Turbill's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 76
COURT OF KING'S BENCH
See Mayor of London v. Cox, 1867, L. R. 2 H. L. 266; In re Wilkins, 1873, L. R. 8 Q. B. 111.
[67] 11. turbill's case. Easter, 19 Car. II. [Sea Mayor of London v. Cox, 1867, L. R. 2 H. L. 266; In re Wilkins, 1873, L. E. 8 Q. B. 111.] S. C. 1 Sid. 362. 2 Keb. 346. An attorney or other officer of K. B. shall not have hia privilege against foreign attachments in London. Cont. 2 Leon. 156, Lodge's case. Dy. 287 a. in martj. Whipp and Sallew's case, 1 Leon. 189. Edward's and Tedbury's case, 1 Show. 11.(a) Turbill, an attorney of the King's Bench, contracted with one Nevinson, for the purchase of certain lands ; and, by articles of agreement, covenanted with Nevinson to pay him 2001., when Nevinson should make a good conveyance to Turbill of the lands, discharged from all incumbrances : Nevinson afterwards made a conveyance to Turbill, but there were incumbrances upon the estate which were not discharged. But one Norton a scrivener, and other creditors of Nevinson, hearing of this covenant of Turbill, levied several plaints in the Court of one of the sheriffs of London, in the counter, against Nevinson for their several debts ; and upon nihil returned against him, according to the custom there of foreign attachment, the monies, which Turbill had so covenanted to pay, were attached in his hands, as a debt owing by him to the said (a) [S. P. decided on the authority of this case, 8 T. R. 417, Ridge v. Hardcastle.] I WMB. BAUND. 67. PASCH^E, 19 CAR. II. REGIS 77 Nevinson(l); upon which Turbill sued out a writ of privilege, as a clerk of the Court of King's Bench, directed to the Mayor, Aldermen, and Sheriffs of London, reciting that the chief clerks of the Court, and their clerks, from time whereof, &c. (1) Thia custom was certified by Starkey, Recorder of London, to be, "that if a plaint be affirmed in London before, &c. against any person, and it be returned nihil, if the plaintiff will surmise that another person within the city is a debtor to the defendant in any sum, he shall have garnishment against him to warn him to come in and answer whether he be indebted in the manner alleged by the other; and if he comes and does not deny the debt, it shall be attached in his hands, and after four defaults recorded on the part of the defendant, such person shall find new surety to the plaintiff for the said debt; and judgment shall be, that the plaintiff shall have judgment against him, and that he shall be quit against the other, after execution sued mit by the plaintiff." 22 Edw. 4, 30 b. 1 Rol. Abr. 554, pi. 4. Godb. 400, 401, pi. 483, Hern v. Stubbs. But if no execution be sued out, the plaintiff may go on with the suit below, and the defendant may sue his debtor, notwithstanding the judgment; Dyer 83 a; so certified by Brook Recorder, 7 Edw. 6.(6) The plaint may be exhibited in the Mayor's or Sheriff's Court; but it is said that the proceeding in the Mayor's Court is more expeditious and less expensive.(e) The plaintiff finds common pledges to prosecute his plaint, and thereupon process issues by a summons directed to the Serjeant at mace to summon the defendant, who makes return that the defendant has nothing whereby he can be summoned. A custom has been said to prevail, not to summon the defendant or give him any notice of the plaint, so that the attachment issued without his privity or knowledge. This custom, however, has been justly exploded, as being contrary to the first principles of justice : and a judgment of foreign attachment, which appeared to have been given without a summons ami nihil returned, was adjudged to be erroneous and void. For inasmuch as the attachment is founded upon the default of the defendant's appearance to the plaint, how can he be said to have been guilty of a default of appearance if he has never been summoned to appear1? 3 Wifa. 297, -fisher v. Lane. S. C. 2 Black. Eep. 834. But it was observed by Lord Ellenborough in M'Daniel v. Hughes, 3 East, 372, "that in the report of this case by Mr. Justice Blackstone, De Grey C.J. assigns as a reason for the decision, that the judgment in the Mayor's Court did not appear to be such as fell within the custom; there being no summons of the defendant Fisher, nor any return of nihil."(d) But (b) 1 B. & B. 491, Wetter v. Sucker, S. P.; where the Court held, that the custom that execution must be sued out should be strictly pursued, and that no voluntary payment by the garnishee to the plaintiff will protect the garnishee from his liability to the defendant. [See also 4 Bing. N. C. 782, Mat/rath v. Hard//, S. P. 6 Scott, 627, S. C.] To give the Lord Mayor's Court jurisdiction, it is not sufficient that the garnishee reside within the city; the debt due from the defendant to the plaintiff must also have accrued there. Traub and...
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