Westoby against Day
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1853 |
| Date | 13 June 1853 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 895
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 22 L. J. Q. B. 418; 18 Jur. 10; 1 W. R. 431. Distinguished, Matthey v. Wiseman, 1865, 18 C. B. N. S. 678. Adopted, Mayor of London v. Cox, 1867, L. R. 2 H. L. 269; Cooke v. Gill, 1873, L. R. 8 C. P. 113. Referred to, London Joint Stock Bank v. Mayor of London, 1875-81, 1 C. P. D. 15; 5 C. P. D. 494; 6 App. Cas. 393. Adopted, In re Smith, 1888, 20 Q. B. D. 329.
[605] westoby against day. Monday, June 13th, 1853. In an action of debt by W. against D,, D. pleaded that the debt had been attached in the hands of D. as garnishee in a plaint of debt in the court of the Mayor and aldermen of the city of London by C. against W. Replication : that the alleged debt sued for in the Mayor's court did not arise or accrue within the jurisdiction of that court, nor had that court had at any time jurisdiction thereof.-Held, on demurrer, a bad replication.-The custom of foreign attachment in the said court does not apply to debts, the beneficial interest of which is vested in a person other than the defendant sued in such court, whereof the garniahee has notice ; and such debts are Mot attachable under the custom.-So certified by that court through the Recorder, and held a good custom by this Court upon demurrer. [S. C. 22 L. J. Q. B. 418; 18 Jur. 10; 1 W. R. 431. Distinguished, Maithey \, Wiseman, 1865, 18 C. B. N. S. 678. Adopted, Mayor of London v. Cox, 1867, L. R. 2 H. L. 269; CooJce v. Gill, 1873, L. R. 8 C. P. 113. Referred to, London Joint Stock Bank v. Mayor of London, 1875-81, 1 C. P. D. 15 ; 5 C. P. D. 494 ; 6 App. Gas. 393. Adopted, In re Smith, 1888, 20 Q. B. D. 329.] Declaration for money due from defendant to plaintiff on a writing obligatory, dated 6th May 1852, by which defendant acknowledged himself to be bound to plaintiff in 16001., conditioned for repayment by defendant to plaintiff, with interest, of 8001. lent by defendant to plaintiff, and payable by instalments ; that is to say, 2001. and 481. for interest, on 1st January 1853 (the rest by three other instalments, at days named). Breach : Non payment of the 2481. on 1st January 1853, or since. Plea: That the City of London now is, and immemorially hath been, an ancient city : and that there is, and immemorially hath been, a custom therein &c. The plea then set out the custom of foreign attachment, substantially to the effect following. That, if any person affirms a plaint in debt in the court of Her Majesty holden before the Mayor and aldermen of the said city, in the chamber of the Guildhall, and, upon such plaint, it be commanded by the court to any Serjeant at mace &c., to summon such defendant to appear in the same court to answer the plaintiff; and if it is returned, by such serjeant, &c., that defendant has nothing within the city or liberties whereby ho can be summoned, nor is to be found within the city; and such defendant, at that court, being solemnly called, makes default; and in the same court it is alleged by plaintiff that any other person [606] owes, or has owed, to defendant any sum of money amounting to the debt in such plaint specified, or any part thereof : then, at the petition of such plaintiff for process according to the custom (that is to say; that such personv so owing or having owed such debt, whether the same be then payable or to, become payable at a day to come, being found within the jurisdiction of the 896 WESTOBY V. DAY 2 EL, & BL. 607. court, may be warned by the Serjeant, &c., not to part with such debt or sura of money without the license of the court, but the same in his hands and custody safely to keep, so that defendant may be attached thereby, that he may appear in court to answer plaintiff in the plea in such plaint specified), it ia commanded by the court to the Serjeant, &c., to attach such defendant, in such plaint, by such sum of money, so being in the hands &c., according to the said custom, so that such defendant may appear at the then next court to be holden before the said Mayor and aldermen, to answer the plaintiff; and then, if such serjeant, &c., return such defendant to be attached according to the said custom, by such sum to be defended and kept, so that such defendant may appear at the then next court to answer such plaintiff in the plea in such plaint specified, and if the defendant, at that and three other courts then next, severally holden before the Mayor and aldermen, being solemnly called, does not appear, but makes default; and such four defaults, according to the custom, are recorded against such defendant, at such four courts after such attachment made, and if such plaintiff, at every of such four courts, appear according to the custom : then, at the last of the said four courts, or at any court holden after such four defaults recorded, at the petition of plaintiff, it is used for the court to command [607] any serjeant at mace, &c., to warn such other person, so being found within the city, according to the custom, to appear at any court afterwards holden, to shew if anything he has to say for himself why such plaintiff ought not to have execution of such sum so attached ; and, if at such court such serjeant, &c., return such other person to be warned according to such custom to appear in the same court to shew such cause, and if such person, so warned, duly appear in the same court, and at the same court, or some other court, comes and says that, at the time of making such attachment or at any time since, he had not owed to or detained from, nor did he then owe to or detain from, the defendant named in such plaint the said money so alleged to be in the hands &c., and attached, or any part thereof, and if issue has been joined between the parties upon such plea, and the jurors, &c., say that, at the time of making such attachment, or at some time since the making of the same, and before the pleading of such plea, such other person had owed to and detained, and at the time of such plea owed to and detained, from the defendant the said sum of money so alleged to be in the hands &c., or some part thereof, and so attached &c., as the proper moneys of the defendant named in the plaint, then it is, and from time immemorial it has been, used and accustomed for such court to award such plaintiff to have execution of such sum of money as such other person has by such jurors been so found to have owed to and detained, and to owe to and detain from the defendant, by sufficient pledges to be found and given by such plaintiff, in such plaint named, in the same court, according to such custom, to restore to such defendant such last mentioned sum of money so attached if such [608] defendant, within a year and a day then next ensuing, come or has come into the court so holden, and disproves or avoids, or has disproved or avoided, such debt in such plaint mentioned, according to the custom ; and that, after such pledges found, and execution had of such sum as such other person has by such jurors been so found to owe &e., such other person is discharged against such defendant of the sum so attached and had in execution, and such defendant is discharged against the plaintiff of so much of his debt, in such plaint demanded, so long as such judgment and execution remain in force and effect: and, if such sum of money, so attached and defended and had in execution, amount not to the whole debt demanded by plaintiff against defendant, then plaintiff to have process against defendant for the residue. Averment: That F. W. Caldwell, H. C. Chilton and F. J. Fuller, before 1st January 1853, to wit 22d July 1852, came into court before the Mayor and aldermen, &c., according to such custom, and affirmed a plaint against the now plaintiff in a plea of debt. The plea then set out very fully the proceedings in the Mayor's court, &c., the order to summon plaintiff to appear, and the return that plaintjff had nothing within the city or the liberties whereby he could be summoned, nor was he to be found within the same; that plaintiff, solemnly called, made default; that it was alleged that Day, the now defendant, owed to the now plaintiff 2801. in moneys numbered, as the proper moneys of the now plaintiff, and then had and detained the same in his hands and custody. Averment: that the now defendant, at the time, was and was found within the city and the jurisdiction of the court. That the court commanded to attach the now plaintiff by the [609] said 2801., and keep &c.; that defendant, being found within the city and the jurisdiction, was duly warned, accord- 3 EL. & BL. . WESTOBY V. DAY 897 ing to the custom, not to part with the 2801. without the license of the court &c., so that the now plaintiff might be attached thereby that he might appear at the then next court, to answer &c.: that thereupon the serjeant attached the now plaintiff, by the said sum of 2801. That, afterwards, the serjeant returned that he had attached &c. the now plaintiff by the said sum of 2801. &c.; that the now plaintiff, being solemnly called, made...
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