If garnishee

judgment to be

SEC. 28. Where such garnishee, having been duly fail to appear summoned, shall fail to appear and answer in the conditional manner provided in section seventeenth, the court given, and scire shall direct a conditional judgment to be entered up facias to issue. against him to the full amount of the plaintiff's lawful demand against the defendant, together with costs of suit. Thereupon a scire facias shall issue against such garnishee, returnable to the next term of the court, to show cause why final judgment should not be entered against him. Upon such scire facias being duly executed and returned, if such garnishee shall fail to appear, or if he cannot be found in the county, or if, having appeared, he shall fail to show sufficient cause as aforesaid, the court shall confirm the judgment against him and award execution accordingly.

Set off.

Writ may issue

on Sunday.

SEC. 29. The defendant, against whom an attachment has been issued under the provisions of this act, may avail himself of any set off properly pleadable in other respects although not due when the suit was commenced, provided such set off be due at the time of trial. And any claim, due or not due, may be set off by the garnishee, whether it exist against the plaintiff or defendant in the suit.

SEC. 30. The writ of attachment as authorized by and be served this act may be issued and served on Sunday, provided, in addition to the requisites prescribed in section one, the affidavit shall state that it would be unsafe to delay proceedings till Monday.

Remedies for

ed.

SEC. 31. Any person feeling himself aggrieved by parties aggriev- the judgment of the court, made under the authority of any of the provisions of this act, shall be entitled to the same remedies as are allowed under similar circumstances in ordinary cases.

Attachment

not to be quashed for insufficiency of affidavit, &c.

May issue

rate or joint

SEC. 32. No writ of attachment shall be quashed, nor the subsequent proceedings deemed invalid, on account of any defect in the writ which would not have been fatal in a summons, nor on account of any insufficiency in the affidavit or attachment bond, provided a sufficient affidavit or bond shall be filed within a reasonable time after objections have been taken to those originally filed.

SEC. 33. When two or more are jointly bound or against sepa indebted, the writ of attachment provided for by this act may be issued against the separate or joint estates, or both, of such joint debtors, or any of them, in the same manner as provided for in other

estates, or both.

cases.

SEC. 34. The act of the Legislative Council of the Repealing Territory of Michigan, approved April 12th, 1827, clause. entitled "An act allowing and regulating writs of attachment" is hereby repealed: Provided, that noth- Proviso. ing in this act contained shall be so construed as to affect any suit of attachment already commenced in this Territory. This act to take effect, and be in force, from and after the first day of June next.

FORMS.

The following, or other equivalent forms, shall be deemed sufficient in cases to which they apply:

WRIT OF ATTACHMENT.

County

not less than

88

To the sheriff of said county: Whereas, A. B. has stated on affidavit that J. S. is justly indebted to him [or the plaintiff whoever he may be] in an amount dollars. [If the writ is issued in an action ex delicto it should state that] Whereas, in an action of (here state the action) brought by A. B. against J. S., an order has been duly obtained directing the said defendant to be held to bail in the sum of dollars: and whereas, an affidavit has been filed according to law, stating that, as deponent verily believes, the said J. S. is a non-resident, &c. (the same as above) and also that, as deponent verily believes, said J. S. is a non-resident of this Territory [or that he has absconded, or is about to dispose of his property, &c. according to the requirements of section first.]

These are therefore, in the name of the United States, to command you to attach the lands, tenements, goods, chattels, rights, credits, moneys, and effects of the said J. S., wherever the same may be found within your county, or so much thereof as may be necessary to satisfy the amount above stated, together with interest and costs of suit, and safely to preserve said property to be dealt with according to law. And you are also required to make due return of your doings in the premises to the district.

court of said county, on the first day of the next term thereof, and have you then and there this writ. Witness, &c.

To the sheriff of said county: Whereas A. B. has sued out a writ of attachment against J. S: and whereas the said A. B. (or whosoever was the deponent) has stated on affidavit that K. S. and M. N. have property or credits in their hands or care belonging to the said J. S. and that R. H. is indebted to the said J. S. These are therefore, in the name of the United States, to command you to summon the said K. S., M. N., and R. H., to appear before the district court of said county, on the first day of the next term thereof, to answer such questions in the premises as may be propounded to them by the said court, or under its direction. Hereof fail not, and have you then and there this writ, with a return of your doings thereon. Witness, &c.

APPROVED, January 7, 1839.

In actions on

process.

BAIL.

AN ACT concerning Bail.

SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That in all contract capias actions founded on contract a capias may be the first to be the first process, provided the affidavit of the plaintiff, or some credible person, containing the following particulars, be first filed with the clerk who is to issue the same. 1st, It must state (either absolutely, or as deponent has been credibly informed and verily believes) that there is an indebtedness of the defendant to the plaintiff, and that at least a certain amount (naming it) is due. 2d, Also that the defendant has removed his property (or a portion thereof) from the Territory, or concealed or otherwise disposed of the same with intent (in either case) to defraud his creditors. Or, that he has within this Territory, money, or other property or things in action, which cannot

Particulars to

be stated in

plaintiff's affi

davit.

be reached by writ of attachment, and that he is about to abscond, with intent to defraud his creditors, as deponent verily believes.

SEC. 2. A capias may also issue in actions of tres- Actions of trespass for taking personal property, and in actions for pass. trespass upon lands.

stated in the

SEC. 3. But in such case an affidavit of the plain- Trespass and tiff, or some credible person, must have been filed as damages to be aforesaid, stating positively the fact of the trespass affidavit. having been committed, and specifying, as nearly as practicable, the amount of damages thereby sustained by the plaintiff in action.

SEC. 4. In all other actions, ex delicti, a capias shall Other actions. not issue without the order of a judge of the supreme Order of judge

court.

of sup. court.

SEC. 5. The application for such order must be Affidavit to founded on an affidavit, stating the nature of the state the nature injury for which reparation is sought, and also the of the injury, other circumstances which are relied upon for obtaining such order.

&c.

SEC. 6. Except for intentional injuries, no such Order not to be order shall be made, nor then unless it shall be ren- made except dered probable that the plaintiff will be otherwise for intentional without adequate remedy.

injuries.

SEC. 7. The judge granting such order shall insert Amount of bail therein the amount in which the defendant shall be to be inserted held to bail, and the clerk issuing the capias shall in the order, endorse thereon the same amount.

and endorsed on capias.

SEC. 8. In other cases he shall thus endorse upon In other cases the capias double the amount stated in the affidavit what shall be on which the writ is founded as aforesaid, but this endorsed. in no case need be the same as the amount of debt or damages inserted in the body of the writ.

SEC. 9. Where the name of the defendant shall be In what case unknown to the plaintiff, none of the proceedings in proceedings the case shall be deemed defective on account shall not be thereof, provided said defendant be therein de- tive. scribed with such accuracy as to leave no probable grounds for mistake.

deemed defec

SEC. 10. A capias shall be served by arresting the How capias to defendant, and keeping him in custody until dis- be served. charged according to law.

on giving bond

to sheriff.

SEC. 11. Every defendant so arrested shall be dis- Defendant to charged upon executing to the sheriff of the county be discharged a bond, with sufficient security, in a penal sum equal to the amount numbered in the writ as aforesaid, conditioned that the said defendant will appear at the return day of said writ, and not depart without

If def't be com

permission of the court, which bond shall be filed. with the clerk who issued the writ.

SEC. 12. Whenever a defendant is committed to mitted, the fact prison for want of bail, that fact shall be specially to be stated in stated in the return of the writ.

the return. Def't may be discharged,

and securities released, upon

filing special bail.

What persons shall not be permitted to be special bail.

Bail to be by

SEC. 13. When the action shall have been commenced by capias, if the defendant appear agreeably to the conditions of the bail bond, he may at any time thereafter, on motion, be discharged from custody, and the securities in his bail bond released from liability, upon the filing of special bail in the manner hereinafter mentioned, either by the defendant, the sheriff, or the securities in the said bail bond.

SEC. 14. No person shall be permitted to be special bail as aforesaid, unless he be a householder, and resident within this Territory, or unless he possesses real estate of sufficient value within the same, and no counsellor or attorney at law, sheriff, or other person concerned in the execution of process, shall be permitted to be special bail in any action.

SEC. 15. Such bail shall be by recognizance, in a recognizance, penalty equal to the amount endorsed on the capias as aforesaid, conditioned that, if judgment in the action be rendered against said defendant, he shall pay the amount thereof, or surrender himself on the issuing of a writ of execution against his body.

In open court,

tice of the

SEC. 16. Such recognizance may be entered into or before a jus- in open court in the usual manner, or it may be taken by any justice of the peace of the county, in which case it shall be made in writing, signed by the parties to be thereby charged, and filed with the clerk of the court in which the cause is pending.

peace.

Course to be

SEC. 17. If such bail be excepted to as insufficient, pursued if bail before the third day of the term to which the writ be excepted to was returnable, they shall either justify, or new bail as insufficient. shall be put in and justify, before the defendant shall be discharged, or the securities in his bail bond released from their liability. And in all cases where the recognizance of bail shall be entered into before. a justice of the peace as aforesaid, such bail shall justify in the first instance.

SEC. 18. The justification of bail shall consist in stating on oath, or affirmation, that over and above all just demands against them, they are severally worth an amount equal to that stated in the recognizance as aforesaid.