Attachment

Attachment,1 in law, a process from a court of record, awarded by the justices at their discretion, on a bare suggestion, or on their own knowledge, and properly grantable in cases of contempt. It differs from arrest (q.v.), in that he who arrests a man carries him to a person of higher power to be forthwith disposed of; but he that attaches keeps the party attached, and presents him in court at the day assigned, as appears by the words of the writ. Another difference is, that arrest is only upon the body of a man, whereas an attachment is often upon his goods. It is distinguished from distress in not extending to lands, as the latter does; nor does a distress touch the body, as an attachment does. Every court of record has power to fine and imprison for contempt of its authority. Attachment being merely a process to bring the defendant before the court, is not necessary in cases of contempt in the presence of the court itself. Attachment will be granted in England against peers and members of parliament only for such gross contempts as rescues, disobedience to the sovereign’s writs and the like. Attachment will not lie against a corporation. The county courts in this respect are regulated by acts of 1846 and 1849. They can only punish for contempts committed in presence of the court (see Contempt of Court). Attachments are granted on a rule in the first instance to show cause, which must be personally served before it can be made absolute, except for non-payment of costs on a master’s allocatur, and against a sheriff for not obeying a rule to return a writ or to bring in the body. The offender is then arrested, and when committed will be compelled to answer interrogatories, exhibited against him by the party at whose instance the proceedings have been had; and the examination when taken is referred to the master, who reports thereon, and on the contempt being reported, the court gives judgment according to its discretion, in the same manner as upon a conviction for a misdemeanour at common law. Sir W. Blackstone observes that “this method of making the defendant answer upon oath to a criminal charge is not agreeable to the genius of the common law in any other instance”; and the elasticity of the legal definitions of contempt of court, especially with respect to comments on judicial proceedings, is the subject of much complaint.

Attachment of Debts.—It was suggested by the common law commissioners in 1853 that a remedy analogous to that of Foreign Attachment (see below) might be made available to creditors, after judgment, against debts due to their debtors. Accordingly, the Common Law Procedure Act 1854 enacted that any creditor, having obtained judgment in the superior courts, should have an order that the judgment debtor might be examined as to any debts due and owing to him before a master of the court. The rules and regulations under the Judicature Act 1873 retained the process for attachment of debts as established by the Procedure Act of 1854. On affidavit that the judgment was still unsatisfied, and that any other person within the jurisdiction was indebted to the judgment debtor, the judge was empowered to attach all debts due from such third person (called the garnishee) to the judgment debtor, to answer the judgment debt. This order binds the debts in the hands of the garnishee, and if he does not dispute his liability execution issues against him at once. If he disputes his liability the question must be tried. Payment by the garnishee or execution against him is a complete discharge as against the judgment debtor. These provisions were, by an order in council of the 18th of November 1867, extended to the county courts. By the Wages Attachment Abolition Act 1870 it is enacted that no order for the attachment of the wages of any servant, labourer or workman shall be made by the judge of any court of record or inferior court, and by the Merchant Shipping Act 1894 it is enacted that the wages of a seaman or apprentice are not subject to attachment.

In the United States attachment of debts is a statutory remedy accorded in most of the states in certain circumstances for the security of creditors, by the seizure by the sheriff of the debtor’s goods or the imposition of a lien upon his land, before judgment, and sometimes at the very commencement of the action. In some states it is only allowed in special cases, as when the debtor has absconded, or is a non-resident or guilty of fraud; in a few it may be had, as of right, at the commencement of ordinary actions. The common-law courts of the United States (by act of Congress) follow the practice in this regard of the state in which they sit. Such attachments (on mesne process) can generally be dissolved by the substitution of a bond with surety. The body can also be attached in most states on civil actions of tort (for a wrongful or negligent act to the damage of another), but not in actions on contract.

Foreign Attachment is an important custom prevailing in the city of London, whereby a creditor may attach money owing to his debtor, or property belonging to him in the possession of third parties. The person holding the property or owing the money must be within the city at the time of being served with the process, but all persons are entitled to the benefit of the custom. The plaintiff having commenced his action, and made a satisfactory affidavit of his debt, is entitled to issue attachment, which thereupon affects all the money or property of the defendant in the hands of the third party, the garnishee. The garnishee, of course, has as against the attachment all the defences which would be available to him against the defendant, his alleged creditor. The garnishee may plead payment under the attachment, if there has been no fraud or collusion, in bar to an action by the defendant for his debt or property. The court to which this process belongs is the mayor’s court of London, the procedure in which is regulated by the Mayor’s Court of London Procedure Act 1857. This custom, and all proceedings relating thereto, are expressly exempted from the operation of the Debtor’s Act 1869. Similar customs exist in Bristol and a few other towns in England and also in Scotland.

A Writ of Attachment enforces answers and obedience to decrees and orders of the High Court of Justice, and is made out without order upon an affidavit of the due service of the process, &c., with whose requirements compliance is sought. A corporation, however, is proceeded against by distringas and not by attachment. It was formerly competent to the plaintiff to compel the appearance of a defendant in chancery by attachment, but the usual course was to enter appearance for him in case of default. It is one of the modes of execution allowed for the recovery of property other than land or money.

Attachment of the Forest was the proceeding in the courts of attachments, Woodmote, or Forty Days’ courts. These courts have fallen into desuetude. They were held before the verderers of the royal forests in different parts of the kingdom once in every forty days, for the purpose of inquiring into all offences against “vert (greensward) and venison.” The attachment was by the bodies of the offenders, if taken in the very act of killing venison, or stealing wood, or preparing so to do, or by fresh and immediate pursuit after the act was done; else they must be attached by their goods. These attachments were received by the verderers and enrolled, and certified under their seals to the Swainmote, or Court of Justice-seat, which was the superior of the forest courts.

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1 “To attach” is first used in English in the legal sense of arrest or seizure, and the sense of “fasten to” is comparatively late. The Old French atachier, modern attacher, from which the English “attach” is derived, is from a word for a peg or nail, in English “tack,” which is found in many forms in Scandinavian and Celtic languages, and is ultimately connected with the root seen in Latin tangere, to touch. The Italian attacare, especially in the phrase attacare battaglia, to join battle, gave the French attaquer, whence the English “attack,” which is therefore by origin a doublet of “attach.”

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