goods and chattels of the defendant; but the property, in this case, is taken in lieu of the person, for the purpose of compelling the defendant to appear and give bail, or in the event of his failure to do so, to be held as a pledge for the satisfaction of the libellant's debt or damages. It is therefore to be kept safely by the marshal, pending the suit, or until the defendant shall give the required security, and obtain an order for the dissolution of the attachment.

CHAP. 5.

to be named

in

cess.

In the case of Manro v. Almeida, above cited, it was held, though apparently with some hesitation, not to be indispensably necessary to specify in the writ the particular credits and effects of the defendant to be attached, but that a command, in general terms, to attach his credits and effects in whosesoever hands, within the jurisdiction of the court, they might be found, was sufficient. But the second Garnishees rule, as we have seen, very properly requires the the progarnishees to be named. It is upon such persons as are named in the process as garnishees only, therefore, that the service is to be made. The term "credits" embraces all debts owing to the defen- What are to dant. The term "effects" is ordinarily one of effects and credits comprehensive import, but being here used in contradistinction to "goods and chattels," may be supposed to refer more especially to kinds of proproperty not strictly falling within the scope of the other terms employed, and not properly susceptible of manual seizure; such, for example, as shares in the stock of corporate companies, money in the hands of a sheriff or of an agent, or the like. The

be deemed

VOL. 2. foreign attachment clause, which should contain a monition to the person therein named to show cause

tachment,

how served.

Garnishee to answer

on oath.

on oath why he should not be held to pay over the amount for which he is supposed to be chargeable, Foreign at to answer the exigencies of the suit, may be properly served by the exhibition of the warrant, and the delivery of a copy of it to the garnishee; or, in case of his absence, by leaving a copy, to be delivered to him, with some suitable person at his usual place of residence or of business. This is the only form in which, in general, the service could well be made, and seems to be the mode contemplated by the thirty-seventh rule, by which it is ordained that "In cases of foreign attachment, the garnishee shall be required to answer on oath or solemn affirmation, as to the debts, credits or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded by the libellant; and if he shall refuse or neglect so to do, the court may award compulsory process in personam against him. If he admit any debts, credits or effects, the same shall be held in his hands liable to answer the exigency of the suit." The proper time for the garnishee to answer, is on the return day of the process. The rule, it will be observed, makes no provision for the delivery over to the marshal, or to the court, of any moneys or other property, by the garnishee; nor for any further proceedings against him in case he denies that he owes the defendant, or has any effects belonging to him, in his hands. The foreign attachment was formerly in use in the English

admiralty; and it is stated by CLERKE, that if the CHAP. 5. garnishee "make oath upon the Holy Evangelists of the truth of his allegations [that he had not any goods or debts belonging to the defendant], he is to be dismissed, and all the acts of the plaintiff are to no purpose. But with this proviso, that if the plaintiff, before the oath is administered, be willing to allege and take upon himself the burthen of proving that the person has goods, or debts, etc., he is admitted to do so; and if he make out his proof, he should recover them with costs (a)." This writer states, also, that the garnishee is required in such case to give security to abide the sentence and pay costs (b). Whether the thirty-seventh rule, above recited, leaves to the libellant the privilege of contesting the truth of the garnishee's answer, is a question, like many others, which is not difficult to foresee may arise out of a resort to this form of process, and upon which it would be indiscreet to hazard an opinion.

marshal's

The marshal is to return, according to the fact, Form of that he has arrested the defendant and has him in return. custody, or has taken bail, as in the case of a simple warrant of arrest; or that the defendant is not found within his district, and that he has therefore arrested his goods and chattels, to wit [specifying them], and has them in safe custody; or that the defendant is not found, and has no goods and chattels within the district; and that he has therefore attached his credits and effects in the hands of the garnishee

(a) Clerke's Praxis, tit. 34; Hall's Adm. Practice, 71. (b) Ibid.

VOL. 2.

Attachment to be dissolved, on giving security.

named in the warrant, by showing the warrant and delivering a copy of it to him, or by leaving a copy thereof for him at his usual place of abode with some person of suitable age, he being absent. If there are several garnishees, not partners, the mode of service on each should be stated.

It may well happen that the defendant, after the arrest of his property, may desire to repossess himself of it, and, and for this purpose, may be willing to give the security which would have been required of him, had he been personally arrested. This contingency is provided for by the fourth rule, as follows: "In all suits in personam, where goods and chattels, or credits and effects are attached under such warrant authorizing the same, the attachment may be dissolved by the order of the court to which the same warrant is returnable, upon the defendant, whose property is so attached, giving a bond or stipulation with sufficient sureties to abide all orders, interlocutory or final, of the court, and pay the amount awarded by the final decree rendered in the court to which the process is returnable, Application or in any appellate court." An "order of the court" being necessary for the dissolution of the attachment, an application to the court is, of course, necessary for this purpose. It may, however, be made at any time, and should be made by petition, briefly stating the fact of the arrest of the property, either describing it, or referring to the marshal's certificate of the execution of the process, and showing the compliance of the applicant, or his readiness to comply with the conditions prescribed in the rule as to security, and

for this pur

pose, to be made by petition.

naming his sureties. The rule is silent as to the CHAP. 5. necessity of notice to the plaintiff of the application

Whether notice of the application

court, how

to dissolve the attachment; and unless the rules of is necessary. the court to which it is to be made require a notice, the application may, it is supposed, be made ex parte; the party producing his sureties before the court, ready to enter into the required bond or stipulation, or offering a bond duly executed, or a stipulation already entered into before a commissioner, and satisfying the court beyond all reasonable doubt of the sufficiency of his sureties. According to the phraseology of the rule, "the attachment may be dissolved by order of the court." Probably, under this rule, Order of the it is sufficient for the defendant, having obtained the executed. order, to serve a certified copy of it on the marshal; but the more formal and regular practice would be to sue out a writ of supersedeas. Such is the practice Superse of the English Court of Admiralty in analogous cases (a). The marshal having previously returned the attachment with his certificate of the arrest of the property, and having thus made himself responsible for it, ought strictly to have the like authority to release it, and the like opportunity to make an official return of the manner in which he had disposed of it.

deas.

perisbable property.

The tenth rule contains a provision relative to the Sale of sale of perishable property, the terms of which are supposed to be sufficiently comprehensive to embrace property under arrest in virtue of this form of process. It is as follows: "In all cases where any goods or other things are arrested, if the same are

(a) Marriott's Formulary, 355.