property at SEC. 2954. The amount thus sworn to is intended as a guide Amount of to the sheriff, who must, as nearly as the circumstances of the tached. case will permit, levy upon property fifty per cent. greater in R. 3176 value than that amount. C. '51, 1850. SEC. 2955. If the demand is not founded on contract, the Not on conoriginal petition must be presented to some judge of the supreme, allow. tract; judge to district, or circuit court, who shall make an allowance thereon of R. 3177. the amount in value of the property that may be attached. The 13 G. A. ch. 161 provisions of this section apply only to cases in the district and 22. circuit court. a penal statute or ordinance, the rem- An action on a penal bond, held, toed sum, as a forfeiture provided by be an action upon contract, and not within this section. The distinction intended is between actions ex contractu and those ex delicto; and if on contract, they fall under § 2953, although the damages are not settled or liquidated by the contract itself: Lora r. Gaddis, 6-57; and see Johnson v. Butter. 2-535. This section does not refer to actions brought to recover a certain liquidat An action for damages for false representations as to the soundness of sheep so'd, held, to be an action founded on contract, and to com within the provision of § 2953: Swan v. Smith, 26–87. FOR DEBTS NOT DUE. may C. '51,1851. SEC. 2956. The property of a debtor be attached previous what petition to the time when the debt becames due, when nothing but time is must state. wanting to fix an absolute indebtedness, and when the petition, in C. 51, 1852. addition to that fact, states: 1. That the defendant is about to dispose of his property with intent to defraud his creditors; or 2. That he is about to remove from the state and refuses to make any arrangements 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; or, 3. That the defendant has disposed of his property in whole or in part with intent to defraud his creditors; or, 4. That the debt was incurred for property obtained under false pretenses. In an action commenced by attachment under this section, the defendant cannot set up the defense that the debt is not due: Churchill v. Fulliam, 8-45. That defendant refused to make any arrangements for securing, etc., as specified in T2, need only be averred in connection with the allegation that he is about to remove, etc., and has no application to the preceding A disposition or removal of prop- R. 23178. When to plead in such case. R. 2 3179. Judgment in. SEC. 2957. If the debt or demand on which the attachment. suit is brought is not due at the time of the service of the attachment, the defendant is not required to file any pleadings until the maturity of such debt or demand; but he may, in his discretion, do so and go to trial as early as the cause is reached. SEC. 2958. And no final judgment shall be rendered upon such attachment unless the party consents as in the last section, until the debt or demand upon which it is based becomes due. But property of perishable nature may be sold as in other attach ment cases. Must be first given amount. R. 2 3181. C. 51, 1853. Additional BOND. SEC. 2959. In all cases, before an attachment can be issued, the plaintiff must file with the clerk a bond for the use of the defendant, with sureties to be approved by such 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 in a court of record, 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. [The printed code has "it" instead of an attachment," in the first line, as in the original.] The bond is to be double the valuev. Phenicie, 9-525; Van Winkle v. of the property which the sheriff may Stevens, 9-264; Hamble v. Owen, 20attach, or three times the amount 70. A bond signed by both principal sworn to by plaintiff. It is not suf- and sureties in their partnership ficient that it be double the amount name, is not prima facie insufficient: sworn to, or double the value of the Danforth v. Carter, 1-546; Churchill property which is actually attached: v. Fulliam, 8-45. Churchill v. Fulliam, 8-45; Hamill SEC. 2960. The defendant may, at any time before judgment, move the court or judge for additional security on the part of the plaintiff, and if, on such motion, the court or judge is satisfied that the surety in the plaintiff's bond has removed from this state, or is not sufficient, the attachment may be vacated and restitution directed of any property taken under it, unless, in a reasonable time to be fixed by the court or judge, security is given by the plaintiff. SEC. 2961. In an action on such bond, the plaintiff therein may recover if he shows that the attachment was wrongfully sued by way of coun- out, and that there was no reasonable cause to believe the ground Action on or ter claim. R. 3183. C. '51, 1854. upon which the same was issued to be true, the actual damages sustained and reasonable attorney's fees to be fixed by the court; and if it be shown such attachment was sued out maliciously, he may recover exemplary damages, nor need he wait until the principal suit is determined before suing on the bond. [The word "fixed" in the fifth line, as in the original, is "filed" in the printed code.] An action for wrongfully suing | probable cause, should sue out a writ out an attachment, should be brought on the bond: Abbott v. Whipple, 4 Gr. 320. An action might be maintained independently of the statute against a party who, maliciously and without of attachment; but in the absence of proof of malice and want of probable cause, the only remedy is on the bond: Tallant v. Burlington Gas Light Co. 36-262. The question in an action on the bond, for improperly suing out the writ, is not whether he facts alleged as grounds for attachment were actully true, but whether plaintiff, exercising that degree of caution that a reasonably prudent man should have exercised, had good cause to believe that they were true: Winchester v. Cox. 4 G. 121; Mahnke v. Damen, 3-107; Benton v. Knapp, 14-196. sued out: Gaddis v. Lord, 10-141. See also notes to § 2953. Dismissal of suit by plaintiff does not of itself entitle defendant to nominal damages on the bond: Nockles v. Eggspieler, 47-400. In an action on the bond, either original or by way of counter claim, the party, if entitled to recover at all, may recover all expenses incurred in Defendant may show as a defense, making defense to the attachment either that he had good cause to be-proceeding: Vorse v. Phillips, 37– lieve the grounds stated to be true, or that it was true in fact, irrespective of his grounds of belief: Vorse r. Phillips, 37–428. Where the ground alleged for an attachment was that defendant was about to dispose of his property with intent to defraud his creditors, held, that on the trial of a counter claim for damages for the wrongful suing out of such attachment, defendant could not testify what his intention in disposing of his property really was, the true question being whether plaintiff had reasonable cause to believe that defendant's intention was fraudulent: Selz v. Belden, 48-451. The judgment in an attachment suit may be introduced in evidence in an action on the bond, and is conclusive as to the indectedness between the parties, but not as to the plaintiff's belief in regard to the truth of the matters stated in his petition: Gaddis v Lord, 10-141; Raver v. Webster, 3-502. To entitle a party to exemplary damages, it must a pear that the attaching plaintiff procured the attachment without reasonable grounds to believe the truth of the matter stated in his application, and with the intention. design, or set purpose of injuring the defendant ther in: Ibid. (both cases.) A failure to recover at all, or a recovery of less than $5.00, is conclusive that the attachment was wrongfully 425. Where the suing out of an attachment was not wilful and malicious, the damages recoverable are confined to actual compensation for damages immediately consequent upon the wrongful act, and under Rev. § 3183, which did not authorize the recovery of attorney's fees, held, that defendant could not recover such fees for defending an attachment suit, or prosecuting an action on the bond: Plumb v. Woodmansee, 34-116. The mis-print of "filed" for "fixed" is referred to and recognized as an error in Selz v. Belden, 48-451, and Weller v. Hawes, 49-45. The jury have nothing to do with fixing the amount of the attorney's fee. The better practice would be not to introduce any evilence as to such fee during the trial, but if, in answer to a special interrogatory, the jury find that the judgment was wrongfully sued out, then evidence as to the amount of the fee should be introduced to the court and a finding male, and the amount so fixed should then be added to or dedu ted from the amount found by the jury as the case may require: Selz v. Beiden, 48451. Attorney's fees constitute a part of the costs, and the legislature may authorize the court to fix the amount, without submitting the question to the jury: Weller v. Hawes, 49-45. MODE OF ATTACHMENT. SEC. 2962. The clerk shall issue an attachment, directing the To whom disheriff of the county therein named to attach the property of the rected. defendant to the requisite amount therein stated. The cause of a'tachment need not | be stated in the writ: Wadsworth v. Cheeney, 13-576. It is not essential that the writ recite the fact that a bond has been filed: Hays r. Gorby, 3-203 (commenting upon Barber v. Swan, 4 Gr. 352); Ellsworth v. Moo, e, 5-486. Prior to the enactment of § 3021, which is broader than Rev. §3.42, it was held that the seal of the court was essential to the writ of attachment, and the absence of such seal could not be supplied by way of amendment: Foss v. Issett, 4 Gr. 76; and that affixing the seal of the R. 23185. More than one may issue and to several coun attachment ties at same time. R. 3184. C51, 1855, 1858. Property at wrong court was equivalent to omit- than was held by the defendant at 479. An attaching creditor acquires no greater right in the property attached Successive writs may be issued in the same county until the proper amount of property is attached: Hamill v. Phenicie, 9-525. SEC. 2963. Attachments may be issued from courts of record to different counties, and several may, at the option of the plaintiff, be issued at the same time, or in succession and subsequently, until sufficient property has been attached; but only those executed shall be taxed in the costs, unless otherwise ordered by the court; and if more property is attached in the aggregate than the plaintiff' is entitled to have held, the surplus must be abandoned and the plaintiff pay all costs incurred in relation to such surplus. SEC. 2964. The sheriff shall in all cases attach the amount of property directed if sufficient, not exempt from execution, found tached: officer's in is county, giving that in which the defendant has a legal and unquestionable title a preference over that in which his title is doubtful or only equitable. duty. R. 3186. C. '51, ¿ 1857. An attachment levy made by a sheriff outside of his county, or secured by fraud or violence, is void, and may be dissolved by motion: Pomroy v. Parmlee, 9-140. Appraisement of the property levied on is not necessary to make the levy good; it is only required where a delivery bond is given (see §2997): Smith v. Coopers, 9-376. several attachments against the executed in the order in which they SEC. 2965. Where there are Several attach- same defendant, they shall be were received by the sheriff. men's. R. 23187. May follow to ty: when. SEC. 2966. If, after an attachment has been placed in the hands of the sheriff, any property of the defendant is moved from another coun- the county, the sheriff may pursue and attach the same in an adjoining county within twenty-four hours after removal. R. 2 3188. What may be C. '51, 1859- The removal of the debtor is en- | 36-315. tirely immaterial: Budd v. Durall, SEC. 2967. Stock or interest owned by the defendant in any company, and also debts due him, or property of his held by third persons, may be attached, and the mode of attachment must be as follows: 1. 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 be in the hands of a third person, notice of attach ment; 2. If the property is capable of manual delivery, the sheriff must take it into his custody if it can be found; 3. 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 has been so attached. 4. 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. The provision as to notice applies and not to cases of garnishment: only to cases of attached property, Phillips v. Germon, 43-101. cases where it is sought to reach the To constitute a valid levy, even between the parties, the officer should do that which would amount to a change of possession, or something equivalent to a claim of d minion coupled with the power to exercise it: Crawford v. Newell, 23-453. But there may be a valid attachment levy, as between the parties at least, upon property not capable of manual de- Judgments owned by defendant livery, which is left in charge of de-are debts, and can only be attached by fendant: Nockles v. Eggspieler, 47400 The proceedings specified in 3 create a lien on the stock and prevent a transfer thereof: Mooar v. Walker, 46-164. The provisions of T 4 are applicable only to personal property, and not to An attachment by garnishment creates no lien on the property, but the remedy is of a personal nature against the garnishee: Mooar v. Walker, 46–164. garnishment, a though under $3046 From the provisions of 4 it appears amined on R. 3189. SEC. 2968. Whenever it appears by the affidavit of the plain- Defendant extiff, or by the return of the attachment, that no property is known oath before to the plaintiff or the officer on which the attachment can be exe- judge. cuted, or not enough to satisfy the plaintiff's claim, and, it being 13 G. A. ch. 1.7, shown to the judge of any court by affidavit, that the defendant § 21. has property within the state not exempt, the defendant may be required by such judge to attend before him, or before the court in which the action is pending, and give information on oath respecting his property. bound. SEC. 2969. Property attached otherwise than by garnishment, When property is bound thereby from the time of the service of the attachment R. 215. only. The actual service of an attachment | v. Felt, 15-141; and the death of the upon property creates a real lien, defendant will not destroy a prior which nothing subsequent can de- acquired lien: Lord v. Allen, 34-281. strov, except the dissolution of the attachment. The legislature may suspend the enforcement of such liens, but cannot destroy them: Hannah |246. The lien of an attachment does not take priority over an unrecorded instrament: Savery v. Browning, 18 C. '51, 1874. and how. SEC. 2970. The court before whom the action is pending, or Receiver ap the judge thereof in vacation, may, at any time, appoint a receiver pointed; when to take possession of property attached under the provisions of R. 23216. this chapter, and to collect, manage, and control the same, and pay over the proceeds according to the nature of the property and the exigency of the case. tached to be SEC. 2971. All money attached by the sheriff, or coming into Money athis hands by virtue of the attachment, shall forthwith be paid paid clerk. over to the clerk to be by him retained till the further action of R. 23217. C. '51, 1875, 1882. R. 3218. the court. SEC. 2972. The sheriff shall make such disposition of other other property. attached property as may be directed by the court or judge, and where there is no direction upon the subject he shall safely keep the property subject to the order of the court. PARTNERSHIP PROPERTY. SEC. 2973. In executing an attachment against a person who Inventory and owns property jointly or in common with another, or who is a appraisement. member of a partnership, the officer may take possession of such R. 3190. |