James Hutchinson v Gillespie and Another
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1856 |
| Date | 07 February 1856 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 1055
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 25 L J Ex 103, 2 Jur (N S.) 403; 4 W R 302 Applied, Marbella Iron Ore Company v. Allen, 1878, 47 L J. C. P. 601, 38 L T 815, Barley v Barley, 1884, 13 Q B D. 860.
[798] james hutchinson v glllespee and another Feb 7, 1856.-Debt will lie on a final order of the Judicial Commitee of the Privy Council for payment of costs, notwithstanding the order is made in a proceeding collateral to the original suit, and that suit is still undetermined. [S. C. 25 L J. Ex 103, 2 Jur (N S.) 403; 4 W R 302 Applied, Maibella lion Ore Company v Allen, 1878, 47 L J. C. P. G01 , J.s L T 815, Bailey v Bailry, 1884, 13 q B I). SfiO] The declaration stated, that, on the 9th July, 1825, a writ, called a writ of attachment or saisie arret, was sued out of the Court of King's Bench at Montreal, in the province of Lower Canada, by the now defendants, the plaintiffs in the said Court of King's Bench, against one J Spiagg and W. Hutchinson, the defendants in the same Court; by which writ the sheriff of the district of Montreal, amongst other things, was commanded to attach and seize all such monies, credits, and effects that he might find in the hands, possession, or power of the several persons in that writ particularly named, and amongst others of J Lambe, 8. Spragg, and W. Spragg, belonging to or due to J. Spragg and W Hutchinson, or to erther of them, or so much thereof as might be sufficient to answer the demand of the now defendants, and the sheriff was thereby further commanded that he should summon J. Lambe, S Spragg, and W. Spragg, and the several other persons in the writ named, to appear before the justices of the said Court of King's Bench at the day and place therein mentioned, to declare upon oath what goods, credits, monies, or effects, they, or any or either of them, might have in their ot his hands, possession, custody, or power, of or belonging to the said J Spragg and W. Hutchinson, or what sum or sums of money they or either of them then owed, or thereafter should or might owe, in any manner whatsoever, to J Spragg and W. Hutchinson, or either of them, to abide the further order of the Court thereon; and the sheriff was further commanded to attach and seize all goods,, monies, credits, and effects in the hands of J Spragg and W. Hutchinson, or in the hands of either of them, and that the sheriff should summon them to appear to hear the attachments declared good and valid , that under the said writ [799] the sheriff caused to be attached and seized, amongst other things, rrt the hands, possession, or power of J. Lambe, S Spragg, and W. Spragg, and of J. Spragg and W. Hutchinson, divers goods, monies, credits, and effects, to very large amounts in 1056 HUTCHINSON V. GILLESPIE 11 EX 800 value: that J. Lambe, after the execution of the writ, made his declaration on oath according to the exigency thereof, and afterwards, namely, on the 17th February, 1826, made and filed his declaration on oath de riovo, and thereby deposed, amongst other things, that, on the 21st June, 1825, he received from J Spragg and W. Hutchinsan, as belonging to and to be sold for the account and risk of \V Hutchm-son and of the now plaintiff, diveis goods, waies, and merchandises, amounting to the net sum of 51821. 14s. lid . that from the time of the leceipt of the goods up to the 14th February, 1826, he, J. Lambe, made sales thereof, the net proceeds of which amounted, errors excepted, to the sum of 34501. 15s 3M., and that the invoice value of the remainder of the goods then in his possession amounted to 19171. l~)s Gd that S. Spragg and W. Spragg also filed their declaration on oath to the writ; and that both the declarations on oath of J Lambe, and in particular his declaration de iiovo, were contested by the now defendants in the said Couit of King's Bench at Montreal: that afterwards, on the 17th April, 1826, the now plaintiff filed in the said court his petition of intervention in the said cause, by which petition, aftei stilting, amongst other things, that, from the year 18L2 up to the 1st January, 1825, the now plaintiff and the said W. Hutchmson were copartners, and while they were such consigned to J. Spragg and W. Hutchmson diveis goods and merchandises to a large amount, to be sold by them on the account and for the profit of them, AV Hutchmson and the now plaintiff, and further stating that the paituerslnp ceased on the 1st of January, 1835 ; and that, certain differeuces having arisen between them, W. Hutchinson and the now plaintiff, all differences and disputes between them had [800] been referr ed to the award of certain arbitrators in the petition named, who by their award, dated the 30th of January, 1826, had awarded and adjudged, that, on the 1st of January, 1826, a balance of 18,8871. 16s lOd was due b}' the firm of AV and J Hutchmson, and by W. Hmtchinson, to the now plaintiff, and that the estate belonging to the copartnership, both real and immoveable, personal and rnoveable, goods, wares, merchandises, and effects in the possession of W. Hutchinson and J. Lambe, and debts due to the copartnership, were of the value of 20,1401. 6s 2d., and further stating, that, on the 30th January, 1826, by deed of assignment made by AV Hutchinson to the now plaintiff, AV Hutchinson did grant, assign and set over unto the now plamtrff, amongst other things, all his right, title, property, and interest whatsoever in all and singular the goods, wares, merchandises, and debts mentioned in the award, &c , by means whereof the now plaintiff was the true and sole proprietor of those goods, wares, and merchandises, and further stating, that the goods rn such petition particularly mentioned were part of the goods consigned by W. Hutchinson and the now plaintiff to J. Spragg and W. Hutchinson, and which remained unsold on the 1st of January, 1825, and were also part of the same goods as were mentioned in the award and also in the deed of assignment, and whereof the share and interest of W Hutchmson was assigned to the now plaintiff, which goods had been seized in the hands and possession of J. Lambe under and by vrrtue of the writ of attachment or saisie ai ret, &e , us belonging to J. Spragg and AV". Hutchinson , and further stating, that the goods therein next particularly stated were part of the goods consigned by VV. Hutchinson and the now plain tiff to J. Spiaggand W. Hutchinson, and remained unsold on the 1st January, 1825, and were also part of the goods mentioned in the award and deed of assignment, and whereof the share and interest of AV. Hutchinson was assigned to the now plaintiff, which last-[801]-mentioned goods had been seized in the hands and possession of J. Spragg and W. Hutchinson, by virtue of the wrrt of attachment, as belonging to J Spragg and AV Hutchinson; the now plaintiff, by his sard petrtion, prayed the said Court of King's Bench that he might be permitted to intervene in the said cause and become a party thereto , and that he might be declared the true and lawful owner and proprietor of tie goods, wares, and merchandises thereinbefore mentioned and described, and seized and attached, and that thereupon such seizure and attachment might be set aside and declared null and void and of no effect: that afterwards in the said Court of King's Bench, the now defendants filed their answer and plea to the petition of intervention, and such proceedings were thereupon had that it was considered and adjudged by the said court that the saisie arret or attachment should be and the same was thereby declared good and valid , and the court, considering that the goods, wares, merchandises, and effects attached and seized in the hands of the defendants in the said court and of J. Spragg, also the monies, goods, and effects attached and seized in the hands of J. Lambe, S. Spragg, and W Spragg, were at...
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