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Not to be verified.
If oral, an entry of their substance must be made in the docket.
The defendant may, at any time before answering, demur to the complaint.
The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or counter-claim, upon which an action might be brought by the defendant against the plaintiff in a Justice's Court.
If the defendant omit to set up a counter-claim in the cases just mentioned, neither he nor his assignee can afterward maintain an action against the plaintiff therefor.
When the answer contains new matter in avoidance, or constituting a defense or a counter-claim, the plaintiff may, at any time before the trial, demur to the same for insufficiency, stating therein the grounds of such demurrer.
The proceedings on demurrer are as follows:
1. If the demurrer to the complaint is sustained, the plaintiff may, within such time, not exceeding two days, as the Court allows, amend his complaint.
2. If the demurrer to the complaint is overruled, the defendant may answer forth with.
3. If the demurrer to an answer is sustained, the defendant may amend his answer within such time, not exceeding two days, as the Court may allow.
4. If the demurrer to an answer is overruled, the action must proceed as if no demurrer had been interposed.
Either party may, at any time before the conclusion of the trial, amend any pleading; but if the amendment is made after the issue, and it appears to the satisfaction of the Court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment must be granted. The Court may also, in its discretion, when an adjournment be rendered necessary, require as a condition to the
allowance of such amendment, made after issue joined, the payment of cost to the adverse party, to be fixed by the Court, not exceeding twenty dollars. The Court may also, on such terms as may
be just, and on payment of costs, relieve a party from a judgment by a default taken against him by his mistake, inadvertence, surprise, or excusable neglect; but the application for such relief must be made within ten days after the entry of the judgment, and upon an affidavit showing good cause therefor.
When a pleading is amended, the adverse party may answer or demur to it within such time, not exceeding two days, as the Court may allow.
The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment, in the following cases :
1. In an action upon a contract, express or implied, for the direct payment of money, where the contract is made or is payable in this State, and is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property; or if originally so secured, such security has, without any act of the plaintiff, or the person to whom such security was given, become valueless.
2. In an action upon a contract, express or implied, against a defendant not residing in this State.
In Justices' Courts the writ to attach the property of the defendant must be issued at the time of, or after issuing summons, and before answer.
Before issuing the writ of attachment the Clerk of the Court, or Justice, must require an affidavit by, or on behalf of the plaintiff, showing:
1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, over and above all legal set-offs or counter-claims) upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this State, and that the payment of the same has not been secured by any mortgage or lien upon any real or personal property, or any pledge of personal property; or if originally so secured, that such security has, without any act of the plaintiff, or person to whom the security was given, become valueless; or,
2. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, over and above all legal set-offs or counter-claims), and that the defendant is a non-resident of the State; and,
3. That the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant.
The Clerk or Justice must also require, before issuing the writ, a written undertaking, on the part of the plaintiff (in the Superior Court, in a sum of not less than two hundred dollars and not exceeding the amount claimed by the plaintiff; and in the Justices' Court in a sum not less than fifty dollars, and not more than three hundred dollars), by two or more sufficient sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking
The defendant may except to the sufficiency of the sureties.
The writ of attachment in Superior-Court actions must be directed to the Sheriff of any county in which property of such defendant may be; in Justice-Court actions to the Sheriff of any county in which the property of the defendant may be; or to the Sheriff or Constable in the county where the suit is
brought; and must require him to attach and safely keep all the property of the defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand—the amount of which must be stated in conformity with the complaint, unless the defendant gives him security, by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been, or is about to be, attached. Several writs may be issued at the same time to the Sheriffs of different counties.
The writ of attachment must be executed, without delay, by the Sheriff to whom it is directed :
1. Real property, standing upon the records of the county in the name of the defendant, must be attached by filing with the Recorder of the county, a copy of the writ, together with a description of the property attached, and a notice that it is attached, and by leaving a similar copy of the writ, description and notice with an occupant of the property, if there is one; if not, then by posting the same in a conspicuous place on the property attached.
2. Real property, or an interest therein, belonging to the defendant, and held by any other person, or standing on the records of the county in the name of any other person, must be attached by filing with the Recorder of the county a copy of the writ, together with a description of the property, and a notice that such real property and any interest of the defendant therein, held by or standing in the name of such other person (naming him), are attached; and by leaving with the occupant, if any, and with such other person or his agent, if known and within the county, or at the residence of either, if within the county, a copy of the writ, with a similar description and notice. If there is no occupant of the property, a copy of the writ, together with such description and notice, must be posted in a conspicuous place upon the property. The Recorder must index such attachment when filed, in the names both of the defendant and of the person by whom the property is held, or in whose name it stands on the records.
3. Personal property, capable of manual delivery, must be attached by taking it into custody.
4. Stocks or shares, or interest in stocks or shares of any corporation or company, must be attached by leaving with the President or other head of the same, or the Secretary, Cashier, or other managing Agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ.
ö. Debts and credits, and other personal property not capable of manual delivery, must be attached by leaving with the person owing such debts, or having in his possession, or under his control, such credits and other personal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant, or credits and any other personal property in his possession or under his control, belonging to the defendant, are attached in pursuance of such writ.
Upon receiving information, in writing, from the plaintiff or his attorney, that any person has in his possession, or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the Sheriff must serve upon such person a copy of the writ, and a notice that such credits or other property or debts, as the case may be, are attached in pursuance of such writ.
All persons having in their possession or under their control, any credits or other personal property, belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as above directed, shall be, unless such property be delivered up or transferred, or such debts be paid to the Sheriff, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied.
Any person owing debts to the defendant, or having in his possession, or under his control, any credits or other personal property belonging to the defendant, may be required to attend before the Court or Judge, or a Referee appointed by the Court