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a justice of the peace, and on three day's notice to the party in whose favor the execution was issued, the trial of right of property may be had as in other cases. Provided, That the constable may refuse to retain possession of property claimed by a third party, unless the party in whose favor the execution. issued shall indemnify the constahle for holding the same.
SEC. 138. If judgment be recovered by the plaintiff, the constable shall satisfy the same out of the property attached judginat by him, which has not been delivered to the defendant, or a claimant, as hereinafter provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose.
First. By paying the whole or his pro rata share to the plaintiff, the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall [be] necessary to satisfy the judgment.
Second. If any balance remain due, and an execution shall have been issued on the judgment, he shall sell under execution, so much of the property personal as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notice of the sales shall be given, and the sales conducted as in other cases of sales on execution.
SEC. 140. If the execution shall be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to the provisions of this act; or he may proceed as in other cases upon the return of an execution.
SEC. 139. If, after selling all the property attached by him remaining in his hands, and applying the proceeds, collected. together with the proceeds of any debts or credits collected by him, deducting the fees, to the payment of the judgment, any balance shall remain due, the constable shall proceed to collect such balance as upon an execution in other cases. Whenever the judgment or judgments shall have been paid, the constable, upon reasonable demand, shall deliver over to the defendant the attached property remaining in his hands, erty. and any proceeds of the property attached unapplied on the judgment.
Delivery of prop
SEC. 141. If the defendant recover judgment against when defeat the plaintiff, any undertaking received in the action, all the
proceeds of sales and money collected by the constable, and all the property attached remaining in the constable's hands, shall be delivered to the defendant or his agent; the order of attachment shall be discharged and the property released therefrom, with costs to be taxed to the plaintiff.
Discharge of attachment.
SEC. 142. Whenever the defendant's property shall be attached, he may, upon reasonable notice to the plaintiff, apply to the justice, for an order to discharge the attachment, wholly or in part, upon the execution and filing of the Underta ing undertaking mentioned in the next section. Such order may be granted directing the release from the operation of the attachment, upon the filing of such undertaking and the Justification of justification of the sureties thereon, if required by the plaintiff of all or any part of the property, money, debts or credits attached, as the case may be. All the roceeds of sales and moneys collected by the constable, and all the property attached remaining in his hands, so released, shall be delivered or paid to the defendant upon the filing of such undertaking and making such justification, if required by the plaintiff.
Proceeds of sale.
SEC. 143. On granting such order, the justice shall Endering require an undertaking on behalf of the defendant, with at
Undertaking. what to contain.
least onc surety, resident and freeholder, house-holder or property holder in the county, to be approved by the justice, which shall be filed to the effect, in case the value of the property or the amount of money, debts, or credits sought to be released, shall equal or exceed the amount claimed by the plaintiff, in the complaint, that the defendant will pay to the plaintiff the amount of the judgment which may be recovered in favor of the plaintiff in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount so claimed by the plaintiff, or to the effect in case the value of the property or the amount of money, debts, or credits 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 the amount of money, or debts or credits sought
SEC. 144. 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.
Determined "W Summary man
When attachment to be dis
SEC. 145. If, upon such application, it shall satisfactorily appear that the writ of attachment was improperly charged. issued, it shall be discharged.
SEC. 146. The constable shall return the writ of attachment, with the summons, with a certificate of his stable. proceeding indorsed thereon or attached thereto.
Return o con
SEC. 147. The garnishee shall appear before the justice, Garnishee. in accordance with the command of the summons, and shall answer, under oath, all questions put to him touching the property of every description, and credits of the defendant, in his possession or under his control, and he shall disclose truly, the amount owing by him to the defendant, whether due or not; and in case of a corporation, any stock therein Corporations. held by or for the benefit of the defendant, at or after the service of the notice.
SEC. 148. A garnishee may pay the money owing to the defendant by him, to the constable having the writ of attachment, or into the court. He shall be discharged from liability to the defendant for any money so paid, not ability.
Discharge of li
exceeding the plaintiff's claim. He shall not be subjected to costs beyond those caused by his resistance of the claim against him, and if he disclose the property in his hands, or the true amount owing hy him, and deliver or pay the same according to the order of the court, he shall be allowed his costs.
Sec. 150. If the garnishee do not appear and answer, Non-app are the justice may proceed against him by attachment, as for a
Sec. 152. If the garnishee appear and answer, and it Delivery of is discovered on bis examination that at or after the service
of the writ of attachment and notice upon him, he was possessed of any property of the defendant, or was indebted to him, the justice may order the delivery of such property, and the payment of the amount owing by the garnishee into the court.
Sec. 153. If the garnishee fail to appear and answer, Failure to ar- or if he appear and answer, and luis disclosure is not
satisfactory to the plaintiff, or if he fail to comply with the order of the justice to deliver the property and pay the money owing into court, the plaintiff may proceed against him in an action, in his own name, as in other cases; and
thereupon such proceeding may be had as in other actions, Judgment for and judgment may be rendered in favor of the plaintiff, for
the amount of the property and the credits of every kind of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee. If the plaintiff proceed against the garnishee by action, for the cause that his disclosure was unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases.
SEC. 154. Final judgment shall not be rendered against the garnishee until the action against the defendant in attach
Judgment against garnishee
Surrender of conoys &c.
ment has been determined; and if, in such action, judgment be rendered for the defendant in attachment, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in attachment, and the garnishee shall deliver up all property, moneys and credits of the defendant in his possession, and pay all moneys from him due as the court may order, the garnishee shall be discharged and the costs of the proceedings against him shall be paid out of the property and moneys so surrendered, or as the court may think right and proper.
SEC. 155. If the writ of attachment shall be issued at the commencement of the suit, it shall contain the substance of a summons, and no separate summons shall be necessary. If said writ shall be issued after the summons, the said writ shall be made returnable at the same time of the summons, and all pleadings and proceedings before the justice shall be the same as in other cases commenced by summons.
Writ to contain sub-tance of summons.
SEC. 157. When several attachments are issued by the same justice, executed upon the same property, or the same persons are made garnishees at any time before a judgment
Return of writ.
SEC. 156. It shall be competent for any plaintiff, his agent or attorney after suit shall be commenced by summons, office in certain to require the officer holding said summons on an execution, to summons any person, party or corporation as garnishee of the defendant, such summons to be served the same as an original summons, but may be issued by the justice or officer serving it, being but a notice. Before the justice or other officer in cases commenced by summons merely, shall issue such summons, the plaintiff or some one in his behalf shall make an affidavit that he verily believes that a certain firm, company or corporation (naming the same) within the county, is indebted to, or has property, credits or effects, stock, or other thing of value in his or its possession belonging to the defendant, and that he demands the garnishment of the same, and deliver the same to the officer holding the summons or execution for service. Such affidavit shall be returned with other papers to the justice.