$®imwm If **$w' yfy .- ^-* .. •e^^ 1 to 15°! 2. i3i Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 7592.L81 The law and practice of foreign attachme 3 1924 021 847 615 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021847615 «, T t HE LAW AID PRACTICE FOREIGN ATTACHMENT LORD MAYOR'S COURT, UNDER THE NEW RULES OF PRAOT»lfel OF THE FORMS OP PROCEEDING IN ATTACHMENT, AND IN ORDINARY ACTIONS. BY JOHN LOCKE, M.A BAEEISTEB-AT-1AW, AND ONE OS THE COMMON PLEADEES OE THE CITT OP LONDON. " OPTIMXJS DJTEEPEES BEBUM USDS." PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLEES, PUBLISHERS AND IMPORTERS, NO. 197 CHESTNUT STREET. 1854. THE EIGHT HONOURABLE JAMES ARCHIBALD STUART WORTLEY, M.P., RECORDER OP LONDON, JUDGE OF THE MAYOR'S COURT, THIS BOOK IS MOST RESPECTFULLY DEDICATED BY HIS OBLIGED AND FAITHFUL SERVANT, THE AUTHOR. CONTENTS. The pages referred to are those between brackets. [ ]. INTRODUCTION. Page Mayor's Court thrown open to Attorneys and Solicitors, of superior ., Courts —Object of the work — Observations on the Customs and Charters of London — Of the Advantages of the Customs of Foreign Attachment xi to xxvi CHAPTER I. OP THE CUSTOM OP FOREIGN ATTACHMENT. Its Nature and Object — Explanation of the several branches of the Custom and the Proceedings to be taken under them . . . . 1 to 21 CHAPTER II. OF THE LOUD MAYOR'S COURT. Its Powers and Jurisdiction — Title — Judge — Registrar — Common Pleaders — Attorneys — Juries — Officers . . . . . . 21 to 26 CHAPTER IH. WHEN FOREIGN ATTACHMENT MAT BE RESORTED TO. Of the Defendant's Claim against the Garnishee — Of what an Attachment may be made — Nature of Debt — Goods when Attachable — Where and against whom an Attachment will lie — Where not . . . 26 to 48 CHAPTER IV. OP DISSOLVING OR DEFEATING AN ATTACHMENT. By bail in Mayor's Court— By removal into Superior Court — Prohibition yi CONTENTS. Page Wager of Law by Garnishee — By Verdict for Garnishee — By Lien of Garnishee — By Defendant after satisfaction acknowledged on the Record By Wager of Law by Defendant — By Verdict for Defendant — By Writ of Error— By Bill of Proof 49 to 67 CHAPTER V. OP APPRAISEMENT OF GOODS ATTACHED AND SEQUESTRATION. How Appraisement made — Of an Elongavit — Where Goods may be Seques- tered — Proceedings under — How Disproved or Avoided — Record of 68 to 71 APPENDIX. Forms in Attachments . 73 to 96 Rules of Court and Forms of Proceeding in Ordinary Actions — Costs in — Dies non juridici in Mayor's Court 97 to 112 TABLE THE CASES CITED BY NAME. The pages referred to, are those between brackets [ J- Allen v. Tooley Andrews v. Clarke Appleton t. Stoughton B. xvi. 30 3 44 Babbington's case Bailey v. Modigliani, Bartolli, De- fendant 31 Ballard v. Bennett 52, 65 v. Clement 65 Banks v. Self 2, 1, 14, 18 Barber v. Devaux, Brant, Defend- ant, 41, 61 Barclay v. Hunt 6 Barry v. Kobinson 59 Barrymore, Lord, v. Taylor 20 Bastow v. Gant xii., 52 Bayne v. Scott, Colvin, Defendant 4, 6 Beard v. Webb 52 Bentley v. The Corporation of Lon- don 25 Blacquiere v. Hawkins xvi. Boote v. Bullfinch, Thwaites, De- fendant 10 Bowerbank v. Walker 51 Brien v. Knott 3 Brind v. Hampshire 30 Bristow v. Potts, Fletcher, Defend- ant 34, 39 Brooke v. Smith 44 Bromley v. Peck xii., 21 Bruce v. Wait 13, 21, 52, 60, 62, 65 Duller v. Harrison 43 Bulmer v. Marshall 52 C. Caila v. Blgood Carslake v. Mapledorum 45 23 Carteret, Lord, v. Paschall Chamberlain v. Chamberlain Chamberlayne v. Green Chamberlayn of London's case City of London's case Olapham's case Clark v. Denton v. Dixon _ Cleve v. Mills ' Coppell v. Smith Cox v. Hart \ Crofte's case Crosby v. Hetherington Cross v. Smith Cunningham v. Cohen xvn., 40 35 21 xiii. xvi. 51 1, 52 51 36 45 52 52 2, 3, 14, 20 51 61 D. Dalmer v. Barnard 4 Dalton v. Selby 28, 29 Davis v. Staples, Ellis, Defendant 10 Day v. Paupiere xii., 1, 8, 51 v. Savadge 3 De Haber v. The Queen of Portu- gal ' 47, 53 Denton v. Maitland 45 De Timadeuc v. De Glimes, Laurie, Garnishee 65 Dicksey v. Spencer 65 Dorrington v. Edwards 51 Douglas v. Forrest 13 Dutens v. Eobson 23 E. Edie v. Gascoigne 69 Edwards v. Tedburies 32 Emery v. Bartlett 24 F. Fazakerley v. Wiltshire xvii. Vlll TABLE OF CASES. Fazakerly v. Baldoe 52 French v. Bellew 4 G. Garnham v. Hammond 6 Gidley v. Loid Palmerston 46 Godley v. Marsden 52 Goodair t. Cohen, Valery, Defend- ant 34 Grant v. Harding 45 Greene v. Cole 64,65 Hale y. Walker 14 Hamburgh, Co. 35 Hardman v. Willcox 43 Harrington v. M'Morris 7, 13^0 Harwood v. Lee 34 Hatton v. Hermorger 7 Hays t. Barnaby 44 Heeley v. Ward 23 Hem v. Stnbba 30, 34 Higgenson v. Parker, Davis, De- fendant 3 Hobson y. Campbell 6 Hodges v. Cox 45 Holt v. Murray 38 Hope t. Holman 34 Hornfell v. Derion, Hoist, Defend- ant 10, 15 Horsam v. Turget 46 Horton v. Beckman 2, 7, 51, 52 Hunter v. Potts 36, 37 Hutchinson, Ex parte 5 Huxham v. Smith 20, 23 Ingram v. Bernard K Karstens v. Woolff, Borchard, De- fendant Eeat t. Castles v. Goldstein Kemp t. Bain t. Clark Kerry t. Bower Kohn v. Bremen, Frautz, Defendant Laughton v. Taylor Lee t. Palmer, Poe, Defendant Leveux t. Berkeley Lewis v. Wallis Lilley v. Hays Lodge's case LoTeridge y. Whitrow Lubbock t. Campbell, Blake, De- fendant 29 M. Macheath v. Haldimand 46 Magrath v. Hardy 2. 7. 13. 18. 20 Malladew v. Drew, TJsborn, Grnisahee 7 6 45 21 13.21 33 Mann v. Sherriff Masters v. Lewis Mayor of London v. The Queen M'Daniel v. Hughes 7 ICchUl t. Hores Morgan v. Kirwan, White, Defend- ant Morris t. Ludlam N. 11 20 57 Nathan v. Giles Nelson v. Martin, Stone & others, Ho op er , defendant 5 1 Nonell v. Hullett 21. 34, 35 v. Noquiere & Williams, gar- nishees, defendant 30 O. O'Mealy v. Newell 4,5 Page's case 46 Page t. Donaldson, Oswald, defend- ant 31 Palmer v. Hooke 44 Peacock t. Bell 23 Phene t. Watkins, Whitmore, defend- ant 33 Phillips t. Hunter 36 Plummer v. Bentham 3 Pope t. Vaux 52 R Bead v. Hawkins 38 Seeks v. Graneman 6 Sees r. Smith 23 Beg. v. The Mayor of London 31 Bex v. The Chamberlain of Worces- ter 52 Bex v. Harrison xvii. Bex v. AVestwood xvii. Richards v. Hudson 37 Bidge r. Hardcastle 32 Bobbins v. Standard 28, 29 Robertson v. Norrey King at Arms 21 Robinson t. Watkins xvii. Roche v. Carey 6 Ross t. The York, Newcastle and Berwick Railway Co. 25 S. Scamett v. Rice Self v. Kennicott Selkreg t. Davis 51 30 36 TABLE OP CASES. IX Sheldon v. Baker Sill t. Worswick Smith v. Ogle Smith v. The Mayor and Aldermen of London Snelling y. Norton Solomon v. Ross Spink v. Tenant Stannian v. Davis Swayne v. Grammond 6 36,37 21 Tamm t, Williams 12, 20 Taylor v. Plummer 43 The. City of London's case 62 Thompson v. Davenport 56 Tollett v. Deponthieu 37 Tonna v. Edwards 6 Trevor v. Wall 23 Tross v. Michell 33 Turbill's case 2. T. 13. 31, 32 61,62 Unwin v. Wolseley 46 V. Verrall v. Robinson 33 W. Wadsworth v. Martin, Stone & Ors, The Queen of Spain, defendant 7. 47. 53 Wagoner's Case Waldock v. Cooper 23 Waring v. Knight 37 Watson v. Clarke 52 Webb v. Hurrell 20 Wetter v. Rucker 20 White v. Robins, Garriok, defend- ant 10 Williams v. Everett 30 Williams v. Gibbs 61 Williams v. Welsh 5 Wolf v. The City Steam Boat Com- pany 35 Wood v. Smith 35 Wood v. Thompson xii., 21 Worsler, Ex parte 5 Wylie v. Anderson, Ramsey, defend- ant 36 September, 1853.— 25 INTEODUCTION. A decision having been lately come to by the Court of Aldermen to throw open the Lord Mayor's Court to " all attorneys and solicitors of the superior Courts at Westminster who shall apply to be admitted as practitioners therein," it is probable that the Court will be much more resorted to than it has hitherto been ; and more particularly for the pur- pose of making attachments. It has been thought a work upon the subject of Foreign Attachment would be useful to those members of the Profession who have not been accustomed to that proceeding ; and the Author has, therefore, endea- voured to explain the law upon this subject as concisely as its nature will admit. It has been his object to lay before the reader in a clear form, the nature of the custom, the mode in which it must be enforced, and the manner in which an attachment may be dissolved or defeated. He has indeed done little more than collect in a form, as he hopes, more convenient to the *Profession than has hitherto been accom- r ±. ..-, plished, the leading authorities upon the subject ; and in the L J performance of that task he has referred to the various publications which have been in use, amongst those which have hitherto practised in the court. It will be readily understood that the practice of a close court, such as the Mayor's court has hitherto been, should in process of time have become in a great measure traditional; and the object of the author in the following pages has been, to search out the authorities upon which that practice has been founded, and by referring to such authorities, to correct the errors which had gradually crept into various works on the subject. He hopes he has been successful in this attempt. One error which very generally prevailed, notwithstanding the decisions of Wood v. Thompson, and Bromley v. Peek,(a) was to consider an attachment by the custom to be in the nature of an arrest; and had it not been finally corrected by the decision of the Court of Queen's Bench, in the case of Day v. Paupiere,(6) the custom would, for all purposes of utility, have been entirely destroyed ; inasmuch as a cause might have (a) 5 Taunt. 851 and 852. [b) 13 Q. B. 802, and see Bastow v. Gant, Id. 807. XU LOCKE ON FOREIGN ATTACHMENT. been removed into the superior courts without putting in special bail, and the plaintiff thereby deprived of the security which his attachment, by the custom, of the money or goods of the defendant afforded him. .-£ ..... *The Author thinks it will not be foreign to the purpose of L J this work which treats more particularly of one of the customs of the city of London, if he introduces a few observations respecting the customs and charters of London generally. And first, let it be observed, that the customs of the city of London differ from those of all other places. They are confirmed by William the Conqueror,(c) and after- wards by all his successors, by whom also, from time to time, other charters were granted.(d) The destruction of the liberties of the city of London, attempted in the time of Charles II. by the infamous quo warranto, where- by the Crown seized into its hands the liberties and privileges of the city, for a pretended forfeiture by the citizens in petitionirig the King j- % ■ „ -. for a free Parliament, (e) *was prevented even before the L "" J revolution of 1688 ; for King James II. on the *first (c) The literal translation of this charter, from the original Saxon, ia as fol- lows: — " William the King greets William the Bishop and Godfrey the Portreve, and " all the Burghers within London, French and English, friendly. And I make "known to you that I will, that ye be law- worthy, as ye were in the days of King " Edward. And I will, that each child be his father's heir after his father's days. " And I will not sufFer that any man command you any wrong. God keep You." There is another charter of the Conqueror preserved in the same box with the above. It is without date : and it does not mention to whom the grant is made. It is directed to the Bishop and Sweyn, the Sheriff of East Saxony, and merely states that he has granted to his dear man or mm (friends), a certain piece of land at Gyddesdon, according to his agreement ; and that he will not suffer the French or the English to hurt them in anything. Norton's Com. p. 324. (d) Chamberlayne of London's case, 3 Leon, 264, and see Bohun Priv. Lond. 80. (e) The allegation in the plea, put in by the Crown, is as follows : — "And further, That whereas a session of parliament was holden by prorogation, "and continued to the 10th of January, 32 Car. 2, and then prorogued to the 20th "January then next. "The mayor, commonalty and citizens, 13th of Jan., 32 Car. 2, in their common " council assembled unlawfully, maliciously, advisedly and seditiously, and with- " out any lawful authority, assumed upon themselves, ad censendum, §c, judicandwm " dictum Dominum Regem, §c, prorogationem Parliamenti per Dominium, Regem sie "fact. And then and there in common council assembled, did give their votes " and order, that a certain petition under the name of the mayor, aldermen and " commons of the City of London, in common council assembled, to the king "should be exhibited, in which said petition was contained: "That by the prorogation the prosecution of the public justice of the kingdom, " and the making necessary provision for the preservation of the king, and of his "Protestant subjects had received interruption. And that the mayor, and com- " monalty and citizens in the same common council assembled did unlawfully, "maliciously and seditiously, and with intention that the said petition should be " dispersed amongst the king's subjects, to induce an opinion in them, that the "said king by proroguing the parliament had obstructed the public justice, and "to incite the king's subjects to hatred of the king's person and government, and " to disturb the peace of the kingdom, did order that the said petition should be " printed, and the same was printed accordingly to the intent and purpose afore- "said. ." By which the mayor, commonalty and citizens aforesaid, the priviledge, liberty, " and franchise of being a body politic and corporate did forfeit, and afterwards "by the time in the information, that liberty and franchise of being a body politic, " did usurp upon the king. Et hoc, &c. " And as to the other two pleas, viz., the making and having sheriffs and jus- INTRODUCTION. XU1 rumour of the Prince of Orange's preparations, sent the Lord Chancellor Jeffries to the city, and restored the former charters; and these were afterwards fully confirmed by the statute 2 W. & M. sess. 1, c. 8, which statute after reciting the judgment in the quo warranto, enacts that it shall be reversed and made void, and vacats entered upon the Rolls. It then enacts that the Mayor, Commonalty, and Citizens of London, do remain a body politic by the name of Mayor and commonalty, and Citizens of the city of London, &c, without any seizure or forejudger of the said franchise, &c, upon pretence of any forfeiture or midemeanor done, or to be done ; and that they shall have and enjoy all their rights, charters, &c, which they lawfully had at the time of the recording or giving of the said judgment. That all Charters, Letters-Patent, &c, for incorporating the citizens and commonalty of the said city, or any of them, and charters, &c, con- cerning any of the liberties, &c, lands and tenements, &c, rights, titles or estates, made since the said judgment, by the late King Charles II., or King James II., are thereby declared void. Also, all the officers, companies and corporations, are restored, &c, and persons admitted since the said judgment into freedoms or liveries of the said companies, according to the custom of the City, should enjoy the rights and liberties of freemen and liverymen ; and this act is reputed a general and public act of Parliament. One great distinction between the customs of the *city of r;|t ... London and all others is, that they are declared never to become L J obsolete by nonuser or abuser; and, as they are confirmed by act of Parliment, the citizens of London may prescribe against a statute which does not contain an express enactment annulling them.(/) There is also another privilege belonging to the citizens, viz., that these customs may be and are certified and are recorded by word of mouth ; and it is directed that the mayor and aldermen of the city and their successors, do declare by the Recorder whether the things under dispute be a custom or not, before any of the King's justices without inquest by jury even though the citizens themselves be parties in the matter at issue ;(#) and, being once recorded, they are afterwards judicially noticed.(A) But unless the party who desires to have a question concerning the existence of a custom of the city of London tried by certificate, surmise that when the parties have been at issue concerning the existence of such a custom, it has been usual to try the issue by the certificate of the Mayor and Aldermen, the question is not to be so tried. (i) "tices of the peace, the attorney-general imparles to Michaelmas Term." See Pleadings, &c, on Quo Warranto, London, 1690. (/) 4th Charter Edw. 3; 4th Charter Hen. 4; Palmer, 542; Bohun Priv. Lond. 17. 80; 19 Hen. 6, 646; Allen v. Tooley, 2 Bulst. 188; City of London's case, 8 Co. 126; 2 Inst. 20, and see the case of Quo Warranto, Treby's Argument, p. 30 and 31. (g) Charter of Edw. 4, dated 9th Nov., A. B. 2, confirming the ancient customs, Norton's Comm. 433 ; Crosby v. Hetherington, 4 M. & G. 933. (A) Blacquiere v. Hawkins, 1 Doug. 380, and see Pulling's Laws and Customs of London, 7. (i) Bacon's Abr. Trial (C). Xiv • LOCKE ON FOREIGN ATTACHMENT. *One of the most important charters in the 4th of Edw. III. L XV11 J (1342); (A) this is an inspeximus charter confirming all the pre- ceding charters. It further confirms an aneient privilege as existing by ancient custom,— that if any customs "in the said City, before that time obtained and used, were in any part hard and defective, or any things in the same city newly arising, in which no remedy has been ordained, should need amendment, — the Mayor and Aldermen, with the assent of the Commonalty, might ordain thereunto a fit remedy, as often as it should seem expedient to them, so that such ordinance should be profit- able to the King and to the citizens in general, and all other liege subjects resorting to the city, and also consonant to reason and good faith." Under this charter the bye-laws of the city of London are enacted ; and where the corporation have not delegated their powers to the Legislature, as in the pase of their Election Acts — II Ceo. 1, c. 18, .and 12 & 13 Vict. c. 94, — they are most extensive(Z) and have been exercised from time to time in remodelling their institutions, (m) „ ..... As one of the counsel in the Mayor's Court of *many years' L J standing, the Author might, perhaps, with reason, be thought to lean unduly in favour of the laws which are there administered; and he, therefore, begs to refer the reader to certain extracts from the report of the Municipal Corporation Commissioners, in which all the objections which can be urged against the custom of Foreign Attachment and the mode of its administration are fully stated ; and in which he thinks its advantages are clearly shown greatly to preponderate over its defects. He may at the same time be permitted to observe, that his own experience of the proceedings taken in foreign Attachment, induces him fully to coincincide in the opinion expressed by the Commissioners, — that the alleged objection to the custom "do not appear to be so formidable as has been represented, but the advantage of a speedy and safe mode of re- covering debts is obvious." Indeed the Author is satisfied, that number- less debts are recovered by this process, which but for its adoption, would inevitably be entirely lost to the creditor. The Municipal Corporation Commissions were appointed by a com- mission dated the 18th of July, 1834, to inquire as to the existing state in the Municipal Corporations in England and "Wales, and to collect information respecting the defects in their constitution ;" and were fur- ther enjoined, amongst other duties, " to make inquiry also into their jurisdiction and powers, and the administration of justice, and to inquire intoflie several local jurisdictions existing within the limits of all corpo- rate towns in England and Wales. r# . .. *The commissioners upon whom the duty of making a report *• J upon the institutions of the City of London devolved, were Sir (k) This charter ia to be found in Lib. Alb., and is referred to in the act of 7 Rich. 2, (1383,) in the 3d vol. of Rolls of Pari. 16. It was pleaded in Wagonor's case, Coke's Reports, part 8, p. 121 b ; Robinson v. Watkins, Skinner, 371, and Rex v. Harrison, 3 Burr. 1323. (I) See Mildmay on City Elections, 1 ; 2 Rep. M. C. C. 8. (m) Ord. 7 Rich. 2; 21 Rich. 2; 18 Jac. 1; 13 Ann; Viner's Ab. Bye-Laws; 3 Hen. 7, c. 9 ; Fazakerley v. Wiltshire, 1 Str. 462 ; Rex t. Westwood, 4 B. & C. 781 ; Clark v. Denton, 1 B. & Ad. 92; Bacon's Ab. tit. Bye-Laws, A.; Case of Corpora- tion, 4 Co. 776. INTRODUCTION. t \ / XV Francis Palgrave, David Jardine, T. E. Ellis, Junr., and J. E. Drink- water Bethune, Esqs., four gentlemen who brought to the consideration of the subject, an amount of learning and experience which must entitle their observations to the highest consideration. The remarks to which I have just alluded, are subjoined to their explanation of the custom and are as follow :(») "A difference of opinion prevails amongst mercantile men, with « respect to the utility of this *prooeeding. On the one side it r!|c , " is said to be important, in a commercial community, to be rea- L J " dily able to apply the property of an absent debtor, wherever it may "be found, to the payment of his creditor; and this, it is contended, is " particularly advantageous in a city much frequented by foreigners for " the purpose of trade, who may contract debts during their abode in " England, and then remove themselves- to foreign parts, beyond the « reach of personal process. On the other hand, it is supposed to em- " barrass commercial operations, in consequence of the unusual power " which it places in the hands of creditors, by enabling them suddenly " to lay an embargo upon the goods of their debtors, which cannot be " applied in discharge of any commercial engagements with third per- " sons, until the attachment is removed. The apprehension of this pro- " cess is said to deter foreign merchants from consigning cargoes to Lon- " don. It does not, however, appear to be likely that the existence of "this custom should, under ordinary circumstances, have the effect of " deterring the fair merchant from sending his goods to London, though " it may well happen that a trader, who has contracted debts in London " which he does not intend to pay, or who suspects that claims will be " set up which he does not wish to afford the claimants any facilities for " litigating, would hesitate to send a cargo to a port where, by means of " this process, any of his creditors there, real or pretended, might in- " stantly seize it. Nor can much practical inconvenience arise *■# ... " from the power of suddenly attaching the property of debtors; «- J " for the garnishee, who is in almost all cases the agent of the defendant " in some shape or other, may at any time dissolve the attachment, by " appearing for the latter, and putting in bail to the action ; or if satis- (») In order that the general reader may clearly understand the scope and mean- ing of these remarks, he mnst be aware that in all attachments, the person whose money or goods is attached, is called the defendant, and the person in whose hands the attachment is made, is called the garnishee. And although the plaintiff in any attachment shall obtain a verdict and judgment for the moneys attached in the garnishee's hands ; yet the defendant in the attachment, may at anytime before satisfaction acknowledged upon record, put in bail to the plaintiff's action, upon which the attachment is grounded, and thereby discharge all the proceedings against the garnishee ; and although the garnishee be taken in execution upon any judgment, yet if bail shall be put in by the defendant, in manner, as aforesaid, before the money shall be paid, the garnishee will be immediately discharged. Green's Priv. Lond. 15. And after judgment obtained by the plaintiff against the garnishee, on any attachment, the plaintiff must, before execution is awarded, find sureties who must undertake for the plaintiff, if the defendant in the attachment shall within a year and a day come into Court, and disprove or avoid the debt demanded against them by the plaintiff, that then the plaintiff shall then restore to the defendant the money condemned in the garnishee's hands, or so much thereof as shall be disproved, or else that they, his sureties, will do it for him. Bohun Priv. Lond. 258. Xvi LOCKE ON FOREIGN ATTACHMENT. " fied of the truth of the debt upon which the attachment issues, he " may pay the plaintiff's demand, and take credit for the amount in his " account with the defendant; for a payment under an attachment would « be pro tanto an answer to any demand against the garnishee by the « defendant. And in no case can a larger property be attached, than the « amount of the sum sworn to by the plaintiff in his affidavit of debt. » The alleged objections do not, therefore, appear to be so formidable as " has been represented ; but the advantage of a speedy and safe mode of " recovering debts is obvious. " There are, however, several imperfections in this proceeding, as at " present in use. In the first place, no costs are recoverable on either » side ; and therefore, where a small debt is contested, if the plaintiff " succeeds against the garnishee, his costs may very possibly exceed the " sum he can recover; and if the garnishee has no goods of the defend - " ant in his hands, and succeeds in shewing himself not to be liable to " the attachment, he may incur considerable expenses without the possi- " bility of reimbursement. Secondly, the efficiency of the custom is " much impeded by the limited extent of its local jurisdiction. Thus r* "i " g 00 ^ 8 i n a ware-house *in Thames-street may be attached ; but L xxl J u if lying in a lighter on the river Thames, within a yard of the » warehouse, they are exempt. So also, if a merchant keep his cash " with a banker in the city, it is liable to the process ; but if his banker " dwell a few yards beyond the limits of the city, no attachment can be " made of his balance, unless indeed the plaintiff should prepare himself " with process, and be fortunate enough to serve it upon one of the part- " ners, when accidentally within the jurisdiction : in which case, as he " is supposed to carry- with him all the debts and liabilities of the house " to which he belongs, the balance of any customer of the firm might " be attached. When the Act of Parliament was applied for, to author- " ize the construction of the London Docks, it was proposed by the Cor- " poration of London to extend the jurisdiction of the City Courts, and " consequently the application of Foreign Attachment, to the site of the » projected Docks. But this proposal was successfully resisted by the « projectors, on the ground that the liability to this process might deter « merchants, and particularly foreigners, from using the docks, and " therefore, endanger the success of the undertaking. It should also be « noticed that, in most cases, this process terminates in merely compel- « ling bail to be given for the defendant's appearance. This arises from " the circumstance that the garnishee, by putting in bail for the defend- " ant's appearance, may at once dissolve the attachment. In almost all " cases the garnishee is the agent of the defendant either as his banker, ri|s ..... " factor or ^broker, and is of course adverse to the plaintiff's L xxm J u demand. He therefore satisfies himself that he has sufficient " security for the defendant's appearance, and then gives bail for him,(o) " which at once releases the defendant's property in his hands, and leaves (o) That is special bail as security to pay the debt demanded. Bohun Priv. Lond. 280. INTRODUCTION. XV11 « the plaintiff to the same security which he would have in a common " action. (p} " A serious objection, in principle, to the proceeding, as universally " practised in London at the present day, would seem to arise from the " opportunity which it may afford for fraudulent collusion between the " plaintiff and garnishee to the injury of the defendant, though, it must " be stated that no mischief appears to have practically occurred in this " respect. This circumstance is owing to the fact that the garnishee " being usually the agent of the defendant, is almost always more " inclined to him than to the plaintiff; and is, consequently, not likely, " in ordinary cases, to collude with the latter. This objection, however, " applies, not to the custom itself, which is, in this respect, just and " reasonable, but to the abuse and corruption of it in modern practice. " By the letter of the custom, as above stated, the defendant must be " sought, in the first instance, by the officer of the Court, and if not " found in the City, and if he does not "answer when openly call- r ^ . -. " ed in Court, the first process of attachment may issue against L J " his goods. Still no step can be taken towards appropriating them, " until the defendant has been solemnly called at four several Courts, " and then, and not till then, the granishee may be summoned. In " ancient times, therefore, when the custom was strictly adhered to, « every possible precaution was taken to give notice to the defendant of «' the intended proceeding against his property ;(g) and unless he was " actually absent from the country (in which case he_ might, on his " return within a year and a day, resort for his protection to the securi- " ties given by the plaintiff for restoring the goods,) it was scarcely pos- " sible he should not be informed of it. But the present practice is to " give no notice of any kind to the defendant. The summons, the " return of non est inventus, the four separate defaults on being called " in Court, are indeed entered formally upon the record ; and there is " no doubt that, unless they were so entered in every case, the judg- » ment against the garnishee would be erroneous ; for the custom itself « would be contrary, not only to the common law, but to the first princi- " pies of justice, if it sanctioned a proceeding against a man or his pro- " perty without notice. But this principle is entirely disregarded, or is " considered a mere matter of form, and there is in practice *no ^ -. » protection whatever to the defendant against a fraudulent col- L -I " lusion between the garnishee and the plaintiff. It appears, therefore, " quite within the range of possibility that a solvent defendant may " reside next door to the garnishee with whom his goods are deposited ; « that the garnishee and plaintiff may secretly agree to an attachment for » a real or fictitious debt ; that execution may issue ; and even that the " year and a day may expire, and consequently the property may be « absolutely lost to the defendant, before he has any notice of the tran- » saction." {p) That is bailable action, this report having been written before the passing of the 1 &2 Vict. c. 110. (q) See observations upon the branch of the custom, and it be returned nihil, post, pp. 11, 12 and 13. Xviii LOCKE ON EOBEION ATTACHMENT. With reference to the subject discussed in the latter part of the above extract, the Author may be permitted to state, that during his practice in the Mayor's Court, there has never been brought to his notice a single instance, in which the garnishee' and the plantiff have secretly agreed to an attachment for a real or fictitious debt ; and that his own opinion, based upon considerable experience, is, that the time allowed by the custom for the defendant to come in and defend the action, and the sureties for restitution which must be given by the plaintiff on obtaining judgment, are amply sufficient to prevent the parties having recourse to any such artifice. An advantage is also secured by the mode of proceeding by attach- ment, namely, that the question between the plaintiff and the defendant in the action is contested, the fund meanwhile being secure. In this respect the Mayor's Court provides the plaintiff with a guarantee against ultimate loss, in the event of his succeeding, and thereby supplies a rJS ... *defect which is very much felt in the Courts at Westminister L J Hall. The power of the Mayor's Court to grant a discovery in any case pending therein, ' is also very beneficial to the suitor ; and it is to be hoped that this power also will shortly be extended to the supe- rior Courts. It has been thought better not to introduce any mention of the dies non juridici in the Mayor's Court into the body of this work, as it is hoped that they will be speedily abolished. It was the wish of the late Recorder (the Honourable Charles Ewan Law) to relieve the Court from this incovenience ; and as the present Recorder is equally anxious to do so, and so great a change has already been effected in the practice of the Court, there can be no doubt that this further improvement will follow. At present, however, the dies non juridici do exist, and I have, therefore, added them in the Appendix. The new table of costs in attachments had not been completed when this work went to press, so that the Author has not been able to insert it. The Author cannot conclude this Introduction without acknowledging his obligations to his friends, Mr. J. A. Russell, of the Northern Circuit, for many useful suggestions ; and Mr. Brandon, the Deputy Registrar of the Mayor's Court, for his kindness in furnishing him with those forms of proceeding in attachment, which he did not possess ; and also those in ordinary actions, together, with Mr. Brandson's own most valuable directions respecting them. OF FOREIGN ATTACHMENT. I. OF THE CUSTOM OF FOREIGN ATTACHMENT. The most important power possessed by suitors in the Mayor's and Sheriff's Courts of the city of London, consists in the process called Foreign Attachment. This is a very ancient proceeding, taking its origin from the Roman law, and now common in many .states and nations; but of course subject in the mode of enforcing it, to those variations which must be necessarily incident to the practice of different Courts in differ- ent countries.(a) There are other cities in England besides London where the custom of Foreign Attachment prevails, and there can be no doubt that in a great number of instances it is a proceeding most bene, ficial to creditors. The object of the proceeding is to enable the creditor to attach the money, debts, or goods of his *debtor in the hands of a third per- r%n-\ son, and so to deprive the owner of all control over the subject of ■- J the attachment until he appears to answer the claim of his creditor, or until the debt is satisfied. The Lord Mayor's Court is no\v alone resorted to for the purpose of attachments ; inasmuch as an attachment issuing out of that Court will, unless dissolved by the defendant or the garnishee, remain in force for ever, although no proceedings be had thereon by the plaintiff.(6) The custom was certified by Starkey, Recorder of London, in a par- ticular case, to be : « That if a plaint be affirmed in London before, &c, " against any person, and it be returned nihil, if the plaintiff will sur- " mise that another person within the city is a debtor to the defendant " in any sum, he shall have garnishment against him to warn him to » come in and answer whether he be indebted in the manner alleged by " the other"; and if he comes and does not deny the debt, it shall be at- «■ tached in his hands, and after four defaults recorded on the part of the " defendant, such person shall find new surety to the plaintiff for the (a) See Adam's Roman Antiquities, 208 ; Story's Conflict of Laws, \ 549, and the notes to that section. By the French Code de Procedure Civile, tit. 1, 557, " Tout crfancier peut, en vertu de titre authentique ou prive', saisir arreter entre les mains d'un tiers les sommes et effets appartenant a son dfibiteur, ou s'opposer k leur remise." (S) See Bohun Priv. Lond. 252. 254. 20 LOCKE ON FOREIGN ATTACHMENT. " said debt; and judgment shall be that the plaintiff shall have judg- " ment against him, and that he shall be quit against the other, after ex- " ecution sued out by the plaintiff." (c) [-*qt *I* Tvill be a convenient mode of treating the law of Foreign At- L J tachment to take the several branches of the custom, and explain them in their order, shewing the practice observed at the present day, and citing the different authorities upon the subject. 1. If a ■plaint be affirmed in London before, &c, against any person. The commencement of the proceedings by attachment is for the credi- tor (the plaintiff) to enter an action(^j and make an affidavit of his debt, which must be filed at the office and entered on the record, such action accompanied by the affidavit being held to be the foundation of the pro- cess.^) The affidavit, except in the cases hereinafter mentioned, must be made r*A-i before the registrar or *his deputy, and if it be insufficient, it may L J be "rejected; the plaintiff being at liberty nevertheless to apply to the judge for leave to issue an attachment thereon. It is the practice of the court to take the affidavit of the plaintiff's clerk, attorney, or agent, but such affidavit must be positive as to the debt, though the plaintiff himself be an executor only, and had be made the affidavit, need not have sworn positively. (/) Affidavits and affirmations made before a magistrate, in Ireland or Scotland, or before a justice of the peace, in any of the counties in England or Wales, and verified by affidavit, there recognizing him to be such magistrate is sufficient, without any proof of the indentity of the party who made the affidavit there or of his signature. (g) The affidavit may also be sworn in foreign countries, before a magis- trate duly authorized there to administer an oath, but it must be properly authenticated, (h) (c) 1 Rol. Abr. Customs of London, K. 1. 3 and 4; Horton v. Beckman, 6 T. K. 160; see Turbill's case, 1 Wins. Saund. 67; Banks v. Self, 5 Taunt. 234; Crosby v. Hetherington, 4 M. & G. 933 ; Magrath v. Hardy, 5 Bing. N. C. 782. By ancient custom, and by several charters (1 Edw. 4, and 1 Car. 1), the customs of London are to be certified by the mouth of the Recorder to the Superior Courts, and in the City Courts the Recorder takes the same notice of the custom as the Judges in the Superior Courts of an act of parliament, Day v. Savadge, Hob. 87 ; Bohun Priv. Lond. 64, 65. In the case of Appleton v. Stoughton, 4 Croke, 517, it was decided, that the customs of London shall be tried by the certificate of the recorder, ore tenus, on a writ directed to the mayor and aldermen, and that has always been the case. Jenk. 21, 22. As to the form of the suggestion on the roll, see Crosby v. Hetherington, 4 M. & 6. 948 ; as to the form of the writ, ib. ; and the form of the certificate of the recorder, ib. 950; and form of rule drawn up, ib. 953. . If the certificate be false, an action does not lie against the recorder, but against the mayor and aldermen, whose certificate it is, and not the recorder's, who acts merely as their mouth-piece. Day v. Savadge, Hob. 85. 87 ; Sir F. Moore, 871 ; Plummer v. Bentham, 1 Burr. 248. When the custom has been once certified, tlje Court never refers the same question a second time. Brien v. Knott, 12 Sim. 26. Id) For the form, see Appendix, No. vi. (e) Higgenson, Exor. v. Parker, Davis, Exor. defendant, Vaillant, MS. Cases in M. C, 16th Feb. 1802. (/) Bayne, Exor. of Bayne v. Scott and Another, Colvin, defendant, Vaillant, MS. cases in M. C, 26th May, 1797. (g) Bayne, Exors. of Bayne v. Scott and Lennox, Colvin, defendant, ib., 26th May, 1797. See form in Appendix, No. in. (A) See Dalmer v. Barnard, 7 T. R. 251; Omoaly v. Newell, 8 East, 364; French v. Bellew and Cullemore, 1 M. & S. 302. THE CUSTOM, ETC. 21 The mode of authenticating the affidavit when taken before a foreign judge, is by some person swearing an affidavit in the Mayor's Court, to authenticate that taken before such judge, by stating in such affidavit that he had seen the judge (giving him his title) write, (or that he knows his hand-writing,) and that he verily believes the name (*stating it,) p,.--. subscribed at the foot of the paper written, &c, to be of the proper L -I handwriting of the said (stating name,) &c. But when the affidavit" is taken before an ordinary magistrate in a foreign country, it must be attested by a notary public,(£) and the affidavit cannot be sworn before a British Consul abroad. (&) The affidavit must be intituled "in the Mayor's Court, London." The affidavit or affirmation must state the Christian and surname of the deponent or affirmant, his place of residence, and his trade, calling, or profession. The Christian and surname of the creditor and debtor should also be stated, but the residence or profession of the debtor need not, as he is presumed to be out of the way by the practice of foreign attachment. The nature of the debt should be clearly set forth. When the affidavit is made by several persons, the jurat must state that it was sworn or affirmed by all the deponents or affirmants. It was held, in a case decided in the Mayor's court, that where an affi- davit or affirmation is defective in a material point, the court will, after attachment, admit a supplementary affidavit or affirmation to be filed in aid of the former. The assignees of a bankrupt, executors, and administrators, need only swear to their belief of the debt, " being as certain as the nature of the thing *will bear;" and where an executor in an affidavit to hold to r ^a-i bail in the Common Pleas, stating the debt to be due "as appears L J by the testator's books," but omitting to add "and which the deponent believes to be true," the court allowed the plaintiff to swear to his belief in a supplemental affidavit. (I) Formerly, the affidavit was made immediately before the judgment was given for the plaintiff to have execution against the garnishee, but the practice was introduced of requiring the' affidavit to be made at the commencement of the proceeding, to prevent fictitious claims being asserted, and thereby putting parties to inconvenience by attachments where the plaintiff had no claim against the defendant. An affidavit has been held in the Mayor's Court to be sufficient, though shewing some in- formality. That affidavit, stating that the defendant made an agreement with the plaintiff, that the defendant had broken that agreement, and thereby 120?. had become due to the plaintiff. The Recorder stated that («') Ex parte "Worsley, 2 H. Bl. 275; Omealy v. Newell, 8 East, 364. (k) Ex parte Hutchison, 4 Bing. 606; Leveux v. Berkeley , 5Q.B. 836; Williams v. Welsh and Another, 15 L. J., N. S. 7. (I) Sheldon v. Baker, 1 T. R. 87; Barclay v. Hunt, 4 Burr. 1992; Tonna v. Ed- wards, 4 Burr. 2283; Garnham, Executrix, v. Hammond, 2 B. & P. 298; Swayne v. Grammond, 4 T. R. 176; Hobson v. Campbell, 1 H. Bl. 245; Roche v. Carey, 2 Bl. 850; Reeks v. Graneman, 2 Wils. 224; Mann v. Sherriff, 2 Bos. & Pul. 355; Bayne, Executor of Bayne v. Scott and Another, Colvin, defendant, Vaillant, MS. cases in M. C, 26th May, 1797. 22 LOCKE ON FOREIGN ATTACHMENT. the affidavit was sufficient to convince the court that it was not fictitious, but that there was a debt due from the defendant to the plaintiff. It being clear that there was a contract between the parties, and that it was one well known to mercantile men, namely, a charter-party.(m) rif „-. *If an affidavit be insufficient, the usual course is for the gar- L J nishee to apply to the court to be allowed to file common bail, whereby the attachment is dissolved. In the case of Wadsworth v. Martin, Stone and Others, Queen of. Spain, defendant, an application was made by Randell, on the part of the garnishees, that the defendant be allowed to file common bail in dis- solution of the attachment. By land, Welsby, and Locke for the plaintiff, took a preliminary objec- tion to the application as being too late, on the ground that since notice of the rule had been given on Thursday, the 23rd of January, garnishees had pleaded on the 24th. The Recorder (Rt. Hon. J. S. Wortley) said that the application might be made at any time before the trial was had. Randell then stated the grounds of his application. 1. There is no such person as Her Most Christian Majesty Donna Isabel, Queen of Spain ;{n\ her description is Most Catholic. 2. Defendant is described as Queen of Spain. r % Q-i A crowned head cannot be arrested. If not *liable to arrest, L J then her person not liable to attachment by her goods. If the Queen is not liable to arrest in this country, then the attachment ought to be dissolved on filing common bail. He cited Ashley, page 117, to shew that bail in an attachment "is of the same nature and effect as bail upon an, arrest." 3. The affidavit is ambiguous " for interest upon, and by virtue of, certain bonds or certificates, bearing date, &c, and duly made and entered into, by, or on behalf of her Majesty, the Queen Regent of Spain, afore- said, in the name of her august daughter the said Donna Isabel Segun- dar, Queen of Spain." It is clear that a question might arise on the affidavit whether an indictment for perjury would lie. The bonds were never executed by the defendant, nor does it appear by the affidavit, that she has ever recognised them. The Recorder. I think the affidavit is sufficient. 1st. There can be no ambiguity as to the person intended. 2nd. An attachment is not equivalent to an arrest, it is analogous to a distringas, (o) 3rd. To go into the third objection would amount to a trial of the claim, and this , cannot be done upon an application like the present. Ryland applied to have the rule discharged with costs. (m) See this affidavit in the Appendix, No. iv., Malladew, plaintiffs, Drew and Others, defendants, Usborn and Others, Gam. MSS. Nov. 1850; and also Bohun, p. 295, 20 Edw. 4, 30; Turbill's case, 1 Saund. 61 a; Hatton v. Hermorger, 1 Str. 541; Roll's Ab. Attachment, 554; Comyn's Dig. Att. 454; Anon., 1 Vent. 236; Harrington v. M'Morris, 5 Taunt. 228; Horton v. Beckman, 6 T. R. T60; Clerk v. Denton, 1 B. & 7 Ad. 92; Banks v. Self, 5 Taunt. 234; McDaniel v. Hughes, 3 East, 3T9; Magrath v. Hardy, 4 Bing. N. C. 782; Day v. Paupiere, 18 L. J., Q. B. 184; 13 Q. B. 802. (n) See the notice of motion and affidavit in the Appendix, Nos. vn. & v. (o) And see Day v. Paupiure, 13 Q. B. 802. THE CUSTOM, ETC. 23 The Eecorder. Costs are nevergrven in attachments between plaintiff and garnishee. Kule discharged. Montagu Chambers, Q. C, then appeared for the garnishees, who he said had received notice of trial *which had not been counter- ^q-i manded, and applied to have the cause tried, or the costs of the <- J day. The Recorder. I cannot make any order. According to the practice of the court, the plaintiff is not bound to try the first time the cause is put down. The debt alleged in the plaint should be sufficient to cover the whole claim of the plaintiff against the defendant, without reference to the sum which the plaintiff may feel justified in swearing to in the affidavit; for it should be borne in mind that judgment against the garnishee can only be for the sum sworn to in the affidavit ; but the verdict against the defendant in the action may be for the whole sum mentioned in the plaint. Immediately after the action is entered and the affidavit sworn, the attachment may be made, and this is done by the Serjeant at mace serving the garnishee personally with notice of attachment^ p) and to effect this the rules of the court prescribe the following course. The plaintiff's attorney must prepare the notice of attachment, and after the same is sealed by the registrar, leave it with the Serjeant at mace for service. Immediately after the Serjeant at mace has served the attachment, he must make a return thereof in the registrar's book, with the garnishee's names and time of service. Care must be taken to insert the garnishee's name or names correctly in the notice, as a misnomer of the garnishee, or any one of them, if there be several, need not be pleaded, is fatal ; and cannot be amended. When a misnomer of the garnishee's name is . given in evidence under the general issue, the plaintiff may #shew r .,., n -. that he is as well known by the one name as the other, for the •- J misnomer not being pleaded he cannot reply that fact. (2) Four persons being named as garnishees, three of them only having the property, is a fatal misnomer of the firm, for the jury cannot sepa- rate them.(r) And where the property is in more persons than those named,', it is equally fatal. There is no rule that plaintiffs in every case of attachment must prove positively the Christian name of the defendant. If from circumstances of other description, as in coupling them with the rest of the partners In an acknowledged firm or otherwise, there is reasonable evidence to go to the jury of identity, the garnishee will be driven to prove the misno- mer, (s) {j>) See form in Appendix, No. xxi. (q) Davis and Others v. Moses Staples and Others, Ellis, defendant, Vaillant, MS. cases in M. C. 15th October, 1794; Kohn v. Charles Frederick Bremen and Another, Frantz, defendant, Id. 25th November, 1795; Boote and Another v. Bull- finch, Thwaites, defendant, Id. 8th July, 1796; White v. H. I. and G. Eobins Gar- rick, defendant, Id. 26th November, 1803. (r) Karstens v. G.I. and B. Wolff and J. Dorwell, Burchard, defendant, Id. 11th October, 1797. (s) Lubbock and Another v. Campbell and Another, James O'Connor and 24 LOOKE ON FOREIGN ATTACHMENT. An attachment of money belonging to A. & Co., was held bad.M ' Immediately on such service of the notice of attachment by the ser- . jeant at mace upon the garnishee, all moneys, goods, and effects, L J which are *then in, or which may come into his hands between the date of the service and plea pleaded, are by such services of the notice of attachment made liable to the plaintiff's demand. If the plaintiff have reason to believe that the property thus attached, is insufficient to cover the amount of his demand, he may on one action, grounded on the same affidavit of debt, from time to time, make as many more attachments as he pleases of defendant's property in the hands of different garnishees, or of the same, till his whole demand be sat- isfied, (it) The attachment may be withdrawn by arrangement between the par- ties.^) The action is not affected by the withdrawal of the attachment, though settling the action dissolves the attachment, as it is only founded upon the action. , 2. And it be returned nihil. No affidavit of debt was formerly necessary in the commencement of the proceeding. The practice was for the plaintiff simply to prefer an original bill of debt or plaint in the Mayor's Court, and by virtue of such bill, and upon the prayer of the plaintiff by his attorney, to sum- mon the defendant by the Serjeant at mace to answer the plaintiff's plaint in the bill specified ; and if the serjeant at mace at the same court, by virtue of his precept returned to such court, that the defendant had r Q-i o -i nothing within the liberty of the city by which or whereby he L J could *be summoned, nor could he be found within the said lib- erty, and the defendant at that court being solemnly called, made default, then the course as explained under the next head was pursued. No summons is actually served upon the defendant, and the attach- ment may, as we have seen, issue immediately upon the plaint being entered, at the time the affidavit is sworn and the notice of attachment being served, the property of the defendant in the hands of the gar- nishee is secured to answer the plaintiff's claim. The practice of summoning the defendant, at the commencement of the proceeding, if it ever prevailed, was, in all probability, found to in- terfere with the advantage intended to be given by the attachment; for the defendant, upon being summoned into the Mayor's Court, would at once have notice that an attachment might be issued against any pro- perty of his within the jurisdiction, and would forthwith take steps tcf place it beyond the reach of the attachment; and this he could do in the case of a debt by suing for it in one of the superior courts, or in the case of goods by removing them. Lord Mansfield, the rest of the court agree- Emanuel Blake surviving partners of Gregory Joyes, deceased, trading under the firm of Patrick Joyes and Son, defendant, Vaillant, MS. cases in M. C, 11th Feb- ruary, 1804. (t) Hornfell v. Derrion and Another, Henry Hoist, defendant, 22d October, 1800. (u) Morgan and Another v. Kirwan and Another, "White, defendant, MSS. cases in M. C. Taillant, 29th April, 1795. (v ) See form in Appendix, No. zxni. THE CUSTOM, ETC. 25 ing, declared that the very essence of the custom is that the defendant shall not have notice. (ie) Although the defendant is in point ot fact never summoned, still a record of the proceedings in an attachment in the Mayor's court must contain this return of nihil, or it will be ■ erroneous and void, and this is all that I collect from the cases cited in the *note to Turbill's r J|(1 „ -■ case, (a;) and it is expressly decided in the case of Magrath v. L ■ J Hardy,(y) that "the custom does not require that any notice should be given to the defendant in the attachment of the proceedings in the Mayor's court." , 3. "If the plaintiff will surmise that another person within the city is a debtor to the defendant in any sum." Upon the return nihil, the plaintiff made an allegation of a debt owing to the defendant by a third person within the city, or of money or goods being in the hands of such third person belonging to the defendant, amounting to the debt in the plaint specified or any part thereof, and then at the petition of the plaintiff, the court ordered one of the Ser- jeants at Mace to attach the debt money or goods in the hands of the third party. This surmise must, it would seem, have always been a mere formal proceeding; but it must be entered upon the record, and is very material inasmuch as it contains the allegation " that another per- son within the city is a debtor to the defendant," and thereby limits the jurisdiction. 4. He shall have garnishment against him, to warn him to come in and answer whether he be indebted in the manner alleged by the other. We have seen the course to be pursued up to this point, viz., first, to enter a plaint and make an affidavit of debt and file it, and then serve the notice of attachment upon the garnishee. * Although the attachment isthus served upon the garnishee, still r ^. . _ no summons can issue to him until four court days have elapsed j L J upon which several court days the defendant is supposed to be called upon, and a return of nihil made by the Serjeant at Mace, which surmise and returns are entered upon the record :(z) and this practice is strictly in accordance with that which has always prevailed. The rule of the court is, that " On the 4th or, any subsequent court day, after the day of the attachment made, the plaintiff may summon the garnishee to appear ;(a\ which summons shall contain the particulars of the goods or the amount of money the plaintiff seeks to attach the defendant by, and when sealed, it must be left with the Serjeant at Mace for service : and no attachment or summons to the garnishee can be served (w) Tamm v. Williams, 3 Doug. 281. \x) 1 Saund. 67 ri.<; Douglas v. Forrest, 4 Bing. 701, Best, C. J. ; M'cDaniel v. Hughes, 3 East, 366; and see also Bruce v. Wait, 1 M. & G. 39, per Tindal, C. J. ly) 4 Bing. 793; and see Harrington v. MacMorris, 5 Taunt. 228, 1 Marsh, 33. (2) See the form in Appendix, No. xi. and see 1 Rol. Ab. Customs of London ■K. 1. 3 & 4; Bohun Priv. Lond.' 275, and record 290. 292, 293, 294; Hale v. Walker, Tr. 1 Case B. B.; Banks v. Self, 5 Taunt. 234; Crosby v. Hetherington, 4 M. £ G. 933, (a) See form in Appendix, No. xxH. September, 1853. — 26 26 LOCKE ON FOREIGN ATTACHMENT. except by the Serjeant at Mace or his deputy ; and no such summons can issue without one clear day, at least between the day of issuing and the return day. The garnishee may enter a note of appearance with the Registrar at any time after the attachment made.(&) If the plaintiff do not summon the garnishee on the 4th court day after the day of the service of the attachment, the garnishee, provided he has filed an appearance may r #1 _ -. enter a rule *to prosecute, and give notice thereof to the plain- l ii} i tiff's attorney. If the plaintiff do not proceed in the attachment within three days after such notice, the garnishee, upon an affidavit of service of such notice, may sign the judgment for not prosecuting the same. We have before seen that an attachment in the Mayor's court remains in force for ever where no steps are taken by any of the parties thereto. When, therefore, the plaintiff has caused his notice of attachment to be served upon the garnishee, he should well consider whether it be to his interest at once to proceed with the attachment, and in deciding upon the course which he should adopt, he should consider whether the money or goods in the hands of the garnishee is sufficient to cover his claim against the defendant ; and, if not, whether the garnishee, not having pleaded, there is a probability of any more property of the defendant coming into the hands of the garnishee, always bearing in mind that any subsequent attachment by another party will overrule his, if judgment be obtained in it first.(c) The summons to the garnishee, where the attachment is upon goods, must, as directed by the rule of court, contain a description of the goods, and this is in order to enable the Serjeant at Mace to identify them, upon judgment being obtained by the plaintiff. Where the garnishee will not furnish the necessary information, and it cannot be otherwise acquired, a bill of discovery may be filed against him on the equity side -„-, of the court, in "order to obtain the requisite information and I- J any information whatever respecting his transactions with, and the property he holds belonging "to the defendant, and whether he has any or what lien upon it, which information the garnishee is obliged to give on oath in his answer. "Although the general rule is that no costs are allowed in attachments, still the wfiole costs of both sides of a bill of discovery must be paid by the party filing it ; and now as far as concerns an inquiry as to the lien of the garnishee, since parties to the suit are made competent witnesses, the same result may be obtained by the examination of the garnishee at the trial, (d) The service of the summons is effected by the Serjeant at Mace per- sonally delivering the same to the garnishee. (e) lb) See form in Appendix, No. xv. (c) See Hornfell v. Demon and Another, Hoist & Co., defendant, Vaillant MS. cases in M. 0., 22d October, 1809. (d) This proceeding by bill of discovery is much resorted to, and is found ex- tremely beneficial in discovering property in the hands of the garnishee, and the circumstances attending the dealings between the garnishee and defendant. («) See form of summons in Appendix, No. xxn. THE CUSTOM, EIO. 27 5. And if he comes and does not deny the debt, it shall be attached in his hands. There are three courses open to the garnishee — either not to appear ; to appear but not to plead ; or to appear and plead. When the plaintiff summonses the garnishee in the manner and form already treated of under the last head, and he does not appear on the return of such summons, the plaintiff will be entitled to judgment by default, but the garnishee has till two o'clock on the return day of the summons to appear, but no summons to issue without one clear r #1 ,_ , *day at least between the day of issuing and the return day. <- J If the garnishee should appear, the plaintiff's attorney must deliver to the garnishee's attorney a copy of the record in the usual form within two days after the garnishee's appearance, if not, the garnishee may, as in the case of the plaintiff not summoning him on the fourth Court day as before stated, enter a rule to prosecute with the Registrar. One of the rules directs that all formal proceedings as to pleadings, &c, are to be the same as in ordinary actions, except when the peculiar proceedings of attachment require a departure from the ordinary (forms. Therefore where the garnishee appears, but neglects to plead, thi rules prescribed in ordinary actions, will apply. The plaintiff, according to those rules, cannot take any proceedings to compel the garnishee to plead till after three days inclusive from the delivery of the record to the gar- nishee's attorney; and the plaintiff must then, before he can sign judg- ment for want of a plea, demand such plea of the garnishee in writing, and if he do not plead within four days after such demand of a plea, the plaintiff may sign judgment for want of a plea.(/) Upon judgment being signed,^) the plaintiff having given his pledges (for which see post), is at liberty to issue his writ of execution, filing a precipe of such writ, and getting the same sealed by the registrar, such writ to be left with the Serjeant at *Mace for the purpose of r*iQ-i being executed; and upon the receipt of the produce of the writ *• -> the Serjeant at Mace must pay the amount into Court. But the garni- shee may immediately, upon the delivery of the copy of'the record, plead to the attachment. Where the garnishee pleads, and a verdict is found for the plaintiff, then, as in the two former instances, the money is "attached in his hands," to be obtained as we have seen in cases where judgment is suf- fered by default. The most advisable course for a garnishee who does not wish to resist the claim of the plaintiff, but in the terms of the custom as returned, " does not deny the debt," is to plead and force the plaintiff to prove his case and then proceed to execution against him, for otherwise he may not be discharged from his debt to the defendant. (7t) 6. And after four defaults recorded on the part of the defendant. The four defaults are those above-mentioned, and which are recorded Sf) See the rules in ordinary actions in the Appendix. The course observed in signing judgment is the same as in ordinary actions, for which see Appendix. (h) Magrath v. Hardy, 4' Bing. .462. 28 LOCKE ON FOREIGN ATTACHMENT. immediately preceding the record of the issuing of the "scire facias" or summons(i) to the garnishee, which, as we have seen, cannot issue till the fourth Court day after the issuing of the attachment. 7. Such person shall find new surety to the plaintiff for the said debt; and judgment shall be, that the plaintiff shall have judgment against him, and that he shall be quit against the other after execution sued out by the plaintiff. r*1Q1 ^We have already considered the mode by which the judg- L J ment is obtained, and now we will under this head consider more particularly the judgment itself. The judgment is that the plaintiff have execution of the sum attached, and that he shall retain and hold the same in full satisfaction of a like sum in the plaint mentioned. But before execution is awarded, the plaintiff must find sureties who must undertake for the plaintiff, if the defendant in the attachment shall within a year and a day come into Court, and disprove or avoid the debt demanded against him by the plaintiff, that then the plaintiff shall restore to the defendant the money condemned in the garnishee's hands, or so much thereof as shall be disproved, or else that they, his sureties, will do it for him ; and then execution will be granted against the garnishee for the moneys fonnd in his hands which the serjeant-at-mace executes, and the plaintiff receives the proceeds upon signing satisfaction upon the record. The following are the rules of the Court with respect to pledges to restore. At any time after signing final judgment, the plaintiff shall, if required, give two days' notice to the registrar of the names, residence, and occu- pation of the persons he proposes as pledges to restore : and, if upon inquiry by the registrar they are found of sufficient responsibility for the amount recovered under the judgment, the registrar shall take the recog- nizance of such pledges to be taken upon the record, and the registrar r *on n s ^ a ^ th" 31,611 ? 011 ? upon *satisfaction being signed upon the record, L J pay over the proceeds to the plaintiff's attorney. All persons allowable as bail to dissove an attachment shall also be allowable as pledges to restore.(&) In any case if the 'registrar at the time of taking the pledges to restore, do not make proper inquiries as to their sufficiency, and accept pledges insufficient at the time of their being taken, he shall on petition to the Court, be compelled to recompense the party for such insufficiency if the Court shall so see fit. In case the registrar refuses to accept the pledges to restore proposed by the plaintiff, the pledges may justify in the Court. When an action is commenced by the defendant in the attachment against the garnishee, it is a sufficient answer by the garnishee to such action, to plead and prove a recovery by foreign attachment at the suit (i) See 1 Rol. Abr. Customs of London, L. 1, 2, Bohun, 294, and form in Ap- pendix, No. xi. ; also Banks v. Self, 5 Taunt. 238. (k) See the rules, post, as to the requisites of bail to dissolve an attachment under the head "Attachment how dissolved or defeated." lord mayor's court. 29 of a creditor of the plaintiff (the defendant, in the attachment), and that such creditor had execution of the sum recovered according to the custom of London, and that such execution was executed,(Z) of the moneys or goods in the hands of the garnishee. *But when no execution is issued against the garnishee, the .- ^„, -. plaintiff may proceed to judgment and execution against the de- <- ■! fendant, and in like manner the defendant may sue the garnishee for his debt, notwithstanding the unexecuted judgment. Certified in writing by Brook, Recorder, in the case of Robertson v. Norrey, King at Arms, 7 Ed. 6, c. 2.(m) II. OF THE LORD MAYOR'S COURT. Having thus treated of the different branches of the custom of foreign attachment and the mode of enforcing it, I now propose to consider, very shortly, some particulars as to the powers and jurisdiction of the Lord Mayor's Court (n) The proper title of the court is " The Court of our Sovereign Lady " the Queen, holden before the Mayor and Aldermen of the City of Lon- " don in the outer Chamber of the Guildhall." It is a Court of Record existing from time immemorial, and having original civil jurisdiction, both at common law and in equity,(o) besides its peculiar jurisdiction in foreign attachment. The court is held r .,.„„ ' by custom, and all manner of actions may be entered and tried L J in it by a jury for any matters whatsoever arising within the city or liber- ties of London, to any value whatsoever, as for debt at the plaintiff's suit ; debt at the chamberlain's suit; debt upon a penal statute, trespass, ac- count, covenant, &e.(p) Thus the court has not only a concurrent authority with the courts of common law in Westminster Hall over all actions of a civil nature, arising out of the common or general law of the land, within its juris- diction, but it holds pleas in a variety of causes of very considerable im- portance, arising out of the city customs, in exclusion of those courts. It also holds pleas of penal actions, arising out of Acts of Common Council, ,whereof £he Courts of Westminster cannot take cognizance. It holds pleas between subject and subject of all personal actions for (Z) 1 Roll. Abr. Customs of London, L. 1. 1 ; Bohun's Priv. Lond. 280; Wetter v. Riicker, 1 Brod. & Bing. 491 ; Magrath v. Hardy, 4 Bing. 782 ; Morris v. Ludlam, 2 H. Bl. 362; Lord Barrymore v. Taylor, 1 Esp; 327; Tamm v. Williams, 2 Chit. 438; Crosby v. Hetherington, 4 M. & G. 933; Webb v. Hurrell, 4 C. B. 287; Hux- ham v. Smith, 2 Camp. 19; Nonell v. Hullett, 4 B. & Aid. 646; MacDaniell v. Hughes, 3 East, 367; Bruce v. Wait, 1M.4G. 1. (m) 2 Dyer, 82, 1. 72; and see Wood v. Thompson, 5 Taunt.; Bromley V. Peck, Id. '852; Smith v. Ogle, 6 Taunt. 70; Chamberlayne v. Green, 9 M. & W. 798. (n) See Bohun Priv. Lond. 250. 291 ; Lex. Lond. 1 ; Reg. v. The Mayor of Lon- don, 13 Q. B. 1 ; Mayor of London v. The Queen, Id. 31. (o) Report of M. C. C. 123; Bohun Priv. Lond. 250; Lex. Lond. 1. 7. (p) Bohun Priv. Lond. 251. 30 LOCKE ON FOREIGN ATTACHMENT. redress of civil injuries, arising o# committed within the eity'or liberties, whether founded upon contract or tort, let the subject-matter be' of what amount in value, or to what extent it may; as action of debt, detinue, covenant, assumpsit, and actions of trespass (vi et armis,) as assault, bat- tery, false imprisonment; also actions of trespass on the case, as slander, malicious prosecution; also trover, or case considered with reference to personal property, and trespass on the case properly so called, which in- cludes injuries to real property. It also adjudicates between master and r ^23 -i a PP ren tice, and hears and determines questions of *disfranchise- L ment. On the equity side it entertains bills for discovery, relief, or account; also suits for the return of apprentice premiums, and distri- bution of intestate estates, &c. All of which powers it exercises by a primary original authority inherent in it, and without any writ or man- date from a Superior Court. The jurisdiction of the Court extending only to the city of London and its liberties, it is always an important question whether the subject- matter which raises the gist of the action be within the limits of that jurisdiction, j It is not necessarily to be inferred that the whole grievance which the action is instituted to redress, should accrue within the jurisdiction.^) The case of Stannian v. Davis(»') was an action in an inferior court against an innkeeper for negligently keeping the plaintiff's horse, and suffering him to be taken out of defendant's stable and immoderately ■ ridden. It was there held, that it need not appear that the riding the horse was within the jurisdiction, it being a subsequent wrong and a mea- sure only of damages. In the case of Huxham v. Smith,(s) where a merchant abroad ordered goods of a shopkeeper residing within the city of London to be put on r *94 1 board a ship lying beyond the limits of the city *and the shop- L J keeper sent them from his shop to be shipped in pursuance of, the order, it was held that there was a delivery as soon as the goods were put in a course of conveyance, and that the price might be sued for in the Mayor's Court as a debt arising within the city. And so a promise to pay an account within the jurisdiction, an order given and delivery elsewhere, or delivery made therein and the order given elsewhere, are sufficient to give the court jurisdiction.^) The Eecorder of London for the time being is the sole acting judge of the court, but the Lord Mayor and Aldermen may sit as judges with him if they please, they being the legal judges, and all bills and petitions are formally addressed to them. During the illness or necessary absence of the recorder, a deputy judge may be appointed by the Court of Alder- men, and the Lord Mayor has sat judically, taking however to himself an assessor in the person of the Common Serjeant. By ancient entries in the corporation books, it appears that the town clerk, if a barrister, may pre. (q) Stannian v. Davis, 11 Mod. 7; 1 Salk. 404. (r) Ld. Eaym. 795; Heeley v. Ward, 1 Vent.; 2 Oro. Car. 571; Waldock v. Cooper, 2 Wils. 16; Peacock v. Bell, 1 Saund. 73; Trevor v. Wall, 1 T. R. 152. (*) 2 Camp. 21, and see Rees v. Smith, 2 Stark. 33; Dutens v. Robson, 1 H. Bl. 100; Carslake v. Mapledorum, 2 T. R. 473; Anon. 10 Mod. 71. (t) Emery v. Bartlett, 2 Ld. Raym. 1555, and see Kemp v. Clark, 12 Q. B. 647. LORD MAYOR'S COURT. 31 side by virtue of his office, and without any express Appointment. No instance has however occurred in modern times in which the town clerk has acted in this capacity. It would seem that the office of town clerk is inconsistent with his pre- siding as judge of the Mayor's Court, inasmuch as by virtue of his 'office, he is the registrar of the court, and in the absence of his deputy, by whom the duties are performed, he would attend the court as registrar. *The various acts for the improvement of the city of London r # „- -. direct, almost without exception, that the compensation cases shall L J be tried in the Mayor's Court, and that the costs of the claimant shall be taxed by the registrar of the Court.(u) There are now three Common Pleaders who are elected to the office by the Court of Common Council, and take an oath of office upon such elec- tion. Their seniority as counsel in the Mayor's Court and other Courts of the City, is determined not by their standing at the Bar, but by the date of their appointment, (y) The practice of the Court for many years past has been confined to four attorneys, who conducted the whole proceedings in it. The Court of Aldermen have, however, now directed that all attorneys and solicitors of the superior Courts at Westminster may be admitted practitioners in the Court. The citizens intended to serve as jurymen for the year ensuing, are returned by the Aldermen of the several wards at the wardmote inquest every Christmas by indenture under seal ; and the wards are *ar- r ^a , ranged into twelve divisions, the jurymen in each separate division L J serving for one montli of the year. In cases of importance the Court will, on motion, award a special jury of merchants to try the issue. The Serjeants at Mace are the officers to the Court, for serving and executing its process, and performing various other duties incidental to their office. One attends regularly at the Lord Mayor's Court Office. The Sheriffs of London, although they do not execute the process of the Court, have the custody of its prisoners ; hence, the reason of direct- ing the habeas corpus (which removes the body as well as the cause), to the Mayor, Aldermen, and Sheriffs, although the latter are not Judges of the Court.^) («) In the case of Bentley v. The Corporation of London, the present recorder held, that the Court had no authority to review the taxation of the registrar (the town clerk), who was appointed by the 9 & 10 Vict. u. 280, ("An Act for widening and improving Cannon-street, &c.,") taxing officer, and he came to this decision upon the authority of Ross v. The York, Newcastle and Berwick Railway Com- pany, 18 L. J., K! B., 409. (») There were formerly four Common Pleaders, but the office of one of them was not filled up after the retirement of Mr Laurie, in the year 1850. See Report of M. C. C. 45. 131, as to the mode in which the office was formerly obtained, and the changes effected by the corporation. (v>) Ashley's Doctrines and Practice of Attachment, p. 18. 32 LOOKE ON EOREIGNATTACHMENT. III. WHEN FOREIGN ATTACHMENT MAT BE RESORTED TO. Having considered the nature of the custom of Foreign Attachment and jurisdiction and officers of the Lord Mayor's Court, we will next enter upon the important question of, when the proceeding' of foreign attachment may be resorted to in the Mayor's Court, and then the means by which an attachment may be dissolved or defeated. First, then, an attachment will only lie where the defendant could maintain an action of debt or detinue in the Mayor's Court, or an action T *27 1 °^ assum P s i t J trover, debt, or detinue in the superior *Courts L J against the garnishee for the recovery of the debt or goods sought to be attached. In fact, the plaintiff, at' the trial of the attachment, has to prove the case of the defendant against the garnishee, the issue being whether the garnishee at the time of making the attachment, or at any time since before, plea pleaded, owed to or detained from, or yet has, owes to, or detains from the defendant in the attachment the money or goods attached, or any part thereof in manner and form as the plaintiff by his attachment has supposed.^) An attachment may be made of money, debts, jewels, chests and boxes locked, and the contents, or any other goods and chattels ; and an attach- ment may be made for goods or money, or both, at the same charge, and all upon one attachment. Money due upon bond, bills of exchange, or a goldsmith's note may be attached. And the money or goods of any trading company may be attached so as the debt demanded be upon bond under their common seal, (y) The following case explain? the nature of the debt on which to ground an attachment. If A. sell certain stockings to B. on a contract by which B. is to give 10?. to A., and that if he again sell the stockings before August that he will pay 2d. more for each pair of stockings ; the 101. is attachable by a foreign attachment, because an action of debt lies for this ; but the 2d. for each pair of stockings is not attachable, because this only rests in " „_ .. *damages to be recovered by an action on the case, and not by L J an action for debt, for it is only made payable upon a possi 7 bility, p. 11, Car. B. K., between Bead and Hawkins, per Cur., upon a demurrer where an action on the case was brought for the 101. only, and the foreign attachment pleaded in bar; but the judgment was given against the defendant for mispleader. of the foreign attachment. Intratur. H. 11, Car. Bo,t. 78. But per Curiam, this would be a good bar if it had been well pleaded. 1 Kol. Abr. Customs of London, E. 1. 6, page 552. Athough no action can be entered by the bbligee for a debt upon a bond, bill, or note, the day of payment of which has not arrived,(z) still (x) See form of pjea in the Appendix, No. xn. \y) 1 Rol. Abr. 551, 0. 50; Bohun Priv. Lond. 261; Green's Priv. 25; Oomyn'a Digest Attachment, 0.; Anon. 2 Shower, 372, No. 355. (z) 1 Rol. Abr. 553 ; Comyn's Digest, Foreign Attachment, D. ; Dalton v. Selby, 3 Leon, 236. WHEN FOREIGN ATTACHMENT AVAILABLE. 38 a creditor of the obligee or party to whom a bill or note has been given may attaoh the debt upon the bond, bill, or note in the hands of the obligor, aoceptor, or maker, and the garnishee, that is, the debtor upon whom the attachment is served, if he appear, muat plead, that it is true he hath so much money in his hands, but that the same is not due or pay- able to the defendant till a certain day to come. The plaintiff would thereupon have judgment against the garnishee for the money attached, but execution cannot be awarded for the money until it become due according to the time mentioned in the plea, (a) *Before for- r *oq-i feiture of a bond, the attachment must be for the debt owing <- -I after forfeiture, but the judgment is only for the penalty. (5) And like- wise, a simple contract debt not due may be attached, and the judgment is not that the debt attached shall be paid immediately, but that it shall be paid when it becomes due.(c) It is said in Boll's Abridgment above cited, that the Court in the case of Dalton v. Selby, said it was not laud- able nor to be allowed to attach a debt before it was due. It has been said that debts arising out of the jurisdiction are not attachable, and that a prohibition *will lie. It is, however, the r ,,.„« -, constant practice of the Court to attach indiscriminately debts of L J this description, that it is quite clear that with regard to simple contract debts, as they follow the person, they may be attached by serving the debtor with an attachment within the Oity.(<# ) And this is the course ordinarily pursued with respect to bankers and others carrying on busi- ness out of the city. If an attachment be served upon any one of the part- ners of a firm, while he is within the city, it is sufficient, although they carry on their business out of the city.' With respect to goods, they (a) See Bohun Priv. Lond. 261 ; 1 Eol. Abr. 553. The case of Bobbins t. Standard, 1 Sid. 32*7. Debt upon obligation of 100Z. the defendant demands oyer of the condition, and it was to pay 501. before such a day, and he pleads the cus- tom of London of foreign attachments, scil. : — that if one owes money to me, who has a debt payable to him by any one in London, I can attach so much thereof as is due to me, and that before the day of payment of the obligation a creditor of the plaintiff's scilicet such a one, attached the said 501. and gave security in the Court; there according to such custom to repay the debt, if it were disproved, within a year and a day, &c. And that on such day, which was after the dajr in the obligation, he paid the 501. to the said creditor, under a scire facias against him, according to the custom. And to that plea the plaintiff demurs, and shews for cause first, that a custom to attach a debt before it is due is not good, but after several arguments the Court were of opinion that the custom is good ; for though he can attach it as a debt, yet he cannot levy it until after the time for payment of the obligation, and so the custom is laid. Second: It was said for the plaintiff.that though it be a good bar, yet it is no bar except for 501., since by the plea, it appears that it was not paid till after the day, and so the obligation is forfeited. But per cur,, it is a good bar for all, because by the attachment which was before the day of payment, this becomes a debt to the creditor scilicet all that was due, and the obligee- cannot afterwards take any advantage of the obligation. But if this had been an attachment of 201. ; semble, that the defendant should plead this, record of the attachment in London in bar> pro tanto. And per cur^, judgment was given for the defendant, because the plea was good.. (b) Ingram v. Bernard, 1 Ld. Baym. 636; Cro. Bliz. 101; Bobins v. Standard, 1 Sid. 327. (c) 1 Bol. Abr. Custpms of London, G. L. 2 & 3. (a) And see Self v. ETennicot, Shower, 650, No. 460; Andrews v. Clarke, Garth. 25, 26 ; Anon. 1 Tent. 236 ; 1 Bol. Abr. Customs of London, K. L. 3 ; Harrington v. MacMorris, 5 Taunt. 228. 84 • LOOKE ON FOREIGN ATTACHMENT. must be within the jurisdiction or they cannot be attached in the hands of the garnishee. (e) Goods or money coming to the hands of the garnishee belonging to the defendant, or the garnishee becoming indebted to the defendant between the attachment and plea, such goods, money and debts may be recovered in the attachment. The general issue upon all attachments being, whether the garnishee at the time of the attachment made, or at any time after (that is before plea pleaded) had any moneys or goods of the defendant in his hands. (/) And so it was held in the case of v. Noquiere & Williams, garnishees defendant^) that money of the r*qi -i defendant transmitted to *the garnishee after the attachment and *- -• before plea pleaded though for a specific purpose was subject to the attachment. And where the defendant abroad sent over a power of attorney to execute a deed of composition for a debt due to him from the garnishees but before the deed was signed this debt was attached in their hands by a creditor of the defendant, a subsequent execution, of this power was held not to defeat the attachment by relation back to the date of the power of attorney, for it was revocable till performed, and the attachment»equivalent to an express revocation by the defendant, and it was also held that the doctrine of relation can only apply to defeat an attachment where the instrument which claims to change the property is irrevocable and a Court of Equity would compel the performance of the contract raised by it. (K\ Unliquidated accounts which are capable of being ascertained may be attached. (i) Goods or money due to a testator or intestate at the time of his death may be attached in the hands of the executor or administrator. (A) A debt may be attached in the hands of an Attorney of the Superior Courts who shall not have his privilege against foreign attachment. (Z) F *32 1 *Part of a debt may be attached. This means nothing more L J than that the debt due by the defendant to the plaintiff need not be to the amount of the debt due from the garnishee to the defend- ant.^) Goods in the hands of a carrier, may, it would seem, under ordinary circumstances be attached, as the case in Comyn's Digest,(n) to the con- trary does not appear to bear out that view. That case is as follows; (e) See Bohun Priv. Lond. 273, 274, 275; Hern v. Stubbs, Godb. 400; Latch. 208. (/) Bohun Priv. Lond. 255. (g) Vaillant, MS. cases decided in M. C, 1793; and see Williams v. Everett, 14 East, 582; Lilly v. Hays, 5 A. & E. 548; Brind v. Hampshire, 1M.4W. 365. (h) Page v. Donaldson and Another, Oswald, defendant, Vaillant, MS. cases in Mayor's Court, 8th March, 1805, and see Story's Conflict of Laws, \ 398. 400. (i) Bailey v. Modigliani and Co., Bartolli, defendant, Vaillant, MS. cases, M. C, 5th December, 1792. (k) 1 Rol. 554, L. 20; Bohun Priv. Lond. 266, and see the case of Spinfc v. Tenant Calthorp, 27. (1) Turbill's case, 1 Sid. 362, and 1 Saund. 67, overruling Lodge's case, 2 Leon, 156, and several others; and see Bohun Priv. Lond. 268, and in Ridge v. Hard- castle, 8 T. E. 417; the authority of Turbill's case, 1 Saund., was expressly recog- nised and adopted. (m) Anon. Godb. 195, No. 282. (n) Comyn's Digest Attachment, D,; Edwards v. Tedburies, 1 Leon. 189. WHEN FOftEIGN ATTACHMENT AVAILABLE. 35 Edwards, of London, was indebted unto one A. of the same city, and Edwards delivered goods to one Tedbury, carrier of Exeter, who went to him to carry for him certain wares, to be carried to Exeter, to certain tradesmen there, the said goods to be delivered to them, &c. And so the said goods, wares, and merchandise, being in the possession of the defendant Tedbury, to be carried to Exeter, the said A. caused them to be attached in the hands of the said carrier, for the debt of the said Edwards. The said carrier being then privileged in the Common Pleas, hy^reason of an action there defending. And by the clear opinion of the whole Court, the said attachment ought to be dissolved : for the carrier for the reason aforesaid is privileged in his person, and his goods, and not only in his own goods whereof the property belongs to him, but *also in such goods in his possession for which he is answerable r £„„ , to others, &c. And so it was adjudged.(o) It seems that the <- " J action pending in the Common Pleas was the ground of the privilege, and not the mere fact of the party being a carrier. A man may have money in his hands which is attachable, though it be not debt ; as if he has money to keep, or if he finds the money of the debtor. (p\ Money in the hands of the sheriff, as will be seen, cannot be attached, being in custodia legis, but where money is levied under an execution on a judgment in the Queen's Bench and paid over to the plaintiff's attor- ney, there it is no longer protected from attachment, as the cause in the superior court is at an end.(y) The garnishee (the attorney) would be entitled to his lien on the money for the amount of his bill of costs, (qq) Though, generally speaking, if the defendant could not maintain an action against the garnishee for the property attached, the plaintiff in attachment cannot have a verdict; still there are exceptions, as in the case of a voluntary assignment for the benefit of all creditors, any one of them not coming in as a party to the deed of assignment may attach the distribution, (r) The bankruptcy of one of the defendants, founded *upon an .- .,.„ ■ -■ act of bankruptcy committed before the attachment, was held not L J to defeat the attachment upon their joint property made before the com- mission issued, (s) Whether a debt can be attached in the hands of the plaintiff himself is doubtful.(i) The custom, as certified by Starkey, was in a case where the plaintiff sought to attach a debt in the hands of a third person, and therefore the custom was certified to a sufficient extent to meet that case, PI And see Verrall v. Robinson, 2 C. M. & R. 495, custodia legis. _ l Tross v. Michell, Cro. Eliz. 172; Michill v. Hores, 1 Leon, 321. (qj Lee v. Palmer, Jun., Poe, defendant, Vaillant, MS. cases in M. C, 12th Feb- ruary, 1795. (qq) Id. (r) Phene v. Watkins, Whitmore defendant, Vaillant, MS. cases in M. C, 29th April, 1795. (s) Goodair v. Cohen and Another, I. and D. Valery,. defendants, Vaillant, MS. cases in M. 0., 7th May, 1805. And Bristow t. Potts, James and John Fletcher, defendants, Id. , (t) Kerry v. Bower, 1 Cro. Eliz. 186; 1 Rol. Abr. 552. 554; Bohun Priv. Lond. 253; Com. Dig. Attach. C. ; Harwood t. Lee, 2 Dyer, 196 a; Pro Hope v. Hblman, 1 Brownl. & Gold. 60; contra Nonell v. Hullett, 4 B. & Aid. 646, dub. 36 LOCKE ON FOREIGN ATTACHMENT. to this effect: "if the plaintiff will surmise that another "person," &c; but in the case of Heme v. Stubbs,(«) the custom was stated to be, after the summons and return, that "if he (the defendant) be solemnly called « at the next court and makes default,, that then if he (the plaintiff) can " shew that the defendant hath goods in the hands of one within the « liberty of the cjty, that the said goods shall be attached." The word one clearly does not restrict the making the attachment upon goods, moneys, or debts, in the hands of a person other than the plaintiff him- self. The custom has been certified in several cases, but the certificate has only been made sufficient to meet each particular case, and there is r *%*> 1 ^ t ^ e ^ ou k* *h a * th e custom *is more full than has yet been cer- L " J tified, it is contained in the Liber Albus, which is in the Town Clerk's office. In the case of Nonell v. Hullett,(«) whether a custom for a party to attach money in the hands of himself and partner could be supported, was left doubtful; but the court held that the custom, as pleaded, that the plaintiff might attach money in the hands of " other person or persons," was not supported by shewing that he had attached money in the hands of himself and his, partner ; and by Abbott, C. J. — "My present judgment will not interfere, in any respect, with the or in a court of e ^ uit y» n0 * indeed . an y tl ;' ast L db J *property, which can only be recovered by proceedings in equity. Dividends due to a creditor from the assignees under a commission of bankruptcy cannot be attached, and an adjudication of bankruptcy before judgment in the attachment vests the property in the assignees, and defeats the attachment.(y) And if, pending an attachment, the defend- ant become bankrupt in Scotland and before judgment here, the Court of Session in Scotland make their order of adjudication, it vests the property in the trustees immediately, and defeats the attachment which is but an incipient lien.(«) "With regard to a bankruptcy of the defendant in a foreign country, in) Godbolt, 400. (») * B. & Aid. 646. \w) 9 & 10 Win. 3, c. 44, s. 74, ( and see "Wolf v. City Steamboat Company, 7 lj. B. 103, and the case of the Hamburgh Co., 1 Mod. 212. Ix) 1 Eol. Abr. 551, Tit. Customs de Lond. (E) pi. 2; WoodT. Smith, Noy, 115; Chamberlain v. Chamberlain, Chancery Oases, 257; Com. Dig. Att. D. (y) Sill and Others v. Worswick, 1 H. Bl. 665 ; Phillips v. Hunter, in error, 2 H. Bl. 403 ; Hunter v. Potts, 4 T. R. 182, vide 12 & 13 Vict.- c' 106, s. 141. (z) Wylie v. Anderson and Another, Ramsey, defendant, MS. cases in M.C., Vaillant, 5th April, 1797, and see Selkreg t. Davis, 2 Rose Bank. Cases, 291. 314; Story's Conflict of Laws, 408. WHEN FOREIGN ATTACHMENT AVAILABLE. 37 the courts in this country Will give effect to the claim of foreign assignees^ when the laws of the country are proved, in the recovery of personal property, and will prevent a creditor here obtaining an exclusive satisfac- tion out of personal property in this country. Upon this principle, an attachment of bankrupt's property after a proceeding in a foreign country, which is equivalent to an adjudication under the English bankrupt laws, is invalid; but where the attachment is already made, such a proceeding in a foreign country will not defeat it.(a) Mr. Justice Story, in his most valuable Commentaries on the Conflict *of Laws, thus states the r + „ 7 -i result of all the authorities : — <- J " This is now, accordingly, to the settled law of England, in which " the following propositions are firmly established : first, that an assign- « ment under the bankrupt law of a foreign country passes all the per- " sonal property of the bankrupt locally situate, and debts owing in " England ; secondly, that an attachment on such property by an Eng- " lish creditor after such bankruptcy, with or without notice to him, is " invalid to overreach the assignment; thirdly, that in England the " same doctrine holds under assignment, by her own bankrupt laws, as " to personal property and debts of the bankrupt in foreign countries ; " fourthly, that upon principle, all attachments made by foreign credi- " tors, after such assignment in a foreign country, ought to be held " invalid ; fifthly, that at all events a British creditor will not be per- « mitted to hold the property acquired by a judgment under any attach- " ment made in a foreign country after such assignment ; and sixthly, " that a foreign creditor not subjected to British laws, will be permitted " to retain any such property acquired under any such judgment, if the " local laws (however incorrectly upon principle) confer on him an abso- lute title."(6) If the defendant be adjudged bankrupt pending the attachment as we have seen, their attachment is ^virtually dissolved. And by the r % „ R -. Bankrupt Act no creditor having security for his debt or having L -I made any attachment in London, by virtue of the custom of the goods and chattels of the bankrupt, shall receive upon any such security or attach- ment more than a rateable part of such debt, except in respect of any execution or extent served and levied by seizure and sale upon any mort- gage of or lien upon any part of the property of such bankrupt before the date of the fiat or the filing of a petition for adjudication of bankruptcy. (c) Bankruptcy in the garnishee if the property attached is money, or if goods and the bankrupt has converted them to his own use before the date of the adjudication or filing of the petition, renders the further pro- ceedings on the part of the plaintiff unavailable. But if the goods remain in statu quo and are seized by the assignees, they may forthwith (a) Cleve v. Mills, Cooke's Bankrupt Laws, 370 ; Richards and Others v. Hudson and Others, cited in argument in Hunter v. Potts, 4 T. R., B. R. 187, and Waring v. Knight, Cooke's Bankrupt Laws, 372 ; Sill v. Worswick, 1 H. Bl. 672. 692, and Solomons v. Ross, Id. 131, and Tollett v. Deponthieu, Id. 132. tb) Story's Conf._Laws, § 409. See 12 & 13 Vict. c. 106, ss. 133. 184, and a judgment in the Mayor's Conrt obtained against the garnishee, does not entitle the plaintiff to rank as a judgment creditor in the administration of the garnishee's assets, Holt v. Murray, 1 Sim. 485. 38 IiOCKE ON FOREIGN ATTACHMENT. be attached in their hands inasmuch as the bankruptcy of the garnishee cannot in anywise affect the property in goods of the defendant, and as he himself might maintain trover for them against the assignees, so could his creditor maintain an attachment upon them.(d) But of course this must be subject to the provisions of the bankrupt laws as to goods in the order and disposition of a bankrupt at the time he becomes bank- rupt by consent of the true owners. Bankruptcy in the plaintiff does r *8Q ~\ no * anrec * * ne proceedings, and his *assignees may notwithstand- L J ing, proceed to judgment and execution in his name.fe) Joint property for a separate debt cannot be attached, but when joint property of the two defendants is attached by a joint creditor it is no answer by the garnishee that a separate commission of bankruptcy has issued against one of the defendants. This was decided in the case of Bristow v. Potts, James and John Fletcher, defendants,(/) where the Recorder Sir William Bose said, " he very lately fully considered the ques- " tion before the Court, and had a decided opinion upon the subject, and " that the attachment might well be supported. Generally speaking, it " is true that if the defendant could not recover against the garnishee " the plaintiff in attachment cannot, yet there are exceptions to this rule. " The case of a voluntary assignment for the benefit of all creditors is " one ; for any creditor who wishes to attach instead of agreeing to the " assignment may recover from the holder of the defendant's property " though the plaintiff himself could not, and I am clearly of opinion " that this case is another exception. The objection arises upon the " title in the defendant to recover against the garnishee ; that has been » overruled in the case alluded to. The plaintiff has a joint demand, " and if both defandants were solvent no question but he might recover. " At common law, the assignees of James joining with John Fletcher it * m ight recover beyond a doubt. It is a joint debt only which L ^ J - -I defendant. (J) (g) Lord Carteret v. Paschall, 3 Peere, Williams, 199. s h > : Lewis v. Wallis, 3 Car. 2 B. R. 199 ; Sir T. Jones, 222 ; Bohun Priv. Lond. 27t; Bacon's Abr. Custom of London, H., p. 595. li) Bohun Priv. Lond. 267. h) 1 Rol. Abr. 551, 1 Rol. Ab. Customs of Lond., E. L. 20. (I) The case of Barber v. Devaux and Others, Brant, defendant, which was de- cided in the Mayor's Court before the present recorder, March 31st, 1852, fully explains the law upon this subject. The following is a note of that case taken by the author, which, as it touches on the nature of the proceeding in many particu- lars, it is thought desirable to insert. The plaintiffs, who were corn dealers at Norwich, on the 21st of April, 1851, attached the sum of 5492. in the hands of the garnishees as the proper moneys of the defendant. The garnishees, on the 17th of May, 1851, pleaded nil habent. On the trial it appeared in evidence, that at the beginning of the year 1851, the defendant, who then resided and carried on the business of a corn merchant at Ghent, in the kingdom of Belgium, applied by letter to the garnishee to act as his agents or bankers in London, to which the garnishees having consented, it ap- peared that during the month of April, 1851, until the failure of Brant, they received from Brant a quantity of bills of exchange or orders for money at three days' sight, which were drawn upon parties in London, Southampton, Liverpool and Ireland, and at the same time that they received each draft it was usually accompanied by a bill of lading of corn which was delivered to order or indorsed to order/ The dourse of business was for the garnishees as bankers or agents of Brant, to send forward the bills of exchange or orders, and on the same being paid by the drawees or persons to whom the order was addressed, the bill of lading against which the draft or order was drawn was delivered over to the drawees and the money was received by the garnishees. Drafts of defendant upon garnishees were from time to time paid by the gar- nishees to the extent of the funds of Brant which were from time to time in their hands. At the time the attachment was lodged, viz. 21st April,' 1851, the garnishees had in their hands the net sum of 2,696Z. Is. id., after allowing for the deductions for the charges of raising the money, and which was composed of three sums, •namely, 87oX 8s. I0d., being the balance remaining in the hands of garnishees on a sum of 1,380Z. 5s. id. received from Messrs. Cole and Prosser, of Waterford, upon an order or bill of exchange remitted by the defendant, and which had been ac- companied by a bill of lading of corn to be shipped by a vessel called the Har- monie, another sum of 6211. lis. 6d., from Lomer of Southampton upon another bill remitted by the defendant through the garnishees' house, and also accom- panied by a bill of lading of corn purporting to be shipped in a vessel called the Speedwell, and a third sum of 1,2031. 16s. from a Mr. Adams, of Cork, upon a bill remitted in the same way by defendant, and accompanied by a bill of lading of corn purporting to be shipped in a vessel called the Joanna Maria. Notices were proved, the earliest on the 22d of April, (being all after the attachment; from the three parties above mentioned, to the garnishees, of the fraud committed by de- fendant, and directing them to hold the money for those parties, and it was also proved that the garnishees had paid over the several sums to the different parties defrauded, upon an indemnity being given by them to the garnishees. It was proved that all these bills of lading were forgeries, and that no corn had ever been received by the three parties above mentioned by any of the vessels ; that the 40 LOCKE ON FOREIGN ATTACHMENT. r */to l Debts of record, that is, upon judgments recovered, or recogni- L J zances cannot be attached. (mi) ^ . „ # . . -, *After issue in the superior courts the debt which is the L ~ J subject' of the issue cannot be attached ^because an, inferior court cannot attach a debt in a higher court. (to) vesselB never arrived, nor indeed had any corn ever been shipped in them by Brant the defendant, who was proved to have absconded from Ghent, and his handwriting was proved to all the bills of lading, and the signatures, purporting to be those of the captains, were proved to be forgeries. These facts were proved' by the differ- ent parties who had, been defrauded; by the clerks of the garnishees; and hy the depositions of witnesses at Ghent, taken 1 upon interrogatories abroad. Upon this evidence, Ryland and Kandell for the plaintiff, submitted that it was no defence to the action on the ground, in the first place, that the garnishees as agents of the defendant were not at liberty to dispute the title of their principal. Moreover, that it appeared that the garnishees having received the money and mixed it up with other moneys, they could not separate it. That it would have been different in the case of a specific chattel, and that at all events, the proper course would have been for the parties who had been defrauded, to have filed bills of proof claiming the money in the garnishees' hands as their money, to which the plaintiff in the attachment would have appeared and pleaded, and the question might then have been tried, whether the money was the money of these parties. They cited the case of Taylor v. Plummer, 3 M. & S. 573. Bramwell, Q. 0., and Locke, for garnishees, contended that the money in the garnishee's hands being the produce of a fraud committed by the defendant; the garnishees who were the innocent holders of that money for the defendant, where bound when the notices were served upon them 1 , to pay the money to the several parties who had been defrauded of it, and cited Bufier v. Harrison, 2 Cowp^ 565. That the plaintiff had no better title to the money than the defendant had.' The question was whose money was it at the time of the attachment? The fact of the notices being given after the attachment was lodged was immaterial, for since the defendant had obtained the money by fraud, the garnishees never could be said to hold it for him ; but that the parties defrauded might always have maintained an action against the garnishees to recover it back, and that the defendant could have maintained no action. Hardman v. Willcock, 9 Bing. 382. The Recorder. The defendant stands in the same position- as the plaintiff. The defendant is not a creditor of the garnishees, but Messrs. Prosser and Co., and the other parties who have been defrauded are. It was an action for money had and received. Mr. Ryland says, if it had been a chattel in the hands of the garnishees it would have been different; but I think, that all Lord Ellenborough meant in the Case of Taylor v. Plummer was, that where the money could be identified as be- longing to a particular transaction the principal might recover it. I think the money in this case quite sufiiciently identified. The recorder then explained the nature of an attachment to the jury, and stated that the question for their con- sideration was, whether between the date of the attachment and the plea, the garnishees had any money of the defendant in their hands. When a man obtains money by fraud and places it in an agent's hands, he acquires no property in it. The defendant could not here maintain an action against the garnishees. When a party discovers the fraud, and the money has not in the mean time been paid over, the person defrauded has a right of action against the principal. As to a bill of proof it is optional with the party so claiming the money to file one, but if he chooses to rely upon the garnishee; he may do so. It cannot be necessary that he should file a bill of proof. It is only when he cannot rely on the garnishee. If you think the money the proceeds of a fraud, then, I think, it was not the defendant's money. If no fraud, then the plaintiffs are entitled to recover. The jury then found a verdict for the garnishees, and afterwards by consent, a similar verdict was entered, in several other attachments in- which the same state of facts existed. (m) 1 Rol. Abr. Customs of London, P. L. 1. (ra) 1 Rol. Abr. Customs of London, F. L. 1 ; Id. L. 2 ; Anon. 2 Shower, 372, No. 356; Hays v. Barnaby, Comb. 427. WHEN FOREIGN ATTACHMENT AVAILABLE. 41 So a debt could not be attached after an imparlance in a superior court, (o) If a writ be issued in a superior court and made returnable, the debt cannot be attached, (p) But it was held otherwise when the writ was issued after the attachment covinously with an ante date. Nor will an attachment lie after a suit in equity commenced, (j) *Money in the hands of the sheriff by execution cannot be r * . , , attached.(r) L J Nor money awarded upon a reference from the superior courts, (s) Nor a sum of money directed to be paid by the Master's allocatur.(tf) Although a debt for which the defendant has commenced an action against the garnishee in a superior court cannot be attached, still the plaintiff by attaching a debt due to the defendant in the Mayor's Court does not preclude himself from bringing his action against the defendant in the superior courts pending the attachment, for the same debt which is the subject of the plaint in the Mayor's Court.(w) The property of an intestate in the hands of the ordinary cannot be attached, (v) A debt due to a deceased person cannot be attached on a plaint against his personal representative, although he be sued under that description, unless he be sued for a debt due from the deceased, (to) An attachment will not lie unless the money or goods were due or belonging to the testator at the *time of his death, although _ ^ .„ -. assests in the hands of the. executor, (as) And where an executor* •- ' sells the goods of the testator, the money arising from the sale cannot be attached in the hands of the executor, (y) Where money is awarded to an executor an attachment will not lie for it on the ground that it was not any debt due to the testator at the time of his death ; and if this money should be attached, the executor would be liable to a devastavit, and yet would have no remedy for the sum awarded.(z) Where an executor recovers in trespass for taking away the testator's goods, the damages are assests, yet they are not attachable. So damages recovered upon covenants made to the testator, (a) As we have already seen there cannot be an attachment of a legacy in the hands of an executor.(o) And if an executor take a bond for a (o) Id. L. 3; Babbington's case, Cro. Eliz. 157. % \p) Id. L. 4; Palmer v. Hooke, 1 Ld. Raym. 727; Brook v. Smith, 1 Salk. 280.. (q) Id. L. 5 ; 2 Ch. C. 233. (r) 1 Leon, 264. («) Grant v. Harding, 4 T. B. 313, n. ; Caila v. Elgood, 2D.4B. 193. (*) Coppell v. Smith, 4 T. E. 312. ■ (u) See Russell's Chitty, Contr. 680, 4th Ed.; Laughton v. Taylor, 6M.t¥. 695 ; Denton v. Maitland and Others, 15 L. J., N. S. 332. (») Comyn's Digest. Foreign Attachment, B.; Masters v. Lewis, 1 Ld. Raym. 56;. 3 Salk. 49. Iw) Com. Dig. Attachment, D.; Hodges v. Cox, Cro. Eliz. 843; Toller, 478. lie) Horsam v. Turget, 1 Vent. 113; S. C. 1 Lev. 306. (y) Com. Dig. Attachment, D., Horsam v. Tnrget, 1 Vent. 111. (z) Bohun Priv. Lond. 265; Horsam v. Turget, 1 Vent. 112. " Bohun Priv. Lond. 266. Page's case, 1 Rol. Abr. 551 ; 3 Bulst. 244. September, 1853. — 27 T la) 42 100KE ON FOREIGN ATTACHMENT. debt due to the testator, the 1 money due upon the bond cannot be attached, (c) No property of any description can be attached in the hands of the Government or its agents unless where the agents make themselves per- sonally liable, (d) r *47 1 Goods and debts, funds and dividends cannot be *attached in I- the hands of the Bank of England or the East India Company. Goods or money cannot be attached in the hands of the debtor or defendant himself, though they may be sequestered by the custom of London. It is said by Mr. Ashley, in iris Dodtrine and Practice of the Law of Attachment, that no attachment can be made on property on the river Thames ; but there is no direct authority for this position, and there is great reason to suppose, from entries in the books of the corporation; that such attachments were formerly made. By the 7th of Anne, c. 12, s. 3, the property of ambassadors and other' public ministers of foreign princes is exempt-from attachment; and even before that act it would seem that, by the law of nations, their property as well as their persons was sacred. (e\ T *48 1 "^ n attacnment cannot, by a recent decision(/) *of the Court L J Queen's Bench, be made on the property of a foreign potentate. (c) Horsham v. Turget, 1 Vent. 113; Gomyn's Digest, Foreign Attachment, D. (d) Gidley v. Lord Palmerston, 3 Brod. & Bing. 286 ; Macheath v. Haldimahd, 1 T. R. 172 ; Unwiu v. Wolseley, Id. 674. (e) Vattel, 4 Ed. B. 4, c. 7, p. 470. (/) Wadsworth v. Queen of Spain; De Haber v. Queen of .Portugal, 20 L. J. 488. These cases, decided for the first time* in this country, that an attachment could not be made on the property of a foreign prince. In delivering the jadg- ment of the Court, Lord Campbell, after referring to the opinion of Bynkershoek in his Treatise de forO Legatorum', as being in the affirmative, then goes on to say, " But this author, who is well known to have an antipathy to crowned heads and " monarchical government, admits that other jurists differ from him (quod ad bona " externorum Principum non una tamen omnium sententia est,) and he goes on to " cite a decision in his own country which completely overturns his doctrine," page 497. But Bynkershoek likewise cites several other cases in support of his doctrine, and I subjoin them all, commencing with the one cited by his lordship :^- Anno 1668 privati quidam regis Hispanici j creditores tres ejus regni naves bel- Hcas, quas portum Plissengensem subiverant, arresto detinuerant, ut inde ipsis satisfieret, Rege Hispan. ad certum diem per epistolam in jus vocato, ad Judices Flissingenses, sed ad Legati Hispanici expostulations Ordines Generates, 12 Dec. 1668 decrererunt, Zelandiae Ordines curare vellent, naves illae continuo dimitte- rentur libera, admoneretur tamen per literas Hispanic Regina, ipsa curare vellet, ut illis creditoribus, in causajustissima, satisfieret, ne repressalias, quas iraplora- verant, largiri tenerentur. Vide Aitzema Lib. xlviii. p. m. 1023-1027. - ; • Anno 1654 creditores comitisPalatinae, quae hie vulgo Bohemiae Regina andiebat, ut ejus bona arresto includere lioeret, ab Ordinibus et curia Hollandiae obtinere non potuerint, quemadmodum auctor est' ipse ille Aitzema Lib. xxxiv. p. m. 76. Anno 1628 cun enim Elector Brandeburgicus non satisfacerit creditori cuidam suo, qui ea de re ad Ordines Generales conquestus erat, illi mense Decefflbri ejus- dem anni decreverunt, creditor arresto includeret, quae Elector sub senatu Braban- tino et Plandrico habebat, et coram his cum eo litigaret, ut narrat Aitzema; Lib. viii., p. m. 672 et 673, et litigatum deinde est coram senatu Flandrico, de quo Elector per legates anno 1631, apud Ordines Generales expostulavit, ut habet ipse ille Aitzema, Lib. xi., p. m. 445. Etiam Mercator Amsterdammensis anno 1670. Amsterdam*! arresto detinuit pecuniam, quas Reipublicee Veneta? debebatur, indig- nar.te quidem plurimum Republica, sed relaxationem pecuniae non obtiuente, nisi OP DISSOLVING AN ATTACHMENT. 43 -i.'-:.; *IV. OF DISSOLVING OR DEFEATING AN ATTACHMENT. i [ *49 ] The defendant, or the garnishee fori him, may put ,in substantial bail to the plaintiff's action, whereby the attachment is dissolved, and ; this may *be done at any time before satisfaction entered upon the r ^r^ -. record. . The entering up of satisfaction upon the record renders L J the attachment indissoluble by bail or render.(^) The cause may be per transactionem, cujua meminit Decretum Ordinum Hollandiae, 3d Dec. 1670. Bursus anno 1689, creditor quidam Ducis Mecklemburgensis ejus bona in Hol- landia arresto 'Curiae inclusit, de quo ipse; atqUe si jus Gentium laesum esset, prolixe quide;m quiritatus est ad ordines generates, sed relaxatum esse ad ejus prius non comperi. Simpliciter ea de re cum ipsa Curia deliberari jusserunt Ordines Hollandise Decreto, 19th Oct. 1689, utrumque quod dixi, Decretum reperies inter inedita Ordinum Hollandise Decreta ad eos annos. Jacobus, Dux Courlandiae, multa millia debebat Mercatori Amsterdammensi ex laudo et spontanea condem- nation Senatus supreini. Quum.non solveret, et ejus haeredes, Principes Cour- landiae, in Hollandia et Zelandia haberent naves et merces, Senatus Supremus anno 1696, et saepe deinceps, eas arresto detinuit, inserta Mandate Clausula Edicti, et constituto etiam Curatoify qui Principes defenderet. Ipse Senator quibusdam ex his causis judicandis interferi nam maxima pars debiti adhuc exsoluta non est. Quin paucis abhinc annis Eex Borussiae qui nunc rerum potitur, ex mandate curiae in jus Tocatus est cum clausula Edicti, arresto inclusa parte hsereditatis Wilelm III. de qua pluribus litibus actum est, et nondum transactum Offendebat Begem non tarn in jus vocatio, quam clausula Edicti, per campanam, ut fit, populo signi- ficata, et forte ea carere possumus, Princeps legatum habet, qui velit recipere literas. Litigavit tamen Bex Borussiae apud curiam aliquamdiu, et cum in causa quadam, 15 Jul. 1716, victus esset, appellat ad Senatum Supremum et litem ibi contestatur. Sed cum revocato mandato litem nollet persequi, nee appellationi renunciare, haeres'Wilelmi in. solus per advocatum causam oravit, sed 18 Jul. 1719, victus est qui vicerat, defensus ab indefenso. He then adds, — Scio et in Geldria et alibi, Principes externos interposito arresto, in jus vocari, et adeo ea res in mores transivit, ut, tanquam de re liquida, nunc equidem inter omnes vide- atur constarc. Cavendum autem est, ne res ad injuriam vergat, nee quod inter privates summum jus est ex iniquis forte Pragmaticorum Decretis, id summa in- juria ad Principes porrigamus. Aiunt illi, vel rem minimam, arresto detentam, sufficere ad subjectionem fori. Largiamur inter privates, sic enim obtinuit sed an ita Principis equus, per alterius Ditionem transiens, poterit iucludi, ut causam prsebcat foro ? si me auctorem sequaris, non- poterit, nee quicquam magis erit con- tra praesumtam, si non testatam mentem gentium. — Bynkershoek de foro Lega- torum, c. 4. (g) The following are the rules adopted by the Court upon this subjept: — An attachment may be dissolved by bail or by payment of money into, court with the defendant's consent. When the sum in the garnishee's hands is' larger than the debt sworn to by the plaintiff, by paying the amount of the plaintiff's debt so sworn to, or where the money in the garnishee's hands is less than the amount sworn to as the plaintiff's debt, then such sum as the Court may direct. i , , The names, residences, and occupation of all persons proposed as bail to be entered with the registrar, and two days' notice of the justification of such bail to be, given in writing to the plaintiff's attorney.. Such notice containing/ the names, residences, and occupation of all persons proposed as bail.. Notice of bail to dissolve an attachment shall not.be.deemed anystay of, pro- ceedings in such attachment except as regards the payment of the proceeds: of the execution over to the plaintiff '£ attorney. , _,— .,. If in any case of notice of bail the bail do not justify at the tuneiappointed then the plaintiff shall be at liberty to proceed in the attachment and to sign aatisfaCr tion, and the proceeds of the execution paid over as before. ■•■ . .v ;>■ > All housekeepers, if sufficient, whether within the city or elsewhere, to be allow- able as bail for dissolving attachments. 44 LOCKE ON FOREIGN ATTACHMENT. r *W 1 remove( ^ *i nto tne superior Court by the defendant by habeas L J corpus or certiorari, whereby on the defendant putting in special bail as he would have been bound to do in the Mayor's Court, the attach- ment is dissolved, (h) If special bail be not put in by the defendant, the superior Court will order a procedendo.(i) Where the action was commenced against an administrator in the Mayor's Court, a debt to the intestate's estate was attached, it was held that the defendant, although an administrator and not generally bound r nfgo -i to give special bail, must put in *special bail, or a procedendo L J would be ordered. Lord Campbel^ C. J. " Generally an admi- " nistrator need not give special bail on removal by certiorari ; but there " must be an exception in the case of the custom if this applies to " adminstators at all ; else the custom would be illusory."(&) One of several defendants may remove the cause by certiorari into the Queen's Bench, but he must put in bail for all the defendants, otherwise a procedendo will issue. (J) Although, as we have seen, the cause may be removed into the supe- rior Court, still the garnishee cannot remove the attachment, because the proceeding against the garnishee is only by the custom of London, and the superior Court has no jurisdiction in attachments.(m) That a memorandum of all recognizances of bail to dissolve attachments be taken by the registrar and be entered in a book to be kept for that purpose. All exceptions to bail to dissolve an attachment to be entered with the registrar, and notice of such exception be given by the plaintiff's attorney in writing to the attorney putting in such bail. In case of added bail the same form to be adopted of entry with the registrar and notice to the plaintiff's attorney. Upon the dissolution of an attachment the registrar to grant a certificate thereof. And thereupon the defendant may plead to the bill original, and proceed in the method prescribed in other actions (see Appendix), Ordinary Actions. Immediately judgment is signed by the plaintiff, the record to be filed by the registrar and preserved in the office. (A) As to the removal of causes from inferior courts, see 1 Tidd's Pr. 397, and Clapham's case, Cro. Oar. 79; Cross v. Smith, 1 Salk. 148, and 2 Ld. Eaym. 837; Horton v. Beckman, 6 T. R. 760 ; Keat v. Goldstein, 7 B. & 0. 525, 1 Mann. & By. 305 ; Dorrington v. Edwards, Skinner, 244. When the cause is removed into the Superior Court by habeas, the plaintiff, if he chose to proceed with the action, must declare de novo, — but he need not declare in the same form of action, Bower- bank v. Walker, 2 Chit. 511 ; Clark v. Dixon, 3 M. & S. 93. In the case of Love- ridge v. ^Whitrow, 1 Mod. 213, it was ruled that if A. bring debt in London against B. and attach goods of B. in the hands of C. from whose possession the goods are not removed, and B. by certiorari bring the cause into the King's Bench, and put in bail, the attachment is at an end, and C. ought to deliver the goods to B. ; which if he do not do, B. may have trover or replevin ; but the King's Bench will not compel him to deliver them, because he is no party in Court : and all things now are as if there never had been an attachment. («') Day v. Paupiere, 13 Q. B. 802, and see the case of Seamett v. Rice, 1 Dowl. (N. S.) 333, as to the practices of putting in the bail in the Court above. (k) Bastow v. Gant, 13 Q. B. 807, and see Bohun Priv. Lond. 81. II) Keat v. Castles, 7 B. & C. 525. (m) Crofte's case, 1 Rol. Ab. 268; 2 Rol. Ab. 69; Watson v. Clarke, Carth. 76; Smith v. The Mayor and Aldermen of London, 5 Mod. 78; Anon. 1 Salk. 352; Fazakerly v. Baldoe, 6 Mod. 177, S. C, Say. Rep. 156; Ballard v. Bennett, 2 Burr. 777, 778; Pope v. Vaux, 2 Black. Rep. 1060; Beard v. Webb, in error, 2 Bos. & Pul. 93; Bulmer v. Marshall, 5 B. & Aid. 821 ; Rex v. Chamberlain of Worcester, Or DISSOLVING AN ATTACHMENT. 45 The cause cannot be removed after the jury are sworn, (n) An attachment may also be defeated by a prohibition, *which r „,„ , is an original writ issuing out of one of the superior Courts, and <- ■* directed to the Judge of an inferior Court, or to the party to a suit(o) in such Court, or any other whom it may concern, commanding that no fur- ther proceedings be had in any particular cause. This writ is granted on the ground, of an inferior Court having no jurisdiction, or having committed an excess of jurisdiction, in the cause. The cases of De Haber v. The Queeen of Portugal, and Wadsworth v. The Queen of Spain(^) before referred to were extremely important decisions to show when the Court of Queen's Bench will grant a prohibition to the Mayor's Court in the case of a foreign attachment. The decision in those cases was that : — No English Court has jurisdiction to entertain an action against a foreign sovereign for anything done, or omitted to be done, by him in his public capacity as representative of the nation of which he is the head. When the Lord Mayor's Court of London has no jurisdiction over the person of a defendant against whom a plaint has been entered in that court, the awarding process of foreign attachment against a person having funds in his hands belonging to the defendant as a means of compelling an appearance is an excess of jurisdiction for which prohibition will lie. When, therefore, a plaint was entered in the Lord Mayor's Court against the Queen of Portugal " as reigning sovereign and supreme head of the *" nation of Portugal," to recover a debt alleged to be due _ # r . -, from the Portuguese government, and a foreign attachment had L J issued according to the custom of the city of London, the Court made absolute a rule for a prohibition to restrain proceedings in the action and in the attachment. The same principle was applied to a case where a plaint was entered in the Lord Mayor's Courts against .the Queen of Spain, not expressly as reigning sovereign and head of the Spanish nation, but where it appeared by affidavit that the plaintiffs sole cause of action arose upon a Spanish government bond, purporting to have been issued under a decree of the Cortes sanctioned by the Kegent of Spain, in the name of the Queen, then a minor. The writ of prohibition may in such cases be granted on the applica- tion of the Queen (the defendant) before she has appeared to the action in the Lord Mayor's Court; or on the application of the garnishee, either before or after he has pleaded nil debet. Where an inferior court has no jurisdiction to entertain a suit, it is not necessary to entitle a party to a prohibition that he should have there pleaded to the jurisdiction, and that the plea should have been overruled. The court is bound to grant a prohibition where a court has no juris- 2 Kenyon, 469; Calthorp Cases on the Customs of London, 50; Clark v. Denton, 1 B. & Ad. 92 ; Horton v. Beckman, 8 T. B. 760 ; and see Tidd, vol. 1, 401. (n) Cox v. Hart, 2 Burr. 758 ; Godley v. Marsden, 6 Bing. 433 ; Kemp v. Balu , 13 L. J., 149; and see Bruce v. "Wait, 1 M. & G. 34, Maule, J. (o) 2 Inst. 601 ; Comyn's Digest, Prohibition B. C. ; Bacon's Ab., Prohibition A. 1 ; and see Lloyd on the Law of Prohibition. (p) Law Journal Rep. vol. 20, p. 488, N. S. 46 LOflKE ON FOREIGN ATTACHMENT. diction, uponthe application, of a: stranger, as w.ell as of a party;, to the proceedings. The process of foreign -attachment can only be resorted to where the cause of action against the original defendant arises within the jurisdic- tion of the court from which the attachment issues; - - .. The garnishee may appear in court by his *attorney and wage L J his law or plead that he has no money in his hands of the dg T , fendant, or other special matter or he may confess it. The course pur- sued is thus explained in Bohum. If A. attaches money in the hands of B. as moneys of C, and in truth B. had no moneys in his hands belonging to 0., but expects to receive it shortly, B. after four defaults passed (which is usually in four court days) may discharge the attachment by coming into court personally, and .giving, a rule to declare upon his attachment ;(#) and if A. do not declare in three days following, then judgment will be entered against A. to dis- charge the attachment ;(r) but if A.' declare then B. may plead he hath no moneys in his hands belonging to C. at the time of the attachment, or at any time since ;(s) and put the plaintiff to prove any money in his hands, which if the plaintiff cannot do, a verdict will be given for B. the garnishee ; or else B. may discharge the attachment by waging of law in this form, viz., He the said garnishee must come into court, and take the following oath : You shall swear, that at the time of the attachment made, or at any time since, you had not, owed not, nor did detain, nor yet have, or owe, or do detain from G. the defendant named in the original bill and attachment aforesaid, the sum of 201. or other sum, &c, so as afore- said in your hands attached, nor any penny thereof, in manner and form, as the plaintiff by his bill original and attachment aforesaid hath sup- posed. So help you God. r * thereunto ; and after the plaintiff hath pleaded, if the debt demanded be not a debt due by bond, bill, or specialty under hand and seal, the defendant may wage his law, and thereby discharge himself of the money demanded by the plaintiff, which must be done in court as followeth : I, A. B. do swear that upon the day of (naming the day the action was entered) I did not owe nor detain, nor as yet do owe or detain from C. D. the plaintiff, the sum of 120?. nor any part or parcel thereof, (w) Nathan v. Giles, 5 Taunt. 558; Bohun Priv. Lond. 270. (z) Nelson v. J. Martin, G. Stone,, J. Martin, and R. Martin, C. W. Hooper, and B. Hooper, defendants, was a case tried before the present recorder on the 30th April, 1852. Ryland and Locke, for the plaintiff; Randell and Unthank, for the garnishees. The attachment was lodged on the 12th of February, 1852, and the plea pleaded the 28th of February, 1852. It appeared by the evidence of Mr. Stone, one of the garnishees, that on the 12th of February, 1852, there was a sum of upwards of S001. placed to the credit of the defendant in the hands of the garnishees. That the garnishees had been in the habit of discounting the bills of the defendants and placing the amount to the credit of the defendants, debiting them with the dis- count: That on the 12th of February the garnishees were the holders of several bills which became due on the 12th, 20th, and 27th of February, that the bills had not been paid. Notice of dishonour of any of the bills was proved. It was submitted on the part of the garnishees that, as bankers, they had a lien upon the money placed to the credit of the defendants, inasmuch as at the time of the plea pleaded they had money in their hands respecting which a liability might be incurred; but the recorder held that the lien was not existing at the time of the attachment, inasmuch as none of the bills had fallen due at the time of the attach- ment, and that the money might have been drawn out of the garnishees' hands during the whole of the 12th, for the bankers could not refuse to pay cheques because the bills might not be paid. He, therefore, directed the jury to find a ver- dict for the plaintiff. Verdict for plaintiff, 5062. 5s. 8d. 48 LOCKE ON FOREIGN ATTACHMENT. in manner and form as the plaintiff by his bill original hath supposed. So help me Grod. And if the defendant be a freeman of London, he must have six com- purgators who will swear, That they believe in their consciences, that what r *^Q i ^ e defendant swears is true. But if the defendant be *not a L J freeman of London, then two compurgators will be sufficient. (y) If the defendant shall pot think fit to wage his law, but will put the plaintiff to prove his debt, he must in such case plead that he owes nothing to the plaintiff,(a) an issuable plea. And in case the plaintiff fail to prove his debt, a verdict and judgment will pass against him for res- titution of the money, or value of the goods attached and condemned ; and if the plaintiff in the attachment shall in such case be taken in exe- cution, and shall be unable or unwilling to restore the money, his secu- rity or pledges that he gave when the money was condemned, will be compelled to pay the money; for the sureties cannot discharge themselves by rendering the plaintiff's body to prison. But if the plaintiff prove his debt, tha verdict will pass for the plain- tiff in the attachment, and then judgment will be entered for the debt proved to be due; and if so much was not recovered upon the attach- ment or sequestration, the bail for the defendant are liable to answer, and pay the same with costs, (a) We have seen that a larger sum may be recovered in the action than the sum attached. The garnishee after trial between himself and the plaintiff, may likewise put in bail in the absence of the defendant, before r *fif) 1 *^ e ^ j0rc ' -M- a y or ; an d so dissolve the *attachment, and all the L J proceedings thereon ; but then he and his security are liable to* what debt the plaintiff shall make appear to be due from the defend- ant.^) The proceeding against the defendant is as before stated, by original bill or plaint, and where he pleads nil debet (as we have just seen that he is entitled to do) the cause is tried in the same manner as an ordinary action in the court. The original bill or plaint(c) is an action of debt upon a concessit sol- vere by the custom. And it may be brought in all cases where an action would lie to recover liquidated damages. The form given in the note in Williams's Saunders as the one used in London is, That the defendant, in consideration of divers sums of money before that time due and owing from the said defendant to the said plain- tiff, and then in arrear and unpaid, granted and agreed to pay (concessit solvere) to the said plaintiff, the said £ where and. when the same should afterwards be demanded, yet, &c. Mr. Justice Maule in (y) See Barry v. Robinson, 1 New Rep. 295. The practice of waging law is now entirely obsolete, and has been abolished in the Superior Courts by the 3 & 4 Wm. 4, c. 32, s. 13; and the words of that section would seem to apply to all Courts. (ar) See form in Appendix, No. vi. (a) 1 Bohuu Priv. Lond. 280; Lex Lond. 41. (6) Bohun Prir. Lond. 260; Lex Lond. 33. (c) See the form in Appendix, No. rv. OF DISSOLVING AN ATTACHMENT. 49 the case of Bruce v. Wait, observes(d) that "Mr. Serjeant Williams is " quite correct in what he states to he the form." When the action is for goods sold and delivered, it is said that it was agreed for law, that in debt in London upon a concessit solvere by the custom, the declaration shall be that for merchandises to him be/ore sold he granted to pay 10?. *so that the merchandise must be .- M o-i -■ mentioned,(e) and yet the merchandise is not traversable. *• * The case of Cunningham v. Cohen,(/) deoided in the Mayor's Court by Sir William Rose, Recorder, 17th May, 1797, is important, as show- ing the description of claims that this action will embrace. It was an action upon the customary. count.((?) The defendant pleaded the general issue (nil debet). (A!) At the trial on the 17th of May, 1797, it was proved that the plaintiff in quality of insurance broker, had effected several policies on different ships belonging to the defendant by his desire. That the first policy was made on the 6th of July, 1796, and the last on the 12th of October, in the same year. The balance in his favour after deducting some sums for returns on convoy amounted to 738?. 9s. Bd. On the cross-examina- J tion of the plaintiff's witnesses, it appeared that there is a general usage \ between brokers and underwriters to settle their accounts at the J end of the year, and the broker is therefore entitled to credit for the premiums until the Christmas after the policy is made. But ^ no similar usage exists between the broker and the assured. In J consequence of this usage the plaintiff had not paid the premiums upon ^ any of the policies which were the *subject of the present action _ # „„ , k at the time of the commencing it, though in February last he L J did settle with some of the underwriters, but some were unpaid even at the time of the trial. The plaintiff further proved the sum of 11. 14s. 6d. due to him from the defendant for wine. The Recorder. In this action the plaintiff declares that a sum of money being due and owing to him from the defendant he undertook to pay it. I think if the plaintiff could frame any declaration whatever, upon which he could recover it in a superior Court under the existing circumstances of the case, he may recover upon a concessit solvere, and I am of opinion that it is immaterial when the broker paid the underwri- ters, his effecting the policies and liability to pay the premiums of them is a consideration sufficient to raise a debt for which the concessit solvere will lie. Under this direction the jury found a Verdict for the plaintiff. This action lies as we have seen against the executors and adminis- trators.^") ((f) 4 M. & G. 33. (S) 1 Bro. London, pi. 15; Turbill's case, 1 Williams's Saunders, 68, n. 2. But see the form of concessit solvere in the note, and ante, p. 60, and the case of Wil- liams v. Gibbs, 5 A. & E. 208. (/) Taillant, MS. cases in M. C. !ff) See Appendix, No. iv. (A) See Appendix, No. vi. i) Turbill's case, 1 Williams's Saunders, p. 68, n. 2; Bohun's Priv. Londini, 81; 50 LO0KE ON FOREIGN ATTAOHMENTf : i The .defendant by his plea of nil debet puts in issue the existence of the debt at the time of bringing the action ; and, consequently, any matter may be given in evidence- under this plea, which shows that nothing was due at that time, as performance, or a release, or other matter in discharge of the action. ' r*fiS 1 i *-"- t ' s observed by Mr. Chitty(&) that as the plea of nil debet L. ' J is in the present tense,- the Statute of limitations might be given in evidence, under the general issue j but he goes on to observe that this doctrine, seems questionable, 1 and, the. practice is to plead, the statute in' debt as well as assumpsit^ and, a tender must plead specially ; and a set dff must as in assumpsit be either pleaded or notice thereof given. • There is another course by which an attachment can be dissolved Or defeated, viz.,1 by a writ of ■ error, but the judgments of the Mayor's Court cannot be removed by writ of error into any of the Courts of West- minster Hall ; they are Reviewed in the same manner as judgments given in the Court of Hustings, i. e. by commissioners, appointed under the Great Seal. By the first charter of Edward UI.,(l) it is directed that T *B41 a ^ i n< l 1 " s i t i (ms °f *'he city, taken by the king's justices and L J ministers shall be held at St. Martin' s-Le-G-rand, except those at the Tower, and those of goal delivery at Newgate. So that before the charter of Henry, VIII., these commissioners sat in St. Martin's-Le- Grand. The second Charter of Henry VIII., (m) referring to that part of the first charter of Edward III., by which inquisitions are directed to ,ba taken at St, >Martin's-Le-Grand, grants that such inquisitions shall for the future be taken at Guildhall, or other place, within the city, thought more convenient by the justices before whom such inquisition shall be taken. The party wishing for the examination of a judgment given in this Court, on petition to the Lord Chancellor, Commissioners, or Keeper of the Great Seal, praying the same, has a commission of errors (together with a writ of error) made out, directed to certain of the Judges of the The City of London's case, 5 Rep. 826;.Snelling v. Norton, Cro. Eliz. 409, S. C; and see Bruce v. Wait, 1 M. & G. 1. (k) Chitty on Pleading, 5th ed., vols 1, 517. (l) Dated March 1st, 6th year. To be found in the inspeximus of Oar. 2, and that of Rich. 2, and in Liber Albus. The city of London possessed, by ancient prescription, a right, confirmed by charter, of exclusive jurisdiction in pleas of the crown (charter of Henry I.) . This, however, did not prevent the king from exercising, by his commissioned judges and others, various judicial functions over the citizens, both within and without the walls. Many of these functions' were no doubt legal, though others would be hard to reconcile with the chartered privileges of the citizens. The king's coro- ner, his escheator, and probably some other of his judicial officers, possessed a clear right Of jurisdiction within the city (Madox's Hist. Bxch. vol. 1, pe 784; and vide 1st charter of Richard 2) until their functions were transferred to the civic authorities. The king's judges would likewise sit with legal powers at the gaol delivery at Newgate, associated with the lord mayor ; and over the. lord mayor and all other citizens at the eyres held at the Tower, for adjudicating upon claims of franchises and the defaults and misconduct of the civic magistrates. It was not unusual, however, for the king's judges to hold inquisitions in criminal matters, and also to try pleas of the crown within the city, a practice always remonstrated against by the citizens as contrary to law. Fabian, pp. 440. 444, and notes; Nor- ton's Comm, p. 465; 114. 148, and see Greene v. Cole, 2 Wins. Saund. 238. (m) Dated 16th June,' 10th year. To be found in the Inspeximus of Charles 2. OF DISSOLVING AN ATTACHMENT. 5i Courts of Westfninster'Hall, empowering them, or any two of them, to cause the record of the judgment to be brought before them at Guildhall, London, and:. to examine the same, and correct the errors therein, upon which a precept issues under the hands of the Commissioners or Dele- gates, directed to the Mayor and "Sheriffs commanding them, to r- m'» -■' cause to be brought before them, the commissioners, the record J- J of the judgment : whereupon, according to the custom of the city ; after a respite of forty days, the record of the judgment is certified by the Recorder, ore tenus, and the matters therein assigned for error being examined, the judgment given: in the Mayor's. Court is affirmed; or reversed, as the case requires. The judgment of the Oommipsiqners, or Court of Delegates, is not conclusive; lor, if either party is dissatisfied therewith, by writ of error, the same is removed- immediately into the House of Peers, for the opinion and judgment of that Court, which is the dernier resort, and from whose judgment no appeal is permitted. There has been only one instance of a writ of error from the Mayor's Court for a great number of: years ; the last occasion was in the case of De Timrideuc and others plaintiffs— <-De dimes defendant, and Laurie and others garnishees ; and in that case the judgment of the Mayor's Court was upheld.(n) . There is still another proceeding incident to the custom of foreign attachment, by which the plaintiff may be delayed or defeated, and this is by the filing of a bill of proof, so called from the party who exhibits the same, thereby undertaking to prove the matters therein alleged to be true. It is a claim v to the property attached, or to an interest therein, by *some person not a party to- the previous proceeding, who'is r*/>f>-Y called the approver. The substance of the bill of proof (o) is L -■ that the claimant, or the approver, as he is called in the pleadings, prays to be admitted, to prove that the money or goods, attached, were at the time of the attachment his property. Whereupon the plaintiff's attorney procures from the registrar a rule for probation,( Affidavit stating the nature of a Debt. In the Mayor's Court, London. , of , Esquire, maketh oath and saith, that her most Christian Majesty Wftl *Dona Isabel Segundar, Queen of Spain, is justly and truly indebted L -I unto this deponent in the sum of pounds sterling and upwards, for interest upon and by virtue of certain bonds or certificates bearing date respec- tively the day of One thousand eight hundred and , and duly made and entered into by or on behalf of her Majesty the Queen Regent of Spain aforesaid, in the name of her august daughter the said Dona Isabel Segundar, Queen of Spain, by virtue of the law decreed by the Cortes and sanctioned, by her said Majesty the Queen Regent, in the name of her said daughter Dona Isabel Segunder, Queen of Spain, the day of , One thousand eight hundred and , and of the treaty between the Minister Secretary of State for the Finance department of Spain, and Monsieur Ardoin, banker of Paris, the day of , One thousand eight hundred and , and which said interest was due and payable on certain days now past. SW ° r day a of t,le beforef &°c? Urt ^^ ^"^^ ^^ } Signature of Deponent. VI. JEntry of Action In the Mayor's Court, London. day of 18 defendant, at the suit of plaintiff, in a plea of debt upon demand of pounds of lawful money of Great Britain. Pledges, &c. Sworn £ APPENDIX. 57 *VII. [*»] Notice of Motion to file Common Bail. Plaintiff. Defendant. Garnishee. Notice of motion ] Dated V Mr. (the attorney.) Take notice that this Honourable Court will he moved on day next, or so soon after as counsel can be heard, that common . bail may be filed in dissolu- tion of the above attachment on the ground of the insufliciency of the plaintiff's affidavit. And take notice that the defendant will move for a rule absolute in the first instance, and that in the meantime all further proceedings be stayed. Yours &c, Defendant's Attorney. vin. Certificate of Bail in dissolution put in by Defendant. In the Mayor's Court, London. Between -r. c -, ' . Defendant. Garnishee. This is to certify, that bail has been put in for the above named defendant at the suit of the above named plaintiff, and in dissolution of the attachment *made in- your hands, on v the day of 185 , whereby the said r#hal attachment is dissolved, made void and of none effect. L J Dated the ' day of 185 . To the above named garnishee. IX. Certificate of Surrender of Defendant in dissolution of Attachment. In the Mayor's Court, London. Between Plaintiff. Defendant. Garnishee. This is to certify, that the above named defendant did this, day surrender ' body into the custody of one of the serjeants-at-mace of this court at the suit of the above named plaintiff, and in dissolution of an attachment made in your hands, on the day of 185 , whereby the said attachment is dis- solved, made void and of none effect. Dated the day of 185 . To the above named garnishee. i X. Record. day of 18 , f Before the Mayor and Aldermen, in the Plaintiff appoints in his stead I chamber : of the Guildhall of the City of Lon- , his attorney, (don. by his attorney, demands against pounds of lawful *money re^n-i of Great Britain, which he owes to and unjustly detains from the said <- J plaintiff. For that whereas the said defendant on the day of in the September, 1853 — 28 58 LOCKE ON FOREIGN ATTACHMENT. year of the reign of her present Majesty Queen Victoria, at the parish of St. Helen, London, and within the jurisdiction of this court for and in considera- tion of divers sums of money before that time due and owing from the said defendant to the said plaintiff at the parish aforesaid and within the jurisdiction aforesaid, and then being in arrear and unpaid granted and agreed to pay to the said plaintiff the said sum of pounds above demanded, where and when he the said defendant should be thereunto afterwards required. Yet notwith- standing the said defendant although often thereto requested, hath not yet paid to the said plaintiff the said sum of pounds above demanded, or any part thereof, to the damage of the said plaintiff twenty shillings, and therefore he brings his suit, &c. f John Doe Pledges to prosecute < and [Richard Roe. Sworn £ day of 18 XI. And the said plaintiff by his said attorney prays process according to the cus- tom, &c, and it is granted, &c, and thereupon it is commanded by the court to one of the serjeants-at-mace of the said court that he, according to the custom of the said city, summon by good summoners the said defendant to appear here in this court to answer the said plaintiff in the plea aforesaid and that he return and certify what, &c. And afterwards, to wit, at the same court the said serjeant-at-mace returned and certified to the said court according to the custom, &c, that the said defendant had nothing within the said city or the l~*sm liberties thereof whereby he could *be summoned, nor was he to be L J found within the same. And at the same court the Said defendant was solemnly called and did not appear, but made default and now at this same court it is alleged by the said plaintiff by his said attorney, that the gar- nishee, owes to the said defendant pounds in moneys numbered as the proper moneys of the said defendant, and now has and detains the same in his hands and custody. And therefore the said plaintiff by his said attorney prays process according to the custom &c. to attach the said defendant by the said pounds so being in the hands and custody of the said garnishee as aforesaid, so that the said defendant may appear in this court here to be holden, &c, to answer the said plaintiff in the plea aforesaid, whereupon it is commanded by the court to the Said serjeant-at-mace that he, according to the custom, &c. attach the said defend- ant by the said pounds, so being in the hands and custody of the said gar- nishee as aforesaid, and the same in his hands and custody defend and keep so that the said defendant may appear in this court here to be holden, &e. to answer the said plaintiff in the plea aforesaid. And that the said serjeant-at-mace return, &c. and afterwards (to wit) at a court holden, &c. on aforesaid, the said plaintiff by his said attorney appears, and the said serjeant-at-mace returned and certified to the same court that he by virtue of the said precept on the day of between the hours of and in the noon, had attached the said defendant by the said pounds so being in the hands and custody of the said garnishee and the same defended, &c. according to the custom, &c. so that the said defendant might appear at this court to answer the said plaintiff in the plea aforesaid. And thereupon the said defendant at the same court was solemnly called and did not appear but made a first default, which said first default at the same court is recorded according to the custom, &c. ; and a further l*R11 *^ av 1S gi yen by tne court to the said defendant to appear at the next L -I court to be holden, &c, on the day of , at which said next court holden, &c. the said plaintiff by his said attorney appears and offers himself against the said defendant in the plea aforesaid, and thereupon at the same court the said defendant was again solemnly called and did not appear, but made a second default, which said second default is recorded, &c. And thereupon a further day is given by the court to the said defendant to appear at the next i court to be holden, &c. on the day of aforesaid, at which said next court holden, &c. the said plaintiff by his said attorney appears and offers him- APPENDIX. 59 self against the said defendant in the plea aforesaid, and the said defendant was again solemnly called and did not appear, but made a third default, which said third default is recorded, &c. And thereupon a further day is given by the court to the said defendant to appear at the next court to be holden &c. on the day of at which said next court holden, &c. the said plaintiff by his said attorney appears and offers himself against the said defendant in the plea aforesaid ; and thereupon the said defendant was again solemnly called and did not appear, but made a fourth default, which said fourth default is recorded &c. And thereupon after the said four defaults recorded by the court against the said defendant in the plea aforesaid according to the custom, &c, the said plaintiff by his said attorney, prays process according to the custom, &c. to warn the said the garnishee to be and appear in this court to shew cause, &c, whereupon at the same court holden &c. it is commanded by the same court to the said serjeant-at-mace that he, according to the custom of the city, warn and make known to the said garnishee to be and appear here in this court to be holden &c. on the day of to shew cause, &c. why the said plaintiff ought not to have execution of the said *pounds so attached in his hands and r# 8 «-i custody as aforesaid ; and that the said serjeant-at-mace return and cer- *- -I tify at the same court what, &c. ; the same day is given by the court to the said plainciff to be there, &c, at which said court holden, &c. the said plaintiff by his said attorney appears, and the said serjeant-at-mace hath returned and certified to the same court that he by virtue of the said precept to him directed and according to the custom, &c. had warned and made known to the said garnishee to be and appear at this same court to shew cause, &c. as above commanded, and thereupon at the same court the said garnishee was solemnly called and appears, and appoints in his stead , his attorney, and hath leave to imparle until, &c. XII. Plea. And the said garnishee, by his attorney, on the day of , in the year of the reign aforesaid, comes and says that the said plaintiff ought not to have execution of the said pounds in moneys numbered [or judgment of appraisement of the said goods and chattels] so attached as aforesaid, or any part thereof. Because he says, that at the time of making the said attachment, or at any time since, he had not owed to or detained from, or yet has owes to or detains from the said defendant named in the bill original and attachment afore- said, the said pounds or any part thereof, [or the said goods and chattels or any part thereof,] in manner and form as the said plaintiff by his attachment has above supposed. And of this he puts himself upon the country, &c. And the said plaintiff doth the like. Therefore, &c. XIH. [*83] Postea on Verdict for Plaintiff. Afterwards, that is to say, on the day of in the year of the reign of her present Majesty the jurors of the jury aforesaid being solemnly called; twelve of them appeared, who being elected, tried and sworn upon the said jury, according to the custom of the said city, to declare the truth of, and concerning the premises and to try the issue joined between the said parties in the plea aforesaid, for their verdict upon their oath, say that at the time of making the attachment aforesaid, the said , the garnishee, owed to, and detained from the said the defendant named in the bill original and attach- ment aforesaid, the sum of .pounds in moneys numbered, as the proper moneys of the said defendant, in manner and form as the said plaintiff by his said bill original and attachment aforesaid hath above supposed. Therefore it is considered by the Court, that the aforesaid plaintiff have execution of the said pounds in moneys numbered, so attached as aforesaid, and by the jury 60 LOOKE ON FOKEIGN ATTACHMENT. found as aforesaid by pledges, && of tie defendant, &c. and' process for the remainder, &c. XIV. Entry on the roll of Judgment for want of Appearance in the case of Attach- ment of money. And thereupon at the same court the said garnishee is solemnly called and r*R41 ^oth not appear, but makes default. Therefore it is considered by the L J *Qourt, that the aforesaid plaintiff have execution of Judgment, the said pounds in moneys (numbered, so attached as afore- 18 . said by pledges, &c. if .the defendant, &c. and process for the remainder, &c. XV. Judgment against Garnishee by default. The Entry, &c. And was solemnly called and appears and appoints in his stead his attor- ney, and has leave to imparle until, &e. the - day of 18 . Because the garnishee has not pleaded to the attachment aforesaid, or shewn any cause why the said plaintiff should not have execution as aforesaid. Therefore, &c. XVI. Pledges to restore Recognizance. Security given, f Pledges for the within named plaintiff to restore, &c. if 18 . \ the defendant, &c. that is to say. A. B. Street, Merchant. C. D. Street, Merchant. XVII. Precept of Execution. To one of the Serjeants-atMaee, &c. or to any | fi h M & other Serjeant-at Mace, &c. J J 3 ' [*W\ ^ e comman d you that you take *if be to be found within the ■- J liberties of the city of London, and safely keep so that you have bod here in court without delay to satisfy heretofore attached in hands at the suit of the said as the proper of defendant, by due process of attachment and judgment of the court here before us recovered against the said and have you the said here in court without delay to render to the said according to the tenor and effec.tof the said judgment thereof given : and this you are not to omit on the peril incumbent : and have you there this precept. Dated in the chamber of the Guildhall of the city of London this day of in the year of our Lord one thousand eight hun- dred and Attorney for the plaintiff.(a) xvm. Entry of Satisfaction indorsed on the Boll. And the said plaintiff in his own proper "person came here into court, and according to the custom of the said city, found sufficient pledges to restore, &c. if, the defendant, &c. that is to say and and thereupon a precept being (a) By a rule of Court all precepts of execution to be sealed at the office upon filing a praecipe. APPENDIX. 61 delivered to the said plaintiff, had execution of the said sum of and thereof hath acknowledged himself satisfied. Signature of plaintiff. *XIX. [*86] Power of Attorney to sign Satisfaction. In the Mayor's Court, London. Plaintiff. Defendant. Garnishee. Know all men by these presents, that I the above named plaintiff, have made, ordained, authorised, constituted and appointed, and by these presents, Do make, authorise, constitute and appoint of the Lord Mayor's Court, London, or any other attorney of the same Court, to enter up and acknowledge satisfaction upon record of a judgment, to be entered upon a verdict obtained by me, for upon an attachment made in the hands of the above named garnishee, as the proper moneys of the above named defendant, according to the custom of the city of London. And for you or any of you so doing, this shall be your sufficient warrant and authority. In witness whereof I have hereunto set my hand and seal the day of in the year of our Lord one thousand eight hundred and Signature of plaintiff. Sealed and delivered by the above named in the presence of XX. Certificate of Judgment against the Garnishee and of Sureties found. Mr. (name of garnishee.) This is to certify that judgment hath been entered *against you, in the r* 8 Yl Lord Mayor's Court, London, at the suit of plaintiff, for the sum of L J heretofore attached in your hands as the proper moneys of defendant, and that security hath been given by the plaintiff in the said attachment for res- titution of the said moneys, if his debts should be disproved or avoided accord- ing to the custom, as by the record of the said judgment, now remaining in the said court appears. Dated the day 18 A. B. Plaintiff's Attorney, of XXI. Attachment Paper. To day of 185 . Take notice, that by virtue of an action entered in the Lord Mayor's Court, London, on the day of against , defendant at the suit of , plaintiff, □ „ in a plea of debt upon demand of I do attach all such moneys, ' goods, and effects, as you now have, or which hereafter shall come into your hands or custody of the said defendant, to answer the said plaintiff, in the plea aforesaid, arid that you are not to part with such moneys, goods, or effects without license of the said Court. A.T., Plaintiff's attorney, Serjeant-at-Mace, of Lord Mayor's Court. Office. 62 LOCKE ON FOREIGN ATTACHMENT. [*88] *XXII. Summons to the Garnishee to appear. You are hereby summoned to be and appear in the Queen's Majesty's Conrt to be holden before the Mayor and Aldermen in the chamber of the Guildhall of the city of London, on the day of , at ten o'clock in the forenoon, to show cause why plaintiff, shall not have judgment against you for pounds in moneys numbered, [or in the case of goods for four boxes, numbered and marked respectively 1, 2, 3, 4, as the case may be, and the goods and chattels therein contained], heretofore attached in your hands as the proper moneys (or as the proper goods and chattels, as the case may be), of defendant, and hereby take notice, that if you do not appear, judgment will be entered against you for the same. Dated at the Guildhall, London, the day of 18 . Attorney for the plaintiff, A. B. of Serjeant-at-Mace. xxm. Certificate of withdraioment of Attachment. Mr. This is to certify that the attachment made in your hands on an action of debt, entered in the Mayor's Court, London, on the day of against , de- fendant, at the suit of , plaintiff, was this day withdrawn, whereby the same js dissolved, made void, and of none effect. Dated at the Guildhall, London, jhis day of 185 . [*89] *XXIV. Judgment in case of Goods. Therefore it is considered by the Court that an appraisement be made of the said goods and chattels, &c. Whereupon at the further petition of the said plaintiff, it is by the said Court commanded to one of the serjeants-at-mace, that he cause the said two packages marked respectively X. and Y. to be opened in his presence, and the same, and the goods and chattels therein contained, to be appraised in the presence of him the said serjeant-at-mace, according to the cus- tom of the said city, so that he have an appraisement thereof here in Court, on the da"y of , in the year of the reign aforesaid. XXV. Precept of Appraisement. By the Mayor, &c. To one of the serjeants-at-mace, or any other of the serjeants-at-mace. We command you that according, to the custom of the city of London, you cause to be opened in your presence, two packages marked X. and Y., and the same, and goods and chattels therein contained, by two freemen of the city of London, in your presence, to be appraised as the proper goods and chattels of r*901 ' defendant, attached in the *hands and custody of , garnishee L J at the suit of , plaintiff, so that you have the said appraisement here in Court without delay. Dated at the Guildhall, London, this day of 18 . Plaintiff's attorney, of APPENDIX. 63 XXVI. ' Form of the Inventory and Appraisement. An inventory and appraisement, taken this day of 18 , by A. B. and C. D., of two packages marked respectively X. and Y., lately attached in the Mayor's Court, London, by , plaintiff, in the hands and custody of , gar- nishee, and of the goods and effects therein contained, viz. (specify the articles), as the proper goods and chattels of , defendant, which said goods and chattels, together with the said packages, are valued by us at pounds. A. B., citizen and fishmonger. C. D., citizen and painter. Sworn in Court this day of ,185 . xxvn. Entry on the roll of Appraisement, and Judgment thereon. On which day the serjeant-at-mace, returned and certified to the said Court that he, by virtue of the *said precept to him directed, had caused the r*qi"i said two packages marked respectively X. and T. to be opened, and the *- J same, and the contents thereof, that is to say (as the case may be), to be appraised on the oaths of A. B. and C. D., citizens of London, to the value of pounds, which said appraisement, the said serjeant-at-mace has ready here in Court, as to him above was commanded, and thereupon the said plaintiff prays execution of the said goods and chattels to be awarded to Final judgment, him, &c. Therefore it is considered by the Court that the day of 18 aforesaid plaintiff have execution of the said goods and chattels so attached and appraised as aforesaid by pledges, &c, if the defendant, &c, and process for the remainder, &c. xxvm. Entry of Verdict on Elongavit. On which said day {that is to say on the return day of the precept) the said serjeant-at-mace, returned and certified to the said court, that the goods and chattels aforesaid, to places unknown out of the liberties of the said city are eloigned, so that an appraisement thereof could not be made, as to him the said serjeant-at-mace was above commanded. And because the said garnishee hath eloigned the said goods and chattels out of the liberties of the said city, so Hag; the same cannot be appraised. Therefore it is commanded by the said court, that an inquiry be made of the value thereof, &c. and it is commanded by the said court, to the said serjeant-at-mace, that he summon a jury to inquire and assess the value of the said goods and chattels so eloigned as aforesaid, where- upon the *said serjeant-at-mace returned and certified to the said court, r,.., that he, by virtue of the said precept to him directed, had, according to L J the custom of the said city, summoned a jury to inquire and assess the value of the said goods and chattels, and on the day of in the year of the reign of her present Majesty Queen Victoria; the jurors aforesaid being solemnly demanded, twelve of them (that is to say) A., B., C. D., &c. appeared, who being elected, tried and sworn according to the custom of the said city, to declare the truth of and concerning the premises, and to inquire the value of the said goods and chattels so eloigned as aforesaid, upon their oath, assess the value of the same, at . Therefore, &c. 64 LOCKE ON FOREIGN ATTACHMENT. XXIX. Entry of Sequestration on the Record. On the day of in the said year of the reign aforesaid, between the hours of and in the forenoon of the same day, a sequestration is made of a certain warehouse of the said defendant, situate in in the parish of , in the ward of . And also the same day and year, between the hours aforesaid, the said defendant is attached by diver goods and chattels in the said warehouse contained, as the proper goods and chattels of the said defendant, being sequestered, attached and defended by serjeant-at-mace. XXX. ':. Bill of Proof. r*Q3l And now come here into court in their own *proper persons of L J gentleman and of gentleman and pray to be admitted to prove a certain sum of pounds in the hands and custody of , attached and defended and under and by colour of a certain bill, original affirmed against ■ , defendant, at the suit of , plaintiff, in a plea of debt upon demand of pounds of lawful money of Great Britain in the court here on the day of , and in a certain schedule or record of attachment to this plea annexed, specified to be the proper moneys of and belonging to these approvers, and because no other person at the time of the said attachment or at any time since had or hath any right or property in the said moneys except the said approvers. These approvers do not make this proof by fraud or collusion to exclude the aforesaid plaintiff or others from their actions, and humbly pray to be admitted to make this proof according to the custom, &c. XXXI. Rule for Probation. And the said plaintiff by his attorney, prays in what manner the said approvers claim property, &c. XXXII. Probation. And the said the approvers by their attorney, come and say they claim r*