A husband may be garnisheed in a suit against his divorced wife; and a wife may be in a suit against her husband.1 VII. The Writ. The writ is so nearly like that in domestic attachment that it seems unnecessary to present it here at length. Authorities applicable to it in that form of the remedy are generally applicable to it in foreign attachment under the practice prevalent in nearly all the States. The statutory requisites for the writ of attachment of a non-resident's property differ little from those prescribed for its issuance against the property of a resident. An affidavit stating the ground on which the application is made is generally required, and made indispensable to the issuance of the writ. The requirement of an attachment bond, though 2 1. Husband Garnisheed in Suit Against His Wife. A pledge of chattels (her separate property), by a wife, for advances made by her husband, is void with respect to her creditors; and, upon divorce, the husband is chargeable with trustee process at the suit of third parties in an action against the wife. Porter v. Wakefield, 146 Mass. 25. A wife, in a suit against her husband, may be garnisheed, and defaulted for answering. though incompetent to appear against him as a witness. Garnisheeing U. S. Marshal.—A creditor may, by service of notice upon a Federal marshal who has wrongfully seized property on Sunday, make constructive levy of State attachment, subject to prior liens, without disturbing the marshal's possession. The court will hold the marshal liable as garnishee. Gumbel v. Pitkin, 124 U. S. 131; s. c., L. Ed. 374. Garnisheeing Customs Officer.-A State officer cannot attach property in a United States bonded warehouse, or in possession of an officer of customs; but the party placing the property in the warehouse may be charged as trustee of the real owner. Peabody v. Maguire, 79 Me. 572. When a Federal marshal takes property of one not named in the writ, the rightful owner may obtain relief by intervening. Gumbel v. Pitkin, 124 U. S. 131 (31 L. Ed. 374.) Non-resident Temporarily Present. "Service of process on a non-resident, while transiently within the State, will not suffice to hold him as garnishee.' Green v. Farmers & Citizens'. Bank, 25 Conn. 454. " 2. Affidavit should be made on application for the writ. Hubbardston Lumber Co. v. Covert, 35 Mich. 254. The prior issue of summons need not be averred. Pickhardt v. Antony, 27 Hun (N. Y.), 269. Nor need jurisdiction be asserted. Branch v. Frank, 81 N. Car. 180. The statute should be substantially followed, even in the form of the oath, if a form is prescribed. Richards v. Donaughey, 13 Phila. (Pa.) 514; Lankin v. Douglass, 27 Hun (N. Y.), 517; Matthews v. Dare, 20 Md. 248; Emmitt v. Yeigh, 12 Ohio St. 335; Shockley v. Bullock, 18 Ga. 283; Barrill v. Humphrie's, 26 Ga. 514; Moody v. Levy, 58 Tex. 532; Reyburn 7. Brackett, 2 Kan. 227; McCollem v. White, 23 Ind. 43; Hilton v. Ross, 9 Neb. 406. The indebtedness should be sworn to, and shown to be such as the statute contemplates, but that fact stated in a sworn petition has been held sufficient. Foster 2. Hall, 4 Humph. (Tenn.) 346; Endel v. Leibrock, 33 Ohio St. 254; Garner v. White, 23 Ohio St. 192; Dunlevy v. Schwartz, 17 Ohio St. 640. The oath to indebtedness should be positive. Manton v. Poole, 67 Barb. (N. Y.) 330; Black v. Scanlon, 48 Ga. 12. Absence of the plaintiff from the State was held sufficiently stated, though by the petition and not the affidavit. Farley v. Farior, 6 La. Ann. 725. (Without swearing to the petition, this practice should not be relied upon.) The plaintiff or his authorized representative should make the affidavit; if the latter, he should state his authorization therein. Miller v. Chicago, etc., R. Co., 58 Wis. 310; Wiley v. Aultman, 53 Wis. 560; Willis v. Lyman, 22 Tex. 268. Corporations are represented by their presidents usually, but others may be authorized for the purpose. Trenton Banking Co. v. Haverstick, 6 Hals. (N. J.) 171; Faver v. Bank of Alabama, 10 Ala. 616. Presumption of authority to make the affidavit is not to be inferred from the fact that the affiant is the plaintiff's attorney of record; though authorities differ on this point. Alexander v. Denaveaux, 53 Cal. 664; s. c., 59 Cal. 476; Austin v. general, is not universal in foreign attachment, preliminary to the issuance of the writ.1 The execution of the writ does not differ from that in domestic attachment; even the garnisheeing of third persons in possession is similar. Nor is there difference in case of wrongful levy, with respect to the damages incurred. Foreign attachment may issue after the action has begun by summons.2 Latham, 19 La. 88; Gilkeson v. Knight, 71 Mo. 403. Non-residence, though merely inferential from the facts sworn to, has been held sufficiently averred,-Mayor, etc., of New York v. Genet, 4 Hun (N. Y.), 487; McKiernan v. Massingill, 14 Miss. 375; James v. Dowell, 15 Miss. 333; Graham v. Ruff, 8 Ala. 171;-the inference, however, should be inevitable or most probable from the facts sworn,Mulherrin v. Hill, 5 Heisk. (Tenn.) 58; Love v. Young, 69 N. Car. 65;-not necessarily, however, to the exclusion of all other hypotheses,-Cooney v. Whitfield, 41 How. Pr. (N. Y.) 6; Ware v. Todd, 1 Ala. 199; Talcott v. Rozenberg, 3 Daly (N. Y.), 203. In New England, affidavit is not required where attachment is incidental to the summons in actions on contract debts, but it is generally required in the other States. Foster . Jones, I McCord (S. Car.), 116; Hale v. Chandler, 3 Mich. 531; Bowen v. Slocum, 17 Wis. 181; Messner z. Hutchins, 17 Tex. 597; Clark v. Garther, 6 Ala. 139; Van Kirk v. Wilds, 11 Barb. (N. Y.) 520; and the cases cited above in this note. It has been held not required in New York, in foreign attachment. Van Etten v. Hurst, Hill (N. Y.), 311; s. c., 41 Am. Dec. 748; Clark v. Luce, 15 Wend, (N. Y.) 479; Bates v. Relyea, 23 Wend. (N. Y.) 336. Affidavit by a Person Unauthorized.— In a suit by a corporation against nonresidents, the affidavit was made by a person not authorized to represent the plaintiff, and the proceedings were held void. Manley v. Headley, 10 Kan. 88; Challis v. Headley, 9 Kan. 684; Willis v. Lyman, 22 Tex. 268; Pool v. Webster, 4 Metc. (Ky.) 278; Dean v. Oppenheimer, 25 Md. 368. The grounds alleged in the affidavit were "that the defendant is a foreign corporation or a non-resident of Brown county." Held, that there was no warrant for the issue of the attachment because the allegations were disjunctive and nonresidence in the county not a statutory ground. Dickenson v. Cowley, 15 Kan. 269. 1. Attachment Bond.-The plaintiff is not invariably required to file an undertaking to secure the defendant in case of wrong, but many of the States require it; and the sum of the bond is usually double the amount of the plaintiff's claim. In Louisiana, it is half above. La. Code of Practice, 1867. In some States, as in Wisconsin and South Carolina, the bond is only for costs. Rev. Stat. Wis. 1878; Lynch S. Car. Code Pro. 1880. In the New England States, where attachment may follow ordinary summons, security for costs may be required. But of those States requiring bond to secure the defendant against damages, distinction is made in some in favor of foreign attachment. No bond is required before the issuance of the writ, in that species of attachment, in Nebraska. Marsh v. Steele, 9 Neb. 96; Olmstead v. Rivers, 9 Neb. 234. Nor in Kansas,-Simon v. Shelter, 25 Kan. 155;-"Where all the defendants against whom attachment is issued are non-residents, no bond need be given, although there be other resident defendants,"-Head v. Daniels, 38 Kan. I. Like distinction is made in Ohio Rev. Stat. 1880. In Pennsylvania and Delaware, where foreign and domestic attachment are as plainly distinguished by statute as in the New England States, no bond is required in the proceeding against non-residents and foreign corporations. Brightly's Purdon's Digest, verbo ATTACHMENT; Rev. Stat. of Del. 1852. In most of the States bond is required. Kellogg v. Miller, 6 Ark. 468; Ford v. Hurd, 4 S. & M. (Miss.) 683; Erwin v. Ferguson, 5 Ala. 158; Walker v. Bank of Mobile, 6 Ala. 452. Waples on Attach. & Garn. pp. 112-127. 2. Attachment after Summons.-Foreign attachment may issue pending action begun by summons if the defendant be non-resident. Stockham v. Boyd (Pa.), 11 Cent. Rep. 187. Allegations of the principal defendant in trustee process should be filed before the adjudication upon the disclosure, though it is within the discretion of the court to allow the filing afterwards. v. Wilbur, 79 Me. 561, Dill Publication. VIII. Publication. The order for publication is made by the court, that the absent and non-resident debtor may be apprised of the proceeding against his property, and be offered his day in court for defence.1 Under the former method of foreign attachment, when the object was not to obtain an absolute decree in rem, but merely a judgment nisi, in personam, the published notice was not employed; but now, when the object is to create and enforce a lien, just as in domestic attachment, the statutory requirement of the advertised invitation is all-important. Reasons drawn from the common law and from international law with respect to proceedings in rem might be adduced to show the essentiality of notice in order to final judgment, were the statutes silent; but, as they prescribe publication as one of the conditions under which the extraordinary remedy is authorized, no further reason need be suggested. Publication, however, does not serve the defendant who is beyond the jurisdiction, so as to render him amenable to personal judgment; it merely offers him the opportunity to come and defend. The notice should appear of record.3 The object of the publication is to inform the absent defendant of the proceedings against his property; not to get service upon him as a party.4 The publication should be made without unreasonable delay, and necessarily within the time stated in the order; and it should comply with the statute as to the description of the property and As the object is to inform the absentee, the publication, which he is presumed to read, should acquaint him with the proceedings as fully as if he were within hearing of a proclamation. Gilliland v. Cullem, 6 Lea (Tenn.), 521. The advertised invitation should be in a paper of large circulation, when possible. Brewer v. Springfield, 97 Mass. 8 C. of L.-21 152; Soule Chase, 1 Rob. (N. Y.) 222; Sheldon v. Wright, 5 N. Y. 497; Kellogg v. Carrico, 47 Mo. 157; Cincinnati v. Bickett, 26 Ohio St. 49; Beecher v. Stephens, 25 Minn. 146; Kerr v. Hitt, 75 Ill. 51. 3. Recording the Notice. The papers containing the notice, with the oath of the publisher, officer or some one designated by law, should be filed in the case; at least there must be record evidence of the fact of publication, in some form. Brinsfield v. Austin, 39 Ala. 227; Johnston v. Hannah, 66 Ala. 127; Haywood v Collins, 60 Ill. 328; Bates v. Crow, 57 Miss. 696; Freeman Thompson, 53 Mo. 183: Millar v. Babcock, 29 Mich. 526; Carleton v. Washington Ins. Co., 35 N. H. 162; Ex parte R. Co., 103 U. S. 794. 4. Publication for Information Only."The publication of notice, as required by statute in a case commenced by attachment, is not for the purpose of giving the court jurisdiction of the writ and the subject-matter of the suit, but to inform the defendant of the proceedings, and come in an opportunity to give him and defend." Williams v. Stewart, 3 Wis. 773. other information needful to the defendant's proper understanding of that to which his answer is invited. The description, however, is not usually minute. The publication must appear as often, and for as long a time, as the order and the statute require.3 1. Publication — Delay — Description.— Real estate of a non-resident was attached in Ohio, and summons returned "not found." Notice by publication was not completed until eight months after the return of summons. It was held error to dismiss the action for an alleged want of jurisdiction by reason of the delay. Bacher v. Shawhan, 31 Ohio St. 271, in exposition of $4988, Rev. Stat. of Ohio. A farm was attached, in a suit against a non-resident, and publication made without description of the land. The debtor sold his farm and the unpaid price was reached by the garnishment of the purchaser, and paid into court, and the farm was released. Held, on appeal, that the notice was sufficient; that no description was required by the statute (Rev. Stat. of Ohio, § 5051); and that the release of the farm did not deprive the court of jurisdiction. Core v. Oil & Oil Land Co., 40 Ohio St. 636. Non-residence presumed from publication, in Ohio, when attachment is collaterally attached. Hammard v. Davenport, 16 Ohio St. 177. a been attached, and description is required by statute or ordered by the court, it is not a compliance to only name the property generally as located in the county. Hathaway 7. Larrabee, 27 Me. 449; Henry v. Mitchell, 32 Mo. 512; Porter v. Byrne, 10 Ind. 146. But particular descriptions of property, in publication notice, are not usually required. Moore v. Kidder, 55 N. H. 488. 3. Publication-Time Required. -The defendant is entitled to the full period named in the order. Swett v. Sprague, 55 Me. 190; Bogart v. Swezey, 26 Hun (N. Y.), 463; Lowenstine v. Gillispie, 6 Lea (Tenn.), 641; Colwell v. Bank of Steubenville. 2 Ohio, 229; Haskell v. Bartlett, 34 Cal. 281; Freeman v. Thompson, 53 Mo. 183; Pyle v. Cravens, 4 Litt. (Ky.) 17; Swayze 7. Doe, 13 S. & M. (Miss.) 317; Saffaracus v. Bennett, 6 How. (Miss.) 277; Hunt v. Wickliffe, 2 Pet. (U. S.) 201. To postpone publication till the expiration of the time named in the order is fatal. Mojarietta 7. Saens, 68 How. Pr. (N. Y.) 505; Blossom v. Estes, 59 How. Pr. (N. Y.) 381; s. c., 84 N. Y. 614. So also if the notice does not appear the number of times ordered. Dow v. Whitman, 36 Ala. 604; Swett v. Sprague, 55 Me. 190; Bachelor v. Bachelor, 1 Mass. 256; Lawlin v. Clay, 4 Litt. (Ky.) 283. And if time is fixed within which the trial may occur after the last appearance of the publication, it must be accorded to the defendant. Forsyth v. Warren, 62 Ill. 68; Vairin v. Edmonson, 10 Ill. 270; Andrews v. Ohio R. Co., 14 Ind. 169; Muskingum Valley Turnpike v. Ward, 13 Ohio, 120; Haywood v. Russell, 44 Mo. 252. And all statute requirements with respect to the time of publication must be observed. King v. Harrington, 14 Mich. 532; Likens v. McCormick, 39 Wis. 313; Sexton v. Rhames, 13 Wis. 99; Morris v. Hogle, 37 Ill. 150; Schnell v. Chicago, 38 Ill. 382; Pomeroy v. Betts, 31 Mo. 419: Bobb v. Woodward, 42 Mo. 482; Scorpion S. M. Co. v. Marsano, 10 Nev. 370; Grewell v. Henderson, 5 Cal. 465; People v. Huber, The description is sufficient if the 20 Cal. 81; Lawrence v. State, 30 Ark. property is identified. Howard v. Dan- 719; Cook v. Farren, 34 Barb. (N. Y.) 95: iels, 2 N. H. 137; Crosby v. Allyn, 5 Lovejoy v. Lunt, 48 Me. 377; Zacharie Me. 453; Bacon v. Leonard, 4 Pick. v. Bowers, 3 S. & M. (Miss.) 641; Mitch(Mass.) 277; Whitaker v. Sumner, 9 ell v. Woodson, 37 Miss. 567; Magoffin Pick. (Mass.) 308. When property has v. Mandaville, 28 Miss. 354; Crabb v. Race 2. Publication-Description of Property Therein.-Ordinarily, it is only necessary to state, for the information of the absent defendant, that property of his is attached or to be attached, unless the statute requires description. Harris v. Grodner, 42 Mo. 159. It is not usually required with respect to personal property. v. Maloney, 21 Kan. 38; Beckurch v. Douglas, 25 Kan. 229. "When attachment is levied on the land of a nonresident, and summons is not made on him, the court possesses no power to render a judgment against him and to order the sale of his property to satisfy the same, unless publication has been made as required by law; and the notice should contain a description of the property attached." Westcott v. Archer, 12 Neb. 345. There need not be a specific statement in the notice that the sale of the attached property will be ordered. Gilliland 7. Cullem, 6 Lea (Tenn.), 521; Rapp v. Kyle, 26 Kan. 89. IX. Return of the Writ.-In the present system of attachment, making little distinction between foreign and domestic, the requisites of the return are the same whichever is employed. The officer must report to the court when, and how, and what he has attached, without being obiiged to observe nicety or undue particularity. He must, however, substantially comply with the statute; and his description of the property must certainly identify it.4 It has been held that reference to the property attached under prior writs, and identifying it as the same property levied upon in the writ returned, is sufficient description. The writ may be quashed because of fatal defects in the return.6 X. Appearance of the Defendant. -The debtor, by "surrendering his body," does not now terminate the attachment proceedings. There is no significance in his mere "surrender," since the abolishment of imprisonment for debt. His entering bail for his personal appearance is no longer a satisfaction of the writ under which his property is attached. Giving security for the attachment defendant's claim is now the only way in which he can put an end to a valid proceeding and render the suit wholly a personal one. The debtor's appearance in the case against him, whether special or general, is subject to the ordinary rules governing litigants with respect to it; and, so far as those rules are peculiar to attachment causes, they are applicable to the foreign and the domestic alike. It would therefore be a useless lengthening of this article to enlarge on the subject of the defendant's appearance. Where distinction between foreign and domestic attachment is Atwood, 10 Ind. 322. 331; Hill 7. Faison, 1. Paine v. Farr, 118 Mass. 74: Bryan v. Trout, 90 Pa. St. 492; Moore v. Kidder, 55 N. H. 488; Nichols v. Patten, 18 Me. 231: Willard v. Sperry, 16 Johns. (N. Y.) 121; Moore v. Coates, 43 Miss. 225. 2. Banister v. Higginson, 15 Me. 73; Rowan v. Lamb, 4 Greene (Iowa), 468; Baldwin v. Conger, 17 Miss. 516. 3. Saunders v. Columbus, etc, Ins. Co., 43 Miss. 583; Tucker v. Byars. 46 Miss. 549; Pond v. Baker, 55 Vt. 400; Thompson v. Eastburn, 16 N. J. L. 100; Stodart v. McMahan, 35 Tex. 267. 4. Fenglein v. Cairo, etc., R. Co., 6 Mo. App. 580; Porter v. Pico, 55 Cal 165; Ela v. Shepard, 32 N. H. 277; Bryant v. Osgood, 52 N. H. 182; Carleton v. Ryerson, 59 Me. 438; Fullam v. Stearns, 30 Vt 443: Rodgers v. Bonner, 55 Barb. (N. Y.) 9; Hancock v. Henderson, 45 Tex. 479. 5. Description of Property in the Writ. —A writ of foreign attachment having been served, which contained a sufficient description of the property, the sheriff in subsequent writs described it as "the same property attached by me as the property of A by virtue of a writ of foreign attachment issued at the suit of B, the time and manner of service being stated in full by my return to said writ." Held. that this recital bound both the sheriff and his privies, the execution creditors, and subordinated their writs to the previous attachment. Jaffray's Appeal, 101 Pa. St. 583. 6. Defective Return." In a direct proceeding to set aside a foreign attachment, the court will quash or reverse where the sheriff has omitted to return a service on a person in possession of the land attached, or to make publication if the possession be vacant;" but such omission is not held fatal to a collateral proceeding to recover the land. Sterrett v. Howarth, 76 Pa. St. 438. The power of quashing the writ of foreign attachment is limited to proceedings that are irregular, defective, or improper." Steel v. Goodwin, 113 Pa. St. 288. |