A Treatise on the Law of Attachment and Garnishment: With an Appendix Containing a Compilation of the Statutes of the Different States and Territories Now in Force Governing Suits by Attachment, Volume 1

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Sumner Whitney & Company, 1886 - Attachment and garnishment
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Contents

Order of priority between attaching creditors
75
Right of attaching creditor to attack fraudulent conveyances or assign ment
78
To what extent attachment satisfies the debt
81
Attaching creditors rights affected by legislation 36 Rights of defendants coowners in attached property
82
General remarks 39 The different kinds of jurisdiction and methods by which it is conferred 40 Order of treatment of jurisdictional questions
87
Facts necessary to authorize the issue of the writ
93
The issue of the writ
96
Levy of attachment and officers return 44 How jurisdiction of the person of defendant is obtained 45 The statutory substitute for personal service c...
98
Collateral attack upon judgments for want of jurisdiction 47 How want of jurisdiction should appear to render the judgment void CHAPTER
106
CHAPTER IV
109
PARTIES TO THE ACTION
110
THE AFFIDAVIT
111
General requisites of the affidavit when prescribed ty statute 5i Substantial and literal defects or omissions 57 Omissions that utterly nullify the affida...
118
The affiant
126
Certainty of statement required when affidavit made by plaintiff
128
By whom oath administered
131
Entitling affidavit Names of parties 62 Relative time when affidavit should be made
133
Filing the affidavit 64 The general contents of the affidavit
135
The nature of the demand
138
The amount sued
139
Whether the demand is due or to become due 68 The justice of the demand
142
That the action is not to vex or harass the debtor nor to hinder delay or defraud his creditors
143
That defendant has attachable property
144
That plaintiff holds no valuable security by mortgage lien or pledge 72 Waiver of defects and amendment of affidavit
147
The effect upon the action of insufficient affidavit CHAPTER Vn JUDICIAL CONSTRUCTION OF STATUTORY GROUNDS OF ATTACHMENT
151
49
152
The grounds of attachment set forth in the affidavit 75 Nonresident debtors S 76 What constitutes nonresidence 77 Circumstances from which chan...
154
50
169
Manner in which absconding should be alleged 87 The effect of residence in Axing thecharacter of absconding debtors
185
Absence 1
191
Removal of property from the State
194
Disposing of transferring assigning or secreting property
195
The grounds should bo alleged distinctly 94 Positive statement of grounds
201
Evidence of disposal etc of effects
202
The intent to hinder delay or defraud
203
Evidence of fraudulent intent
207
Debts fraudulently contracted
210
Obligations criminally incurred 100 Failure to pay for an article on delivery according to contract
212
ATTACHMENT BONDS 102 The object of the bond 103 Conformity to the governing statute 104 Formal requisites Date Seal AttestingFilingEntitl...
215
Execution of the bond by an agent
221
Obligees
223
Description of parties in the bond
224
The sureties Their qualifications and sufficiency
225
Conditions of the bond
227
The penalty of the bond
229
Approval of the bond
231
Failure to give bond How taken advantage of 114 Insufficient and defective bonds
232
Amendment of defective and insufficient bonds
234
Objections to bond When waived
235
Discharge of attachment bonds
236
CHAPTER IX
237
Formalities essential to the writ
240
To whom issued To several counties simultaneously 123 Amendment and waivers of defects
242
CHAPTER X
245
Value of property attached 128 Time of making levy
251
Manner in which levy made upon tangible personal property
254
Means of gaining possession Fraudulent levy
258
Duty of the officer to levy
260
The levy should be on the debtors property 133 Possession as evidence of ownership
263
The debtors chattels intermingled with those of tHrd party 135 Levy on property of which defendant is tenant in common or joint tenant
268
Levy on perishable property
269
Levy on mortgaged property f 138 Levy on property of defendant exempt by statute
270
Rights of officer acquired by levy
272
Form of officers return
274
Date of levy
275
ATTACHMENT BEFORE MATURITY OF DEMAND 161 Right to attach depends on the governing statute 162 Necessary grounds of attachment ...
296
Continued possession by officer necessary to perpetuate the lien
299
Temporary interruption of continuity of possession
301
Possession must be open and exclusive
303
Must be a valid levy to render possession of the property effectual 168 Officers control terminates with the lien 109 Custody continues after expirati...
305
Custody by agent
306
Effect of receipt to bind the bailee
308
Effect of approval of receipt by the creditor
311
Extent to which receipt operates by way of estoppel
312
Defendants title disputed by receiptor
315
Officer has special property in goods attached
317
Means of devesting officers special title prior to Judgment
320
Rights of keeper of attached chattels
322
Custody of attached property after judgment
323
The demand
326
The demand made of the bailee 181 The expenses of custody
330
BONDS FOR THE RELEASE OF ATTACHED PROPERTY 182 The classes of bonds that discharge attached property from custody Bail Bonds 18...
332
Parties to the bond
338
Bonds not in conformity to the statute
341
At what time the bail bond may bo given 189 Grounds upon which sureties are released from liability
342
Other defenses to the action on the bond
346
CHAPTER XV
366
CHAPTER XVI
428
Officers liability for the sale on execution 247 Officers liability for acts of deputy
464
The officers indemnity
465
ATTACHMENT OF REAL ESTATE 5 249 Method of attaching real estate prescribed by statute General rules 250 Manner of making the levy 251...
469
The kinds of personal property subject to attachment
490
8errice by publication General remarks
506
The order of publication
514
Levy essential to give effect to publication
520
CHAPTER XX
527
Trial of traverse
534
CHAPTER XXI
544
By whom objections may be raised
546
Insufficiency of the affidavit
547
Defects and insufficiency of the bond
549
Defects in the pleadings
553
Facts dehors the record Death Bankruptcy Personal service 292 Requisites of a motion to dissolve
559
Effect of dissolution Appeal
562
ACTIONS ON ATTACHMENT BONDS 295 When the right of action accrues 296 Forms of action
565
Parties to the action
568
The liabilit y of principal and sureties Conditions 299 The pleadings
572
Evidence Burden of proof
574
Measure of damages
576
Exemplary damages when allowed
580
Setoff and counter claim
581
Defenses to the action
582
Belief in the allegations of the affidavit as a defense 306 What may be shown in mitigation of damages
585
THE LIABILITY INCURRED BY PLAINTIFF 307 The extent of plaintiffs liability 308 Liability to third persons
587
When liable to defendant for seizure of exempt property
589
Malicious attachments What constitutes malice
590
Malice essential to the action
591
Malice established by inference
593
The question of probable canse
595
The grounds of belief Advice of counsel 315 Effect of subsequent rightful attachment on same property
597
Malicious attachment by agent
598
Measure of damages
599
Facts considered in mitigation of damages 319 The form of action
601
At what time the action may be brought
602
The pleadings
603
Evidence
605
Waiver of right of action for malicious attachment
607
Reconvention
609
Plaintiffs Resident and nonresident Corporations as plaintiffs Defendants
677
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Page 146 - State, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property...
Page 146 - That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs...
Page 32 - ... may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff.
Page 356 - State, to the effect that in case the plaintiff recover judgment in the action, defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of the judgment...
Page 164 - ... has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent...
Page 559 - The defendant may also at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply, on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to a judge thereof, that the writ of attachment be discharged on the ground that the same was improperly or irregularly issued.
Page 164 - In an action upon a contract, express or implied, for the direct payment of money...
Page 30 - In summary proceedings, where a court exercises an extraordinary power under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially which give jurisdiction, ought to appear, in order to show that its proceedings are coram judice.
Page 32 - That such is the nature of this proceeding in this latter class of cases is clearly evinced by two well established propositions: first, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted.
Page 356 - ... will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specified in the undertaking, with interest. The sum so specified must be at least equal to the amount of the...

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