Cox and Others v The Lord Mayor, Alderman, and Common Councillors of the City of London
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1862 |
| Date | 10 June 1862 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 916
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 8 Jur. (N. S.) 542; 10 W. R. 694; 6 L. T. 498 affirmed 1863, 2 H & C 401, 1867, L. R. 2 H L. 239.
[338] Cox and others v the lord mayor, aldermen, and common councillors of the city of london June 10, 1863 -A custom of the city of London, on a plaint being entered in the Lord Mayor's Court, to attach a debt due to the defendant from a third person, upon his being found within the jurisdiction, though none of the patties are citizens or resident in the city, and neither the original debt nor that due from the gaiuishee accrued within the city, is void in law. [S. C. 8 Jar. (N. S.) 542; 10 W. R. 694; 6 L. T. 498 affirmed 18G3, '1 H & C 401 , 1867, L. R. 2 H L. 239.] Prohibition. The declaration stated, that the city of London is, and immemonally kas been, an ancient city; and there is, and immemoi Lilly has been, a certain court of her present Majesty, or her Majesty's predecessors, kings or queens in England, holden or to be holden for the said city of London, before the mayor and aldeimen of the said city for the time being, in the chamber of the Guildhall of and in the said city. And heretofore, to wit, on the 17th September, 1860, Sarah Buckmaster and Robert Addams, trading as W Buckmaster and Co , went into the said court holden for the said city, before the mayor and aldeimen, in the said chambei of the Guildhall of and in the said city, and affirmed a plaint against Richard Farquharson, &c , in a plea of debt on demand foi, to wit, 861. 3s ; and it was returned and certified to the same court that the said R. Farquharson had nothing within the said city, or the liberties thereof, whereby he could be summoned, nor was he to be found within the said city and liberties, and the said plaint was returned " nihil" , and thereupon, at the same court, then and there, before the said mayor and aldermen, the said S Buck-master, and R. Addams surmised and alleged that Richard Cox, C. Hammersley, &c (aaming all the plaintiffs) were debtors to the said R Farquharson in a certain sum, to wit, the sum of 861 3s , and had garnishment against the said R. Cox, C. Hammersley, &c., to warn them to come in and answer whether they were indebted in the manner alleged by the said 8 Buckmaster and R. Addams; and the said R Cox, C Hammersley, &c, were thereupon warned to come [339] in, at the said court holden for the said city, before the mayor and aldermen of the said city, at the said Guildhall of and in the said city, on the 12th October, 1860, and to answer whether they were indebted in the manner alleged as aforesaid , and the said R. Cox, &c , did, at the said last mentioned court, by their attorney, come in and appear to the said warning, and the said R. Farquharson has not appeared to the said plaint. And the^said R Cox, C. Hammersley, &c., aver that they, and the said S. Buckmaster and R. Acldams, and the said R. Farquharson, did not, nor did any or either of them, at the time when the said S. Buckmaster and R Addams so went into court and affirmed the said plaint as aforesaid, reside, dwell, or carry on business, nor have they, or any or either of them, at any time since resided, dwelt, or carried on business, within the said city of London, or the liberties thereof, or within the jurisdiction of the said court, and that the alleged debt in the said plea in the said plaint so affirmed as aforesaid mentioned, or the said debt alleged to be due from the said R Cox, C. Hammersley, &c., to the said R. Farquharson in the said garnishment mentioned as aforesaid, did not, nor did either of them, arise or accrue within the said city of London, or the liberties thereof, or within the jurisdiction of the said court before the said mayor and aldermen of the said city, by means whereof the said court before the mayor and aldermen aforesaid had not jurisdiction over the said plaint, or the said proceedings thereunder, or over the said garnishment, or over the said R. Cox, C Hammersley &c , as gaimshees, or over the said alleged debts in the said plaint mentioned, or over the said R. Farquharson, at any time tluung the said alleged pioceeduigs ufoiesaid Neverthe- IH. *C'S40 COX V. TBE MA.YOR, ETC., OF LONDON 917 less the said court before the said mayor and aldermen, and the said mayor and aldermen, did assume to have, and did take upon themselves, jurisdiction in the premises, and did proceed with the said garnishment again&t [340] the said R. Cox, C. Hammersley, &c , and the said plaint and garnishment are now pending and being proceeded with in the said court, whereby the said R Cox, C Hammersley, &c., are prejudiced, and have sustained damage to the value of 10001., wherefore the said R. Cox, C. Hammersley, &c., the aid of the Court of the said lady the Queen, before the Barons of her Exchequer, now here, most humbly imploring, pray remedy by the writ of the said lady the Queen, of prohibition to the said muyoi and aldermen, in form of law, to be directed to prohibit them from holding and proceeding with the plaint and plea and garnishment afoiesaid, the premises aforesaid anywise concerning, further before them. Plea (inter alia). That the city of London now is, and immemoiially has been, an ancient city, and that there is, and immemorially has been, a custom therein that if auy plaint of debt shall be levied or athrmed by any person in the court of the lord the King, before the mayor and aldermen for the time being, in the chamber of the Guildhall of the same city, so that by virtue of such plaint the same court shall command any serjeant at-maee of the same mayor within the same city, and the minister of such court, to summon the party defendant in the same plaint specified to appear at the court of the lotd the King, in the chamber of the Guildhall of the same city holden before the mayor and aldermen of such city, to answer the plaintiff in the sd,me plaint named in the plea in such plaint specified, and such serjeant-at-mace and minister at such court whereat such pLunt shall be levied 01 affirmed shall, by virtue of such precept, testify by woid of mouth, to the same mayor and aldermen, that the defendant in the same plaint named had nothing within the liberty of the city aforesaid whereby he might be summoned, and then the same defendant at the same court shall make default; and thereupon in such court the plaintiff named in [341] such plaint shall testify and allege by word of mouth, to the same mayor and alder-men, that some other person, for any cause whatsoever1, is indebted to such defendant in any sum of money amounting to the debt in the plaint aforesaid specified, or part thereof, then, on the petition of the pLtintitf in the same plaint named, the same eourt shall command such serjeant-at-mace and minister that the same serjeaut shall attach the defendant m such plaint named by such sum being in the hands or custody of such other person found within the jurisdiction of the said court; and then, if such serjeant-at-mace and minister of the court return and certify to such court such defendant to be attached according to the said custom by such sum of money so being in the hands or custody of such other person to be defended and kept, so that such defendant in such plaint named may or might appear at the same or the then next court holden or to be holden, to answer such plaintitt in the plea in such plaint specified,, and if the defendant at that and three other courts then next severally holden or to be holden before the mayor and aldermen of the said city, in the chamber of the Guildhall of the said city, bemg solemnly called, does not appear, but makes default, and such four defaults, according to the custom of the said city, are recorded against such defendant at such four courts after such attachment made, if such plaintiff in such plaint named at every of such four courts in his own person or by his attorney appeared, according to the custom of the said city, then, and at the last of the said four courts, or at any court holden or to be holden after such four defaults recorded, at the petition of such plaintiff in such plaint named made to the court, it is and has been used for the couit to command such or any other serjeant-at-mace and minister of the court to warn...
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