SEC. 26. The Clerk of the District Court shall have power to appoint a deputy to assist him under the rules prescribed in section twenty-five.

Approved December 6th, 1859.

CHAPTER VII.

ATTACHMENT.

AN ACT

Regulating and authorizing the issuing of Writs of Attachments and Garnishments.

SEC. 1. Be it enacted by the General Assembly of the Provisional Government of the Territory of Jefferson, the Governor approving:-In an action for the recovery of money, the plaintiff may cause any property of the defendant which is not exempt from execution, to be attached at the commencement, ordering the progress of the proceedings by pursuing the cause hereinafter prescribed.

SEC. 2. If it be subsequent to the commencement of the action, a separate petition must be filed, and in all cases, the proceedings relative to the attachment, are to be deemed independent of the ordinary proceedings, and only auxiliary thereto.

SEC. 3. The petition which asks an attachment, must in all cases be sworn to; it must state that as the applicant verily believes the defendant is a foreign corporation, or that he is in some manner, about to dispose of, or remove his property (in whole or in part) with intent to defraud his creditors; or that he has absconded so the ordinary process cannot be served on him.

SEC. 4. If the plaintiff's demand is founded on contract, the petition must state that something is due and as nearly as practicable the amount, which must be more than five dollars in order to authorize an attachment; the amount thus sworn to, is intended as a guide to the sheriff, who must as nearly as the circumstances of the case will permit, levy upon property fifty per cent greater in value than that amount.

SEC. 5. If the demand is not founded on contract, the original petition must be presented to the Judge of some Supreme or District Court or to the Judge of the County Court, who shall make an allowance thereon of the amount in value of the property that may be attached; the provisions of this section apply only to cases in the District Court.

SEC. 6. The property of a debtor may be attached previous to the time when the debt became due, when nothing but time is wanting to fix an absolute indebtedness, and when the petition in addition to that fact states that the defendant is about to dispose of his property, with intent to defraud his creditors or that he is about to remove from the state, and refused to make any arrangement for securing the payment of the debt when it falls due, and which contemplated removal was not known to the plaintiff at the time the debt was contracted.

SEC. 7. Before any property can be attached, as aforesaid, the plaintiff must file with the clerk a bond for the use of the defendant, with sureties to be approved by the clerk, in a penalty at least double the value of the property sought to be attached, and in no case less than two hundred and fifty dollars, if in the District Court, nor less than fifty dollars if in a Justice's Court, conditioned that the plaintiff will pay all damages which the defendant may sustain by reason of the wrongful suing out of the attachment.

SEC. 8. In action of such bond the plaintiff therein may recover if he shows that the attachment was wrongfully sued out, and if wilfully wrong, he may recover exemplary damages, nor need he wait until the principal suit is determined before he brings suit on the bond.

SEC. 9. Where the suits are properly commenced in a District Court, of any county, the auxiliary process of attachment may run into any other county where property of the defendant can be found.

SEC. 10. The clerk shall issue a writ of attachment directing the sheriff of the county therein named, to attached property of the defendant to the requisite amount therein stated.

SEC. 11. The sheriff shall in all cases attach the amount of property directed, if sufficient, not exempt from execution, be found in his county, giving that in which the defendant has a legal and unquestionable title a preference over that in which the title is doubtful or only equitable.

SEC. 12. Writs of Attachment from the District Court may be sent into different counties at the same time, but if more property be attached in the aggregate than the plaintiff is entitled to hold in that manner, he must abandon the overplus and pay all costs incurred in relation to it.

SEC. 13. Stock or an interest owned by the defendant in any company, also debts due him, or property of his held by a third person, may be attached.

SEC. 14. The mode of Attachment must be as follows:

First: By giving the defendant in the action, if found within the county, and also the person occupying or in possession of the

property, if it is in the hands of a third person, notice of such attachment.

Second: The property, if capable of manual delivery, the sheriff must take it into his custody, if it can be found.

Third: Stock in a company is attached by notifying the president, or other head of the company, or the secretary, cashier, or other managing agent thereof, of the fact that the stock is so attached.

Fourth: Debts due the defendant, or property of his held by third persons, and which cannot be found, or the title to which is doubtful, are attached by garnishment thereof.

SEC. 15. The attachment by garnishment is affected by informing the supposed debtor or person holding the property, that he is attached as garnishee, and by leaving with him a written notice to the effect that he is required not to pay any debt due by him to the defendant, or thereafter to become due, and that he must retain possession of all property of the said defendant, there or thereafter being in his custody or under his control, in order that the same may be dealt with according to law.

SEC. 16. A sheriff or constable may be garnished for money of the defendant in his hands, so may a judgment debtor of the defendant, when the judgment has not been previously assigned, and also an executor for money due from the decedent to the defendant.

SEC. 17. Unless exempt, as provided in the next section, the notice must also require him to appear on the first day of the next term of the district court, wherein the main cause is depending, or on the day fixed for trial if in a justice's court, and answer such interrogatories as may there be propounded to him, or that he will be liable to pay the entire judgment which the plaintiff evidently obtains against the defendant.

SEC. 18. The plaintiff may, in writing, direct the sheriff to take the answer of the garnishee and append the same to his return.

SEC. 19. In such case the sheriff has power to administer an oath to garnishees requiring them to make true answer to the questions to be propounded, which questions shall be as follows: First: Are you in any manner indebted to the defendant in this suit, or do you owe him money or property which is not yet due? and if so, state the particulars.

Second: Have you in your possession or under your control, any property, rights or credits of the defendant? If so, what is the value of the same? State all the particulars.

Third: Do you know any debts owing to the said defendant, whether due or not, or any property, rights, or credits, belonging to him, and now in the possession or under the control of others? If so, state the particulars.

SEC. 20. If the garnishee refuses to answer, fully and unequi

vocally, each and all of the foregoing interrogatories, he shall be notified and required to appear and answer on the first day of the next term of the district court, or on the day fixed for trial as above provided.

SEC. 21. The questions propounded to the garnishee in court may be such as are above prescribed, to be asked by the sheriff, and such other as the court may think proper and right.

SEC. 22. Where a garnishee is required to appear at court, unless he has refused to answer as above contemplated, he is entitled to the pay and mileage of an ordinary witness, and may in like manner require payment beforehand, in order to be made liable for non-attendance.

SEC. 23. If, when duly summoned and his fee tendered, (if demanded) he fail to appear and answer the interrogatories propounded to him, without sufficient excuse for his delinquency, he shall be presumed to be indebted to the defendant to the full amount of the plaintiff's demand, and shall be dealt with accordingly.

SEC. 24. But for mere failure to appear, he is not liable to pay the amount of the plaintiff's judgment until he has had an opportunity to show cause against the issuing of an execution.

SEC. 25. A garnishee may at any time after answer, exonerate himself from further responsibility, by paying over to the sheriff the amount owing by him to the defendant, and by placing at the sheriff's disposal the property of the defendant, or so much of said debts and property as is equal to the value of property to be attached, all of which may afterward be treated as though attached in the usual manner.

SEC. 26. When the answer of the garnishee is made in the district court, the plaintiff may controvert any facts contained therein and specified by him, and issue being thereupon denied, may be tried in the usual manner. Upon such trial, the answer of the garnishee is competent testimony.

SEC. 27. If by any of the above methods it is made to appear that the garnishee was indebted to the defendant, or had any of the defendant's property in his hands, either at the time of his being served with the garnishee notice aforesaid, or at any time subsequent thereto, he is liable to the plaintiff, in case judgment is finally recovered by him, to the full amount of that judgment, or to the amount of said indebtedness and of the property so held by him, and a judgment shall be entered against him accordingly, unless he prefers paying or delivering the same to the sheriff as above provided.

SEC. 28. Property attached otherwise than by garnishment, is bound thereby from the time of the service of the attachment only.

SEC. 29. All moneys attached by the sheriff, or coming into his hands by virtue of the proceeding in attachment, shall forthwith

be paid over to the clerk, to be by him retained until further order of the court.

SEC. 30. The defendant may, at any time before judgment, discharge the property attached, or any part thereof, by giving bond with surety, to be approved by the sheriff, in a penalty at least double the value of the property sought to be released-conditioned that such property, or its estimated value, shall be delivered to the sheriff to satisfy any judgment which may be obtained against the defendant in that suit, within ten days after the rendition thereof. This bond shall be filed with the clerk of the court.

SEC. 31. To determine the value of the property in such cases, unless the parties agree otherwise, the sheriff shall summon two disinterested persons having the qualification of jurors who, after being sworn by him to make the appraisement faithfully and impartially, shall proceed to the discharge of their duty.

SEC. 32. If such persons disagree as to the value of the property, the sheriff shall decide between them.

SEC. 33. In an action brought upon the bond above contemplated, it shall be a sufficient defence that the property for the delivery of which the bond was given, did not at the time of the levy, belong to the defendant against whom the attachment was issued.

SEC. 34. The sheriff must, in all cases, return an inventory of the property attached as well as the appraisement above provided for, when such appraisement has been made.

SEC. 35. When the sheriff thinks the property attached is in danger of serious and immediate waste or decay, he may summon three persons having the qualifications of jurors, to examine the same. If they are of the opinion that the property requires soon to be disposed of, they shall specify a day beyond which they do not deem it prudent that it should be kept in the hands of the sheriff. He shall thereupon give the same notice as for the sale of goods in execution, and for the same length of time, unless the condition of the property renders a more immediate sale necessary, the sale shall be made accordingly.

SEC. 36. The money arising from such sale shall remain in the hands of the clerk to abide the event of the suit.

SEC. 37. The word sheriff as used in this chapter, is meant to apply to constables, when the proceedings are in a justice's court.

SEC. 38. When the proceedings are in a justice's court, the justice is to be regarded as the clerk of the court for all the purposes herein contemplated.

Approved November 25th, 1859.