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between whom rendered, whether between foreigners, or between citizens and foreigners. All are deemed of equal validity, and the same rules and remedies apply to, and in favor of all.

Where foreign judgments are set up as counter claims, the same principle applies, as in cases where they are sought to be enforced.

Where a foreign judgment is set up as a bar to a recovery on the same subject matter litigated, and between the same parties or privies, if the court had jurisdiction of the matter and persons, and the judgment is not impeachable for mistake discoverable, or for fraud in its rendition, or by the local law it is not irregular, it is then a bar to any future litigation on the subject between the same parties and their privies.(a)

(a) Story on Conflict, 506; 1 Starkie on Ev. 228, title Foreign Judgment.

CHAPTER X.

OBLIGATIONS AND RIGHTS OF DEBTORS.

The power that a creditor has over the person and property of his debtor, in this state, depends upon the character of the obligation. Where a debtor has been guilty of fraud in contracting the obligation; or where the obligation is for a fine or penalty; or for money or property misapplied or converted to his own use, by one acting as a public officer, or an officer of a corporation, or by an attorney, factor, broker, agent, or clerk, in the course of his employment as such; or by any other person in a fiduciary capacity; or for misconduct, or neglect in office, or in a professional employment, or for a wilful violation of duty; or where the obligation has been incurred by wilful injury to the person, character, or property of another; or where the obligation has been incurred by concealing and unjustly detaining personal property of another, where suit is brought for its recovery, so that the officer cannot find the same: for any of these obligations, the debtor may be arrested, and held in prison, until discharged by payment, or by due course of law.

Where a debtor has incurred the obligation by contract, express or implied, is about to leave the state to defraud his creditors, or has removed or disposed of his property, or is about to do so, with intent to defraud his creditors, he may, in like manner, be arrested, and held in prison, until discharged by payment, or by operation of law.

The debtor, if imprisoned by his creditor, is to be supported in prison with necessary food, clothing, and bedding, by such creditor, and if that is not done, the sheriff may set the debtor at liberty.

The debtor cannot be arrested by his creditor, unless a prima facie case is made by affidavit, by or on behalf of the plaintiff. When arrested by order from a justices' court, the defendant is to be taken before the court, and if he shall wish a trial immediately, it must be given him on demand, within three hours after such demand, unless the court is occupied in trying another case; and if so occupied, then his case is to be tried, as soon as the court can do so, after the case pending is at an end. If his case is continued at the instance of the plaintiff, for more than three hours, the defendant is to be discharged from arrest; but he may be arrested again, after judgment on the execution.

The defendant, after arrest, may have the case adjourned until a future period, by giving an undertaking, with two or more sureties, to be approved of by the court, to the effect that he will render himself amenable to the process of the court, during the pendency of the action, and such as may be issued to enforce the judgment therein; or, that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action. On this being done, the defendant is entitled to his discharge, and the court is to order it; and on judgment being rendered against the defendant, and not paid, the sureties are liable on their undertaking.

If the debtor is arrested by order from a court of record, it must be upon a prima facie case, made by affidavit, either by the plaintiff or some person for him, to the satisfaction of the judge; and in addition thereto, an undertaking must be filed, with two or more sureties, in a sum not less than five hundred dollars, to the effect that if the defendant shall recover judgment, the plaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which he may sustain by reason of such arrest, not exceed ing the sum named in the undertaking; and each of the sureties must verify under oath, or affidavit, that they are worth double the sum in the undertaking over and above all debts and liabilities, exclusive of property exempt from execution, and that they are residents and householders or freeholders within the state. The order of arrest may be

discharged at any time before execution, by giving an undertaking to the effect, that the sureties are bound in the amount named in the order of arrest, that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or that they will pay to the plaintiff the amount of any judgment he may recover against the defendant.

If, after arrest, the defendant shall have been discharged by giving the undertaking, he may, at any time before ten days after judgment, be arrested and surrendered to the custody of the sheriff again, or his sureties may indorse, on a certified copy of the undertaking given by them, authority to the sheriff, whose duty it will then be to arrest the defendant. Or the defendant may, at any time before the ten days shall expire, surrender himself to the custody of the sheriff, and thereby release his bail. But, if he is not arrested and surrendered by the bail, or does not surrender himself, within the time limited, his bail is liable on the undertaking, and the plaintiff may seek collection of his judgment from them. The defendant, to procure his release, may, instead of giving the undertaking, deposite the amount named in the order of arrest, and, after deposite and before judgment, the defendant may give the undertaking and receive back his deposite; but if the deposite is not received back, then it remains to satisfy the judgment and costs, and the residue, if any, is to be paid to the defendant.

If the undertaking is given by the defendant, he may, at any time before the bail justify, apply to the court or judge that made the order, upon reasonable notice to the plaintiff, to vacate the order or reduce the amount of bail. The application may be founded upon affidavits, and, when that is the case, the plaintiff may introduce affidavits or other proof in addition to that on which the order was obtained; and the court may, in their discretion, either vacate the order or reduce the amount of bail.

The personal and real property of a debtor may be attached for an obligation founded upon a contract, express or implied, entered into after the first day of July, 1851, for

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the direct payment of money, payable in this state, or made elsewhere and payable here, and not secured by mortgage on real or personal property.

The writ may issue upon the plaintiff showing, by affidavit made by him or on his behalf, a prima facie case, and filing the same with the clerk, and also an undertaking, with two or more sureties in a sum not less than two hundred dollars, nor more than the amount claimed by the plaintiff, to the effect that if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum named in the undertaking. After the attachment has been issued, the sheriff is bound to execute it, unless the defendant shall give an undertaking, with two or more sureties, in an amount sufficient to satisfy the demand, besides costs, to the effect, that if the defendant does not pay the judgment which the plaintiff may recover in the action, that the sureties will. If the undertaking is not given, the attachment is to be served; but the defendant may, at any time before judgment, give the undertaking to the clerk, on reasonable notice to the plaintiff; and, if required, the bail is to justify. Upon that being done, the property attached and not sold, will be delivered to the defendant along with the proceeds of that which may by the sheriff be sold. The sureties to the undertakings, to be given by the creditor or debtor in arrest or attachment, must be residents and householders or freeholders of the state, and worth double the amount named in the undertaking, over and above their debts and liabilities. At any time before the time limited for filing of the answer expires, the defendant, on giving reasonable notice to the plaintiff, may apply to the court or judge whence the attachment issued, to discharge the same on the ground that it was improperly issued. If affidavits are used by the defendant, the plaintiff may also use them on the hearing of the motion; but if not used by the defendant, the plaintiff cannot use them.

Thus it will appear that a debtor is liable to have his property attached if he fails in paying his obligations at

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