justice thereof, who shall and may proceed thereupon as is herein. directed in the case of an attachment, returnable to the court of quarter sessions.

SEC. 10. And if any attachment returnable to the court of quarter sessions, or before a justice of the peace, shall be returned executed, and the goods and effects attached shall not be replevied, as this act directs, the plaintiff shall be entitled to a judgment for his whole debt, and may take execution thereupon; and all goods and effects attached and not replevied as aforesaid, 'shall be sold and disposed of for and towards the satisfaction of the plaintiff's judgment, in the same manner as goods taken in execution upon a writ of fieri facias; and where any attachment shall be returned served in the hands of any garnishee, it shall be lawful upon his or her appearance and examination in the manner by this act before directed, to enter up judgment and award execution against every such garnishee and garnishees, for all sums of money or tobacco due from him, her or them, to the person absconding, or in his, her or their custody or possession for the use of such person, or so much thereof as shall be of value sufficient to satisfy the debt and costs of the complainant; and all goods and effects whatsoever in the hands of any garnishee or garnishees belonging to such absconding person, shall be liable to satisfy such judgment,

IN FORCE FROM FIRST OF JANUARY 1797,

AN ACT to reduce into one the several acts for preventing vexatious suits, and regulating proceedings in civil cases: Approved December 19, 1796.- Litt. 496. SEC 16. When the sheriff or other proper officer shall return on any writ of capias, to answer in any civil action, that the defendant "is not found within his bailiwick,” (j) the plaintiff may sue out an alias or a pluries capias until the defendant shall be arrested; or if the suit has been commenced in a district court, a testatum capias where he shall be removed into another county, or may at his election sue out an attachment against the estate (k) of the defendant to force an appearance; and if the sheriff or other officer shall return that he hath attached any goods, (7) and the defendant

turnable to the circuit court is void.-Hawkins, &c. v. Commonwealth, 1 Mon. 146.

(j) A return by the sheriff that "the defendant is not found in his bailiwick" is the only return which can justify issuing an attachment; returning a copy left at the last place of residence of the defendant is insufficient.-Craig v. Saren, Har. 46.

(k) An attachment founded on a capias returned "not found," cannot be levied on land.Murray v. Hamilton, Har. 5.

(1) The sheriff's return on an attachment

VOL. I.

must be positive that the property levied on was the property of the defendant; a return that it was shewn to him as the property of the defendant is insufficient.-Irons v. Allen, Har. 44.

2. After the proper return on the capias an attachment against the estate may go, which being levied on the defendant's property, judgment may be taken.-Mason, &c. v. Anderson, 3 Mon. 294.

It must appear by the officer's return on the attachment, that the property seized belonged to the defendant.-Ibid.

22

defendant, and if levied, obtain judgment.

Goods at

tached to re

main in officer's hands until sold

If not enough,

execution may

issue for resi

due; and if too much, remain

der to be returned.

shall not appear and replevy the same, by entering his appearance and giving special bail, (in case he shall be ruled so to do) the plaintiff shall file his declaration, and be entitled to a judgment for his debt, or damages and costs; which judgment shall be final in all actions of debt founded on any specialty, bill or note in writing, ascertaining the demand, unless the plaintiff shall choose in any such case to have a writ of enquiry of damages; and in other cases the damages shall be settled by a jury sworn to enquire thereof. The goods attached shall remain in the hands of the officer until such final judgment be entered, and then be sold in the same manner as goods taken upon ficri facias; (m) and if the judgment shall not be thereby satisfied, the plaintiff may sue out execution for the residue; and in case more goods be attached than will satisfy the judg ment, the surplus shall be returned to the defendant.

1803.

Constables may levy at

tachments.

IN FORCE THREE MONTHS AFTER ITS PASSAGE.

AN ACT to amend and reduce into one, the several acts concerning Constables, and authorizing Coroners to summon a jury: Approved December 23, 1803.3 Litt. 131.

SEC. 13. And be it further enacted, That it shall be lawful for any constable to levy an attachment on the personal property of any person who is about to absent or conceal himself so that the ordinary process of law cannot be executed on such person; and the property so attached shall be delivered by the constable, as soon But must de- as may be, with his return upon the attachment, to the sheriff of liver property his county, whose duty it shall be to act with the same in every respect as if it had been attached by himself; and the constable shall be entitled to the fee for levying the attachment; and where compensation. attachments are levied by any constable, the justice before whom such attachment shall be tried, shall give judgment and award execution, on sufficient proof of the truth of the claim, or for any part thereof, subject to appeals as other cases tried on a warrant.

to sheriff.

Constable's

(m) It is erroneous to issue execution on a judgment obtained on an attachment under the above act until the property attached is first legally disposed of.-Craig v. Saven, Har. 46.

No order of court, however, is necessary to authorize a disposition of the attached goods.

The officer derives his authority from the attachment to attach the goods, and after judgment it becomes his duty without further direc tions or process to sell the attached effects in the same manner as by fieri facias.-Mason, &c. v Anderson, 3 Mon. 295.

1804.

IN FORCE THREE MONTHS AFTER ITS PASSAGE.

AN ACT amending the Attachment Law: Approved December 19, 1804.-3 Litt. 239.

SEC. 1. Be it enacted by the General Assembly, That it shall and may be lawful for any creditor, where his debt doth not exceed five pounds, to go before any justice of the peace of the county where his debtor resides, and make oath how much is justly due him, and that he has grounds to suspect, and verily believes that such debtor intends to remove his effects, or so to dispose of them as to evade the payment of the debt he owes him; and thereupon such justice shall issue an attachment against the estate of such debtor, returnable before himself or some other justice of the peace, directed to all constables and sheriffs in the commonwealth of Kentucky; and by virtue thereof, it shall be lawful, as well for the sheriff or any constable of the county where such attachment shall be obtained, as for the sheriff or any constable of other counties, to pursue and seize such effects, and make return of such attachment to some justice of the peace of the county where such attachment shall be levied; and thereupon such proceedings shall be had as in other cases of attachment.

When and how attachments to issue

where debt is under £5, and proceedings thereon.

Plaintiff must

SEC. 2. Be it further enacted, That any person ob'aining an attachment as aforesaid, shall give bond and security, with the justice give bond, &c. from whom it may be obtained, as in other cases of attachments. And in all cases the property so attached may be replevied by the debtor or agent, by giving bond and sufficient security to the officer attaching the same.

AN ACT to amend the Law regulating Attachments: Approved November 22, 1821.-Session Acts, p. 262.

Be it enacted by the General Assembly of the Commonwealth of Kentucky, That all acts or parts of acts giving to the plaintiff or plaintiffs in suits by attachment against absconding debtors, costs of suit against the garnishee or garnishees summoned under and by virtue of such attachment, shall be, and the same are hereby repealed.

Property may be replevied.

No costs to be recovered against garnish

ees.

TITLE 14.

ATTORNEY GENERAL.

1798.

IN FORCE FROM ITS PASSAGE.

AN ACT to amend the act entitled "an act establishing the Court of Appeals and for other purposes:" Approved December 20, 1798.-2 Litt. 226.

SEC. 3. And be it further enacted, That in all cases of judg On manda- ments or decisions of the district courts, or general court, on mandamus, where the muses, where the rights, interests, or claims of the commonwealth rights of commonwealth in- may be involved or implicated, it shall be the duty of the attorneyvolved, attorney general to examine into the same, (a) and if in his opinion, the said general may take appeal. rights, interests or claims are injured or impaired by the said judgments or decisions, to take an appeal therefrom to the court of apNo security peals; which appeal, the said district courts, or general court, are to be required hereby directed to grant, upon the application of the attorney-genfor prosecution eral, without requiring security from any person for the prosecution

thereof.

thereof.

So much of every act or acts as comes within the purview of this act, shall be, and the same is hereby repealed.

(a) By the above act, it is made the duty of the attorney-general to examine into all cases of mandamuses in the inferior courts, where the rights or claims of the commonwealth may be involved, and to prosecute appeals from decisions upon them, where he deems it advantageous to the state to do so. By an act of 1798, he is made the official counsellor of the auditor, (see title Auditor,) and by an act of 1799, he is required to advise the register. By an act of 1802, he is required to attend the court of appeals, general court, and federal court for the Kentucky dis

trict, as counsel for the commonwealth; and to give counsel to the different officers of government, when called on for that purpose, as theretofore. His obligations to the commonwealth extend no farther. It is not his duty to prosecute criminals in the circuit courts. His appearance in defence of persons prosecuted in the circuit courts, is not incompatible with his official obligations to the commonwealth.-Sharpe's Adm’x. v. Kirkendall, 2 J. J. Mar. 150.

2. See note (i) page 132, ante, title Ap peals and Writs of Error.

1799.

IN FORCE FROM ITS PASSAGE.

AN ACT concerning the Register: Approved December 18, 1799.-2 Litt. 274. Be it enacted by the General Assembly, That it shall be the duty of the attorney general, for the time being, on the application of the register of the land-office, to give his advice and direction in all cases new and difficult, which may arise in conducting the business of the said office; and such counsel shall be taken in writing, and filed in the office of said register, and be his complete indemnity in all proceedings in conformity thereto.

1802.

Duty of attorney general to give advice to the register.

IN FORCE FROM ITS PASSAGE.

AN ACT to amend an act entitled "an act to establish the circuit courts:" Approved December 24, 1802.-3 Litt. 85.

SEC. 1. Be it therefore enacted, That hereafter it shall be the duty of the attorney general to attend the court of appeals, general court, and federal court for the Kentucky district, as counsel for the commonwealth, and shall give counsel to the different officers of government when called on for that purpose as heretofore; and the said attorney general shall receive for his services [the sum of four hundred dollars] annually out of the public treasury, in lieu of the former salary allowed him by law, to be paid quarterly.

1825.

IN FORCE FROM ITS PASSAGE.

AN Act further to regulate the collection of debts due this Commonwealth: Approved December 17, 1825.-Session Acts, p. 78.

SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That from and after the passage of this act, that it shall be, and it is hereby declared to be the duty of the attorney general to collect, by suit in the general court, all debts, dues and demands owing to the Commonwealth of Kentucky, except debts due the bank of the Commonwealth, or for the sale of the vacant lands of the Commonwealth.

[NOTE. For reference to various acts in which duties are assigned to the Attorney General, see INDEX, head ATTORNEY GENERAL.]