1838. To an action of trespass, a plea alleging WETTENHALL V. GRAHAM. ADDISON had obtained a rule nisi, for setting aside the interlocutory judgment, signed in this action, for irre the insolvency gularity, against which, of the plaintiff, since the tres pass, but before action brought, and that his W. H. Watson shewed cause. It was an action of tres estate is vested pass; and the declaration charged the defendant with having broken and entered a certain messuage or warehouse belonging to the plaintiff, and with having seized, in the provisional assig nee:-Held, not an issuable plea within the meaning of a Judge's order to and taken, and carried away the chattels of the plaintiff, and with having so disturbed him in his peaceable posplead issuably. session of the premises. The defendant was under terms to plead issuably, and to take short notice of trial, but he afterwards pleaded six pleas, and the plaintiff signed judgment. The question was then, whether any one of the pleas was not issuable, for if that was the case, the judgment was regularly signed. Waterfall v. Glode (a). The fifth plea set out, that the plaintiff being a prisoner in Whitecross Street prison, for and by reason of certain debts, did duly and according to the provisions of a certain act, &c., petition the Court for the discharge of insolvent debtors, to be discharged from his liabilities, and that he did then duly execute a conveyance and assignment of all his right, title, and interest in his real and personal estate and effects, in trust, to the provisional assignee, and that it was before the said conveyance and assignment that he had been damaged by reason of the said trespasses in the declaration alleged. And, that, after the committing of the said trespasses, the value of the said trust and estate, so conveyed and assigned, had been diminished and damaged to the full amount of the damage sustained by the plaintiff, by reason of the said (a) 3 T. R. 305. trespasses. To this plea, the plaintiff objected on the ground that it was not issuable, and it was besides contended, that no such assignment as that alleged would vest damages, in respect of any trespass, in the provisional assignee. In Clark v. Calvert (a), it was decided that trespass quare clausum fregit might be maintained against a stranger, by the tenant of the land for a trespass committed before his bankruptcy. It Addison, in support of the rule, submitted, that the question for decision was, not simply whether the plea was issuable or not, but whether the right of action, in respect of this trespass on the plaintiff's messuage, was not conveyed by the assignment to the provisional assignee. was a plea which went only to the damage of the personal effects of the plaintiff, and if the action had been for damage done to the goods of the plaintiff, the right to sue would have passed to the assignee. The personal estate would pass; so, therefore, the damage done to the personal estate must be the subject of an action by the assignees. This, however, was not the only question. The declaration had been delivered on the 30th of April, and on the 4th of May, the defendant obtained a week's time to plead; and subsequently, upon a summons being taken out for leave to plead several matters, an order was made, giving him leave to plead the pleas now on the record. It was the duty of the plaintiff therefore to object to the pleas before the learned Judge at chambers, and if the matter was contested there, the plaintiff would not be permitted to treat the plea as a nullity, and sign judgment. It was sworn besides, that the pleas were delivered on the 10th of May, and that no objection was then made to them; but they were retained until the 25th of that month, (a) 8 Taun. 742. 1838. WETTENHALL บ. GRAHAM. 1838. WETTENHALL v. GRAHAM. when they were sent back, and judgment was signed. The pleas therefore were treated as a nullity, after they had been approved of by a Judge. In Horsley v. Purdon (a), it was held, that a plea being delivered after nine o'clock in the evening could not be treated as a nullity, and a judgment signed on that ground, no notice having been given of the objection to the defendant, was set aside. It was unnecessary in the plea to allege the discharge of the plaintiff, but it was sufficient to state the assignment, and that was good, unless the petition was dismissed. Smith v. Coffin (b), and Staples v. Holdsworth (c) were both in point; and although in the latter case it was held, that a plea alleging the bankruptcy of one of several plaintiffs, was not an issuable plea, yet where there was only one plaintiff in the cause, the case was different. W. H. Watson, on the point of the allowance of the pleas before the Judge at chambers, contended that that was immaterial, and that the merits of the pleas were not decided there. Cur. adv. vult. TINDAL, C. J., on a subsequent day, said, that the Court considered that a plea alleging the insolvency of the plaintiff, was not an issuable plea within the meaning of the Judge's order, and that the rule must be discharged. 1838. M'GRATH V. HARDY. ASSUMPSIT for money had and received. There were several pleas on the record, but the only important one now for consideration, was the fourth. By that plea, the defendant alleged a custom in the Lord Mayor's Court, in the city of London, by means of which a judgment of foreign attachment had been obtained, under which, he had paid the money now sought to be recovered into the hands of one J. G. T., to whom the plaintiff was indebted. It appeared, that the practice of the Lord Mayor's Court was, that the party indebted was first summoned to appear, and, in the event of his not appearing, a return of nihil was made, and he might then be attached by money or goods of his in the hands of any person within the jurisdiction of the court. He was then called in four successive courts, of which calls a record was kept, when, if he did not answer, the garnishee or holder of the property was warned to appear, to shew cause why the plaintiff or garnishor should not have execution against him for the amount attached. If the garnishee then failed to appear, or did appear and plead, but judgment was given against him, the Court awarded execution to is sue, security being given that, if the original defendant should appear within a year and a day, and disprove the debt, the money should was held that the jury were not precluded, by the produc tion of the record of that court, from finding the real facts of the case. Without exe cution executed, the garnishee is not discharged. fact of an attor The mere ney being the partner of the attorney who acted for the garnishee in the Mayor's Court, does not render him incompetent to prove the custom of that court. a To a plea of foreign attach ment in the Mayor's Court, it is not a good replication that no notice was given to the that court. be returned to him. It was alleged, in the present case, that in accordance defendant in with this practice, one J. G. T., on the 31st January, 1828, made plaint in the Lord Mayor's Court, that the plaintiff (M'Grath) was indebted to him in the sum of 1,000l. within the jurisdiction of the court, and that a summons having been issued, a return of nihil was made; that it was then averred in the said Court, that the defendant was indebted to the said M'Grath in the sum of 500l., and process of attachment was therefore prayed; that process having 1838. M'GRATH บ. HARDY. been granted, on the 2nd February a return of the attachment was made, and that, subsequently, the said M'Grath was called in four separate courts, but that he made default, of which a record was kept; that process was then prayed and granted, to warn the defendant, as garnishee, to appear on the 7th February, and that afterwards, on the 7th July, he did appear to oppose the demand of the said garnishor, but that, proceedings being had, on the 20th July, 1830, the Court awarded judgment and execution to the said garnishor, security being given, in pursuance of the practice; that, subsequently, notice was given to M'Grath of the said proceedings, and that execution having issued, and having been executed, the garnishor acknowledged satisfaction. To this plea, the plaintiff replied, alleging that he had not received notice of the said proceedings; that the said J. G. T. had not execution of the monies of the plaintiff in the hands of the defendant, and alleging that the defendant paid the monies so as aforesaid alleged to have been recovered, not by compulsion of law, but by collusion and contrivance with the said J. G. T. On this, issue was taken, and the cause went down to trial. It was then shewn that the entries in the Lord Mayor's Court corresponded with the plea; but, from the testimony of Mr. Ashley, an attorney of that court, it appeared that, for the last twentyfive years, the proceedings alleged to have been necessary had never been absolutely taken, but that they were treated merely as a ceremony; that there was usually no summons issued to the original defendant, nor was there any return of nihil, but that all was done merely by an entry in a book kept in the Court. An objection was made to the reception of the evidence of this witness, on the ground that he was a partner of Mr. Wardell, the attorney who acted for Hardy, the garnishee, in the cause; but the learned Judge refused to admit this as a ground of rejection. It was besides shewn, that the plaintiff had |