Laws

Property Incapable of Manual Deliver Post Date: Sat, 2 Aug 2008 6:33:53 +0000
1 8 Attachment of Personalt Y To constitute a valid levy upon personalty the officer executing the attachment must assume dominion over the propert Y He must not only have a view of the property, but he must assert his title to it by such acts as would render him liable for trespass but for the protection of the proces S 8 See also article EXECUTION S Tenn Code 1884, 4239 But see Boggess -v Gamble, 3 Cold W (Tenn) 148 1 Drake on Attachment, 236; Mc- Donald -v Moore, 65 Iowa 171 ; Nockles v Eggspieler, 47 Iowa 400; Perrin v Leverett, 13 Mas S 128; Taylor v Mix- ter, ii Pic K (Mas S) 341; Rodgers v Bonner, 55 Barb ( N Y) 9; Crosby v, Allyn, 5 Me 453; Hancock v Hender- son, 45 Tex 479; Sanger v Trammell, 66 Tex 361; Riordan v Britton, 69 Tex 198 Where the statute authorized the attachment and sale of land of non- resident and absent defendants, it was held that this did not authorize the officer levying the attachment to turn out the defendant or his tenant from the possession, such delivery of pos- session being unnecessary to give effi- cacy to the lev Y Wood v Weir, 5B Mo N (Ky) 547 2 Goode v Longmire, 35 Ala 668; Culver v Rumsey, 6 111 App 598, 7 111 App 422 ; Davidson v Waldron, 31 111 120; Caldwell v Sibley, 3 Min N 406; Russell v Major, 29 Mo App 167; Beekman v Lansing, 3 Wen d ( N Y) 446; Westervelt v Pinckney, 14 Wen d ( N Y) 123; Camp v Chamber- lain, 5 De N ( N Y) 198; Allen v Mc- Calla, 25 Iowa 464; Lyeth v Griffis, 44 Ka N 159 Greater strictness is required where the rights of third persons are in- volved than where the rights of the defendant alone are concerne d Rus- sell v Major, 29 Mo App 167 See also Myers v Cole, 32 Ka N 138 Subsequent Acquirement of Possessio N The officer must, at the time of the levy, secure control of the property levied upo N Possession acquired sub- sequently by a custodian appointed by the officer will be of no avail where, by reason of the absence of the prop- erty at the time of the appointment, there was then no completed lev Y Culver v Rumsey, 7 111 App 422 Must be Able to Touch or Remove Property Attache d The property must be so far within the power of the of- ficer as to enable him to touch or re- move it. Odiorne v Colley, 2 N H 66; Johnson v Farr, 60 N H 426; Nichols v Patten, 18 Me 231; Morse v Hurd, 17 N H 246; Huntington v Blaisdell, 2 N H 317; Cooper -v New- man, 45 N H 339 A mere view of the property by the officer, and his re- questing or instructing a stranger to take care of it who gives no receipt for it, takes no possession of it, and exercises no dominion over it, is not a lev Y Abrams v Johnson, 65 Ala 465 And see Taffts v Manlove, 14 Ca L 47; Powell v McKechnie, 3 Da- kota 319; Connell v Scott, 5 Baxt (Tenn) 595 But an officer who, in- tending to levy an attachment upon some oxen, goes to the barn where they are kept, and there, having them under his control, notifies the owner that he attaches them and proceeds to inventory them, makes a valid lev Y Cooper v Newman, 45 N H 339 And see Morse v Smith, 47 N H 474; Cris- man v Dorsey, 12 Colo567; Stockley v Wadman, i HouSt (De L) 350 Property or Goods Need not be Actually Handle d It is not necessary, how- ever, that the property or goods at- tached be actually handled by the of- ficer making the levy, Nichols v Pat- ten, 18 Me 231; Huntington v Blais- dell, 2 N H 317; Lyon v Rood, 12 Vt 233; Slate v Barker, 26 Vt 647; Denny v Warren, 16 Mas S 420; Gordon -v Jenney, 16 Mas S 465; Shephard v Butterfield, 4 Cus H (Mas S) 425; Nay- lor -v Dennie, 8 Pic K (Mas S) 198; Stockley v Wadman, i HouSt (De L) 350; Fleisch v St Louis Nat Bank, 45 Mo App 225; Moresi v Swift, 15 Nev 216 But it must in all cases be put out of the control of the debtoRDunklee v Fales, 5 N H 527 ; Crawford v Newell, 23 Iowa 453; Allen v McCalla, mV I CUSTODY OF ATTACHED PEOPEKTY l 1 The Bailee A IN GENERA L The attaching officer is primarily the proper cus- todian of the attached property, for he is liable to the party successful in the suit, whether plaintiff or defendant, for its pro- duction at the termination of the suit; 3 but as it would often be inconvenient for the attaching officer always to assume per- 25 Iowa 464; Rix -v Silkmitter, 57 Iowa 262; Collier v French, 64 Iowa 577; Hibbard v Zenor, 75 Iowa 471; Cris- man v Dorsey, 12 Colo567 Thus, barricading the front door of a build- ing, without entering and taking pos- session of the goods therein, does not constitute a sufficient levy where the owner has access to the stock by means of the rear dooRBickler v Kendall, 66 Iowa 703 But where an officer fastened the windows, locked the door, and took possession of the key, the levy was held sufficient as against subsequent attachments, even though he failed to secure every entrance to the roo M Newton v Adams, 4 Vt 437 Levy Prevented by Misrepresentatio N Where an officer who entered a store to levy upon goods therein was in- duced by misrepresentations to leave the store, and was subsequently denied admission, the levy was declared in- vali d Windmiller v Chapman, 139 111 163 Connecticut It is necessary for a valid attachment of tangible goods that the officer should have actual possession and custody of the M Thus, where, in levying a writ of attachment, one officer went to the defendant's carriage-house with the key, and un- locked the door, declaring that he attached the carriage standing within, and almost at that very instant an- other officer with another writ stepped into the carriage-house, and actually seized the carriage, it was held that the levy of the latter only was vali d Hollister v Goodale, 8 Con N 335 And see Adler v Roth, 5 Fed Rep 895 ; Williams v Cheesebrough, 4 Con N 361; Mills v Camp, 14 Con N 225; Pond v Skidmore, 40 Con N 222; Morey v Hoyt, 62 Con N 542 Removable Fixture S Removable fix- tures may be attached as personalt Y Morey v Hoyt, 62 Con N 542 Unh'arvested Crop S A levy upon standing corn which had ceased to grow, but was not sufficiently dry to crib, is not sufficient where the officer simply notified the attachment debtor of the levy and caused the corn to be appraise d Throop v Maiden, 52 Ka N 258 Ponderous Article S Heavy and un- manageable articles, the removal of which would be attended by great waste and expense, need not be ac- tually transferred or remove d Mills v Camp, 14 Con N 225; Merrill v Saw- yer, 8 Pic K (Mas S)397; Pond v Skid- more, 40 Con N 213; Hemmenway v Wheeler, 14 Pic K (Mas S) 408; Policy v Lenox Iron Works, 4 Allen (Mas S) 329; Lewis v The Orpheus, 3 Ware (U S) 143; Bicknell v Trickey, 34 Me 273; Higgins v Drennan, 157 Mas S 384; Barren v Smith, 63 Vt 121 Contr A In Oregon a safe can be levied upon only by taking it into actual custody, it being held in Schneider v Sears, 13 Oregon 69, that the posting of a copy of the writ on the safe was insufficient. Property Incapable of Manual Deliver Y In the attachment of property in- capable, from its nature, of reduction to possession, such as bank stock or stock of any other corporation, the of- ficer need only take the steps required by the statute under which he acts, describing the property as so many shares of the particular stock owned by the Defendant Drake on Attach- ment, 259; Stamford Bank v Ferris, 17 Con N 259 And see Mooar v Walker, 46 Iowa 164; Union Nat Bank v Byram, 131 111 92; Naser v First Nat Bank, 116 N Y 492 State Bonds are within the meaning of a statute requiring that all personal property capable of a manual delivery to the sheriff must be attached by be- ing taken into custody, and the sheriff cannot make a valid levy without ac- tually taking such bonds'into custod Y Caldwell v Sibley, 3 Min N 406 1 See, generally, as to duty and liability of custodians of attached property, A M Eng Enc Y La W tit ATTACHMENT.

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The law does not require Post Date: Sat, 2 Aug 2008 6:18:04 +0000
2 Lawrence S Rice, 12 Met (Mas S) 527; Torrey v Otis, 67 Me 573; Joseph v Henderson, 95 Ala 213 sonal possession of the property attached, it is customary to place the property in the hands of an agent or other person appointed by him for that purpose, whose possession is in point of law his possessio N 1 b THE Defendant Although the general rule is that if the attaching officer does not within a reasonable time remove the attached property from the possession of the defendant, the trans- action is prima facie fraudulent, at least as against subsequent bona-fide purchasers from the defendant or attaching creditors, 2 there are many cases in which he may leave the goods attached in the custody of the defendant, thereby constituting the latter his bailee, without discharging the lien of the Attachment 3 Burrows v Stoddard, 3 Con N 434 ; Taintor v Williams, 7 Con N 271 ; Dunklee v Fales, 5 N H 527; Pom- roy v Kingsley, i Tyler ( Vt) 294; Baker v Warren, 6 Gray (Mas S) 527; Flanagan v Wood, 33 Vt 332; Root z Railroad Co, 45 Ohio St 222; Knap v Sprague, 9 Mas S 258; Pillsbury v Small, 19 Me 435; Bagley v White, 4 Pic K (Mas S) 395; Sanderson v Ed- wards, 16 Pic K (Mas S) 144; Young z/ Walker, 12 N H 502 See A M Eng Enc Y Law, tit Attachment 3 Howell -v Commercial Bank, 5 Bush (Ky) 98; The Brig Joseph Gor- ham, 7 Law Rep 138; Baldwin v Jack- son, 12 Mas S 131; Train v Welling- ton, 12 Mas S 495; Young v Walker, 12 N H 502; Grey v Sheridan Elec- tric Light Co, 19 Abb N Ca S ( N Y Supreme Ct) 152; Tomlinson v Col- lins, 20 Con N 376 Excluding Defendant from Premise S An officer attaching machinery in use at the time by the defendant upon premises leased by him has no right to exclude the defendant from the premises, notwithstanding the lease be also attache d Grey v Sheridan Electric Light Co, 19 Abb N Ca S ( N Y Supreme Ct) 152 Servant or Wife of Defendant Where the law required that accessible property must not only be taken, but also be kept in the custody of the offi- cer, whose custody must be exclusive of that of the owner, it was held that the officer could not leave the property attached in the custody of a servant of the Defendant Russell v Major, 29 Mo App 167 But, on the other hand, it has been held that, where the law authorized a married woman to do business on her sole and separate account, the wife of the defendant might be employed as custodian of the 1 Runlett v Bell, 5 N H 433; Fettyplace v Dutch, 13 Pic K (Mas S) 388; Donham v Wild, 19 Pic K (Mas S) 520; Hemmenway v Wheeler, 14 Pic K (Mas S) 408; Tomlinson v Collins, 20 Con N 376; Davis v Miller, i Vt 9; Austin v Burlington, 34 Vt 506; Torrey v Otis, 67 Me 573; Moulton v Chadborne, 31 Me 152; Franklin Bank v Small, 24 Me 52; Flanagan v Newman (Colo App, 1894), 38 Pac Rep 431; Drake on Attachment, 292 E Nature of the Bailment. In Phelps v Gilchrist, 28 N H 266, the court said: "The practice of delivering property attached to a bailee for safe keeping must have been coeval with the prac- tice of making such attachment S It is in its nature a simple deposit, a delivery of the property to be kept by the depositary, without compensation, until called for by the attaching officeRNo particular agreement was neces- sary, and no writing was require d The convenience and safety, perhaps of both parties, would render some writing showing the facts necessary, in cases where the number of the articles attached was considerabl e In general, a simple receipt, admitting that the articles enumerated had been delivered by the officer to the receiptor for safe keeping, and to be returned on request, would be the most natural form of such a writin g * * * There is ordinarily, however, nothing in such a receipt which changes the duties or obligations of the parties from what they would be on a simple deposit, without any writing whateve R" Receipt not a Legal Requirement. The law does not require the officer to take a receipt for the property at- tache d Batchelder v Frank, 49 Vt 2 Gower v Stevens, 19 Me 92 ; 2 Continuity of Possessio N The property attached must be taken and held continuously by the attaching officer, for if, after levying upon the property of the defendant, the officer do any- thing which can be construed into an abandonment of the attach- ment, the levy will be invali d 1 VI I THE RETURN OF THE WRIT (See also article RETURN S) 1 In General Within Reasonable Ti Me The officer levying an attach- ment should, within a reasonable time, indorse on the process a memorandum or record of the lev Y 2 attached property, without thereby de- stroying the lien of the Attachment Farrington v Edgerley, 13 Allen (Mas S) 453 1 Russell v Major, 29 Mo App 167; Thompson v Baker, 74 Me 48; Burrows v Stoddard, 3 Con N 434; Taintor v Williams, 7 Con N 271; French v Stanley, 21 Me 512; Libby v Murray, 51 Wi S 371; Littleton v Wyman, 69 Iowa 248; Eldridge v Lancy, 17 Pic K (Mas S) 352; Dunklee v Fales, 5 N H 527; Carrington v Smith, 8 Pic K (Mas S) 419 See also Farris v State, 33 Ark 70; Fletcher v Morrell, 78 Mich 176 Notoriety Unnecessar Y But it is not necessary for the officer to show in proof of his continued possession that he caused the attachment to be gen- erally known in the neighborhood, and that the property could not have been taken away without his knowledg e Mills v Camp, 14 Con N 225 Thus, an attachment of lumber at a wharf was not dissolved where the keeper on Sunday morning secured the property by closing the gates of the yard in the usual manner, and did not return until the afternoo N Fetty- place v Dutch, 13 Pic K (Mas S) 388 Abandonment by Baile e If the bailee appointed by the sheriff either perma- nently or temporarily abandons his trust, the lien of the attachment will be loSt Hardin v Sisson, 36 111 App 383; Russell v Major, 29 Mo App 169; Bagley v White, 4 Pic K (Mas S) 395 Property Left in Defendant's Car e Thus, where the property was left in the defendant's possession, with au- thority to use it as he wished provided he should keep the quantity good, the levy was held insufficient and invalid as between the partie S Nockles v Eggspieler, 47 Iowa 400 And see French v Stanley, 21 Me 512; Little- ton v Wyman, 69 Iowa 248; Burrows v Stoddard, 3 Con N 160; Thompson v Baker, 74 Me 48 Continuing Attachment Where plain- tiff, after a motion to quash for ir- regularities in the affidavit, made a new affidavit stating the same ground of attachment, and obtained; a new writ, which was levied upon the prop- erty seized under the former writ, the levy was held a continuing on e Baines v Ullmann, 71 Tex 529 And a creditor who, relying on the debtor's promise to pay him the amount, has ordered the officer to apply the pro- ceeds of the property held under his attachment for the benefit of subse- quent creditors, may, upon failure of the debtor to keep his promise, countermand the order so far as it has not been acted upon by the officer, and retain his lien upon the property attache d Hatch -v Jerrard, 69 Me 355 And see Butte First Nat Bank v Boyce ( Mont, 1895), 38 Pac Rep 829; Wright v Westheimer, 2 Idaho 962 But see Pierce v Myers, 28 Ka N 364 Variety of Article S Where a variety of articles is attached, and the officer occupies himself in the levy of the attachment, with no unnecessary de- lay, until he has secured all the goods, the taking should be treated as one act, even though it occupies more than one da Y Drake on At- tachment.

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Kelley v Barker, 63 Post Date: Sat, 2 Aug 2008 6:05:19 +0000
192 And see Bishop v Warner, 19 Con N 467 2 Or the plaintiff cannot proceed to judgment. Morris v School Trus- tees, 15 111 266 The failure of the officer to make his return of an attachment or levy within three months has been held not to render it voi d Bourne v Hocker, IIB Mo N (Ky) 27 And in Bancroft v SinclaiR12 Rich ( S Car) 617, it was held that where a sheriff levied on property under an attachment, but omitted to make a return of the levy, Should State Fact S This memorandum should state with all the particularity required by statute the manner in which the levy has been made ; for if instead of a statement of facts it contains mere conclusions of law, it is not a sufficient retur N 1 2 Recitals When, How, and by Whom Levy Mad e The facts stated in the officer's return should show when, 2 how (whether he might afterwards make return mine pro tun e Part of Court Recor d The writ of at- tachment is mesne process and must be returned by the officer, and when so returned it remains in the custody of the clerk as a part of the files in the cas e Fletcher v Morrell, 78 Mich 176 The Filing a Matter for Proof The officer cannot be presumed to have filed the certificate of lev Y It is a fact to be prove d Gatz v Pittman, n 111 20 Not Fatal to th Attachment In New Hampshire it has been held that in case of an actual, valid attachment of a chattel the officer's neglect to make return of the attachment will not de- feat the lien of the Attachment Par- ker v Pattee, 4 N H 530; Smith v Moore, 17 N H 380; Goodrick v Foster, 20 N H 177 Return afttr Return Da Y The mere fact that the writ is not returned until the day after the return day will not release the lien of the Attachment Horton v Monroe, 98 Mich 195 Must Conform to Statut e Where the statute provides that an attachment, "if issued in a pending suit, shall be returnable to a term of the court in which the same is pending," the at- tachment must be made returnable to a term of court and not to rule S Grinberg v Lingerman ( Va, 1894), 19 S E Rep 161; Craig v Williams ( Va, 1894), 18 S E Rep 899 In gen- eral a return in substantial compli- ance with the terms of the statute is sufficient. Kelley v Barker, 63 N H 70; Preston v Hicock, 9 Con N 525 1 Thus where the sheriff indorsed on the writ in general terms "exe- cuted by serving the within attach- ment personally on" the defendants, "and levying on," etc, the return was held insufficient, the court hold- ing that it must be informed by the return what the proceedings under the writ were and how they were con- ducted, after which it, and not the officer, would judge whether the writ had been "executed" and "served" as required by statut e Rankin v Dulaney, 43 Mis S 197; Moore v Coats, 43 Mis S 225; Ezelle v Simpson, 42 Mis S 515; Crizer v Gorren, 41 Mis S 563; Jefferies v Harvie, 38 Mis S 97; Stockton v Downey, 6 La An N 581; Page v Generes, 6 La An N 549; Gib- son v Wilson, 5 Ark 422; Desha v Baker, 3 Ark 509; Crisman z/ Swisher, 28 N J L 149; Hodgman -v Barker (Supreme Ct), 14 N Y Supp 574 Instance S But where the Attach- ment Act appointed no mode of return for the sheriff, his certificate that he had duly served the process, accom- panied by an inventory and appraise- ment, was held sufficient.

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Lewiston Steam Mill Co v Post Date: Sat, 2 Aug 2008 5:49:25 +0000
Boyd v King, 36 N J L 134 So also were a return by the sheriff that " by virtue of the writ of attachment, he attached a certain debt due, etc, appraised at $500," Castner v Styer, 23 N J L 236; and a return that sheriff had "levied" the writ on certain personal property, Baldwin v Conger, 9 Smed M (Mis S) 516 If the court can see by the sheriff's return a substantial service of the writ, they will hold on to the property attached, even though the return does not show a literal compliance with the directions of the statute as to the execution of the writ Thompson v Easthorn, 16 N J L 100 Thus a return by the sheriff that he has at- tached "property" instead of "goods and chattels," is sufficient. Morrell v Buckley, 20 N J L 667 And see Dodge v Butler, 42 N J L 370 2 Newton v Strang, 48 Mo App 538; Reed v Perkins, 14 Ala 231; Wilson v Strieker, 66 Ga 575; An- derson v Graff, 41 Md 601; Robertson v Hoge, 83 Va 124; Wade on At- tachment, 141 Varianc e Where the officer's return on the writ was dated O Ct 5, 1876, at i p M, and the certified copy re- turned to the register of deeds was of a return bearing date O Ct 18, 1876, it was held that the attachment created no lie N Bessey v Vose, 73 Me 217 And see Williams v Cheesebrough, 4 Con N 356 But in Brown v Elmen- by taking possession or otherwise), 1 and by whom the levy was mad e 8 3 The Schedule or Inventor Y Independent of any statutory regulation the officer levying the attachment should indorse on the process a memorandum of the property seized, or, if the property levied on consists of so many different articles that they cannot be conveniently indorsed on the writ, then he should make an inventory of them and file it with the proces S 3 dorf (Tex Civ App, 1894), 25 S W Rep 145, where the date of the levy stating the return differed from that stated in the accompanying lists, it was held that such lists were a part of the return, and admissible to show date of lev Y 1 Curwensville Mfg Co v Bloom, 10 Pa Co Ct Rep 295; Ezelle v Simpson, 42 Mis S 515; Moore v Coats, 43 Mis S 225; Tucker v Byars, 46 Mis S 549; Burt v Parish, 9 Ala 21 1 ; Means v Osgood, 7 Me 146; French v Stanley, 21 Me 512; Todd v Missouri Pac RCo, 33 Mo App no; Wilkins v Tourtellott, 28 Ka N 825; Ritter v Scannell, nCal248 But where a return of a levy upon real estate did not show whether the sheriff had left with the occupant of the premises, or, if there was no oc- cupant, then in some conspicuous place on the premises, a copy of the ordei of attachment, it was held that the sheriff would be presumed to have done his duty, on a motion being filed by the defendant to set aside the ser- vice of the attachment, which did not allege the failure of the return to show what was done in the lev Y Dunlap v McFarland, 25 Ka N 488 And see Newton v Strang, 48 Mo Return Conclusiv e An officer levy- ing a writ of attachment is required to make a full return thereon of all his proceeding S Consequently it can- not be presumed that he levied on any property other than that specified in the return of the writ Phillips v Harvey, 50 Mis S 489 And it will be presumed that he stated all that he did towards making the servic e Sharp v Baud, 43Cal577 Thus it has been held that an officer could not show by parol that he had attached more property than was stated in his return on the writ, except upon an application to amend the retur N San- ford v Pond, 37 Con N 591 Mistake of Cler K The validity of the attachment depends on the doings of the attaching officer, and the mis- take of the town-clerk in recording a return does not invalidate the attach- ment. Lewiston Steam Mill Co v Foss, Si Me 593 And see Lee v Smyser (Ky, 1895), 29 S W Rep 27; McLaughlin v Phillips, 10 Pa Co Ct Rep 382; O'Hare v Downing, 130 Mas S 16 2 Unless returned by the proper officer, the court does not obtain juris- diction of the cas e Tucker v Byars, 46 Mis S 549 The Eeturn of a Sheriff of one county of an attachment directed to the sher- iff of another is voi d Olney v Shep- herd, 8 Blackf (Ind) 146 In Alabama the successor in office to the sheriff who levied the attachment may make the retur N Carter v O'Bryan (Ala, 1895), 16 So Rep 894 Signature of OfficeRThe return of the levy must be signed by the officer in order to make a valid lev Y Cly- more v Williams, 77 111 618 Thus where an order of attachment was filed in the clerk's office, accompanied only by a paper stating the fact that service had been made, which paper was authenticated by no signature, it was held that the record failed to dis- close a valid attachment, and that the defect was one which could be taken advantage of in a collateral proceed- in g Wilkins v Tourtellott, 28 Ka N 825 3 Toulmin v Lesesne, 2 Ala 359 Where, however, the property is specifically described in the return, no separate schedule or inventory is necessary, Dronillard v Whistler, 29 Ind 552; even though the officer be required by statute to return the writ, " with his return indorsed thereon and a schedule of the property at- tache d" Pearce v Baldridge, 7 Ark VII I DISSOLUTION 1 Who may Move to Dissolve A THE DE- FENDANT.

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Thus a return Post Date: Sat, 2 Aug 2008 5:35:34 +0000
In nearly all cases the defendant, or one of several defendants, when not estopped by previous conduct on his or their A return, " levied on four bags, marked T R C ; also twenty-one bags, W J W ; also fifteen bags, marked C g Miller, as the property of defendants," indorsed on the at- tachment, was held sufficient. Miller v McMillan, 4 Ala 527 Particularity of Descriptio N A re- turn which describes the property at- tached with the particularity neces- sary for its identification is sufficient. Thus a return of the officer that he had levied on four horses, describing their color, is sufficient.

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Windt v Banniza, 2 Wash Post Date: Sat, 2 Aug 2008 5:16:12 +0000
Fleming v Burge, 6 Ala 373, and see Wharton v Conger, 9 Smed M (Mis S) 510; Silver Bow M, etc, Co v Lowry, 5 Mont 618 And a return of an officer that he had attached all the " stock of every kind " in a woolen factory particu- larly described, specifying the stock as a " lot of dye-wood and dye-stuff," " lot of clean wool," "sixteen pieces of black Oxford mixed cassimere," " twenty-five pieces of doeskins and tweeds," "fifty-one pieces of unfin- ished cloth," " lot of cotton-wool," "lot of colored wool," "cotton-wool, oils, etc, in said factory," was held sufficient in Ela v Shepard, 32 N H 277 And see Baxter v Rice, 21 Pic K (Mas S) 197; Haynes v Small, 22 Me 14; Stamford Bank v Ferris, 17 Con N 268; Davis v Dallas Nat Bank (Tex Civ App , 1894), 26 S W Rep 222 Return must not be Vague or Uncer- tai N A return of the officer that he had attached "a stock of goods, wares, and merchandise " was held too vague in Messner v Lewis, 20 Tex 221 And where there was no descrip- tion of real estate attached in either the sheriff's return or the judgment, it was held that the proceedings were void for uncertainty and could not be explained by extrinsic evidenc e Porter v Byrne, 10 Ind 146 And a return that the attachment had been levied upon all the stock and goods in defendant's store, situated on Main street, was held not suffi- ciently descriptive in Ahern v Pur- nell, 62 Con N 21 And see Sweetser v Sparks, 3 Tex Civ App 33; Kenis- ton v Stevens, 66 Vt 351 Ponderous and Bulky Article S Where it is provided that in the case of ponderous articles the officer at- taching such articles may " leave an attested copy of the writ and of his return thereon " at the office of the town-clerk, the return left with the town-clerk should be so certain in its description of the property and its situation as to give to subsequent at- taching creditors or purchasers sub- stantially the same notice that they would derive from knowledge of the actual retention of possession of the property by the officeRAccordingly a return upon a writ, " I attached all the wood, hay, bark and lumber, lands and tenements, in the town of W, in which the within-named de- fendant has any right, title, interest, or estate; and on the same day I left at the office of the town-clerk," etc, was held too indefinite to constitute an attachment as against a subsequent purchaseRBryant v Osgood, 52 N H 182 But where an officer, having on sev- eral writs attached several lots of bricks inB's brickyard, returned upon another and subsequent writ that he had attached all the bricks " not at- tached on previous attachments " lying in the brickyard, the return was held to describe the property suffi- cientl Y Clement v Little, 42 N H Valuation of Propert Y Unless the statute so orders, the officer making the levy is not required to set a value on the propert Y Drake on Attach- ment, 209; Childs v Ham, 23 Me 74 Property already in Possession of the OfficeRWhere an officer levies on property already in his possession by virtue of a former attachment, it is only necessary for him to return that he has attached the interest of the defendant in the property at that time in his possessio N O'Connor v Blake, 29Cal312; Clement v Little, 42 N H 564 Error of Judgment. Where an officer attached 3,000,000 feet of logs, but in his return estimated the quantity at only 600,000 feet, it was held that the error was one of judgment, which did not invalidate the Attachment Parker v Williams, 77 Me 118 part, may move to dissolve the attachment, and may appear specially for that purpose onl Y 1 And for some causes the de- fendant is the only proper person to make the motio N 2 Defendant Disclaiming intereSt When, however, he disclaims all in- terest in the attached property, or is not entitled to a return thereof on dissolution, the attachment will not, in general, be dissolved upon his motion, unless there is involved a charge of fraud against hi M 3 1 One only of several defendants may move to discharge the attach- ment. Windt v Banniza, 2 Wash 147 At least to the extent of his interest therei N Walts v Nichols, 32 Hun ( N Y) 276; 19 N Y Wkl Y Di g 165 Partnershi P When the defendants are copartners, one of them may move for a complete vacation of the attach- ment.

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By agreeing that the attached Post Date: Sat, 2 Aug 2008 5:02:41 +0000
Walts v Nichols, 32 Hun ( N Y) 276, 19 N Y Wkl Y Di g 165 Under the Statute of Michigan, where partnership property has been attached a partner not concerned in the grounds of the attachment may, on motion, have the attachment dis- solved and the property restored to him'. Edwards v Hughes, 20 Mich 289 Misjoinder in Motio N Where one only of two defendants is entitled to move to dissolve, his right to relief is not weakened by the joinder of the other with him in the motio N Seiden- bach v Hollowell, 5 Dil L (U S) 382 The Executors or Administrators of a decedent whose creditors have at- tached in chancery debts due to him may have the attachment discharged on motion after answering without giving securit Y Wilson v Wilson, I He N M ( Va) 16 Right not Barred by Subsequent Levie S The right of a defendant to have a wrongful attachment dissolved will not be barred by the levy of an execution upon the attached property in favor of a third person, nor by the levy of subsequent attachments, Dr S K K U S Medical, etc, Asso C v Post, etc, Job Printing Co, 58 Mich 487, overruling Johnson v De Witt, 36 Mich 95, and reviewing Chandler v Nash, 5 Mich 409; Price v Reed, 20 Mich 73; Osborne v Robbins, 10 Mich 278; Macumber v Beam, 22 Mich 396; Zook v Blough, 42 Mich 487; Sheldon v Stewart, 43 Mich 574 Nor by Judgment for Plaintiff in Main Cas e A motion by the defendant to dissolve is not superseded by the ren- dition of a judgment in the main case for the plaintiff, and his right to a hearing and order on the motion re- mains, unless he has parted with his right to the possession of the property, or in some other way estopped him- self from insisting on a dissolutio N Gore v Ray, 73 Mich 385, citing Cal- vert Lithographing, etc, Co v Dr S K K U S Medical, etc, Asso C, 61 Mich 337 Sale of Property under Agreement. By agreeing that the attached prop- erty should be sold and the proceeds retained until final judgment, the de- fendant debarred himself from insist- ing on a dissolution of the writ Wickman v Nalty, 41 La An N 284 Special Appearanc e In Washington the defendant may not move to dis- solve until he has appeared and an- swered the complaint; but his appear- ance maybe special, thus not waiving defect S Rodolph v Mayer, i Wash Ter 133 See Manice v Gould, I Abb Pr, N S ( N Y Supreme Ct) 255; Will v Whitney, 15 Ind 194; Melloy v Burtiss, i Pa Co Ct Rep 316; Wanamaker v Stevens, i Pa Co Ct Rep 317; Davis v Mayer, 6 Lan e (Pa) 105 See also as to appearances in attachment proceedings article APPEARANCES, XL, Attachment, Vo L I I, p 608 2 Cockrell v McGraw, 33 Ala 526; Schoppenhast v Bollman, 21 Ind 280; Williams v Walker, n Iowa 77; Isham v Ketchum, 46 Barb ( N Y) 43; Ketchum v Ketchum, i Abb Pr, N S ( N Y Supreme Ct) 157 In South Carolina none but defend- ants may move to set aside attach- ments on the ground of irregularitie S Copeland v Piedmont, etc, L In S Co, 17 S Car 116, citing Foster v Jones, i McCord ( S Car) 116; Kincaid v Neall, 3 McCord ( S Car) 201; Camberford v Hall, 3 McCord ( S Car) 345; M'Bride v Floyd, 2 Bailey ( S Car) 214; Chambers v McKee, i Hill ( S Car) 229; Harper v Scuddy, i McMul L ( S Car) 265 3 Price v Reed, 20 Mich 72; Gore But an Assignor for the benefit of creditors, whose property has been attached, has sufficient residuary interest to make the motio N 1 b THE DEFENDANT'S ASSIGNEE, RECEIVER, OR VENDE e Usually the motion may be made by the defendant's assignee for the benefit of creditors or by a receiver, whether claiming under an assignment made prior or subsequent to the attach- ment, although not originally a party to the actio N 2 In South Carolina it is held that as 1 Richards v White, 7 Min N 345; a debtor cannot move to dissolve an Winona First Nat Bank v Randall, attachment on the ground that the 38 Min N 382; Keith v Armstrong, 65 property did not belong to him at the Wi S 225; Rowles v Hoare, 61 Barb, time of the attachment, there is no ( N Y) 266, citing Dickinson v Ben- greater reason why this privilege ham, 20 How Pr ( N Y Supreme Ct) should be granted to a third part Y 343, 19 How Pr ( N Y) 410 Seem- Metts v Piedmont, etc, L In S Co, 17 ingfy contra, Chandler v Nash, 5 S Car 120, citing Drake on Attach- Mich 409 See article ASSIGNMENT ment, 417; Langdon v Conklin, 10 FOR BENEFIT OF CREDITORS, Vo L I I, A motion to vacate may properly be satisfaction of the mortgag e Mc- made by the defendant, though a Cord v Krause, 36 Neb 764 See third person has claimed the property Hosea v McClure, 42 Ka N 408; Smith- attached as his own, and the plaintiff Frazer Boot, etc, Co v Derse, 41 has given to the sheriff a bond of in- Kan, 150 demnity against such clai M White- Mortgage Foreclose d Where upon legge v De Witt, 12 Daly ( N Y) 319 motion of the mortgagor alone a dis- Defendant Accused of Frau d " As to solution of an attachment of mort- the ground most strongly urged by gaged chattels was refused, the ap- appellant, that, defendant having ad- pellate court declined to review the mitted that the property attached did ruling, it having been shown on the not belong to him, he could not move hearing that the rights of the mort- to dissolve the attachment, we do not gagor had been foreclosed, and there see its application her e The motion being in the record sufficient evidence below was not made on the ground to justify the conclusion that the that the property in question did not mortgage was executed to defraud belong to Defendant The title to the creditor S Darst v Levy, 40 Neb 593 property was not in issu e The at- 2 An Assignee of the defendant tachment was issued on an allegation who had charge of the property when of fraud by the defendant, and the levied upon may move to discharge only question involved below was the the attachment though not a party to truth of that allegatio N If, because the original actio N Wichita Whole- thai allegation being found untrue, sale Grocery Co v Records, 40 Ka N the attachment is vacated and inci- 119, citing Harrison v Andrews, 18 dentally thereby the property is re- Ka N 535; Long z\ Murphy, 27 Ka N Vende e And the motion to dissolve the attachment may like- wise be made by a bona-fide purchaser from the defendant of all of the attached property, or even of a part only, as to that part.

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Rowe v Kellogg, 54 Mich Post Date: Sat, 2 Aug 2008 4:45:18 +0000
1 375 See also article ASSIGNMENT FOR BENEFIT OF CREDITORS, Vo L I I, p 865 In South Carolina an assignee for the benefit of creditors may not move to dissolve a subsequent attachment until he has, under sections 255, 256 of the code, established his right under issue joined on his return to the attach- ment. Bryce v Foot, 25 S Car 467 See Metis v Piedmont, etc, L In S Co, 17 S Car 120; Ex p Dickinson, 29 S Car 453 An assignee under a deed of assign- ment recorded before the levy of the attachment may not intervene and move to dissolv e Copeland v Pied- mont, etc, L In S Co, 17 S Car 116 In Michigan the motion is not available to creditors or to assignees for their benefit. Rowe v Kellogg, 54 Mich 206 Leave of Court.

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People's Bank v Me- chanics' Post Date: Sat, 2 Aug 2008 4:31:52 +0000
And in Wisconsin the assignee may not traverse the af- fidavit without leave of court first ob- taine d Howitt v Blodgett, 61 Wi S 376 Motions by Both Defendant and As- signe e By statute in New York a defendant or his assignee may law- fully move to vacate an Attachment " It is a right belonging to either, but does not necessarily extend to bot H" Where a motion made by the defend- ant was denied, a subsequent motion by one who had been made his as- signee for the benefit of creditors by assignment subsequent to the attach- ment, but prior to the motion by the defendant, could not be entertained without leave of court for a rehear- ing of the original motion being first obtaine d Strauss v Vogt, 23 Civ Pro Rep ( N Y SupeRCt) 251 Motions by Successive Assignee S Where a motion by a statutory as- signee has been overruled, a similar motion may not be made by his suc- cessor without leave of court. Hill- yer v Biglow, 47 Ka N 473 The Receiver of an insolvent national bank, appointed after an attachment against the bank, may, without being made a party to the action, move to dissolve it. People's Bank v Me- chanics' Nat Bank, 62 How Pr ( N Y Supreme Ct) 422; National Shoe, etc, Bank v Mechanics' Nat Bank, 89 N Y 440, citing Steuben County Bank v Alberger, 78 N Y 252; Bethel First Nat Bank v National Pahquio- que Bank, 14 Wal L (U S) 383; Sel- ma First Nat Bank v Colby, 21 Wal L (U S)6o9 The Temporary Eeceiver of the defend- ant, appointed in the action wherein the attachment had been granted, had sufficient interest to move to dissolve the Attachment Knorr v New York State Mut Be N Asso C.

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" Interest Acquired in Part Onl Post Date: Sat, 2 Aug 2008 4:16:32 +0000
79 Hun ( N Y) 83, 29 N Y Supp 508 Receiver Claiming Title Prior to At- tachment. Under section 680 of the New York Code Civ Pro the right of strangers to intervene and move to vacate is limited to cases where in- terest in the property attached has been acquired from the defendant sub- sequent to the lev Y Thus the re- ceiver of a bank, whose title to the property had been acquired prior to the attachment, could not move to va- cate the same merely because his property had been seized under an attachment against the ban K Key West Bld g, etc, Asso C v Key West Bank (Supreme Ct), 18 N Y Supp 390, affirmed in 63 Hun ( N Y) 633 Attachment from Federal Court on Property in Hands of State Receiver Generally persons not parties to suits, to obtain relief therein, must proceed by intervention; but where property in the possession of a receiver ap- pointed by a state court was attached by a United States marshal, the re- ceiver was allowed to proceed by a rule in the federal court to set aside the attachment, as no harm could be done by this method and the result would be the sa Me Remington Pa- per Co v Louisiana Printing, etc, Co, 56 Fed Rep 287 See Boltz v Eagon, 34 Fed Rep 445, citing Krip- pendorf v Hyde, no U S 276; Gum- bel v Pitkin, 113 U S 545 1 The motion may be made by one claiming by purchase prior to the at- tachment, Wallace v Maroney, 6 Mackey ( d C) 221 (see U S v Howgate, 2 Mackey ( d C) 408); or by a subsequent purchaser, Trow's Print- ing, etc, Co v Hart, 85 N Y 500, 9 Daly ( N Y) 413 In this case it was C SUBSEQUENT LIEN CREDITOR S Creditors of the defendant who have, subsequent to the attachment, acquired liens upon the attached property, as by judgment or attachment, may move to dissolve the prior attachment ; * but not upon the ground of mere irregularities in the proceedings which have been waived by the defendant himself 2 said that, under section 682 of the Code Civ Pro, "the right of third persons to move is not confined to persons who have acquired liens or interests, by proceedings in invitum, against the defendant in the Attachment The language of the section does not ad- mit of this limitation, nor does there seem to be any reason why a person who has acquired an interest by vol- untary transfer from the defendant should not be permitted to stand in his place, in respect to the right to question the validity of an attach- ment." Interest Acquired in Part Onl Y In the same case it was said by Andrews, J: "The objection that the motion cannot be made by a person who has acquired an interest in part only of the attached property, is not tenabl e The relief in such case will be limited to vacating the attachment as to such part.

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