or commenced the removal of any of his property to defraud his creditors; or, 2d, Has begun to convert it into money for that purpose; or, 3d, Fraudulently conceals it; or, 4th, Has disposed of it, or begun to dispose of it, to defraud his creditors; or, 5th, Fraudulently contracted the debt. The special grounds, upon which an arrest is ordered, are usually required to be set forth in the writ or in an affidavit to be annexed thereto. An arrest upon civil process upon Sunday is illegal, and the defendant is entitled to his discharge and may recover his damages from the officer: but a debtor who has escaped from arrest, or from prison, may be retaken on Sunday, as he may be, by breaking an outer door in the same case. In some of the states, no arrest is allowed in any case for debt; and in some, females and other special classes are exempt.

SECTION 2.

Of Attachment, Garnishment or Trustee Process.

In New England, the usual service of a writ is, by summons of the defendant and attachment of his property. Out of New England such attachment of property, on preliminary process and before a judicial finding that the defendant is indebted, is nearly or quite unknown.

In New England, an attachment is made as an ordinary proceeding, upon the mere direction of the authority issuing the writ; in other states, it can be made only upon allegation in the writ or affidavit, or both, of special cause, usually consisting of one or more of the causes set forth as grounds of arrest.

An attachment is made by seizing the property of the defendant and retaining it in custody, or receiving for it a receipt, signed by parties who are satisfactory to the officer, agreeing that the receiptor will return it to the officer on demand, or pay such debt, interest and cost, as may be recovered by the plaintiff upon final judgment.

An attachment on preliminary process being made merely as security, the property cannot be sold, as it may be on execution; but must, in most cases, be either receipted or ac

tually retained to satisfy such judgment as may be recovered. In most of the states, however, to save the expense of keeping, the property may be sold by consent of parties, and the proceeds remain in the officer's hands; and there are also provisions made by statute for the sale of goods in their na ture perishable, or which require extraordinary expense in their keeping, as live stock and provisions.

Real estate, as well as personal property, may be attached: but here, as the estate can not be removed, a record of the attachment in the registry of deeds is made by the officer, and takes the place of that actual possession which is required to be taken and kept of personal property.

Special provision is made, in most of the states, for the attachment of stocks in incorporated companies, or other intangible property, by notice to the secretary, or some other officer of the association, who makes a record of it for the information of the company and of all persons who are interested in obtaining knowledge of its title.

By an attachment, the ownership of the property is not changed, but the officer acquires a lien upon it, for the satisfaction of such judgment as the plaintiff may recover; and he may maintain an action against any one who interferes with the possession of it. If the plaintiff prevails in the suit, the goods or other property are held for a period, (usually 30 days,) after the judgment, and then sold upon execution and the proceeds paid over to the creditors: but if the defendant prevail in the suit, the property is restored to him, or if sold its proceeds are restored or accounted for. Real estate attached, may be sold subject to the incumbrance, as in the case of a mortgage. The same property may be attached in different suits, and the creditors will be entitled to be satisfied in the order, as to time, in which their attachments were made.

Property is sometimes so placed that it can not be come at, to be attached by ordinary process of law; and, for the purpose of reaching such property, a distinct process is provided by statute, which is called, in some of the states, "Trustee Process," and in others, "Foreign Attachment," and it is sometimes called "Factorizing," or "Garnishment." This

exists in nearly all the states, under some one of these names, and in many of them it is the only form of attachment which is known.

To this proceeding there are three parties, the plaintiff and defendant, and the "trustee" or "garnishee." The theory is; that this third person has in his hands personal property of the defendants, or is indebted to him.

After service of process upon such third person, he cannot safely pay over the debt or deliver the property in his hands to the principal defendant, but is accountable to the creditor therefor. The question, whether the trustee or garnishee has in his hands "goods, effects or credits," of the defendant and shall be held accountable therefor, is usually tried and determined by the court, upon his answers under oath in the principal suit. In some of the states, the trustee need not be required to answer in the original suit: but, if judgment goes against the defendant therein, the execution, if not otherwise satisfied by the defendant or out of his estate, is presented to the trustee, and if he pays or delivers over property upon it he is allowed to deduct it in settling with his creditor. If he refuse, a writ to show cause why he should not so pay over or deliver, (called a scire facias,) is served upon him, in which he is a principal defendant; and the only question is, whether the plaintiff is entitled to the fund garnisheed, including, of course, as a necessary preliminary thereto, the question, whether the defendant in scire facias is indebted or whether there is such a fund. This proceeding was originally designed for cases of fraud and secrecy, and as a matter of form the statement in the plaintiff's writ is usually, now, that the defendant is an absent and absconding debtor within the meaning of the act, &c.

What may be attached by trustee process?

A contingent debt, i. e., one dependent upon condition, and which may therefore never become due, cannot be attached. under this process; as the wages of a sailor before termination of the voyage, (sailors' wages being, as we have seen, dependent upon their remaining with the vessel and upon her reaching port,) or rent before the rent day arrives. But

a debt may be so attached which is absolutely due, though it may be payable at a future day.

Thus, money secured by note payable in a year may, (if payable absolutely,) be secured by a trustee process, as soon as the note is executed. Money due upon negotiable instruments is usually excepted, because, if it were not, the debtor might be made twice liable, once to attaching creditors, and again, to one who has become owner of the security, as indorsee thereof before it became due, and without notice of the attachment.

In some of the States, however, (as Connecticut and New Hampshire,) debts secured by negotiable instruments are not exempt from trustee process, when they remain in the hands of the original payees.

To protect the rights of an equitable assignee of the indebtedness, provision is usually made in the statutes, regulating this process, for citing such an assignee into court as a party to the suit, whenever the answers of the trustee disclose such an assignment.

The property of the principal defendant, which is in his own hands, may be attached upon the same writ upon which a trustee is summoned; and the execution issued in favor of the plaintiff, if he recovers, must, therefore, run against es tate in his own hands as well as against that in the hands of his trustees. These proceedings are always authorized and regulated by local statutes, to which reference must be had for details, the purpose here being to give the general principles and provisions which usually govern such attachments.

For statement of exemptions from arrest, attachment, levy of execution, &c., &c., see Chapter XXII.

CHAPTER XXII.

OF PROPERTY EXEMPT FROM ATTACHMENT AND FROM LEVY OF EXECUTION, HOMESTEAD EXEMPTIONS, &C.

WE have seen, in the foregoing chapter, that, in some of the States, debtors are privileged absolutely from arrest; in others, certain specified classes are so privileged; while, in still others, the remedy by arrest is confined to cases in which there has been fraud, either in contracting the debt, or in attempting to avoid its payment, or in concealment of property, or purposing or attempting to abscond. So, in reference to attachment of property and levy of execution thereupon, some few articles of absolute necessity to the debtor and his family have always been exempt in the States of this Union; and there has been a growing tendency to extend the benefits of exemption from arrest, and to enlarge the list and the value of articles and estate exempt from adverse attachment or levy, till, from the exemption of bed, bedding, and other necessary furniture, clothing, bible, and school books, and a small amount of food and fuel, this protection is now extended, in some of the States, to a very liberal allowance of furniture, fuel, food, clothing, tools, and implements of trade, including sometimes a team for farm or other work, and to homesteads varying in value from $200, (in Florida, Georgia, and some other States,) to $500, $1,000, $1,500, $2,000, and in California, $5,000.

The statutes sometimes contain an enumeration of special articles, and then add, "other necessary articles not exceeding" some specified sum. It is a matter of interest, and frequently of business convenience and importance, to business men, to know what property their debtors, living in other States, may retain against creditors; and I have, therefore,