Magrath v Hardy
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1838 |
| Date | 13 June 1838 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 990
IN THE COURT OF COMMON PLEAS
S. C. 6 Scott, l627; 1 Arn. 352; 6 D. P. C. 749 7 L. J. C. P. 299; 2 Jur 594. Adopted, Richter v. Laxton, 1878, 48 L. Q. B. 185; London Corporation v. London Joint Stock Bank, 1881, 6 App. Cas. 401.
magrath v. hardy. June 13, 1838. [S. C. 6 Scott, 627; 1 Arn. 352; 6 D. P. C. 749; 7 L. J. C. P. 299; 2 Jur. 594. Adopted, Bichter v. Laxton, 1878, 48 L. J. Q. B. 185; London Corporation v. London Joint Stock Bank, 1881, 6 App. Cas. 401.] To an action for money had and received Defendant pleaded a recovery by foreign attachment at the suit of a creditor of Plaintiff's, and that the creditor had execution of the sum recovered according to the custom of London: Plaintiff replied that no execution was executed; on which Defendant joined issue:-Held, that without execution executed, he was not discharged from his debt to Plaintiff; and that, having joined issue on the fact of the execution, the jury were not estopped, by a record of satisfaction in the foreign attachment, from finding according to the fact: that the attorney of Defendant, the garnishee in the foreign attachment, was not incompetent to prove the custom in such attachment: and that it is no answer to a plea of recovery under foreign attachment that Plaintiff has had no notice of the proceedings. This was an action for money had and received to the Plaintiffs use, to which the Defendant pleaded, fourthly, a recovery against him of the debt sued for, by foreign attachment in the Mayor's Court in London, in which attachment one Tyrie was the Plaintiff, the present Plaintiff was the Defendant, and the present Defendant was the garnishee. The plea set out with particularity the custom of London with respect to foreign attachment, of which the part which was material to the present purpose was, that the custom was alleged to be that, after pledges found by the Plaintiff in foreign attachment and execution had and executed of the monies in the hands of the garnishee, the garnishee was discharged against the Defendant of the sum so attached and had in execution. The plea then stated the confirmation of the custom by act of parliament, and set out the proceedings in the usual form, and the judgment that Tyrie should 4 BING. (N. C.) 783. MAGRATH V. HARDY 991 have execution of 4101., parcel of the sum attached, by [783] pledges to restore the same if Magrath should appear within a year and a day and disprove the debt. The plea then stated the issuing of a precept to the serjeant-at-mace for levying the amount, and the delivery thereof to him to be executed; that thereupon the serjeant-at-mace did take and receive from the now Defendant the said sum of 4101. so attached as aforesaid, and without delay had the same in court to satisfy Tyrie; and that he paid and delivered the same to Tyrie. The plea then averred that Tyrie thereby had execution of the said sum, and then and there acknowledged himself satisfied, as by the record more fully appeared. To that plea the now Plaintiff replied that he never had notice of the proceedings in the fourth plea mentioned; that Tyrie had not execution executed of the said sums according to the custom of the city; that the monies of the now Plaintiff in the hands of the now Defendant were never had in execution, as by the fourth plea might be supposed; that no execution founded upon the said supposed judgment in the said fourth plea mentioned, was ever executed; that the now Defendant paid the said sum of 4101, if ever it was paid, without compulsion and by connivance and collusion with the said Tyrie; and this, the Plaintiff prayed might be inquired of by the country. The Defendant thereupon joined issue. At the trial after Michaelmas term, 1836, a verdict was found for the Plaintiff, with 10001. damages, subject to the opinion of the Court upon the following case :- The Plaintiff was a merchant, who carried on his business and resided at Jacmel, St. Domingo, from 1824 to 1834 inclusive, and returned to England in the latter year. The Defendant was also a merchant in London. In the year 1827, the Plaintiff, upon his own account, [784] remitted to the Defendant a bill of exchange for 791. 17s. 4d., and also consigned a cargo of coffee for sale to the Defendant. This action was brought to recover the-sum of 5851. 13s. 7d., being the proceeds of the bill of exchange and the coffee, and interest thereon, up to the 31st of December 1835. It appeared, by a correspondence between the Plaintiff and Defendant, that, in June 1827, the Plaintiff, being uncertain whether or not Tyrie, his usual agent, was in London, consigned to the Defendant 180 bags of coffee, with directions to hold the proceeds to the Plaintiff's order; also a bill of exchange for 791. 17s. 4d., which the Defendant was also to hold to the Plaintiff's order. In October 1827, the Defendant apprised the Plaintiff that the coffee had been sold, and the proceeds paid to Tyrie; but with the understanding that the Defendant was to account to the Plaintiff for the amount if he did not confirm the act, or if he drew on the Defendant in the mean time. In January 1828, the Plaintiff wrote to say he should dispose of these funds, either by drawing on the Defendant, or requesting the proceeds to be paid to the Plaintiff's order. In April 1828, the Defendant wrote (in answer to a letter of the Plaintiff's of February 1828, containing a duplicate of the letter of January) that, subsequently to the Defendant's letter of October 1827, Tyrie had lodged an attachment on the amount in the Defendant's hands, but that it had not been followed by any ulterior proceedings. In June 1828, the Plaintiff wrote to the Defendant that he should look to him for the proceeds of the coffee, in virtue of his letter of October 1827. The Plaintiff afterwards drew a bill on the Defendant, dated Jacmel, 30th of April 1830, for 4121. Os. 10d., [785] payable at three days' sight to Messrs. Oldroyd, Magrath, and Ward, who presented it for acceptance to the Defendant on the 23d of June following, when the Defendant declined to accept it. The present action was commenced in January 1836. On the 31st of January 1828, an action was commenced by John Garnett Tyrie, the son in law of the Defendant, against the Plaintiff, in the .Mayor's Court of London, founded upon an affidavit of debt for the sum of 5001. and upwards; proceedings by foreign attachment were adopted against the present Defendant as garnishee, and such cause proceeded to judgment in manner hereinafter stated; but no writs or precepts of execution were issued or executed in that cause...
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