chattels, and effects, to the person in whom the property is so found by the inquisition; and such sheriff is not liable to any prosecution for having attached and taken the said goods, chattels, and effects, through ignorance or want of proper information. The above inquest is only had upon the claim of the party; and if the claimant do not request the sheriff to try the right and property in said goods, chattels, or effects, he may still have his remedy against the officer, as at common law, for the trespass committed by him in taking the goods, &c., of the real owner in an attachment against another party. But if the claimant prefer to adopt the statutory remedy, and have his claim tried by a jury summoned, as aforesaid, by the sheriff, he must exhibit and deliver to the officer such claim in writing, specifying the articles and property claimed, and request a jury to be summoned to try the right, and must agree also to be bound by, and submit to, the finding of such jury in the premises.

The sheriff or other officer presides at such inquests, administers the oath to the jurors and witnesses produced and admitted by him, and keeps a correct minute of the proceedings before him had, together with the inquest found by the jury, and the claim put in to the property attached, and files the same in the office of the clerk of the court out of which the attachment issued, there to remain of record. Notwithstanding the above provision for trying the right to property attached, the sheriff or other officer may, if directed so to do by the plaintiff in attachment, and if sufficiently indemnified, refuse to summon such jury, and may retain the goods, chattels, or effects, so attached, in his hands, to answer and abide the judgment of the court.

The sheriff, upon reasonable cause shown by either party, and upon such terms as he may judge proper, can adjourn such trial and hearing from time to time, as occasion may require. Thus much for the duty of the sheriff in serving the writ, and the mode of proceeding upon a trial of the claim. It will readily be perceived from the above statement of the law, that every facility is given the officer to discover the property and rights of the defendant, as also a sure protection and speedy trial to every person who may suffer by the ignorance of the sheriff or other officer, in taking that which belongs not to the defendant. We will now proceed to consider the next step in the progress of the suit, and it relates to

THE ACTION OF THE COURT, ON THE RETURN OF THE WRIT.

The court, on the return of the writ, is required to appoint three honest, discreet, and fit persons, to audit and adjust the demand of the plaintiff, and of so many of the defendant's creditors as shall have applied to the court for that purpose, or to the auditors, before they shall have made their report. And it is made the duty of the auditors, or any two of them, to ascertain the sum due to the plaintiff, and to each of the creditors aforesaid, and to make their report thereof in writing, under their hands, to the first or second term thereafter, as the case may require; which report is filed by the clerk, and at the third term (including the one to which the writ is returned) made absolute, and judgment entered thereon; but at each term the defendant must be thrice called in open court, and have made default; and every such calling and default must be entered by the clerk in the minutes of the court.

But if the defendant appear in any of the three terms aforesaid, and accept a declaration at the suit of every or any of the said creditors, and

enter into bond with one or more sufficient sureties, being residents in this state, (in case the attachment shall be issued out of the Supreme Court; and in case the attachment shall have been issued out of the Circuit Court or Court of Common Pleas,) then in the county, in which such Circuit Court or Court of Common Pleas shall be held, which bond shall be approved of by the court, and shall be given to the sheriff, for the time being, of the county, in case the attachment shall have issued out of the Circuit Court or Court of Common Pleas and to such sheriff as the court shall direct, in case the attachment shall have issued out of the Supreme Court, which bond is taken by said sheriff, in his own name, in double the amount of the personal property attached, conditioned for the return of the goods and chattels, rights and credits, moneys and effects, seized and taken by virtue of such writ of attachment, in case judgment shall be rendered for the plaintiff or plaintiffs; then the said writ of attachment, report, and all the proceedings thereon, shall, as to the suit wherein such bond was given, be set aside. And the sheriff must, in case of a breach of such condition, on application of the plaintiff or any applying creditor of the said defendant, assign the said bond to such person as the court shall direct, to be prosecuted for the benefit of the plaintiff or plaintiffs, and such creditors as shall have applied to the court or auditors.

As the attachment is for the benefit of all the creditors, whether resident in this state or any other, or whether the debt be due or not, it becomes the interest of all creditors to make application to the court or auditors, in due time to have their debts audited and allowed, in order to receive a distributive share of the debtor's estate and effects. Those creditors whose debts are not due, are compelled to make a rebate of interest for the amount they shall receive, to be computed from the actual payment thereof, to the time such debt would have become due. The next step which requires our consideration, is

THE DUTY OF THE AUDITORS.

After the judgment, all the estate and effects of the defendant pass into the hands of the auditors, who are bound to make such disposition thereof as the law directs. In the first place, as to the debts due from other persons to the defendant in attachment, and the recovery thereof by the auditors. And as to the recovery of the goods, chattels, or effects of the defendant in the hands of third persons, full provision is made by the law.

When judgment has been entered by default against the defendant, a scire facias may issue against the garnishee, (excepting where the plaintiff makes oath as before stated, and obtains a capias ad respondendum,) commanding him to appear at the next term after the entry of said judgment, and show cause why the plaintiff should not have execution of the money, so as aforesaid due from him to the defendant, and in his hands, or the value of the goods and chattels of the defendant, which were in the custody or possession of such garnishee at the time of executing the writ of attachment; and, if the said garnishee shall appear at the return of the said scire facias, and on oath or otherwise, to the satisfaction of the plaintiff, confess the amount of the debt due from him to the defendant, or the true value of the defendant's goods and chattels which were in his custody or possession, and tender the same to the plaintiff, and he accept thereof, then the said garnishee shall be, by the judgment of the court, acquitted

and discharged from the debt, or goods and chattels aforesaid, with costs: and if the garnishee, on being returned warned on the said scire facias, or on two writs of scire facias it be returned that he hath nothing whereby to be summoned, or could not be found in the county, shall not appear, confess and tender as aforesaid, then judgment shall be entered against such garnishee by default, and a writ of inquiry is awarded to the sheriff or other officer, to inquire and certify to the court, by the oath of twelve men, the amount of the debt due from such garnishee, or the value of the goods and chattels so in his custody or possession; and, on the return of that inquisition, judgment is entered against the garnishee for the sum so found and certified, with costs. But, if the garnishee appear at the return of the scire facias, and plead thereto that he hath no goods or chattels of the defendant in his custody or possession, either at the time of executing the writ of attachment, or at any time since, or that he was not indebted to the defendant, and the plaintiff, on trial, shall prove that he was indebted, then the jury must find for the plaintiff, and assess damages to the amount or value of said debt, goods, or chattels, with costs; and judgment shall be entered accordingly, and execution awarded against the goods and chattels, lands and tenements, and also against the person of the said garnishee; but if the jury find for the garnishee, then he recovers costs against the plaintiff, and has execution for the same.

When judgment on the report of the auditors is entered against the defendant by default, the said auditors, or any two of them, may, by virtue of an order of the court for that purpose, make sale and assurance of the goods and chattels, lands and tenements of the said defendant, which were attached and taken as aforesaid, or such part thereof as shall be necessary to satisfy the debts of the plaintiff and the creditors, who may have applied agreeably to law. And public notice of such sale is required to be put up in five of the most public places in the county, and be advertised in some one of the newspapers circulating in the state, for the space of thirty days prior to such sale. But no sale of lands and tenements is permitted to be made in less than eighteen calendar months from the time of executing the writ of attachment, nor of any goods or chattels, till judgment be obtained against the defendant, unless they be of a perishable nature, and then the court will, on the return of the writ, or at any other time before judgment, order the said auditors, or any two of them, to sell such perishable goods and chattels ; in which case, advertisements, set up for the space of five days prior to the time of the sale in four of the most public places in the township, precinct, or ward, shall be a sufficient notice.

When the goods and chattels, lands and tenements of the defendant are sold as above said, then it is the duty of the auditors, or any two of them, to cause public notice to be given in one or more of the newspapers circulating in this state, requiring a meeting of the plaintiff and such of the creditors as have applied agreeably to law, at a certain time and place in the said notice to be specified, which time must not be less than six nor more than ten weeks after such notice given, for the purpose of making distribution of the moneys arising from such sale. At which meeting, or other subsequent one, to be continued by adjournment, if necessary, the said auditors, or any two of them, shall distribute among the said plaintiff and creditors equally, and in a rateable proportion, according to the quantum or amount of their respective debts, as ascertained by said re

port and the judgment thereon, all the moneys arising from tne sale of the said goods and chattels, lands and tenements, first deducting legal costs and charges. And if the said moneys be not sufficient to satisfy the said debts, then the said auditors, or any two of them, must assign to the said plaintiff and creditors, the choses in action, rights and credits of the said defendant, in proportion to their respective debts; and that assignment vests the property and interest of the defendant, in such plaintiff or creditors, so as they may sue for and recover the same in their own name, and for their own use; and in such distribution and assignment, no preference is allowed to debts due on specialties. And the money so distributed, and the assignment so made, operates as a payment in whole or in part, as the case may be: and the auditors are required to make a report of such distribution and assignment to the court at the next term, in order that the same may be filed in the clerk's office.

Thus much as to the duty and the proceedings of the auditors in relation to the estate and effects of the defendant, which have come to their hands or knowledge; but as defendants can and do act fraudulently in secreting their estate and rights from the knowledge of the plaintiff and other creditors, it was necessary, of course, to provide some means beyond those usually adopted, for the better discovery of property and detection of such fraudulent practices.

For that purpose it is made lawful for the auditors, or any two of them, to issue their warrant under their hands and seals, commanding the sheriff of the proper county, or any constable in the same, to bring before them, at a certain time and place therein specified, the wife of such defendant, or any other person, and him or her, by word of mouth, or interrogatories in writing, to examine on oath or affirmation, (which the auditors, or any two of them, are authorized to administer,) touching all matters in relation to the trade, dealings, moneys, debts, effects, rights, credits, lands, tenements, property, and estate of the defendant, and his secret grants or fraudulent transfers or conveyances of the same: and if any person refuse to be sworn and examined touching any of the matters before mentioned, he is declared guilty of a contempt of the court which appointed the auditors, and may be proceeded against accordingly.

The auditors, or any two of them, are also empowered to issue their warrant, under their hands and seals, commanding the sheriff of the county, or any constable of the same, to break open (having first made demand and been refused) any house, chamber, door, room, shop, trunk chest, or other place or thing, where they shall have reason to believe any moneys, goods, chattels, books of account, bonds, bills, notes, papers, or writings of the said defendant may be deposited, secreted, had, or found; and to seize and inventory the same, and make report thereof to the court at the next term; and if any person resists the execution of the said warrant, he becomes guilty of a contempt of the court, and may be proceeded against accordingly. The next step for our consideration is

THE RIGHTS AND OBLIGATIONS OF THE CREDITORS.

Any creditor, whether a resident of New Jersey or not, is entitled to all the benefits of the attachment act; but, after having commenced his suit, he is not permitted to discontinue the same, without the consent of, or satisfaction made to, each of the said creditors, who shall have applied to the court, or auditors, as aforesaid.

Therefore it would seem (notwithstanding the attachment is for the benefit of all creditors, whether resident or not,) that if the plaintiff chose to discontinue the suit, before any other creditors had applied to the court or auditors, he would be at perfect liberty so to do; as the .consent to be obtained, and the satisfaction to be made, as a pre-requisite, is to be obtained of and made to, such creditors only, who have shown a disposition to appropriate to themselves the benefits of the act by applying to the court or auditors. If any creditor, whether his debt be due or not, neglect or refuse to apply to the court or auditors, in the manner prescribed by the act, he is not entitled to any dividend or distributive share; but all the moneys arising from the sale of the defendant's goods and chattels, lands and tenements, must be distributed among, and his choses in action, rights, and credits must be assigned to, such of the creditors as may have duly applied to the court or auditors. But no plaintiff, or other creditor, can receive any dividend or assignment, as aforesaid, until he shall have entered into bond to the defendant, with one or more sureties, being freeholders and resident in this state, to be approved of by the court or by the auditors, or any two of them, in double the sum so to be received or assigned, with condition that he shall appear to any suit that may be brought against him by the said defendant, within one year next after the date of the said bond, and shall pay unto such defendant any sum of money which, by the judgment or decree of the court, shall appear to have been received by him, and not due or owing, with costs of suit; which bond is filed with the clerk of the court, for the benefit of the said defendant. If the defendant die after the return day of the writ, the action does not thereby abate, but the same may be carried on to judgment; a sale, transfer, and distribution of the estate and effects of the said defendant may be made in the same manner as if such death had not intervened; and all the proceedings and deeds, which shall be had and made, in such case, are as good, valid, and effectual, in law, as if they were had and made in the lifetime of such defendant; and so also the bonds entered into by the several creditors to the defendant, as above mentioned, may, notwithstanding his decease, be prosecuted in his name to judgment and effect, in the same manner as if he were living.

The above contains a full statement of the laws of attachment against absconding and absent debtors, and the mode of proceeding in the three higher courts, excepting such minutiae and details of practice as it is deemed useless to mention. A short analysis of the proceedings before justices of the peace of the several counties, will complete all the law upon this subject.

PROCEEDINGS BEFORE JUSTICES.

Where the demand of the plaintiff does not exceed fifty dollars, every justice of the peace of any county can entertain suit by attachment, and is authorized to issue such writ, under his hand and seal, directed to a constable, who must execute the same, in the manner prescribed to the sheriff, on the effects, rights, and credits of the defendant; and if the creditor make sufficient proof of the debt due to him, and also of the effects, rights, and credits in the hands of the garnishee, the said justice must give judgment therein for the plaintiff, and award and issue his execution therefor to the constable, either against the effects of the defendant, or against the garnishee, as in other cases cognizable before a justice; but the effects of the defendant thereon taken, cannot be sold in less than three months (unless the same are perishable,) to the end that the debtor or his friend may re