for such sheriff to serve and levy the same upon the slaves, goods, and chattels of the party absconding, wheresoever the same shall be found, or in the hands of any person or persons, indebted to, or having any effects of the person absconding; and to summon such person or persons to appear at the next court to be held for the said county, there to answer upon oath what he or she is indebted to such party, and what effects of such party he or she hath in his or her hands, or had at the time of serving How returnasuch attachment, which being returned executed, the court ble. may thereupon compel, by order, such person or persons to appear and answer as aforesaid.* tion thereto. 15. Provided, That every justice of peace before granting Duty of the such attachment, shall take bond and security of the party for sheriff and whom the said attachment shall be issued, in double the sum justice of the to be attached, payable to the defendant, for satisfying and peace in relapaying all costs that shall be awarded to the defendant, in case the plaintiff suing out the attachment therein mentioned, shall discontinue or be cast in his suit, and also all damages which shall be recovered against the said plaintiff, for his suing out such attachment, which bond shall be by the same justice returned to the court to which the attachment is returnable, and the party entitled to such costs and damages, may bring suit and recover. And every attachment issued without such bond taken, or where no bond shall be returned as aforesaid, is hereby declared to be illegal and void, and shall be dismissed with costs. 16. Provided always, That all attachments shall be reple viable by appearance, and putting in special bail, if by the All attachcourt ruled so to do, or by giving bond with good security to ments shall be the sheriff or other officer serving the same, which bond the repleviable. sheriff or other officer is hereby empowered and required to take; to appear at the court to which such attachment shall be returnable, and to abide by and perform the order, and judgment of such court.t *See note, page 38. † See A. A. 1788. P. L. 441. giving like authority to all justices of peace, sheriffs and constables in every part of the state. See Title 107, Justices of the Peace. |