and eighty-ninth section of this act, or by some proper officer leaving a true and attested copy thereof, at least twelve days before the writ is returnable, with, or at the usual place of abode of, any agent, or clerk employed by said corporation to keep the accounts, or pay its employees in the town where said garnishee transacts business, and where any monies which may be owing to the defendant, are due and payable. SECT. 292. Whenever in any action commenced by process of Service on partforeign attachment, any partnership, the business of which is tran-nership. sacted by one or more of the partners exclusively, or by an agent or agents, is named by the style and title of such partnership as attorney, agent, factor, trustee or debtor of the defendant, service of such writ may be made upon such partnership, either as prescribed in the two hundred and eighty-ninth section of this act, or by the officer leaving a true and attested copy thereof, at least twelve days before the writ is returnable, with, or at the usual place of abode of, such acting partner or partners, agent, or agents, and the plaintiff shall have the right, at any time before final judgment in said suit, to amend said writ without cost, by inserting the names of the several persons composing said copartnership. fend. suit, and notice. SECT. 293. Such attorney, agent, factor, trustee, or debtor, upon Garnishee may his desire, shall be admitted to defend his principal in such suit; but appear and deif the defendant is not in this state, and does not appear, by himself or attorney, and the attorney, agent, factor, trustee, or debtor, with whom such copy is left in service, does not appear to defend, the court shall continue the action to the next court, and may order Continuance of notice to be given by publishing the pendency of the suit in some newspaper, or otherwise, as it may think proper; and if the defendant should not then appear, the court may, if it judge proper, order the action to be continued once more, to give an opportunity to notify the defendant of the pendency of the suit; and then, unless some special matter be alleged for further delay, the cause shall come to trial; but when the action is brought before a justice of the peace, in case the defendant shall not be in this state, and no attorney, agent, factor, trustee, or debtor, appear to defend him, such justice of the peace shall adjourn the cause for a term not less than three, nor more than nine months; and then, unless special reasons be given tee. for a further delay, such action shall come to trial; and if judgment Effects liable for be rendered in favor of the plaintiff, all the goods and effects in the the judgment. hands of such attorney, agent, factor, or trustee, and the debt due from such debtor, shall be liable for the payment of such judgment; and the plaintiff, on praying out an execution, may direct the officer serving the same, to make demand of such attorney, agent, factor, or Officer to make trustee, of, the goods and effects of the defendant in his hands, who demand of trusshall expose the same to be taken on the execution; and also to make demand of such debtor, of any debt due to the defendant, and such debtor shall pay the same; and if such attorney, agent, factor, When trustee is or trustee, shall have, in any manner, disposed of the goods and effects of the principal in his hands, when the copy of the writ was left with him, or shall not expose and subject them to be taken on the execution; or if such debtor shall not pay to the officer, when demanded, the debt due to the defendant, at the time the copy of the writ was left with him, such attorney, agent, factor, trustee, or debtor, shall be liable to satisfy such judgment out of his own estate, as his proper debt, if the goods or effects, or debt, be of sufficient value or amount; if not, then to the value of such goods or effects, liable. Scire facias. close. or to the amount of such debt. And a scire facias may be taken out from the clerk of the court where the judgment was rendered, to be served upon such attorney, agent, factor, trustee, or debtor, requir ing him to appear before such court, and show cause, if any he have to the contrary; and the plaintiff may require, and the defendant Trustee may dis- shall have right to disclose on oath, whether he has any of the goods or effects of the debtor in his hands, or whether he is indebted to him; and the parties may introduce any other proper testimony respecting such fact. If it be found that the defendant has the goods or effects of such debtor in his hands, or is indebted to him, or if he makes default of appearance, or refuses to disclose on oath, judgment shall be rendered against him, as for his own debt, to be shall be rendered paid out of his own goods or estate with lawful costs, and execution shall be granted accordingly; but if it appear on the trial, that the goods or effects are of less value, and the debt of less amount, than the judgment recovered against the debtor, judgment shall be rendered to the value of the goods, or to the amount of the debt; and if it appear that the defendant has no goods or effects of such debtor, in his hands, or is not indebted to him, he shall recover his lawful costs.* When judgment. against him. 1864. Service may be on agent of nonresident gar. nishee. SECT. 294. Whenever in any action commenced by process of foreign attachment the garnishee, named in such process, is not a resident of this state, but is engaged in the transaction of business therein by an agent or agents, such process may be served on such garnishee, by leaving a true and attested copy of such process with such agent or agents. at least twelve days before the writ is returnable; if upon the trial of said action, judgment shall be rendered in favor of the plaintiff, all the goods and effects of the defendant, which were in the hands of the agent of such garnishee in this state, at the time such copy of said process was left with him as aforesaid, and the debt due from such garnishee to the defendant shall be liable for the payment of said judgment; and the plaintiff, on praying out an execution, may difect the officer serving the same, to make demand of such agent, or said garnishee, of the goods and effects of cution on agent. the defendant, which he as such agent has in his hands, who shall expose the same to be taken on execution; and also to make demand of such agent, of any debt due by said garnishee to the defendant, *Immaterial whether scire facias issue before or after return of execution against principal debtor. Goodell v. Williams, 21 C. R. 419. Demand on exe Pleadings in scire facias. Backus v. Denison, Kirby, 421; Woodbridge v. Winthrop, 1 Root, 557. What defense may be made by garnishee. Minor v. Cook, Kirby, 157; Dewitt v. Baldwin, 1 Root, 138; Hubbard v. Brown, 1 Root, 276; Fowler v. Spellman, 1 Root, 295; Boardman v. Stewart, 1 Root, 473; Vaughn v. Sherwood, 1 Root, 507; Edwards Baldwin, 2 Root, 23; Barber v. Andrews, 2 Root, 250; Beach v. Swift, 2 C. R. 269; Thompson v. Stewart, 3 C. R. 171. . Other evidence besides the disclosure, admissible. Thompson v. Stewart, 8 C. R. 171. Disclosure only prima facie evidence. Robinson v. Mason, 27 C. R. 270. And plaintiff, having required disclosure, may contradict it. Cowles v. Coe, 21 C. R. 220. Declara tion of defendant not evidence against garnishee. Enos v. Tuttle, 8 C. R. 247. When debtor is a competent witness for garnishee. Dewitt v. Baldwin, í Root, 138; Enos r. Tuttle, 8 C. R. 247. As to evidence in scire facias, see Cowles v. Coe, 21 C. R. 220; Rowland v. Huggins, 28 C. R. 122. Evidence not admissible of an individual debt, when defendant has been described as debtor of a copartnership. Harvey v. Mix, 24 C. R. 406. Scire facias not an original action. Sherwood v. Stevenson, 25 C. R. 481; Day v. Welles, 31 C. R. 344. Nor "a writ or other original process" within the meaning of the act of congress requiring revenue stamps to be affixed to such process. Smyth v. Ripley, 82 C. R. 156. Formerly in a writ of scire facias, it must have been alleged that the defendant in the original writ was described as an absent and absconding debtor. Laight. Tomlinson, 2 Root, 233. Not necessary to aver that goods could not be found to be attached. Treadway v. Andrews, 20 Č. R. 384. contracted in the name of said garnishee by said agent, with the defendant, and such agent shall pay the same; and if such agent of such garnishee shall have in any manner disposed of the goods and effects of the principal in his hands, when the copy of the writ was left with him, or shall not expose and subject them to be taken on the execution, or shall not pay to the officer, when demanded, the debt due to the defendant at the time the copy of the writ was left with him, such judgment may be satisfied out of the estate of said garnishee, which he may own and possess in this state, as his proper debt, if the goods, or effects, or debt be of sufficient value or amount; if not, then to the value of such goods or effects or to the amount of such debt, and a scire facias may be taken out from the Scire facias, how court where the judgment was rendered, as in other cases, on which served. the estate of the garnishee may be attached, and which shall be served on the agent of such garnishee, requiring such garnishee to appear personally or by his agent, before such court, and show cause if any he have to the contrary; and the plaintiff may require, and the defendant shall have the right, by himself or his agent, to disclose on oath, whether he has any of the goods of the debtor in his hands, or in the hands of such agent, or whether he is indebted to him, and the parties may introduce any other proper testimony respecting such fact. If it be found that the defendant has the goods or effects of such debtor in the hands of his said agent, or is indebted to him, or if he makes default of appearance, or refuses to Judgment disclose on oath, judgment may be rendered against him, as for his own debt, to be paid out of his own goods or estate, with costs, what extent. and execution shall be granted accordingly; if it appears on the trial, that the goods or effects are of less value, and the debts of less amount, than the judgment recovered against the debtor, judgment shall be rendered to the value of the goods, or to the amount of the debt; and if it appears that the defendant has no goods or effects of such agent, or is not indebted to him, he shall recover his cost. against gar. nishee, and to 1852. Demand on exe nishee removed from this state. SECT. 295. Whenever the garnishee in any action commenced by process of foreign attachment, shall have removed from this state, cution, how prior to the issuing of the execution, upon the judgment in such made of garaction, so that no demand can be made of such garnishee in person, by the officer serving the same, for the payment thereof, or for the goods, chattels or effects of the defendant in the hands of such garnishee, the clerk of the court, issuing such, may, at the request of the creditor or of his attorney, indorse thereon an order signed by such clerk, requiring the officer to whom such execution is directed, to make said demand by letter forwarded by mail, postage paid, addressed to such garnishee, or, in such other manner as said clerk shall consider, will, under the circumstances of the case, be most effectual for the purpose for which such demand is required; and such demand, when so made, shall be as effectual as if made of the garnishee personally; but if such garnishee shall have lodged with the clerk of said court, a written notice, under his hand, of the appointment of an agent or attorney, as provided in the two hundred and twenty-seventh section of this act, such officer shall make the like demand of such agent or attorney, if within his precincts, and return thereof made on such execution. signed, and how SECT. 296. When a scire facias shall be brought against any attor- Scire facias, how ney, agent, factor, or trustee, or debtor, of a debtor, on a judgment returnable. rendered by a justice of the peace, such scire facias shall be signed 1852. Writ of scire facias to be by order of judge ment in original suit. by the justice rendering the judgment; and when the demand does not exceed fifty dollars, shall be made returnable before the same justice of the peace; but when the demand shall exceed fifty dollars, the same shall be returnable before the superior court in the county where the plaintiff or defendant dwells; and if the justice rendering such judgment, shall be removed from office, by death or otherwise, before any scire facias is taken out thereon, such writ may be signed by, and when the demand does not exceed fifty dollars, be made return. able before, any justice of the peace, as in other cases; but when the demand exceeds fifty dollars, such writ shall be made returnable before the superior court, as aforesaid. SECT. 297. In case a writ of scire facias shall be issued against a garnishee who shall have removed from, or be residing out of this served on garni- state, after the service of the original process of foreign attachment, shee out of state, and of whom demand shall have been made as provided in the two or clerk of court hundred and ninety-fifth section of this act, service of said writ of rendering judg scire facias shall be made in such manner as the judge of the court rendering judgment in the original suit, or the clerk thereof, shall, by a written order thereon by him subscribed, direct; and if such garnishee shall have filed with the clerk of said court, a notice of the appointment of an agent or attorney as aforesaid, such writ of scire facias shall be further served, by leaving with such agent or attor ney a true and attested copy of the same; and process so issued and served, shall be as good and effectual against such garnishee, as if served upon him personally. When foreign charge. a SECT. 298. The taking of any goods or effects of any debtor, or attachment à dis- any debt due to him as aforesaid, by process and judgment of law, out of the hands of his attorney, agent, factor, trustee, or debtor, by any of his creditors, shall forever discharge him or them from any suit or demand for the same; and if sued for any thing done in compliance with this act, he or they may plead the general issue, with evidence under notice, and give the provisions of this act in regard to foreign attachment, and the special matter in evidence.* Admissible in general issue. If debt not yet tion to be stayed, SECT. 299. When it shall appear on the hearing of the scire facias, payable, execu- that the debt due to the principal is not yet payable, the court shall direct the execution to be stayed until the time the debt would have become payable; and when the debt was not payable at the time the demand was made on the execution, the court shall allow the garnishee his reasonable costs for defending against such scire facias, to be deducted out of the debt so due. Otherwise gar nishee entitled to cost. SECT. 300. Whenever a scire facias shall be brought to recover a Assignee of debt may be notified. debt due to a debtor or the goods or effects of a debtor, in case any person or persons, either jointly or severally, claim such debt as assignee or assignees thereof, or such goods or effects as owner or owners thereof, the defendant in such scire facias, having notice or knowledge of such assignment, ownership, or claim, may give notice in writing, signed by proper authority, and duly served, to such claimant or claimants, or his or their attorney, that such scire facias is pending, and he or they may appear, if they see cause, and defend against such scire facias; which notice, when the claimant or claimants shall reside out of the state, shall be given in such time and Assignee may appear. * A conditional note is a sufficient payment to protect garnishee, when. Cutler v. Baker, 2 Day, 498. For protection of garnishee in paying over on execution against principal debtor, prior demand on principal debtor not necessary. Culver v. Hall, 20 C. R. 409. Payment by garnishee to creditor of an insolvent debtor within sixty days of insolvency, when protected. Palmer v. Woodward, 28 C. R. 248. to be given. Otherwise, assig. manner as the court before which such action is pending, shall How notice may direct; and thereupon, unless such claimant or claimants shall, within be given. such time as the court before which the scire facias is pending may direct, give to such defendant sufficient security, to the approbation of the court, to indemnify him against all costs, he may suffer judg- Indemnity bond ment, by default or otherwise, to be given against him on such scire facias, which shall be a bar to the claim of the assignee or assignees, les claim bar of the debt, or the owner or owners of the goods or effects; and the red. defendant may give the same in evidence, under the general issue in an action brought to recover the debt, or the value of the When assignee goods or effects. And in case such assignee or assignees, owner defending, enor owners, shall give such security, and make effectual defense against the scire facias, he or they shall be entitled to the bill of costs that shall be recovered against the plaintiff; but if he or they fail to make an effectual defense, the judgment that may be rendered on the scire facias against the defendant, shall be a bar to any claim against him, and he may give it in evidence under the general issue, with notice.* titled to cost. no benefit. SECT. 301. Whenever the assignee of a debt, or the owner of Debtor not disgoods or effects, shall have given security as aforesaid, if the defend- closing, can take ant, on due notice given him, shall neglect to appear and disclose on oath, if required, on the trial of such scire facias; or, in case a commission shall be issued, shall neglect to make disclosure before the commissioners, he shall take no benefit of the provisions aforesaid, nor of the security given as aforesaid. cost to defendant at discretion. SECT. 302. In case any action shall be commenced, or having been Court may allow commenced, shall be prosecuted, in the name of the original creditor, to recover any debt, or in the name of any person, claiming to be owner, to recover the value of any goods, or effects, while such debt, goods, or effects, are under the lien of a foreign attachment, it shall be in the discretion of the court, according to the circumstances of the case, if final judgment be rendered in favor of the plaintiff, to allow costs to the defendant, to be deducted out of such debt, or out of the value of such goods or effects, or to allow costs to the plaintiff, or to allow no costs to either party. take disclosure. SECT. 303. The court before which a scire facias shall be pending, Commission to may issue a commission to take the disclosure of the defendant on oath, whenever, on account of his living out of the state, or his being about to go out of the same, or his being unable to travel, through age, sickness, or bodily infirmity, the court shall judge it to be reasonable. be brought with SECT. 304. The goods, effects, or debts, of a debtor, shall not be scire facias must holden or secured in the hands of his attorney, agent, factor, trustee, in a year. or debtor, by virtue of any judgment rendered against the debtor, unless they shall be demanded of them within sixty days after the rendition of the judgment; and no writ of scire facias shall be maintained against such attorney, agent, factor, trustee, or debtor, unless the same be brought within one year next after the right of bringing the same shall have accrued. SECT. 305. The plaintiff, in a suit by foreign attachment, may, at 1838. his discretion, insert in the writ a direction to the attorney, agent, fac- Garnishe may tor, trustee, or debtor, of the defendant, to appear before the court to disclose. * Assignment of debt after service of process, void. Coit v. Bull, Kirby, 149. be summoned tɔ |