The New Practice of the Common Law

served with the rule for the return of the writ, does not make the return within the time limited by the rule he will be in contempt, and subject to an attachment ;(1) and he will, it appears, be so subject if the return he makes be on the face of it insufficient ;(2) but not if it be good on the face of it, but false;(3) and if it be only informal the court will in general allow it to be amended, and set aside the attachment on the sheriff paying the costs.() Where it did not appear what damage had been sustained by the creditor, the court ordered the attachment to stand over, and left the plaintiff to bring his action against the sheriff. (5) It is no answer to a rule for an attachment that the plaintiff, after the sheriff's default and before moving for the attachment, desired him to proceed with the execution.(6) Where the writ was lost, of which fact the plaintiff had notice, and that the defendant was in custody, the court set aside an attachment for not returning it.(7) By Reg. Gen. Pr. H. T. 1853, r. 133, "in case a rule shall issue in vacation for the return of any writ of capias, ca. sa., fi. fa., elegit, habere facias possessionem, venditioni exponas, or other writ of execution, and such rule shall have been duly served, but obedience shall not have been paid thereto, an attachment shall issue for disobedience of such rule, whether the thing required by such rule shall or shall not have been done in the mean time." But if the writ is ordered to be returned in term and is returned before the application for the attachment, the attachment will, it appears, be refused.(*)

Motion for attachment.]-The rule for the attachment is absolute in the first instance.(") It is moved for on an affidavit stating a personal service on the sheriff or undersheriff, or one of the clerks in his office,(10) of a copy of the rule to return the writ, and that such rule was at the same time shown to the person served, (") and that a search has

(1) Alchin v. Wells, 5 T. R. 470.

(2) Wilton v. Chambers, 1 M. & W. 582.
(3) Goubot v. De Grouy, 2 Dowl. 86.
(4) Rex v. Sheriff of Kent, 2 M. & W. 316.
(5) Arden v. Goodacre, 11 C. B. 366.

(5) Howitt v. Rickaby, 9 M. & W. 52.
(7) Rex v. Sheriff of Kent, 1 Marsh. 289.
(s) Williamson v. Harrison, 9 M. & W. 225.
(9) Reg. Gen. H. T. 1853, (Pr) r. 168.

(11) Harmer v. Tilt, 2 Marsh. 251.

(12) Reg. Gen. H. T. 1853, (Pr.) r. 163; Barnard v, Berger, 1 New R. 121.

been made for the writ and that it has not been returned. If the motion be for an insufficient return, a copy of the return should be annexed to the affidavit, which must verify it.(')

Direction of attachment.]—The attachment is directed to the coroner, or, if he be the defendant, to elisors, (2) or, if against the late sheriff, it is directed to the present sheriff.

Form of attachment.]—The following is the form of an attachment:

VICTORIA, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, defender of the faith. To the coroner of the county of greeting: We command you that you [if in the Exchequer say, “omit not by reason of any liberty in your bailiwick, but that you enter the same and"] attach S. S., Esquire, sheriff of our said county, so that you may have him before us [or if in the Common Pleas, "before our justices," or if in the Exchequer, "before the barons of our Exchequer"] at Westminster on to answer to us for

certain trespasses and contempts by him lately done and committed in our court before us, [if in the Common Pleas, "of and concerning those things which on our behalf shall then and there be objected against him," if in the Exchequer, "concerning divers trespasses, contempts and offences by him lately done and committed,"] and have there then this writ. Witness [name of chief justice or chief baron] at Westminster this day of year of our reign.

in the

Indorsement.

By rule of court [if in the Exchequer say "made on the

day

of "] for not returning the writ of fieri facias issued in a certain cause wherein A. B. is plaintiff and C. D. is defendant, pursuant to a rule of court [if in the Exchequer add "made in the said cause for that purpose," if in the Queen's Bench or Common Pleas add "with costs of attachment."]

Setting aside attachment.]—If there be any irregularity in the proceedings against the sheriff the court will set them aside with costs, and, even although they be regular, if no injury has been sustained by the plaintiff by the sheriff's neglect, the court will set aside an attachment against him on payment of costs and making the return. (3)

(1) Wilton v, Chambers, 1 Har. & W. 582,

(2) R. v. Sheriff of Glamorganshire, 1 Dowl, N. S. 30.

(3) R. v. Sheriff of Essex, 8 Dowl. 363; Reg. v. Sheriff of Herts. 9 Dowl. 916.

CHAPTER XXVIII.

ATTACHMENT OF DEBTS DUE TO A JUDGMENT DEBTOR.

I. OF THE EXAMINATION Of the Judgment Debtor.

II. OF THE Order of AttaCHMENT AND OF THE SUMMONS.

1. Order for payment by garnishee. 2. Forms of execution against

garnishee.

IV. PROCEEDINGS WHERE GARNISHEE DISPUTES THE Debt.

1. Order for writ.

2, Form of writ.

3. Proceedings in suit.

4. Execution.

5. Discharge of garnishee.
6. Costs.

In addition to the means of enforcing a judgment by execution against the person, goods and lands of the judgment debtor, a new remedy is given the judgment creditor by the C. L. P. Act, 1854, s. 60, by the attachment of debts due to the debtor from third parties. The executor of a judgment creditor is not entitled to this remedy, unless he makes himself a party to the record by suggestion or revivor.(1)

Examination of debtor.]-Before proceeding against the defendant's creditors, it may be desirable to ascertain the

(1) Baynard v. Simmons, 24 L, J. 253, Q. B.

precise nature of the debt it is desired to attach, or to learn what debts are owing to the defendant, and for this purpose application may be made by the judgment creditor 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 are empowered to make such rule or order for the examination of such judgment debtor, and for the production of any books or documents; and the examination is conducted in the same manner as in the case of an oral examination of an opposite party before a Master under the C. L. P. Act, 1854.) The following is the material part of the summons, the formal part being the same as in ordinary cases :

"To show cause why he should not attend before the Master [or other person] at and submit to be examined vivâ voce on oath, as to the debts due and accruing due to him, and why on such examination he should not produce to the Master [or other person] all books of account, papers and writings in any way relating to such debts.

Dated, &c.
[Judge's signature.]

II. OF THE ORDER OF ATTACHMENT AND OF THE SUMMONS.

1. What debts may be attached.]-It is not every debt that can be attached. Thus, a legacy, even though admitted by the executor, cannot be attached in his hands. (2) And where the effect of attaching a debt on a bond granted by commissioners under an act of Parliament would have been to give a priority to the bondholder over the others, and they had agreed to be paid pari passû, it was held that the debt ought not to be attached. (3) A mere contract to indemnify does not create a debt, and money that may have become due under it cannot be attached. This was held to be the case in Johnson v. Diamond,() where a party had given the nominal plaintiff, in an action brought on his behalf, a bond conditioned to pay the defendant in such action all the costs the plaintiff might become liable to pay; costs having been

(1) C. L. P. Act, same manner as a

1 Will. 4, c. 22.

1854, s. 60; the examination is conducted in the vivú voce examination of witnesses under the

(*) McDowall v. Hollister, 25 L. T. 185.

(3) Kennett v. The Westminster Improvement Commissioners, 11 Exch. 349.

(*) 24 L. J. 217, Exch,

taxed against the plaintiff, the court held that the amount of such costs did not constitute a debt in the hands of the obligor of the bond, and could not be attached by the defendant, the judgment creditor. A superannuation allowance granted by the East India Company to a servant of the company, under the 53 Geo. 3, c. 155, s. 93, is a gratuity and not a debt, and cannot, therefore, be attached.(1)

2. Debt attachment book.]-By the C. L. P. Act, 1854, s. 66, it is provided that "in each of the superior courts there shall be kept at the Master's office a debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise, and the mode of keeping such book 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."

3. Application for attachment.]-The application for the attachment may be made either before or after the oral examination of the judgment debtor. It is made to a judge, and is ex parte, and upon an affidavit of the judgment creditor or his attorney, stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that some other person is indebted to the judgment debtor, and is within the jurisdiction. (2)

The following may be the form of such affidavit

In the Q. B. ["C. P.," or "Exch. of P."]

Between A. B., plaintiff, and C. D., defendant.