certified by the clerk, and filed in his office: Provided, Proviso, touchthat if the parties cannot agree on the third person, ing the third the court may name him.

person.

in directed for

SEC. 16. The like course shall be had with the Awards of reaward of such referees, as herein directed for arbi- terees to take trators awards, and both referees and arbitrators shall the course herehave power to adjourn, from time to time, on good those of arbicause shown, and any one of them may administer trators. the necessary oaths to witnesses. Subpoenas for wit- Adjournments. nesses before referees shall issue from the district Oaths. Subpœnas. Costs court as in other cases; before arbitrators from a of reference. justice of the peace. The costs of reference shall

be taxed as other costs of suit, and, if not otherwise provided for, may be determined by the district court. APPROVED, January 25, 1839.

ATTACHMENTS.

AN ACT allowing and regulating writs of attachment.

filed contain

SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa. That when writ of attachany action founded on contract shall have been com- ment to issue menced, or shall be about to be commenced, in the upon affidavit district court in any county in this Territory, either ing certain reby summons or capias, a writ of attachment shall be quisites. issued by the clerk of said court upon an affidavit being filed in his office containing the following requisites.

ist. It must state that something is due from the defendant to the plaintiff, and as nearly as practicable the exact amount.

2nd. It must state that (as deponent verily believes) the said debtor is a non-resident of the Territory, or that he is in some manner about to dispose of or remove his property with intent to defraud his creditors, or that he has absconded so that the ordinary process cannot be served upon him.

SEC. 2. The said writ may also be issued in actions Other cases in ex delicto in cases where bail has been ordered and a which the writ capias issued thereon, provided an affidavit shall be may issue. filed in the manner above directed stating the truth

of one of the three requisites specified under the

second head of the preceding section.

SEC. 3. In such cases the amount in which the Amount of bail defendant is to be held to bail shall be substituted to be substitutin every instance for the amount sworn to be due, as ed for the sum required in section first. In other respects the pro

due.

Bond to be filed before writ shall issue in any case.

To be quashed

at costs of

ceedings shall be the same as in actions founded on

contract.

SEC. 4. Such writs of attachment however shall not issue in any case until there shall also be filed in the office of said clerk a bond, with sufficient sureties, to be by him approved, conditioned that the plaintiff shall pay any damages and costs which may be awarded to the defendant in any suit which said defendant may bring on said bond for damages sustained by a wrongful suing out of such writ of attach

ment.

SEC. 5. If any clerk shall issue a writ of attachment without such affidavit and bond filed as aforeclerk if issued said, such writ shall be quashed at the costs of said clerk.

without affi

davit and bond. Service of the writ.

Property attached.

Inventory and

SEC. 6. The officer to whom the writ of attachment is directed shall, by virtue thereof, in presence of two citizens of the Territory possessing the qualifications of jurors, attach any of the lands, tenements, goods, chattels, rights, credits, moneys, or effects of the said debtor which may be found in his county, in whose hands soever the same may be, or so much thereof as shall be sufficient to pay the debt sworn to as aforesaid, together with the interest and costs of suit.

SEC. 7. The said officer, together with the two citappraisement. izens aforesaid, (who shall be under oath or affirmation to be by him administered) shall make a true inventory and appraisement of all the property so by him attached, which inventory and appraisement shall be signed by the officer and citizens aforesaid, and shall be annexed to and returned with said writ. The property attached shall be bound from the time of serving the writ as aforesaid.

Right of any

tested by a

jury.

SEC. 8. Where the property attached shall be claimant to be claimed by some person other than the defendant, the right of such claimant shall be tested by a jury, summoned by a justice of the peace in the same manner as is prescribed in like cases where property taken in execution is claimed by some stranger to the suit.

Officer may re

SEC. 9. The officer may relinquish or retain said lease or retain property according as the jury find for or against the title of said claimant thereto. Such verdict however shall not be conclusive against either of the parties interested, but the same proceedings may be instituted to obtain the property, or a compensation

according to verdict. Verdict not conclusive against the parties.

therefor, as though the trial above provided for had

not taken place.

SEC. 10. The property attached shall remain in Property may the hands or care of the officer who served the writ be replevied. to abide the judgment of the court, unless the defendant, or some other person, wishing to replevy the same, shall give bond in double the appraised value of said property, with two sufficient sureties, residents of said county, made payable to the plaintiff in the suit, and conditioned that said property or its appraised value shall be forthcoming to answer the judgment of the court in said suit.

SEC. 11. Such bond shall be filed in the office of Bond to be the clerk who issued the said writ of attachment, and filed. upon a breach of the condition thereof the plaintiff may bring his action of debt thereon for his own. benefit.

ty lost by acci

SEC. 12. Should the property attached, or any por- No infraction tion thereof, be lost or destroyed by unavoidable of the condiaccident, or without negligence, the condition of tion, if propersaid bond shall not be deemed to have been broken. dent, &c. SEC. 13. If the sheriff release the property with- Sheriff liable, out taking a sufficient bond, he shall be liable to the if he fail to plaintiff (in case judgment be rendered against the take sufficient defendant) for the appraised value of the property attached, or so much thereof as will satisfy said judgment.

bond.

perishable na

SEC. 14. Whenever goods are attached which, in When the prothe opinion of the officer having possession thereof, perty attached are in danger of immediate waste or decay, such shall be of a officer shall summon three inhabitants of the county, ,ture, having the qualifications of jurors, to examine the same. If these persons shall certify that in their opinion such goods are of a perishable nature, they shall specify a certain day beyond which they would not deem it prudent for such goods to remain in the custody of said officer. And thereupon immediately Authority to such officer shall post up notices at the court house sell. and two other public places in his county, stating that, at the time so fixed and at a place to be named in said notices, he will sell said goods at public auction, which sale shall take place accordingly.

SEC. 15. The money arising from such sale shall Sheriff acremain in the hands of the sheriff, there to abide the countable for the proceeds event of the suit, for which money he shall be accountable.

SEC. 16. Upon affidavit filed in the office of the Garnishee to clerk who issued the writ of attachment aforesaid, at be summoned.

May be ex

touching the sum due, &c.

any time before the return day of said writ, stating that, as deponent verily believes, a certain person (naming him) has property of the defendant in his possession, or that he is indebted to the said defendant, provided such indebtedness is not for daily labor, said clerk shall issue a summons to said garnishee reciting the above facts, and requiring him to appear at the time and place when and where said writ of attachment is to be returned, which summons shall be issued and returned in the ordinary manner.

SEC. 17. If the said garnishee appears as required, amined on oath he may be examined under oath as to the amount due from him to the said defendant, or as to the property and credits of the defendant in his hands. or possession, and from the day of the service of the summons mentioned in the preceding section such garnishee shall stand accountable to the plaintiff for the property or credits in his hands, or which shall come into his hands after the service of said writ, or the debts due from the said defendant as aforesaid.

Failing to ap

pear, may be proceeded

against by attachment. When declaration must be filed.

If defendant

clerk to prepare advertisement.

SEC. 18. If said garnishee do not appear in court in compliance with the summons aforesaid, he may be proceeded against by attachment as for a contempt.

SEC. 19. The writ of attachment authorized by this act being merely auxiliary to the original writ by which the suit was commenced, only one declaration shall be necessary in the whole proceedings, which must be filed within ten days after the writ is issued, and before the return day thereof.

SEC. 20. If the process by which the suit is comdo not appear, menced should not be served upon the defendant, and a voluntary appearance be not made by him before the end of the term at which the writ of attachment aforesaid was made returnable, immediately after such term the clerk who issued said writ shall make out an advertisement in which he shall state the names of the parties, the time when, from what court, and for what sum, said writ of attachment issued, and that unless the defendant appear and plead before the next term of the court, judgment will be entered and the property so attached will be sold to satisfy the same.

Plaintiff shall

cause same to be published.

SEC. 21. Such advertisement shall be delivered to the plaintiff, or his attorney, on demand, who within thirty days thereafter shall cause the same to be published in some newspaper printed in the territory,

most convenient to the place where the court is held, and such publication shall be continued successively for four weeks at least.

SEC. 22. If the plaintiff fail to have such notice Failing to do so published, his attachment shall be dismissed with so, attachment

costs.

to be dismissed.

time before

SEC. 23. Although the defendant may not have Defendant may been served with the original process by which the plead at any suit was commenced, he may nevertheless appear and plead to the declaration at any time before judg- judgment ment shall have passed against him by default, after which plea the proceedings to final judgment shall be the same as in ordinary cases.

SEC. 24. If after the publication prescribed in sec- If defendant tion twenty-one the defendant do not appear as fail to appear therein required, the final judgment thereupon en-after public notered shall be conclusive so far as regards the prop- to be concluerty attached, or the amount obtained from gar- sive nishees in the same manner hereinafter provided.

tice, judgment

plevied, plain

SEC. 25. After judgment in such cases, the prop- Property to be erty attached shall be advertised and sold in the sold; or, if resame manner as is provided for property levied on tiff may sue on by writ of fieri facias, or if such property shall have the bond. been replevied, as provided for in section eight, the plaintiff may forthwith bring his action on the bond, unless the condition thereof be fulfilled.

SEC. 26. If the sum thus realized, together with If plaintiff's that obtained from garnishees in the manner here- demand be not inafter provided, shall be insufficient to satisfy the satisfied, a second suit may demand proved, the plaintiff may at any time there- be instituted. after bring another suit thereon in the same manner as though the proceedings above authorized had not been instituted, in which said second suit the amount recovered as aforesaid shall be regarded merely as a credit to that extent in favor of the defendant.

shee.

SEC. 27. Where a summons shall have been served Judgment upon any garnishee in the manner prescribed in secagainst garnition sixteenth, if he shall appear and answer as required, the court (after judgment in said action shall have been rendered against defendant) may enter up judgment and award execution against said garnishee to the amount of the defendant's property or credits in his hands, together with debts due by him to said defendant, or so much thereof as shall be necessary to satisfy said judgment, but no prior lien of such garnishee on said property shall be thereby affected.