that the same are of a perishable nature and in danger of immediate waste or decay, such sheriff or other officer shall summon three respectable freeholders of his county, who shall examine the goods and [*156] chattels so levied on; and if the said freeholders shall, on oath or affirmation, certify that in their opinion they are of a perishable nature, and in danger of immediate waste and decay, then such goods and chattels shall be sold at public vendue, by the sheriff or other officer, he having first advertised such sale at the court-house and two other public places in his county at least ten days before the sale; Provided, such property may be sold upon such notice, less than ten days, as the examiners shall certify will be for the best interest of the parties concerned. The money arising from such sale shall be liable to the judgment obtained upon such attachment, and deposited in the hands of the clerk of the court to which the process shall be returnable, there to abide the event of

such suit.

[R. S. 1845, p. 68, § 23; Walker v. Welch, 14 Ill. 278.

21. Garnishment. § 21. When the sheriff or other officer is unable to find property of any defendant, sufficient to satisfy any attachment issued under the provisions of this act, he shall summon the persons mentioned in such writ as garnishees, and all other persons within his county whom the creditors shall designate as having any property, effects, choses in action or credits, in their possession or power, belonging to the defendant, or who are in anywise indebted to such defendant, the same as if their names had been inserted in such writ; the persons so summoned shall be considered as garnishees, and the sheriff shall state, in his return, the names of all persons so summoned, and the date of such service on each.

[See "Garnishment," ch. 62; R. S. 1845, p. 66, § 12; U. S. Express Co. v. Bedbury, 34 Ill. 459; 1 Brad. 403.

22. Notice by publication and mail. § 22. When it shall appear by the affidavit filed, or by the return of the officer, that a defendant in any attachment suit is not a resident of this State, or the defendant has departed from this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him, it shall be the duty of the clerk of the court in which the suit is pending to give notice, by publication at least once in each week for three weeks successively, in some newspaper published in this State, most convenient to the place where the court is held, of such attachment, and at whose suit, against whose estate, for what sum, and before what court the same is pending, and that unless the defendant shall appear, give bail, and plead within the time limited for his appearance in such case, judgment will be entered, and the estate so attached will be sold. And such clerk shall, within ten days after the first publication of such notice, send a copy thereof, by mail, addressed to such detendant, if the place of reridence is stated in such affidavit; and the certificate of the clerk, that e has sent such notice in pursuance of this section, shall be evidence of that fact.

[R. S. 1845, p. 66, § 14; Forsyth v. Warren, 62 Ill. 68; Morris v. Trustees, 15 270; Thormeyer v. Sisson, 83 Ill. 188; Lawver v. Langhans, 85 Ill. 138.

Ill.

23. Default. § 23. No default or proceedings shall be taken against any defendant not served with summons, unless he shall appear, until the expiration of ten days after the last publication as aforesaid.

[Lawver v. Langhans, 85 Ill. 141; Vairin v. Edmonson, 5 Gilm. 270; Pierce v. Carleton, 12 III. 364; Pile v McBratney, 15 Ill. 318; Morris v. Trustees, 15 Ill. 270; Fox v. Turtle, 55 Ill. 377; Underhill v. Corwin, 15 Ill. 556; People v. Cameron, 2 Gilm. 468.

24. Continuance for service, etc. § 24. If, for want of due publication or service, the cause shall be continued, the same proceedings shall be had at a subsequent term of the court, as might have been had at the term at which the writ is returnable.

25. Declaration. § 25. The declaration shall be filed on the return of the attachment, or at the term of the court when the same is made returnable. If the declaration is not so filed the defendant may, in the discretion of the court, have the suit dismissed.

[See "Practice," ch. 110, § 18; R. S. 1845, P. 417, § 26; Roberts v. Dunn, 71 Ill. 46; Lawver v. Langhans, 85 Ill. 141.

26. Practice and pleadings.

26. The practice and pleadings

in attachment suits, except as otherwise provided in this act, shall conform, as near as may be, to the practice and pleadings in other suits at law.

[Singleton v. Wofford, 3 Scam. 576; Lawver v. Langhans, 85 III. 143.

27. Traversing affidavits. § 27. The defendant may plead, traversing the facts stated in the affidavit upon which the attachment issued, which plea shall be verified by affidavit; and if, upon the trial thereon, the issue shall be found for the plaintiff, the defendant may plead or demur to the action as in other cases, but if found for the defendant, the attachment shall be quashed, and the cost of the attachment shall be adjudged against the plaintiff, but the suit shall proceed to final judgment as though commenced by summons.

[Laschear v. White, 88 111. 43; Maeller v. Quarries, 14 Ill. 280; Boggs v. Bindskoff, 23 Ill. 67; Brown v. Ill. Cent. Ins. Co., 42 Ill. 366; Ridgeway v. Smith, 17 Ill. 33 Lawrence v, Steadman, 49 Ill. 270; Eddy v. Brady, 16 Ill. 306; Motherell v. Beaver, 2 Gilm. 69; Cushman v. Savage, 20 Ill. 330; Bradshaw v. Morehouse, 1 Gilm. 395; Branigan v. Rose, 3 Gilm 123; Smith v. Harris, 12 lll. 466; Ryan v. May, 14 11 50; Delahay v. Clement, 3 Scam, 201; Cook v. Yarwood. 41 Ill. 115; Parsons v. Case, 45 III. 296; Hawkins v. Albright, 70 Ill. 88; Schwabacker v. Rush, 81 Ill. 310.

28. Amendments. § 28. No writ of attachment shall be quashed, nor the property taken thereon restored, nor any garnishee dis[*157] charged, nor any bond by him given canceled, nor any rule entered against the sheriff discharged, on account of any insufficiency of the original affidavit, writ of attachment or attachment bond, if the plaintiff, or some credible person for him, shall cause a legal and sufficient affidavit or attachment bond to be filed, or the writ to be amended, in such time and manner as the court shall direct; and in that event the cause shall proceed as if such proceedings had originally been sufficient.

[R. S. 1845, p. 65, § 8: p. 307, 8 39; Moore v. Mauck, 79 Ill. 393; Lea v. Vail, a Scam. 473: Beecher v. James, 2 Scam. 462; Easton v. Altum, 1 Scam. 250; Meire v. Brush, 3 Scam. 21; Morris v. Trustees, etc., 15 Ill. 266.

29. Interpleading. § 29. In all cases of attachment, any per

son, other than the defendant, claiming the property attached, may interplead, verifying his plea by affidavit, without giving bail, but the property attached shall not thereby be replevied; and the court shall immediately (unless good cause be shown by either party for a continuance) direct a jury to be impaneled to inquire into the right of property. In all cases where the jury find for a claimant, such claimant shall be entitled to his costs; and where the jury find for the plaintiff in the attachment, such plaintiff shall recover his costs against such claimant. If such claimant is a non-resident of the State, he shall file security for costs as in case of non-resident plaintiff.

[R S. 1845, p. 68, 21; Williams v. Van Metre, 19 Ill. 293; Purcell v. Steele, 12 Ill. 95; City Ins. Co. v. Com. Bank, 68 Ill. 349; Needham v. Clary, 62 Ill. 344; Meadowcroft v. Agnew, 89 Ill. 472.

30. Set-off. 30. Any defendant, against whom an attachment may be sued out under this act, may avail himself in his defense of any set-off property pleadable by the laws of this State.

[R. S. 1845, P. 69, § 25; Rankin v. Simonds, 27 III. 352.

31. Attachment in aid. § 31. The plaintiff in any action of debt, covenant or trespass, or on the case upon promises, having commenced an action by summons or capias, may, at any time pending such suit, and before judgment therein, on filing in the office of the clerk where such action is pending a sufficient bond and affidavit showing his right to an attachment under the first section of this act, sue out an attachment against the lands, goods, chattels, rights, moneys, credits and effects of the defendant, which attachment shall be entitled in the suit pending, and be in aid thereof; and such proceedings shall be thereupon had as are required or permitted in original attachments, as near as may be; Provided, this section shall not apply to actions of trespass, or cases in which the defendant has been arrested and has given special bail; And, provided, further, that in all actions of trespass, and trespass on the case, before a writ of attachment shall be issued, the plaintiff, his agent or attorney, shall apply to a judge of a court of record or a master in chancery of the county in which the suit is pending, and be examined, under oath, by such judge or master concerning the cause of action; and thereupon such judge or master shall indorse upon the affidavit the amount of damages for which the writ shall issue, and no greater amount shall be claimed. [L. 1869, p. 355, § I.

32. In aid of scire facias. $ 32. In all cases when a scire facias shall be sued out of any court of this State, to make any person party to any judgment that has been or hereafter may be rendered therein, writs of attachment may be issued in aid thereof, against any one or all persons named in such scire facias, to any county of this State, upon the terms provided in this act; and the parties in such writs of attachment may be brought in by notice as in other cases of attachment, when personal service cannot be had.

[L. 1861, p. 171, § 1; Ryder v. Glover, 3 Scam. 547; Firebaugh v. Hall, 63 Ill. 81. 33. Proceedings in aid. § 33. Upon the return of attachments issued in aid of actions pending, unless it shall appear that the defendant or defendants have been served with process in the original cause, notice

of the dependency of the suit, and of the issue and levy of the attachment, shall be given as is required in cases of original attachment; and such notification shall be sufficient to entitle the plaintiff to judgment, and the right to proceed thereon against the property and estate attached, and against garnishees, in the same manner and with like effects as if the suit had been commenced by attachment. [L. 1851, p. 160, § I. 34. Effect of judgment. § 34. When the defendant has been served with the writ, or appears to the action, the judgment shall have the same force and effect as in suits commenced by summons; [*158] and execution may issue thereon, not only against the property attached, but the other property of the defendant.

[R. S. 1845, p. 65, § 12; People v. Cameron, 2 Gilm. 468; Samuel v. Agnew, 80 Ill. 553; Gilcreest v. Savage, 44 Ill. 56; Jones v. Byrd, 74 Ill. 115.

35. Judgment by default-special execution. § 35. When the defendant shall be notified as aforesaid, but not served with process, and shall not appear and answer the action, judgment by default may be entered, which may be proceeded upon to final judgment as in other cases of default, but in no case shall judgment be rendered against the defendant for a greater sum than appears, by the affidavit of the plaintiff, to have been due at the time of obtaining the attachment, with interest, damages and costs; and such judgment shall bind, and a special execution shall issue against the property, credits and effects attached, and no execution shall issue against any other property of the defendant; nor shall such judgment be any evidence of debt against the defendant in any subsequent suit.

[R S. 1845, P. 65, § 12; Clymore v. Williams, 77 Ill. 618; Mech. S. Inst. v. Givens, 82 Ill. 157.

36. What property levied upon. 36. The property attached may be levied upon by execution issued in the attachment suit, whether in the hands of the officer or secured by bond as provided in this act, and shall be sold as other property levied upon by execution.

37. Division of proceeds-priority. § 37. All judgments in attachments against the same defendant, returnable at the same term, and all judgments in suits by summons,capias or attachment against such defendant, recovered at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered shall share pro rata, according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise; Provided, when the property is attached while the defendant is removing the same or after the same has been removed from the county, and the same is overtaken and returned, or while the same is secreted by the defendant, or put out of his hands, for the purpose of defrauding his creditors, the court may allow the creditor or creditors through whose diligence the same shall have been secured a priority over other attachments or judgment creditors.

[R. S. 1845, p. 69, § 26; McCoy v. Schnellbacker, 2 Brad. 582; Claymore v. Williams, 77 Ill. 618; Stahl v. Webster, 11 Ill. 511; Rucker v. Fuller, 11 Ill. 223; Mechanics Savings Institution v. Givens, 82 Ill. 158.

38. Statement of participating judgments-officer to divide proceeds. § 38. Upon issuing execution against any prop

erty attached, the proceeds of which shall be required to be divided, the clerk shall, at the same time, make out and deliver to the sheriff or other officer to whom the execution is issued, a statement of all judgments, with the costs thereon, which shall be entitled to share in such proceeds, and when any judgment creditor shall have been allowed a priority over the other judgment creditors, the same shall be stated. Upon the receipt of such proceeds by the sheriff or other officer, he shall divide and pay over the same to the several judgment creditors entitled to share in the same in the proportion they shall be entitled thereto.

[R. S. 1845. P. 69, § 26; Warren v. The Iscarian Com., 16 Ill. 114; Buchter v. Dew, 39 Ill. 40; Chandler v. Mullanphy, 2 Gilm. 464.

39. Payment into court. § 39. The court may, at any time before the proceeds of any attached property has been paid over to the judgment creditors, order the whole or any part thereof to be paid into court, and may make any and all such orders concerning the same as it shall deem just. Warren v. Iscarian Com., 16 III. 114.

40. Appeal-writs of error. $40. The plaintiff or defendant in any attachment, person interpleading, and the sheriff or either of them, who may feel aggrieved by the judgment of the court, may prosecute writs of error and take appeals as by law is provided in other cases. [R. S. 1845, p. 69, § 28.

41. Fraud. § 41. This act shall be construed in all courts in the most liberal manner for the detection of fraud. [R. S. 1845, p. 70, $ 34. [§ 42, repeal, omitted. See "Statutes," ch. 131, § 5.

BEFORE JUSTICES OF THE PEACE.

[*159]

AN ACT in regard to attachments before justices of the peace. [Approved February 9, 1872. In force July 1, 1872.]

42. When may issue. SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Asssembly, That writs of attachment may be granted against the personal estate, goods, chattels, money, choses in action, credits and effects of the debtor, by justices of the peace, in all civil actions cognizable before them, where the demand does not exceed the jurisdiction of justices of the peace, for the same causes as attachments may be issued out of courts of record, and upon filing with the justice a sufficient affidavit and bond to the defendant with sufficient security, to be approved by the justice, in a penalty at least double the amount of the plaintiff's claim, conditioned substantially as hereinafter provided.

[R. S. 1845, p. 58, § 1; Thomas v. Hinsdale, 78 Ill. 259.

43. Form of affidavit. § 2. Affidavits for attachment before justices of the peace may be substantially in the following form: STATE OF ILLINOIS,

County of

A. B., being duly sworn, says: That (here state if affiant is agent or attorney of the creditor, and if the suit is by firm, the name of the partners), has a just demand against (name of debtor), on account of (here make short statement of the nature of the demand), and the affiant believes (the name of creditor) is entitled to recover of said (name of debtor), after a lowing all just credits and set-offs, dollars and