1838. MAGRATH v. HARDY. Action in the Ashley's evi dence. Practice of the and Ward, who presented it for acceptance to the defendant on the 23rd June following, when the defendant declined to accept it. The present action was commenced in January, 1836. On the 31st 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 500l. and upwards: proceedings by foreign attachment were adopted against the present defendant as garnishee, and such cause proceeded to judgment in the manner hereinafter stated; but no writs or precepts of execution were issued or executed in that cause or served upon the defendant in that cause, or the garnishee, the now defendant. At the trial of the present cause, Ashley, one of the attorneys of the Lord Mayor's Court was called by the present plaintiff. He was the partner of Windale, the attorney for Hardy, the garnishee in the Mayor's Court, during the proceedings in Tyrie v. Magrath: and the defendant's counsel objected to his disclosure of any facts connected with that cause. The evidence was received, subject to the opinion of this court as to its admissibility. He stated the practice of that court in proceedings by foreign attachment, during his experience of twenty-five years, to have been according to the course hereinafter set forth: A public book, called the Action Book, is kept in the Mayor's Court office, used by all the attornies. The first step with a view to obtain foreign attachment, is, that the plaintiff makes affidavit of debt, prepared by and sworn before the plaintiff's attorney in the cause; which affidavit afterwards remains in his possession. The plaintiff's attorney then makes an entry in the Action Book of the names of the parties, &c., thus: "In the Mayor's Court, London, 1828. January 21st, Henry Jason Magrath, defendant, at the suit of John Garnett Tyrie, plaintiff, in a plea of debt upon demand of "Attachment thereon made in the hands of John Hardy the same day, between two and three afternoon by C. Sewell." This book is kept in the Lord Mayor's Court, lying open in the office: but no one has the custody of it. A paper is next prepared by the plaintiff's attorney, directed to the garnishee, called an attachment paper. No precept or process is issued against the defendant, nor any actual default made, nor are there any returns of nihil or defaults or otherwise made to any process. The defendant is not actually called. The serjeant-at-mace serves the attachment on the garnishee; and then makes an entry in the Action Book that he has done so, and signs it. Upon the expiration of four clear days (neither of the days being a dies non) after service of the attachment, if no appearance is entered, a paper is prepared by the plaintiff's attorney, called a summons, directed to the garnishee. No entry is made of that summons, or of the service of it. The serjeant-at-mace delivers the original summons, but makes no entry of it, and communicates orally to the plaintiff's attorney the fact of service. When the garnishee appears, such appearance is made by his attorney marking in the Action Book that he appears for the garnishee, naming him: and these are the only entries in the book. A record is then made up by the plaintiff's attorney, stating the cause of action, that the plaintiff prayed process according to the custom &c., which was granted, that the serjeant-at-mace had summoned the defendant to answer the plaintiff, that the serjeant-at-mace at the same court returned according to the said custom that the defendant had nothing within the said city whereby he could summon him, nor was he found within the same, and that at the same court the defendant was solemnly called 1838. MAGRATH V. HARDY. 1838. MAGRATH v. HARDY. and did not appear, but made default. Then it is alleged at the same court that the garnishee owes to the defendant 5001. process is thereupon prayed against him to attach the same, so that the defendant may appear &c., and then it is commanded to the serjeant-at-mace that he attach the said defendant by the said 500l., so being in the hands of the garnishee, so that the defendant may appear &c. It is then stated by the record that the defendant was afterwards summoned to and solemnly called at four several subsequent courts, bnt did not appear, and made four defaults; and thereupon, after the said four defaults recorded by the court, process is prayed to warn the garnishee. The record is made up before the garnishee pleads, containing his appearance; and the record in that state is handed by the plaintiff's attorney to the registrar, who enters an imparlance. The parchment roll and the record is then handed to the garnishee's attorney by the registrar. A rule to plead is given orally by the plaintiff's attorney, and the registrar makes an entry of such rule upon the roll and in his own book. The record is then handed to the attorney of the garnishee; and, when the time for pleading is expired, the attorney for the plaintiff again demands the record; the attorney for the garnishee puts his plea on the record; the registrar then authenticates it by an entry on the record, and joins the issue upon it; but no other than the entries before stated are made of any of these proceedings. The record is handed by the registrar back to the plaintiff's attorney, and remains with him, and he inserts the cause in the list of causes for trial prepared by the registrar. If the cause be tried, the registrar marks the verdict, and no further entry of it is made. The postea is made up by the plaintiff's attorney, who retains the record afterwards in his own possession. An entry of judgment is made by the registrar forthwith upon the record, at the instance of the successful party, who is entitled to sign judgment on the day following that of the trial. The plaintiff afterwards finds pledges; and it is the "Mr. John Hardy- I do hereby certify that judgment hath been entered against you in the Lord Mayor's Court, London, at the suit of John Garnett Tyrie, plaintiff, for the sum of 4107. heretofore attached in your hands as the proper monies of Henry Jason Magrath, defendant; and that security hath been given by the plaintiff in the said attachment for restitution of the said monies if his debt shall be disproved, according to the custom; as by the record of the said judgment now remaining in the said court appears. "Dated the 22nd day of July, 1830. "G. T. Reynal, plaintiff's attorney, "Lord Mayor's Court office, Royal Exchange." No entry is made of that certificate: it is usually served on the garnishee's attorney; and the plaintiff or his attorney, if the garnishee will pay, receives the money. If he refuses to pay, he may be taken into custody. When the money is paid, the practice is, to make an entry of satisfaction on the record; and that was done in Tyrie v. Magrath. The debtor may at any time come in and dissolve the attachment before satisfaction has been entered; but, when it is entered of record, he must come in within a year and a day afterwards. It was further proved, that, until lately, writs of execution were rarely issued or executed; but that latterly it had been considered necessary; and such writs were accordingly issued and executed. The proceedings in the cause of Tyrie v. Magrath were conducted throughout in conformity with the practice above set forth. 1838. MAGRATH บ. HARDY. 1838. MAGRATH บ. HARDY. Power to amend. Question. The present defendant called no witnesses, but gave in evidence an examined copy of a judgment in the cause of Tyrie v. Magrath. It was agreed that the court might exercise the same power and discretion of amending the record as the judge at Nisi Prius could under the 3 & 4 Will. 4, c. 42, s. 23; and that the court should be at liberty to draw the same conclusions as the jury might have done from the facts stated. The question for the opinion of the court was, whether the plaintiff was entitled to recover; and, if so, the damages were to be 4107., with interest thereon from the 23rd June, 1830, till final judgment; but, if not, then a nonsuit was to be entered, The Wilde, Serjeant, for the plaintiff.-The replication must be taken to have been substantially proved; the jury having in effect found that execution was not executed in the foreign attachment: and the court will draw the same conclusion from the facts stated in the special case. present plaintiff had no notice of the proceedings. No process actually issued; and the whole proceedings consisted in entries made in the book kept, in the manner described by the witness Ashley, in the Lord Mayor's Court office. Speaking of the practice of the Lord Mayor's Court, Dallas, C. J., in Wetter v. Rucker, 1 B. & B. 491, 4 Moore, 172, says: "Whatever may be the final decision of the court in point of law, one thing at least is perfectly clear, and that is, that this is a proceeding which ought to be strictly watched, and a custom which from its very nature, in order to protect the party, must be strictly pursued." There is no pretence for saying that Ashley, the partner of Hardy's attorney, was improperly examined as a witness for the purpose of proving the practice of the court, and that that practice had been followed in the present instance. |