Attachments of property not dissolved by

death of either party,

SEC. 32. Be it further enacted, That when any goods or estate are attached upon any writ or process which shall be pending, or may hereafter be pending in the Supreme Judicial Court or Circuit Court of Common Pleas, the same shall not be released or discharged by reason of the death of either party, but be held good to respond the judgment to be given on such suit or process, in the same manner as by law they would have been if such deceased person had been living: Provided always, That where any estate attached as aforesaid, of a represent shall, by the executor or executors, or administrator or adation of insol ministrators of the same, be represented as insolvent, and a commission of insolvency shall thereupon issue; in all such cases attachments made as aforesaid, shall have no force or efficacy after the death of the original defendant or defendants in the action.

except in cases

vency.

Executions in

the name and

the State how

to be served.

SEC. 33. Be it further enacted, That upon any judgment for the use of in any Court of law in this State, in the name or for the use and benefit of this State, for any sum of mony, a writ of execution in common form shall issue, and be directed to the proper officer, and the lands of such judgment debtor may be taken on such execution and sold at public vendue to the highest bidder. And in every such case, the officer who shall levy such execution, may and shall execute to the purchaser a good deed of any lands so by him sold. And every such officer, before he shall proceed to sell any lands in manner above described, shall give notice in writing of the time and place of sale to the debtor in person, or by leaving the same at his last and usual place of abode, if he be an inhabitant of this State, twenty days before such sale, and shall also give public notice of the time and place of sale by posting up notifications in two or more public places in the town, plantation or township, within which such land may lie, thirty days at least before the time of sale, and shall likewise cause an advertisement of the time and place of sale to be published three weeks successively, in the newspaper employed by the State to publish the laws, and in a newspaper printed in the county where such land may lie, if any such there be, the last publication to be not less than six days before the time of sale. And the officer may, if he deem it necessary, adjourn such vendue not exceeding ten days at any one time, until the sale of such estate shall be completed: Provided however, That the judgment debtor shall have the same right to redeem the same, in the same time and manner, as judgment debtors in execution have to redeem real estate set off on execution.

certain articles,

SEC. 34. Be it further enacted, That when hay in a barn, Attachment of sheep, horses or neat cattle are attached on mesne process at though left in the suit of a bona fide creditor, and' are suffered by the session, still officer making such attachment, to remain in the possession of continued valid the debtor, on security given for the safe keeping or delivery.

defendant's pos

thereof to such officer, the same shall not by reason of such possession of the debtor, be subject to a second attachment, to the prejudice of the first attachment.

[Approved March 15, 1821.]

:0:

CHAPTER LXI.

An Act concerning Foreign Attachments.

are liable to be

used by a cred

under

SEC. 1. BE it enacted by the Senate and House of Representa- Persons who tives, in Legislature assembled, That any person or persons, summoned as body politic or corporate, entitled to any personal action, ex- trustees. cepting detinue, replevin, actions on the case for slanderous words or malicious prosecution, or actions of trespass for assault and battery against any person or persons, or body politic or corporate; having any goods, effects or credits so intrusted or deposited in the hands of others, that the same cannot be attached by the ordinary process of law, may cause not only the goods and estate of the person, against whom such action lies, to be attached in his own hands and possession, but also all his goods, effects and credits, so intrusted or deposited to be attached in whose hands or possession soever they may be found, by an original writ to issue Process to be under the seal of the Circuit Court of Common Pleas, signed itor in auch by the Clerk, and attested by the first Justice of the said cases. Court, not a party thereto, in the form prescribed by law. And the officer to whom such writ may be directed, shall Mode of serv serve the same by attaching the goods and estate of the prin- ing such process cipal of the value required, if so much can be found in his circumstances. precinct, by reading the said writ to him, or by leaving an attested copy thereof at his last and usual place of abode, if he had been an inhabitant or resident within this State at any time within three years next before the suing out such writ, and by reading the same to each of the trustees, or by leaving an attested copy thereof, at such trustee's usual place of abode; and in case the principal has not been an inhab itant or resident as aforesaid, a service made on the supposed trustee or trustees, in manner aforesaid, shall be deemed a sufficient service; and the goods, effects and credits of the principal, in the hands and possession of his trustee or trustees pal's goods, &c. at the time such writ was served upon him or them, shall created by ser. stand bound and be held to satisfy such judgment as the plaintiff shall recover against the principal; and when the Writ to be retrustees, named in such writ, do all dwell in one county, such county where writ shall be made returnable in the county where all the if they dwellin trustees dwell, but when the trustees do not all dwell in one, then in the county such writ may be made returnable in any county in county where which any of the trustees dwell.

Lien on princi

vice of process.

turnable in the

trustees dwell;

different coun

either of them dwell.

SEC. 2. Be it further enacted, That in all such cases it shall Plaintiff may and may be lawful for the plaintiff or his attorney to insert insert the names

of other frus

324

tees at any
time before ser-

cess on the

principal.

in the process, which may have been served on one or more vice of the pro- trustee or trustees, the name or names of any person or persons, in whose hands or possession he or they may suspect that any goods, effects, rights or credits of the absconding debtor or principal are placed or concealed: Provided however, That no such name or names shall be inserted after the said writ or process has been served upon the principal or absconding debtor or debtors.

In case of prin.

cipal's absence

from State at the time of ser

be continued

unless he return before

Court.

SEC. 3. Be it further enacted, That if the principal shall be absent from the State when such writ shall be served, the Court shall continue the action two terms, that he may have vice, action to notice, unless the principal after the service of the writ, and before the sitting of the Court shall have come into the State : in which case, it shall be in the discretion of the Court whether to continue the action or not; and when the principal does goods, &c. may not appear in his own person, or by attorney, to answer such plead in behalf suit, the trustees, or any of them having goods, effects or of principal. credits of the principal in his or their hands or possession, may appear in his behalf, and in his name plead and defend to final judgment and execution.

Trustee having

appear and

If trustee ap pear at first

term and is dis. charged to re

cover his legal

costs;

and if he live

in another coun

allow him reasonable compensation, &c.

pearing first

SEC. 4. Be it further enacted, That if any supposed trustee shall come into Court the first term and declare that he had not in his hands or possession, at the time the writ was served on him, any goods, effects or credits of the principal, and shall thereupon submit himself to an examination upon oath, and the said declaration shall appear to the Court to be true, the Court shall award him his legal costs; and if such trustee shall, at the time of service of such writ, dwell in any ty, Court may county, other than that in which the said writ is returnable, the Court shall allow him such further costs, as, with his legal costs, shall, under all the circumstances of the case, be a reasonable compensation to him for his time and expenses in appearing and defending himself against such suit; and every Trustee not ap- person resident in the county where such writ shall be duly term liable to returned, who, being summoned as aforesaid, shall neglect to appear and submit to an examination, as to the supposed goods, effects or credits in his or her hands, and having no reasonable cause to the contrary, in the opinion of the Court where the suit shall be, shall be liable for all costs afterwards arising in such suit, to be recovered and paid out of his own goods and estate, in case judgment shall be finally rendered for the plaintiff; and unless such costs shall be duly recovered against the goods, effects or credits of the principal in the Several trustees hands of a trustee. And if several persons, resident in such same county, county, being duly summoned as aforesaid, shall neglect to appear as aforesaid, judgment and execution against them jointly, shall be awarded for such costs. And persons resi dent in other counties than where the writ is returnable, shall not be liable for any costs arising on the original process herein provided.

costs.

dwelling in

not appearing,

shall be joint

judgment and execution

against them for costs.

does not sup

against princi

lowed to prin

appeared.

tees are dis

tiff may still

made on such

SEC. 5. Be it further enacted, That where the plaintiff doth When plaintiff not support his action against the principal, and judgment port his action shall be rendered, that he take nothing by his writ, the Court pal, costs alshall award cost against him, as well in favor of the principal cipal, and trus as in favor of such of the persons summoned as trustees sever- tees who have ally, who have personally appeared in Court and submitted themselves to an examination, upon oath as aforesaid, and several executions shall issue thereupon accordingly. And where when all trusall the supposed trustees, or any one or more of them, come charged plaininto Court, and are discharged upon examination on oath, as procred against aforesaid, or when the suit shall be discontinued by the plaintiff principal, against them, or against any one or more of them, the plaintiff may notwithstanding proceed against the principal, to trial, judgment and execution: Provided however, That where all the provided a ser supposed trustees shall be discharged, as aforesaid, or where vice has been the plaintiff shall discontinue his suit against all of them, or principal, &e. wherever it shall appear from the record, that there is not any trustee in such suit; in all such cases the plaintiff shall not proceed in his suit against the principal, unless there shall have been such service of the original writ upon the principal as would authorize the Court to proceed to render a judgment against him, in an action brought and commenced in the common and ordinary mode of process: but the prin- may, if he think cipal in such case may, if he think proper, come into Court proper, appear and take upon himself the defence of the said suit: And pro- Trustee not vided also, That costs shall not be awarded in favor of any entitled to costs trustee, against whom the suit shall be discontinued as pear at first aforesaid, unless he come into Court the first term, and de- term and is disclare that he had not in his hands or possession, any goods, Court. effects or credits of the principal, at the time of the service of the original writ, and thereupon submit himself to an examination upon oath, and such declaration be adjudged by the Court to be true.

but principal

answer.

unless he ap

charged by

ling in other bound to ap

declare whether

goods, effects,

SEC. 6. Be it further enacted, That when any supposed Trustee dweltrustee shall, at the time of the service of the writ upon him, counties not dwell in any other county than that in which the writ is re- pear at Court turnable he shall not be required to appear in person in the in person, original suit, nor in any suit upon a writ of scire facias founded thereon, but such supposed trustee may appear by attor- but may appear ney, and declare whether he had any, and what goods, ef- by attorney and fects or credits of the principal in his hands or possession, at he had any the time when the writ was served on him, and thereupon &c. and offer offer to submit himself to an examination on oath; and if the examinationplaintiff shall not see fit further to examine such supposed trustee, his declaration, so made by attorney, shall be deemed and taken to be true: and if the plaintiff shall think prop- and plaintiff er to examine such supposed trustee on oath, the answers of to be examined the trustee, upon such examination, may be sworn to before or Justice of any Judge of the Circuit Court of Common Pleas for the the Peace in his County in which the trustee may dwell, or before any Justice first or after

to submit to

may cause him before a Judge

own county, at

wards

of the Peace; and in all cases, when any supposed trustee shall have appeared in Court and submitted himself to an examination on oath in the manner prescribed by law, his answers upon such examination, may be sworn to before any Judge of the Circuit Court of Common Pleas for the county in which the trustee may dwell, or before any Justice of the such examina Peace; and such examination, being duly filed in the Court in which the writ is pending, shall in every case, have the same effect, and shall be considered in the same manner, in all respects, as if the same had been sworn to in the Court in which the writ is pending.

tion filed in Court to be

sufficient.

When trustee discloses an assignment of

goods, &c.

ed to as fraud

ulent,

assignee may

to the suit vol untarily, or

Court may

appear.

His non-appearance to be

SEC. 7. Be it further enacted, That whenever any person summoned as trustee of any debtor, shall in his answers, disclose an assignment to another, of the goods, effects or and the assign. credits of the principal in his hands, and the plaintiff in the ment is object suit shall object that the assignment ought not to have any effect to defeat his attachment, and the Court shall think it just or convenient, that the assignee should become a party to the suit, the person so stated to be assignee, may for the become a party purpose of trying the validity and effect of the assignment, become a party to the suit, upon his appearing voluntarily and claiming to be so admitted, or by coming into Court, upon being notified for that purpose, by a summons, which the suminon him to Court where the action is pending, is authorized to issue, to be served and returned in such time and manner as the Court shall think the circumstances of the case may require; and if entered on rec- such supposed assignee shall not appear at the time and place named in such summons, his non-appearance shall be enterAnd if assignee ed on the record; or the case may be continued to the next do not appear term, for further notice to the assignee, at the discretion of the Court; and if the supposed assignee does not appear in to be ineffect person, or by attorney, the assignment shall have no effect I assignee sp. to defeat the plaintiff's attachment; and upon such assignee Dear, validity becoming a party to the suit, the validity of the assignment, shall be tried or its effect on the case, shall be tried by the Court, or by a Jury, as the case may require: in which trial, in addition fendant may be to the usual evidence in other cases, the original defendant either party in may be admitted as a witness, upon the application of either party; and the Court may award legal costs for and against any of the parties at its discretion; and either party may appeal from any judgment of the Court, as in other cases.

ord.

at second term

on further notice, assignment

ual

ap

of assignment

by Jury.

Original de

witness for

such case.

Either party

may appeal.

How execution is to be awarded

who has not ap

peared, &c.

SEC. 8. Be it further enacted, That when the plaintiff shall against princi- recover judgment against the principal, and there shall be pal, and trustee any trustee summoned, who shall not have come into Court and discharged himself upon oath, and against whom the suit shall not be discontinued; the Court shall award execution against the goods, effects and credits of the principal, in the hands and possession of every such trustee, as well as against the body, goods, and estate of the principal; and the execution shall be in the form prescribed by law.