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against the real estate attached as aforesaid; and the officer charged with the service of the execution, if he shall levy the same on such real estate, shall set up notifications of said levy, in three or more public places in the town where said real estate lies, for the space of three months after said levy, and before the same shall be exposed to sale, notifying all persons concerned of the levy and intended sale of said estate, that the owner thereof may have an opportunity to redeem the same; and he shall also notify said sale, by causing an advertisement thereof to be published, once a week, for the space of three weeks next before the time of such sale, in some newspaper in the county where said estate lies; and if no newspaper be printed therein, then in some one printed in Newport or Providence. But if no person appear to redeem the said estate, then the officer shall sell the same, or so much thereof as shall be sufficient to satisfy the judgment obtained, and the costs and charges, at public auction; and a deed thereof, by him given, shall vest in the purchaser all the estate, right and interest which the debtor had therein, at the time such estate was attached as aforesaid; and the surplus of the money that shall arise from the sale of said estate, after satisfying the execution and the costs and charges, shall be lodged in the general treasury for the owner thereof, and be liable to be attached for his other debts. And such sale shall be made under the execution levied thereon, although the return day thereof may have passed. And in all cases when execution shall be issued upon any judgment where real estate was not attached by the officer on the original writ, if no personal estate can be found, nor the debtor's body, the party obtaining judgment may cause execution to be levied on real estate in manner aforesaid.
SEC. 12. The return of any officer that the body of the defendant named in any writ of arrest, served by the attachment of goods and chattels or real estate, cannot be found within his precinct, or within this state, shall be prima facie evidence only, of such fact; which return may be rebutted by other evidence on issue joined upon such fact, in the suit in which such attachment shall be made: provided, however, that such fact shall be deemed and taken to be conclusively proved by a judgment for the plaintiff in said suit, whether the same shall be put in issue therein, or not.
SEC. 13. In all attachments of real estate or goods and chattels, and in all foreign attachments, he who first procures any such attachment to be made for any just debt or damages, shall be entitled to have his said debt or damages satisfied be
fore any other demand for which the same may be attached, or taken by execution, at the suit of any other person; and
all others in order of attachments.
And as divers attach
ments of the same real and personal estate may happen to be made on the same day, the officer who shall make any such attachment, whether of real or personal estate, or by service of a copy of a writ on any person or body corporate for attaching any estate in his or their hands, shall be obliged in his return to set forth the time of the day when such attachment was made, to the end that the priority of attachment may be known.
SEC. 14. The following shall be substantially the form of the deed to be given when real estate is attached and sold as aforesaid, viz:
To all people to whom these presents shall come,
Whereas, an execution against
at the suit of
was by me the said (here describe the premises,) and whereas on the all the estate, right, title, interest and property of the in the premises aforesaid, were by me the said sold at public auction, for the satisfaction of the said execution, to who was the highest bidder, for the sum of hath since well and truly paid Now know ye, that by force and virtue of the law in such case made and provided, I the said
which the said
me the said
tate, right, title,
in consideration of the sum of money paid unto me as aforesaid, do, by these presents, bargain, sell, assign and set over unto the said heirs and assigns forever, all the esinterest, property, freehold and inheritance of, in and to the said premises, and appurtenances at the time of the attachment thereof: To have and to hold the said premises and appurtenances to the said
of the said
heirs and assigns forever. In witness, &c.
Provided, however, that when the attachment shall have been made by original writ, the officer shall insert the time thereof, and vary his deed accordingly.
SEC. 15. Personal estate when mortgaged and in the possession of the mortgagor, and while the same is redeemable, may be attached on mesne process or execution against the mortgagor in the same manner as his other personal estate.
SEC. 16. When the attachment of such mortgaged estate is on mesne process, it may be sold upon the application of the mortgagee or of either of the parties to the suit, in the
same manner as by law provided for the sale of perishable goods and chattels, when attached on mesne process.
SEC. 17. Upon any such sale the attaching officer shall first apply so much of the proceeds of the sale as may be necessary to pay the amount for which the said property was mortgaged, with such deduction for interest for the anticipated payment or allowance for damages for such anticipated payment, as may be allowed by the court or judge directing the sale; and the officer shall hold only the balance, for the purposes of the attachment.
SEC. 18. When the attachment of such mortgaged estate is upon execution, it shall be sold as in cases of other attachments on execution; and the proceeds of the sale shall be applied to the payment of the amount due on the mortgage, with the deductions or damages above mentioned, to be ascertained and allowed by the court to which the execution is returnable; and the balance shall be applied to the payment of the amount due on the execution.
SEC. 19. The plaintiff in any such attachment may redeem the mortgaged estate in the same manner as the mortgagor might have done. And in case of such redemption, the plaintiff shall have the same lien on the property for the amount paid by him, with interest, as the mortgagee had.
SEC. 20. If the mortgage be not redeemed by the plaintiff or sold as before mentioned, before the time of redemption expires, the attachment shall become void.
SEC. 21. When any person shall reside or be absent out of this state, or shall conceal himself therein so that his body cannot be arrested, and when any incorporated company established out of this state, shall be indebted or liable to any person, then the personal estate of such absent or concealed person or foreign corporation, lodged or lying in the hands of their attorney, agent, factor, trustee or debtor, shall be liable to be attached, the plaintiff giving special order therefor on the back of his writ, to answer any just debt or demand; and the serving of any person or body corporate or any member of any firm or copartnership who have such personal estate in their hands, with a copy of a writ taken out against such absent or concealed person or foreign corporation, shall be a good service of said writ. Such writ shall be served by leaving an attested copy thereof with the person hereinafter required to make oath relative to the personal estate of the defendant intended to be attached thereby; and the person, corporation, firm or copartnership so served with a copy, shall be obliged to render an account upon oath, of what estate
they had of the defendant in their hands at the time such writ was served, if any, or otherwise to make oath that they had not, directly or indirectly, any such estate in their hands; which oath shall be made before the court to which such writ shall be brought, or before any justice of the supreme court, or any justice of the court of common pleas in the county where he on whom such copy shall be served dwells or corporation is located, and be filed in the clerk's office in the county where the action shall be brought, before the sitting of the court; and if such oath be made out of court, the plaintiff or his attorney shall be first notified by such justice of the time and place of taking the same; and, in all cases, the person so' making oath shall be subject to examination by either party to the suit.
SEC. 22. Whenever any body corporate within this state shall be served with a copy of a writ as aforesaid, it shall be the duty, if a bank, of the cashier thereof, if an insurance company, of the president or secretary thereof, and if any other corporate body, of the treasurer thereof, or person executing the duties of treasurer, to render an account, upon oath, of what personal estate said body corporate had in their hands or possession at the time said writ was served, if any, or otherwise that they had not, directly or indirectly, any such estate in their hands; which oath shall be made in the same manner as is prescribed in the preceding section of this act.
SEC. 23. If it shall appear by the account or oath of any -person or body corporate or by the account or oath of any member of any firm or copartnership served with a copy of a writ as aforesaid, that at the time of the service of said writ, such person, body corporate, firm or copartnership, had any of the personal estate of the defendant in their hands, then and in such case, the plaintiff, after having recovered judgment against such defendant, may bring his action against such garnishee, to recover so much as will satisfy such judgment with interest and costs, if there shall appear by said account to be a sufficiency for the same, otherwise for so much as shall appear by said account to be in his hands and if it shall appear that several garnishees had property of the defendant as aforesaid, then the plaintiff may sue each separately, and recover the amount in his hands, until such plaintiff receive full payment of his judgment against the defendant with interest and costs: provided always, that any garnishee, after final judgment against the defendant, may satisfy such judgment or any part thereof to the amount of the estate attached in his hands, before any suit shall be brought against him therefor.
SEC. 24. If any person, body corporate, firm or copartnership, after being served with a copy of any writ against any absent or concealed person or foreign corporation as aforesaid, shall neglect or refuse to render an account on oath as aforesaid, of what personal estate of the defendant they had in their hands at the time of the service of such copy, such garnishee shall be liable to satisfy the judgment that the plaintiff shall obtain against the defendant in such writ, to be recovered by special action on the case. If several garnishees shall neglect or refuse to render an account upon oath as aforesaid in the same case, then the plaintiff shall bring his action against all such garnishees, jointly, and in no other
SEC. 25. Any attorney, agent, factor, trustee or debtor, who shall be served with a copy of a writ against any defendant as aforesaid, shall have liberty to file an answer to such action and defend the suit in behalf and in the name of the defendant. In case any such action shall not be answered, and the defendant shall not return into this state before the return day of such writ, the court shall continue the action one term, and the defendant shall have a right to answer the same six days previous to the term to which such case shall be continued. If it shall appear by the oath of the person or body corporate or by the oath of any member of any firm or copartnership as aforesaid, who have been served with a copy of any writ as aforesaid, that they had not any of the personal estate of the defendant in their hands, then such action shall be dismissed, and the person who shall appear to defend said suit shall recover his costs.
SEC. 26. Every person, body corporate, firm or copartnership, served with a copy of a writ for attaching the estate of another in their hands, shall be paid all lawful costs and charges which they shall be at in consequence of their being served with such writ of attachment, by the person who brings the action; and so much of said charge as shall be judged reasonable by the court before whom the cause shall be pending, shall be allowed in the bill of cost.
SEC. 27. Whenever it shall appear by the oath of any person, or body corporate, or by the oath of any member of any firm or copartnership, served with a copy of any writ, as provided for by the twenty-first section of this act, that the personal estate in their hands belonging to the defendant in such action did not consist of money, but of one or more specific articles, it shall be lawful for such garnishee, after final judgment shall be rendered against the defendant, to surrender or