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50. And if any of the justices or clerks of the said courts or practitioners at law, 20 March 1725 § 8. shall contemn this and wilfully proceed in the premises, contrary to the direction 1 Sm. 164. thereof, they shall be liable to answer, and be fined for the same, at the supreme court of this province, any sum not exceeding ten pounds. (9)

51. No female shall be arrested or imprisoned, for or by reason of any debt con- 8 Feb. 1819 § 1. tracted after the passage of this act.(r)

7 Sm. 150.

P. L. 339.

52. No person shall be arrested or imprisoned on any civil process (s) issuing out 12 July 1842 § 1. of any court of this commonwealth,(t) in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, Imprisonment for or due upon any contract, express or implied, or for the recovery of any damages debt abolished. for the non-performance of any contract, excepting in proceeding, as for contempt, Exceptions. to enforce civil remedies, (u) action for fines or penalties, or on promises to marry, on moneys collected by any public officer, (v) or for any misconduct or neglect in office, or in any professional employment, (w) in which cases the remedies shall remain as heretofore. (x)

(7.) Of the warrant of arrest.

P. L. 889.

53. In all cases where, by the preceding provisions of this act, a party to a suit 12 July 1842 § 2. cannot be arrested or imprisoned, it shall be lawful for the party who shall have commenced a suit, or obtained a judgment in any court of record, to apply to any When warrant of judge of the court in which the suit shall have been brought, for a warrant (y) to arrest may issue. arrest the party against whom the suit shall have been commenced, or the judg ment shall have been obtained, whereupon the said judge shall require of the said party satisfactory evidence, either by the affidavit of the party making such application, or some other person or persons, that there is a debt or demand due to the party making such application, from the other party in the suit or judgment, in which affidavit the nature and amount of the indebtedness shall be set forth a near as may be.(z)

54. If the demand set forth in the affidavit be such that the party could not, according to the provisions of this act, be arrested, and if the affidavit shall estab lish, to the satisfaction of the judge, one or more of the following particulars, (a) to wit:

That the party is about to remove any of his property out of the jurisdiction of the court in which such suit is brought, with intent to defraud his creditors : Or, that he has property (b) which he fraudulently conceals:

Or, that he has rights in action, or some interest in any public or corporate stock, money or evidence of debt, which he unjustly (c) refuses to apply to the payment of

(q) An action of trespass will not lie against a plaintiff for suing out a capias and arresting a freeholder for debt; if it be maliciously sued out, an action on the case is the proper remedy. Farmers' Bank v. McKinney, 7 W. 214.

(r) Re-enacted by act 13 June 1836, § 6. P. L. 573. Since the passage of this act, an attachment cannot issue against a female trustee, to compel payment of the balance of trust funds in her hands. Ex parte Nagley, 1 Ash. 373. Contrà, Klein's Estate, 1 W. N. C. 230. See Commonwealth v. Keeper of the Prison, 11 W. N. C. 341.

(8) The defendant may be held to bail, in an action to recover damages for a tort. Sedgebeer v. Moore, Bright. 197. McDuffie v. Beddoe, 7 Hill 578. Suydam v. Smith, Ibid. 182. As, in an action of deceit; Tryon v. Hassinger, 1 Clark 184; Hopper v. Williams, Ibid. 379 (but see Gallagher v. Norcross, 7 Phila. 623); or of trover, Lopeman v. Henderson, 4 P. S. 232; or trespass for an assault and battery, Moll v. Witmer, 11 W. N. C. 498; or slander, where the charge is of a gross nature, Anon., 4 Ibid. 185; or fraudulent application of money left for investment. Emerson v. Dow, 11 Ibid. 270; s. c. Ibid. 267. But where the plaintiff has an election to bring an action either in form ex delicto, or on the contract, he cannot, by such election, deprive the defendant of any substantial privilege or defence; and therefore, an action in form ex delicto cannot be commenced by capias for a debt contracted fraudulently. Bowen v. Burdick, 3 Clark 22. Bager v. Radley, 1 Phila. 47. Carnogg v. Delany, 11 W. N. C. 575. Philadelphia Coal Co. v. Huntzinger, 6 Ibid. 300. A ca. sa. may issue for mesne profits recovered in ejectment. Hopkinson v. Cooper, 8 Phila. 18. But where an action for a tort is barred by the statute of limitations, a subsequent promise to pay the proceeds will not support a capias. Murphy v. Elder, 4 W. N. C. 212. Upon a decree in equity that the defendant was guilty of a breach of trust and actual fraud, and directing that he pay the costs, an attachment lies against the person for such costs. Wilson v. Wilson, 142 P. S. 247.

(t) A defendant may be arrested on a bail-piece from

Ibid. § 3.

tiff's affidavit. Requisites of plain

another state, and taken out of the state by the bail. Ex parte Mason, 6 Leg. Gaz. 110; s. c. 3 Luz. L. Reg. 54. (u) An attachment against an assignee for the benefit of creditors, to compel payment of moneys in his hands, is within this exception. Hugg's Estate, 1 Clark 237. Chew's Appeal, 44 P. S. 247. Scott v. Jailer, 1 Gr. 237. Gilchrist's Estate, 6 Luz. L. Reg. 57. Keating's Estate, 1 Wood. 340. But see McCain v. Jewell, 24 Pitts. L. J. 185.

(v) See Commonwealth v. Evans, 74 P. S. 124, 139. (w) The neglect of an attorney to pay over money collected for his client, is within this exception. Wills v. Kane, 2 Gr. 60. But see Howard v. McKee, 82 P. S. 409. Potts v. Gibb, 8 W. N. C. 359.

(x) The remainder of this section repealed, by resolution 19 July 1842. P. L. 498.

(y) The remedy by warrant and commitment is purely civil, to enforce a debt or demand. Neal v. Perry, 3 Clark 65. Commonwealth v. Daniel, 4 Ibid. 49. Lynde v. Montgomery, 15 Wend. 461. Berthelon v. Betts, 4 Hill 581. Moak v. De Forrest, 5 Ibid. 605. Spear v. Wardell, 1 N. Y. 144, 160. Hall v. Kellogg, 12 Ibid. 325. Gosline v. Place, 32 P. S. 520. And for the benefit solely of the pursuing creditor. Hall v. McKnight, 3 Am. L. J. 374. It cannot issue, pending a levy on real estate. Neal v. Perry, 3 Clark 65. Wraith v. Van Dewater, 2 Pars. 251. Nor upon a judgment on the transcript of a justice of the peace. Wade v. Butcher, 1 T. & H. Pr. § 346. A justice has no power to issue such a warrant. Wood v. Bell, 1 Pitts. 180.

(z) The affidavit must show that a suit has been commenced. Hefner v. Kantner, 4 Leg. Gaz. 249. It must state clearly that the debt is due. Kohlhaus v. Veit, 14 C. C. 191.

(a) The plaintiff need not set out, in his affidavit, the facts from which the judge is to infer whether such a case be made out as justifies a warrant. Gosline v. Place, 32 P. S. 520. See Berger v. Smull, 39 Ibid. 302.

(b) Money is not property, within the meaning of this clause. Asbury v. Strickler, 1 T. & H. Pr. § 343. (c) The officer who grants the warrant is to judge

12 July 1842 § 3. any such judgment or judgments, which shall have been rendered against him, belonging to the complainant :

P. L. 339.

Ibid. § 3.

Or, that he has assigned, removed or disposed of, or is about to dispose of, any of his property with the intent to defraud his creditors :(d)

Or, that he fraudulently contracted the debt or incurred the obligation respecting which suit is brought.(e)

It shall be the duty of the said judge to issue a warrant of arrest in the form following, to wit:(g)

55.

Form of warrant. any constable of

8 July 1895. P. L. 269. How to be executed.

Where only to issue.

12 July 1842 § 6. P. L. 340.

judge.

County, ss. The Commonwealth of Pennsylvania: To the sheriff, or county, greeting: Whereas, complaint has this day been made before me, on the oath [or affirmation, as the case may be] of [here insert the name of the party making the affidavit], setting forth [here briefly set forth the complaint]. These are therefore to command you to arrest the said as the case may be] before me at my office in [here judge], without delay, to be dealt with according to law. precept.

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day of

and bring him [or them, insert the residence of the And have you there also this Judge.

Which warrant shall be accompanied by a copy of all affidavits presented to the judge, upon which the warrant is issued, which shall be certified by such judge, and shall be delivered to the party, at the time of serving the warrant, by the officer serving the same. (h)

56. The officer to whom such warrant shall be delivered, shall execute the same by arresting the person or persons therein named, in any county in this commonwealth, and bringing him or them before the judge issuing the warrant, (i) and shall keep him or them in custody until he or they shall be duly discharged or committed as hereinafter provided: Provided, Such warrant shall issue only in the county where the cause of action arises, or the judgment shall have been entered.(k)

(8.) Of the proceedings after service of the warrant.

57. On the appearance of the person so arrested, before the judge, he may controvert any of the facts and circumstances on which such warrant issued, (1) and Hearing before the may, at his option, verify his allegations by his affidavit; and in case of his so verifying the same, the complainant may examine him on oath, touching any fact or circumstance material to the inquiry, and the answers on such examinations shall be reduced to writing, and subscribed by him; and the officer conducting such inquiry shall also receive such other proof as the parties may offer, either at the time of such first appearance or at such other times as such hearing shall be adjourned to; and in case of an adjournment, the judge may take a bond, with ance at adjourned or without surety, for the appearance of the party arrested at the adjourned hearing.(m)

Bond for the defendant's appear

hearing.

Ibid. § 7.

Subpoenas.

Ibid. § 8. Commitment to be

58. The judge conducting such inquiry shall have the same powers to issue subpoena to enforce the attendance of witnesses, and to punish witnesses refusing to testify, as is vested in the court of which he is a judge.

59. If such judge is satisfied that the allegations of the complainant are substantiated, and that the party arrested has done, or is about to do, any one of the granted, in certain acts specified in the third section of this act, he shall issue a commitment, under his hand, reciting the facts of the case, and directing that such party be committed to the jail of the county in which such hearing is had, to be there detained until he

cases.

whether such refusal be unjust. Hall v. McKnight, 3 Am. L. J. 374. It is not a just cause of refusal, that the judgment was obtained against the defendant as an indorser, and that his assets are not more than sufficient to satisfy his personal obligations. McClurkan v. Simpson, 1 Pitts. 171.

(d) It is not enough, that the removal would be enjoined in equity; the fraud must be satisfactorily shown. Nietlinger v. Wetzel, Com. Pleas, Schuylkill,

March 1875.

(e) The fraud contemplated is actual fraud; and therefore, one cannot be arrested for fraud committed by his copartner, without his actual participation. Bassett v. Davis, 1 Clark 310. Fraudulent representations, inducing a sale to the defendant, are within this clause. Gallagher v. Norcross, 7 Phila. 623. It is immaterial, whether the fraud were committed in or out of the state. Gosline v. Place, 32 P. S. 520. The fraud need not be averred in the declaration. Commonwealth v. McCabe, 22 P. S. 450; s. P. Corwin v. Freeland, 6 N. Y. 560.

(g) After a hearing and commitment, it is too late to take exception to the form of the warrant. Commonwealth v. McCabe, 22 P. S. 450.

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(1) The complainant is not bound to produce proof to substantiate his charges, until the same have been controverted by the defendant's affidavit, or by proof. Spencer v. Hilton, 10 Wend. 608. The affidavit is prima facie evidence on the hearing. Berger v. Smull, 39 P S. 302. The act requires something more from a defendant than his simple denial of the facts and circumstances on which the warrant was issued; there should be an answer, plea, excuse or justification given to the charge. Häll v. McKnight, 3 Am. L. J. 374.

(m) The bond is well taken in the name of the judge. McClelland v. Smith, 12 P. S. 303. But if the defendant appear on the day, his sureties are discharged; the condition is for appearance only; in case of a second adjournment, there ought to be a second bond. Ibid. Noble v. Long, 4 W. N. C. 61.

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shall be discharged by law, (n) and such party shall be committed and detained 12 July 1842 § 8. accordingly.(0)

P. L. 340.

Ibid. § 9.

pay or secure the

60. Such commitment shall not be granted, if the defendant shall pay the debt or demand claimed, with cost of suit, and of the proceedings against him, or give security to the satisfaction of the judge before whom the hearing shall be had, Unless defendant that the debt or demand, with the costs of the suit, and proceedings against him, debt. shall be paid, with interest, within sixty days, if the demand be in judgment, and the length of time for stay of execution given by law on debts of like amount has expired; and if the said length of time has not elapsed, then that the same shall be paid at the expiration of that time, if that shall be sixty days distant from the time of giving said surety; and if not, then that the same shall be paid within sixty days from the time of giving the same. If the demand be not in judgment at the time of giving said surety, the day of payment shall be regulated by the same rule, but in no case shall the party be required to give surety for the payment of the debt before the recovering of judgment.

Ibid. § 10.

61. Such commitment shall not be granted, if the party arrested shall give bond to the complainant in a penalty of not less than twice the amount of the debt or Or give bond not to demand claimed, with such sureties as shall be approved by such judge, con- remove or assign ditioned that he will not remove any property which he then has, out of the jurishis property. diction of the court in which suit is brought, with the intent to defraud any of his creditors, and that he will not assign, sell, convey or dispose of any of his property with such intent, or with a view to give a preference to any creditor for any debt antecedent to such assignment, sale, conveyance or disposition, until the demand of the complainant, with costs, shall be satisfied, or until thirty days after final judgment shall be rendered in the suit brought for the recovery of such demand: Provided, however, That this section shall apply only to cases where the only fraudulent design established against the party arrested is, that he is about to remove any of his property out of the jurisdiction of the court in which suit is brought with intent to defraud his creditors.

Ibid. § 11.

Or to take the

62. Such commitment shall not be granted, if the person arrested shall enter into a bond to the complainant, in the penalty and with the securities prescribed in the preceding section, conditioned that he will, within thirty days, (p) apply by benefit of the inpetition to the court of common pleas of the county, or to a judge thereof, if the solvent laws. court shall not within that time be in session, for the benefit of the insolvent laws of this commonwealth,(9) and that he will comply with all the requisitions of the said law, and abide all orders of the said court in that behalf, or in default thereof and if he fail in obtaining his discharge as an insolvent debtor, that he shall, on the day of his so failing, surrender himself to the jail of said county.(r)

12 July 1842.

63. Any defendant committed agreeably to the 8th section of this act, shall remain in custody until a final judgment shall have been rendered in his favor in Effect of comthe suit prosecuted by the creditor, at whose instance he shall have been com- mitment. mitted, or until he shall have assigned his property and obtained his discharge as provided in the subsequent sections of this act; but such person may, at any time, How defendant be discharged by any judge of the county, on his paying the debt or demand may be discharged claimed, and costs, or by giving the security for the payment thereof, as provided in the 9th section of this act, or on his executing either of the bonds mentioned in the 10th and 11th sections of this act.

(9.) of the proceedings subsequent to the commitment. 64. Any person committed as above provided, or who shall have given the bond specified in the 11th section of this act, or against whom any suit shall have been commenced in a court of record, in which such person, by the provisions of this act, cannot be arrested or imprisoned, may present a petition to the court of common pleas of the county in which he shall be imprisoned, or in which the said suit is pending, or to the judge thereof, praying that he may assign his property and have the benefit of the provisions of this act. (s)

from arrest.

12 July 1842 § 18.

P. L. 342.

Defendant committed may petition for leave to

make assignment.

Ibid. § 14.

65. The petition aforesaid shall set forth all the matters required to be set forth by the 9th section of the act of the 16th day of June 1836, entitled "An act relating to insolvent debtors," and shall be verified in like manner. Upon the must set forth.

(n) See Gosline v. Place, 32 P. S. 520, as to the form of the commitment.

(6) Where it appeared that the defendant had previously been discharged as an insolvent, the court, on motion, quashed the warrant. Bassett v. Davis, 1 Clark 310.

(p) The bond is forfeited, unless the application be made within thirty days from its date. Haviland v. Hayward, 35 P. S. 459.

(4) To satisfy the condition of a bond given under this section, all that is required is, that the defendant make application for the benefit of the insolvent laws, in the general form. The 13th section makes no difference between applications in compliance with the bond, and those made generally. Beall v. Sparks, 1

What such petition

Phila. 18. But see People v. Bancker, 5 N. Y. 106. If the defendant be bound over and convicted of fraudulent insolvency, and his petition be thereupon dismissed by the court of common pleas, and he do not surrender himself, an action will lie upon the bond, though there be a motion in arrest of judgment, which is undisposed of. Power v. Graydon, 53 P. S. 198.

(r) If a discharge be refused, after a hearing on the merits, and the defendant committed in discharge of his bond, he cannot make a second application, under the general insolvent act of 1836. Ex parte Greenfield, 1 Del. Co. R. 2.

(s) See People v. Bancker, 5 N. Y. 106-7. Hall v. Kellogg, 12 Ibid. 325.

P. L. 342.

12 July 1842 § 14. presentation of the said petition, the court or judge shall fix a time for the hearing of the same, which shall be during the next session of the court of common pleas: Proceedings there- Provided, Thirty days shall intervene between the presentation of the petition

on.

Ibid. § 15.

petition.

and the time for hearing the same, and the petitioner and his creditors shall be heard before the judges of the court of common pleas, unless the said court shall make an order that a single judge shall hear the case and decide it, in which case the judge shall have all the powers herein conferred upon the court.

66. The court or judge shall proceed agreeably to the provisions of the aforeProceedings on the said act of the 16th day of June 1836, in causing the notice to be given to the hearing of such creditors of the petitioner, in deciding upon his case, in making orders, in permitting an assignment to be made by said petitioner, in the oath to be administered to him, and in all the proceedings thereafter touching his property, and shall have the same power over the trustees to whom an assignment shall be made as is therein specified.

Ibid. § 16.

Powers of trustees.

Ibid. § 35.

Defendant not to dispose of his property, except for support of his family.

Ibid. § 19. What may be

recovered on forfeited bond.

12 July 1842 § 18. P. L. 344.

Liability of parties for fees and costs. Fees of witnesses,

Ibid. § 22.

No person excused from testifying.

24 May 1887. P. L. 197.

Attachment may issue in certain cases.

67. The trustee of any debtor, to whom an assignment shall be made under this act, shall have the same powers, shall be liable to the same duties, and shall proceed in the same manner in all respects, to discharge the same, as is given, imposed upon, and required of the trustees under the aforesaid act, and the rights of creditors and their remedies shall be the same as under the said act, and the effect of a discharge of the petitioner by the said court shall be the same as under the said act, so far as regards both his person and property, and all rights and remedies given by the said act, and all proceedings, both civil and criminal, thereby authorized, may be had, the same as if they were herein fully enacted at length, so far as the same can be applied to the case of a debtor upon a contract only.

68. After the defendant in any case shall have executed the bond required by the 11th section of this act, he shall not sell, assign or dispose of any part of his property, which is not exempt by law from execution, except so far as may be necessary for the support of himself and family, until he shall be discharged. And if proof shall be made, on the hearing before the judge or the court, that the applicant has so sold, assigned or disposed of his property, it shall be the duty of said judge, or of the court, to refuse to make the order directed by the aforesaid act of the 16th day of June 1836.

69. Whenever any bond given under the preceding section of this act shall become forfeited by the non-performance of the condition thereof, the obligee shall be entitled to recover thereon the amount due to him on the judgment, with costs obtained in the original suit.

(10.) Of the costs, and of witnesses.

70. When a complaint shall be made and a warrant of arrest issued [or upon a hearing under the 17th section (t) of this act], and the complaint shall be dismissed, the party making the same shall be liable for all fees to officers, and for all costs which the party arrested shall have incurred; and the fees of the officers shall be the same as for similar services in other cases; witnesses shall receive the same fees as are allowed before the justices of the peace. But if the complaint shall be sustained, the party making the same shall recover the costs of the party arrested, upon the same being taxed or allowed by the proper officer, and shall be recovered with the other costs in the suit.

71. No person shall be excused from answering any bill seeking a discovery in relation to any fraud prohibited by this act, or from answering as a witness in relation to any such fraud, but no such answer shall be used in evidence in any other suit or prosecution.(u)

III. Of the commencement of actions by attachment.

(1.) Of the writ of attachment. (v)

72. It shall be the duty of any prothonotary of a court of record in Pennsylvania to issue an attachment against any defendant or defendants(w) upon the application of any plaintiff or plaintiffs(x) upon proof by the affidavit of said plaintiff, or any of them, or of any other person for him, her or them, that said defendant or defendants are justly indebted(y) to him, her or them in a sum exceeding one

(t) This section provides for the discharge of persons under arrest, at the time of the passage of the

act.

(u) See Uhler v. Maulfair, 23 P. S. 481. Union Bank v. Barker, 3 Barb. Ch. 358. Siffkin v. Manning, 4 Edw. Ch. 37. Real estate cannot be attached under this act. Bank v. Draper, 89 P. S. 446. Nor an unsettled partnership account, by a creditor of one of the copartners. Laughlin v. Maybin, 39 L. I. 4.

(v) This act is constitutional. White v. Thielans, 106 P. S. 173. See title JUSTICES OF THE PEACE.

(w) This includes corporations. Mechanics' Bank v. Miners' Bank, 41 L. I. 312.

(x) The pendency of a common-law action for the same debt, is not a bar to an attachment under this act. Swartz v. Lawrence, 12 Phila. 181. Rheinstrom v. Green, 7 Leg. Gaz. 254; s. c. 4 Luz. L. Reg. 223.

(y) An attachment will not lie for a debt not presently due and payable. Coaks v. White, 11 W. N. C. 271. Simes v. Steadwell, 12 Ibid. 292. But a fraudulently contracted debt not yet due may be at once demanded, and an attachment issued. Herman v. Saller, 25 W. N. C. 408. Schack v. Loucheim, 1 Cent. 329.

24 May 1887.

P. L. 197.

hundred dollars, the nature and amount(z) of such indebtedness being set forth in
such affidavit, and that said party defendant is about to move his, her or their
property out of the jurisdiction of the court in which said attachment is applied Affidavit.
for, with intent to defraud his, her or their creditors, or that said party defendant
has property, rights in action or interest in any public or corporate stock, money
or evidences of debt, which he, she or they fraudulently conceal, or that said party
defendant has or have assigned, disposed of or removed, or is about to assign,
dispose of or remove, any such property, money, rights in action, interest in public
or corporate stock or evidences of debt, with the intent to defraud his, her or their
creditors, (a) or that he, she or they fraudulently contracted the debt or incurred the
obligation for which such claim is made(b). Provided, That before such attachment Bond.
shall issue, there shall be executed and filed with the prothonotary of the court or
by the prothonotary of the county in which such attachment is applied for, a
bond(e) to the commonwealth of Pennsylvania for the use of the parties interested,
in the penalty of at least double the amount claimed, with good and sufficient
surety to be approved by one of the judges of said court, conditioned that if the
plaintiff or plaintiffs fail to prosecute such attachment with effect, or in case such
attachment be quashed, dissolved or ended, then the plaintiff or plaintiffs shall
pay to the defendant or defendants in such attachment all legal costs, fees and
damages which said party defendant or defendants may sustain by reason of such
attachment, and which said bond shall remain in the office of the said prothonotary
for the use of any party injured as aforesaid. (d)

attachment in

73. In all cases of arrest for homicide, or for assault and battery, resulting in 6 April 1870 § 1. great bodily harm to the person assaulted, so that his or her life is thereby imperP. L. 960. illed, wherein the person arrested has been or shall be held to bail, and has made Actions for peror shall make default, whereby his or her recognizance has been or shall be for- sonal torts may be feited, and has fled or shall flee the jurisdiction of the court, it shall and may be commenced by lawful for the person so injured as aforesaid, his or her executors or administrators, certain cases. to begin his, her or their action for damages, by filing in the proper court a certified copy of the record in such criminal proceeding, together with an affidavit that the defendant has left or is about to leave the jurisdiction of the court; whereupon the said court shall award and issue an attachment against all and singular the goods and chattels, lands and tenements, rights and credits of the defendant, or any part thereof, within the jurisdiction of the said court; which attachment shall be served and shall have the same effect, and the proceedings thereunder against the defendant, and against any garnishee or garnishees, shall be the same as in cases of foreign attachment.

74. The provisions of this act shall apply to the city and county of Philadelphia.

(2.) Of the service and return.

Ibid § 2.

P. L. 9.

75. Every such attachment shall be made returnable on the first return-day 17 March 1869 § 2. of said court next after the time of issuing thereof, and be served by the sheriff of the proper county, or by some general or special deputy by him made, by attaching Service and return so much of the money, stocks, rights in action, evidences of debt or other property of attachment. of said party defendant, not exempt by law from sale upon execution, as will be sufficient to pay the debt demanded, with costs; (e) and shall deliver to said defendant or defendants, or one of them, a copy of said attachment, with an inventory of the property or other thing attached, if said party defendant can be found

(z) An attachment cannot issue for unliquidated damages arising from breach of contract. Rauch v. Good, 5 Leg. Gaz. 62; s. c. 1 Leg. Chron. 58. This act does not embrace a claim for damages for fraud or a right to rescind. Batroff v. Tobacco Co., 17 W. N. C. 25. Neither does it embrace claims for unadjudicated damages arising from the cutting of timber from lands in dispute. Walker v. Beury, 7 C. C. 258.

(a) See Wightman v. Henry, 1 W. N. C. 74. Quay v. Robbins, Ibid. 154. Waldman v. Fisher, Ibid. 360. McCallum v. Hodder, 2 Ibid. 185. Whildin v. Smith, 4 Ibid. 88. Miller v. Smith, 2 Pears. 265. A fraudulent confession of judgment followed by an execution, is a disposition of property within this act. Ditchburn v. Co-operative Association, 13 C. C. 1. Ross v. Roth, Ibid. 14.

(b) An affidavit in the words of the statute is sufficient to found the jurisdiction; it need not set forth the facts upon which the fraud or fraudulent intent is based. Sharpless v. Ziegler, 92 P. S. 467. Hall v. Kintz, 13 C. C. 24. See Biddle v. Black, 99 Ibid. 380. Where the affidavit sets forth allegations of specific fraudulent acts, they must of themselves be of sufficient ground to sustain the attachment; and this, though there be a general charge of fraud within the words of the act. Bank v. Tasker, 1 C. C. 173. Boyd v. Bright, 4 C. C. 518. An affidavit that part of a debt was fraudulently contracted, is not sufficient. Wright v. Ewen, 24 W. N. C. 111. If the affidavit does not

set out any evidence that the goods were obtained by artifice or false pretences, the attachment will be dissolved. Miller v. Shapiro, 12 C. C. 526. A supplemental affidavit will not be allowed. Robinson v. Atkins, 2 W. N. C. 111. Sutton v. McAskie, 1 Chest. Co. R. 489.

(c) The bond is for the security of the defendant, not of the garnishee. Rothermell v. Marr, 10 W. N. C. 421. The bond must be given to prosecute the attachment with effect; the attachment will be dissolved where the bond is conditioned simply to prosecute the action with effect. Starbird v. Koonse, 10 C. C. 449. An attachment should not be quashed because the bond is defective or insufficient. Hall v. Kintz, 12 C. C. 90. The bond is sufficient if signed by the firm name, by one member of the firm with one surety; it need not name the parties for whose use it is given. Hall v. Kintz, 13 C. C. 24.

(d) This is an amendment of the act 17 March 1869, § 1, P. L. 8. The bond is for the security of the defendant, not of the garnishee. Rothermel v. Marr, 10 W. N. C. 421.

(e) Money in the hands of the sheriff cannot be attached. Supplee v. Hughes, 2 W. N. C. 352. Nor real estate. Continental Bank v. Draper, 89 P. S. 446. Nor an unsettled partnership account, at the suit of an individual creditor. Laughlin v. Maybin, 39 L. I. 4.

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