Johnson v Diamond
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1855 |
| Date | 24 November 1855 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 750
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 24 L. J. Ex. 217; 1 Jur. (N. S) 938; 3 W. R. 407. Referred to, O'Driscoll v. Manchester Insurance Committee, [1915] 3 K. B. 507. See p 431, post
johnson v. diamond. May 2, 1855 -C., at the request of D., commenced an action (in which C. had no interest) against I., upon D giving C. a bond, wheieby D. bound himself to C., in the penal sum of 2001, subject to the condition that, if D. should pay to I., the defendant in the action, such costs as C., the plaintiff in the action, should in due course of law be liable to pay in case he should discontinue, become nonsuit, or a verdict should pass against him, such costs to be first taxed, or in case of a judgment obtained by the defendant for his costs of defence; and also should peimit C , during the pendency of the action, or of any liability to him arising therefrom, to retain and apply any of D.'s monies that might come into C.'s hands towards the discharge of any costs or liabilities which C. might be put to or incur by reason of his permitting the action to be earned on in his name, or from any injury to him thereby from the default or omission of D. to pay the same, the bond should be void, &c. C was nonsuited in the action, and I., had judgment to recover his costs :-Held, that D/s liability under the bond to pay such costs did not constitute a " debt" within the garmshee clauses of the Common Law Procedure Act, 1854, and could not be attached as such by the judgment creditor. [S. C. 24 L. J. Ex. 217; 1 Jur. (N. S ) 938 ; 3 W. E. 407. Eeferred to, ffDnicotl v. Manchester Insurance Committee, [1915] 3 K. B. 507. See p 431, post ] This was a proceeding under the 64th section of the Common Law Procedure Act, 1854. The declaration was as follows (a)-P. N. Johnson, by J. E F. his attorney, sues J. W. Diamond by a writ issued forth of this Court in these words.-Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to J. W. Diamond, of Hewton Beerferns, in the county of Devon We command you, that, within eight days after the sei vice of this writ upon you, inclusive (a) As the case is one of novelty, it has been thought expedient to set out the declaration in full. II EX.74. JOHNSON V. DIAMOND 751 of the day of such service, you appear in our Court of Exchequer of Pleas, to shew cause why P. X. Johnson should not have execution against you for [74] 1991 Is. lOd , being part of the amount of a debt due from you to T. Courtis, to satisfy 1991. Is 10d., which, on the 16th of June, 1854, the said P. N. Johnson, by a judgment of oui Court of Exchequer of Pleas, recovered against the said T. Courtis, and for costs of suit in this behalf; and take notice, that, in default of your so doing, the said P. N. Johnson may proceed to execution. Witness, Sir Frederick Pollock, Knight, at Westminster, the 3rd day of February, A.D. 1S55. And the said J W. Diamond has appeared to the said writ, and the said P. N. Johnson, by his attorney, afterwards says, that the said debt, due from the said J. W. Diamond to the said T. Courtis, accrued to him the said T. Courtis upon and by virtue of a certain bond, bearing date the 4th day of March, A.D. Ib54, whereby the said J. W. Diamond became bound anto the said T. Courtis in the penal sum of 2001., to be paid to the said Thomas Courtis, which said bond was and is subject to a certain condition thereunder written, whereby, after reciting that an action had been commenced and was then depending hi her Majesty's Court of Exchequer of Pleas, wherein the said T. Courtis was pLuntitf, and P. N. Johnson (the now plaintiff) was defendant; and further reciting, that the said T. Courtis was only the nominal plaintiff in the said action, the same having been brought at the request of the said J. W Diamond; and that, in consideration of the said T. Courtis having allowed the said action to be brought in his name, and of his having agreed that the same should be continued until judgment was obtained therein, the said J. W. Diamond had agreed to indemnify the said T. Courtis m manner thereinafter mentioned, the condition of the said bond was declared to be, that, if the said J. W. Diamond should pay or cause to be paid unto the defendant in the said action (meaning the now plaintiti) such costs as the said T. Courtis, as plaintiff in the said action, should in due course of law be liable to pay in case he should discontinue, become nonsuit, or a verdict [75] should pass against him in the said action (such costs to be first taxed by one of the Masteis in the usual niannei), or in case of u judgment obtained by the said defendant in the said action for his costs of defence ; and also should permit the said T. Courtis, during the pendency of the said action, or of any liability to him arising therefrom, to retain, and apply any monies of the said J. W. Diamond that might be then or at any time thereafter in the hands of the said T. Courtis,, for or towards the discharge of any costs or liabilities which the said T. Courtis might be put to or incur by leason of his permitting the said action to be brought and carried on in his name, or from any injury to him thereby from the default or omission of the said J. W. Diamond to pay the same, then the said bond should be void, otherwise should be and remain in full force and virtue : And the said P N. Johnson says, that, after the making of the said bond, such proceedings were duly had in the said action in the said condition mentioned, wherein the said T Couitis was plaintiff, and the now plaintiff was defendant, that afterwards, to wit, on the 16th of June, 1854, it was considered and adjudged by the said Court that the said T. Courtis (the plaintiff in the said action) should take nothing by his said writ, and that the defendant (the now plaintiff) should go thereof without day, &c ; and it v\as then further considered arid...
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