Saturday, October 18, 2008

Legal Talk (3)

Topic: Understanding Legal Terms Pre: 1901 #3


A process by which chattels, rights, or credits belonging to the defendant in an action, but which are in the possession of a third person, are seized and applied to the plaintiff's claim. The peculiarity of the process is indicated by the etymology of the term; garnishment meaning a warning or notice given to the third person not to pay money or turn over property to the defendant. It has been called an equitable attachment of the claims or assets of a defendant in the hands of a third person. It is not a common-law process, and is regulated by statute in the States where it exists. Such statutes are, as a rule, strictly construed, and their requirements must be fully and fairly complied with by a plaintiff who would take advantage of them. It is held that only such property in the hands of the third party, the garnishee is liable to this process as is not encumbered with trusts, and such as may be handed over or paid by the officer executing the process, under the order of the court and free from encumbrances, which can be properly determined and adjusted only by equity tribunals. Garnishment proceedings reach only such debts as are owing to the defendant at the time the process is served. A judgment obtained in a Federal court cannot be garnisheed in an action in a State court. Such garnishment would operate to oust the Federal court of its proper control over its own judgments. Debts owing by a public corporation to the defendant are not garnishable. If they were, municipal authorities might be compelled to occupy their time over contests in which the public had no interest. It may be laid down as a general rule that a person deriving his authority from the law to receive and hold property cannot be garnisheed for the same while holding it in that capacity.

As soon as the process of garnishment is duly served, the garnishee holds the property as a stakeholder or trustee. Accordingly, garnishment is known in some States as 'trustee process.' Consult Rood, Garnishment (1896), and the authorities referred to under Attachment.

In Personam

In the classification of legal rights, a right in personam is one available against a particular person as distinguished from one maintainable against the whole world, known as a right in rem. Rights in personam arise out of specific engagements entered into by individuals or out of duties imposed on individuals by the policy of the law. They thus comprehend all contract rights, the rights that arise out of the domestic relations or out of fiduciary or official position. Thus, the right tot he performance of a contract, the right of a husband to the society of his wife, the right of a beneficiary against a trustee, in each case asserted against a determinate person, are all rights in personam. But by far the largest class of these rights is that which springs from the violation of other rights, whether rights in rem or in personam. A right once violated whether a right of property by a trespass, or the right of personal security by an assault, or a contract right by a breach of contract a right of action arises, and this right of action, being limited to the person or persons committing the act complained of is necessarily a right in personam.

The expression in personam is also commonly employed to describe the action instituted for the violation of any right, whether in rem or in personam. Wherever an action is brought against an individual, whether for damages or for the restitution of money or specific property, it is properly described, as an action in personam. The action in rem is in our law limited to a narrow range of cases. The phrase in personam is also employed in a narrower sense to describe the mode in which a legal obligation is enforced against an individual. The courts of chancery are said to act in personam, i.e. by ordering a person to do or to refrain from doing a certain thing, while courts of law, whose function is not to command, but to adjudicate controversies, are said to act in rem.


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