12 In re Morse's Settlement.—(Settlement-Remoteness). 6 Wythes r. Lee.-(Vendor and purchaser-Lien for deposit) VICE-CHANCellor Stuart's Court. By T. F. MORSE, Barrister at Law. Tompsett v. Wickens - Bridger v. Wickens.-(Mortgagor and mortgagee-Foreclosure suit-Sale of estate mortgaged-Purchase money, investment of -Loss on investment, by whom to be borneCosts)... In re The Joint-stock Companies Winding-up Acts, and In re The Royal Bank of Australia, Ex parte THE JURIST. LONDON, JANUARY 12, 1856. 10 FEW of the enactments of the Common-law Procedure Act, 1854, (17 & 18 Vict. c. 125), have a more important practical bearing on the interests of creditors and their debtors than sects. 60 to 67, which enable a judgment creditor to obtain satisfaction of his judgment out of debts due from third persons to his debtor. The 1 & 2 Vict. c. 110, s. 12, merely empowered the sheriff to take, under a writ of fieri facias, such choses in action as cheques, bills, notes, bonds, specialties, and other tangible securities for money as he should find, and which were capable of being seized, and to hold the same as a security for the sum remaining to be levied, and when due, to sue thereon, in his own name for the benefit of the judgment creditor. The provisions of the 17 & 18 Vict. c. 125, however, extend to all debts, whether secured or not; and, moreover, enable the judgment creditor, by interrogating his debtor, to discover what debts are due to him, and from whom. The remedy, therefore, of creditors is by this act greatly and beneficially extended, and debtors cannot now rely on the unwillingness of a friendly or the fears of a dependent creditor to enforce payment of their claims; for in the event of a third person obtaining a judgment against such creditor, he may be compelled to disclose his debtors, who would then become liable to satisfy such judgment. The act provides that upon the application of any creditor who has obtained a judgment in any of the superior courts, the court or a judge may make a rule or order for the oral examination of the judgment debtor, as to any and what debts are owing to him, before a Robinson's Executors.-(Winding-up Acts-Deed of settlement — Contributory — Call—Simple contract creditor) ........ VICE-CHANCELLOR WOOD'S COURT. By MATTHEW B. BEGBIE, Barrister at Law. Armitage v. Walker.—(Benefit building society—Arbitration-Award) EXCHEQUER CHAMBER. By G. J. P. SMITH, Barrister at Law. Gregory v. Cotterell and Swift.-(Sheriff-Bailiff— Bailiff's follower-Execution-Payment in discharge to a clerk at the office of bailiff-Liability of sheriff-Evidence-Practice at office of sheriff's officer-Misdirection-Bill of exceptions-New assignment—Assessment of damages—Amendment of postea by judge who tried the cause-15 & 16 Vict. c. 76, s. 155) COURT OF QUEEN'S BENCH. 11 13 16 Master of the court, or such other person as the court or judge shall appoint, and for the production of any books or documents. (Sect. 60). The application under this and the following sections can only be made when the judgment has been obtained in one of the superior courts, and after final judgment has been signed. The proceedings under the subsequent sections are in the nature of an execution against debts due to the judgment debtor. In order, therefore, to constitute a party "a creditor who has obtained judgment" within the meaning of the 60th and following sections, he must be in a position to issue execution on the judgment; and on this ground the Court of Queen's Bench held, in Baynard v. Simmons, (1 Jur., N. S., part 1, p. 657; 24 L. J., Q. B., 253, S. C.), that an executor who had not revived a judgment recovered in an action by his testator, nor entered any suggestion upon the roll, as provided by sect. 129 of the Common-law Procedure Act, 1852, was not entitled to attach a debt due to the judgment debtor in order to satisfy the judgment recovered by his testator. If any books or documents are required to be produced at the examination, the rule or order should specify them. The examination is directed to be conducted in the same manner as an oral examination of an opposite party before a Master under the act, (as to which see sects. 53 and 54), and the judgment debtor, therefore, may be treated as an adverse witness, and cross-examined. With respect to the debts to which the examination may be extended, looking at the provisions in sects. 61 and 62 for the attachment of debts due and accruing due, it may reasonably be presumed that the intention of the Legislature was, that the judgment debtor should be examined concerning debts owing in futuro as well as debts owing in presenti; and it is apprehended that the words "debts owing" are sufficient to carry out that intention, notwithstanding that the use of the words "owing or accruing," in sect. 61, may seem to imply a doubt whether "debts owing" would include debts accruing due to the judgment debtor. Either before or after such oral examination, upon the ex parte application of such judgment creditor, supported by an affidavit of himself or his attorney, stating that judgment has been recovered, that it is still unsatisfied, the amount remaining due, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, a judge may order that all debts owing or accruing from such third person (to be called the garnishee) to the judgment debtor shall be attached to answer the judgment debt, (sect. 61); and service of such order upon the garnishee, or notice thereof to him, in such manner as the judge shall direct, shall bind such debts in his hands, (sect. 62). This application to attach debts is ex parte, and must be made in the first instance to a judge, and not to the Court; the affidavit in support thereof may be made by the judgment creditor or his attorney; and it is presumed, that notwithstanding the words of the act, it is sufficient for the deponent to swear that he has been informed, (stating his informant's name and description), and verily believes the same to be true, that the garnishee is indebted to the judgment creditor. It will be impossible in many cases for the deponent to swear positively that the garnishee is indebted, and the garnishee will not be prejudiced by the mode of swearing suggested; for if he is not in fact indebted to the judgment creditor, the order to attach will be inoperative; and if he is summoned to shew cause why he should not pay such debt to the judgment creditor, the judge or the court may (sect. 67) order him his costs. Upon this point, see further Stokes v. Grissell, (14 C. B. 678), which lays down the principle, that notwithstanding the burthen of proof is by a statute cast on one party, yet if he by his affidavit make out a primâ facie case, and give such evidence as may reasonably be expected of him, this, if it be not satisfactorily answered by the other side, will be sufficient. The debts which may be attached and made available to satisfy the judgment debt under this act must be liquidated and ascertained demands. The act does not extend to any claims which are unliquidated or unascertained at the time of the application for the order to attach them. Thus in Johnson v. Diamond (1 Jur., N. S., part 1, p. 938; 24 L. J., Ex., 217) the Court held that Johnson, the judgment creditor, could not attach the amount due to one Courtis, the judgment debtor, under a bond given to him by Diamond to secure the costs of an action in which Courtis had sued as nominal plaintiff, at the request and for the benefit of Diamond. Parke, B., said, the bond is conditioned for the payment of unliquidated damages, not for the payment of a debt to the obligee of the bond; but his Lordship agreed, that if an action had been brought on the bond, and the damages had been ascertained by a jury, that would give a fresh right to an ascertained sum, which might be attached. And all the Court seem to have been of opinion, that 'one fair mode of testing whether a claim by the judgment debtor could be attached would be, whether the claim constituted a debt within the meaning of the Statutes of Set-off. As to what constitutes a debt within the Statutes of Set-off, see Chitty on Contracts, pp. 739-745, 5th ed. And where, in a suit by a mortgagor against the mortgagee in possession for an account of all dealings and transactions between them, the Court of Chancery had ordered a sum of money to be paid by the mortgagee to the mortgagor, subject to an account to be taken before the Master, and before such account was taken a judgment creditor of the mortgagor procured judges' orders, under sect. 61, for the attachment of the amount, and the debt due to the mortgagor, it was held by Sir J. that the mortgagee should pay to the judgment creditor Stuart, V. C., that the amount which might be found due on taking the account was not a debt within the meaning of the act, because it was, at the time of the making of the orders for its attachment and payment to the judgment creditor, a mere equitable and unasenforced in a court of equity. (Clark v. Perry, 1 Jur., certained debt, only capable of being investigated and N. S., part 1, p. 992). And bearing in mind that the provisions of this act are in the nature of an execution against the debts due to the judgment debtor, and the means provided by sects. 63 and 64 for enforcing payment by the garnishee, it seems clear that mere equitable debts enforceable only in a court of equity are not within the meaning of the statute, and cannot be attached. See the observations of Sir J. Stuart, V. C., on this point in Clark v. Perry, (supra); and see also Carpenter v. Thornton, (3 B. & Al. 52), that actions at law will not lie to enforce a decree of a Court of equity table consideration only. If the debt due to the judgfor payment of a sum of money founded on an equiment debtor be an ascertained legal debt, it is not material that it could not have been recovered under the technical form of an action of debt. Thus, in the case of the acceptor of a bill, or the maker of a note, being sued by an indorsee thereof, there being no privity of contract between the parties, the action of debt would not have lain, but the plaintiff must have sued in assumpsit. (Bishop v. Young, 2 B. & P. 83; Cloves v. Williams, 3 Bing. N. C. 868). But though not recoverable in an action of debt, the claim the meaning of the Statutes of Set-off, and may be of the indorsee in such case constitutes a debt within attached under the provisions of the 17 & 18 Vict. c. 125. In the Statutes of Set-off the words used are, that "mutual debts" may be set off, the one against the other; but the word "debts" in these statutes has always been held to include claims in the nature of a debt where the amount is ascertained, or capable of being ascertained, without the assistance of a jury; (per Tindal, C. J., in Morley v. Inglis, 5 Scott, 331, 332); and although the claim of the judgment creditor must be for a liquidated and ascertained demand, yet it is not necessary that it should be actually due in order to entitle the judgment creditor to an order for its attachment. In Grant v. Hawding (4 T. R. 313, note) and Caila v. Elgood (2 D. & Ry. 193) it was held, that money due under an award founded upon a submission to arbitration, which has been made a rule of Court, could not be attached under the custom of foreign attachment in the city of London; and so in Coppell v. Smith, (4 T. R. 312), with respect to money directed to be paid for costs by the Master's allocatur. But the principle upon which the Courts decided those cases, viz. that they will not allow their judgments or proceedings to be interfered with by process from a foreign and inferior jurisdiction, is scarcely applicable to prevent the attachment of a sum of money payable under a rule of Court, where the order for the attachment is made by a judge of the superior courts, and under the authority of an act of Parliament. Another objection may, however, be taken where the order or rule is a mere interlocutory order or rule for the payment of costs, which are not costs given by the Statute 12 of Gloucester; for it has been held that in such case the c. 125, s. 46). It will be seen that this order for the rule or order does not create any debt or duty upon garnishee to shew cause why he should not pay &c. which an action can be maintained. (Emerson v. Lash- can only be made when the debt is actually due; ley, 2 H. Bl. 252, 254, cited and recognised by the Court and therefore, where the debt attached is only a debt in Carpenter v. Thornton, 3 B. & Al. 56). By the ex- accruing from the garnishee, the order for him to press words of sect. 61, the debt to be attached must be shew cause why he should not pay must be a sedue from some third person; and therefore the judg-parate order. Although in Clark v. Perry it apment creditor cannot attach a debt due from himself pears that an order was made by a judge that the alone, or from himself and his partner, to the judgment garnishee should pay to the judgment creditor the debtor. (See Howell v. Hullett, 4 B. & Al. 646). amount of the debt due from him to the judgment debtor, there does not appear to be any authority given, either by the 61st or the 63rd section, to make such an order. The wording of sect. 63 is extremely loose; but the effect of it seems to be, that if the garnishee, upon service of the order to shew cause made under sect. 61, does not pay into court forthwith the amount of the debt due from him to the judgment debtor, or an amount equal to the judgment debt, and does not appear upon summons, (i. e. the order to shew cause), or if upon appearing thereto he does not dispute the debt due, or claimed to be due, from him to the judgment debtor, then the judge may order execution to issue, without any previous writ or process to levy the amount due from the garnishee. If the garnishee upon appearing disputes his liability, the judge, instead of ordering execution to issue, may order that the judgment creditor may proceed against the garnishee by writ, calling upon him to shew cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor, if less than the judgment debt, and for costs of suit; and the proceeding shall be, as nearly as may be, as upon a writ of revivor under the 15 & 16 Vict. c. 76, s. 131. The 65th section enacts, that payment by, or execution levied upon, the garnishee under any proceedings under the act shall be a discharge to him, as against the judgment debtor, to the amount paid or levied, although such proceedings may be set aside or the judgment reversed. The costs of any applica tion for an attachment of debt under the act, and of any proceedings arising from or incidental to such application, are in the discretion of the court or a judge. (Sect. 67). But where the garnishee disputes his liability, and the judge orders that the judgment creditor shall be at liberty to proceed against the garnishee by writ, and makes no mention of the costs, the successful party in the proceedings upon the writ is entitled to his costs, in the same way as in an ordinary action, without any order under sect. 67. (Johnson v. Diamond, 1 Jur., N.S., part 1, p. 1093). In each of the superior courts a book is kept in the Master's office, in which must be entered the attachment and proceedings thereon, with names, dates, and statements of the amounts recovered &c.; and copies of these entries may be obtained by any person upon application to the Master. (Sect. 66). For the forms of the several writs, and the pleadings, &c. under the garnishee clauses, see the New Rules, Michaelmas Vacation, 1854, and the forms thereunder, Nos. 22 to 31 inclusive. The case of Holmes v. Tutton (1 Jur., N. S., part 1, p. 975; 24 L. J., Q. B., 346, S. C.) is an important decision as to the effect of the order for attachment in binding the debts in the hands of the garnishee. The Court there said, that looking upon the remedy as an extension of that given by the 1 & 2 Vict. c. 110, s. 12, and as being in the nature of an execution, they ought to give the same construction to the word "bind," in sect. 63, as it had in the provision in the Statute of Frauds, whereby the goods of the debtor are bound from the time of the delivery of the writ to the sheriff to be executed; and that as in the one case the goods are bound, so that the debtor cannot afterwards dispose of them, so in the other the debt is bound in the hands of the garnishee, so that he cannot, after service or notice of the order for attachment, safely pay his original creditor, so as to discharge himself against the party attaching the debt. The Court, however, held that until actual payment, or something done to realise the debt equivalent to a sale under an execution, the debt still remained subject to the provisions in the Bankrupt Act, 12 & 13 Vict. c. 106, s. 184. And that as in the case of the seizure of a tangible security by the sheriff, under the 1 & 2 Vict. c. 110, s. 12, the judgment creditor would be a creditor having security for his debt within the first part of the 184th section-though it could not be successfully contended that he had a lien within the meaning of the proviso to that section, inasmuch as the lien there referred to clearly does not include things seized under an execution-so, in the case of a debt attached under the 17 & 18 Vict. c. 125, the judgment creditor is a creditor having security for his debt within the 184th section; yet, inasmuch as the attachment did not, in the opinion of the Court, change the property, or give even an equitable mortgage upon the debt, but simply put the debt in the same situation as the debtor's goods after the delivery of the writ to the sheriff, and gave the judgment creditor a right to have his security enforced, he had no lien within the proviso in the 184th section; and that therefore, if, before payment of the debt attached, or something equivalent to a sale under an execution, the judgment creditor have notice of an act of bankruptcy committed by the judgment debtor, the debt passes to the assignees of the bankrupt. It should be borne in mind that there is no provision in the Insolvent Acts similar to those in the 184th section of the Bankruptcy Consolidation Act, overriding the right of an execution creditor, who has bound the goods by the delivery of the writ to the sheriff, but not sold them; and therefore, when the judgment creditor has bound the debt in the hands of the garnishee by the service of the order for its attachment, the subsequent insolvency of the judgment debtor will not defeat his right. (Woodland v. Fuller, 11 Ad. & El. 859, 866). MR. BARON BRAMWELL. THE following just remarks upon the promotion of Mr. Bramwell to the Bench are extracted from the Times of the 7th instant. The writer has forgotten to mention the valuable services rendered to law reform by Mr. Bramwell, who has been a very useful member of most of the commissions issued for that purpose during the last few eventful years : But to return to the provisions of the act. The 61st section further enacts, that by the order for the attachment of the debts owing or accruing, or by any subsequent order, it may be ordered that the garnishee shall appear to shew cause why he should not pay the judgment creditor the debt due from him to the judg- "The elevation of Mr. Bramwell to the Bench will ment debtor, or so much thereof as will satisfy the be received with general satisfaction by the Bar. As a judgment debt; and upon the hearing of the summons sound lawyer, as an acute pleader, as a man of clear to shew cause, the judge may order the oral examina- head and great learning, he has long been known to tion of witnesses, if he think fit. (See 17 & 18 Vict. I the Profession. His reputation, indeed, in Westmin Court Papers. 12 EQUITY SITTINGS, HILARY TERM, 1856. Before the LORD CHANCELLOR, at Westminster. ....... Saturday .... 14 ..... ..... At Lincoln's Inn. 12 Petitions and Appeals. 15 Appeals. 16 17 18 19 Appeal Motions and Appeals. ....... 28 Appeals. 29 ..... ...... 30 Petitions and Appeals. 31 Appeal Motions and Appeals. ster Hall is far beyond that which he has ever achieved upon Saturday Jan. 12, 1856. At Lincoln's Inn. Short Causes and Claims, and General Paper. Pleas, Demurrers, Exceptions, Causes, Claims, and Further Directions. Motions. Petitions. Short Causes and Claims, and General 19Paper. ....... 21 Saturday Monday... Tuesday.. Wednesday Thursday Friday ..... Saturday ... Pleas, Demurrers, Exceptions, Causes, Claims, and Further Directions. 24 Motions. Petitions. Short Causes and Claims, and General Paper. Pleas, Demurrers, Exceptions, Causes, Claims, and Further Directions. Wednesday 30 Thursday 31 Motions. Before Vice-Chancellor Sir W. P. WOOD, at Westminster. Friday...... Jan. 11 Motions. 15 Payne v. Little (Cause, part heard) Fenwick v. Kirkpatrick (M for decree) Tanner v. Heard (M for dec.) Brown v. Blenkinsop (Cause, Ptn) Bond v. Bourdillon (M for decree, Ptn) Seaman v. Woods (M for dec.) Hughes v. Naylor (Cause) Westcar v. Westcar (M for decree) Smith v. Caulfield (M for dec.) Earl of Craven v. Ure (M for decree) Marryat v. Marryat (M for decree) Marryat v. Marryat (Cause) Petitions, Short Causes and Claims, Wilson v. Emmet (Cause) Pleas, Demurrers, Exceptions, Causes, At Lincoln's Inn. Tuesday.. Wednesday Nanney v. Williams (M for decree) Danby v. Hotham (Cause) Musgrove v. Smith (2) (Cause) Banks v. Rooksby (M for dec.) Stevenson v. Long (M for dec.) Fryer v. Fryer (2) (M for dec.) Harrison v. Tennant (M for decree) Hill v. Merrett (M for decree) Marlow v. Warwick (2) (Cau.) Preston v. Webb (M for dec.) Harford v. Criddle (Further consideration) King v. Vials (F D, C) Official Managers of the Newcastle, &c. Banking Co. v. Gibbon (Further considera.) In re Mary Gambrill, de-" ceased Goldfinch v. Bartlett (Fur ther consideration, Ptn) Greaves v. Neilson (Cause) Winniett v. Chard (F D, C) Read v. Gooding (Special case) Falkner v. Jeffery (M for dec.) Wrigley v. Sykes (Cause) In re Stanhope Gardner v. Eyton (F D, C) Heath v. Lewis (2) (Further consideration) Ellis v. Clough (Cause) Curlewis v. Earl of Morning- Attorney-Gen. v. Mason (Further consideration) Smith v. Smith (2) (Cause) Gale v. Gale (M for decree) Moore v. Smith (M for dec.) Davies v. Atherton (Cause) Attorney-Gen. v. Earl Craven (M for decree) Durant v. Jewell (Further consideration) Worthington v. Cann (Cause) Fowler v. Fosbery (M for dec.) (Further In re Adland cons. from Briggs v. Wilson chambers, Ptn) Bott v. Smith (M for decree) Earl of Jersey v. Tennant (Cause) |