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Foreign Attachment

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ATTACHMENT, FOREIGN. This is a judicial proceeding, by means of which a creditor may obtain the security of the goods or other personal property of his debtor, in the hands of a third per son, for the purpose, in the first instance, of enforcing the appearance of the debtor to answer to an action; and afterwards, upon his continued default, of obtaining the goods or property in satisfaction of the demand. The process in England is founded entirely upon local customs, and is an exception to the general law. It exists in London, Bristol, Exeter, Lan caster, and some other towns in England ; and a mode of securing the payment of a debt by a proceeding against the debtor's goods in the hands of third persons, strongly resembling the process of foreign attachment, with some modifications, and under different names, forms a part of the law of Scotland, Holland, and most Euro pean countries in which the civil law prevails. In Scotland this proceeding is called ARRESTMENT. Many remarks upon the Scotch practice of attaching property, called arrestment, will be found in the examination of Mr. Wil liam Bell, in Appendix D to the Fourth Report of the Common Law Commis sioners. In France a process of this kind exists under the name of saisie-arret ; the regulations respecting it are in the Code de Procedure Civile, Pattie I. livre 5. tit. 7, 557-582.

The custom of foreign attachment in London differs in no material respec from the same custom in other parts o England ; it is, however, much mon commonly resorted to in the lord-mayor' and the sheriff's courts of London, that in any other local courts. It is not a much in use at the present day as for merly ; of 389 actions tried in the lord mayor's court in London in seven years from 1826 to 1832, 201 were cases o attachment ; and in many instances veil large sums have been recovered in this manner. In the sheriff's court the case: of attachment have not been so The form of procedure is this :— The creditor, who is the plaintiff in the action, makes, in the first instance, an affidavit of his debt, which should be ac tually due, as it is doubtful whether an attachment can be made upon a contract to pay money at a future day. But it is not necessary that the debt should have been contracted within thejurisdiction. (5 Taunt. 232; 1 Brod. & Bing. 491.) The affidavit of debt having been made, an action is commenced in the usual manner; the only parties named in the first instance being the creditor as plain tiff, and the debtor as defendant. A war rant then issues, or is supposed to issue, to the officer of the court, requiring him to summon the defendant; upon this war rant the officer returns that the defendant "has nothing within the city whereby he can be summoned, nor is to be found within the same," and then the attach ment may be made. This return of non eat inventus to the process against the de fendant is of the very essence of the cus tom, and without it all the subsequent proceedings on the attachment would be invalid; in point of fact, however, where an attachment is intended, the officer never attempts to summon the defendant, or gives him any notice of the action, but merely makes his return to the warrant as a matter of course. After this return,

a suggestion is made, or supposed to be made, by the plaintiff to the court, that some third person within the city has goods of the defendant in his possession, or owes him debts, by which goods, or debts, the plaintiff requires that the de fendant may be attached, until he appears to answer to the action brought against him. The attachment is then effected by a notice or warning served by the oificer of the court upon the third party, who is called the garnishee, from an old French word gamier, or garniser (to warn), from whence garnise, or vulgarly garnishee (the person warned), informing him that the goods, money, and effects of the de fendant in his hands are attached to an swer the plaintiff's action, and that the garnishee is not to part with them without the leave of the court. After this warn ing, the effect of which is to secure the property in the hands of the garnishee, the process again returns, or ought to return, to the defendant, who must be publicly called and make default on four successive court-days, before any further proceedings can be taken against his goods. In practice, however, eo process is served upon the defendant either at this or any other stage of the proceeding ; nor is he ever in fact called,—notice of the action or the attachment being, according to the present practice, never actually given to him. After the four court-days have elapsed, the garnishee may be sum moned to show cause why judgment should not be given againt him for the goods or debt formerly attached in his hands. He then either appears and pleads, or he makes default; if he makes default, and the subject of the attachment is money, or a debt ascertained, the judg ment of the court is final in the first in stance, and execution may be issued at once for the sum demanded. But where the subject of the attachment is goods, a formal appraisement is made, under a pre iept from the court in which the action is pending, by two freemen, who are sworn For the purpose; and judgment is then Oven for the goods so appraised. It sometimes happens that the garnishee has .emoved the goods before appraisement; n which case the officer returns the fact D the court, and a jury is empanelled to nquire and assess the value of the goods vmoved ; and thereupon judgment and :xecution follow for the sum so assessed. But before execution can in any case sane against the garnishee, the plaintiff s required to enter into a 'zance rith two sureties, obliging himself to re nrn the money or goods taken under tba attachment, if the defendant appears in court within a year and a day, and dis proves or avoids the debt.

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