Page:The American Cyclopædia (1879) Volume II.djvu/103

 ATTAIN I >KK crty dC u foreign or absent dclitdi 1 is seized. Tlic proceeding liuil its origin ii^n custom ot' I lie city nl' London, (>!' wliirli we lilld some Holier in the hooks as curly as the reign of l-'.dward IV. By this custom, mi action hav- ing been brought in the mayor's court against . and the writ having liccn returned nihil (that is to say, that nothing could lie found as a distress to compel appearance of defen- dant), and lhcrcu|ioii it being IdggMted ty the don is iudehted to A, a writ is issued to warn such delitor, who is thereafter in the proceed inns culled "g'lrnishec; " and if ho does not deny that he is iudehted, the dcht is hy virtue o! such writ attached in his hands to answer the judgment which shall he recovered against A. Cowell detines a foreign iittachliielit to he an attachment of foreign (foods found within a liherty or city in the hands of a third person for the satisfaction of some citi/.en to whom the said foreigner o elh money." Kut there is no trace of such proceeding in any other place in Kngland than London. This proceeding has hccii introduced into our eastern states and -.oine others, and is a common mode of collect- ing a dcht duo by a non-resident who has prop erty within the state, such property, whether lands, chattels, or debts duo to him, being .sei/ed at the commencement of the action to the judgment which shall ho recovered. It is soinetinies called trustee process, the per- son who is indebted or holds property of the non resident defendant being designated as trus- tee. In e York an attachment may by the code issue against the property of a non-resi- denl dcfeiidaiit who cannot lie served with process, hut the proceeding is Illoro simple than the trustee process of the eastern states. There is also a distinct proceeding for the at- tachment of property of absconding, concealed, absent, or non-resident debtors, which is not an action hut a sort of insolvent proceeding for the hem-lit of all the creditor* of the person vv lio-e property i- attached. ATTAINDER (Kr. trinitn; I, at. linger*, to stain I, in old English law, the extinction of civil rights, and the forfeiture of estate which followed, when a person was condemned to death for treason or felony, or where judgment ol outlawry had been pronounced against, him lor not appearing to answer to a capital ('rime. It might, also lake place by act of parliament, called bill of attainder. In the case of high tiva-ou the clfecl was forfeiture of real and personal eitate, and corruption of blood, so as to interrupt hereditary de-cent of any civil right. For capital crimes le-,-, than high Ircu son, there was a forfeiture of personal property absolutely, and of the profits of freehold estates during life ; and after the death of the criminal all bis lands in fee cnl to the crown for a year and a dav. The corruption of hi I can .ed also an escheat of lands. Kut in its operation escheat was subordinate to forfeit lire. In high treason the forfeiture in|ei- ened to defeat the escheat altogether, and in the lesser otfenccs it interrupted it for the sovereign's year and day. Kut the escheat did not take place mere ly in respect to the lauds held by the olfender. Thus if a father was seized in fee, and his son committed treason and was attainted, and then the father died, the father's lands even in that case escheated, because at bis death the son was incapable of inheriting them, and the son's heirs could not take them because they could only deduce their title through the son. Hut I here was no forfeiture in such a case, because the criminal never had the lands. This cor- ruption of blood and its consequences could not be remedied save by act of parliament. Ky statute T Anne, eh. 21 (the operation of which was suspended at first during the life of the pretender, and afterward during the lives of his .on-, but which suspension was repealed by !t!l (loorgo III., cb. !).', it was enacted that no attainder for treason should extend to tho disinheriting of any heir, or to the prejudice of any person other than the traitor himself. Ky the statute f>4 George 111., eh. 145, it was pro- idcd that no attainder for a felony, except treason or murder, should extend to the dis inheriting of any person, nor to the prejudice of the right or title of any person other than the olfender himself, during his natural life only; and any person who might otherwise in- herit, might on his death claim his land. There have been several subsequent enactments of a similar tendency. A bill of attainder was a legislative conviction for alleged crimes with judgment of death. The great act of attainder passed in lliHN by the parliament of James II., by which more than 2,000 persons wore at- tainted and their property itiscaled, is one of the most noteworthy illustrations of thin sort of legislative convictions. Other acts of the same character were those relating to the earl of Stratford in 1(1-1 1, to Sir John Ken wick in hi'.nl, to Lord Clarendon in Kill!), and to Bishop Atterbury in 1728. The so-called bills of pains and penalties were of tho same character, though of a milder form, indicting punishment less than that of death. Not only probably on account of the mere injustice of all legislative acts of this character, lint a well in the fear that the power to intlict such punishments in- trusted to the legislature of a democratic state might lead to unusual excesses and abuse in times of political excitement, the founders of onr government by a distinct constitutional provision prohibited the enactment of any such laws here. The constitution of the 1'nitcd Stales declares that no bill of attainder shall be passed either by congress or by any stale. Kut as it. still remained competent for the jn diciary to convict of I reason or to declare at tainders, the constitution, still further to guard against this odious form of enactments, also provided (art. '!, sec. )!) that, congress should have power to declare the punishment of trea- son, but thai no alt ainder oft reason should work complete corruption of blood or forfeiture c
 * il:iintiir that another person residing in I -on