PART II. is indebted to the judgment debtor, and is resident within the district of the court, enter a plaint in the nature of a scire facias for the amount of the debts due to the judgment debtor from the garnishee (7). The summons on the plaint must be personally served on the garnishee, and when so served it attaches in his hands all debts due, owing, or accruing from him to the judgment debtor (m). If the garnishee pays the money into court five clear days before the return-day, he is not liable for any costs incurred by the judgment creditor (n). Upon the return-day the court is to determine as to the liability of the garnishee, and as to the party by whom the costs of the proceeding by plaint shall be paid, and make an order or orders in accordance with such determination. The costs are in the discretion of the court (o). Payment made by or execution levied upon the garnishee is a valid discharge to him as against the judgment debtor to the amount paid or levied, although such proceeding may be set aside or the judgment reversed (p). The garnishee is protected even though the execution debtor become bankrupt, or register a deed of arrangement before payment, provided the payment be made without notice (7). Under the provisions just referred to the court has power to attach only debts; and therefore a claim for unliquidated damages cannot be attached (r), even though the amount has been ascertained by verdict, unless judgment has been signed (s). Nor can a debt be attached to which the judgment debtor is legally but not beneficially entitled (t). But where judgment is recovered against several defendants, a debt due to one of them may be attached (u). And where the judgment is against an executor, a debt due to the testator's estate may be attached (x). Rent is attachable as a debt under this enactment (y). (1) Rule 147. Sects. 61, 64. (q) Wood v. Dunn, 2 L. R., Q. B. (r) Johnson v. Diamond, 11 Exch. 73; S. C., 24 L. J., Exch. 217. (8) Jones v. Thompson, E. B. & E. 63; S. C., 27 L. J., Q. B. 234. (t) Heisch v. Coates, 18 C. B. 757. S. C., 25 L. J., C. P. 315. (u) Miller v. Mynn, 1 E. & E. 1075; S. C., 28 L. J., Q. B. 324. (x) Burton v. Roberts, 6 H. & N. 93; S. C., 29 L. J., Exch. 484. (y) Mitchell v. Lee, L. R., 2 Q. B. 259. CHAPTER VII. PROCEEDINGS TO MAKE JUDGMENT AVAILABLE FOR AND Execution by Person not a Party. | Married Woman. Execution against Person not a Party. In Actions on Bonds within 8 & 9 Jury. Execution by Person not a Party.]-Execution may issue on behalf of any person not a party to the suit by leave of the registrar, upon proof of title to the benefit of the judgment and upon substitution of the name of the new plaintiff, together with a statement of his derivative title for that of the original plaintiff, and the registrar shall give notice of such substitution to the defendant by post, and execution shall not issue upon the judgment until the expiration of six clear days after the posting of the notice (a). Execution against Person not a Party.]-Execution on a judgment may not issue against any person not a party to a suit without a plaint and summons upon the judgment, the proceedings in which must be the same as in ordinary cases (b). Death of Party.]-Where a judgment has been given Death of against a person deceased, his executors or administrators party. may in the same manner be sued upon the judgment (c). Where one or more of several plaintiffs or defendants dies before judgment, the suit will not abate, if the cause of action survive to or against the surviving parties (d). Where one or more of several plaintiffs or defendants dies after judgment, proceedings thereon may be taken by the survivors or survivor, or against the survivors or survivor, without leave of the court (e). PART II. Married Woman. In actions on bonds within c. 11. Married Woman.]-Where a married woman is sued as a feme sole, and she obtains judgment on the ground of coverture, proceedings may be taken thereon, in the name of the wife, at the instance of the husband, without leave of the court (ƒ). In Actions on Bonds within 8 & 9 Will. 3, c. 11.]—In actions for penalties to secure the performance of covenants, 8 & 9 Will. 3, within the meaning of 8 & 9 Will. 3, c. 11, where judgment has been entered for the amount of the penalty, and execution has issued for the amount of damages to which the plaintiff is entitled; in case of subsequent breaches the plaintiff may take proceedings in the nature of a sci. fa. on such judgment in the form given in the schedule to the rules, and must deliver particulars of such subsequent breaches, as in the case of an action on a bond (g); upon which the practice in proceedings in the nature of a sci. fa. is adopted (h). Jury. Jury.]-In all proceedings in the nature of a scire facias, a jury may be summoned in the same manner and under the like restrictions as are provided by sects. 70, 71, 72 and 73 of the 9 & 10 Vict. c. 95 (i). (ƒ) Rule 200. (g) See ante, pp. 80 and 153. (i) Pages 414 to 416 for the sections, Rule 106. See ante, p. 96. WE have seen, that, where judgment is given in the de- Power of court fendant's absence, the judge may grant a new trial on to grant. such terms as he thinks fit (a). In addition to this, the judge may in any case order a new trial on such terms as he thinks fit, and may stay proceedings in the meantime (b). Application for.]-The application for a new trial, or Application to set aside proceedings, may be made and determined on for. the day of hearing, if both parties be present, or it may be made at the first court held next after the expiration of twelve clear days from such day of hearing. The party intending to make the application must, seven clear days before the holding of such court, deliver to the registrar at his office a notice in writing, signed by himself, his attorney or agent, of such intention, stating shortly the grounds of the application. He must also give a similar notice to the opposite party, by serving the same personally on him, or leaving it at his place of abode or business. This notice does not, however, operate as a stay of proceedings unless the judge otherwise orders (c). These provisions are only directory; therefore although a party has omitted to give the seven days' notice, the judge may in his discretion entertain an application for a new trial (d). Money paid into court under any execution or order in the suit, which has not been paid out when the notice is given, is to be retained to abide the event of the application, unless the judge otherwise orders; and if no application be made, the money, if required, will be paid to the party in whose favour the order is made, unless the judge otherwise orders. (a) Ante, p. 142. See 9 & 10 Vict. c. 95, s. 80, p. 420. (b) 9 & 10 Vict. c. 95, s. 89, p. 423. See form of order for new trial, 77, App. (c) Rule 172. (d) Carter v. Smith, 4 E. & B. 696; S. C., 24 L. J., Q. B. 141. PART II. Jury. Bond. If the notice be not given as directed, or the application be not made at the court mentioned in the notice, no application for a new trial, or to set aside proceedings, may be subsequently made, unless by leave of the judge, on such terms as he thinks fit (e); but the foregoing is not to apply to cases falling within the provision of sect. 80 of 9 & 10 Vict. c. 95. Where a judge had, after hearing the parties, refused to grant a new trial, but subsequently changed his mind, and upon a second application directed that a new trial should be had, it was held that after the first decision he was functus officio, and that a writ of prohibition would lie (f). Jury.]-In all cases where a new trial is granted, the judge may make it a condition of granting it that it shall take place before a jury, although the former trial did not take place before a jury (g). It has been held also that where there is a new trial either party may demand a jury for the second trial, although there was no jury at the first (h). Bond.]-Should the judge require a bond to be given by either party, the expense of it must be borne by the party giving it (¿). Rule 172. Great Northern Railway (g) Rule 173. (h) R. v. Harwood, 1 B. C. C. 144; S. C., 22 L. J., Q. B. 127; 17 Jur. 87. (i) 19 & 20 Vict. c. 108, s. 70, p. 452, and see Part II., Chap. XII. As to new trial of cases sent from the superior courts, see post, Part III., Chap. VII. |