visions of section two of this chapter, and of section twentytwo in an action of tort.

SEC. 38. Upon filing such affidavit, said clerk shall issue Issue of writ. a writ of attachment, which writ shall recite the commencement of said action, and shall command the sheriff to attach so much of the lands, tenements, goods, chattels, moneys and effects of the defendant, not exempt from execution, wherever the same may be found in the county, as shall be suffi cient to satisfy the plaintiff's demand and safely keep the same to satisfy any judgment that may be recovered by the plaintiff in such action; and in case any property of the defendant is found and seized in said county, but not sufficient to satisfy the demand and costs, to attach other property of the defendant subject to attachment, sufficient with that seized within his county, to satisfy the demand and costs, wherever the same may be found within this State; and such writ of attachment may be made returnable in not less than fourteen nor more than thirty days from the issue thereof: Provided, That if the action be one of tort the provisions of Proviso, section twenty-two of this chapter shall be complied with.

action of tort.

SEC. 39. The subsequent proceedings by virtue of such Subsequent attachment, so far as the same are not herein provided for, proceedings. shall be the same as in suits commenced by attachment, so far as the same are applicable, except that no additional declaration shall be made necessary by such writ of attachment; and any judgment recovered in the action, in favor of the plaintiff, shall be conclusive against the defendant, Judgment who shall have been personally served with the original summons or declaration; and the execution issued thereon shall authorize the levying upon and selling of any property of the defendant so personally served, not exempt from execution, as well as the property attached, whether such attachment shall have been personally served or not.

conclusive.

dissolution of

SEC. 40. The defendant shall have the same right to pro- Effect of cure said attachment to be dissolved as in other cases; but attachment. the dissolution of such attachment shall have no effect on the proceedings other than to release the property attached.

bond for

SEC. 41. The bond to be given by the defendant for the dis- Defendant's charge of the property so attached, shall be in a penalty at discharge of least double the amount specified in the affidavit filed in the property. cause, as due to the plaintiff, and shall be conditioned for the payment of any judgment, which may be recovered by the plaintiff in the cause in which such writ of attachment is issued, within sixty days after such judgment shall be rendered; or in a penalty double the appraised value of the property attached, and conditioned that such property shall be produced to satisfy any execution that may be issued, on any judgment to be recovered by the plaintiff in said cause.

not to stay suit.

SEC. 42. The issuing of said writ of attachment, and the Attachment proceedings under and by virtue of the same, shall in no manner stay the proceedings commenced by the original sum mons or declaration, but the defendant may, aside from the

Attachment

against

foreign

corporation.

Action for

trespass on lands, etc., may be commenced by attachment.

proceedings made necessary by such attachment, proceed in the cause in the same manner as though no attachment had been issued.

SEC. 43. In suits commenced by attachment in favor of a resident of this State, against any corporation created by or under the laws of any other state, government or country, if a copy of such attachment, and of the inventory of property attached, shall have been personally served on any officer, member, clerk or agent of such corporation within this State, the same proceedings shall be thereupon had, and with the like effect, as in case of an attachment against a natural person, which shall have been returned served in like manner upon the defendant.

SEC. 44. In all cases where a party has a right of action for taking timber, the taking of timber, or other trespass on lands, or for any injury to lands, where the tort is waived and an action of assumpsit is brought therefor, the plaintiff may commence his suit by attachment against the property of the defendant as in other cases, and his affidavit for such attachment shall state the amount due him as near as may be, and the fact that the damages are unliquidated shall not prevent the bringing and maintaining of such writ.

Action for trespass on state lands.

Affidavit.

Writ of attachment.

Practice.

Action against itinerant venders.

Discharge of attachment.

SEC. 45. Whenever a cause of action shall have accrued to the State for any trespass committed upon any of the lands owned or held in trust, or otherwise, by the State; and whenever the prosecuting attorney, or any person duly au thorized to prosecute for such trespass, shall make an affidavit that any person, naming him, has committed such trespass on any of such lands, as he verily believes, and stating, as near as may be, the amount of damages occasioned thereby, and that he is either not a resident of this State, or has absconded therefrom, or is about to abscond, to avoid the service of process, and shall present the same to the clerk of the circuit court in which such lands are situate, a writ of attachment shall be issued, and such affidavit be attached thereto, as the commencement of suit against such alleged trespasser, in the same form, as nearly as applicable, as provided in this chapter, and all the provisions of this chapter, and the practice under the same shall be applicable to regulate the proceedings therein, and to make the same effectual.

SEC. 46. The right to bring action against itinerant venders by attachment in the manner and form provided for in section eleven of act one hundred ninety-one of the Public Acts of nineteen hundred one, is preserved.

SEC. 47. Any attachment on real estate shall be discharged upon the record thereof by the register of deeds in whose custody it shall be, whenever there shall be presented to him a certificate executed by the plaintiff, his personal representatives or assigns, or his attorney of record in said cause. duly acknowledged, specifying that such attachment has been removed or otherwise satisfied or discharged; or upon the

presentation to such register of deeds of the certificate of the circuit court for the county, signed by the clerk of said court and under seal thereof, certifying that it has been made to appear to said court that said attachment has been duly removed or otherwise settled.

Dissolution of Attachments.

SEC. 48. In all cases where a writ of attachment has been Application for or shall be issued and served under the provisions of law, it dissolution. shall be lawful for any defendant whose property may be attached by virtue of such writ, to apply to the judge of the circuit court or to the circuit court commissioner of the county where such writ issued, for a dissolution of such attachment; which application shall be in writing, and shall contain the reasons for such application.

plaintiff.

SEC. 49. Upon the presentation of such application, the Citation to judge or said commissioner shall issue a citation to the plaintiff in attachment, requiring him to show cause on a day and at a time and place in said citation to be named, before the said judge or commissioner, why the said attachment should not be dissolved, and the property be restored to the defendant in attachment.

citation.

SEC. 50. The citation shall be served three days at least Service of before the return day thereof, by delivering a copy thereof to the plaintiff in attachment (or to either of them, if there be more than one), if found within the county, and if not, then the same may be served upon the agent or attorney of the plaintiff, by the sheriff, either of his deputies, or any constable or other person authorized by such judge or commis sioner, and on the return day thereof, or at such other day thereafter as the judge or commissioner shall appoint for that purpose, he shall proceed to hear the proofs and allega Hearing. tions of the parties; and if said judge or commissioner shall be satisfied that such plaintiff had not a good and legal cause for suing out such writ, the said judge or commissioner may order such attachment to be dissolved, and the property at Dissolution of tached to be restored to the defendant, and may, at his discre. attachment. tion, require the said defendant to enter his appearance to the plaintiff's action prior to the dissolution of such attachment. SEC. 51. The judge or commissioner shall have full power Attendance of to issue subpoenas, and if necessary, attachments to compel the attendance of witnesses to testify in such cases, and may, in his discretion, require the party moving for such dissolution to give security for the costs of such proceedings; and may order the costs of such proceedings to be paid by the party against whom the decision shall be in the premises, and may issue execution therefor, returnable in sixty days from its date.

Appeal.

witnesses, etc.

circuit court.

SEC. 52. Either party conceiving himself aggrieved by the Appeal to determination, order or judgment of any circuit court com

Costs.

missioner under the provisions of this chapter, may appeal therefrom to the judge of the circuit court for the same county, and a return may be compelled, and the same proceedings shall be thereupon had as near as may be and with the like effect as in cases of appeal from judgments rendered before justices of the peace, and costs shall be awarded and collected in the circuit court in the same manner, and on perfecting the said appeal said attachment proceedings and the levy thereunder shall be held in the same condition and of the same force and validity as when said proceedings for a dissolution of said attachment were commenced, and the officer executing said attachment shall continue to have the same rights and duties under said attachment as regards the property attached as if said proceedings had never been commenced, and any order or judgment made by such commissioner dissolving said attachment shall have no force or effect to release the attached property from the attachment levy until the same shall be affirmed by the circuit judge, if appealed from, and no such order shall be issued in any case by any commissioner until the expiration of five days after the making of the same; and the said circuit judge shall also have full power and jurisdiction over said cause and proceedings to hear and determine the same and render judgment therein, as if the said proceedings had been originally commenced before the said circuit judge thereof.

When

CHAPTER XXVII.

Of the Action of Replevin.

SECTION 1. Whenever any goods or chattels shall have been replevin may unlawfully taken, or unlawfully detained, an action of rebe brought. plevin may be brought for the recovery thereof, and for the recovery of the damages sustained by such unlawful taking or detention, except in the cases hereinafter excepted.

When does not lie.

Idem.

How commenced.

Affidavit to be attached.

SEC. 2. No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute of this State.

SEC. 3. No replevin shall lie at the suit of the defendant in any execution or attachment, to recover goods or chattels seized by virtue thereof, unless such goods or chattels are exempted by law from such execution or attachment; nor shall a replevin lie at the suit of any other person, unless he shall, at the time, have a right to reduce into his possession the goods taken or detained.

SEC. 4. Actions of replevin shall be commenced by writ, which shall be in the form prescribed by rule of the supreme

court.

SEC. 5. Such writ shall not be executed in any case, unless the plaintiff in the action, or some other person having a knowledge of the facts, shall make and annex to the writ an affidavit, stating that the plaintiff in such action is then law

fully entitled to the possession of the property described in the writ; that the same has not been taken for any tax, assessment or fine, levied by virtue of any law of this State; nor seized under any execution or attachment against the goods and chattels of such plaintiff, liable to execution; and that such goods and chattels are unlawfully detained by the defendant in such writ.

executed.

SEC. 6. Upon the receipt of such writ, with the affidavit How writ herein before required annexed, the sheriff shall proceed to seize and take into his custody the property described therein, and for that purpose may break open any house, stable, outhouse or other building in which such property may be concealed, having first demanded deliverance thereof at the building or place where the same is concealed.

SEC. 7. The officer executing the writ shall cause the prop- Appraisal. erty so seized to be appraised by one or more disinterested persons, on oath to be administered by him, as soon as may be after the taking thereof on such writ.

SEC. 8. Before the officer shall deliver such property to the Bond to be plaintiff, such plaintiff or some one in his behalf, shall execute delivery of given before a bond to such officer and his assigns, with the addition of his property. name of office, with sufficient sureties, to be approved by such officer, in a penalty not less than one hundred dollars, and at least double the appraised value of such property; conditioned that the plaintiff will prosecute the suit to effect, and that if the defendant recover judgment against him in the action, he will return the same property, if return thereof be adjudged, and will pay the defendant all such sums of money as may be recovered by such defendant against him in the said action.

property, etc.

SEC. 9. If the plaintiff shall fail to cause such bond to be Failure to executed and delivered to the officer within twenty-four hours execute bond. after the appraisal of such property, or if the defendant or some one in his behalf, at any time before the delivery of the property to the plaintiff, shall execute a bond to such officer Bond for and his assigns, with the addition of his name of office, with production of sufficient sureties, to be approved by such officer, in a penalty not less than one hundred dollars, and at least double the appraised value of such property, conditioned that if the plaintiff recover judgment against him in the action he will produce and surrender the same property to the plaintiff, if such surrender be adjudged, and will pay the plaintiff all such sums of money as may be recovered by such plaintiff against him in the said action, the officer shall return the property to the same person from whom he took it; and the Return of property shall in no case be delivered to the plaintiff without property. the consent of the defendant in writing, until the expiration of forty-eight hours after the appraisal thereof, and notice of such appraisal shall be given to the defendant: Provided, Proviso, That if either party, before the delivery of the property by of property. the officer to the opposite party, shall make and present to such officer an affidavit, setting forth that the property replevied, or any part thereof, has an especial value to him that

especial value