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13 June 1836 § 49. P. L. 580.

In case of real estate.

If no person be in

I. If the attachment be levied on houses, other buildings or lands, it shall be the duty of the sheriff to leave a copy of the writ with the tenant, or other person in actual possession, holding under the defendant in the attachment,(s) and to summon him as garnishee.

II. If there be no person in actual possession as aforesaid, the sheriff shall possession, writ to publish a copy of the writ, for six weeks, in one newspaper printed in the county, be published. if there be one, otherwise, in one newspaper published nearest to the land attached; and such writ shall also be published in one or more newspapers in the city of Philadelphia, or elsewhere, as the court, if in session, or a judge thereof, in vacation, at the time of issuing the same, having reference to the supposed place of residence of the defendant, shall direct.

How attachment

to be levied on a rent-charge.

Or other incorpo

III. If the attachment be levied on a rent-charge, it shall be the duty of the sheriff to leave a copy of the writ with the owner of the messuage, lot or land out of which such writ (rent) shall issue, or upon which the same shall be charged, or if such owner shall not reside within the county, upon the tenant or other person in possession of such messuage, lot or land, and in either case to summon such person as garnishee.

IV. In all other cases of incorporeal hereditaments, the attachment shall be real hereditament. executed by leaving a copy of the writ with the person or persons who may be liable to the payment of money to the defendant, or who may be charged with, or otherwise liable to the defendant in respect of such hereditaments, and if there be no such person, by publication, as directed in the case of houses or lands of which there shall be no person in possession, as aforesaid.

8 May 1855 § 3. P. L. 582.

gee or judgmentcreditor, how attached.

17. All writs of foreign attachment against defendants who are mortgagees and judgment-creditors, whose debtors by judgment or mortgage are non-residents, Interest of mortga- and cannot be personally served with notice or process as garnishees, shall and may be executed by attaching or levying the same on the lands, tenements and hereditaments upon which the said judgments or mortgages are liens or incumbrances, in the same manner as such writs may now by law be executed upon the lands and tenements of the defendants therein; and such writs, after such execu tion, shall bind the rights and interests of such mortgagees or judgment-creditors, and shall operate as a stay of proceedings upon said judgments and mortgages, Proceedings after until said attachments are dissolved or otherwise legally disposed of. And upon a

judgment.

13 June 1836 § 50. P. L. 581.

Effect of service.

Ibid. § 51.

real estate.

final recovery by the plaintiff in such attachment, it shall be lawful for the courts having jurisdiction, to subrogate the plaintiffs in said attachments to the rights of the said mortgagees or judgment-creditors, until they shall have received satisfaction of their respective debts: Provided, That before such subrogation shall be made, the plaintiff in such attachment shall be required to give the same security that is now by law required to be given before execution is issued upon judgments in foreign attachments.

IV. Effect of the attachment.(†)

18. The goods and effects of the defendant in the attachment, in the hands of the garnishee, shall, after such service, (u) be bound by such writ, and be in the officer's power, and if susceptible of seizure or manual occupation, the officer shall proceed to secure the same, to answer and abide the judgment of the court in that case, unless the person having the possession thereof, will give security therefor.(v)

19. Every writ of attachment executed upon real estate, shall bind the same, as against purchasers and mortgagees, (w) from the time of the execution thereof; Effect of service on and it shall be the duty of the sheriff to file in the office of the prothonotary of the court, a description of the property attached, within five days after he shall have made the attachment, which description shall be entered by the prothonotary upon his docket, and the names of the parties, with the date of the execution of the writ, and the amount of bail required, shall also be entered by him upon judgment-docket.

Duty of sheriff and prothonotary.

(s) It is his duty, to state in his return, that the party summoned as garnishee, holds under the defendant. Hayes v. Gillespie, 35 P. S. 155. Lambert v. Challis, 35 P. S. 156 n. Bryan v. Trout, 90 Ibid. 492. (t) The pendency of a foreign attachment against the defendant neither abates nor bars an action against the garnishee; such a plea is only admissible to give notice of the claim, in order that the judgment may be moulded so as to protect the parties' rights. Kase v. Kase, 34 P. S. 128. Brown v. Scott, 51 Ibid. 357.

(u) There is no priority as to payment between several writs of foreign attachment, served or levied on the same day, on real or personal estate. Long's Appeal, 23 P.S. 297. Posey's Estate, 1 Chest. Co. R.

his

351. But an attachment will prevail over an ordinary writ of execution, issued at a later hour on the same day. Warner's Appeal, 13 W. N. C. 505.

(v) See Jaffray's Appeal, 13 W. N. C. 151. Where partnership effects are attached for the private debts of one of the partners, it is the duty of the sheriff to take possession of them, as in other cases. Morgan v. Wutmough, 5 Wh. 125. If ordered to be sold as perishable or chargeable, the purchaser takes an indefeasible title, without regard to the defendant's former ownership, and whether he were, or were not, the owner. Megee v. Beirne, 39 P. S. 50.

(w) And judgment-creditors. Shacklett's Appeal, 14 P. S. 326.

V. Of the judgment, and process against the garnishee.

10 May 1889. P. L. 183.

20. It shall be lawful for the plaintiff, at and after the third term of the court after the execution of the writ, to take judgment against the defendant for default of appearance (x) unless the attachment before that time be dissolved: Pro- Judgment for vided, That the said plaintiff, fifteen days prior to the entry of said judgment, want of an appearshall have filed his declaration. (y)

ance.

21. In any action of foreign attachment wherein the plaintiff has or shall here- 9 April 1870 § 1. after have entered judgment by default, it shall be lawful for the plaintiff to enter P. L. 60. a rule for the prothonotary to assess the damages, which the prothonotary may do, How damages to upon evidence produced to him, or upon the affidavit of the plaintiff, or some other be assessed. person cognizant of the transaction.

P. L. 582.

22. After judgment against the defendant in manner aforesaid, the plaintiff 13 June 1886 § 54. may have a writ of scire facias against the garnishee, (2) commanding him to

appear before the said court at the next term, and show cause, if any he have, Scire facias against why the plaintiff should not have execution of his said judgment, of the estate garnishee. and effects of the said defendant, attached as aforesaid, in his hands or possession.(a)

Ibid. § 55.

23. After judgment as aforesaid, it shall also be lawful for plaintiff to exhibit in writing, to every garnishee as aforesaid, all such interrogatories as he may deem Interrogatories necessary, (b) touching the estate and effects of the defendant in his possession or may be exhibited charge, or due and owing from him, as the case may be, to the defendant, at the to garnishee. time of the service of such writ, or at any other time, (c) and cause the same to be filed of record in the cause.

24. Whenever interrogatories shall be filed as aforesaid, it shall be the duty of

Ibid. § 56.

the court, upon the motion of the plaintiff, to grant a rule upon the garnishee, (d) Court to grant rule to appear before the said court, at the time and place in such rule to be named, to answer, &c. and then and there to exhibit in writing, under his oath or affirmation, full, direct and true answers to all and singular the interrogatories of the plaintiff, exhibited and filed as aforesaid, or such of them as the court shall deem pertinent and proper.(e)

Ibid. § 57.

25. If the garnishee shall, after due service of rule as aforesaid, neglect or refuse to comply therewith, he shall be adjudged to have in his possession goods on refusal to anand effects of the defendant, liable to such writ of attachment to an amount or swer, judgment value sufficient to satisfy the demand of the plaintiff, together with all legal costs may be entered against garnishee. of suit and charges, and thereupon execution may issue against him, in like manner as in the case of a judgment rendered against such garnishee for his own proper debt.(g)

(2) The damages must be ascertained by writ of inquiry. Thornton v. Bonham, 2 P. S. 102. Except where the declaration is in debt. McClenachan v. McCarty, 1 Dall. 377. See Hampton v. Matthews, 14 P. S. 105. 2 T. & H. Pr. § 2282. And see infra 21. The garnishee cannot defend on the ground that the original judgment was not regularly liquidated. O'Connor v. O'Connor, 2 Gr. 245.

(y) This is an amendment of the act 13 June 1836, 53, P. L. 584. This act is applicable to actions pending at the time of its passage; it is constitutional. Lane v. White, 140 P. S. 99. Where a judgment had been stricken off under the rule laid down in Mellor v. Burtis, 124 P. S. 161, and a new judgment subsequently entered under this act, it was held the lien of the attachment was not postponed to a subsequent one. Electric Light Co. v. Manufacturing Co., 126 P. S.

119.

(z) Where lands are attached, a sci. fa. is unnecessary. Gibson v. Robbins, 9 W. 156. Except in the case provided for in § 68, infra 42. If the defendant confess judgment, the sci. fa. may issue before the third term. Welsh v. Buckner, 2 M. 96. Separate sci. fas. must issue against garnishees not jointly liable. Ellmaker v. Bank of the United States, 3 Clark 504. A judgment in foreign attachment has no other effect, than to authorize a sale of the property attached. Glenn v. Davis, 2 Gr. 153. Jackson's Appeal, Ibid. 407. See Megee v. Beirne, 39 P. S. 50. The court may rule the plaintiff to proceed against the garnishee. Finch v. Bulloch, 1 W. N. C. 263; s. c. 10 Phila. 318.

(a) A debt, not due, may be attached; but the garnishee is not compellable to pay the money before it is due. Walker v. Gibbs, 2 Dall. 211; s. c. 1 Y. 255. Franklin Fire Insurance Co. v. West, 8 W. & S. 350. The attachment stops the running of interest on the debt where the garnishee is ready and willing to pay; otherwise, where the delay is produced by his litigiousness or unreasonable conduct. Rushton v.

Rowe, 64 P. S. 63. Allegheny Savings Bank v. Meyer, 59 Ibid. 361.

(b) He cannot exhibit interrogatories to a justice, respecting judgments on his docket in favor of the defendant. Corbyn v. Bollman, 4 W. & S. 342. The interrogatories may be served with the sci. fa., but the garnishee is not bound to answer, until the return of the writ. Crammond v. Trustees, 4 S. & R. 147. The interrogatories may be served before filing, but they must be filed at the time of granting a rule to answer; they need not be served by the sheriff. Ringwalt v. Brindle, 59 P. S. 51.

(e) If the garnishee receive money, after the service of the attachment, for the special purpose of paying it to the debtor, and do so pay it, he is liable to account for it to the plaintiff. Silverwood v. Bellas, 8 W. 420. Franklin Fire Insurance Co. v. West, 8 W. & S. 350. Mullen v. Maguire, 1 W. N. C. 577.

(d) This may be regulated by a standing order. Dougherty v. Thayer, 78 P. S. 172. The rule may be served in the same mode as a summons. Mohr v. Bichet, 13 L. I. 212.

(e) The court will not enter judgment against the garnishee, on his answer, unless upon an admission of assets, express or implied; the admission should be such as to leave no doubt of the nature and extent of the indebtedness. Allegheny Savings Bank v. Meyer, 59 P. S. 361. Fithian v. Brooks, Phila. 260. Ferguson v. Craig, 1 W. N. C. 153. The plaintiff may demur to the answers. For v. Reed, 3 Gr. 81. And he may read them in evidence, on the trial. Erskine v. Sangston, 7 W. 150. By so doing, he is not precluded from discrediting them. Adlum v. Yard, 1 R. 163. Hess v. Shorb, 7 P. S. 232.

(g) Corbyn v. Bollman, 4 W. & S. 342. The judgment is an office one. Fisher v. Bleun, 2 W. N. C. 172. If the answers be insufficient, the practice is, to file exceptions, not to move for judg ment. Lanback v. Black, 1 W. N. C. 314.

13 June 1836 § 58. P. L. 582.

How jury to find on issue joined.

22 April 1863 § 1. P. L. 527.

Garnishees to

recover counselfees, in certain cases.

11 June 1885. P. L. 107.

26. If issue be taken, and a trial be had upon any scire facias as aforesaid, the jury shall find what goods or effects, if any, were in the hands of the garnishee at the time the attachment was executed as aforesaid, or afterwards, and also the value thereof. (h)

27. Where, in any attachment-execution, or scire facias on foreign attachment, issued out of any court of record in this state, the garnishee, after issue joined therein, shall be found to have in his possession or control no real or personal property of the defendant, nor to owe him any debt, other than such property or debts as shall have been already admitted by the plea or answers of the garnishee, or in case, without going to trial, the plaintiff shall take judgment against the garnishee for what shall be so admitted in his plea or answer, then and in either such case, the garnishee shall be entitled, in addition to the costs already allowed by law, to a reasonable counsel-fee out of the property in his or their hands, to be determined and taxed, in case of dispute, by the court, or by some person appointed for that purpose.

28. Where, in any attachment-execution or scire facias on foreign attachment issued out of any court of record in this state, the garnishee shall be found to Garnishee may re- have in his possession or control no real or personal property of the defendant, nor to owe him any debt, the said garnishee shall be entitled to recover from the plaintiff, in addition to the costs already allowed by law, a reasonable counsel-fee, Not to exceed $10. not exceeding ten dollars, to be determined by the court, and taxed as part of

cover a reasonable counsel-fee.

29 April 1891 § 1. P. L. 35.

the costs.

29. Where, in any attachment, attachment-execution, foreign attachment or scire facias or foreign attachment issued out of any court of record in this state, Garnishee entitled an appearance by attorney shall be, or shall have been entered by any garnishee or garnishees therein, each said garnishee so appearing shall be entitled to recover from the plaintiff, in addition to the costs already allowed by law upon any discontinuance or other final disposition thereof, prior to answers filed, a counsel-fee of at least ten dollars, to be taxed as part of the costs, and to be determined in case of dispute by the court.

to counsel-fee on discontinuance before answer.

Ibid. Garnishee to be

deemed a party to the cause.

18 June 1836 § 59. P. L. 583.

30. Each said garnishee so appearing, shall thereupon be deemed and taken to be a party to the cause, and shall be entitled to all process of the court looking to speeding the cause and securing final disposition thereof.

VI. Of the execution.

31. After a verdict for the plaintiff on any scire facias as aforesaid, it shall be lawful for him to have execution of his judgment in the attachment, to be levied Execution to issue on the goods or effects so found in the hands or possession of the garnishee, or of against the goods, so much of them as shall be sufficient to satisfy his demand, together with legal costs(i) of suit and charges, as aforesaid.

&c., attached.

Ibid. § 60.

On neglect to pro

32. The plaintiff may also, at the same time, have execution against the garnishee upon the judgment obtained against him on the scire facias, as in the case duce the same, to of a judgment against him for his proper debt, to be executed, if the garnishee shall neglect or refuse, upon the lawful demand of the proper officers, to produce and deliver the goods and effects of the defendant, as aforesaid, or to pay the debt or duty attached if the same shall be due and payable.(k)

be levied of the

goods of the garnishee.

Ibid. § 61. Plaintiff to give

of the debt, &c.

33. But after judgment, before any execution shall be executed, (1) the plaintiff shall give security, by recognizance and sufficient sureties, to be approved of by recognizance to re- the court, or by one of the judges thereof, in vacation, with condition, that if the store, on disproof defendant in the attachment shall, within a year and a day(m) next ensuing the date of such recognizance, by himself or attorney, come into court and disprove or avoid the debt recovered against him,(n) or shall discharge the same, with costs, in such case the plaintiff shall restore to the defendant the goods or effects, or the value thereof, attached and condemned as aforesaid, or so much thereof as shall be disproved or discharged, or else that they will do it for him.

8 May 1855 § 2. P. L. 532.

34. In any such case of foreign attachment and final judgment entered, it shall be lawful for the plaintiff, at his option, instead of entering the security as

(h) If the jury find that the garnishee had goods of the defendant in his hands, they must specify them. Crawford v. Barry, 1 Binn. 481. Flanagin v. Wetherill, 5 Wh. 280. Hampton v. Matthews, 14 P. S. 105.

But if the property in the garnishee's hands be money, the verdict may be amended. Flanagin v. Wetherill, 5 Wh. 280. The garnishee may discharge himself, by surrender of the property, and is not, in any case, answerable beyond its value. Hampton v. Matthews, 14 P. S. 106-7.

(i) If the plaintiff do not prove more in the hands of the garnishee than is admitted in his answers, he cannot recover costs against him. Walker v. Wallace, 2 Dall. 113. Wood v. Ludwig, 5 S. & R. 446. Hall v. Knapp, 1 P. S. 213. Otherwise, where the garnishee contests his indebtedness to the defendant. Herring v. Johnson, 5 Phila. 443.

(k) For form of judgment and execution, see Layman v. Beam, 6 Wh. 181. Lorenz v. King, 38 P. S.

93.

(1) The recognizance need not be given, before issuing execution; it is in time, if given before the sale. Fitch v. Ross, 4 S. & R. 557.

(m) The year and day does not begin to run, until execution is awarded. Bujac v. Phillips, 2

M. 71.

(n) By writ of scire facias ad disprobandum debitum. Fitch v. Ross, 4 S. & R. 565. Bujac v. Phillips, 2 M. 71. The quashing of the foreign attachment, and all proceedings thereon, including the recognizance, is not equivalent to disproving the debt, and will not sustain an action on the recognizance. Hill v. Culan, 1 Gr. 463.

required by the 61st section of the said act, to leave the property attached remain unsold for a year and day after such judgment, and thereafter to proceed to make sale by execution, with the like effect as if such security had been entered.

VII. Of dissolving the attachment.

8 May 1855 § 2. P. L. 532. When execution may issue without security to restore.

P. L. 583.

35. Provided always, That if the defendant or defendants in the attachment, 13 June 1836 § 62. and every of them, shall, at any time before the money paid, put in and perfect bail [to the plaintiff's action, (o) in the sum demanded, or in such sum as the How attachment court, upon the cause of action shown, shall order,] or if they shall make deposit may be dissolved. in the manner provided in the case of an arrest upon a capias ad respondendum, the attachment, and all proceedings had thereon as aforesaid, shall be dissolved, (p) and the action shall proceed in due course, in like manner as if the same had been commenced by a writ of capias ad respondendum.

P. L. 189.

36. In all cases of dissolving foreign attachments, the bail shall be bail abso- 20 March 1845 § 2. lute, in a recognizance of double the amount in controversy, as nearly as may be ascertained, with one or more sufficient sureties, conditioned for the payment of Condition of recogthe debt or damages, interest and cost that may be recovered. (q)

nizance.

37. If an attachment shall be dissolved as aforesaid, after any sale of real or 18 June 1836 § 63. personal property attached, such dissolution shall not have the effect of divesting P. L. 583. any estate or interest acquired by virtue of such sale, by any person not party to Dissolution not to such attachment, but in such case, the proceeds of any such sale shall be paid or affect title of proprestored to the defendant in the attachment.

erty sold.

Ibid. § 64. Defendant may appear and defend,

the attachment.

38. It shall be lawful for any defendant in an attachment, instead of giving bail or security, at his election, at any time before judgment obtained in the attachment, (r) to cause an appearance to be entered for him, and to take defence to the action, in which case the action shall proceed as if commenced by a summons; (s) without dissolving but the attachment shall, nevertheless, continue to bind the estate or effects attached, as in other cases, unless judgment be rendered for the defendant in such attachment, and if judgment be rendered for the plaintiff, such judgment shall have the like force and effect as in case of an action commenced by a summons :(t) Provided, That the plaintiff may proceed by scire facias against the garnishee, and execution against the estate and effects attached, as in other cases of attachment, except that a recognizance to restore as aforesaid, shall not be necessary.

VIII. Proceedings on attachment of real estate.

P. L. 584.

39. In every case of a writ of attachment executed upon land, which shall have 18 June 1836 § 65. been demised for years or otherwise, with a reservation of rent, the delivery of a copy of the writ of attachment to the tenant, as herein before provided, shall have Rents to be sequesthe effect of sequestering, in the hands of the tenant, all such sums or amount tered. of rent as shall be due at the time of the execution of the writ, or that shall accrue until the execution against the garnishee, unless the attachment be sooner dissolved.

Ibid. § 66.

Court may direct

40. It shall be lawful for the court, at any time after the return of the attachment, on application by the plaintiff and affidavit of a just cause of action, to issue a writ to the sheriff, requiring him to collect and recover from the tenant of sheriff to collect the premises (u) all such rent as shall have accrued at the time of the execution rents. of the writ of attachment, or as may accrue thereafter, until the further order of the court.

(0) See infra 36, for condition of recognizance. And see Duffy v. Owings, 1 Clark 33. Hailman v. Wilson, Ibid. 189.

(p) The attachment may also be dissolved on a rule to show cause of action. Vienne v. McCarty, 1 Dall. 154. Doane v. Penhallow, Ibid. 219. Shreve v. Young, 2 T. & H. Pr. § 2281. And that, at the instance of the garnishee. Erb v. Landis, 3 Clark 226. See Morris v. Turner, Ibid. 423. But the application must be made at the first term. Miltenberger v. Lloyd, 2 Ball. 79. Morris v. Turner, 3 Clark 423. Error will not lie on a refusal to quash a foreign attachment. Lindsley v. Malone, 23 P. S. 24.

(q) The plaintiff's claim against the fund in the hands of the garnishee, is wholly defeated by the entry of bail to the action. Jackson's Appeal, 2 Gr. 407. When dissolved by the entry of security, it becomes merely a common-law remedy. Albany City Insurance Co. v. Whitney, 70 P. S. 248. The bond to dissolve should be given to the sheriff, not to the plaintiff. Reis v. Junker, 9 W. N. C. 296.

(r) This may be done at any time before final judgment. Manuel v. Mississippi and Alabama Railroad Co., 2 M. 398.

(8) In such case, it is not competent for the defendant to raise, by plea, any question affecting the regu

larity of the process; he admits it by appearing and taking defence. Malone v. Lindsley, 1 Phila. 288; s. c. 23 P. S. 24. Memphis, Clarksville and Louisville Railroad Co. v. Wilcox, 48 Ibid. 162. The effect is to change the nature of the proceedings, from a pure proceeding in rem, in which the judgment would be binding only as to the property attached, into a mixed proceeding in rem et in personam; and, it would seem, a judgment for the defendant would be final. On the trial, a variance between the evidence and the plaintiff's affidavit of his cause of action is unimportant, whatever might be the effect of a variance between the cause of action set forth in the narr. and the affidavit upon the attachment. Dallett v. Creighton, 2 T. & H. Pr. 685-6 (3d ed.). The judgment, when recovered, has the same effect as if the suit had been commenced by summons. Blyler v. Kline, 64 P. S. 130.

(t) The entry of a judgment, by confession, does not disturb the lien of the attachment. Littell v. Scranton Gas and Water Co., 42 P. S. 500. (u) That is, from the tenant holding under the defendant, who alone can be summoned as garnishee, under § 49, supra 13. Lambert v. Challis, 35 P. S. 156 n. Hayes v. Gillespie, Ibid. 155.

13 June 1836 § 67. P. L. 584.

His powers and duties.

Ibid. § 68.

41. The sheriff or other officer shall, by virtue of such writ, proceed, from time to time, to recover such rents, in like manner and with the like powers as are or shall be possessed by a landlord under the laws of this commonwealth, and it shall be his duty, forthwith, on the receipt of any moneys arising from the recovery of such rents, to bring the same into court.

42. After judgment obtained on scire facias against such tenant as garnishee, it shall be lawful for the plaintiff to have execution, as hereinbefore provided, if the issue against such rents of the premises, or any part thereof, shall have remained in the hands of such

How execution to

rents.

Ibid. § 69.

If insufficient, fi.

tenant; or if such rents or any part thereof shall have been paid into court as aforesaid, then, upon award of execution as aforesaid, the plaintiff may have such money paid into his hands, on his giving security as herein provided.

43. If the rents and profits of the real estate as aforesaid shall not be sufficient to satisfy the amount of the judgment, with the interest, costs and charges as fa. to issue against aforesaid, the plaintiff, on giving security to restore as aforesaid, may have a writ of fieri facias, upon which the like proceedings may be had for the condemnation and sale of real estate as in other cases.

lands attached.

8 May 1855 § 4. P. L. 533.

44. After the execution of any writ of foreign attachment upon the lands and tenements of the defendant, or upon lands held by the lien of any judgment or Plaintiff may have mortgage owned by the defendant, as provided in the third section of this act, it shall be lawful for any court, if in session, or any judge in vacation, upon petition and affidavit, in the usual form, of the plaintiff, or some one in his behalf, to award and allow a writ of estrepement to stay waste upon all such lands and tenements, as in other cases.

estrepement to stay waste.

IX. Proceedings where one of the several defendants is liable to an

18 June 1886 § 70. P. L. 585.

Process where

are not liable to

attachment.

attachment.

45. In all cases where two or more persons shall be jointly, but not severally, (v) liable to the suit of another, if one or more of such persons shall be liable to process of attachment as aforesaid, and another or others of them shall not be some of the parties liable to such process, it shall be lawful for the person to whom such liability is due to sue out and prosecute thereon a writ of attachment and summons, in the following form, to wit: [L. S.] County, ss. The Commonwealth of Pennsylvania: To the sheriff of said county, greeting: We command you, that you summon every of them be and appear before our court of· for the said county, on the

Form of writ.

Ibid. § 72.

Proceedings on such writ.

Ibid. § 73.

How execution to issue.

Ibid. § 74. Powers of the court as to the execution.

Ibid. § 75.

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[setting forth briefly the cause of action or complaint as in the præcipe,] and that you attach late of your county, by all and singular his goods and chattels, in whose hands or possession soever the same may be found, and also that you summon the person and persons, and every of them, in whose hands the goods or effects, or any of them, of the said may be found, so that they be and appear before the said court, at the day and place aforesaid, to answer what shall be objected to them, and abide the judgment of the court in the premises, and have you then there this writ: Witness, &c.

46. The plaintiff in such writ shall be entitled to proceed thereon against the defendants named in the clause of summons [or capias,] in like manner, and with like effect, as if one writ of summons [or capias] had been issued against all the defendants, instead of a writ in the form aforesaid; (w) and he shall also be entitled to proceed against the defendants named in the clause of attachment, and their estate or effects, (x) seized or bound thereby, in the manner hereinbefore provided where all the defendants in such writ are attached.

47. If a judgment be rendered against the defendants who shall have appeared as aforesaid, execution thereof may be had, in like manner as in the case of a judgment rendered upon the confession of the defendant; and if such defendants have nothing, or not sufficient whereof to levy such judgment, it shall be lawful for the plaintiff to levy his judgment, or the residue thereof, of the goods and effects which may remain, subject to the attachment, proceeding therein in all respects in the manner hereinbefore provided, where none of the defendants enter bail as aforesaid.

48. Provided, nevertheless, That the court may, if they see cause, award execution of the whole or any part of such judgment against the goods or effects of the defendants attached, in the first instance, saving, nevertheless, to all the defendants, their respective rights and claims against each other in that behalf.

49. If any of such defendants against whom a summons [or capias] shall issue as aforesaid, shall plead any plea in bar of the whole action, in the manner and form in which it is brought, and a verdict and judgment absolute thereon be

(v) See Fretz v. Johnson, 15 W. N. C. 208. (1) If the attachment be dissolved, the action may proceed against the other defendant. Shreve v. Young, 2 T. & H. Pr. § 2281.

(x) In a proceeding by summons against a resident

partner, and foreign attachment against his non-resident copartner, the partnership property cannot be taken under the foreign attachment; the separate property of the non-resident partner only is so liable. White's Case, 10 W. 217.

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