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. Many jurisdictions 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..
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Prejudgment attachment or Prejudgment writ of attachment allows recovery of money damages by levying a security interest on the property of the party paying money damages. A writ of attachment is filed to secure debt or claim of the creditor in the event that a judgment is rendered.
Where the attachment is against property in the possession of, or owed by, a third party, the process is sometimes known as foreign attachment. This process allows the creditor to 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 it was known as arrestment, in France, where it was known as saisie arret, in the U.S and elsewhere.[2]
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]
Attachment of earnings, also known as garnishment, is a process whereby the creditor attaches money owed to the debtor by the debtor's employer.
This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press.