and the *said serjeant-at-mace then returned and certified to *667] the same Court that he by virtue of such precept to him directed, and according to such custom, had warned and made known to the now defendants, the garnishees, to be and appear at the same Court to show such cause; and thereupon, at the same Court, the now defendants, the garnishees in such attachment, were solemnly called according to such custom, and did not appear, but made default; and thereupon, according to such custom, it was considered by the same Court that the said Messrs. Kelson, Tritton & Co. should have execution of the said 21837. 17s. 9d. in moneys numbered so attached, and that they should retain and hold the same in full satisfaction of the like sum of 21837. 178. 9d., being the amount of the debt in the said plaint mentioned, by sufficient pledges to be found and given by the said Messrs. Kelson, Tritton & Co. in the same Court, according to such custom, to restore to the said Frederick Matthey the said 21837. 17s. 9d. so attached, if the said Frederick Matthey within a year and a day thence next ensuing should come into the said Court and disprove and avoid the same debt in the said plaint mentioned; whereupon the said Messrs. Kelson, Tritton & Co. afterwards, to wit, on the day and year last aforesaid, at the same Court, according to such custom, found sufficient pledges, to wit, F. H. Janson and Alfred Wilson, to restore to the said Frederick Matthey the said 21837. 17s. 9d. so attached, if the said Frederick Matthey, within a year and a day thence next ensuing, should come into the same Court, holden as aforesaid, and disprove or avoid the debt in the said plaint mentioned, according to such custom: and thereupon the said Messrs. Kelson, Tritton & Co. afterwards, to wit, on the day and year last aforesaid, for the purpose of obtaining execution of the said sum of 21837. 17s. 9d. *so attached as aforesaid, sued out *668] of the same Court, according to the custom of the said Court, a certain precept directed by the said Court to the said C. Fitch, being one of the serjeants-at-mace of the said Court; whereupon he was commanded by the said Court that he should take the now defendants if they were to be found within the liberties of London, and them should safely keep so that he might have their bodies there in Court without delay, to satisfy the said Messrs. Kelson, Tritton & Co. 21837. 17s. 9d. attached in their hands at the suit of the said Messrs. Kelson, Tritton & Co., as the proper moneys of the said Frederick Matthey, by due process of attachment and judgment of the Court there recovered against them the said defendants, according to the tenor and effect of the said judgment thereof given; and which said precept was afterwards, and within the jurisdiction of the said Court, to wit, on the day and year aforesaid, delivered to the said serjeant-at-mace, to be executed in due form of law: And thereupon the now defendants, afterwards, and after the commencement of this action, and whilst the said precept was in the hands of the said serjeant-at-mace for the purpose of being executed, to wit, on the day and year last aforesaid, being then within the city of London and the jurisdiction of the said Court, were then and there forced and obliged, and then and there necessarily did for the purpose of satisfying the said judgment, pay to the said Messrs. Kelson, Tritton & Co. the said sum of 21831. 178. 9d., according to the exigency of the said precept, and thereby the said Messrs. Kelson, Tritton & Co. then and there, according to the custom of the said Court, had execution of the said debt of 21837. 17s. 9d. against the now defendants, the said garnishees, according to the tenor of such judgment in that behalf given; and thereby the said execution was then executed, as by the record and proceedings thereof [*669 remaining in the chamber of the Guildhall of the city of London aforesaid, more fully appears: That the said 21831. 17s. 9d. so attached, and of which the said Messrs. Kelson, Tritton & Co. had execution by virtue of such judgment, accrued due from the now defendants to the said Frederick Matthey, and the said Frederick Matthey's cause of action in respect thereof, and the cause of action of the now plaintiff as administratrix of the said Frederick Matthey in respect thereof, arose within the city of London and the jurisdiction of the said Court, and not elsewhere; and that the said 21831. 17s. 9d. were so attached before and paid after the commencement of this suit; and that the said execution was duly executed in the said city according to the custom of the said city; and that the said judgment and execution are still in force, and not in the least by the plaintiff otherwise disproved or avoided; and that the said sum of 21837. 17s. 9d. claimed by the plaintiff as such administratrix of the said Frederick Matthey deceased in this action is the very same and identical sum of 21837. 17s. 9d. so attached and taken in execution by the said Messrs. Kelson, Tritton & Co. by virtue of the judgment aforesaid: wherefore the defendants prayed judgment if the now plaintiff, as such administratrix as aforesaid, ought further to maintain her said action against them. To this plea the plaintiff replied, that, before the time of the affirming of the said plaint, the said Frederick Matthey died, and he was then dead. The defendants rejoined, that the defendant Frederick Matthey at the time of his death was indebted to Messrs. Kelson, Tritton, & Co. in 21837. 17s. 9d. for money lent by the said Messrs. Kelson, Tritton & Co. for the use of the said Frederick Matthey in his lifetime and at his request, and for money found to be due from the said [*670 Frederick Matthey in his lifetime upon accounts stated between the said Messrs. Kelson, Tritton & Co. and the said Frederick Matthey; and that, at the time of the affirming of the said plaint in the said Mayor's Court as in the third plea mentioned, neither the plaintiff nor any other person had administered to the estate and effects of the said Frederick Matthey deceased; and that the said Messrs. Kelson Tritton, & Co. were entitled to recover against the estate of the said Frederick Matthey deceased the said sum of 21837. 17s. 9d., and that they the said Messrs. Kelson, Tritton & Co. affirmed the said plaint in the said Mayor's Court as in the third plea mentioned, according to the custom of the said city of London, and, before execution was had of the said sum as in the third plea mentioned, the plaintiff took out letters of administration to the estate and effects of the said Frederick Matthey deceased, and had notice of the premises; and thereupon the plaintiff, as such administratrix as aforesaid, afterwards, and before execution was had of the said sum as aforesaid, might, according to the practice of the said Mayor's Court, and the custom of the said city of London, have caused an appearance to be entered to the said plaint of the said Messrs. Kelson, Tritton & Co., and might have defended the same, or she might, according to the practice of the said Mayor's Court and the custom of the said city of London, have dissolved the said attachment as in the third plea mentioned, and defended the said plaint so affirmed by the said Messrs. Kelson, Tritton & Co. against the said Frederick Matthey deceased; and that all proceedings were had in the matter of the said plaint and the said attachment as in the third plea mentioned, according to the practice of the said Mayor's Court, and the custom of the said city of London, and in pursuance thereof. *The plaintiff demurred to this rejoinder, the ground of *671] demurrer stated in the margin being, "that the plea does not show that the proceedings in the Mayor's Court have been in accordance with the custom alleged in the plea, and that the custom does not show any right of affirming a plaint against a dead man." Joinder. Hannen, in support of the demurrer.(a)-The third plea sets out the proceedings in the Mayor's Court, and alleges that after the commencement of this action Messrs. Kelson, Tritton & Co., the plaintiffs in that suit, had execution of the debt against the now defendants, as garnishees, and that they paid the debt now sought to be recovered. The plaintiff replies, that, at the time of affirming the plaint in the Mayor's Court, Frederick Matthey, the person against whom those proceedings were instituted, was dead. The rejoinder in substance alleges, that, at the time of affirming the plaint in the Mayor's Court, no administration had been taken out to the estate of Frederick Matthey, but that, before execution had and executed in the Mayor's Court, the plaintiff administered, and that she might then, according to the practice of that Court, have appeared and dissolved the attachment. The question, therefore, to be determined upon this demurrer, is, whether by the custom of the city of London proceedings by way of foreign attachment can be had against a man who has ceased to exist, and, if so, *672] *whether such a custom can be sustained. In Pulling's Laws and Customs of London, p. 189, the practice is thus, and it is believed correctly, stated:-"The custom of foreign attachment in London was certified into Court in an old case(b) 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 out by the plaintiff.' As the original object of this process was, to compel the defendant's appearance and to give bail to the action, the attachment is at an end immediately (a) The points marked for argument on the part of the plaintiff were as follows:-- "3. that the rejoinder is a departure from the plea, and does not warrant a plaint against Frederick Matthey after his death." (b) Per Sterkey, Recorder, 22 E. 4, fo. 30 b. pl. 11; Roll. Abr. 554: and also in Roberthon v. Norroy, King-at-arms, Dyer 83 a: and see Coke's Entries 139. that is done. In practice, however, the real defendant is not actually served with any process or notice at all, but, as a necessary foundation for the attachment, the plaintiff makes an affidavit of the debt; the names of the parties with a memorandum of the attachment are then entered in a book, called the action-book, preserved in the office of the Court, and an attachment-paper is prepared by the plaintiff's attorney, and notice thereof served upon the person in possession of the property, who is thenceforward called the garnishee or person warned. The notice is, that all the goods, moneys, and effects of the defendant then in the *garnishee's possession, or which may there[*673 after come to his possession, or the debt or debts due from him to the defendant, are attached to answer the plaintiff's demand; and that he (the garnishee) is not to part with such goods, or pay over such debts, without the license of the Court. No precept or process is ever issued against the defendant, nor any actual default made, nor are there any returns of nihil or defaults or otherwise actually made to any process, although there are entries thereof on the record, and the omission of such entries would be fatal. The serjeant-at-mace serves the attachment on the garnishee, and makes an entry thereof in the action-book; and thenceforward the proceedings are against the garnishee, who either appears and disputes the attachment(a) or suffers the property to be taken by default." But there is no pretence for saying that this ceremony, sufficiently absurd in the case of a living person, may be gone through where the person who is supposed to be summoned and to have notice is dead. It would be an outrage against the first principles of justice. The party must either be summoned or have notice, otherwise the proceedings will be invalid: Andrews v. Clerke, Carth. 25, Comb. 109, 1 Show. 11; Fisher v. Lane, 3 Wils. 297. In the last-mentioned case, the Chief Justice observes,-" Customs of particular cities may deviate from the course of the common law, but a custom contrary to the first principles of justice can never be good so this custom, not to summon or give notice to a defendant in a suit commenced against him, is contrary to the first principles of justice, and (in my opinion, as at present advised) cannot be good." And, in giving judgment, the Court say: "The now plaintiff, [*674 Mrs. Fisher, residing in the city of London, is sued in London by process whereof she has no notice, and does not appear, whereupon the officer attaches the money of John Fisher, the intestate, in the hands of the now defendants, Lane and others, that is to say, attaches Mrs. Fisher by the debt owing to her by a third person, i. e. the officer distrains her to appear. If she appears there is an end of the foreign attachment: it is like the process in the Courts at Westminster, by way of distraining issues to compel an appearance. It is not necessary to repeat particularly the evidence of this judgment in the foreign attachment, which consisted only of minutes taken from a book kept for that purpose; and those minutes, which an officer read from a paper in his hand, were the only evidence of the judgment: and, if this be all, the judgment is erroneous; it is said to be for the default of Mrs. Fisher's appearance: she made no default, for it appears she (a) That is by disputing his own liability to the attachment, as, by a denial of any debt owing from himself, or of the defendant's title to the property attached, or by setting up a lien : Giles v. Nathan, 5 Taunt. 558, Nathan v. Giles, 1 Marsh. 226. never was summoned or had notice, which is contrary to the principles of justice." How could these proceedings compel the appearance of a dead man? H. James (with whom Gates), contrà.(a)-There being a debt due to Matthey from a person being within the jurisdiction, the proceedings in the Mayor's Court were fully warranted by the custom, which is so well known and so firmly established that it would be *idle to *675] cite authorities in support of it. The plaintiffs in the Mayor's Court, having no notice that Matthey was dead, proceed in the usual course, and get judgment and execution against the garnishees, who, having no means of contesting the propriety of the proceedings, are compelled to pay the amount. A judgment of a Court of record,which this is, though an inferior one, is clearly a good protection to the defendants under such circumstances. It is admitted upon the record that the now plaintiff had notice of the attachment and of all the proceedings: and she might have come in and dissolved the attachment by giving bail. The defendants, on the other hand, had no notice of the death, and no means of defeating the attachment. There are numerous authorities to show, that, where money has been paid under a judgment of the Mayor's Court, valid upon the face of it, such pay. ment is a discharge of the debt, even though it should turn out that the Mayor's Court had no jurisdiction to try the matter: see Harrington v. Macmorris, 5 Taunt. 228 (E. C. L. R. vol. 1), 1 Marsh. 33 (E. Č. L. R. vol. 4); Banks v. Self, 5 Taunt. 234, n. Álmost all the cases on the subject are collected in Westoby v. Day, 2 Ellis & B. 605 (E. C. L. R. vol. 75). There, in an action of debt by Westoby against Day, the latter pleaded that the debt had been attached in his hands, as garnishee, in a plaint of debt in the Mayor's Court by one Caldwell against Westoby. The plaintiff replied 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; and the replication was held bad, on demurrer. Lord Campbell, in delivering the judgment of the Court, there says: "This replication allows that the plea replied to is good within the custom of foreign attachment in the city of London, and raises the question whether the garnishee, after a regular judgment and *execution against him, *676] having paid the debt, may be compelled to pay it a second time on proof in this suit that the debt did not arise within the jurisdiction of the Mayor's Court. The affirmative would often work great hardship and injustice to the garnishee, who may be entirely ignorant of the origin of the debt sued for, who has no means of contesting the debt except by appearing and putting in bail to the original action, and who may be wholly unable to prove that the debt arose out of the jurisdiction of the Mayor's Court, although the fact be so. The plaintiff below, to render his proceedings effectual against the garnishee, is not even bound to prove the existence of the debt alleged to be due to him from the defendant below, nor to allege that it arose within (a) The points marked for argument on the part of the defendants were as follows:"1. That the rejoinder shows that the proceedings in the Mayor's Court were in accordance with the custom of the city of London, and that such custom is reasonable and good: "2. That the plaintiff's replication to the defendants' third plea is bad, on the ground that it raises an immaterial issue." |