trover, and mo him, or that any other person, (naming him,) hath any property, moneys or credits of the defendant, then in his possession, or is indebted to said defendant, and that he is in fear such other person will abscond, as aforesaid, it shall be lawful for such plaintiff to institute a suit by capias ad respondendum against such garnishee, or other person, who shall be held to special Form of action, bail; in which suit, the plaintiff may declare for the property, ney count added moneys and credits aforesaid, as of his own proper moneys, property and credits, in trover and conversion: or if the garnishee be indebted to the defendant, for money had and received, or if the garnishee shall have property, moneys or credits of the defendant in his possession, and shall also be indebted to said defendant, the plaintiff may declare in trover, adding thereto a count for money had and received, and give the special matter in evidence; and if verdict and judgment be had for the said plaintiff, execution shall be thereupon had, as in other cases. nishee conti Sec. 6. That the suit so instituted, shall be continued until Suit against gare the action against the defendant in attachment shall be deternued, cost how mined; and if in such action, judgment shall be rendered for taxed and reco- the defendant, the garnishee shall recover costs; and if the vered When property attached is ther, how trial shall be had plaintiff shall recover against the said defendant in attachment, and if the said garnishee shall deliver to the officer executing such writ, all the property in his possession belonging to the defendant, and pay all the moneys from him due, at the time of service of process on such garnishee, then the costs which have accrued in such suit, against said garnishee, shall be paid out of the effects in the hands of such officer. Sec. 7. That if the officer, by virtue of any such writ of attachment, shall attach any goods or chattels, claimed by any person, other than the defendant, it shall be the duty of said claimed by ano officer forthwith to give notice in writing; to some justice of the peace of the county, in which shall be set forth the names of the plaintiff and defendant in attachment, the name of the person or persons claiming, and also a schedule of the property claimed: and it shall be the duty of such justice of the peace, immediately upon the receipt of such notice, to issue a venire facias, directed to the sheriff, or any constable of the county, commanding him to summon five disinterested persons, having the qualifications of electors, who shall be named in said venire facias, to appear before him, at a time therein mentioned, which shall not be more than three days after the date of said venire facias, to try and determine the right in the property so attached; and shall also give notice by summons, to the plaintiff, his agent or attorney, if within the county, of the time and place of such trial: and if the said jury shall find the right to such property, or any part thereof, to be in the claimant, the Judgment, how said justice shall render judgment in favor of such claimant, for his costs, and also that he have restitution of such goods and chattels; but if the right to said property shall be found to be in the defendant in attachment, then the said justice shall enter rendered, costs taxed and Proviso judgment against the claimant for costs, and award execu- When appeal less claimant Condition of pro Sec. 8. That when an appeal shall be taken and perfected, as is provided in the preceding section of this act, the property perfected, so attached and claimed, shall remain in the keeping of the perty to remain officer attaching the same, unless the claimant shall enter into with officer, una bond payable to such otlicer, in double the appraised value gives bond thereof, with one or more sureties, to be approved of by said officer, conditioned that the same property, or the appraised value thereof in money, shall be forthcoming, to answer any judg- bond ment that may be recovered by the plaintiff, or other creditor, against the defendant in attachment, in case the right to such property, or any part thereof, shall be determined against said claimant; and the claimant before the justice, shall be plaintiff Plaintiff in the court of common pleas, and shall declare in trover, and Action trover the special matter may be given in evidence. Claimant to, etc. tered three terms Creditors to file declaration Defendant may file pleas How to proceed Sec. 9. That at the first and two next succeeding terms after the issuing of the writ of attachment, the defendant shall be Default to be encalled, and his default, entered, at or before which third term, the said plaintiff, and every other creditor of the defendant, may file their declarations, setting forth in a proper manner their cause of action: and it shall be competent for such defendant, at or before the said third term, to file special bail, or surrender himself in custody, or elect to have the property attached, remain in custody, and may plead to any, or all of the declarations which may be filed against him; but that if the said defendant shall not plead as aforesaid, the court, at the said third term, shall proceed at the suit of all the said plaintiffs, as in other cases of default: and the said defendant, or any other on his behalf, may appear and introduce evidence defendant does before the court or jury, as in other cases of default; and shall not appear have the same right to appeal, move in arrest of judgment, or set aside the proceedings for irregularity: and if the defendant shall enter special bail, or surrender himself in custody as aforesaid, the operation of such attachment, upon the property and moneys of said defendant, shall cease in respect of the plaintiffs, whose declarations may have been pleaded to in custody, or by reason of having filed special bail: Provided, That no judgment shall be rendered under the provisions of this act, except for causes arising out of, founded upon, or sounding in contract, or upon the judgment or decree of some court of law fom.contracts or chancery: And provided further, That in case judgment shall be rendered against the original plaintiff in attachment, or if he shall otherwise fail to prosecute his suit to effect, the pro Proviso Cause must arise issue, except Proceedings against shee garni. eeedings in favor of such other creditors as may have filed declarations, shall in no wise be affected thereby, but may be prosecuted to final judgment; and the property attached, shall remain in the hands of the officer, to satisfy the same. Sec. 10. That when judgment shall be entered against a Seire facias may defendant in attachment, a scire facias shall issue against the garnishee, (except as herein before provided tor,) to appear at the next term, and show cause why the plaintiff should not have execution of the money due by him to the defendant, or of the goods and chattels of the defendant in the possession of the garnishee; and if the said garnis: ee shalt appear upon the return of the said scire facias, and on oath or otherwise, to the satisfaction of the plaintiff, confess the amount of such debt, or the value of such goods and chattels, and deliver the same to the officer serving said attachment, or shall pay the value thereof, with all moneys from him owing to the said defendant, into court, he shall be discharged from all turther liability on account of the goods so delivered, and the moneys so paid; and the costs thereof shall be paid out of the effects so attached: that if on said scire facias returned "served," or on two writs returned "nibil," the said garnishce sball not appear and confess, as is herein before provided, judgment shall be entered against him by default, and the court shall proceed to assess the amount thereof, and award execution therefor, as in other cases: that if the said garnishee shall appear at the return of said writ or writs, and plead thereto, the issue shall be tried, and the damages assessed by a jury, as in other cases, and judgment shall be entered for the plaintiff in attachment against the garnishee, for the amount found due from him to the defendant in attachment, and for the value of the goods belonging to said defendant, in his possession at the time of serving said writ, with costs, and shall award execution therefor; but if the said jury find in favor of said garnishee, he shall recover costs, and have execution for the same. Property, land. &c. to be sold as execution Sec. 11. That after judgment for the plaintiffs in attachment, all the property remaining in the hands of the officer, if levied upon by with the lands and tenements, if any, whether held by legal or equitable title, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied Money to be di- upon by execution, and the money arising therefrom, with the amongst amount which may be recovered from the said garnishee, after vided icditors discharging the costs, shall be divided among the several creditors, in proportion to the amount of their respective judgments; and if there be not sufficient to satisfy the whole, the said judgments so recovered shall stand, and execution may issue thereon for the residue, in all respects as in other cases: Provided. That animals and property of a perishable nature, may be sold by order of the court, at any time after the return of the writ. Sec. 12. That in all cases of attachment by virtue of this act, if the plaintiff, his agent or attorney, shall make and file with the clerk, an athidavit setting forth that he verily believes that the defendant in attachment hath lands, tenements and real estate, goods or chattels, situate in any other county, (naming such county,) in the State, the clerk shail, on application of the plaintiff or his attorney, make out and seal another writ Writ may go to of attachment, directed to the sheriff or coroner of the county in which such other property shall be, who shall serve and return the same in the same manner, and for neglect shall be liable to the same penalty, as if such writ had issued and was returnable in his own county; and on such writ executed, there shall be the same proceedings as are hereinbefore directed. other counties bound, how to Sec. 13. That when two or more are jointly bound or in- where two of debted, either as joint obligors, partners or otherwise, the writ more are jointly of attachment provided for by this act, may be issued against proceed the separate or joint estates, or both, of such joint debtors, or any of them, in the same manner and under the same restrictions as is provided for by this act in other cases. bate by death of Sec. 14. That if any defendant shall die after a writ of at- Action not to a tachment shall have issued against him, it shall not thereby defendant abate; but the same shall be carried on to judgment, sale and distribution, as if such death had not happened. gedes the action Proviso Sec. 15. That any writ of attachment which may be is- Writ in the C. ol sued out of the court of common pleas, shall be a supersedeas C. pleas superto all attachments issued by a justice of the peace, (except so before a justice far as herein provided,) which may be undetermined at the time of serving said writ; and it shall be lawful for the officer serving the same, to take into his possession all goods and chattles taken by the constable, as if no writ of attachment had been issued by the justice: Provided, That it shall be competent for every plaintiff in attachment, and such as may file their claims before the justice of the peace, to proceed thereon to final judg ment, a transcript of which judgment shall be filed in the court of common pleas, and the parties thereto plaintiffs, shall be entitled to the same distribution as if such judgment had been obtained in said court; and all costs accruing before said justice shall be taxed with the costs in court, and paid as hereinbe fore directed. Costs how taxed and paid Sec. 16. That the act allowing and regulating writs of attachment, passed fourteenth February, in the year one thou-Laws repealed" sand eight hundred and ten, and the act amendatory thereto, passed January twenty eight, in the year one thousand eight hundred and thirteen, be, and the same are hereby repealed. This act shall be in force from and after the first day of Elect June next. JOSEPH RICHARDSON, Speaker of the House of Representatives. January 17th, 1824 Speaker of the Senate. Murder in first degree second degree AN ACT for the punishment of crimes. Sec. 1. Be it enacted by the General Assembly of the State of the Ohio, That if any person shall purposely, of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery or burglary, kill another; every such person shall be deemed guilty of murder in the first degree, and upon conviction thereof, shall suffer death. Sec. 2. That if any person shall purposely and maliciously, Murder in the but without deliberate and premeditated malice, kill another; every such person shall be deemed guilty of murder in the second degree, and on conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, during life. Manslaughter Rape Sec. 3. That if any person shall unlawfully kill another, without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act; every such person shall be deemed guilty of manslaughter, and upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than ten, nor less than three years. Sec. 4. That if any person shall have carnal knowledge of upon his daughter or sister, forcibly and against her will; every perdaughter or sis son so offending shall be deemed guilty of a rape, and upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, during life. ter Rape Carnal woman Sec. 5. That if any person shall have carnal knowledge of any other woman than his daughter or sister as aforesaid, forcibly and against her will; or if any male person of the age of seventeen years and upwards, shall carnally know and abuse any female child under the age of ten years, with or without her consent; every such person so offending shall be deemed guilty of a rape, and upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than twenty, nor less than seven years. Sec. 6. That if any male person, eighteen years old and know- upwards, shall have carnal knowledge of other [any] woman ledre of insane other than his wife, such woman being insane, knowing her to be such; every person so offending shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than ten, nor less than three years. Bigamy Exception Sec. 7. That if any married person, having a husband or a wife living, shall marry any other person; every person so of fending shall be deemed guilty of a high misdemeanor, and upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not exceeding seven, nor less than three years but nothing in this section shall be so construed, to extend to any person whose husband or wife shall be continually and willfully absent for the space of three years together, next before the time of such marriage. |