a defendant before an execution against the property has been returned unsatisfied, except in actions of trover and trespass.1

II. OF GARNISHMENT.

Rev. Stat. 307, Sec. 38. "Whenever a judgment shall be rendered by any court of record, or any justice of the peace in this State, and an execution against the defendant or defendants in said judgment shall be returned by the proper officer, "no property found," on the affidavit of the plaintiff, or other credible person, being made before the clerk of said court, or justice of the peace, that said defendant or defendants have no property within the knowledge of such affiant, in his or their possession, liable to execution; and that such affiant hath just reason to believe that another person, or persons, is or are indebted to such defendant or defendants, or hath, or have any effects or estate of such defendent or defendants, in his or their hands; it shall be lawful for said court, or justice of the peace, to cause the person or persons supposed to be indebted to, or supposed to have any of the effects or estate of the said defendant or defendants, to be summoned forthwith to appear before said court, or justice, as a garnishee or garnishees; and said court or justice of the peace, shall examine and proceed against such garnishee or garnishees, in the same manner as is required by law against garnishees in original attachments."

A. B., the plaintiff in the above entitled suit, being sworn, on oath says that he lately recovered a judgment in said suit before L. M., a justice of the peace of said county, against said C. D., for the sum of dollars, debt, and dollars, costs of suit; that an execution has been lately issued on said judgment, and returned by a constable of said county, "no property found;" that the said C. D. has no property within deponent's knowledge in his possession liable to execu

(1) 13 III. 22.

tion; that deponent has just reason to believe, and does believe, that one E. F. is indebted to the said C. D., (or that E. F. hath effects of the said C. D. in his hands.)

The People of the State of Illinois to any Constable of said county, GREETING:

Whereas, A. B. hath this day made oath before the undersigned, a justice of the peace of said county, that he lately recovered a judgment before L. M., a justice of the peace of said county, against the said C. D., for the sum of dollars, debt, and for dollars, costs of suit; that an execution has been lately issued on said judgment and returned by a constable of said county, "no property found;" that said C. D. has no property within deponent's knowledge in his possession, liable to execution; that deponent has just reason to believe, and does believe, that one E. F. is indebted to the said C. D., (or that E. F. hnth effects of the said C. D. in his hands.) Now, therefore, we command you that you summon the said C. D. to appear forthwith, as garnishee, before the undersigned, at his office in —, in said county, to answer what may be then and there objected against him.

Given under the hand and seal of the said

justice of the

L. M., J. P. [SEAL.]

When the person summoned as garnishee appears, the justice will require that he be sworn touching his indebtedness to the defendant, or judgment debtor in question, or as to his having any effects or estate in his hands belonging to said defendant. The following may be the form of such oath:

Form of Oath to be administered to Garnishee.

You do swear that you will true answers make to such questions as

may be put to you touching your indebtedness to C. D., or as to your having in your hands any effects of the said C. D.

Rev. Stat. 307, Sec. 39. "No proceedings against a garnishee or garnishees, shall be quashed or set aside, or said garnishee or garnishees discharged, on account of any insufficiency of the original affidavit or summons, if the plaintiff or plaintiffs, or other credible person for him, shall cause a legal and sufficient affidavit to be filed, or the summons to be amended in such time and manner as the courts or justices of the peace shall, respectively, in their discretion direct; and, in that event, the cause shall proceed as if such proceedings had originally been sufficient."

A garnishee is liable for all that may be in his hands, or owing by him to the principal debtor, upon a fair settlement between them from the service of the garnishment.1

The answer of a garnishee, until it is contradicted or disproved, must be considered as true.

It must clearly appear that he is chargeable, or he will be discharged.2 Surplus money made on execution, in the hands of an officer, belonging to the defendant, may be garnisheed in the hands of an officer.3

Where property had been placed in the hands of a garnishee to indemnify him for becoming the security of such defendant, it was held to be a pledge of the property, and gave the garnishee a right to retain it until his liability as security was extinguished.*

A defendant being notified that a judgment against him belongs to a person other than the plaintiff on the record, he is as much bound by the notice as if the record stated the judgment to be for the use of such person.5

A garnishee may inquire into the legality and regularity of all the previous proceedings against a defendant in attachment, in order to determine whether they were authorised or not.

6

(1) 1 Gil. 584. (5) 12 II. 170.

(2) Ibid.; 12 III. 358.
(6) 12 Ill. 358.

(3) 12 II. 358.

(4) 1 Gil. 86.

PART SECOND.

OF PROCEEDINGS BEFORE JUSTICES OF THE PEACE IN CRIMINAL CASES.

CHAPTER I.

OF THE POWERS OF JUSTICES OF THE PEACE, RELATIVE TO THE ENFORCEMENT OF THE LAWS, FOR THE PREVENTION AND PUNISHMENT OF OFFENSES, AND PRESERVATION AND OBSERVANCE OF THE PEACE.

Rev. Stat. 190, Sec. 201. "The judges of the supreme and circuit courts in their respective circuits, and justices of the peace in their respective counties, shall jointly and severally be conservators of the peace within their respective jurisdictions, as herein designated, and shall have full power to enforce, or cause to be enforced, all laws that now exist, or that shall hereafter be made, for the prevention and punishment of offenses, or for the preservation and observance of the peace. They shall have power to cause to be brought before them, or any of them, all persons who shall break the peace, and commit them to jail, or admit them to bail, as the case may require; and to cause to come before them, or any of them, all persons who shall threaten to break the peace, or shall use threats against any person within this State, concerning his or her body, or threaten to injure his or her property, or the property of any person whatever; and, also, all such persons as are not of good fame; and the said judge or justice of the peace, being satisfied, by the oath of one or more witnesses, of his or her bad character, or that he or she had used threats as aforesaid, shall cause such person or persons to give good security for the peace, or for their good behavior towards all the people of this State, and particularly towards the individual threatened. If any person against whom such

proceedings are had, shall fail to give a recognizance, with sufficient security, it shall be the duty of the judge or justice of the peace before whom he or she shall be brought, to commit such person or persons to the jail of the proper county, until such security be given, or until the next term of the circuit court. Such judge or justice of the peace shall also take recognizance for the appearance of all witnesses at such courts. All recognizance to be taken in pursuance of this section, shall be returnable to the next circuit court, to be holden in the proper county, where all such recognizance shall be renewed or dismissed, as the said circuit court shall, upon examination of the witnesses, deem to be just and right. And where the person or persons committed are in jail at the sitting of such circuit conrt, the court shall examine the witnesses, and either continue the imprisonment, bail the prisoner, or discharge him or her, as to the said court shall appear to be right, having due regard to the safety of the citizens of this State."