NOTE TO CHAPTER 106.

SS 1679-1691 are C. L., §§ 939-947, §§ 949-952. §§ 1692-1693 are S. L., 1864, C. L., p. 277.

Cases in Hawaiian Reports: Kaaihue v. Crabbe, 3 Haw., 768; Coney v. Mamele, 4 Haw., 154; Kong Kee v. Kahalekou, 5 Haw., 548; Tregloan v. Bertelmann, 5 Haw., 603; Bankruptcy Ching On, 6 Haw., 287; Re Hobron, 6 Haw., 408; Bankruptcy On Chong, ↑ Haw., 377; Wundenberg v. Campbell, 9 Haw., 206; Kualana v. Yong Young, 9 Haw., 226; Cartwright v. Widemann, 9 Haw., 692; Henrique v. Paris, 10 Haw., 408; Widemann v. Thomas, 10 Haw., 366.

CHAPTER 107.

RECOVERY OF PERSONAL PROPERTY.

§ 1694. The plaintiff in action to recover the possession of personal property may, at the time of issuing the summons or at any time before issue being joined in such action, claim the delivery to him of such property, as provided in this chapter.

§ 1695. Where a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing:

1st. That the plaintiff is the owner of the property claimed (particularly describing it) or is lawfully entitled to the possession thereof. 2nd. That the property is unlawfully detained by the defendant. 3rd. That the same has not been taken for a tax, assessment, or fine pursuant to a statute, or seized under an execution or an attachment against the property of the plaintiff, or if so seized, that it is by the statute, exempt from such seizure.

4th. The actual value of the property.

§ 1696. The plaintiff or his attorney may thereupon, by an endorsement in writing upon the affidavit, or by other written request thereto attached, require the chief sheriff or his deputy, or the sheriff of the island where the suit is brought or his deputy, to take the property from the defendant: Provided, That no property shall be taken by virtue of this chapter beyond the jurisdiction of the court from which such process issues.

§ 1697. Upon receipt of the affidavit and notice, with a written undertaking executed by two or more sufficient sureties approved by the chief sheriff or by his deputy, or by such said sheriff or by his deputy, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit, for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, the chief sheriff or his deputy, sheriff or his deputy, shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody.

He shall also, without delay, serve on the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to him personally, if he can be found, or to his agent from whose possession the property is taken, or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion, or if neither have any known place of abode, by putting them in the nearest post-office, postpaid, and addressed to the defendant.

§ 1698. The defendant may, within two days after the service upon him, or his agent, as above provided, of a copy of the affidavit and undertaking, or if he be served with such copy upon an island other

than that upon which such action is commenced, within ten days after such service, give notice in writing to the chief sheriff, his deputy, sheriff or his deputy, at the seat of the court issuing the process therein, that he objects to the sufficiency of the sureties. If he fails to give such notice within the time specified, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties, or others in their place, shall justify as hereinafter provided; but where other sureties are substituted for the original there shall be a new undertaking.

§ 1699. The police officer approving the sureties as mentioned in section 1697, and their superiors, shall be responsible for the sufficiency of the sureties until the objection to them is either waived, as herein before provided, or until they justify.

§ 1700. The plaintiff's sureties, in case their sufficiency shall be objected to, as provided in section 1698, shall, within two days after such exception made, justify before a judge or clerk of some court of record, or before a district magistrate, in the manner hereinafter provided. If they or others in their place fail to so justify, the chief sheriff or sheriff must redeliver the property to the defendant on demand.

§ 1701. The manner of justifying shall be by making oath to the following facts, by each surety:

1st. That he is resident within the Territory (stating his place of residence) and is either a freeholder or a householder therein.

2d. That he is worth the amount specified in his undertaking to the defendant, over and above all debts and liabilities, in property unencumbered, and not exempt from sale under execution. To this end they may be examined by the judge, clerk, or justice, or by the defendant or his attorney, if present, concerning their sufficiency. The examination shall, in all cases, be reduced to writing and subscribed by the surety, if required by the defendant. The officer holding such examination shall certify the same and attach it to the written undertaking of the sureties.

§ 1702. Where the objection to the sureties is waived, as provided in section 1698, or if, after such objection having been made, the sureties or their substitutes shall justify as provided in section 1701, the chief sheriff or other officer having charge of the property taken from the defendant shall immediately deliver the same to the plaintiff.

§ 1703. In all suits brought in district courts under this chapter, the chief sheriff, his deputy, sheriff or his deputy, shall deliver the property, when taken, direct to the plaintiff.

§ 1704. If the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto, or of his right to the possession thereof, stating the grounds of such title or right, and serve the same on the chief sheriff, his deputy, sheriff or his deputy, such officer shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand upon him or his agent, shall indemnify such officer against such claim by a sufficient undertaking executed by two sufficient sureties, accompanied by their affidavit (if such officer require), that they are each worth double the value of the property as set forth in the affidavit of the plaintiff, over and above mortgage debts and other liens upon their property, and that they are householders or freeholders resident within the Territory.

§1705. At any time before the delivery of the property to the plaintiff the defendant may, if he do not except to the sureties of the

plaintiff, require the return thereof upon giving to the officer a written undertaking executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant.

If a return of the property be not so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, except where the property is claimed by a third party, as is provided in section 1704.

§ 1706. The chief sheriff or other officer shall file all notices, undertakings, and affidavits, and his proceedings thereon, in the court in which the action is pending, on or before the return day of the writ issued therein.

NOTE TO CHAPTER 107.

SS 1694-1706 are S. L. 1884, ch. 38.

Cases in Hawaiian Reports: Alau v. Everett, 7 Haw., 83; Peacock v. Collector, 8 Haw., 532; Ah Leong v. Kee You, 8 Haw., 416.

[CHAPTER 108.]

CHAPTER 109.

GARNISHEE PROCESS.

§ 1710. Whenever the goods or effects of a debtor are concealed in the hands of his attorney, agent, factor, or trustee, so that they can not be found to be attached or levied upon, or when debts are due from any person to a debtor, any creditor may bring his action against such debtor, and in his petition for process may request the court to insert therein a direction to the officer serving the same to leave a true and attested copy thereof with such attorney, agent, factor, or trustee, or at the place of his or their usual place of abode, and to summon such attorney, agent, factor, or trustee, to appear personally upon the day or term mentioned and appointed in said process for hearing the said cause, and then and there on oath to disclose whether he has, or at the time said copy was served had, any of the goods or effects of the defendant in his hands, and if so, the nature, amount, and value of the same, or is indebted to him, and the nature and amount of such debt; which summons and direction shall be signed and issued in the same manner as summonses are usually issued in civil actions, and shall be served by the officer according to such direction; and from the time of leaving such copy all the goods and effects in the hands of such attorney, agent, factor, or trustee, and every debt due from such debtor to the defendant, shall be secured in his hand to pay such judgment as the plaintiff shall recover, and may not be otherwise disposed of by such attorney, agent, factor, or trustee; and such notice shall be sufficient notice to the defendant to enable the plaintiff to bring his action to trial, unless the defendant be an inhabitant of this Territory, or has sometime resided therein, and then a like copy shall be served personally upon him, or left at his last and usual place of abode.

§ 1711. Such attorney, agent, factor, or trustee, upon his desire shall be admitted to defend his principal in such suit, and if judgment be rendered in favor of the plaintiff, all the goods and effects in the hands of such attorney, agent, factor, or trustee, and the debt

due from such debtor, or such part thereof as may be sufficient for that purpose, shall be liable to pay the same; and the plaintiff on praying out execution may direct the officer serving the same to make demand of such attorney, agent, factor, or trustee of the goods and effects of the defendant in his hands, whose duty it will be to expose the same to be taken on the execution, and also to make demand of such debtor for any debt or such part thereof as may satisfy said judgment as may be due to the defendant, and it shall be the duty of the said debtor to pay the same; and if such attorney, agent, factor, or trustee shall have in any manner disposed of the goods and effects of his principal which were in his hands when the copy of the writ was left with him, and shall not expose and subject them to be taken on execution, or if such debtor shall not pay to the officer, when demanded, the debt due to the defendant at the time the copy of the writ was left with him, such attorney, agent, factor, trustee, or debtor shall be liable to satisfy such judgment out or his own estate, as his proper debt, if the goods or effects or debts be of sufficient value or amount; if not, then to the value of such goods or effects or to the amount of such debt.

§ 1712. If the said attorney, agent, factor, or trustee or debtor fail to appear upon the day and hour of hearing named in the summons or writ above mentioned, or if, having appeared, he refuse to disclose upon oath whether he has goods or effects of the defendant in his hands, and their nature and value, or whether a debt is due from him to the debtor, and its amount, the case shall proceed to trial; and if the plaintiff recover a judgment execution shall issue at his request against the estate of such contumacious attorney, agent, factor, trustee, or debtor, for the amount of such judgment as his own proper debt, and the lawful costs: Provided, That if it appear on the trial that the goods and effects are of less value and the debt of less amount than the judgment recovered against the debtor, judgment shall be rendered against garnishees to the value of the goods or the amount of the debt, and if it appears that the garnishee has no goods or effects of such debtor in his hands, or is not indebted to him, then he shall recover his lawful costs; but if he appear and on oath disclose fully whether he has in his hands the goods or effects of or is indebted to the defendant, and it appears to the court that he has no such goods or effects, or is not so indebted, then judgment shall be given for him, and he shall recover his lawful costs.

§ 1713. It shall be lawful for any creditor who has obtained a judgment in any court to apply to the court or a judge thereof for a rule, order, or summons that the judgment debtor shall be orally examined before a judge of such court, or such other person as such court or judge, if of a court of record, shall appoint, as to any and what debts are owing to him; and the court or judge may make such rule or order for the examination of such judgment debtor and for the production of any books or documents, and the examination shall be conducted in the same manner as in the case of oral examination of witnesses under the chapter in that case made and provided.

§ 1714. It shall be lawful for a judge of any court, upon the ex parte application of such judgment creditor either before or after such oral examination, and upon affidavit by the judgment creditor or his attorney stating that judgment has been recovered and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owing or accruing from such third person (hereinafter called

the "garnishee") to the judgment debtor, shall be attached to answer the judgment debt, and by the same or any subsequent order it may be ordered that the garnishee shall appear before the judge to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor or so much thereof as may be sufficient to satisfy the judgment debt: Provided, That the judge may, in his discretion, refuse to interfere when from the smallness of the amount to be recovered, or of the debt sought to be attached or otherwise, the remedy sought would be worthless or vexatious.

§ 1715. Service of an order that debts due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee in such manner as the judge shall direct, shall bind such debts in his hands.

§ 1716. If the garnishee does not forwith pay into court the amount due from him to the judgment debtor, or an amount equal to the judg ment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, then the judge may order execution to issue, and it may be sued forth accordingly without any previous writ or process to levy the amount due from such garnishee towards satisfaction of the judgment debi.

§ 1717. If the garnishee disputes his liability, the judge, instead of making an order that execution shall issue, may order that the judgment creditor shall be at liberty to proceed against the garnishee by writ calling upon him to show cause why there should not be execution against him for the alleged debt or for the amount due to the judgment debtor, if less than the judgment debt and for cost of suit, and the proceedings upon such suit shall be the same as nearly as may be as upon a writ of revivor. Whenever it is suggested by the garnishee that the debt sought to be attached belong to some third person who has a lien or charge upon it, the judge may order such third person to appear before him and state the nature and particulars of his claim upon such debt, and after hearing the allegations of such third person under such order, and of any other person whom by the same or any subsequent order the judge may think fit to call before him, or in case of such third person not appearing before him upon such summons, the judge may order execution to issue to levy the amount due from such garnishee, or the judgment creditor to proceed against the garnishee as herein provided, and he may bar the claim of such third person or make such other order as he shall think fit, upon such terms in all cases with respect to the lien or charge (if any) of such third person and to costs, as he shall think just and reasonable.

1718. The taking of any goods or effects of any debtor, or the payment of any debt due him as aforesaid, or payment made by, or execution levied upon the garnishee upon any such proceeding as aforesaid, shall be a valid discharge to him as against the judgment debtor to the amount paid or levied, although such proceeding may be set aside or the judgment may be reversed.

§ 1719. Every such attorney, agent, factor, or trustee shall be paid his traveling fees and expenses for his attendance before any court under the provisions of this chapter, on the same scale and at the same rate as witnesses required by subpoena to attend on the trial of any civil suit in said courts.

§ 1720. Whensoever any person summoned as an attorney, agent, factor, or debtor of any defendant may be desirous of so doing, he may apply to the magistrate or any justice of the court from whom or which