Attachment (law): Difference between revisions
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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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'''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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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}}, enforcement 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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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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'''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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== See also == |
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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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* [[Attachment of earnings]] |
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{{reflist}} |
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==Bibliography== |
==Bibliography== |
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*[Anon.] (1911) "[http://www.1911encyclopedia.org/Attachment Attachment]", ''[[Encyclopaedia Britannica]]'' |
*[Anon.] (1911) "[http://www.1911encyclopedia.org/Attachment Attachment]", ''[[Encyclopaedia Britannica]]'' |
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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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<br> |
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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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<references /> |
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{{law-term-stub}} |
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[[Category: |
[[Category:Civil procedure]] |
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[[Category:Legal history of England]] |
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[[Category:City of London]] |
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Revision as of 18:08, 6 February 2009
In law foreign attachment is a process whereby a creditor may attach money owing to his debtor, or property belonging to the debtor in the possession of third parties.[1]
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.[2] As of 2008[update], enforcement of money-judgments against third parties throughout England and Wales is governed by Pt.72 of the Civil Procedure Rules.[3]
Foreign attachment procedures have existed from time to time in Scotland, where is was known as arrestment, in France, where it was known as saisie arret, in the U.S and elsewhere.[2]
Historical London procedure
The person holding the property or owing the money had to be within the City at the time of being 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.[1]
References
Bibliography
- [Anon.] (1911) "Attachment", Encyclopaedia Britannica
- Brandon, W. (1861). A Treatise upon the Customary Law of Foreign Attachment: And the Practice of the Mayor's Court of the City of London. London: Butterworths. (Google Books)
- O'Hare, J. & Browne, K (2005). Civil Litigation (12th ed. ed.). London: Thomson. ISBN 0-421-90690-1.
{{cite book}}:|edition=has extra text (help)CS1 maint: multiple names: authors list (link)