Proceedings in Civil Suits.

9. Proceedings in Civil Suits.

Imprisonment for debt.-Imprisonment for debt upon either mesne or final process, has been abolished in every instance except where, upon an issue submitted to them, a jury shall declare that the debtor has fraudulently concealed his property. (a)

The effect of this statute has been to render unnecessary the various provisions for the relief of insolvent debtors from impri

sonment.

Judgment and execution.-All judgments operate as liens from the date of their rendition upon the property of the defendant in the county in which they are rendered. In order to give to a judgment any operation as a lien upon the property of the defendant situate in other counties, an abstract of the same duly certified must be recorded in the office of the Circuit Court of such county. (b)

It is the duty of the clerk of the Circuit and Chancery Courts, within thirty days from the adjournment of any term, to enroll all judgments and decrees of such court in the order of time in which they may have been rendered; and the liens of such judg ments as between themselves shall take effect according to the priority of time in such rendition. (c)

The writ of fi. fa. runs against the lands and tenements, as well as the goods and chattels of the defendant. It cannot, however, be levied upon mere equitable interests, The aid of Chancery must be invoked to reach this species of interests. A summons of garnishment, may however, issue upon any judgment or decree, and be served upon any person suggested on the oath of the plaintiff to be indebted to the defendant, if such defendant or judgment debtor has no property or effects upon which levy can be made; and a garnishee thus summoned may be compelled to pay the amount due from him to such defendant or judgment debtor, whether the same be due on judgment or otherwise. (d) Execution may be taken out at any time within one year from

(a) Acts of 1840, 40. (b) Acts of 1841, 93. (c) Acts of 1846, 190. (d) Gray v. Hanly, 1 Smed. & M. 598.

Proceedings in Civil Suits.

the period of rendering a judgment, or the expiration of a stay of execution indorsed thereon. (a)

When the officer returns "no property found" on an execution, and the plaintiff suggests that the defendant has fraudulently conveyed his property, the question may be tried upon an issue made up before a jury, after serving a notice in the nature of a scire facias upon the person on whose hands is the property, and if such issue be found for the plaintiff, the property thus conveyed shall be subject to his execution. (b)

Where land is sold upon execution, the debtor or any other bona fide creditor, may redeem the same at any period within two years, on tendering to the purchaser the amount of the purchase money, with ten per cent. interest thereon, and all lawful charges.

Where an execution is levied upon personal property, and the debtor tenders the sheriff a bond with sufficient surety in a penalty double the amount of the debt, conditioned for the forthcoming of the same upon the day of sale, it is the duty of the officer to restore the property to the possession of the defendant. If the condition is broken, by a failure to deliver the property or discharge the debt, the bond, upon being returned to the court from which it issued, has at once the force and effect of a judgment, upon which execution at once issues against all the obligors, without the privilege being extended to any of them of executing a new forthcoming bond.

Besides the property usually exempted from execution, the debtor in Mississippi is entitled to retain his homestead; if in the country, one hundred and sixty acres of land, if in town, a house and lot to the value of one thousand five hundred dollars.

Courts. The organization of courts in Mississippi, is very similar to that in Virginia. There are County and also Circuit Courts held in each county, the former four times, the latter twice a year. The Circuit Courts have a general common law jurisdiction. All matters of equitable cognizance are confided to a Court of Chancery.

(a) McIntyre v. The Agricultural Bank, Freeman's Ch. 105; Money v. Dorsey, 7 Sm. & Mars. 15; ib. 630; ib. 657. (b) H. & H. 635.

7. EFFECT OF DEATH UPON THE RIGHTS OF CREDITORS.

8. PROCEEDINGS IN CIVIL SUITS.

1. Choses in Action.

Promissory notes are negotiable in the same manner, as are inland bills of exchange according to the custom of merchants. (a) The Tennessee statute is substantially a copy of 3rd and 4th Ann, chapter 9.

All bills, bonds, or notes for money, whether under seal or not, or whether expressed to be payable to order or for value received. or not, are negotiable, and may be transferred by indorsement in the same manner and under the same restrictions as promissory notes, and the indorser may maintain any action thereon, which could have been brought by the obligee or payee. (b)

The assignee of any bond with collateral condition, or of any bill or note for specific articles or the performance of any duty, may sue thereon, in his own name, at law or in equity. (c)

The holder of any bill of exchange, foreign or inland, promissory note, or writing obligatory, may institute a joint or several action against the makers and indorsers. (d)

Book accounts.-A creditor may in some cases prove a book

(a) Tennessee Digest 550. (b) Ib. 500. (c) Ib. 130. (d) Ib. 416.

Interest.

account, when it does not exceed seventy-five dollars, by his own oath. (a)

Rate of damages upon protested bills-Whenever any bill of exchange drawn or indorsed within the state, upon any persons or body corporate in any other state, or place, is returned unpaid with a legal protest, the holder may recover from the drawer or indorser of such bill, the damages hereinafter specified, over and above the principal sum for which the bill has been drawn, and the charges of protest together with lawful interest upon the amount of such principal sum, damages and charges of protest, from the time at which notice of such protest was given, and payment of the amount due demanded, viz.: where the bill is drawn upon any person within the United States, three per cent.: where it is drawn upon any person in any other place in North America, bordering upon the Gulf of Mexico, or in the West India islands, fifteen per cent.: where it is drawn upon any person in any other part of the world, twenty per cent. These damages are to be in lieu of interest and all other charges, except charges of protest, to the time when notice of the protest was given, and demand of payment made.

The entry of a notary on the protest, is prima facie evidence of notice of dishonor; and where such entry was not made, and the notary is dead, then a similar entry in his record book of protests, is to be taken as prima facie evidence of the fact. (b)

2. Interest.

Interest is allowed upon bonds, bills, notes, or bills of exchange, liquidated and settled accounts, signed by the parties, in the absence of any agreement to the contrary. Where an instrument is payable on demand, such demand must be made by the creditor or his agent before interest can be allowed. Securities for the payment and delivery of property and all specific articles bear interest as moneyed contracts; that is to say, the articles shall be valued by a jury at the time they become due, and interest shall be paid accordingly. The legal rate of interest is six per cent. per annum. If more than six per cent. is reserved, (a) T. D. 131. (b) Ib. 126.

Frauds. Limited Partnerships.-Limitation of Actions.

the defendant can only avoid the usurious excess, and the plaintiff may recover a judgment for the principal of his debt, with legal interest. (a)

3. Frauds.

The English statutes of 13th and 27th Elizabeth, against fraudulent conveyances, and also the statute of 29th Charles II. against frauds and perjuries, have been substantially re-enacted in Tennessee. The word "promise" is added to the last clause of the latter statute, in reference to the necessity of a writing. (b)

4. Limited Partnerships.

Limited partnerships for manufacturing purposes were authorized by act passed in 1842. The provisions of this law are similar to those already detailed. A special partner may however transfer his interest in the partnership by a deed in writing, acknowledged, or proved and registered, without producing the effect of a dissolution. (c)

5. Limitation of Actions.

Actions of account and upon the case, except such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, actions of debt for arrearages of rent, actions of detinue, replevin, and trespass, quare clausum fregit, within three years next after the cause of action accrues. (d)

The statute of limitations of 21 James I, chap. 16, sec. 3, is is in force in Tennessee, and bars any contract or lending without specialty in six years from the time the cause of action accrues. (e)

The same limitation applies to bonds, bills, and other securities made transferable by law, after their assignment or indorsement, as is applicable to promissory notes. (ƒ)

There is the usual saving in favor of infants, feme coverts,

(a) T. D. 406, 407. (d) T. D. 440.

(b) Ib. 350 to 353.

(e) Tisdale v. Munro, 3 Yer. 320.

(c) Acts of 1842, 149.

(ƒ) T. D. 441.