« iepriekšējāTurpināt »
Sec. 470, 1120; Sec. 442. FRAUDULENT ASSIGNMENTS.-Nothing herein
1 D. C. App., 268;
4 D. C. App., 335; contained shall prevent any creditor otherwise entitled
27 Stat., 474.
Sec. 1105, 1106.
from attacking any assignment as made to hinder, delay, or defraud the creditors of the assignor, and whenever any such assignment shall appear to the court to have been made with such intent, the court may enjoin any proceeding thereunder, and upon finally decreeing the same to be void may appoint a trustee with power to take possession of all the effects of the debtor and may pass and enforce all orders necessary to put him in possession of the same, and said trustee shall qualify in the same manner and perform the same duties as the trustee provided for in the aforegoing sections.
Sec. 443. NOTICES TO CREDITORS.-In all cases of assignment the court shall require the trustee or trustees, whether named in the assignment or appointed by the court, in pursuance of the sections aforesaid, to give notice as the court may think proper to all the creditors of the assignor to produce and prove their respective claims against the assignor before the auditor of the court, to the end that they may be fairly adjudicated and the said creditors may share equally the assets of the insolvent assignor, subject, however, to any legal priorities created by valid incumbrances antedating the assignment.
Sec. 444. EXEMPT PROPERTY NOT TO BE INCLUDED.No assignment for the benefit of creditors shall be construed to include or cover any property exempt from levy or sale on execution unless the exemption is expressly waived; and the court may direct the manner in which exempt property may be ascertained and set aside before any sale by the trustee or trustees.
8 D. C. App., 469; 222; 2 C. 105;
37 L. R., 261; R.
Sec. 445. CAUSES.-In any action at law in the supreme Brown, 22 D. C. court of the District for the recovery of specific personal App., 462; 26 D. property, or a debt, or damages for the breach of a con- D. C. App., 329; tract, expressed or implied, if the plaintiff, his agent or 2 D. C. App., 174: attorney, either at the commencement of the action or 12 D.C.App., pending the same, shall file an affidavit, supported by 4 D. C. App., 335 the testimony of one or more witnesses, showing the 33 D.C.App., 172; grounds of his claim and setting forth that the plaintiff s. D. C., 782; has a just right to recover what is claimed in his declara- Comp. Stat., p. tion, and where the action is to recover specific personal in possession of property stating the nature and, according to affiant's pointed in Va., 38 belief, the value of such property and the probable L. R., 331. amount of damages to which the plaintiff is entitled for the detention thereof, and where the action is to recover a debt stating the amount thereof, and where the action is to recover damages for the breach of a contract setting out, specifically and in detail, the breach complained of and the actual damage resulting therefrom, and also stating either, first, that the defendant is a foreign corporation or is not a resident of the District, or has been absent therefrom for at least six months, and has estate or debts owing to said defendant in said District; or, second, that the defendant evades the service of ordinary process by concealing himself or temporarily withdrawing himself from the District; or, third, that he has removed or is about to remove some or all of his property from the District so as to defeat just demands against him; or, fourth, that he has assigned, conveyed, disposed of, or secreted, or is about to assign, convey, dispose of, or secrete his property with intent to hinder, delay, or defraud his creditors; or, fifth, that the defendant fraudulently contracted the debt or incurred the obligation respecting which the action is brought, the clerk shall issue a writ of attachment and garnishment, to be levied upon. so much of the lands, tenements, goods, chattels, and credits of the defendant as may be necessary to satisfy the claim of the plaintiff: Provided, That the plaintiff shall first file in the clerk's office a bond, executed by himself or his agent, with security to be approved by the clerk, in twice the amount of his claim, conditioned to make good to the defendant all costs and damages which he may sustain by reason of the wrongful suing out of the attachment.
Sec. 446. SERVICE.-Every such writ shall require the marshal to serve a notice on the defendant, if he be found in the District, and on any person in whose possession any property or credits of the defendant may be attached, to appear in said court on or before the twentieth day, exclusive of Sundays and legal holidays, after service of such notice, and show cause, if any there be, why the property so attached should not be condemned and execution thereof had; and the marshal's return shall show the fact of such service. If the defendant is returned "Not to be found," such notice shall be given by publication to the following effect, namely:
In the supreme court of the District of Columbia.
A B, plaintiff,
At law. Numbered -.
The object o this suit is to recover (here state it briefly) and to have judgment of condemnation of certain property of the defendant levied on under an attachment issued In this suit to satisfy the plaintiff's claim.
It is, therefore, this day of ..., ordered that the defendant appear in this court on or before the fortieth day, exclusive of Sundays and legal holidays, after the day of the first publication of this order, to defend this suit and show cause why said condemnation should not be had; otherwise the suit will be proceeded with as in case of default. By the court:
Wash. Loan and T. Co. v. Sus
Sec. 447. INTERROGATORIES.-In all cases of attachquehanna Coal ment the plaintiff may exhibit interrogatories in writing Co., 26 D. C.App., in such form as may be allowed by the rules or special
Ib., Banville v. order of the court, to be served on any garnishee, con
Sullivan, 11 D. C.
And every such order shall be published at least once a week for three successive weeks or oftener, or for such further time and in such manner as may be ordered by the court.
App., 23. cerning any property of the defendant in his possession. Brown, 22 D. C. or charge, or any indebtedness of his to the defendant at the time of the service of the attachment, or between the time of such service and the filing of his answers to said interrogatories; and the garnishee shall file his answers under oath to such interrogatories within ten days after service of the same upon him. In addition to the answers to written interrogatories required of him, the garnishee may, on motion, be required to appear in court and be examined orally under oath touching any property or credits of the defendant in his hands.
Sec. 448. ADDITIONAL ATTACHMENTS.-Upon the application of the plaintiff, his agent, or attorney, other attachments founded on the original affidavits may be issued from time to time, to be directed, executed, and returned in the same manner as the original, and without further publication, against a nonresident or absent defendant, and without additional bond, unless required by the court.
Sec. 449. SUFFICIENCY OF BOND.-In case the defendant or any other person interested in the proceedings is not satisfied with the sufficiency of the surety or sureties or with the amount of the penalty named in the bond aforesaid, he may apply to the court for an order requiring the plaintiff to give an additional bond in such sum and with such security as may be approved by the court;
and in case of the plaintiff's failure to comply with any such order the court may order the attachment to be quashed and any property attached or its proceeds to be returned to the defendant or otherwise disposed of, as to the court may seem proper.
Sec. 450. DEBTS NOT DUE.-A creditor may maintain an action and have an attachment against his debtor's property and credits, as aforesaid, where his debt is not yet due and payable, provided the plaintiff, his agent, or attorney shall file in the clerk's office, at the commencement of the action, an affidavit, supported by the testimony of one or more witnesses, as to the amount and justice of the claim and the time when it will be payable, and also setting forth that the defendant has removed or is removing or intends to remove a material part of his property from the District with the intent or to the effect of defeating just claims against him should only the ordinary process of law be used to obtain judgment against him, and shall also comply with the condition as to filing a bond prescribed by section four hundred and forty-five aforesaid. The plaintiff in such case shall not have judgment before his claim becomes due; and in case the attachment is quashed the action shall be dismissed, but without prejudice to a future action.
Sec. 451. TRAVERSING AFFIDAVITS.-If the defendant 2 D. C. App., in any case shall file affidavits traversing the affidavits filed by the plaintiff the court shall determine whether the facts set forth in the plaintiff's affidavits as ground for issuing the attachment are true, and whether there was just ground for issuing the attachment; and if, in the opinion of the court, the proofs do not sustain the affidavit of the plaintiff, his agent, or attorney the court shall quash the writ of attachment; and this issue may be tried by the court or a judge at chambers after three days notice. The said issue may be tried as well upon oral testimony as upon affidavits, and, if the court shall deem it expedient, a jury may be impaneled to try the issue.
26 D. C. App.,
447; 11 D. C. App.,
Sec. 452. ON WHAT LEVIED.-The attachment may be, Secs. 1088, 1091; levied on the lands and tenements, whether leasehold or 149; 1 D. C. App., freehold, and personal chattels of the defendant not 425. exempt by law, whether in the defendant's or a third person's possession, and whether said defendant's title to said property be legal or equitable, and upon his credits in the hands of a third person, whether due and payable or not, and upon his undivided interest in a partnership business. Every attachment shall be a lien on the property attached from the date of its delivery to the marshal, and if different persons obtain attachments against the same defendant the priorities of the liens of said attachments shall be according to the dates when they were so delivered to the marshal.
Sec. 453. How LEVIED.-The attachment shall be suffi- Sec. 1090. ciently levied on the lands and tenements of the defendant
by said property being mentioned and described in an
Levied on the following estate of the defendant, A B, to wit: (Here describe) this
And by service of a copy of said attachment, with said
38 L. R., 684; Sec. 454. The attachment shall be levied upon personal
chattels by the officer taking the same into his possession
A B, plaintiff,)
At law. Numbered
C D, defendant.
his surety, in consideration of the discharge from the
Or unless the person in whose possession the property is attached shall give to the officer, to be filed in the cause, an undertaking in the following form or to the same effect, namely:
A B, plaintiff,
At law. Numbered -.
Whereas by virtue of an attachment issued in the above-entitled suit, the United States marshal for the District of Columbia has attached certain property in the hands of the undersigned E F, as garnishee, namely, (here describe) of the value of dollars; and now, therefore, the said E F and G H, as surety, appearing in said suit, and submitting to the jurisdiction of the court, hereby undertake for themselves and each of them, their and each of their heirs, executors, and administrators to abide by the judgment of the court in relation to said property, and that if the same shall be condemned to satisfy the claim of the plaintiff, judgment may be rendered against all of the undersigned for the value of said property and costs, to be executed against them, and each of them, unless said property shall be forthcoming to satisfy the judgment of condem
And in either of said cases the attachment shall be sufficiently levied by the taking of the undertaking, as above provided for; and in the latter case the recital of the undertaking shall contain a sufficient description of the property and its value, which value shall be ascertained by an appraisement to be made under direction of the officer and returned with the writ.
Sec. 455. RELEASES.-Either the defendant or the person in whose possession the property was may obtain a release of the same from the attachment, after it has been taken into the custody of the marshal and the writ has been returned, by giving the undertaking required of him as aforesaid, with security to be approved by the
The plaintiff may except to the sufficiency of any undertaking accepted as aforesaid by the marshal and, if