Rule or order for jury. be obtained for a view by the party, his witnesses, or by the jury. 59. The several courts, or any judge thereof, summoning inay make all such rules or orders upon the sheriff or other person, as may be necessary to procure the attendance of a special or common jury, for the trial of any cause or matter depending in such courts, at such time and place and in such manner as they or he may think fit. Examination debtor as to him. See Com. L. Proc. Act, 1852, 15 & 16 Vict. c. 76, s. 104, et seq. Pract. R. Hil. T. 1853, r. 44, et seq. 60. It shall be lawful for any creditor who has of judgment obtained a judgment in any of the Superior debts due to Courts, to apply to the court or a judge for a rule or order, that the judgment debtor should be orally examined as to any and what debts are owing to him before a master of the court, or such other person as the court or judge shall appoint; and the court or judge may make such rule or order for the examination of such judgment debtor, and for the production of any books or documents, and the examination shall be conducted in the same manner, as in the case of an oral examination of an opposite party before a master under this act. Judge may order an of debts, See note to sect. 49, supra. 61. It shall be lawful for a judge, upon the attachment ex parte application of such judgment creditor, either before or after such oral examination, and upon affidavit by himself or his attorney stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owing or accruing from such third person (hereinafter called the garnishee) to the judg ment debtor shall be attached to answer the judgment debt; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the judge or a master of the court, as such judge shall appoint, to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt. The application must be made at Chambers, and founded upon affidavit; it may be made either before or after oral examination under the previous section. But it is doubtful whether, when the application is made before such oral examination, the courts will allow the judgment creditor to proceed under sect. 60; because, under sect. 61 the judgment creditor is to show upon affidavit the party indebted to the judgment debtor on whom the attachment is to be served, and who is to appear before the judge, to show cause why he should not pay the judgment creditor, &c. This presumes that the judgment creditor is in possession of the preliminary information necessary for proceeding under sect. 61, and it would be encouraging a loose system of affidavit-making to allow a judgment to attach under sect. 61, and then obtain n order for the oral examination of the defendant, to obtain the proofs in support of the statements in the affidavit. However, there are exceptions to the above remark, in which the attachment might be made before the oral examination, and in which it would be proper to allow the defendant to be examined under sect. 60 afterwards: but as a general rule it seems that the practice should be otherwise. The order calling pon the garnishee to show cause why he should not pay the judgment creditor, is an order nisi, but if the garnishee disputes his liability (see sect. 63, 64), he will only have to attend before the judge or master and say so; or most probably, it will only be necessary for the garnishee to indorse the order "Liability disputed," and then the order for the new writ under sect. 64 is to be made. The object of this provision being to extend the powers of execution, and new process similar to that of foreign attachments in the Mayor's Court of London introduced, a distinct chapter is devoted to the subject, to which he reader is referred. Order for attachment 62. Service of an order that debts due or to bind debts. accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the judge shall direct, shall bind such debts in his hands. Proceedings to levy from gar nishee to judgment debtor. In the Mayor's Court of London the garnishee was served personally with notice of the attachment: but sect. 62 directs the service to be in such manner as the judge shall direct. Goods or money coming to the hands of the garnishee between the attachment and plea are recoverable in the attachment in the Mayor's Court: (Locke on Foreign Attachment, 30.) The words of this section are, debts due or accruing to the judgment debtor shall be attached, and seem capable of receiving a construction conformable to the above practice in the Mayor's Court. 63. If the garnishee does not forthwith pay amount due into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, then the judge may order execution to issue, and it may be sued forth accordingly, without any previous writ or process, to levy the amount due from such garnishee towards satisfaction of the judgment debt. Judge may ment credi tor to sue garnishee. The writ of execution will be in a special form, to levy the amount due from the garnishee, towards satisfaction of the judgment debt. 64. If the garnishee disputes his liability, the allow jud judge, instead of making an order that execution shall issue, may order that the judgment creditor shall be at liberty to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor, if less than the judgment debt, and for costs of suit; and the proceedings upon such suit shall be the same, as nearly as may be, as upon a writ of revivor issued under "The Common Law Procedure Act, 1852." The proceedings are to be similar to those upon a writ of revivor under the 15 & 16 Vict. c. 76, ss. 131, 133, not similar to all proceedings for the revival of judgments. The proceedings upon a writ of revivor are analogous to those upon a sci. fa. to revive a judgment. After appearance to the writ of attachment there will be declaration, plea and issue as in ordinary actions. The judgment against the defendant, which is the foundation of the attachment, can only be impeached by the garnishee in the proceedings upon the writ of attachment on the ground of fraud, and even then it is doubtful whether the proper course is not to set aside the writ of attachment: (see judgment of Parke, B. in Bradley v. Urquhart, 11 M. & W. 460.) In Philipson v. Egremont, 6 Q. B. 587, that defence was allowed to be raised by the defendant in the sci. fa. by plea (see also Bosanquet v. Woodford, 5 Q. B. 310; Thomas v. Williams, 3 Dowl. 655; Dodgson v. Scott, 2 Exch. 457.) 65. Payment made by or execution levied upon Garnishee discharged. the garnishee under any such proceeding as aforesaid shall be 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. This section only discharges the garnishee as against the judgment debtor, it leaves his liability to other parties in respect of legal or equitable claims upon the defendant untouched : (see chapter on "Foreign Attachment.") Payment or satisfaction to the judgment creditor may be pleaded in discharge of an action by the judgment debtor (Crosby v. Hetherington, 4 M. & G. 933; Webb v. Hurrell, 4 C. B. 287; Denton v. Maitland, 15 L. J. 332); or it may be a ground for setting aside the proceedings in the action: (Churchill v. The Bank of England, 11 M. & W. 323.) book to be 66. In each of the Superior Courts there shall Attachment be kept at the master's office a debt attachment- kept by the book, and in such book entries shall be made of masters of the attachment and proceedings thereon, with each court. Costs of application. Action for mandamus to enforce the performance of duties. names, dates, and statements of the amount recovered, and otherwise; and the mode of keeping such books shall be the same in all the courts; and copies of any entries made therein may be taken by any person, upon application to any master. 67. The costs of any application for an attachment of debt under this act, and of any proceedings arising from or incidental to such application, shall be in the discretion of the court or a judge. In the Mayor's Court costs are not allowed in attachments between plaintiff and garnishee: but in the Superior Courts it may be otherwise. The practice that seems most analogous, is that of costs upon interpleader applications, and it seems reasonable that the garnishee's costs, when allowed, should be retained out of the debt attached: (see Chit. Arch. 1216, 1226, Interpleader Costs.) 68. The plaintiff in any action in any of the Superior Courts, except replevin and ejectment, may indorse upon the writ and copy to be served a notice that the plaintiff intends to claim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demand which may now be enforced in such action, or separately, a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested. This is the section giving to the Common Law Courts the power of enforcing "specific performance:" (see the chapter on "Specific Performance.)" It was proposed to limit the power to cases in which compensation in damages only could be obtained in those courts: (see Rep. supra, p. 43.) The words of this section are: "The plaintiff in any action may claim in the declaration, along with any other demand which may now be enforced in such action or separately, a mandamus to fulfil any duty in which the plaintiff is personally interested." Does |