1865.

is stayed to be

estate attached, within sixty days after final judgment, or on the real estate attached, and have the same appraised, and the execution and proceedings thereon recorded within four months after such judgment; or if said goods or estate are encumbered by any prior attachment, unless the execution shall be levied as aforesaid, within the respective times aforesaid, after such encumbrance is removed.* SECT. 25. Whenever a writ of error shall have been brought to 1847. reverse the judgment in any cause wherein the estate of the de-1862. The time during fendant shall have been attached in the original process, and the which execution same shall not be reversed, or whenever an injunction shall be granted excluded in com to restrain the levy, or proceeding with the levy, of an execution is- puting continusued upon a judgment wherein such estate may have been so ment lien. attached, and such injunction shall not be dissolved by the judge or court having jurisdiction thereof, or whenever a stay of execution shall be granted in any cause in which such estate may have been so attached, the time during which said writ of error or said injunction may have been pending, or such stay of execution shall continue, so as to prevent the levying, or proceeding with the levy of the execution in the cause, shall be excluded from the computation in determining the continuance of the lien created by such attachment.

ance of attach

1832.

1837.

1838.

how attached.

SECT. 26. All attachments, levied on the machinery, engines, or other implements, situated in and used by any manufacturing or 1846. 1861. mechanical establishment, or upon the household furniture of any Machinery, &c., person having a family and used by him in housekeeping, or on the hay or unthreshed grain deposited in any building, or on any crop deposited in a building, which cannot, in the opinion of the officer levying upon the same, be moved without manifest injury, in which levy and the return of the officer making the same the said property shall be particularly described, shall hold the same, without any removal thereof, as effectually as if such property were real estate, but the service of said attachment shall be made and completed, and a copy thereof, with the officer's return, by him made thereon and attested, shall be lodged on file in the office of the town clerk of the town in which such property shall be situated, within twenty-four hours after such attachment shall have been made; and when the levy is upon hay, unthreshed grain, or a crop situated as aforesaid, the officer shall also give notice of such levy by posting up a notification thereof on the outer door of the building in which such hay, unthreshed grain, or crop is situated.

tractor is suffi

cient.

SECT. 27. In actions on joint contracts, the service of the process When service on upon such of the defendants as are inhabitants of this state shall be one joint consufficient notice to maintain the suit against all the defendants.t SECT. 28. Whenever any live stock, or other personal property in its nature perishable or liable to depreciation, or the custody and

The word "month" in a statute means a calendar month. Strong v. Birchard, 5
C. R. 357.

In regard to time of demand and duration of lien see Gates v. Bushnell, 9 C. R. 580;
Spencer. Champion, 13 C. R. 11; Allen & Adams, 17 C. R. 67.

Return of execution on real estate, into the office of the clerk of court, within what
time sufficient. Spencer v. Champion, 13 C. R. 11.

When act of debtor, designed to transfer his title, does not destroy effect of attachment. Davenport v. Lacon, 17 C. R. 278; Calkins v. Lockwood, 17 Č. R. 154.

+ In actions against two joint contractors, service on one dwelling in this state will be sufficient, though the other, dwelling out of this state, come here to reside before return day, and have no actual notice. Bishop v. Bull, 1 Day, 141. And where such service is made on one of joint contractors, judgment by default against all at first term, will be good. Southmayd v. Backus, 3 C. R. 474. It is sufficient if the party on whom the service is made is temporarily within the state at the time of service. Bishop 7. Vose, 27 C. R. 1. Effect of judgment under this section. Same.

erty taken by at

be sold.

deposited.

1857. 1860. the proper preservation of which would be difficult or expensive, Perishable prop shall be taken by attachment, and held by the officer who attached tachment, may the same, either party to the suit may apply to any judge of the superior court, or to a county commissioner residing in the county where such property was attached, for an order to sell the same, and thereupon, after such reasonable notice to the adverse party as said judge or commissioner shall direct, and upon satisfactory proof that such sale is necessary and proper, such judge or commissioner may order the officer who attached said property, to sell the same at public auction, at such time and place, and upon such notice as said judge or commissioner shall deem reasonable and proper; and said judge or commissioner may, at his discretion, order the officer to Avails, where deposit the avails of such sale with the justice before whom, or with the clerk of the court to which, said process is returnable, subject to the order of the court having final jurisdiction of said cause. * Appraisement of SECT. 29. Whenever the plaintiff intends to make application for the sale of property so attached, the property shall be appraised by three disinterested freeholders of the town where the same was taken, to be chosen, appointed and sworn, and to make their return to the officer, in the same manner as appraisers of real estate taken by execution, a certificate of which appraisement, under their hands or the hands of either two of them, shall be presented to the judge or commissioner to whom the plaintiff shall apply for such order of sale; and before any order shall be made upon any such application of the plaintiff in the suit, the plaintiff shall give Plaintiff shall bond, with surety, to the adverse party, to the acceptance of said judge or commissioner, in a sum equal to double the amount of said property, conditioned that he shall prosecute his action to effect, and pay all damages which the adverse party may sustain by the sale of said property at a less price than its appraised value, with the interest thereof.

the property.

give bond.

Fees and expenses.

Avails of sale,

SECT. 30. The fees of the judge or commissioner, for hearing and deciding such application, and taking bonds thereon when required, shall be one dollar, to be paid by the party making such application, and the justice, appraisers and officers shall be entitled to the same fees to which they would have been entitled for similar services on executions; and the fees of the justice and appraisers shall be paid by the officer, and charged in his bill of fees; and the expenses thus incurred by either party, shall be taxed in favor of the successful party, as part of the costs in the cause; and the officer who serves said writ shall make return of what has been done in the premises, to the court to which said writ is returnable.

SECT. 31. If the suit upon which such property was attached how disposed shall be decided in favor of the defendant, the money accruing from the sale of such property shall be paid to the defendant; but if the suit is decided in favor of the plaintiff, said money, or so much thereof as will satisfy his claim, shall be paid to the plaintiff; and if the property attached shall have been subject to more than one attachment, the money shall be paid to the creditors, in the respective suits, who attached said property, in like order and proportion as the proceeds would have been by law liable to have been paid in case of sale by execution; and the court which renders final judgment in the suit, may make the necessary orders therefor.

Avails of sale, liable to attachment.

SECT. 32. After the money accruing from the sale of the property attached has been paid to the clerk of the court or justice of the

* The term "perishable" means, subject to natural and speedy decay; and the term expensive," that which would require expense.-Webster v. Peck, 31 Č. R. 495.

peace aforesaid, any creditor may attach the same, by leaving a copy of his attachment, with an indorsement of the service thereon, with such clerk, or justice of the peace, and a like copy with the defendant, if within this state, in which case, the sum which such creditor shall recover, shall be paid to him, under the order of the court, out of the surplus which shall be left, after deducting all previous attachments, in the same manner as if such creditor had attached said property before the sale thereof.

giving bonds, &e.

SECT. 33. The defendant may, at any time during the pendency Defendant may of the suit, take to his own use the money raised by such sale as receive avails, on aforesaid, upon giving bond, payable to the plaintiff, with sufficient surety, to the satisfaction of the judge or commmissioner who ordered such sale, or of the justice of the peace or the court before which the action shall be pending, if then in session, to refund the same in the event of final judgment rendered against him, to be disposed of in satisfaction of such judgment as herein before provided. SECT. 34. In all cases where the plaintiff or defendant may apply for an order to sell personal property taken by attachment, according cer is dead, who to the provisions aforesaid, if it shall appear to the authority to may sell. whom the application is made, that the officer by whom said property was attached has deceased, or has been removed from office, such authority may appoint the sheriff of the county where such property was attached, or either of his deputies, to make sale of said property in the manner prescribed as aforesaid.

1840.

1848. Dissolution of attachment by

bond.

SECT. 35. Whenever any goods, chattels, shares in any corporation, or real estate, shall be attached, or whenever any debt, or effects, shall be taken by process of foreign attachment, the defend- substituting ant, if the debt or damages demanded do not exceed three hundred dollars, may make application, in writing, to any justice of the peace in the county where such attachment is made, or, if such debt or damages exceed three hundred dollars, to a judge of the supreme court of errors, or of the superior court, to dissolve the lien created by such attachment, upon the substitution of a bond, with surety, as hereinafter provided.

SECT. 36. The application may be in the following form: a justice of the peace for the county of

To

judge, as the case may be:)

The application of C. D., of

in the county of

that he is defendant in a certain action demanding debt, (or damages,) wherein A. B., of

(or

shows,

dollars,

is plaintiff; in which

action, the following estate has been attached, to wit:
by E. F., of
(insert the name of the officer,) and that
he is desirous that said attachment should be dissolved upon the
substitution of bond, with surety, according to the statute.

Dated at

the

day of

C. D.

Form of appli

cation.

tiff.

SECT. 37. No attachment shall be dissolved until reasonable Notice to plainnotice, in writing, of the application, signed by the defendant, or his attorney, shall have been served upon the plaintiff, or his attorney, and on the officer serving the attachment; and such notice may be in the following form:

Parties in inter.

as to the suffi

A. D.

(or judge, &c.) at

at

of the peace of the county of
on the
day of
o'clock in the
noon, to dissolve the attachment in this cause, upon the sub-
stitution of bond, with surety, according to the statute.

Dated at

All

the day of interested persons

may

A. D. C. D. SECT. 38. be heard in relation to the est, to be heard amount and sufficiency of the bond offered by the defendant. Such ciency of bond. bond shall be the amount of the value of the property attached, unless the action be founded in tort for the recovery of unliquidated damages, and it shall appear to the authority to whom the application is made, that the sum required to be attached is excessive, in which case he may take bond for such sum as he may deem reasonable.

Form of bond.

Application and

be kept on file.

SECT. 39. The bond shall be taken to the plaintiff, and may be in the following form:

Whereas, the estate of C. D., of
A. B., of by writ, dated

:-You

of

has been attached by returnable to as by the officer's return in said writ, which estate is estimated to be of the value acknowledge yourselves jointly and severally bound unto the said A. B., in the said sum of dollars, conditioned that if the said C. D. shall pay the judgment that may be recovered against him in such suit, not exceeding the amount of this recognizance, then this recognizance shall be void.

SECT. 40. The authority dissolving the attachment shall certify proceedings, to his doings upon the application, and shall, as soon as possible, return the application, recognizance, and other proceedings, to the court to which the writ is returnable, and the same shall be kept on file in such court.

Certificate of

with whom to be left.

SECT. 41. The defendant, if the attachment dissolved be of real the dissolution, estate, may leave on file with the town clerk of the town where such real estate lies, a certificate of such dissolution, signed by the authority making the same; if the attachment be of shares in any corporation, he may leave a like certificate with the officer of the corporation with whom a copy of the attachment was left in service; if the attachment be of debts, or effects, in the hands of a garnishee, he may leave a like certificate with the garnishee; and no such corporation shall be held liable to the defendant for refusing to transfer the shares attached, or to pay the dividend due thereon, and no such garnishee shall be held liable to the defendant for refusing to pay the debt, or return the effects attached in his hands, until such certificate shall have been so left.

Fees for the bond.

1864.

taking

be canceled.

SECT. 42. The authority taking the bond shall be entitled to receive for such service, fifty cents, if the demand in the writ is three hundred dollars or less, and one dollar, if such demand exceeds three hundred dollars.

SECT. 43. Whenever in any action, a bond has been, or shall be When bond on taken, according to law, upon the dissolution of the attachment, the attachment may defendant in such action may apply to the court before which such action may be pending, to order such bond to be canceled and given up, upon the substitution of a new bond therefor. The other party Hearing of appli- being duly notified, the court shall proceed to hear such application, and upon being satisfied with the sufficiency of the new bond offered, and that reasonable cause exists for such application, may grant the same, and upon such new bond being duly filed in court, shall order the former bond to be canceled and given up.

cation.

release of por.

attached, when

SECT. 44. In every action for the recovery of any debt, which shall 1865 be brought to the superior court, and in which the estate of the de-Proceedings for fendant shall have been attached, said court, or in vacation, any judge tion of property thereof, shall, on application of the defendant, or his attorney, cite amount attached the plaintiff, or plaintiffs, if they reside in the county in which such is excessive. action is pending, or their attorney, if they, or either of them, are not residents of said county, to appear forthwith before said court, or said judge, as the case may be, then and there to state, under oath, the amount of the plaintiff's claim, and that he or they verily believe the same is justly due, and, if required by said court or judge, to furnish a bill of particulars of said claim; and if said court or judge shall find that the value of the property attached, so far exceeds the amount of the plaintiff's claim as to render the attachment oppressive and vexatious, said court or judge shall order the release of such portion of the property attached as is not required to secure the payment of the plaintiff's claim and costs, and the plaintiff shall Costs, how paid. pay the costs of such citation and hearing thereon; but if said attachment shall not be released, in whole or in part, the defendant shall pay to the plaintiff, or plaintiffs, the costs of the same.

be dissolved, if plaintiff does not appear.

certificate of the

SECT. 45. If the plaintiff, or plaintiffs, shall neglect or refuse to Attachment shall appear before said court or judge, when cited as aforesaid, and said court or judge shall be satisfied that they do not intend to appear, said court or judge shall order said attachment to be dissolved. SECT. 46. Whenever the real or personal estate of any person Plaintiff shall file shall have been attached, in any suit or proceeding, either at law or removal of atin equity, wherein a certificate of such attachment, or a copy of the tachment lien writ or proceeding is required, by law, to be filed in the office of the with town clerk. town clerk, and the plaintiff therein shall have received satisfaction for his claim, or final judgment shall have been rendered against him therefor, said plaintiff or his attorney shall, at the request of any person interested in the estate on which such attachment was a lien, or interested in having the lien removed, lodge a certificate with the town clerk of the town in which such estate is situated, that said claim is satisfied and said lien removed; and such town Town clerk clerk shall make a memorandum of the release of such attachment shall make a memorandum of on the page of the record where the certificate of the attachment of the release. the real estate is recorded, and for such service he shall be entitled to receive the sum of ten cents, to be paid by the person for whose benefit such certificate shall have been filed.

tificate.

SECT. 47. If any person who shall have have received satisfaction, Penalty for refuor against whom a final judgment shall have been rendered, or his sing to file cerattorney, shall, within thirty days after the request specified in the preceding section shall have been made in writing, and sufficient proof of such satisfaction shall have been furnished to him, willfully refuse to lodge such certificate with the town clerk, he shall pay to the person aggrieved the sum of ten dollars for each week of his refusal or neglect to lodge such certificate, to be recovered in an action brought on this statute; but no person shall be compelled to Who shall pay file such certificate, until the party, for whose benefit the same shall tificate. be filed, shall pay to him the necessary expense thereof.*

*An attorney, under general retainer, has power to release attachment. Monson v. Hawley, 30 C. R. 51.

expense of cer