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the introductory part of this plea mentioned, was the very same and identical sum of 3471. 7s. 2d. so attached and taken in execution by the said Collins, by virtue of the judgment aforesaid. Verification; with a prayer of judgment, if Crosby the now plaintiff ought further to maintain his action thereof, &c.

As to the residue of the causes of action in the declaration mentioned, Hetherington brought into court 861. 16s., alleging that Crosby had not sustained damages to a greater amount than the said sum of 86l. 16s. in respect of the said residue of the causes of action in the declaration mentioned. Verification.

General demurrer to the first plea (a); and joinder. As to the second plea, the plaintiff replied by taking the money out of court in satisfaction and discharge of the causes of action in the introductory part of that plea mentioned.

Channell Serjt. (with whom was Russell Gurney), in, support of the demurrer. The first point is, whether the custom set up in the plea is good, which alleges a right to summon any other person as garnishee without averring such other person to reside, or to be, within the jurisdiction of the lord mayor's court. Blacquiere v. Hawkins (b) shews that the courts will take judicial notice of such customs of the city of London, as have been once duly certified by the recorder. The question is what is the custom of London with respect to foreign attachments. It is said in a note to Turbill's case (c), that "this custom was certified by Starkey, recorder of London to be, that if a plaint be affirmed in London before, &c. against any person, and be it returned nihil,

(a) The point marked for
argument was, "The plain-

tiff means to contend that the
first plea is insufficient, for not
stating that the garnishee re-

sided within the jurisdiction of
the Lord Mayor's Court."

(b) 1 Dougl. 378.
(c) 1 Saund. 67.

if the plaintiff will surmise that another person within the city is a debtor to the defendant in any sum, he shall have garnishment against him, to warn him to come in and answer, whether he be indebted in the manner alleged by the other; and if he comes and does not deny the debt, it shall be attached in his hands, and after four defaults recorded on the part of the defendant, such person shall find new surety to the plaintiff for the said debt, and judgment shall be that the plaintiff shall have judgment against him, and that he shall be quit against the other after execution sued out by the plaintiff. 22 Ed. 4. 30 b. 1 Roll. Abr. 554. pl. 4. Godb. 400, 401. pl. 483., Hern v. Stubbs. But if no exccution be sued out, the plaintiff may go on with the suit below, and the defendant may sue his debtor notwithstanding the judgment; Dy. 83. a. (a); so certified by Brooke, recorder, 7 Ed. 6." In 1 Rolle's Abridgment, Customs de London (K.), p.554. pl. 3. 7 Viner's Abridgment, Customs of London (K.), pl. 3. the custom is thus stated. (b) "If in bar of an action a foreign attachment is pleaded, that the custom is, that if any man brings his action against another for any debt, and upon a return made that he non est inventus and quod nihil unde, &c., and thereupon surmises that any other is indebted to the defendant in such a sum, and thereupon to pray process to attach the sum in his hands, and to defend ita quod, the defendant appears to answer the plaintiff, and the serjeant returns that he hath attached him to defend the sum in his hands, and the defendant does not appear at four courts after &c., that judgment shall be to recover it in his hands &c.; this is no good custom without a surmise that the stranger who is indebted to the plaintiff is within the jurisdiction of the court; and the return of the serjeant is not sufficient that he hath attached him to defend it in his hands, for perhaps the serjeant in(a) Dyer, 82b

(b) See Bruce v. Waite, antè, Vol. I. 25.

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tends that he may attach the debt in his hands, though he be not within the jurisdiction of the court, and his return shall not bind the party without an actual surmise thereof by the party himself. Trin. 11 Car. B. R. between Sir Nicholas Halse and Walker; adjudged upon a demurrer, where a foreign attachment in Exeter was pleaded, which was all one with the custom of London, and all customs there confirmed by parliament in the time of Queen Elizabeth." These authorities are supported by Com. Dig. Attachment (Foreign) (A.) (D.) Customs of London (N. 1.). In Tamm v. Williams (a), it was held that in a plea of foreign attachment, it must be stated that the garnishee is resident within the jurisdiction of the lord mayor's court; and in Manning's N. P. Digest, 350., it is said to have decided in a case of Traub v. Schmidt, that in order to give the lord mayor's court jurisdiction, it is not sufficient that the garnishee resides within the city, but the cause of action must also have accrued there. (b) Banks v. Self (c) will

There the plea was

probably be cited on the other side.
the same as here, and, according to the marginal note,
it was held not to be necessary to aver that the plaintiff
in the principal case was indebted to the plaintiff below
within the jurisdiction of the mayor's court. That pro-
position has no application to the present point, for a
garnishee cannot dispute the debt in the court below; and
it would appear that the objection now raised was not
taken in that case. [Tindal C. J. referred to Huxham v.
Smith (d), as confirmatory of Channell's argument.]

(a) 2 Chitty's Rep. 438. 3 Dougl. 281.

(b) There, the defendant in the foreign attachment having brought his scire facias to discharge himself, pleaded that the cause of action did not accrue within the jurisdiction. The plaintiff replied as to part, that the garnishee resided within

the jurisdiction, which replica-
tion was on demurrer, held, by
the recorder, to be bad; and a
writ of error upon that judg-
ment not having been pro-
secuted for nine months, was
superseded at the instance of
the defendant.

(c) 5 Taunt. 234. n.
(d) 2 Campb. 19.

Another objection to the plea is, that the plea does not state with sufficient certainty that execution was actually executed against the defendant as garnishee, in the lord mayor's court. The question is, whether the plea avers more than judgment, and award of execution, or it shews that execution was executed. Upon this point the learned serjeant cited Roberthon et Uxor v. Norrey King-at-Arms (a), Wetter v. Rucker (b), and Magrath v. Hardy. (c)

Talfourd Serjt. (with whom was Cowling), contrà. The first objection seems to be, not that the custom set out in the plea is bad, but that it differs from that certified by Starkey. It is submitted that such a certificate is only given with reference to the particular case, and to particular issues; see Plummer v. Bentham (d); and is not a certificate for all time; of which the court will take judicial notice. [Tindal C. J. Though a custom be certified in a particular case, that does not make it less general when once certified.] In the certificate of the custom given by Brooke, recorder, in Roberthon et Uxor v. Norroy King-at-Arms, no reference is made to the necessity of the garnishee residing in the city of London. [Manning Serjt., amicus curiæ, pointed out that Starkey, recorder, certified a different custom from that pleaded. dal C. J. The important point is that suggested by my brother Manning, that the custom as certified is different from that pleaded. The reason of the thing is in favour of the garnishee residing in London; otherwise one cannot see how the process of the court can be served.] The plea states that money was attached in the hands of the defendant as garnishee; he must therefore have been within the city when attached. It is necessary

(a) Dyer, 82 b.

(b) 1 Brod. & B. 491. 4 J. B. Moore, 172.

Tin

(c) 4 New Cases, 782.; 6 Scott, 627.

(d) 1 Burr. 248.

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that the debt should be attached, but it is not requisite
that the garnishee should reside in London; for it will
be sufficient if he is attached when within the city for a
temporary purpose; and the words used by Starkey,
"within the city," by no means imply that the party must
be resident there. [Erskine J. Your plea does not state
that the attachment was within the city.] According to
the practice it can only take place within the city. Sup-
posing the court, as matter of law, to take notice of the
custom as certified, the decision in Morris v. Ludlam (a)
would
appear to be wrong. It was there held, that if a
plea of foreign attachment state, the custom to be, "that
if any person be or hath been indebted to any other
person within the said city, &c., it ought to aver that
the defendant in the plaint was indebted to the plaintiff
within the city. According, however, to Starkey's certifi-
cate no such allegation is requisite. If the argument on
the other side be correct, Starkey's
the force of an act of parliament.
cannot be put higher than a private act; for it relates
only to the city of London. The judges must take no-
tice of it ex officio, in the same manner as they take
notice of the custom of gavelkind. Tamm v. Williams (b)
and 1 Rolle's Abridgement, 554. pl. 4. (c) seem to be di-
rect authorities that the plea ought to have stated that
the garnishee was within the jurisdiction of the lord
mayor's court. You had better amend.]

certificate will have

[Tindal C. J. It

Leave to amend on the usual terms.

The plea was afterwards amended, by introducing at the* antè, p. 939. the following allegation. "And the defendant avers that the said serjeant had duly attached

(a) 2 H. Bl. 362.

b) 2 Chitt. Rep. 438. 3 Dougl. 281.

(c) Translated, 7 Vin. Abr.

232. pl. 4., referring to the certificate of Starkey, recorder, in 22 E. 4. fo. 30.; as to which, see antè, Vol. I. 39. (b), (c).