Attachment. persons non compos mentis, imprisoned beyond seas, of the term of the limitation, after the removal of their respective disabilities. (a) The phrase "beyond seas" is declared to mean beyond the limits of the United States. (b) 6. Attachment. Wherever a debtor so absconds or conceals himself, or removes privately, as that the ordinary process of law cannot be served upon him, or wherever a debtor or defendant in any suit, or judgment is removing, or about to remove himself or his property beyond the limits of the state, or shall be absconding or concealing himself, or his property or effects, or wherever a debtor is a non-resident, and his creditor or his agent makes an affidavit of such fact, and also of the amount of his claim, any judge of the Circuit Court, or justice of the County Court may issue a writ of attachment against the estate of such debtor, both real and personal, including choses in action. Debts and choses in action, whether due or not, may be attached. (c) Property exempt from execution is also exempt from attachment. Persons who are bound as accommodation indorsers or securities, although the debt for which they are responsible may not be due, can sue out writs of attachment where their principal is about to remove, or is removing, absconding or carrying off his property beyond the limits of the state; no decree, however, to be made until such debt becomes due. Attachments against non-residents must be stayed for a period not less than six nor more than twelve months from the time of the return of the process. The act of Tennessee contains the usual provisions for the replevy of property by the defendant, the sale of it by the officer when perishable, for proceedings of garnishment against any person indebted to or having in his possession effects of defendants. An attachment is a lien upon the property attached from the time that the writ is returned and becomes a record. (d) Attachments in Chancery.-It has been held that the courts (a) T. D. 441. (b) Ib. 444. (c) Acts of 1843, 30; R. S. 101, 107. (d) Cook 254. Attachment. of Tennessee have no jurisdiction of an original attachment, where neither the plaintiff nor defendant are citizens of the state, and can render no judgment against a garnishee summoned upon such an attachment. (a) But since this decision, by the act of 1836, where non-residents have any property, real or personal, legal or equitable in Tennessee, or where any resident of Tennessee is indebted to such person, a creditor of the non-resident, whether a citizen of Tennessee, or any other state, may file a bill in Chancery, without having first recovered a judgment at law, to attach such real or personal property, or choses in action, (b) upon an affidavit that the defendants are indebted as charged, and are non-residents. This proceeding may also be had against absconding debtors. No final decree will be rendered in a case of this character, until the second term after the bill is filed, nor unless notice has been given by publication in some newspaper designated by the court. Where these requisites have been complied with, the decree will be as binding upon the property attached, as if personal service of process had been made. Where the proceeds arising from the sale of the property attached are not sufficient to satisfy the claim of the complainant, an execution may issue for the balance, to be levied upon any property of the defendant in the state, or summons of garnishment may be issued against any person indebted to him, and proceedings had as upon attachments at law. Judicial attachment.-Upon the return of "not found" on any civil process, the plaintiff may sue out an attachment against the estate of the defendant; and upon the return of any goods attached, may proceed to final judgment, if the defendant does not appear and make defence; and if the judgment is not satisfied by a sale of the goods attached, the plaintiff may have execution for the residue. This process cannot issue against the estate of a nonresident, unless grounded on original attachment, or unless the leading process has been executed on the person of the defendant while within the state. (c) (a) Webb & Co. v. Lea, 6 Yer. 473. (b) R. S. 106. (c) Ib. 108. Effect of Death upon the Rights of Creditors. 7. Effect of Death upon the Rights of Creditors. Every executor or administrator shall within two months from his qualification, give notice to all persons having claims against the deceased, to present them. (a) No executor or administrator shall pay any debts of a testator or intestate, or confess a judgment for the same, until the expiration of six months from the grant of letters testamentary or of administration, and if he pays any debts within that period, and the estate proves insolvent, he will be liable to every creditor for his pro rata share of the estate. (b) Creditors of the deceased, if residents of the state, must demand and sue for their claims within two years, if non-residents, within three years from the qualification of the executors or administrators, saving the rights of infants, feme coverts, and persons non compos mentis, for one year after the removal of their respective disabilities. No execution may issue against an executor or administrator, until twelve months after his qualification. (c) Although the personal estate is the primary fund for the payment of debts, upon its proving inadequate, the real estate may be sold under the direction of the Court of Chancery, for the district where the lands are situate, upon the application of the executor or administrator, setting forth the insufficiency of the personal assets. The heirs are necessary parties to such proceeding. In the payment of debts, those due by bills, bonds and promissory notes, whether with or without seal, and all settled and liquidated accounts signed by the debtor, are to be regarded as of equal dignity. There is no other restriction as to the right of preferring one creditor to another by the executors or administrators, than that of time which has been previously mentioned. (d) (a) R. S. 75. (b) Acts of 1841, 22. (c) R. S. 80. Proceedings in Civil Suits. 8. Proceedings in Civil Suits. Imprisonment for debt.-No female can be imprisoned upon either mesne or final process in any civil action. The original process in all civil actions is a summons. A capias can only issue upon an affidavit at the commencement, or during the progress of a suit, that the cause of action is just, and that the defendant has removed or is about to remove his property beyond the jurisdiction of the court. (a) By an act passed in 1842, the right to issue a capias ad satisfaciendum in any civil action, has been abolished. The operation of this act has been to render useless the various provisions for the release of insolvent debtors from imprison ment. Judgment and execution.—All judgments of a court of record are a lien upon the lands of the debtor, from the time of their rendition, provided the judgment is obtained in the county where the debtor is then residing, and that execution, unless stayed by some legal order, is issued within twelve months. Judgments are a lien upon the lands of the debtor in other counties from the period of their registry in such counties, provided execution, unless stayed as before, issue thereon and the lands be sold within one year from the rendition of the judgment. (b) Process is levied first upon the personalty of the debtor, and if that be insufficient, then upon his realty. (c) Any person whose land has been sold on execution may redeem the same, upon paying or tendering to the purchaser, or any one claiming under him, the amount bid with ten per cent. interest, and other costs and charges. Any bona fide creditor of the judgment debtor may also redeem within the same time, upon tendering to the purchaser the amount bid, with ten per cent. interest, and offering to credit the debtor with ten per cent. on the amount bid at the execution sale. (d) Lands sold under a judgment of the federal court, cannot be redeemed upon this provision. (e) *(a) R. S. 383. (b) Ib. 419. (c) Ib. 292. (d) Ib. 565. (e) 6 Yerg. 209. |