conceals the property sought to be recovered, or, having control thereof, refuses to deliver the same to the officer, the Committal of justice may commit such defendant or other person, until he or they disclose where such property is, or deliver the same to the officer.

defendant.

When justice liable to damages

Liability of eonstable.

Notice to plain

tiff by claimants

fendants in action

SEC. 121. If any justice shall issue a writ to replevin property, as is provided by this act, without the affidavit being filed in his office, as is provided in this act, the same shall be set aside at his costs, and he shall be liable, in damages, to the party injured.

SEC. 122. If the constable shall deliver the property to the plaintiff or his agent without receiving the undertaking from the plaintiff as required by this act, he and his bondsmen shall be liable to the defendant to all damage he shall sustain in consequence therefor.

1. Right of property. 2. Trial of.

SEC. 123. When a constable shall levy on or attach other than de property claimed by any person or persons, other than the party against whom the execution or attachment issued, the claimant or claimants shall give three days notice, in writing, to the plaintiff or his agent, or if not found within the county, then such notice shall be served by leaving a copy thereof at his usual place of abode in such county, or if no place of abode exists in said county, then by leaving notice at the justice's office, of the time and place of the trial of the right to such property, which trial shall be had before some justice of the county, at least one day prior to the time appointed for the sale of such property.

Judgment, how rendered.

SEC. 124. If on trial, the justice or jury impanneled shall be satisfied from the proof, that the property, or any part thereof, belongs to the claimant or claimants, the jury shall render a verdict accordingly, such justice shall render judgment thereon against the party in whose favor such execution or attachment issued for the costs, and issue execution therefor, and shall, moreover, give a written order to the constable who levied on, or who may be charged with the duty of selling such property, directing him to restore

the same, or as much thereof as may have been found to belong to such claimant or claimants.

claimant.

SEC. 125. But if the claimant or claimants fail to Costs against establish his or their right to such property or any part thereof, the justice shall render judgment against such claimant or claimants for the costs that have accrued on account of such trial, and issue execution therefor; and the constable shall not be liable to the claimant or claimants for the property so taken.

TITLE XVIII.

Attachment.

Attachment.

SEC. 126. The plaintiff shall have a writ of attachment against the property of the defendant in a civil action before when to issue. a justice of the peace, at the time or after the commencement thereof, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing the nature of the plaintiff's claim, that it is just; if the claim shall be founded upon contract, express or implied, the amount which the affiant believes the plaintiff ought to recover of the defendant after allowing all just credits, counterclaims or set-offs, and the existence of some one or more of the following grounds of attachment:

First, When the defendant is a foreign corporation, or a non-resident of this Territory; or

Second, Has absconded with the intent to defraud his creditors; or

Third, Has left the county of his residence to avoid the service of a summons; or

Fourth, So conceals himself, that a summons cannot be served upon him; or

Fifth, Is about to remove his property, or a part thereof out of the jurisdiction of the court with intent to defraud. his creditors; or

Sixth, Is about to convert his property, or a part thereof into money, for the purpose of placing it beyond the reach of his creditors; or

Grounds of attachment.

Undertaking.

Writ of attachment.

Sureties.

Property sub

ject to attach⚫ment.

Duty of con- table.

Seventh, Has property or rights in action which he conceals; or

Eighth, Has assigned, removed, or disposed of, or is about to dispose of his property or a part thereof, with the intent to defraud his creditors; or

Ninth, Fraudulently contracted the debt or incurred the obligation for which suit is about to be, or has been brought.

SEC. 127. Before issuing the writ the justice shall require a written undertaking on part of the plaintiff, in a sum not less than fifty dollars in any case, and in double the amount claimed by the plaintiff, with sufficient surety, to the effect that if the defendant recover judgment the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking.

SEC. 129. The writ shall be directed to any constable of the county in which the writ is issued, and require him to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which shall be stated in conformity with the affidavit, unless the defendant give him security by the undertaking, of at least one sufficient surety in an amount. sufficient to satisfy such demand besides cost, in which case he shall receive such undertaking.

SEC. 130. The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profits therein, and all debts due such defendant, and all other property in this territory of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution.

SEC. 131. The constable to whom the writ is directed and delivered shall execute the same without delay, and if the undertaking herein provided for be not given by the defendant as follows:

First, Personal property capable of manual delivery shall be attached by taking it into custody.

Second, Stock or shares, or interest in stock or shares, of any corporation or company, shall be attached by leaving with the president or other head of the same, or the secretary, cashier or agent thereof, a copy of the writ and a notice stating the stock or interest of the defendant is attached in pursuance of such writ.

Third, Debts and credits, and personal property, not capable of manual delivery, shall be attached by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, a copy of the writ, and a notice, and the debts owing by him to the defendant, or the credits and other personal property in his possession or under his control belonging to the defendant, are attached in pursuance of

such writ.

SEC. 132. Upon receiving information in writing, from the plaintiff or his agent or attorney, that any person has in his possession, or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the constable shall serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pursuance of such writ.

SEC. 133. All persons having in their possession, or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendants at the time of service upon them, of a copy of the writ and notice, as provided in the last two sections, shall be, unless such property is delivered up or transferred, or such debts. be paid to the constable, liable to the plaintiff for the amount of such credits, property or debts, until the attachment be discharged or any judgment recovered by him be satisfied.

Personal prop

erty how attached.

Stocks or shares.

Debts and credits.

Service and no

tie.

Liability to plaintiff.

Examination

SEC. 134. Any persons owing debts to the defendant, or having in his possession, or under his control, any credits of defendant and or other personal property belonging to the defendant, may

his debtors.

Inventory.

Oath.

Memorandum.

Perishable prop

erty.

Constable's re

ret

be required to attend before the justice, and be[ing] examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The justice may, after such examination, order personal property capable of manual delivery, to be delivered to the constable on such terms as may be just, having reference to any liens. thereon, or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof.

SEC. 135. The constable shall make a full inventory of the property attached, the value thereof to be ascertained by the oath of two disinterested property holders, and return the same with the writ. To enable him to make such returns as to debts and credits attached, he shall request, at the time of service, the party owing the debt, or having the credit, to give him a memorandum, stating the amount and description of each; and if such memorandum be refused, he shall return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay the costs of any proceeding taken for the purpose of obtaining information respecting the amount and description of such debt or credit.

SEC. 136. If any of the property attached be perishable, the constable under an order therefor, made by the justice, shall sell the same in the manner in which such property is sold on execution. The proceeds and other property attached by him shall be retained by him, to answer any judgment that may be recovered in the action, unless previously subject to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him, if the same can be done without suit. The constable's receipt shall be a sufficient discharge for the amount paid.

SEC. 137. If any personal property attached be claimed Claimants third by a third person as his property, the constable, after receiving a written notice to that effect, shall deliver the notice to

parties.