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76, line 6 from bottom, for (f) after Regina v. Wilson, read (c), and dele note (S).
"justices,” and insert a comma after “bench.” Id., line 3 from bottom, dele the comma after “Queen." 474, line 11 from bottom, insert "on" before“ behalf.” 635, line 12, for ( read [ 647, in the head note, for amount to 251.,” read “make up the required
amount." 683, line 23, insert a comma after “ Westgate." 712, line 4, for “ leids” read “ leies" 836, After the last marginal point, insert “ Departure.”
The Judges who usually sat in Banc in this
HARTLEY against SHEMWELL.
April 16th. MARPLES against HARTLEY.
Procedure Act, H. recovered judgment in an action against S., and issued a writ of 1854, s. 61. fi. fa., under which S.'s goods were seized. On an interpleader issue Garnishee, between H. and M., who claimed the goods of S. which were so seized, ExtinguishM. had a verdict, and obtained an order for his costs, which were taxed. ment of debt. H. issued a writ of ca. sa. against S., who was arrested. M. obtained a Judge's order, under sect. 61 of The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125., to attach the debt due from S. to H.; and the amount was allowed in account between M. and H. S. having obtained an order to be discharged out of custody in the action of H. v. S. : Held, that M. was a judgment creditor of H. within the meaning of sect. 61. : and that the arrest of S., the garnishee, did not extinguish his debt to H., or bar M.'s right to attach it under that section.
IN the first of these two actions, which was for goods sold and delivered, the plaintiff Hartley, on 30th
E. B. & s.
June, 1860, signed judgment by default for 271. 58. A
an order that, on payment of the sum of 1l. 6s., the 1861. plaintiff's costs of execution in the action of Hartley v.
HARTLEY Shemwell, to the plaintiff in that action, or to the sheriff
SHEMWELL. on his behalf, the defendant Shemwell be discharged out of custody as to that action. Shemwell was accordingly HARTLEY. discharged out of custody. The sum of 301. 5s. was not actually paid : but Marples had given credit to Hartley for that sum against the 671. ls. 6d., the costs of the interpleader issue.
Field now moved for a rule calling upon Marples and Shemwell to shew cause why the three orders of Bramwell B., dated respectively 15th, 16th and 20th March, 1861, should not be rescinded, all proceedings thereunder set aside, and Hartley be at liberty to issue a new writ of ca. sa., and arrest Shemwell for the amount of the judgment debt. The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. s. 61., provides that "it shall be lawful for a Judge, upon the ex parte application of such judgment creditor either before or after" "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 to the judgment debtor shall be attached to answer the judgment debt.” In order, therefore, to entitle Marples to an order for an attachment under this section, it is necessary for him to establish, first, that he is a judgment creditor of Hartley, and, secondly, that there is another person indebted to Hartley. Now Marples is not a judgment creditor of Hartley within
June, 1860, signed judgment by default for 277. 58. A writ of fi. fa. was issued on that judgment; and, on 3d July, 1860, certain goods of the defendant Shemwell were seized in execution. At the time of the seizure the sheriff received notice from one William Marples of a claim to the goods. An interpleader summons was obtained on behalf of the sheriff; and Wightman J., on the hearing, directed an interpleader issue, Marples v. Hartley. This issue was tried, and a verdict found for the plaintiff. On 14th February, 1861, the plaintiff Marples obtained an order for the costs of the trial of this issue, which were taxed and amounted to 671. 1s. 6d. On 28th February, 1861, the plaintiff Hartley issued a writ of ca. sa. against Shemwell, who, on 20 March, 1861, was arrested. On 15th March, 1861, Marples obtained an order of Bramwell B., under The Common Law Procedure Act, 1854, (17 & 18 Vict. c. 125.), s. 61., to attach the debt of 271. 5s. (which, with costs, amounted to 301. 58.) due from Shemwell to Hartley. On 16th March, 1861, Bramwell B. made an order, under the same section, directing that Shemwell, the garnishee, should pay to Marples, the claimant, the sum of 301. 58. due from the garnishee to Hartley, the plaintiff in Hartley v. Shemwell, in part payment of the 671. ls. 6d., the costs of the interpleader issue, due from Hartley to Marples. On 19th March, 1861, Shemwell obtained a summons calling upon Hartley and Marples to shew cause why Shemwell should not be discharged out of custody, as to the action of Hartley v. Shemwell, the sum of 307. 58. (being the amount of debt and costs in that action) having been paid by the defendant, as a garnishee, to Marples, under the above orders. On the hearing of this summons, Bramwell B., on 20th March, 1861, made