$ 2685. continued the notice provided for by this act for hearings upon motions, Iarch 18 $12 and upon such hearing the judge shall determine and settle such objections, and if the transcript is determined to be incorrect the judge shall require such stenographer to correct the same according to the facts. If for any reason it shall be impracticable to make the testimony taken upon any trial a part of the record in the manner above provided, it may be inade part of said record upon bill of exceptions, as heretofore provided by law. The court stenographer shall be compensated for taking down such testimony, in the same manner as now provided by law for such services rendered during a term of court. Said stenographer shall also receive for transcribing such testimony the compensation now allowed by law, which shall be paid by the party having such notes transcribed.

SUB-SEC. 173. All writs of error and appeals shall be returnable on the first day of the next regular term of the supreme court, beginning not less than thirty days after the issuance of such writ or the allowance of such appeal, and all bills of exceptions shall be settled and signed, and all records in causes in which appeals are granted, or writs of error sued out, shall be perfected in the district courts at least thirty days before the beginning of the term of the supreme court to which such appeals and writs of error are returnable.

SUB-SEC. 174. The court stenographer, whenever he transcribes his notes, as provided for in the preceding sub-sections, shall make as many copies thereof as may be demanded, and he shall certify and file the same with the clerk of the court in the same manner as the original. Such copies, or any portion thereof, may be used by an appellant or plaintiff in error for the purpose of making up the record to be taken to the supreme court, and the clerk of the court shall receive compensation for certifying, but not for transcribing the same. The court may by rule, where not otherwise fixed by statute, fix the compensation of stenographers for such extra copies so filed with said clerk, which shall be paid for in advance, if demanded, by the party ordering the same, and the amount so paid for the original, and one copy of such transcript by the party ordering the same shall be taxed up as costs in the cause as well as the necessary cost of printing the transcript.

ARTICLE XI.

MISCELLANEOUS PROVISIONS.

SUB-SEC. 175. This act shall not apply to, or in anywise affect proceeding for habeas corpus, mandamus, prohibition or quo warranto, and shall not affect actions of replevin or writs of attachment, except as to the form of the action.

SUB-SEC. 176. All executions, writs of attachment and writs of replevin shall be returned within sixty days from the date of the delivery thereof to the sheriff or other officer or person whose duty it is, or who may be designated to serve the same, and the procedure under the same shall be the same as now provided by law.

§ 2685, continued. C. 73, L. 97, § 177:

SUB-SEC. 177. The justices of the supreme court, and until they act, the judges of the district courts, respectively, March 18. may make such rules as may be necessary and applicable to proceedings under the provisions of this act.

SUB-SEC. 178. Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law, with reference to the same matter, the rules of equity shall prevail.

Justices may make rules.

Rules: which to prevail.

Common law prac tice to prevail:

SUB-SEC. 179. The former practice in law and equity shall be retained in all cases and proceedings not comprehended when. within the terms and intent of this code.

SUB-SEC. 180. An act entitled, An act relating to forms of pleadings, approved February 7, 1889, and all other laws and parts of laws in conflict with this act are hereby repealed.

SUB-SEC. 181. This act shall go into effect on the first day of August next, after its passage, and it shall not be neces sary to change the pleadings in any cause now pending or brought before that date, but the procedure and practice in such cases shall thereafter be made to conform to this act as far as possible.

Act repealed.

To take effect: when.

ATTACHMENTS.

§ 2686. Creditors whose demands amount to one hundred dollars or more, may sue their debtors in the district court, by attachment, in the following cases to-wit:

First. When the debtor is not a resident of, nor resides in this territory.

Second. When the debtor has concealed himself, or absconded, or absented himself from his usual place of abode in this territory, so that the ordinary process of law cannot be passed upon him.

Third. When the debtor is about to remove his property or effects out of this territory, or has fraudulently concealed or disposed of his property or effects so as to defraud, hinder or delay his creditors.

Fourth. When the debtor is about fraudulently to convey or assign, conceal or dispose of his property or effects, so as to hinder, delay or defraud his creditors.

Fifth. When the debt was contracted out of this territory, and the debtor has absconded or secretly removed his property or effects into the territory, with the intent to hinder, delay or defraud his creditors.

Sixth. Where the defendant is a corporation whose principal office or place of business is out of this territory, unless such corporation shall have a designated agent in the territory, upon whom service of process may be made in suits against the corporation.

Seventh. Where the defendant fraudulently contracted the debt or incurred the obligation respecting which the suit is brought or obtained credit from the plaintiff by false pretenses. An attachment may issue on a demand not yet due in any case where an attachment is authorized, in the same manner as upon demands already due.

Spiegelberg vs. Hirsch & Co., vol. 4, page 129, W. C. Rep.
Waldo vs. Beckwith. vol. 1, page 97, N. M. Rep.

§ 2687. In all cases commenced by attachment issued on a demand or demands not yet due, it shall be sufficient for the plaintiff to file in the office of the clerk of the district court an affidavit and bond, as now required by law, but he shall not file in such office his petition or declaration until after said demand or demands shall become due. If such demand or demands become due during a term of the court from which the attachment issued, said plaintiff shall file his declaration within such reasonable time thereafter as may be fixed by the court; and if said demand or demands become due at any time when the court, from which the attachment issued, is not in session, said plaintiff shall file his declaration within twenty days after the last of such demands shall become due, unless the judge of said court shall, for good cause shown, enlarge said time, and after the declaration is filed, as herein before provided, the suit shall proceed the same as in ordinary

cases.

§ 2688. At the term to which any writ of attachment issued upon a demand not yet due, shall be made returnable, the defendant shall be required to appear generally in the case,

April 3.

Trial: procedure.

and he may put in his answer, without oath, denying the truth. 2 L. 84, § 1; of any material fact contained in the affidavit to which the plaintiff may reply, and thereupon a trial of the truth of the affidavit shall be had in the manner now provided by law. If upon such trial the issue is found in favor of the defendant, the attachment shall be dissolved, but such dissolution shall not abate the suit, and the defendant shall be held to be in court so that he may be ruled to plead to the plaintiff's declaration when the same is filed in the manner, and within the time hereinbefore provided.

Staab vs. Hirsch, vol. 2, page 425, W. C. Rep.

Torts: attachment may issue.

2689. Wherever an attachment may issue against the property of any person upon any debt or other action founded upon a writ of contract for the same causes, the attachment may also issue upon any action founded upon a tort or other action ex-delicto, this law shall apply to actions which have March 2. heretofore or may hereafter accrue.

L. 1882, chap. 5, § 1;

Attachment; pro

cedure.

§ 2690. A creditor wishing to sue his debtor by attachment, may place in the clerk's office of the district court of any county in this territory a petition, or other lawful statement of his cause of action, and shall also file an affidavit and bond; and thereupon such creditors may sue out an original attachment against the lands, tenements, goods, moneys, effects and credits of the debtor in whosesoever hands they $1; Sept. 22. 1846. may be.

Bennett et al. vs. Zabriski, vol. 2, page 8, N. M. Rep.

2691. The affidavit shall be made by the plaintiff, or some person for him, and shall state that the defendant is justly indebted to the plaintiff, after allowing all just credits and off-sets, in a sum (to be specified in the affidavit), and on what account, and shall also state that the affiant has good reason to believe, and does believe, the existence of one or more of the causes which, according to the provision of section two thousand six hundred and eighty-six will entitle the plaintiff to sue by attachment.

Bennett vs. Zabriski, vol. 2, page 176, N. M. Rep.

C. L. 1865, chap. 31,

Affidavit: substance of.

Id. § 3.

Bond, how to be executed: condi

§ 2692. The bond shall be executed by the plaintiff or some responsible person as principal, and two or more secur- tions. ities, residents of the territory, in a sum at least double the amount sworn to, payable to this territory, conditioned that the plaintiff shall prosecute his action without delay, and with effect, and refund all sums of money that may be adjudged to be refunded to the defendant, and pay all damages that may accrue to any defendant or garnishee by reason of this attachment or any process of judgment thereon.

Id. § 4.

Sureties shall be residents of terri

§ 2693. The securities on attachment bonds shall be residents of this territory, and shall acknowledge the execution tory. of such bond by them in the manner and before such officer as may be prescribed by law for the acknowledgment of 2: Jan. 3. conveyances of real estate.

§ 2694. The clerk shall judge of the sufficiency of the penalty and the security in the bond; if they be approved, he shall indorse his approval thereon, and the same, together with the affidavits and petition or other lawful statement of the

L. 1874, chap. 18, §

Bond; clerk to approve.

C. L. 1865, chap. 31.. cause of action, shall be filed before an attachment shall be $5: Sept. 22 1846. issued.

Bond; who may sue on.

Id. § 6.

Writs, how to be directed; command

of.

Id. § 7.

Writs; service of.

Judgment; how to be rendered.

Id. § 8.

Writs: service of.

As a citation.

Garnishees.

Title to lands.

Goods, etc., in custody.

Credits.

Id. § 9.

Garnishees: who to be summoned.

ld. § 10.

2695. The bond given by the plaintiff or other person in a suit by attachment may be sued on by any party injured in the name of the territory, and shall proceed as in ordinary suits, and shall recover such damages as he may sustain.

Holzman vs. Martinez, vol. 2. page 271, N. M. Rep.

§ 2696. Original writs of attachment shall be directed to the sheriff of the proper county, commanding him to attach the defendant, by all and singular, his lands and tenements, goods, moneys, effects and credits, in whosesoever hands the same may be found, with a clause of the nature and to the effect of an ordinary citation to answer the action of the plaintiff.

§ 2697. Original writs of attachment shall be issued and returned in like manner as ordinary writs of citation; and when the defendant is cited to answer the action, the like proceedings shall be had between him and the plaintiff as in ordinary actions on contracts, and a general judgment may be rendered for or against the defendant.

Spiegelberg vs. Sullivan, vol. 1, page 575, N. M. Rep.

§ 2698. The manner of serving writs of attachment shall · be as follows:

First. The writ or other lawful statement of the cause of action, shall be served on the defendant as an ordinary citation.

Second. Garnishees shall be summoned by the sheriff, declaring to them that he summons them to appear at the return term of the writ to answer the interrogatories which may be exhibited by the plaintiff, and by reading the writ to them if required.

Third. When lands or tenements are to be attached, the officer shall briefly describe the same in his return, and state that he attached all the right, title and interest of the defendant to the same, and shall moreover give notice to the actual tenants, if any there be.

Fourth. When goods and chattels, moneys, effects, or evidences of debt are to be attached, the officer shall seize the same and keep them in his custody, if accessible, and if not accessible, he shall summon the person in whose hands they may be as garnishee.

Fifth. When the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant that he attached in his hands all debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt, interest and costs, and summon such person as garnishee.

Smith vs. Montoya, vol. 1, page 152. W. C. Rep.

§ 2699. All persons shall be summoned as garnishees who are named as such in the writ, and such others as the officers shall find in the possession of goods, money or effects of the defendant not actually seized by the officer and creditors of the defendant, and also such as the plaintiff or his agent shall direct.

Zanz vs. Stover. vol. 2. page 29, N. M. Rep.