Writ improperly issued.

Plaintiff may oppose affidavits.

Writ discharged.

by the plaintiff, or to the effect, in case the value of the property or the amount of money, debts or credit, sought to be released shall be less than the amount so claimed by the plaintiff, that the defendant will pay the amount of such judgment, to the extent of the value of the property, or amount of money or debts, or credits sought to be released, not exceeding the sum specified in the undertaking, which shall be at least double the value of the property, money, debts or credits. The value of the property sought to be released, if disputed, shall be determined by the court or judge thereof, upon proof, or by a sworn appraiser or sworn appraisers, not exceeding three, to be appointed by the court or the judge for that purpose. Before filing the undertaking, the defendant shall serve a copy thereof upon the plaintiff, and if the plaintiff require a justification by the sureties, he shall give notice thereof to the defendant within two days; or at the time of giving notice of motion for an order to discharge the attachment, the defendant may, in his notice, name the sureties, and if the plaintiff require them to justify, he shall give notice thereof at the hearing of the motion. If required, the sureties shall justify before the court in which the suit is pending, or the judge thereof, after reasonable notice.

SEC. 219. The defendant may also, before the time of answering expires, apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the judge thereof, for the discharge of the attachment, on the ground that the writ was improperly issued, and may traverse, by affidavit the allegations in the affidavit upon which the attachment issued.

SEC. 220. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the writ of attachment was issued.

SEC. 221. If, upon such application, it shall satisfactorily appear that the writ of attachment was improperly issued, it shall be discharged.

SEC. 223. The sheriff shall return the writ of attach

turned.

ment, with the summons, if issued, at the same time; Writ when otherwise, within twenty days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto.

not to apply.

SEC. 224. The foregoing provisions of this title shall This title when not apply to any action commenced before the passage of this act, but the attachment law, as existing in this territory before the passage of this act, may be applied in all such actions.

Deposit in Court.

SEC. 225. Where it is admitted, by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same upon motion, to be deposited in court, or delivered to such party, upon such conditions as may be just, subject to the further direction of the court.

SEC. 226. A receiver may be appointed by the court in which the action is pending, or by a judge thereof;

First, Before judgment, provisionally, on the application of either party, where he establishes a prima facie right to the property, or an interest in the property, which is the subject of the action, and which is in possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired.

Second, After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal; and

Third, In such other cases as are in accordance with the practice of courts of equity jurisdiction.

ARTICLE II.

Attachments in certain Actions Before Due.

Property held as trusteo.

Receiver, when appointed.

Attachment, before claim is

SEC. 227. A creditor may bring an action on a claim before it is duc, and have an attachment against the property au of the debtor in the following cases:

By whom granted.

Action dis

missed.

Order, what to specify.

Undertaking.

No judgment before claim is due.

First, Where a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts.

Second, Where he is about to make such sale, conveyance or disposition of his property, with such fraudulent intent.

Third, When he is about to remove his property or a amterial part thereof, with the intent, (or to the effect) of cheating or defrauding his creditors, or of hindering and delaying them in the collection of their debts.

SEC. 228. The attachment authorized by the last section, may be granted by the court in which the action is brought, or by a judge thereof, or by the probate judge of the county; but before such action shall be brought, or such attachment shall be granted, the plaintiff, his agent or attorney, shall make an oath, in writing, showing the nature and amount of plaintiff's claim, that it is just, when the same shall become due, and the existence of some one of the grounds for attachment enumerated in the preceding

section.

SEC. 229. If the court or judge refuse to grant an order of attachment, the action shall be dismissed, but without prejudice to a future action; and in all such actions application for an attachment must be made.

SEC. 230. The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim, and the probable cost of the action.

SEC. 231. The order of attachment as granted by the court or judge, shall not be issued by the clerk until there has been executed in his office, such undertaking on the part of the plaintiff as is directed by section two hundred and four.

SEC. 232. The plaintiff in such action shall not have judgment on his claim before it becomes due, and the proceedings on attachment may be conducted without delay.

SEC. 233. The proceedings in the first article of this

title, subsequent to section two hundred and four, shall, so far as they are applicable, regulate the attachments authorized by this article.

Garnishment in Certain Cases.

upon

SEC. 234. In all cases where an execution issued any judgment of a court of record, or of a justice of the peace, shall be returned by the officer in whose hands the same was placed for service, unsatisfied for want of sufficient property whereof to levy and collect the same, and the judgment creditor in such execution, his agent or attorney, shall file an affidavit in the office of the clerk of the court, or justice of the peace, from which said execution issued, that he has good reason to and does believe that any person or corporation, (naming them), have property and are indebted to the judgment debtor, the said clerk or justice of the peace, shall issue a summons, as in other cases, requiring such person or corporation to appear in court and answer such interrogatories as shall be propounded to him, it or them, touching the goods, chattels, rights and credit of said judgment debtor in his, its or their possession or control.

Proceedings.

Garnishmeat, when allowed.

Return of Bum

quent proceed.

ings.

SEC. 235. The summons shall be made returnable, and mous and cubesthe said persons or corporations shall be required to appear, as in ordinary cases of summons, and thereafter, like proceedings shall be had therein, and said garnishees shall be held liable, in all respects, as in cases of garnishees before judgment.

SEC. 236. The summons shall be served as a suminons in an original action is served; the said persons or corporations so summoned shall be liable to the judgment creditor in said execution, for all property, moneys and credits in his, its or their hands, or due from him, it or them, to the judgment debtor in said execution, at the time of, and which may come into his, its or their hands or control after the Bervice of said summons.

SEC. 237. No proceedings against such garnishee or garnishees shall be quashed, or such garnishee or garnishees discharged, by reason of any informality or irregularity

Summons, how Bervod.

Not quashed.

In certain cases

When indebted

to defendant.

Ten days notico

When judgmout rendered.

Ditto.

merely, of the affidavit or summons provided for in this title. SEC. 238. In cases where the garnishee, in answering such interrogatories, shall disclose that he as property in his possession or under his control, belonging to the defendant or defendants in execution, the court shall order the same to be taken and sold by the officers upon execution as in other cases.

SEC. 239. In cases where the garnishee, in answering such interrogatories, shall disclose that he is indebted to the defendant in execution, the court shall order the garnishee to pay over the amount found to be due from the said garnishee to the defendant in execution, which amount shall be collected by execution, as in other cases, as near as may be, and such amount, when paid or collected, shall be credited on the original judgment, and the garnishee shall be credited. for the amount so paid or collected.

SEC. 240. Whenever the defendant in an attachment suit has given an undertaking for the release of property attached, as provided in this title, the plaintiff may, by giving the surety or sureties on such undertaking at least ten days notice, apply to the court for judgment against such surety or sureties, and unless such surety or sureties show good and lawful cause why judgment should not be rendered against him or them, the court shall cause to be entered such judgment as shall have been rendered against the original defendant in the action, with such further costs as shall have accrued.

SEC. 241. Whenever judgment shall have been rendered against any surety or sureties, as provided in the above section, execution shall issue commanding the officer to make the amount out of the property of the original defendant, and in failure so to do for want of sufficient property, then to make said amount out of the property of the surety or sureties, naming him or them.

SEC. 242. When judgment is rendered against the surety or sureties as above provided, the plaintiff shall pay all costs of obtaining the judgment against such surety or sureties, if the amount of the first judgment be made out