and sold. value by keeping, or which cannot be kept without great and dispro- be appraised portionate expense, and the parties do not consent to a sale thereof as R. S. 90, § 58. before provided, the property so attached shall upon the request of 18 Pick. 407. either of the parties interested be examined, appraised, and sold or otherwise disposed of, in the manner following. See § 34. SECT. 74. Upon such application made by either party to the attach- Proceedings ing officer, he shall give notice to all the other parties or their attorneys, tion for ap upon applicaprepare a schedule of the goods, and cause three disinterested persons praisement.. acquainted with the nature and value of such goods to be appointed 1852, 1, §3. and sworn before a magistrate, or the attaching officer, to the faithful discharge of their duty as appraisers. fendant when SECT. 75. If the defendant is not within the state and has no attor- Notice to deney therein, the notice shall be left in writing at his last and usual place out of the state. of abode in the state if he has any, otherwise it shall be delivered to, 1837, 185. or left at the dwelling-house or place of business of, the person who had possession of the property at the time of the attachment. how appointed. SECT. 76. The appraisers shall be appointed, one by the creditor or Appraisers, creditors in the several suits, one by the debtor or debtors, and one by R. S. 90, $60. the officer; and if the debtors or creditors respectively neglect to appoint such appraiser, or do not agree in the nomination, the officer shall appoint one in their behalf. Upon decision of appraisers, goods may be R. S. 90, § 61. SECT. 77. The appraisers shall examine the attached property, and if they are of opinion that the same or any part thereof is liable to perish or waste, or to be greatly reduced in value by keeping, or sold. that it cannot be kept without great and disproportionate expense, 4 Cush. 393. they shall proceed to appraise the same according to the best of their See § 72. skill and judgment at the value thereof in money; and the goods shall thereupon be sold by the officer and the proceeds held and disposed of in the manner before provided in the case of a sale by consent of parties, unless the goods are taken by the debtor as provided in the following section. SECT. 78. The goods so appraised shall be delivered to the debtor, if he requires it, upon his depositing with the attaching officer the appraised value thereof in money, or giving bond to him in a sufficient penalty and with two sufficient sureties, conditioned to pay to him the appraised value of the goods or satisfy all such judgments as may be recovered in the suits in which the goods were attached, if demanded within the time during which the goods would have been held by the respective attachments, or within thirty days after the time when the creditors respectively would have been entitled to demand payment out of the proceeds of the goods if they had been sold as before provided. or delivered to defendant upon his depositing money or R. S. 90, § 62. giving bond, &c. writ. SECT. 79. The officer taking such bond shall return the same with Bond to be rethe writ on which the first attachment is made, in like manner as bail turned with the bonds are returned, with a certificate of his doings in relation thereto, R. S. 90, § 63. and if the bond is forfeited, the creditors or any of them may bring an action of contract thereon in the name of the officer. 1852, 312. by creditors. SECT. 80. The writ in such action shall in addition to the usual Action thereon indorsement have also indorsed on it the names of the creditors by to be brought whom the action is brought; and if judgment is rendered for the defend- R. S. 90, § 64. ants, executions for the costs shall be issued against all the creditors whose names are so indorsed. them. SECT. 81. If judgment is rendered for the plaintiff, the money recov- Money recoverered shall be first applied, under the order of the court, to pay the e, to belong to reasonable expenses of prosecuting the suit, so far as the same are not R. S. 90, § 65. reimbursed by the costs recovered of the defendant; and the residue shall belong to all the attaching creditors according to their respective rights. to be distrib uted by court. SECT. 82. The court may upon a hearing in equity determine the rights of the several attaching creditors, and award a separate execution R. S. 90, § 66. и Prior attach tected. for the amount due or payable to each, to be served and levied to his own use in the manner provided when a judgment is rendered on an administration bond; or they may award one execution for the whole sum due on the bond, and cause the money received to be distributed among the creditors according to their respective rights. SECT. 83. No judgment or execution shall be awarded for the use ments to be pro- of a creditor without reserving as much as may be due upon any prior attachment, whether the creditor in such prior suit is or is not one of those by whom the action is brought on the bond. R. S. 90, § 67. Creditor not joining in suit SECT. 84. Any creditor entitled to the benefit of the bond who has not joined in bringing the action thereon, may bring a writ of scire R. S. 90, § 68. facias, on the judgment, and recover any sum due to him upon the bond; or he may upon motion, at any time before final judgment, be allowed upon such terms as the court prescribes to become a party to the action, as if he had been one of those by whom it was originally brought. Limitation of action on bond, ment. R. S. 90, § 69. Creditor may be SECT. 85. No creditor whose cause of action on such bond accrued more than one year before the commencement of the action, shall have judgment or execution in such action, and no creditor shall sue out a writ of scire facias on the judgment, unless within one year after his cause of action accrues. SECT. 86. When goods which are sold or appraised and delivered to the debtor in the manner before provided are attached by several credor attachments. itors, any one of them may demand and receive satisfaction of his judg ment notwithstanding a prior attachment, if he is otherwise entitled to demand the money, and if a sufficient sum of the proceeds of the goods, or of the appraised value, is left to satisfy all prior attachments. R. S. 90, § 70. Goods attached ed at request of JOINT PERSONAL PROPERTY ATTACHED ON A WRIT AGAINST PART OWNER. SECT. 87. When personal property belonging to two or more persons may be apprais- is attached in a suit against one or more of the part owners thereof, it part owner not shall, upon the request of any other of the part owners, be examined and appraised in the manner before provided for an appraisement when made at the request of a party in the suit; except that the part owner who makes the application shall appoint one of the appraisers, and the debtor shall not appoint any. a defendant. 7 Gray, 416. and delivered giving bond, &c. If such part R. S. 90, § 75. To be restored SECT. 88. The property so appraised shall be delivered to the part owner at whose request it was appraised, upon his giving bond to the attaching officer, in a sufficient penalty and with two sufficient sureties, conditioned to restore the same in like good order, or to pay the officer the appraised value of the defendant's share or interest therein, or satisfy all such judgments as may be recovered in the suit in which it is attached, if demanded within the time during which the property would have been held by the respective attachments. SECT. 89. If such appraised value or any part thereof is so paid, the defendant's share of the property shall thereby become pledged to the party to whom it was delivered, and he may sell it, if not redeemed, and shall account to the defendant for the balance of the proceeds of the sale. SECT. 90. If the attachment is dissolved, the party to whom the on dissolution defendant's share was delivered shall restore the same to the defendant, or to the officer to be by him delivered to the defendant. of attachment. R. S. 90, § 76. Return of offi- upon bond. SECT. 91. The doings of the officer, together with the bond, shall be ceedings in suit returned by him in the manner before provided in the case of a bond given by a debtor upon the delivery to him of property attached; and upon the forfeiture of such bond like proceedings may be had as are provided upon the forfeiture of the bond given by a debtor. R. S. 90, § 77. ATTACHMENTS DISPUTED BY PERSONS HAVING SUBSEQUENT LIENS, &C. 19 Pick. 381. SECT. 92. When a person claims title or interest by force of a sub- Fraudulent atsequent attachment, purchase, or mortgage, or in any other manner, tachments, how in defeated. any estate real or personal that is attached in a suit between other per- R. S. 90, § 83. sons, he may dispute the validity and effect of the prior attachment, on 9 Met. 69. the ground that the sum demanded in the first suit was not justly due, or was not payable when the action was commenced. SECT. 93. The person objecting to the attachment may file his peti- Petition by the tion in the court in which the first suit is pending, at any time before person objecting thereto. final judgment therein, praying that the prior attachment may be dis- R. 8. 90, § 84. solved, and setting forth the facts and circumstances on which his petition is founded, and the grounds of his own claim. to be support ed by affidavit. SECT. 94. The petitioner or some person in his behalf shall make oath that his claim is just and legal, and that all the other facts set forth R. in the petition are true, or are believed by the deponent to be so. S. 90, § 85. dissolved in R. S. 90, § 86. SECT. 95. The court upon the hearing of the petition shall at the Prior attachmotion of either party direct a trial by jury of any question of fact ment may be arising in the inquiry, and if it appears to the court that any part of the case, &e. sum demanded in the prior suit is not justly due, or was not payable when the action was commenced, it shall order the attachment therein made to be dissolved in whole or in part as justice requires; but such order shall have no other effect on the prior suit. 5 Pick. 410. 8 Pick. 165. 12 Pick. 199. Proceedings not swer, &c., of de- Grounds of de SECT. 96. The proceedings between the two adverse claimants or plaintiffs shall not be affected by any answer, plea, or other act, of the defendant in the prior suit, nor by the judgment rendered therein. SECT. 97. No attachment shall be dissolved in manner aforesaid by reason of any defence to the action founded on the laws for the lim- fence in such itation of actions, restraining usury, requiring certain contracts to be Rs. 90, § 89. made in writing, or of any other like defence, if it appears to the court that the demand is otherwise well founded, and is justly and equitably due. case. SECT. 98. The court may upon such inquiry award to either party Damages and reasonable costs; and if the prior attachment is maintained, the courts costs may be may award to the attaching creditor reasonable damages, and execu- R. S. 90, § 90. tion may be issued for such costs and damages. 2 Met. 229. SECT. 99. The court shall also, upon the filing of the petition, Petitioner to require a bond or recognizance of the petitioner, or of some person in five security for damages his behalf, with sufficient surety or sureties, conditioned to pay to the and costs. adverse party all such damages and costs as may be awarded to him in the proceedings upon the petition. R. S. 90, § 91. R. S. 90, § 92. SECT. 100. If, during the pendency of the proceedings, the action Proceedings in which the attachment is made is carried to a higher court, the upon appeal inquiry concerning the attachment shall be carried to the same court, and there heard and determined as if the action had been originally commenced there. prior attaching SECT. 101. The decision or judgment of the court upon such an Decision to bar inquiry, whether the attachment is thereby vacated or held to be valid action against and effectual, shall be a bar to any action brought by the petitioner creditor for against the party who made the attachment, for any supposed fraud or R. S. 90, § 93. deceit therein. fraud. SECT. 102. Nothing contained in the ten preceding sections shall To what cases apply to any action commenced before a justice of the peace or police R. S. 90, § 94. court. REDUCTION OF EXCESSIVE ATTACHMENTS. applied. 6 Gray, 528. tachments may SECT. 103. If an excessive attachment of goods or estate is made Excessive aton mesne process, the defendant may apply in writing, in any county, be reduced on to a justice of the court to which such process is returnable, for a application to court. 1852, 312, § 59. reduction of the amount of the attachment; and such justice shall order a notice to the plaintiff, returnable before himself or any other justice of the same court as speedily as circumstances permit. If, upon summarily hearing the parties, it is found that the attachment is excessive, the justice shall order it to be reduced, or a part of the goods or estate to be released, and thereafter the attachment shall be deemed to be reduced or partially released, according to such order. attachment may be dissolved by a boud, ralux of property as determined 5 Attachments sureties, for 1 Cush. 535. 7 Cush. 333. 6 Gray, Same subject. §§ 18-21. Fees for ap- Plaintiff may vice of writs, by arrest. DISSOLUTION OF ATTACHMENTS BY GIVING BOND. SECT. 104. Any person or corporation whose goods or estate are attached on mesne process in a civil action may, at any time before final judgment, dissolve such attachment, by giving bond, with sufficient sureties, to be approved by the plaintiff or his attorney in writing, or by a master in chancery, with condition to pay to the plaintiff the amount, if any, that he may recover within thirty days after the final judgment in such action. No sureties shall be deemed sufficient unless satisfactory to the plaintiff, or it is made clearly to appear to the master that each one, if there are only two, is worth, above what will pay his debts, a sum equal to that for which the attachment is laid; or, if there are more than two, that they are together worth twice such sum. SECT. 105. Before such bond is approved by a master, the party whose goods or estate are attached, or some one in his behalf, shall make application in writing to a master, specifying therein the names and places of residence of the persons proposed as sureties. The same notice of the time and place of the hearing thereon shall be given to the plaintiff or his attorney, as is required in taking depositions; but the plaintiff or his attorney may in writing waive such notice, or may approve the bond at any time. SECT. 106. The fees of the master for approving a bond shall be one dollar for the hearing and decision, and fifty cents for the citation. If the attachment is dissolved, such fees shall be taxed in the defendant's costs, if he prevails in the suit. WHEN OFFICER TO ATTACH OR ARREST. SECT. 107. When the writ requires the officer to attach the goods or estate of the defendant, and for want thereof to take his body, the plaintiff or his attorney may by, written or verbal directions require the officer to serve the writ, by an attachment of goods or estate or by arresting the defendant, and the officer shall serve the writ according to such directions, if it is in his power to do so. 14. New notice not to be given until after seven DISCHARGE OR REMOVAL OF INSANE PERSONS days, unless, &c. 15. Defendant or debtor to be examined. 16. Examination may be adjourned, &c. 17. Pending examination, recognizance may be taken, &c. No recognizance after oath has been refused. 18. Defendant may be discharged if he was not intending to leave the state. Proceedings. 19. Examination concerning ability to pay, &c. 20. Debtor not entitled to oath, if he misspends his property, &c. 21. If magistrate is satisfied, &c., he may administer oath. 22. Certificate of magistrate and effect of discharge. Death of creditor not to affect proceedings. 23. Debtor on bail, &c., may be discharged, &c. 24. not entitled to oath, after scire facias, until payment of costs. IMPRISONED IN CIVIL CASES. 38. Insane debtors, how released from confine- 39. Legal rights of creditors not affected. 27. 28. 29. 30. goods and estate of, to remain liable. liable for all sums paid for his support. 49. 50. of the judge, under section thirty-eight. ARREST ON MESNE PROCESS AND EXECUTION. SECTION 1. No person shall be arrested on mesne process in an action of contract, unless the plaintiff or some person in his behalf makes affidavit and proves to the satisfaction of some justice of a court of record, police court, judge of a probate court, master in chancery, commissioner of insolvency, and except in the county of Suffolk, trial justice, or of any justice of the peace: First. That he has a good cause of action, and reasonable expectation of recovering a sum amounting to twenty dollars, exclusive of all costs which have accrued in any former action: Second. That he believes, and has reason to believe, the defendant has property not exempt from being taken on execution, which he does not intend to apply to the payment of the plaintiff's claim: and. Third. That he believes, and has reason to believe, that the defendant intends to leave the state, so that execution if obtained cannot be served upon him: Or, (instead of the second and third,) that the defendant is an attorney at law; that the debt sought to be recovered is for money collected by the defendant for the plaintiff, and that the defendant unreasonably neglects to pay the same to the plaintiff. And such affidavit and the certificate of the magistrate that he is satisfied the same is true shall be annexed to the writ. Arrest on in actions of 1859, 166, § 3. Ch. 52, § 26; Ch. 118, § 78; Ch. 165, § 36. |