CHAPTER XXXV.

MEANS PROVIDED FOR THE RECOVERY AND COLLECTION OF

DEBTS.

I. ARREST AND IMPRISONMENT.-In many States, no person can be arrested or imprisoned for debt. In California no female, and in Louisiana no female, and no person who has not a domicil in the State, and in Ohio no female, nor any officer or soldier of the Revolutionary army, can be arrested or impris oned for debt. In all the States, the intention of the law is to limit imprisonment to those cases in which either fraud was committed in the contraction of the debt, or the debtor intends to abscond out of the reach of process. The provisions to effect this are very various. Generally, the plaintiff must file in the clerk's office, or indorse upon the writ, an affidavit of the facts on which he grounds the right of arrest. In some of the States, provision is made for the imprisonment on execution of a debtor who can be found to possess, and refuses to surrender, property or interest, real or personal, which might be made. available for the payment of his debts.

2. THE TRUSTEE PROCESS.-The trustee process, or garnishee process, or process of foreign attachment,-by all which names it is known,-is now nearly or quite universal. It is substantially this: A owes B a debt; but A has no property in his hands or possession. which B can get at; but A has deposited in the hands of C, goods, or property, or credits of some kind, or A has a valid claim against C for services rendered, or money loaned, or goods sold, or something else; and this B gets by suing A, not with a common writ, but with a trustee writ, so called, in which he declares that C is the trustee of A, tor prop erty, etc.; and on this writ, if B recovers payment against A, he will have an execution against all A's property in the hands of C, and all A's valid demands against C. But C, when notified, may come into court, and, in answer to all questions put to him, declare that he (C) has no property in his hands belonging to A, and that he does not owe A anything. And then the plaintiff may shape the questions as he pleases, to draw out the truth.

No one is adjudged trustee, or made to pay to the creditor the debt due to the debtor, if he has given a negotiable note for it, because he might have to pay it again to an honest indorsee. Nor if the debt is not certainly due; nor, generally, if it is due from the trustee in any official capacity, which will require him to account over for the money in his hands; nor if the debtor has recovered a judgment against the trustee, on which execution may issue.

The laws of the British Provinces for the collection of debts are similar in substance and purpose to those of the United States, with similar provisions against abuse or oppression.

3. THE HOMESTEAD.-In most of the States, a homestead is protected from creditors, and exempted from all attachment or execution, excepting in some States for taxes, or wages of labor a certain amount.

Various provisions are made in each of these States to com bine a due protection of the creditor with proper prevention of fraud. The most common means are by requiring that "the homestead" should be distinctly defined and set apart, and in many cases by the additional requirement, that the description and location of it should be put on public record.

In all the States there are also exemption laws. These pro vide very generally that bed and bedding and other necessary furniture, needful clothing, a Bible and school-books, and a certain amount of food and fuel, shall not be taken on attachment or execution. In some States, the tools of a trade, the uniform, arms, and equipments of soldiers or officers in the militia, the family burying-vault and gravestones, a team or yoke of oxen, bees with their hives and honey, a boat for fishing, etc., are exempted. These statutes often enumerate the articles exerapted quite minutely, and then add, that necessary articles to a certain amount of value, usually one or two hundred dollars, are also exempted.

We give annexed to this chapter an Abstract of the Laws of all the States relating to the collection of debts

ABSTRACT OF LAWS RELATING TO THE COLLEC

TION OF DEBTS

INCLUDING ACTIONS, ATTACHMENT, ARREST, GARNISH

MENT, JUDGMENT, EXEMPTIONS, AND HOMESTEAD.

1

ACTIONS. Civil actions are begun by service of summons, issued ALABAMA. by the clerk of court, and accompanied by the complaint of the plaintiff. All actions on contracts for the payment of money may be joined in one.

ATTACHMENT may be levied on any real estate, or personal property, or by gar nishment. It may issue, (1) to enforce the collection of any debt, (2) for any money demand, (3) to recover damages for the breach of any contract, or, (4) when the action sounds in damages merely, on affidavit by the plaintiff that the defendant resides out of the State, or has absconded, or has secreted himself, or is about to remove, or has or is about to dispose of his property fraudulently. Affidavit must set forth amount of debt or demand, that it is justly due and that attachment Plaintiff must also give bond to defendis not for purpose of harassing defendant. ant to prosecute attachment to effect, and pay all damages sustained by wrongful suing out of attachment, except in action against non-resident.

GARNISHMENT. The judgment creditor in any action may obtain a process of garnishment against any person supposed to be indebted to the defendant, and the plaintiff may obtain such process when a summons and complaint have issued in any case upon giving bond.

JUDGMENT is a lien for ten years, after filing a certificate of the clerk of the court in the office of the judge of probate of the county where it was obtained.

STAY LAW. In actions before a justice of the peace defendant may, at any time before execution is issued, stay the issue thereof thirty days, if the judgment be less than twenty dollars, or sixty days if over twenty dollars, by giving a bond with surety in double the amount of the judgment. In cases in the Circuit Court execution can be stayed only by appeal to the Supreme Court and giving bond.

EXEMPTIONS. Personal property, to be selected by the debtor, to the value of one thousand dollars, is exempt from sale on execution, or other process of court, also the homestead of the debtor, not exceeding one hundred and sixty acres and not exceeding two thousand dollars in value, not in any city, town, or village, or in lieu thereof, Also are exempt, lots in any lot in any city, town, or village with the buildings thereon owned and occupied by the debtor, not exceeding two thousand dollars in value. cemeteries, pew or seat in church, proper wearing apparel, family portraits, books used in the family, and the wages or salaries of laborers or employees, for personal service, not exceeding twenty-five dollars per month.

ALASKA.- ACTIONS. There is but one form of civil action, which must be Actions are begun by filing a complaint prosecuted by the real party in interest.

with the clerk of the court, and the issuance of a summons thereupon.

ATTACHMENT is allowed for unsecured contract claims for the payment of money, or in action against non-resident. The plaintiff must file an undertaking with sureties. All property including debts not due is attachable.

ARREST. The defendant may be arrested in the following actions: (1) Recovery of money or damages where he is about to remove with intent to defraud creditors, for injury to person or property, including conversion; (2), Fine or penalty, embezzlement or misapplication of funds by a public officer or one in a fiduciary capacity; (3) To recover personal property unjustly detained, where it is concealed, disposed of, or removed; (4) Where the defendant is guilty of fraud in contracting the debt or obligation, or of concealing or disposing of property for the recovery of which No female can be the action is brought; (5) When the defendant has removed or disposed of property with the intent of defrauding creditors, or is about to do so. arrested in a civil action, except for injuries to person or property. In all cases the plaintiff must give an undertaking with sureties.

GARNISHMENT. This is provided for by the attachment law.

JUDGMENT is a lien for ten years after docketing thereof, in the county where it was issued, or where the transcript is filed, upon all real property therein belonging to the judgment debtor.

EXEMPTIONS. (1) Earnings for personal services within sixty days; (2) Books, pictures, and musical instruments to the value of seventy-five dollars; (3) Necessary wearing apparel but jewelry including watches not to exceed $100 in value; (4) The tools, implements, or other property necessary to enable the debtor to carry on his trade, occupation, or profession, not to exceed $500 in value; (5) To the head of a family enumerated property not exceeding $300 in value; (6) The seat or pew occupied by the family; (7) All property of public corporations, and the homestead of any family not to exceed $2,500 in value, or more than 160 acres in the country, or one-fourth of an acre in a city.

ARIZONA.-ACTIONS. There is but one form of civil action. This is commenced by filing a complaint with the clerk of the court and taking out a summons. Actions must be brought in the name of the real party in interest. If the plaintiff be a non-resident, defendant may require security for costs.

ATTACHMENT. Will issue on filing with the clerk an affidavit setting forth that defendant is indebted to plaintiff on contract for direct payment of money made or payable in the State, that it is unsecured and that demand has been made for payment, or that defendant is a non-resident or foreign corporation, or that he is about to remove property from jurisdiction of Court to avoid payment, and that attachment is not sought for malicious purpose or to hinder or delay creditors. Attachment may issue on debt or demand not due on affidavit of first ground above stated, or that defendant is about to remove permanently from the State and has refused to secure the debt, or has secreted property to defraud creditors, or is about to remove property from the State without leaving sufficient to pay his debts, or has or is about to dispose of property to defraud creditors, and also that the attachment is not sued out to injure or harass defendant, and that plaintiff will probably lose his debt unless attachment issues. Plaintiff must give bond with sureties to prosecute suit and for damages and costs in case attachment was wrongfully obtained.

ARREST not authorized for debt. But every debtor who fraudulently removes from territory or fraudulently conceals or disposes of property with intent to defraud or hinder creditors is punishable by fine and imprisonment.

GARNISHMENT. Writ issues on plaintiff's filing affidavit showing either that an original attachment has been issued, or that debt is just, due, and unpaid and that defendant has not property sufficient to satisfy debt, and that the garnishment is not sued out to injure either defendant or garnishee; or that plaintiff has a judgment and that defendant has not property to satisfy it; and further, that the garnishee is indebted to defendant or has effects of defendant, or that garnishee is a joint stock company and defendant owns shares or some interest therein. If application is made on second ground above stated plaintiff must give bond with sureties for damages and costs.

JUDGMENT is a lien for five years on all real estate owned by the defendant in the county where the judgment is rendered or where a transcript of the same has been filed.

STAY LAW. There is no stay of execution except in case of appeal.

EXEMPTIONS. To every head of a family a homestead not exceeding twenty-five hundred dollars in value; personal property to the value of five hundred dollars to be selected by the debtor, and earnings for personal services for thirty days preceding the levy. Also prospector's tools and camp outfit.

ARKANSAS. ACTIONS. Forms of actions existing before the adoption of the code are abolished, and there is now one form of action for private rights, called a civil action. The civil action is begun by filing with the clerk of the court a complaint and causing a summons to issue thereon. Several causes of action may be joined in the same complaint, and should be in the name of the real party in interest.

ATTACHMENT. The plaintiff may have an attachment for the recovery of money, including damages, when the defendant is a non-resident of the State; or has been absent from the State four months; or has departed with intent to defraud his credi tors; or has left county to avoid service of summons, or so conceals himself that summons cannot be served on him, or has removed his property from the State, or is about to do so, not leaving enough to satisfy the claims of creditors; or has disposed of his property, or is about to do so with fraudulent intent to cheat, hinder, or delay his creditors. An order of attachment is made by the clerk of the court on the filing by the plaintiff of an affidavit showing the nature and amount of the plaintiff's claim, that it is just, and the existence of one of the grounds of attachment above mentioned, and filing a bond of indemnity to the defendant.

ARREST. The defendant in a civil action may be arrested on filing by the plaintiff with the clerk of the court, of an affidavit showing the nature of the claim, and charging the defendant with fraud in contracting the debt, that it is a just claim, and the amount expected to be recovered, and that the affiant believes that the defendant is about to depart from the State, and has concealed his property with the intent to defraud his creditors, or that he has property and is about to depart from the State without leaving enough to satisfy the plaintiff's claim, together with a bond of indemnity.

GARNISHMENT. Process of garnishment may issue whenever the plaintiff believes that any person is indebted to the defendant, or has in his hands or possession goods and chattels, moneys, credits, etc. belonging to defendant; except for wages less than two hundred dollars, provided, if garnishment issue before judgment that plaintiff shall give a bond of indemnity.

JUDGMENT rendered by the Supreme or Circuit Court of the State, or by the District or Circuit Court of the United States, is a lien on the real estate of the defendant lying in the county for which the court is held, and becomes a lien on lands in any other county on filing a transcript with the clerk of the County Circuit Court. The lien continues for three years.

STAY LAW. Execution may be stayed six months, when the judgment is a decree for money, by giving a bond with good surety, except in actions against a collecting officer, attorney, or agent, or by a surety against his principal, or in a suit brought to enforce a vendor's or mortgagee's lien.

EXEMPTIONS. Personal property of a person unmarried and not the head of a family to the value of two hundred dollars, in addition to wearing apparel, unless the debt was contracted for the purchase price thereof. Personal property of a person married or the head of a family to the value of five hundred dollars, in addition to wearing apparel. Uniform and equipments of members of the State Guard. The time wages not to exceed sixty days of all laborers and mechanics. The homestead of a married man or the head of a family, except on judgments for the purchase money, or to enforce specific liens against the property, or for debts due in a fiduciary capacity. Such homestead, if outside of a town or village, shall consist of not exceeding one hundred and sixty acres of land, with the improvements thereon, occupied as a residence, in all not exceeding in value twenty-five hundred dollars, or not less than eighty acres without regard to value. If within a city, town, or village and owned and occupied as a residence, it shall consist of not exceeding one acre of land with improvements, not in all exceeding in value twentyfive hundred dollars, or not less than a quarter of an acre without regard to value.

CALIFORNIA. - ACTIONS. There is only one form of action for private remedies, which is commenced by filing a complaint, and issuing a summons thereon, directed to the defendant, and must be brought in the name of the real party in interest.

ATTACHMENT. A writ of attachment may issue, in actions on contracts for the direct payment of money made or payable in the State, and not secured or where security has become valueless, and in actions of contract or for injury to property in the State against a non-resident defendant, on filing with the clerk of the court an affidavit that the defendant is actually indebted to the plaintiff, stating the amount due, and also that the action is one of those above specified; and filing a bond of indemnity to the defendant.

ARREST. The defendant may be arrested in an action for the recovery of money or damages, when he is about to leave the State with intent to defraud his creditors or in an action to recover possession of personal property when the property has been fraudulently concealed or disposed of and cannot be found, or when the defendant was guilty of fraud in contracting the debt, or of embezzlement or fraudulent misapplication of money or property, or of misconduct or neglect in office, or in professional employment, or of willful violation of duty, or where the defendant has removed or disposed of his property with intent to defraud his creditors. The order for arrest is obtained from a judge of the court, on affidavit of one or more of the above causes, and furnishing security to defendant for damages in case the arrest proves unlawful. No female can be arrested in any civil action.

GARNISHMENT. Debts due the defendant, and credits or personal property of the defendant in the hands of a third party may be attached by serving a copy of the writ, and a notice that the debts, credits, or personal prop erty are attached.