Attachment (law): Difference between revisions
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'''Attachment''' is a legal process by which a [[court]] of law, at the request of a [[creditor]], designates specific property owned by the [[debtor]] to be transferred to the creditor, or sold for the benefit of the creditor.<ref name="eb">[Anon.] (1911)</ref> A wide variety of legal mechanisms are employed by debtors to prevent the attachment of their assets. For example, a declaration of [[bankruptcy]] will severely limit the ability of creditors to attach the property of the debtor.{{Fact|date=February 2008}} Many juristictions have a [[homestead exemption]] or other property exemptions which limit the ability of creditors to attach the debtor's primary residence, vehicle, and/or personal effects.{{Fact|date=February 2008}} |
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In [[law]] '''foreign attachment''' is a process whereby a [[creditor]] may [[attachment (law)|attach]] money owing to his [[debtor]], or property belonging to the debtor in the possession of third parties.<ref name="eb">[Anon.] (1911)</ref> |
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Where the attachment is against property in the possession of, or owed by, a third party, the process is sometimes known as [[foreign attachment]].<ref name="eb"/> |
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Historically, it prevailed as a custom of the [[City of London]]. Though the custom did not apply throughout [[England and Wales]] in general, similar customs existed in [[Bristol]], [[Exeter]] and [[Lancaster, Lancashire|Lancaster]].<ref name="brandon1">Brandon (1861) ''pp''1-2</ref> {{As of|2008}}, enfocement of money-[[judgment]]s against third parties throughout England and Wales is governed by Pt.72 of the [[Civil Procedure Rules]].<ref>O'Hare & Browne (2005) ''pp''580-585</ref> |
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'''Foreign attachment''' procedures have existed from time to time in [[Scottish law|Scotland]], where is was known as ''arrestment'', in [[French law|France]], where it was known as ''[[saisie arret]]'', in the [[Law of the United States|U.S]] and elsewhere.<ref name="brandon1"/> |
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==Historical London procedure== |
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The person holding the property or owing the money had to be within the City at the time of being [[service of process|served]] with the process, but all persons were entitled to the benefit of the custom. The [[plaintiff]] having started the action, and made a satisfactory [[affidavit]] of his [[debt]], was entitled to issue attachment, which thereupon affected all the money or property of the [[defendant]] in the hands of the third party, the [[garnishee]]. The garnishee had all the defences which would be available to him against the defendant, his alleged creditor. If there had been no [[fraud]] or collusion, the garnishee could plead payment under the attachment. The court to which this process belonged was the [[Lord Mayor's Court]], the procedure of which was regulated by the [[Mayor's Court of London Procedure Act 1857]]. This custom, and all proceedings relating to it, were expressly exempted from the operation of the [[Debtor's Act 1869]].<ref name="eb"/> |
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==References== |
==References== |
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*{{ cite book | title=A Treatise upon the Customary Law of Foreign Attachment: And the Practice of the Mayor's Court of the City of London | url=http://books.google.co.uk/books?hl=en&id=c400AAAAIAAJ&dq=foreign+attachment+brandon&printsec=frontcover&source=web&ots=KTUU8iJ2cC&sig=t19XRCXk7f88kfdw0FZY4ZO4xvU | author=Brandon, W. | year=1861 | publisher=Butterworths | location=London }} ([[Google Books]]) |
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*{{ cite book | author=O'Hare, J. & Browne, K | title=Civil Litigation | edition=12th ed. | publisher=Thomson | location=London | year=2005 | id=ISBN 0-421-90690-1 }} |
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[[Category:Judicial remedies]] |
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[[Category:Legal history of England]] |
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[[Category:City of London]] |
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Revision as of 12:24, 28 December 2008
Attachment is a legal process by which a court of law, at the request of a creditor, designates specific property owned by the debtor to be transferred to the creditor, or sold for the benefit of the creditor.[1] A wide variety of legal mechanisms are employed by debtors to prevent the attachment of their assets. For example, a declaration of bankruptcy will severely limit the ability of creditors to attach the property of the debtor.[citation needed] Many juristictions have a homestead exemption or other property exemptions which limit the ability of creditors to attach the debtor's primary residence, vehicle, and/or personal effects.[citation needed]
Where the attachment is against property in the possession of, or owed by, a third party, the process is sometimes known as foreign attachment.[1]
Bibliography
- [Anon.] (1911) "Attachment", Encyclopaedia Britannica
References
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