which the attachment shall be made returnable; and such court shall cause an issue to be joined between the plaintiff and such claimant, and the right of property to be decided on by a jury at the same term, unless sufficient cause be shown to induce the court to continue the same: Provided, the person claiming such property, his agent, or attorney, shall give bond (to the sheriff or constable serving such attachment,) with security, in a sum equal to the amount of such attachment,* conditioned to pay to the plaintiff all damages which the jury, on the trial of the right of property, may assess against such claimant, in case it should appear that such claim was made for the purpose of delay. And every juror on the trial of such claim shall be sworn, in addition to the oath usually administered, to give such damages, as may seem reasonable and just to the plaintiff, against the claimant, in case it shall be sufficiently shown that such claim was intended for the purpose of delay only; and it shall be lawful for the plaintiff to enter up judgment, and have execution against such claimant, for the amount of such verdict; and where the jury shall find the property not subject to the attachment, the claimant may enter up judgment, and have execution against the plaintiff for the costs by him incurred in establishing his claim. 6. Sec. II. Land or real estate shall not be subject to be attached Land, how under or by virtue of any attachment issuing and returnable out of the attached, county in which such land is situate; and in all cases of claims to land, levied on by virtue of any attachment, the proceedings shall be the same as those pointed out by the preceding section for claims to other property, except that such claim shall be returned to, and tried and claimed. in the superior court of the county where the land is situate. obliged to ed by the with the ment to be 7. Sec. III. No person, who may be summoned as garnishee, shall No garnishee be compelled to answer to any attachment out of the county in which answer out of such garnishee lived at the time of serving such attachment; and his county. where any garnishee shall return that he has in his hands a note or Debts returnnotes, bond or bonds, or other evidences of debt, belonging to the garnishee to absent debtor, the same shall be forthwith deposited with the clerk be deposited of the court in which the attachment is pending, subject to the clerk. order of said court; and after the plaintiff shall have established After judg his demand against the absent debtor, the court may, in its discretion, turned over direct the clerk to deliver to the plaintiff, in such attachment, his to the attaching creditor. agent, or attorney, such note or notes, bond or bonds, or other evidence of debt, or so much thereof as will be sufficient to discharge the amount of the demand which the plaintiff shall have established against the defendant, taking a receipt therefor, which receipt shall be filed with the papers appertaining to such attachment, and shall be considered as a payment to that amount; unless the plaintiff shall make it appear, that, after due diligence used by him, he was unable to collect the amount; and where the evidence so deposited is of a debt greater than the plaintiff's demand, and will not admit of division, the court shall order the same to be sued for, in such manner as will, in their discretion, best ensure recovery; and the money, when collected, to be deposited with the clerk of the court in which the attachment pended, a part to be applied to the discharge of the amount due the attaching creditor, the balance to remain subject to the future order of said court.† 8. Sec. IV. No suit by way of attachment shall abate by the death Parties, how of either party, where the cause of action would survive to the exec * In double the value of the property claimed. See Sec. 44. to be made. defendant dies. utor or administrator; but such death being suggested on the record, the cause shall proceed under the restrictions and regulations followWhere the ing: When a plaintiff in attachment shall die, the executor or adminplaintiff dies. istrator of such plaintiff shall, within six months after the probate of the will, and obtaining letters testamentary, or obtaining letters of administration, cause to be issued by the clerk of the court in which such attachment is pending, a scire facias returnable to the next term of the said court, giving notice of his intention to become a party in the place and stead of the deceased testator or intestate, which shall be published at the door of the court-house in the county in which such attachment is pending, by the sheriff of said county, at least twenty days prior to the term at which such scire facias is made returnable; which being done, such executor or administrator may, on motion, be made party plaintiff, and the cause proceed; and where Where the the defendant shall die, scire facias shall issue in manner aforesaid, immediately after the expiration of twelve months, which scire facias shall contain a notice to the legal representatives of the defendant, whether executor or administrator, of the pendency of such attachment, and of the intention of the plaintiff to proceed with the same; which, being published in like manner, it shall be lawful for the plaintiff to proceed with his attachment, as if such death had not taken Replevy and place. Provided nevertheless, that the executor or administrator of defence by the defendant may appear at the return of the scire facias, and, upon administra- giving security in terms of the act to which this is amendatory, shall be permitted to plead and defend the said attachment, in the same manner that his testator or intestate might have done. Making par- 9. Sec. V. In cases of attachments pending in justices' courts, tices courts, where either party shall die, such attachments shall not abate; but a notice of the intention of the representatives of the plaintiff, whether executor or administrator, to proceed, being published at the house where such justices' courts are holden, by the constable of the district, ten days before the time at which parties are to be made, such parties shall thereupon be made, and the cause proceed. executor or tor. Interrogatories. Commencement of lien, as respects other attachments. And as re spects judg ments. Defendant 10. Sec. VI. Where any witness resides out of this State, or out of the county in which any attachment may be pending, and in which his testimony may be required, it shall be lawful for the plaintiff, on filing interrogatories in the office of the clerk of the court where such attachment is pending, and publishing a notice at the door of the court-house of said county, that such interrogatories are filed, to obtain a commission in like manner, as is prescribed by the 23d section of the judiciary act of 1799, [see Judiciary, Sec. 22,] for taking testimony in other cases. 11. Sec. VII. In all cases the attachment first served shall be first satisfied. 12. Sec. VIII. No lien shall be created by the levying of an attachment, to the exclusion of any judgment obtained by any creditor, before judgment is obtained by the attaching creditor.* Sec. IX. [Repeals so much of the foregoing act as is repugnant to this.] An Act, in addition to, and amendatory of an Act, to regulate Attachments in this State.-Passed Dec. 18, 1816. Vol. III. 72. 13. Sec. I. Every attachment hereafter sued out, the property or may plead, attached may be restored to the person or persons against whom the may replevy * And see Sec. 46. attachment may have issued, upon the defendant or defendants giving good and sufficient security to the officer serving the said attachment, in double the debt or demand for which the said attachment may have been issued and granted; or the said defendant or defendants may file his, her, or their defence to the petition or declaration of the attaching creditor, or creditors, and enter into the same defence as if the property attached had been replevied. for debts not yet due. 14. Sec. II. Where a debt is not due, and the debtor or debtors is, Attachments or are removing, or is, or are about to remove without the limits of this State, and oath being made by the creditor, his agent, or attorney, of the amount of the debt to become due, and the debtor, or debtors is, or are removing, or about to remove, without the limits of this State, an attachment may issue against the property of such debtor, or debtors; but the defendant may relieve his property, by giving to the creditor good security to pay the money when due, and cost.† sons may act 15. Sec. III. In all cases where an attachment may issue against Third perany person absent, that on the trial of the same, any person may act as as the friend a friend, give good special bail, and by himself, or attorney, plead and of the defendefend the suit, in the same manner as though the defendant was per- represent sonally present, and did it himself. An Act in addition to, and amendatory of the several Acts to regulate Attachments in this State, and to authorize remedies in certain cases. - Passed Dec. 8, 1820. Vol. IV. 202. dant, and him in court. have an at against the principal. 16. Sec. I. In any case where a person or persons has been a secu- A surety who has paid, or rity for another in a note, obligation, or other instrument of writing, is sued on the and has been compelled to pay off the same by legal process, or has contract, may paid it by being called on by the person or persons holding such note, tachment obligation, or other instrument in writing; and in cases where suit is pending upon any such note, obligation, or instrument in writing, against the principal, and security or securities, or against either or any of them; and in cases where such note, obligation, or other instrument, to which there is or are security or securities, is, or are not due, and the principal debtor or debtors, in any such case, is or Or if the debt are removing, or is or are about to remove, or have removed without is not due. the limits of this State or any county; and oath being made by the security or securities, his, her, or their agent, or attorney, in fact or at law, of the facts, and of his, her, or their liability on said note, obligation, or other instrument in writing, and that his, her, or their principal is, or are removing, or about to remove, or have removed, without the limits of this State, or any county therein, an attachment may issue against the property and effects of such principal debtor or debtors, in favor of such security or securities; and in cases where the How to prodebt has been paid by such security or securities before the issuing ment such attachment, the said security or securities shall be authorized to the debt has proceed to judgment on such attachment, and to recover judgment for the amount to which the person suing out such attachment is entitled ; and in case of suing out such attachment by a security or securities, in Where the a case where a suit or suits may be pending, as aforesaid, or on a de- debt is not mand where the note, obligation, or other instrument of writing, is not suit. due, such security or securities shall have a lien upon the property and And see Sec. 18. + Explained Sec. 17. Sureties further protected by acts of 1826 and 1831. See Judiciary, Sec. 183, 221. ceed to judgwhere been paid. due, or is in Establishment of plaintiff's demand. effects of the principal attached until such property is replevied, or the principal debtor or debtors shall give good and sufficient security to the person suing out such attachment, his, her, or their agent, or attorney, in fact, or at law, for the payment of such note, obligation, or other instrument of writing, when it may or shall become due, or at the termination of said suit or suits; and in case the property shall not be replevied, the person attaching shall be admitted to proceed to estab lish his demand as though the debt was due, or the suit or suits determined; and the property or effects of the principal debtor so attached And disposal by such security or securities, shall be disposed of, in the manner perty attach- pointed out in the attachment laws of this State, and paid into the clerk's office of the court in which such attachment may be pending, subject to be paid over, by order of said court, to the original creditor or creditors, when such debt shall become due. of the pro ed. Judgment ed for debts stay of exe 17. Sec. II. Where an attachment shall issue, under and by virtue may be enter of the second section of the attachment law, passed on the 18th day of not due, with December, in the year 1816, that the plaintiff or plaintiffs in such cution. attachment shall be, and hereby is, and are authorized to proceed to judgment, in the same manner as though the debt had been due at the time of issuing such attachment, with a stay of execution until the time the said debt should become due; provided the same should not have become due before entering up judgment. Defendant, or his agent. &c. the act of 18. Sec. III. In all cases of attachment, the property or effects of may replevy, the defendant or defendants in attachment may be replevied by his, according to her, or themselves, his, her, or their agents, or attorneys, in fact or at 1799. law, in the manner pointed out in an act, entitled "An Act to regulate Attachments in this State," passed on the 18th day of February, in the year 1799. Act of 1799 in force, where not repugnant to this act. Attachment may issue pending a suit. Set-off may be pleaded in attachment before it is duc. Summons of 19. Sec. IV. In all cases of the issuing of attachments, the formalities and regulations provided in the said attachment law of the year 1799, except as herein excepted and provided for, shall be in full force, which the plaintiff in attachinent, his, her, or their agent, or attorney, in fact or at law, is hereby authorized to pursue. 20. Sec. V. In all cases, wherein a suit or suits may have been instituted, on any debt or demand, and pending such suit or suits, the defendant or defendants may place themselves in any or either of the situations, in which the suing out an attachment by the laws of this State would be authorized, it shall be lawful for the plaintiff or plaintiffs, his, her, or their agent, or attorney, in fact or at law, to sue out an attachment, notwithstanding the pendency of such suit or suits aforesaid; and such suit or suits shall not be pleaded in bar to such attachment; but the satisfaction received upon any such attachment may be given in evidence against any such pending suit or suits. 21. Sec. VI. Any defendant against whom an attachment shall be sued out, under the provisions of this act, may avail himself in his defence of any set-off, properly pleadable by the laws of this State, notwithstanding such set-off may not be due at the time of suing out such attachment, or at the trial thereof. Sec. VII. [Repeals all acts which are inconsistent with this.] An Act to authorize parties' plaintiffs to issue Summons of Garnishment in certain cases, as in cases of Attachment.-Passed Dec. 23, 1822. Vol. IV. 208. 22. In all cases pending in any court of this State, or which may garnishment be hereafter commenced, it shall and may be lawful for the plaintiff or may issue pendente Lite. * Amended by next act. his attorney to issue a summons of garnishment, to be directed to any person or persons who may be indebted to the defendant, or who may have any money, effects, property, either real or personal, or any bonds, notes, or other evidences of debt whatsoever, in his, her, or their hands, belonging to said defendant or defendants, requiring said persons to be and appear at the next term of the court in which said suit or suits may be pending, then and there to depose on oath what he, she, or they is or are indebted to the said defendant and defendants, and what money, effects, property, either real or personal, or evidences of debt belonging to said defendant or defendants, is or was in their hands or possession at the time the summons was served; Provided, the plaintiff or his agent or attorney shall, before issuing the said summons, make an affidavit of the amount of the debt or demand which he, she, or they believe to be due, and that he is apprehensive of the loss of the same or some part thereof unless such summons do issue, and shall file the same in the office of the clerk of the court where the suit is pending, or with the justice of the peace when within his jurisdiction. obtained. 23. Sec. II. In all cases where judgment has heretofore been ob- or after tained, or may be hereafter obtained, it shall and may be lawful for the judgment plaintiff, or his agent or attorney, to issue summons of garnishment, returnable to the Superior, Inferior, or justices' court, as the case may be, to be directed, and requiring the garnishee to depose in like manner, as in the preceding section; Provided, that the plaintiff, or his agent or attorney shall, if required by the defendant or garnishee, or by any plaintiff holding a younger judgment or execution, or his attorney, swear that he believes the sum apparently due and claimed on said judgment or execution is actually due; And provided further, that the sheriff, or his deputy, or constable, shall enter on said execution that there is no property of the defendant to be found. tices' Court. 24. Sec. III. The said summons, when the same is returnable to When to be the Superior or Inferior courts, shall be signed and served by the served for the Sup or Inf sheriff or his deputy on the garnishee personally, twenty days before Court, or Justhe court to which he is directed to appear; and when returnable to the justices' court, shall be signed and served by a constable on the garnishee personally, ten days before the court to which he is directed to appear. answer is a 25. Sec. IV. When any person shall fail to appear and depose on Failing to being summoned as a garnishee, the court, on application, shall pro- contempt. ceed against him by attachment for contempt;* and when any person shall appear and depose, the after proceedings shall be as in cases of attachment; Provided, that any garnishee deposing and admitting that he is indebted to the defendant, or has in his hands and possession a sufficient amount to pay the plaintiff's demand, shall be deemed a compliance with this act. paid over. 26. Sec. V. When any money shall be paid into court, or shall be Money to be raised by the sheriff or his deputy, or by a constable under this act, the same shall be paid over to judgments or executions against the defendant, as in other cases, according to the priority established by law. 27. Sec. VI. This act shall extend to proceedings in the mayor's City Courts. court in the city of Augusta and Darien, and the Court of Common Pleas, and Oyer and Terminer, in the city of Savannah; and the summons shall be signed and served by the city sheriff or marshal, or his deputy, on the garnishee personally, ten days before the court to which said garnishee is directed to appear; And provided also, that the ben * Rule nisi and judgment for plaintiff's demand. See Sec. 41, 42. |