degree, by judgment, bond or other fpecialty, if such specialty cannot be pleaded against one who attaches the debt due to, or the goods of an inteftate in the hands of another; if an adminiftrator had notice of the foreign attachment he might plead debts by judgment, bond or other fpecialty outstanding against the inteftate, but if the adminiftrator is to have no notice, and judgment be againft him and the Garnifhee in the foreign attachment, he will be guilty of a devaftavit.

66

66

I have not found any cafe at all like the prefent cafe except Harwood and others exécutors of Colbourn verfus Lee. Hil. 3 Eliz. Dier 196. b. which was thus," A citizen of London is indebted "to a foreigner by obligation, and the obligee is indebted again to the fame debtor by fimple contract, and the obligee makes "his executors and dies, the obligor, by the cuftom of London, "fhall have an action of debt against the executors of the obligee "in London, by his oath, that it is owing and a true debt which "the teftator in his life-time owed him, and upon a nihil returned nec eft inventus, he may make attachment of the debt which he "detains from the executors of his obligee for his own debt, upon four defaults recorded, according to the cuftom of foreign at"tachment, and furety found by bail, that if the executors within one year and a day cannot difprove the debt or reverse the judgment, &c. he fhall be difcharged of fo much of the debt which he owed by the obligation" (then the cafe goes on thus) quære bien" if this cuftom (although that it be confirmed "by authority of parliament generally, amongst other cuftoms of "the city in the 7th year of Richard the fecond) be good and lawful or not, and whether it holds place as well between foreigners as citizens, &c. because hereupon it was demurred in "law, and divers apparent faults were taken notice of in the plea; "and one especially, (to wit) because that where it was alledged "that the cuflom was, that the debt ought to be affirmed by the "oath of the party in curia Guildhalde it was pleafed to be done "in curia vicecomitis, in computatorio ubi querela primo affirmata "et levata fuit, et ubi judicium datum fuit, the which judgment "alfo was, that the plaintiff fhould have execution of the debt "attached in his own proper hands, without any judgment that "he doth recover the debt, &c.; at length the parties agreed by "the interpofition and at the requeft of the recorder and the "city counfel." The like matter, Eafter 7 Eliz. Roll. 1540. between Marshall and Wilkinson, and Hil. 8 Eliz. Dier 247. a. and Hil. 18 Eliz. Roll. and Mich, 18 Eliz. between Makeworth and Browne in the county of Nottingham, where for want of an averment to find pledges according to the cuftom the plea was infufficient.- -With refpect to this cafe in Dier, it is obfervable that it was not determined, for the parties agreed; alfo it was

in the cafe of an executor, that executors were at common law, and are co-eval with the cuftom, viz. beyond time of memory; but the cafe at bar is that of an adminiftrator, and adminiftrators 1 Roll. Rep. were by ftat. 31 Ed. 3. c. 11. 105.

bond by an

adminiftrator for 261.

tached the

The cafe of Hodges verfus Cox, Pafch. 43 Eliz. Roll. 1905. Cro. Debt on a Eliz. 843 was debt by an adminiftrator upon an obligation of 267. made to the inteftate. The defendant pleaded that he had commenced an action of debt of 30l. against the plaintiff by the name of administrator to her husband, before the fheriffs of London, and upon nihil returned, &c. that debt was attached in his Plea that dehands, and pleaded all the custom of foreign attachments in Lon- fendant at don, and that by judgment this debt was attached in his hands, debt in his &c. and it was thereupon demurred, and adjudged to be no plea; own hands, ft, Because the plaintiff fues here as adminiftratrix to her huf- held till on a band, and it does not appear by the bar that the debt recovered demurrer. in London was the inteftate's debt, but only that fhe was fued there as adminiftratrix: and that might be, although the were fued for her own proper debt; for one may be fued by the name of Heir for his own proper debt, and fo the inteftate's debt cannot be attached for the proper debt of the adminiftratrix. 2dly, It is not fhewn that the debt recovered in London was a debt by fpecialty; otherwife it is not demandable against an adminiftrator. 3dly, It is not fhewn that the custom is, that if the inteftate was indebted to the plaintiff there, and the plaintiff was indebted to the inteftate, that by an action brought by the plaintiff there against an adminiftrator, this debt might be attached in the hands of the plaintiff there: but it is fhewn, that if it be teftified that the plaintiff was indebted to the fame perfon that he fued, that then he might attach; but here the defendant now, being plaintiff in London was not indebted to the plaintiff here, who was there defendant, but was indebted to the inteftate. 4thly, The judgment in London was de bonis propriis, which cannot extend to bonis inteftati, wherefore it was adjudged for the plaintiff.

tachment in

Serjeant Jephfon, alfo cited Paramor verfus Paine, Cro. Eliz. The debt on 598. (to fhew that the debt upon a foreign attachment in London a foreign atis traverfable) which was debt for 40%. the defendant pleads, London is that the plaintiff was indebted unto him in 40l. and he there- traversable. fore fued a plaint in London; and there this debt in demand was attached in his hands; and he pleaded the foreign attachment in Leon. 321. certain, and the judgment thereupon, c. The plaintiff replies cafe 452. that he was not indebted to the defendant in 40l. nor in any other fum; and it was thereupon demurred by Tanfield; for the debt is not now traversable, because it is recorded in London, et non difrationatur within the year and day as it might be by the

custom:

2 Lutw. 981. Lev. 306.

cuftom: but Coke moved that the replication was good; for whether he were indebted or not, is very well iffuable; for if he were not indebted, they in London could not attach the plaintiff's debt by a foreign attachment for nothing; and fo was the opinion of the whole court. And Fenner faid that in the Common Bench 22 & 23 Eliz. it was fo ruled in one Bray's cafe; wherefore it was adjudged for the plaintiff, And fee Cro. Eliz. 830. Coke verfus Brainsforth the fame point refolved.

He concluded for the plaintiff, that foreign attachment does not lie in the cafe of an adminiftrator. 2dly, That the minutes of a record given in evidence is infufficient to prove the judgment on a foreign attachment, and laftly, that notice ought to be given of the foreign attachment, because it is fet off against the plaintiff by way of payment.

Serjeant Burland for the defendants-The principal queftion is, whether an adminiftrator is within the cuftom, viz. whether a 1 Vent. III. debt due to an adminiftrator can be attached? This has been determined, and the cafes cited against me, are for me, and which I rely on. In the cafe in Dier 196. the specialty debt was attached to pay a fimple contract debt; the quare, or doubt in the cafe, was only whether the party could attach goods in his own hands, and whether the custom extends to foreigners as well as to citizens, but fee the margin of Dier 196. per Noy. In Spink verfus Tenant 1 Roll. Rep. 105. it is adjudged that a debt may be attached in the cafe of an adminiftrator. Sce Comyns. Dig. tit. Attachment, feveral cafes to prove this. And 1 Ld. Raym. 56.

A cuftom contrary to

Lord Chief Juftice-The great objection is, that no notice has been given to the original defendant in London (the now plaintiff), nor any procefs awarded against the Garnifhees (the now defendants), till after four defaults by the original defendant.

Serjeant Burland-There is no notice given to the defendant in the plaint in London in any cafe whatsoever, and indeed if fuch defendant refide out of the city he cannot have notice given to him; the ufage and practice is for the ferjeant at mace to make a return of nihil & non eft inventus, ore tenus; this is not hard upon the now plaintiff, but it would be very hard on the now defendants, becaufe if they cannot avail themselves upon this foreign attachment, they will be obliged to pay twice.

Chief Juftice-Cuftoms of particular cities may deviate from the courfe of the common law, but a custom contrary to the first the first principles of juf principles of juftice can never be good; fo this custom not to Jummon or give notice to a defendant in a fuit commenced against him is contrary to the first principles of juftice, and (in my opinion

tice cannot be good.

as

as at prefent advifed) connot be good. The twenty-feven colonies abroad cannot make a law contrary to the law of England, but they may make any law agreeable thereto, and to the principles of juftice, but not contrary to the principles of juftice. If an adminiftrator be held to bail in London, he fhall be admitted to a common appearance upon removing the caufe into this court by habeas corpus: but that creates expence and trouble. It 2 Lev. 204. is faid the creditor of a Garnifkee may be in the West Indies; but See 1 Lev. Lane well knew the now plaintiff Mrs. Fifher lived in London, 245, 268, and every one is prefumed to know his creditor. My Brother Burland contends that no notice is required; fee Coke's Entries.

This cafe was argued again at the bar in Hilary term laft, by Serjeant Leigh for the plaintiff, and Serjeant Glynn for the defendant, but nothing new could be faid on either fide; fo the court took time to confider, and in this prefent term gave judg ment for the plaintiff, to the effect following.

Curia. The questions made at the bar were, 1. Whether in the cafe of an adminiftrator, a debt due to the inteftate can be attached by foreign attachment by the custom of London, or whether there is any fuch cuftom in fact?

2. If there be fuch a custom, whether that cuftom is good in point of law?

As to the cuftoms of London, they may either be afcertained by a jury, or certified to this court by the mouth of the recorder; yet if the custom be against law it is void.

But admitting there is fuch a cuftom in fact as is now infifted on by the defendants; and also that the fame is a good and valid cuftom in point of law; yet there is another question in this cafe, and that is, whether there appears upon the ftate of this cafe to be fuch a judgment on the foreign attachment as will authorize the payment of this money to 7 anfon; for if the judgment be erroneous, it will not warrant the payment.

The now plaintiff Mrs. Fisher refiding in the city of London is fued in London by procefs whereof fhe has no notice, and does not appear, whereupon the officer attaches the money of John Fisher the inteftate in the hands of the now defendants Lane and others, that is to fay, attached Mrs. Fisher by the debt owing to her by a third perfon, i. e. the officer diftrains her to appear, if the appears there is an end of the foreign attachment; it is like the process in the courts at Westminster, by way of distraining illues to compel àn appearance.

Latch. 208.

It is not neceffary to repeat particularly the evidence of this judgment in the foreign attachment, which is before minutely flated, and confifted only of minutes taken from a book kept for that purpofe, and thofe minutes which the 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 faid to be for the default of Mrs. Fifher's appearance; fhe made no default, for it appears he never was fummoned or had notice, which is contrary to the principles of juftice; in fhort, the whole court were of opinion that judgment must be entered for the plaintiff Mrs. Fisher, and accordingly the poflea was ordered to be delivered

to her.

Nota. For pleadings of judgment, upon foreign attachments in London, fee Coke's Entries 139. b. Vidian 19. Liber Intrationum 164. 212. 22 Ed. 4. 30. a.

Lackington West Kitchen and others, affignees of Anderson a bankrupt, 7mf.538.

What re-
covery fhall
or fhall not
be a good
a fub

fequent
action.

2 Black. Rep.

827. S. C.
[To an action
of indebitatus
affumpfit for
the value of
goods, a judg-
defendant in
trover for the
fame goods,

ment for the

may be

pleaded in

bar: by means

of proper
averments.]

The cafe stated.

THIS

verfus Campbell, Efq. C. B.

HIS was an action upon the cafe, in which the plain. tiffs, as affignees of the bankrupt, declare, that the defendant being indebted to them in 2500l.. for fo much money had and received by him to their ufe as affignees as aforefaid, promifed to pay the fame upon requeft; and that although the defendant had been often requefted fo to do, yet he had refufed, to the damage of plaintiffs of 2500l.

The defendant pleaded two pleas. ft, Non affumpfit, and thereupon iffue was joined. 2dly, A recovery of 860l. 10s. by the plaintiffs as affignees as aforefaid, against the defendant in the King's Bench, in an action upon the very fame promife as is fet forth in the prefent declaration; to which the plaintiffs replied, that the promife upon which they brought the prefent action, is a different promife from the promife mentioned in the plea, and upon which the faid recovery was had, and thereupon iffue was alfo joined..

This caufe came on to be tried before Lord Chief Justice De Grey, at the fittings in London after laft Trinity term, when a verdict was found for the plaintiff, with damages and cofts, fubject to the opinion of this court upon the following case;

Which states, That Richard Anderson the bankrupt being indebted to the defendant in 2000l. for money lent, for which he

(the