of time, when the debtor has lost all the means of evidence, by which he can prove the satisfaction of them. Though the courts, therefore, presume payment upon debts upon which the Statute has run, yet, wherever it appears from a subsequent promise or admission of the debtor, that he has not paid the debt, (in some states the promise is required to be in writing,) it will be reviv ed, and commence from such promise or admission.

1. Times within which debts can be collected.—All actions of debt, founded upon any contract or liability (not under seal or witnessed) must be commenced within a stated number of years after the cause of the action, or the debtor is absolved by the Statute of Limitation. In all the Eastern, in New York and in most of the Middle and Western States, this time is limited to six years. In the other States the time varies from one to five years, except in open and current accounts existing between merchant and merchant. [See pp. 70 to 101.]

2. Exception of open and mutual accounts.—Where there are open and mutual accounts the cause of action is deemed to have accrued at the time of the last item proved in the account.

3. Case of defendant out of the State.—Where a person is absent from, or residing out of the state, at or after the time when any cause of action accrues, (and has not attachable property in it,) such absence is not counted as part of the time of limitation; nor is the time counted, during the continuance of a war between this country and that of an alien plaintiff.

4. Acknowledgment, or new promise.*—The statutes of Maine, Vermont, Massachusetts, New York, Indiana, Michigan, Iowa, Virginia, Missouri, Arkansas Texas, and California, require that any acknowledgment of indebtedness, to prevent the operation of the statute of limitation, shall be made in writing, and signed by

*If a person is under a legal obligation to do an act, and another person does it without his request, a subsequent promise to pay will be binding. Where the liability to be sued on a debt is suspended, either by the intervention of the law, or the provisions of a statute, a subsequent promise restores the liability. Thus a promise by a bankrupt after certificate, to pay an antecedent debt; or a promise by a person of full age to pay a debt contracted during infancy, revives the debt; but if the original security be altogether void, a subsequent promise will not revive it.

FOREIGN ATTACHMENT.

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the party chargeable thereby. In the other states, a verbal acknowledgment that the debt exists is sufficient to take it out of the operation of the statute.

5. Effects of part payment.-No memorandum or endorsement of any payment of principal or interest, made upon any note or other writing by or on behalf of the party to whom such payment purports to be made, shall be deemed sufficient proof of the payment to take the case out of the operation of the statute.

6. When actions can be brought on sealed contracts, &c. &c. All contracts under seal, promissory notes signed in the presence of an attesting witness, or any bill or note signed by a bank, or a judgment of court, are embraced by the general limitation, which varies in different states, from ten to twenty years.

7. Notes and bills of exchange.-With regard to these the statute begins to operate only from the time they are due, and not, in general, from the date,

TRUSTEE PROCESS, GARNISHEE PROCESS. THE object of the trustee process is to enable a creditor to attach the property of his debtor in the hands of a third person. It is very serviceable in avoiding fraudulent transfers of property made by the debtor for the purpose of concealing the same, and thus preventing it from being attached for his debts. This process, therefore, is very often resorted to, to test the fairness of assignments for the benefit of creditors.

There are three parties in a trustee process :-the plaintiff; the debtor, called the principal defendant; and the trustee, who is summoned to appear in the suit, upon the ground that he has in his hands, goods, effects, or credits, belonging to the defendant.

The service of a copy of the process on the trustee, fixes the property or debt in his hands, as a stakeholder for the party ultimately entitled; and if after that the trustee pays over to the debtor, he does so at his peril.

Who liable to be summoned as trustee, and what property is not attachable by this process.—As a general rule, every person having goods, effects, or credits of the defendant in his possession, may be summoned as

trustee, and the property in his hands will be held to respond to the final judgment.

There are, however, some exceptions to this, namely: First, Generally no person will be adjudged a trustee by reason of having drawn, accepted, made, or endorsed any negotiable instrument.*

Secondly, Nor by reason of any money or other thing received by him as sheriff, or other officer, by execution or other process in favor of the principal defendant. Thirdly, Nor by reason of any money in his hands for which he is accountable as a public officer.

Fourthly, Nor by reason of any debt due from him on a judgment, so long as he is liable to an execution on that judgment.

Fifthly, Nor by reason of any money or other thing due from him to the principal defendant, unless due absolutely, and without depending upon any contingency.

Proceedings in the case. If the trustee does not appear he is defaulted, and will be charged with having in his hands property of the defendant equal to the whole debt proved against the defendant. If the trustee appears, he must answer under oath, if required, as to the property, if any, of the defendant's, in his hands; and he will be charged or not upon his answers under oath, as the court shall decide.

If any person claims that the property in the trustee's hands is his property, and not that of the defendant, he may appear in court as claimant, and contest with the plaintiff his title to the property. In such case the defendant will be allowed to testify as to whom the property belongs.

Where the trustee is charged in a suit, the execution runs against the goods, effects, and credits of the defendant in the hands of the trustee. If he does not expose the property to the officer, or satisfy the execution, then a new writ, called a "scire facias," issues against him alone, requiring him to show cause why he should not pay the same, and if judgment is obtained, the execution will run against the person and property of the trustee.

*New Hampshire is an exception to this rule, (See page 71.)

PART II.

REMEDIES FOR THE RECOVERY OF DEBTS.

Of the Remedies of the Creditor, and Means of Enforcing Payment from his Debtor, in all the States of the Union, and in England and France.

COMMENCEMENT OF A SUIT AT LAW.

WHERE there is a debt owing, it is held that a creditor is not obliged to allege or prove any demand of payment before he brings his action; for bringing an action is technically said to be a sufficient request; for it is the debtor's duty to find out the creditor, and pay him his debt.

Whenever the plaintiff's right of action depends on a condition to perform some act or thing, he must prove that condition to be performed, unless it be prevented, or rendered idle, or unnecessary by the act of the defendant.

The attachment of property upon a writ is one of the most common and effectual means of securing a debt. The property attached is deemed to be in the custody of the law, and is to be retained by the officer for the purpose of satisfying the claim of the creditor, in case he shall obtain judgment in the suit, take out execution, and levy it upon the property in a limited time.

It is usual to annex a schedule of particulars to the writ, and refer to it in the declaration. But this is not necessary, though the want of such an exhibit might, probably, from a supposed want of notice, operate as a ground of continuance for defendant, on motion.

In all the New England States, and this is the case in most of the others, all civil actions must be commenced in the county where one of the parties resides.

Wherever the matter of the action is local, the plaintiff must sue in the county in which the cause of the action arises; but, where transitory, he may sue anywhere, unless some statute otherwise direct.

Where the Statutes of any State require that a contract or demand shall be supported by affidavit, and the plaintiff is not an inhabitant of the state, it may be taken and subscribed before a Commissioner of the State where plaintiff resides; it should specify the nature of the debt, the amount over and above all discounts and off-sets, and that the balance claimed is justly due, and the account correctly stated. In some states an indorser to the writ, in others a bond with sureties, is required of the plaintiff, who thereby becomes liable for costs, in case judgment is rendered in favor of defendant. [See Mode of Collecting Debts in different States, and also Forms of Affidavits, at pages 103-5.] If a person has obtained a judgment against another, for a certain sum, and neglects to take out execution thereon, he may afterwards bring an action of debt upon the judgmeut.

If the action is on a judgment of a court in another State, a copy should be produced, duly authenticated.

The action of assumpsit is the usual remedy on bills or notes. Prom

ises, either express or implied, by the law raise an assumpsit, for the infringement of which the more usual remedy is action upon the case on such assumpsit.

By the writ of capias ad satisfaciendum, (sometimes abbreviated ca. sa.,) the body of the debtor may be arrested, and, in some cases, imprisoned, until satisfaction is made for the debt, costs, and damages, or the debtor is bailed, or taxes the liberty of the yard, or the poor debtor's oath, or petitions for the benefit of the act of insolvency, or gives bond for the payment of the debt, or is discharged by statute. In most of the states imprisonment for debt is abolished except in cases of fraud.

Females are generally exempted from arrest for debts on contracts. By the writ of fieri facias, (sometimes abbreviated, fi. fu.,) the officer is commanded to attach the goods of the debtor, whether in his own possession, or in the hands of executors, administrators, trustees, (or garnishees,) always excepting those goods and lands exempted from execution by statute.

UNLAWFUL ATTACHMENT AND ARREST.

The sheriff cannot disunite anything annexed to the freehold, for the purpose of attaching it.

Nor can he attach goods pledged for debt; nor goods demised; or let for years.

Nor can he attach deeds; private papers; account books; promissory notes; liens; goods which cannot be returned in the same plight in which they were taken, such as green hides in a vat, fruit, &c.; the interest of a gratuitous bailee; goods in transit, as the property of the consignee; a boat, cable, or anchors in use and necessary for the safety of the vessel.

In some States perishable property can be attached, and may be sold pending the proceedings of the court.

Nor can he intermingle goods attached with those of the debtor, so that they cannot be distinguished.

Nor can he attach the household furniture, farmers' or mechanics' tools, or articles for the use of the family, which by law are exempted from attachment.

All the states exempt from execution a certain amount of the household furniture of the debtor for the use of his family, the tools of a mechanic necessary for carrying on his business; a certain number of sheep, swine, a horse, ox, cow hay, &c., varying in value from twenty dollars to several hundreds. Besides which, many of the states have enacted laws exempting Homesteads.

The absolute property of the goods attached must be in the debtor, in his own right; and therefore, if the sheriff take any other person's goods, though the debtor assure him they are his, he is a trespasser ; for he must, at his peril, ascertain whose goods they are.

Attached goods may be delivered to the debtor upon his depositing the appraised value in money, or giving a bond therefor.

The sheriff cannot take goods vested in trustees by a settlement before marriage for the benefit of the wife, as against the husband; nor where they are settled after marriage, in pursuance of entails before it; nor where she holds in her own right, by devise, &c. In case of execution against one of two partners, sell the individual moiety belonging to the defendant.

the sheriff can only

In the execution of a civil process, an officer is not at liberty to break open the outer doors or windows of a dwelling house; but he may enter peaceably, and may break open an inner door of the defendant, in order to take the goods or person. But it is said he cannot open a latch of the outer door; yet if the goods are in the house of a