The Sun.
London, England, 1801-08-11 00:00:00

LAW -REPO-RI%

• MAYOR's COURT, GUILDHALL, LONDON,
• JULY IF, 1801)
BEFORE SIR JOHN WILLIAM ROSE, KNIGHT, RECORDER,
AND A STEcIAI: JURY (31 MERCHANT'S. -
KEIsPT AND•cO. SMITH.
•
This proceeding arose out: of the Custom of Fo-
reign Attachment in , London. We will briefly
state-the nature of this custom, which appears of
cOnsiderable importance-to, the,Comnierch4 World.-
' It appeared, from the opening. of Mr. Serjeant
StIEPHER xi, -leading COunsel for the Plaintiffs, that
by the Custom of Foreign Attachment in London,
a Creditor may attach the monies and goods of his
Debtor- in the hand ,of a third person (denominated
the Garnishee) in order to compel the Debtor to
appear and give bail to. answer .his Creditbr's de..
mand if he neglects to appear and give such bail,
the monies or goods,, thus attached, are condemned
and paid,- or delivered over, to the Creditor in.satis-
fgtion of his-debt.'

From the Record of the proceedings, .and the
Evidence adduced in this cause, it. appeared, that
_

peter Speke, Esq. 'of Calcutta, in the East Indiet,
,being indebted to Messrs. Kent and Co. in '1466!.
they, on an Affidavit of Debt for that sum, corn-
Menced their anion in the Mayoris Court, London;
against Speke, and thereupon attached, in the hands
of Messrs. John and William Smith, all debts due
froth them, ,and all monies, goods, and effeas i-n
their handc !valeingina to Spoke_ to answer the ,1 ht
due-from him to Kent and Co: That MeSSrs. Kent
and Co. might be enabled to proceed in this Attach-
ment with circa, they filed their Bill on the. Eqnity
side of the Mayor's Court, against Messrs. Smiths,
to discover what property they had in 'their hands
belonging to Speke, subject to be attached ; to this
Billy on the .7th November, I Soo, Messrs. John
and William Smith put in an answer, stating, that
they had not in their hands jointly any property
belonging to Speke, but that John Smith, who alone
was Agent for Speke, had in his bands belonging
' to Speke a balance of 60081.. and upwards ;' but that
on the loth of Septeniber preceding, an ,anion had
been commenced in the Court of King's: Bench, at
Westminster, by Speke, against the said John Smith,
-for the recovery of the.saidbalance, and that a Judg-
ment had been signed therein for ticcol. and upwards.
The Attachmnt in the hands of John and William
Smith jointly being -improperly made, it was -.aban-
tioned ; and it being - apprehended -that the anion
in the King's Bench, by Speke against John Smith,
had been commenced without the direCtion of Speke,
and was set up, and intended to be used,, merely
for the purpose of proteding the mo6ies of Speke
against -Attachments, in the hands of John Smith
alone. On'the 7th of November, theday on which
the 'answer was pnt, the Attorney of Kent and Co.
notwithstanding the aftion in . the King Bench,
caused an Attachment to be made in the hands of
John Smith separately, and a second Bill was filed
for 'the like purposes as the first, against John
Smith, who in his answer .thereto admitted that he
had in his hands'.a balance of 6octol: and upwards,
belonging to Speke, and again stated. the anion and
judgment against him in the King's Bench, at the
suit of Speke, and thai since the making of the last
Attachment, he had received direftions from Speke,

by letter, dated •i sth SepteMber preceding, to apply
the money in .his hands tb the payment of Mt%
Speke's: debts.
The Counsel -,for _the Plaintiffs-i: Mr. Serjeant

SHEPHEPO, with Messrs. -Krcow LYS and REY-
NOLDS, two of the City Pleaders, contended,- that
on a reference to dates, and other circumstances ap-
pearing "on the face of Smith's colon answer, -which
was in evidence, it was manifest That the action in
the King's tench, set up 'to bar a recovery •in this
Attachment, could 'not have been corruneffeed by
the direC'tion of Speke, the Plaintiff, in such aCtion,
therefore it was in this case of no avail :—and -as
to the other ground of defence it was contended,
_that direction to apply money -generally in pay-
Ment of the Owner's debts, 'would not prevent the
same from being attached,' according to the custom
of London, by the Owner's -Creditors. ,
The Counsel for the Garnishee,- Mr. Serjeant
BEST, with Messrs.' Vii-ILLANT and W.A.Tsoii, the
other two City Pleaders, insisted, 'that from any,
thing which had appeared to the-contrary., the ac-
tion in the King's Bench, againit SMith, the Gar-
nishee, might be •a fair and
„bona fide proCeeding;
and if so, it was 'a bar to this Attachment ; and that
the direCtions 'contained in Speke's letter was an
appropriation .of .the money attached, and that
Smith, the. Garnishee,'held the same in trust. foi the
persons to wllom the same had been direCted to.be
paid, and, therefore; an Attachment ofthis money,
as the property of Speke', could not be sustained. - -
Mr. -RECORDER, in his observations on the Cus-

tom of Foreign Attachment in London, and on the
fa as and Law arising- out' of the present cases,
stated, that Oils custom, in point of4ate,• appeared

to be coeval with the common Law of the
That a confirmation of this r.tstom had, in express

terms, been grained to the.. City of London, by
Royal Charter, so early as Henry thelfirSt, A. D.
too.--That it had' bcen,ratified and confirmed to

the City by dived Ans of Parlianunt in genetal
I..ith other City Customs and Privileges.—That it
had, in innumerable instances; been recognized blir'
the Courts in Westminster-Hall, as a,good and valid
Custom ; and that this custom which gives to the
Citizens, in the heart of ,their own City, the means.
of recovering their debts froni Foreigners and
Strangets residing in a distant land, tnay, perhqs,
in no small' degree', have. contributed to.that Com-
mercial superiority which.this city now holds over
all other Cities in the world. On this particular
case he observed, that the dire&ion given by'Speke
to Smith, was not, in his opinion; a good defence
to this Attachment. Tt had in many cases, by his
predeeessois, judges'of that Court, been held, that
an Assignment, or diretions to pay money to Cre..
ditors generally, would not prevent the money thtts
assigned or directed to be paid from being attached
by this custom ; that,, therefore, the question in
:his case seemed to rest upon the aetion stated to
been commenced in the King's Bench, by