bond; and thereupon such creditor may sue out an original attachment against the lands, tenements, goods, moneys, effects, and credits of the debtor, in whosesoever hands they may be.

SEC. 3. The affidavit shall be made by the plaintiff, or some person for him, and shall state that the defendant is justly indebted to the plaintiff, after allowing all just credits and offsets, in a sum, (to be specified,) and on what account; and shall also state that the affiant has good reason to believe, and does believe, the existence of one or more of the causes which, according to the provisions of the first section, would entitle the plaintiff to sue by attachment.*

SEC. 4. The bond shall be executed by the plaintiff, or some responsible person, as principal, and one or more securities, resident householders of the county in which the action is to be brought, in a sum at least double the amount of the demand sworn to, payable to the Territory of Kansas; conditioned that the plaintiff shall prosecute his action without delay and with effect, refund all sums of money that may be adjudged to be refunded, and pay all damages that may accrue to any defendant or garnishee, by reason of the attachment or any process or proceeding in the suit.

SEC. 5. The clerk shall judge of the sufficiency of the penalty and the security in the bond; if they be approved he shall endorse his approval thereon, and the same, together with the affidavit and declaration, or other lawful statement of the cause of action, shall be filed before an attachment shall be issued.†

SEC. 6. If, at any time pending a suit by attachment, it shall appear to the court before which the action is pending that the bond given by the plaintiff is insufficient, or that any security therein has died or has removed from the Territory, or has become or is likely to become insolvent, the court may order another bond and such further security to be given as shall seem necessary, five days previous notice in writing having been given to the plaintiff, his agent or attorney, of the application for such order.

SEC. 7. If the plaintiff shall fail to comply with the order within ten days after the same shall be made, the suit shall be dismissed at his costs.

SEC. 8. The bond to be given by the plaintiff or other person, in a suit by attachment, may be sued on, at the instance of any party injured, in the name of the Territory of Kansas, to the use of such party, for the breach of the condition of such bond, and the damages shall be assessed thereon as on bonds with collateral conditions.

SEC. 9. Original writs of attachment shall be in form, with the

An affidavit before a judicial officer of any State, authorized by the common law and practice of the courts to administer oaths, is good in this State for the purpose of granting an attachment. Hays vs. Bouthalier, 1 Missouri Rep., 346. Posey vs. Buckner, 3 Missouri Rep., 605. A judgment rendered in a suit by attachment on an affidavit not warranted by the statute will be set aside, even after a lapse of several years. Alexander vs. Hayden, 2 Missouri Rep., 229. See Lane vs. Fellows, 1 Missouri Rep., 355. The affidavit must state that the affiant "has good reason to believe, and does believe," the existence of the facts alleged. (Stevenson) and Hord vs. Robbins, 5 Missouri Rep., 19. See Curtis vs. Settle, 7 Missouri Rep., 452.

When an attachment has been sued out in vacation without filing a bond, as the law requires, the plaintiff will not be allowed, either in vacation or at the ensuing term of the court, to file a bond nunc pro tunc. Stevenson & Hord vs. Robbins, 5 Missouri Rep., 19.

addition of a clause of the nature and effect of an ordinary summons, to answer the action of the plaintiff.*

SEC. 10. When there are several defendants who reside or have property in different counties, and when a single defendant in any such action has property or effects in different counties, separate writs may issue to every such county, and every such writ shall be endorsed upon, or annexed to, a copy of the declaration.

SEC. 11. Original writs of attachment shall be issued and returned. in like time and manner as ordinary writs of summons, and when the defendant is summoned to answer the action the like proceedings shall be had between him and the plaintiff as in ordinary actions on contract, and a general judgment may be rendered for or against the defendant. †

SEC. 12. The manner of serving writs of attachment shall be as follows: First. The writ and declaration shall be served upon the defendant as an ordinary summons. Second. Garnishees shall be summoned by the sheriff, declaring to them that he does summon them to appear at the return term of the writ to answer the interrogatories which may be exhibited by the plaintiff, and by reading the writ to them, if required. Third. When lands or tenements are to be attached, the officer shall briefly describe the same in his return, stating the quantity and situation, and declare that he has attached all the right, title, and interest of the defendant in the same, or so much thereof as shall be sufficient to satisfy the debt, interest, and costs; and shall, moreover, give notice to the actual tenants, if any, at least ten days before the return day of the writ, and state the fact of such notice, and the names of the tenants, in his returns. Fourth. When goods and chattels, money, or evidences of debt, are to be attached, the officer shall take the same and keep them in his custody, if accessible; and if not accessible, he shall declare to the person in possession thereof that he attaches the same in his hands, and summon such person as garnishee.§ Fifth. When the credits of the defendant

* In Bland vs. Schott, 5 Missouri Rep., 213, the writ commanded the sheriff to attach the defendant by his lands, &c., that he be and appear at the circuit court, &c., without any clause of summons. Nor did the sheriff say anything in his return of his having summoned the defendant. On the hearing, the attachment, for certain reasons, was dissolved. The court held, that, there having been no clause of summons, the court did not err in dismissing the suit.

A motion to dissolve an attachment is such an appearance as will authorize a general judgment, although the party has not been served with process. Whiting & Williams vs. Budd, 5 Missouri Rep., 443. Evans vs. King, 7 Missouri Rep., 411. After such constructive appearance defendants should be allowed six days to file their pleas in, or until the end of the term, and it is error for the court to give judgment by default against them on the same day of their motion, unless the court should be about to adjourn on the same day. Whiting & Williams rs. Budd, supra.

A description precise as to quantity, and as particular as to location and boundary, as deeds generally are, is sufficient in a sheriff's return of property, upon which he has levied an attachment. Hays vs. Bouthalier, 1 Missouri Rep., 346.

In the case of Anderson vs. Scott, 2 Missouri Rep., 15, the court held, that a levy of attachment on property generally, without saying whose property, was not good; and a garnishee summoned, without any further levy, was not bound to appear. And in Maulsby vs. Farr, 3 Missouri Rep., 438, it was held, that a return to an attachment, not stating on whose property in the hands of the garnishee the writ was levied, is too defective to warrant a judgment by default against the garnishee. These decisions were made in reference to the act of the sixth of February, one thousand eight hundred and twenty-five, (R. C., 144,) which did not contain the provisions embraced in the second subdivision of the twelfth

are to be attached, the officer shall declare to the debtor of the defendant that he attaches in his hands all debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt, interest, and costs, and summon such debtor as garnishee.*

SEC. 13. All persons shall be summoned as garnishees who are named as such in the writ, and such others as the officer shall find in the possession of goods, money, or effects of the defendant not actually seized by the officer, and debtors of the defendant, and also such as the plaintiff or his attorney shall direct.

SEC. 14. When the defendant cannot be summoned, and his property or effects shall be attached, if he does not appear and answer the action at the return term of the writ, and within the first six days. thereof, if the term shall so long continue, and if not, then before the end of the term, the court shall order a publication to be made stating the nature and amount of the plaintiff's demand, and notifying the defendant that his property has been attached, and that unless he be and appear at the next term, and on or before the third day thereof, if the term shall so long continue, and if not, then before the end of the term, judgment will be rendered against him, and his property sold to satisfy the same.

SEC. 15. The notice required in the last section shall be published four weeks successively, in some newspaper printed in this Territory, the last insertion to be not less than four weeks before the first day of the next term, the necessary expense of which shall be taxed as other

costs.

SEC. 16. When the defendant shall be notified, as aforesaid, and shall not appear and answer the action, judgment by default may be entered, which may be proceeded on to final judgment, in like manner as in ordinary actions.

SEC. 17. Such judgment shall bind only the property and effects attached, and no execution shall issue against any other property of the defendant, nor against his body, nor shall such judgment be any evidence of debt against the defendant in any subsequent suit.

SEC. 18. When two or more shall be defendants in any attachment cause, and the property or effects of part of them shall be attached in the hands of garnishees, but not actually seized or secured by bond, the plaintiff may, at his option, proceed against those whose property has been attached, or continue the cause, and sue out new process against the other defendants.

SEC. 19. But when the property or effects of one or more of the defendants has been actually seized or secured by bond, the cause shall not be delayed for the purpose of sueing out new process against the

section of this act. But that act did contain the substance of the fourth subdivision of the twelfth section of this act, and to which this note is appended; and it is submitted that, when the officer is proceeding under the fourth subdivision above mentioned, that his duty is precisely the same as under the act of one thousand eight hundred and twenty-five, and as if the second subdivision had no existence.

*The interest of a joint obligee may be attached for his individual debt in the hands of the obligor, but no more than his share can be so attached. Miller & Irvine vs. Richardson, 1 Missouri Rep., 310. A promissory note made payable to order is such property as can be attached. Scott & Rule rs. Hill, et al., 3 Missouri Rep., 88. Vide Lee, et al., vs. Tabor &

Watson, 8 Missouri Rep., 322.

other defendants, unless, upon good cause shown, the court shall so order.

SEC. 20. When property of the defendant, found in his possession, or in the hands of any other person, shall be attached, the defendant, or such other person, may retain the possession thereof, by giving bond and security, to the satisfaction of the officer executing the writ, to the sheriff, his successor, or their assigns, in double the value of the property attached, conditioned that the same shall be forthcoming when and where the court shall direct, and shall abide the judgment of the court. *

SEC. 21. The officer executing the writ of attachment shall return with the writ all bonds taken by him in virtue thereof, and a schedule of all property and effects attached, and the names of all the garnishees, and the times and places when and where respectively summoned.

SEC. 22. When a return of no property found shall be made upon an execution issued upon a judgment in an attachment suit against the defendant, the court shall direct the sheriff to assign to the plaintiff, his executor or administrator, the bonds taken by him for the forthcoming of the property attached, and may, upon motion, render judgment in favor of the plaintiff, against the obligor in the bond, for the value of such property; or, if the property should be greater in value than the amount due upon such execution, then for the amount due, together with twenty per cent. damages upon such value

or amount.

SEC. 23. No judgment shall be rendered upon such motion unless the plaintiff shall have given the obligors in the bond at least fifteen days' notice, in writing, of such motion.

SEC. 24. If the officer fail to return a good and sufficient bond, in any case where bond is required by this act, the court may, upon motion of the plaintiff, rule the officer to file a good and sufficient bond, to be judged of by the court, on or before the first day of the next term; and in default thereof, such officer shall be held and considered as security for the performance of all acts, and the payment of all money, to secure the performance and payment of which such bond ought to have been taken, and he and his securities shall be liable therefor, on his official bond; but no such motions shall be made unless at the return term, and within the first six days thereof.

SEC. 25. In all cases where property or effects shall be attached the defendant may file a plea, in the nature of a plea in abatement, without oath, putting in issue the truth of the facts alleged in the affidavit on which the attachment was sued out.†

When property of the defendant, attached in the hands of a third person, is retained, by giving bond and security for the forthcoming of the property, the attachment continues to be a lien on the property. Evans vs. King, 7 Missouri Rep., 411. Vide Grant & Finney vs. Brotherton's administrator, 7 Missouri Rep., 458.

A plea in the nature of a plea in abatement, in proceedings by attachment, puts in issue, not the belief of the creditor in the existence of the facts sworn to, but the existence of the facts themselves. Chenault vs. Chapron & Niedelet, 5 Missouri Rep., 438. It is not necessary to put in issue the goodness of the plaintiff's reasons for his belief. Didier et al. vs. Courtney, 7 Missouri Rep., 500. Scott, J., dissenting. A plea, in the nature of a plea in abatement, only denies the facts alleged in the plaintiff's affidavit, and, therefore, a misnomer cannot be taken advantage of under that plea, but must be specially pleaded. Swan et al. vs. O'Fallon et al., 7 Missouri Rep. 231. An attachment ought not to be dissolved on

SEC. 26. Upon such issue, the plaintiff shall be held to prove the existence of the facts alleged by him as the ground of the attachment, and if the issue be found for him the cause shall proceed; but if it be found for the defendant the suit shall be dismissed at the costs of the plaintiff, and he and his securities shall be liable on their bond for all damages occasioned by the attachment or other proceedings in the cause.*

SEC. 27. The plaintiff may exhibit in the cause written allegations and interrogatories touching the property, effects, and credits attached in the hands of any garnishee, and require such garnishee to make full, direct, and true answers to the same, upon oath.

SEC. 28. The allegations and interrogatories shall be filed at the return term of the writ, and within the first three days thereof, if the term shall so long continue; and if not, then before the end of the term, and not afterwards unless for good cause shown the court shall order otherwise.

SEC. 29. Upon the filing the interrogatories and allegations aforesaid, the garnishee shall exhibit and file his answer thereto, on oath, during such term, unless, for good cause shown, the court shall order otherwise; in default of such answer, the plaintiff may take judgment by default against him, or the court may, upon motion, compel him to answer by attachment of his body.

SEC. 30. Such judgment by default may be proceeded on to final judgment, in like manner as in case of defendants in actions upon contracts; but no final judgment shall be rendered against the garnishee until there shall be final judgment against the defendant, and in no case for a greater amount than the amount sworn to by the plaintiff, with interest and costs, or for a greater amount than the garnishee shall appear to be liable for the defendant.

SEC. 31. The plaintiff may except to the answer of any garnishee for insufficiency, and if the same shall be adjudged insufficient, the court may allow the garnishee to amend his answer, in such time and on such terms as shall be just, or the plaintiff may take judgment by default, or move the court to attach the body of the garnishee, to compel a sufficient answer.†

SEC. 32. The plaintiff may deny the answer of the garnishee, in whole or in part, and the issues shall be tried as ordinary issues between plaintiff and defendant. ‡

SEC. 33. If, on such trial, property or effects of the defendant be found in the hands of the garnishee, the value thereof shall be assessed, and judgment shall be for the proper amount in money.

SEC. 34. If the answer of the garnishee be not excepted to or denied in proper time, it shall be taken to be true and sufficient.

SEC. 35. If, by the answer not excepted to nor denied, it shall appear that the garnishee is possessed of property or effects of the motion of the plaintiff, and against the consent of the defendant, after plea in the nature of a plea in abatement filed. Mense vs. Osborn, 5 Missouri Rep., 544.

See Fugate vs. Glasscock, 7 Missouri Rep., 577.

See Brotherton, administrator, rs. Anderson, 6 Missouri Rep., 388.

If the answer of a garnishee is not denied in a proper manner, the garnishee should move to dismiss the proceedings against him, and not demur to the denial. Tuttle vs. Gordon, 8 Missouri Rep., 152.