to be due from the person or persons so garnished. [As amended by act approved May 31, 1881. In force July 1, 1881. L. 1881, p. 97. Grand Tower, M. M. & T. Co. v. Schirmer, 64 Ill. 106.

5. In attachment or on judgment in courts of recordinterrogatories and answer. $5. When any person is summoned [*551] out of a court of record, the plaintiff shall, at or before the term at which the as a garnishee upon any process of attachment or garnishee summons issued garnishee is bound to appear, or within such further time as the court shall allow, exhibit and file, all and singular, such allegations and interrogatories, in writing, upon which he shall be desirous to obtain, and compel the answer of any and every garnishee, touching the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of such defendant, and the value thereof, in his possession, custody or charge, or from him due and owing to the said defendant at the time of the service of the said wri or at any time after, or which shait or may thereafter become due; and it shall be the duty of every garnishee to exhibit and file, under his oath or affirmation, within ten days after he shall be notified of the filing of such interrogatories, or if no notice of the filing of the same shall have been served upon him, then on or before the third day of the next succeeding term after the term at which such interrogatories are filed, full direct and true answers to all and singular the allegations and interrogatories by the plaintiff so exhibited and filed; but in no case shall the garnishee be compeiled to answer before the third day of the return term of the garnishee process.

[R. S. 1845, p. 67, § 18; Com. Ins. Co. v. Mehlman, 48 Ill. 317; Oliver v. C. & A. R. R. Co., 17 Ill. 587; Rankin v. Simonds, 27 I. 352; M. C. R. Co. v. Keohane, 31 Ill. 145; Williams v. Vanmetre, 19 Ill. 294; Warne v. Kendall, 78 III. 598; Webster v. Steele, 75 Ill. 544 Laidlou v. Hatch, 75 Ill. 11; Luton v. Hoehn, 72 Ill. 81; Dieter v. Smith, 70 Ill. 168.

6. Oral examination before a justice of the peace. $6. When the proceeding is before a justice of the peace, it shall not be necessary to exhibit or file interrogatories in writing, but the garnishee may be examined orally touching the personal estate, goods, chattels, moneys choses in action, credits and effects of the defendant, and the amount and value thereof in his possession, custody or charge, or from him due and owing to such defendant at the time of the service of such attachment or summons, or at any time after, or which shall or may thereafter become due.

[Wilcus v. Kling, 87 Ill. 107; Oliver v. Chicago & C. R. R. Co., 17 III. 587.

7. Issue, how made and tried. $7. When the plaintiff in any garnishee proceeding shall allege that any garnishee served with process, or appearing before any court, hath not truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects, or if before a justice of the peace such personal effects of the defendant in the attachment suit or judgment, and the value thereof, in his possession, custody or charge, or from him due and owing to the defendant at the time of the service of the writ, or at any time after, or which shall or may thereafter become due, the court or justice of the peace shall immediately (unless the case shall for good cause be continued) proceed to try such cause, as against such garnishee, without the formality of pleading. The trial shall be conducted as other trials at law, and if the finding or verdict shall be against the garnishee, judgment shall be given against him in the same manner as if the facts had been admitted by him, with all costs of such trial. If the finding shall be in favor of the garnishee, he shall recover his costs against the plaintiff. And in case the garnishee admits indebtedness to the judgment debtor, he shall not be liable for

costs.

[R. S. 1845, p. 67, § 19; Warne v. Kendall, 78 Ill. 599; National Bank v. Titsworth, 73 Ill. 591; Young v. First Nat. Bk,, 51 Ill. 73; First B. C. v. Hyde, 40 IIL

150: Schwab v. Gingerick, 13 Ill. 698; Kergin v. Dawson, 1 Gilm. 86; McCoy v Williams, 1 Gilm. 584; Crain v. Gould, 46 Ill. 296; Pierce v. Carleton, 12 III. 358; 1. C. R. R. Co. v. Cobb, 48 Ill. 404.

8. Conditional and final judgment. 8. When any person shall have been summoned as a garnishee upon any attachment or other writ issued out of any court of record, or by any justice of the peace, and shall fail to appear or make discovery, as by this act required, the court or justice of the peace may enter a conditional judgment against such garnishee for the amount of the plaintiff's demand, or judgment against the original defendant, and thereupon a scire facias shall issue against such garnishee, returnable, if the proceedings be in a court of record, at the next term of court, or if it be before a justice of the peace, within the same time as other summonses from justices of the peace, Commanding such garnishee to show cause why such judgment should not be made final. If such garnishee, being served with process or notified as required by law, shall fail to appear and make discovery in the manner aforesaid, the court, or justice of the peace, shall confirm such judgment, to the amount of the judgment against the original defendant, and award execution for the same and costs. If such garnishee shall appear and answer, the same proceedings may be had as in other cases.

[R. S. 1845, p. 67, § 16; Toledo, W. & W. Ry. Co. v. Reynolds, 72 Ill. 487; Webster v. Steele, 75 fil. 544; Horat v. Jackel, 59 Ill. 139; Sandburg v. Papineau, 81 Ill. 446; Cariker v. Anderson, 27 Ill. 358; Towner v. George, 53 Ill. 168; U. S. Express Co. v. Bedbury, 34 Ill. 459; C. & St. L. R. R. Co. v. Hindman, 85 Ill. 521.

9. Notice when sci. fa. not served. 9. If any garnishee shall become a non-resident, or shall have gone out of this [*552] State, or is concealed within this State so that the scire facias cannot be served upon him, upon the plaintiff or his agent filing affidavit, as in cases of non-resident defendants in attachment, such garnishee may be notified in the same manner as such non-resident defendants, and upon such notice being given he may be proceeded against in the same manner as if he had been personally served with such scire facias. I McCourtie v. Davis, 2 Gilm. 298.

10. When judgment against original defendant necessary. 10. No final judgment shall be entered against a garnishee in any attachment proceeding until the plaintiff shall have recovered a judgment against the defendant in such attachment.

11. Adverse claimants. II. If it appears that any goods, chattels, choses in action, credits or effects in the hands of a garnishee are claimed by any other person, by force of an assignment from the defendant, or otherwise, the court or justice of the peace shall permit such claimant to appear and maintain his right. If he does not voluntarily appear, notice for that purpose shall be issued and served on him in such manner as the court or justice shall direct.

Born v. Staaden, 24 Ill. 320; Cooper v. McClun, 16 Ill. 435; Barker v. Garvey, 83 111. 187; Meadowcroft v. Agnew, 89 Ill. 469.

12. Adverse claims-trial. § 12. If such claimant appears, he may be admitted as a party to the suit, so far as respects his title to the Property in question, and may allege and prove any facts not stated nor

denied by the garnishee, and such allegations shall be tried and determined in the manner hereinbefore provided. If such person shall fail to appear after having been served with notice in the manner directed, he shall nevertheless be concluded by the judgment in regard to his claim.

[Meadowcroft v. Agnew, 89 Ill. 471.

13. Deductions and set-offs of garnishee. §13. Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands all demands against the plaintiff, and all demands against the defendant, of which he could have availed himself if he had not been summoned as garnishee, whether the same are at the time due or not, and whether by way of set-off on a trial, or by the set-off of judgments or executions between himself and the plaintiff and defendant severally, and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted, not including unliquidated damages for wrongs and injuries: Provided, that the verdict or finding, as well as the record of the judgment, shall show in all cases, against which party, and the amount thereof, any set-off shall be allowed, if any such shall be allowed.

[R. S. 1845, p. 69, § 25; Himrod v. Baugh, 85 Ill. 435; Mich. C. R. R. Co. v. C. & M. Lake Shore R. R. Co., 2 Ch. L. J. 65; Same v. Same, 1 Brad, 406.

14. $50 wages exempt. 14. The wages and services of a defendant being the head of a family, and residing with the same, to an amount not exceeding fifty dollars ($50) shall be exempt from garnishIn case the wages or services of such defendant, in the hands of a garnishee, shall exceed fifty dollars ($50) judgment shall be given only for the balance above that amount.

ment.

[As amended by act approved May 31, 1879. In force July 1, 1879. L. 1879, P. 1753 L. 1861, p. 178, § 2; Bliss v. Smith, 78 Ill. 359; C. & A. R. R. Co. v. Ragland, 84 376; Hoffman v. Fitzwilliam, 81 Ill. 521; Winslow v. Benedict, 70 Ill. 120; Fanning V. First National Bank of Jacksonville, 76 Ill. 53: M. Pt. R. R. Co. v. Barron, 83 III. 365.

15. Negotiable paper. 15. No person shall be liable as a garnishee by reason of having drawn, accepted, made or indorsed any negotiable instrument, when the same is not due, in the hands of the defendant at the time of service of the garnishee, summons, or the rendition of the judgment.

[Warne v. Kendall, 78 Ill. 598; Patton v. Gates, 67 Ill. 164.

16. Effect of judgment. 16. The judgment against a garnishee shall acquit him from all demands by the defendant for all goods, effects and credits paid, delivered or accounted for by the garnishee by force of such judgment.

[Prout v. Grout, 72 Ill. 457; Richardson v. Lester, 83 Ill. 55; Stevens v. Dillman, 86 III. 233

17. A discharge no bar. 17. If the person summoned as garnishee is discharged, the judgment shall be no bar to an action brought against him by the defendant for the same demand.

[Allen v. Watt, 79 Ill. 284.

18. Revival of garnishment against executor, etc. 18. In case of the death of a person served as garnishee, his executor or administrator may be made a party, and notified, unless his appearance is entered, as in the case of the death of a defendant, and the cause may proceed against him as personal representative of the deceased. 19. Execution not to issue till debt due. $ 19. When judgment is rendered against any garnishee, and it shall appear that the debt from him to the defendant is not yet due, execu[*553] tion shall not issue against him until twenty days after the same shall become due, unless the party asking the same, or his agent, shall make Oath that he believes the debt will be lost unless execution issue forthwith, in which case execution shall issue as soon as said debt to defendant is due; but no sale of property, under such execution, shall take place until after the expiration of twenty days from date of judgment. R. S. 1845, p. 67, § 17.

20. Goods, etc., surrendered in execution. § 20. When any garnishee has any goods, chattels, choses in action, or effects other than money, belonging to the defendant, or which he is bound to deliver to him, he shall deliver the same, or so much thereof as may be necessary, to the officer who shall hold the execution in favor of the plaintiff, in the attachment suit or judgment, which shall be sold by the officer, and the proceeds applied and accounted for in the same manner as other goods and chattels taken on execution.

[Fanning, etc., v. First National Bank of Jacksonville, 76 Ill. 53; Stevens v. Dillman, 86 Ill. 233.

21. When property is pledged, etc. 21. When it shall appear that such goods, chattels, choses in action, or effects in the hands of a garnishee are mortgaged, or pledged, or in any way liable for the payment of a debt to him, the plaintiff may be allowed, under an Order of the court or justice of the peace, for that purpose, to pay or tender the amount due to the garnishee; and he shall thereupon deliver the goods, chattels, choses in action and effects, in the manner before provided, to the officer who holds the execution.

22. When plaintiff may perform conditions. § 22. If the goods, chattels, choses in action or effects are held for any purpose, Other than to secure the payment of money, and if the contract, condition or other thing to be performed, is such as can be performed by the Plaintiff without damage to the other parties, the court or justice of the Peace may make an order for the performance thereof by him. Upon Such performance or a tender, the garnishee shall deliver the goods, Chattels and effects in the manner before provided, to the officer who holds the execution.

23. Sale-application of proceeds. 23. All goods, chattels, choses in action and effects, received by the officer under either of the two preceding sections, shall be sold and disposed of in the same manner as if they had been taken on an execution in any other manner, except that from the proceeds of the sale the officer shall repay the plaintiff the amount paid by him to the garnishee for the redemption of the same, with interest thereon, or shall indemnify the plaintiff for any other

act or thing by him done or performed pursuant to the order of the court or justice of the peace for the redemption of the same.

24. Equitable powers of court. § 24. When it shall appear that any garnishee has in his hands, or under his control, any goods, chattels, choses in action or effects, belonging to or which he is bound to deliver to the defendant, with or without condition, the court or justice of the peace may make any and all proper orders in regard to the delivery thereof to the proper officer, and the sale or disposition of the same, and the discharging of any lien thereon, and may authorize the garnishee to sell any such property, or collect any choses in action, and account for the proceeds thereof; or, if the proceeding be in a court of record, the court may appoint a receiver to take possession and sell, collect, or otherwise dispose of the same, and make all orders in regard thereto which may be necessary or equitable between the parties.

25. When garnishee refuses to deliver property. § 25. If any garnishee refuses or neglects to deliver any goods, chattels, choses in action or effects in his hands when thereto lawfully required by the court or justice of the peace or officer having an execution upon which the same may received, he shall, if the proceeding be in a court of record, be liable to be attached and punished as for a contempt, or the court may enter up judgment for the amount of the plaintiff's judgment, and award execution thereon against the garnishee; or, if the proceeding be before a justice of the peace, be liable to the plaintiff for the full amount of his judgment against the defendant, and judgment may be entered against him therefor.

26. Rights of garnishee. § 26. Nothing contained in this chapter shall prevent the garnishee from receiving any goods, [* 554] chattels, choses in action or effects in his hands for the payment of any demand for which they are mortgaged, pledged, or otherwise liable a any time before the amount due to him is paid or tendered, if such sale would be authorized as between him and the defendant.

27. Costs-fees to garnishee. 27. The court or justice of the peace may order the costs of the proceedings in any garnishment to be paid by the plaintiff, or out of the effects or credits garnished, or by the garnishee, or may apportion the same as shall appear to be just and equitable. The garnishee shall be entitled to fees the same as witnesses before the same courts in civil cases.

[Prout v. Grout, 72 Ill. 456; Lucas v. Campbell, 88 Ill. 451.

28. Appeals. § 28. An appeal may be taken from the judgment or any final order of the court or justice of the peace, by any party to such proceeding, in like manner as appeals are taken in other cases. [R. S. 1849, p. 69, § 28.

[ 29, repeal, omitted. See "Statutes," ch. 131, § 5.

AN ACT to revise and enlarge the law in relation to garnishments in justices' courts. [Approved June 4, 1879. In force July 1, 1879. L. 1879, p. 176.] *29. When transcript filed in another county-garnishment. SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That whenever a judgment shall be