PART I. Hearing and judgment. So also any of the said courts will in such a case issue a writ of prohibition to prohibit him from issuing execution, or otherwise proceeding in the original plaint until the interpleader suit has been determined (x). Where a claim is made for damages against a high bailiff and the execution creditor or either of them, they or either of them may pay into court a sum in full satisfaction thereof in the same manner as if an action had been brought (y). Hearing and Judgment.]-The hearing in cases of interpleader is the same as in ordinary actions (2), the claimant being considered as plaintiff, and the execution creditor as defendant (a); at the instance of either party, a jury may be summoned as in other cases (b). If there is no jury, the judge may adjudicate upon the claim, and make such order between the parties, and as to the costs, Costs of bailiff. as to him seems fit (c). Where the claim is decided against the claimant, the costs of the bailiff may be retained by him out of the amount levied, if the judge so order, but the right of the execution creditor against the claimant for the sum so retained is not prejudiced thereby (d). If, however, the bailiff fails to retain his costs, he cannot, after paying the proceeds over, maintain an action for them against the execution creditor (e). The court in this case appear to have doubted the right of the bailiff even to retain his costs as against the execution creditor. Appeal. Appeal.]-Either of the parties may appeal from the decision if the money or goods or chattels claimed, or the proceeds thereof, exceed 201. (ƒ). If the value of the goods seized exceeds 201., an appeal lies, although the claim in the original plaint is below 201. (g). 263; S. C., 20 L. J., Q. B. 351. A (x) Ex parte M'Fee, 9 Exch. 261. (z) Ante, p. 130. (b) Rule 106. (c) 30 & 31 Vict. c. 142, s. 31, p. 423. See forms of order, App. 26. (d) Rule 180. (e) Bloor v. Huston, 24 L. J., C. B. (f) 19 & 20 Vict. c. 108, s. 68, p. 426. Before this Act there was no appeal in cases of interpleader. See Beswick v. Boffey, 9 Exch. 315. (g) Vallance v. Naish, 2 H. & N. 712; S. C., 27 L. J. & R. 142. CHAP. IX. Attachment of Attachment of Debts.]-A creditor who has obtained a judgment may apply to the court for an order that the judgment debtor be orally examined as to any and what debts. debts are owing to him, and the court may make an order for the examination of the judgment debtor, and for the production of any books or documents (h). A plaintiff who is desirous that the defendant, if the defendant shall have judgment given against him, shall be orally examined, forthwith after the judgment, as to what debts are due and owing to him, may, before the cause is called on, lodge with the registrar a statement in writing of the name, address, and description of the person or persons within the ordinary jurisdiction of the court whom he considers are debtors to the defendant (i). Where such a statement has been lodged by a plaintiff, the defendant, if he shall have had judgment given against him, may be examined before the court at the request of the plaintiff as to any debts due and owing, or accruing from any person mentioned in the statement to the defendant, and if such person be then present, he may be required forthwith to show cause why he should not be ordered to pay into court, for the benefit of the judgment creditor, such debts or so much thereof as will satisfy the judgment debt, and such order shall be entered in the minute book, and may be enforced in like manner as any order made in any suit in the court; and where the garnishee pays the money as ordered, he shall not be liable for any costs; and an entry of the payment shall be made in the cash book" and "ledger" (k). Where a plaintiff has not lodged such statement, he may, at any time after the judgment, upon lodging with the registrar of the court in which the judgment was given an affidavit stating the fact of the judgment, and of its being unsatisfied, and that a third person (called the garnishee) 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 (1). The summons on the plaint must be personally served on the garnishee, and when so served it attaches in his (h) 17 & 18 Vict. c. 125. Sect. 60 applied to county courts by order in council of 18th November, 1867. For the law and practice of attachment see Day's Common Law Pro cedure Act; Brandon on the Mayor's (1) Rule 147. Sects. 61, 64. PART I. 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 (0). 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 (g). 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). (m) Rule 148. Sect. 62. (0) Rule 150. Sect. 67. (q) Wood v. Dunn, 2 L. R., Q. B. (r) Johnson v. Diamond, 11 Exch. 73; S. C., 24 L. J., Exch. 217. (s) 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. issued. Summons, when and how Issued.]-A judgment creditor Summons, who has obtained an unsatisfied judgment or order for when and how payment of a debt, damages, or costs, may, upon signing an application stating the grounds upon which he intends to rely to obtain the committal of the judgment debtor (a), obtain a summons from any court within the limits of which the other party then dwells or carries on his business, or by leave of the judge from the court in which judgment was obtained (b), requiring him to appear to answer such things as are named in the summons (c). The summons may issue without leave of the court if the party dwells or carries on business within its district, but it must be issued ten clear days at least before the day on which the judgment debtor is required to appear, unless he is about to remove from his dwelling or place of business, or is keeping out of the way to avoid service (d); and may be in the form given by the act 19 & 20 Vict. c. 108, or to its effect (e)." (a) Rule 155. (b) 19 & 20 Vict. c. 108, s. 48, p. 412. Before this Act the summons could issue only from the court in which the defendant dwelt. See Houlden v. Smith, 19 L. J., Q. B. 170. (c) 9 & 10 Vict. c. 95, s. 98, p. 412. See form of summons 73, App. (d) Rule 156. (e) 19 & 20 Vict. c. 108, s. 61, p. 412. PART I. When and how served. Hearing and order. The amount claimed by the summons may exceed 501. if the excess consists of costs which have been incurred by previous proceedings in the action (f). If the summons is to issue in any other court than the one in which judgment was obtained, the execution creditor must procure from such court a certificate of the judgment, as before the summons will be allowed to issue in another court the certificate must be produced. Where a certified copy of a judgment is obtained, the registrar must make a memorandum of having given such certificate, and no execution against the goods or judgment-summons may issue upon such judgment from the court in which the judgment was obtained, until it is shown to the court or registrar that no order has been made against the execution debtor in any other court (g). When and how served.]—The summons must be forthwith issued by the registrar to the bailiff, and must be served personally not less than five clear days before the day on which the party is required to appear to it, unless at the hearing the judge is satisfied, on the evidence on oath before him, that such party was about to remove from his dwelling or place of business, or was keeping out of the way to avoid service, in either of which cases service upon the party at any time before the time appointed for the appearance of such party is sufficient (h). When issued, the bailiff is to return into court any warrant against the goods of the party which may have been served (i). Hearing and Order.]-If the person summoned appears in pursuance of the summons, he may be examined upon oath touching his estate and effects, and the manner or circumstances under which he contracted the debt, or incurred the damages or liability for which judgment was obtained against him, and as to the means and expectation he then had, and as to the property and means he still has, of discharging the debt, damages, or liability, and as to the disposal he may have made of any property (k). The person obtaining the summons, and all other witnesses the judge thinks requisite, may be examined on oath touching such inquiries (7). |