Qualification and justification of sureties.

Power of mar

erty concealed

bail on arrest. Upon such justification the marshal shall deliver the property to the defendant. The marshal shall be responsible for the defendant's sureties until they justify, or until justification is completed or expressly waived, and may retain the property until that time; but if they or others in their place fail to justify at the time and place appointed, he shall deliver the property to the plaintiff.

SEC. 130. Qualification of sureties and their justification shall be as prescribed by sections one hundred and nine and one hundred and ten in respect to bail upon an order of arrest.

SEC. 131. If the property or any part thereof be concealed in a buildshal when prop-ing or inclosure the marshal shall publicly demand its delivery. If it building in- be not delivered he shall cause the building or inclosure to be broken open and take the property into his possession, and if necessary he may call to his aid the power of the district.

closure.

or

Property, how kept and when delivered to plaintiff.

person.

SEC. 132. When the marshal shall have taken the property as in this chapter provided, he shall keep it in a secure place and deliver it to the party entitled thereto upon receiving his lawful fees for taking and his necessary expenses for keeping the same.

Proceedings SEC. 133. If the property taken be claimed by any other person than when property the defendant or his agent, and such person make affidavit of his title claimed by third thereto or his right to the possession thereof, stating the grounds of such title or right, and serve the same upon the marshal before the delivery of the property to the plaintiff, the marshal shall not be bound to keep the property or deliver it to the plaintiff unless the plaintiff, on demand of him or his agent, shall indemnify the marshal against such claim by an undertaking, executed by two sufficient sureties, accompanied by their affidavits that they are each worth double the value of the property as specified in the affidavit of the plaintiff, over and above their debts and liabilities, exclusive of property exempt from execution. And no claim to such property by any other person than the defendant or his agent shall be valid against the marshal unless made as aforesaid; and notwithstanding such claim when so made he may retain the property a reasonable time to demand such indemnity. SEC. 134. The marshal shall file the affidavit, with his proceedings davit by marshal. thereon, including an inventory of the property taken, with the clerk of the court in which the action is pending within twenty days after taking the property mentioned therein, or he may mail or forward the same to the clerk within that time.

Return of affi

SEC. 135. The plaintiff, at the time of issuing the summons, or at When plaintiff any time afterwards, may have the property of the defendant attached may have property as security for the satisfaction of any judgment that may be recovered, of defendant atunless the defendant give security to pay such judgment, as in this chapter provided, in the following cases:

First. In an action upon a contract, express or implied, for the direct payment of money, and which is not secured by mortgage, lien, or pledge upon real or personal property, or, if so secured, when such security has been rendered nugatory by the act of the defendant.

Second. In an action upon a contract, express or implied, against a defendant not residing in the district.

SEC. 136. A writ of attachment shall be issued by the clerk of the court in which the action is pending, whenever the plaintiff or anyone in his behalf shall make and file an affidavit showing

First. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs or counterclaims) upon a contract, expressed or implied, for the direct payment of money, and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real or personal property; and

Second. That the sum for which the attachment is asked is an actual, bona fide, existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought nor the action prosecuted to hinder, delay, or defraud any creditor of the defendant.

SEC. 137. Upon filing the affidavit with the clerk, the plaintiff shall be entitled to have the writ issued as soon thereafter as he shall file with the clerk his undertaking, with one or more sureties, in a sum not less than one hundred dollars, and equal to the amount for which the plaintiff demands judgment, and to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages that he may sustain by reason of the attachment if the same be wrongful or without sufficient cause, not exceeding the sum specified in the undertaking. With the undertaking the plaintiff shall also file the affidavits

tached.

Writ of attach

ment, by whom issued, and for what

causes.

Undertaking of plaintiff to be filed before writ issues.

of the sureties, from which affidavits it must appear that such sureties are qualified, and that, taken together, they are worth double the amount of the sum specified in the undertaking, over all debts and liabilities and property exempt from execution. No person not qualified to become bail upon an arrest is qualified to become surety in an undertaking for an attachment.

Writ, to whom SEC. 138. The writ shall be directed to the marshal, and shall require directed, and what him to attach and safely keep all the property of such defendant not it shall require. exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which shall be stated in conformity with the complaint, together with costs and expenses. Several writs may be issued at the same time for delivery to different deputy marshals.

What property may be attached.

Writ, how executed.

Effect of attach

persons.

SEC. 139. The rights or shares which such defendant may have in the stock of any association or corporation, together with the interest and profits thereon, and all other property in the district of such defendant not exempt from execution, shall be liable to be attached. The marshal shall note upon the writ the date of its delivery to him, and shall make a full inventory of the property attached, and return the same with the writ.

SEC. 140. The marshal or deputy marshal to whom the writ is deliv ered shall execute the same without delay, as follows:

First. Real property shall be attached by leaving with the occupant thereof, or if there be no occupant, in a conspicuous place thereon, a copy of the writ certified by the marshal.

Second. Personal property capable of manual delivery to the marshal, and not in the possession of a third person, shall be attached by taking it into his custody.

Third. Other personal property shall be attached by leaving a certified copy of the writ, and a notice specifying the property attached, with the person having possession of the same, or if it be a debt, then with the debtor, or if it be rights or shares in the stock of an association or corporation, or interest or profits thereof, then with such person or officer of such association or corporation as this code authorizes a summons to be served upon.

SEC. 141. From the date of the attachment until it be discharged or ment as to third the writ executed, the plaintiff as against third persons shall be deemed a purchaser in good faith and for a valuable consideration of the property, real or personal, attached, subject to the conditions prescribed in the next section as to real property. Any person, association, or corporation mentioned in subdivision three of the section last preceding, from the service of a copy of the writ and notice as therein provided, shall, unless such property, stock, or debts be delivered, transferred, or paid to the marshal, be liable to the plaintiff for the amount thereof until the attachment be discharged or any judgment recovered by him be satisfied.

certificate of marshal.

When real propSEC. 142. If real property be attached, the marshal shall make a erty attached, certificate containing the title of the cause, the names of the parties, a description of such real property, and a statement that the same has been attached at the action of the plaintiff, and the date thereof. Within ten days from the date of the attachment, the marshal shall deliver such certificate to the commissioner as ex officio recorder of the recording district in which such real property is situated, who shall file the same in his office and record it in a book to be kept for that purpose. When such certificate is so filed for record the lien in favor of the plaintiff shall attach to the real property described in the certificate from the date of the attachment, but if filed afterwards it shall only attach, as against third persons, from the date of such subsequent filing. Whenever such lien shall be discharged it shall be the duty of

the commissioner as ex officio recorder, when requested, to record the transcript of any order, entry of satisfaction of judgment, or other proceeding of record whereby it appears that such lien has been discharged in the book mentioned in this section. The commissioner shall also enter on the margin of the page on which the certificate is recorded a minute of the discharge, and the page and book where recorded.

When third per

certificate to mar

shal.

SEC. 143. Whenever the marshal, with a writ of attachment against the defendant, shall apply to any person or officer mentioned in subdi- sons must furnish vision three of section one hundred and forty for the purpose of attaching any property mentioned therein, such person or officer shall furnish him with a certificate designating the amount and description of any property in his possession belonging to the defendant, or any debt owing to the defendant, or the number of rights or shares of the defendant in the stock of the association or corporation, with any interest or profits or encumbrance thereon. If such person or officer refuse to do so, or if the certificate when given be unsatisfactory to the plaintiff, he may be required by the court, or judge thereof, where the action is pending to appear before him and be examined on oath concerning the same, and disobedience to such order may be punished as contempt. SEC. 144. If any of the property attached be perishable, the marshal shall sell the same in the manner in which property is sold on execu- erty may be sold. tion. The proceeds thereof and other property attached shall be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment. Personal property mentioned in subdivision three of section one hundred and forty may be delivered, transferred, or paid to the marshal without an action, and his receipt therefor shall be a sufficient discharge accordingly.

Perishable prop

When marshal

SEC. 145. The marshal may deliver any of the property attached to the defendant, or to any other person claiming it, upon his giving a may deliver propwritten undertaking therefor, executed by two or more sufficient sure- erty to defendant. ties, engaging to redeliver it or pay the value thereof to the marshal, to whom execution upon a judgment obtained by the plaintiff in that action may be issued.

taking.

If judgment recovered by plaintiff, marshal to ap

SEC. 146. If an action be brought upon such undertaking against Defense to action the principal or his sureties, it shall be a defense that the property for upon such underwhich the undertaking was given did not, at the execution of the writ of attachment, belong to the defendant against whom it was issued. SEC. 147. If judgment be recovered by the plaintiff, and it shall appear that the property has been attached in the action and has not been sold as perishable property or discharged from the attachment as ply property upon provided by law, the court shall order and adjudge the property to be execution, remainsold to satisfy the plaintiff's demands, and if execution issue thereon, der to be delivered the marshal shall apply the property attached by him, or the proceeds to defendant. thereof, upon the execution, and if there be any such property or proceeds remaining after satifying such execution, he shall, upon demand, deliver the same to the defendant.

If judgment not recovered by plainreturned tiff, property to be

fendant.

to de

for the return of

SEC. 148. If judgment be not recovered by the plaintiff, all the property attached, or the proceeds thereof, or the undertaking therefor, shall be returned to the defendant upon his serving upon the marshal a certified copy of the order discharging the attachment. SEC. 149. Whenever the defendant shall have appeared in the action How defendant he may apply upon notice to the plaintiff to the court or judge where may have an order the action is pending, or to the clerk of such court, for an order to the property. discharge the attachment upon the execution of the undertaking mentioned in the next section; and if the application be allowed, all the proceeds of sales of property remaining in his hands shall be released from the attachment and delivered to the defendant upon his serving a certified copy of the order on the marshal.

upon such order.

Undertaking of SEC. 150. Upon such application the defendant shall deliver to the the defendant court or judge to whom the application is made an undertaking executed by one or more sureties, to the effect that the sureties will pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action. If the plaintiff demand it, the sureties shall be required to justify in the same manner as bail upon an arrest. When the de- SEC. 151. The defendant may, at any time before judgment, except fendant may move where the cause of attachment and the cause of action are the same, to discharge the attachment. apply to the court or judge thereof where the action is pending, to discharge the attachment, in the manner and with the effect as provided in sections one hundred and twenty-one and one hundred and twentytwo for the discharge of a defendant from arrest.

When writ to be returned.

What order

SEC. 152. When the writ of attachment shall be fully executed or discharged, the marshal shall return the same, with his proceedings indorsed thereon, to the clerk of the court where the action was commenced.

SEC. 153. The order provided for in section one hundred and fortyupon garnishee two shall require such person or officer to appear before such court or shall require. judge at a time and place therein stated. In the proceedings thereafter upon such order such person or association or corporation shall be known as the garnishee.

nishee.

When plaintiff SEC. 154. After the allowance of the order and before such garnishee may serve inter- or officer thereof shall be thereby required to appear, or within a time rogatories on gar- to be specified in the order, the plaintiff may serve upon such garnishee or officer thereof written allegations and interrogatories touching any of the property liable to attachment as the property of the defendant, as provided in subdivision three of section one hundred and forty, and to which such garnishee or officer thereof is required to give a certificate as provided in section one hundred and forty-three.

Answer of the garnishee.

SEC. 155. On the day when the garnishee or officer thereof shall be required to appear before the court or judge thereof, he shall return the allegations and interrogatories of the plaintiff to the court or judge, with his written answer thereto, unless for good cause shown a further time be allowed. Such answer shall be on oath, and shall contain a full and direct response to all the allegations and interrogatories. SEC. 156. If the garnishee or officer thereof fail to answer, the court have judgment for or judge thereof, on motion of the plaintiff, may compel him to do so, garnishee may be or the plaintiff may, at any time after the entry of judgment against compelled to an- the defendant in the action, have judgment against the garnishee for want of such answer. In no case shall judgment be given against the garnishee for a greater amount than the judgment against the defendant in the action.

Plaintiff may

want of answer, or

swer.

Exceptions to

answer.

Reply to answer, and trial of issue

thereon.

SEC. 157. The plaintiff may except to the answer of the garnishee or officer thereof for insufficiency, within such time as may be prescribed or allowed, and if the same be adjudged insufficient, such garnishee or officer may be allowed to amend his answer on such terms as may be proper, or judgment may be given for the plaintiff as for want of answer, or such garnishee or officer may be compelled to give a sufficient

answer.

SEC. 158. The plaintiff may reply to the whole or part of the answer within such time as may be prescribed or allowed, and the issues arising thereon shall be tried as ordinary issues of fact between plaintiff and defendant. If the answer be not excepted or replied to within the time prescribed or allowed, it shall be taken to be true and sufficient. Judgment against SEC. 159. If by the answer it shall appear, or if upon trial it shall the garnishee up- be found, that the garnishee, at the time of the service upon him or on answer or trial. the officer thereof of the copy of the writ of attachment and notice, had any property of the defendant's liable to attachment as provided in subdivision three of section one hundred and forty and as to which such garnishee or officer thereof is required to give a certificate as