ment to wait for the execution to issue? Is there not a hardship in this, if he is willing to pay immediately, and, is not the legal liability to pay, equivalent to a payment under actual execution? I will not examine whether it be so or not, because, I am penned in by the custom itself. If the custom be not merely, that judgment shall issue, but that the payment shall be made after execution issued, then you must pursue the custom strictly. The custom requires, that execution shall issue, and, if it be a hardship, it is a hardship growing out of the custom, and only proves the custom to be hard; but, inasmuch as the party must pursue the custom, the enquiry always comes round to the same point, namely, what is the custom? and the custom is, that the payment must be after execution. Upon both grounds then, first, because I think that this is not a compulsory, but a voluntary payment; next, that it is not a parting with the money belonging to Wetter and Co., because the money, is still money in the hands of Rucker and Co., I think that the plaintiff is entitled to judgment. PARK J. I should not add a word upon this, after his lordship has so fully entered into the whole of the argument, were it not to say, that, in coming to the same conclusion, I wish to be considered as having done so on the same grounds, and not upon the ground pressed upon us from the bar, of the necessity of entry of satisfaction upon the record. I do not think it is necessary to enter into that; but, of this I am quite clear, that, upon the custom, in every point of view, it is necessary, not only that the judgment should be that execution shall issue, but that an actual award of execution should be made. It is impossible to say, upon the statement of the case, that there has been a payment. It is impos sible to call that a compulsory payment, which is paid out of my 1820. WETTER บ. RUCKER, 1820. WETTER v. RUCKER. my pocket, into the pocket of another party, that party undertaking to return the money in case a proceeding should fail. The case of Buller v. Harrison has, I believe, been acted upon invariably ever since it occurred. If Rucker and Co. had intended to part with this money; if there had been a payment made, or a rest in the account, as that case states; such facts would show the bona fides of the transaction, and, a transfer in the books, might, under those circumstances, be a payment: but, I repeat, it appears impossible to say, that, when aman stipulates to have his money back again if a proceeding should fail, there has been a payment. Then the question is, whether there has been a compulsory payment? It cannot be sufficient, that there shall be a notice by the attorney, not accompanied by certificate of the officer of the court; a judgment is obtained against the Plaintiffs, five days after that event; they being in Switzerland, might have been advised of the proceedings, and might have sent to put in bail; but this procecding begins in the month of April, 1815, the money is paid in December, 1815, and it does not appear, that Messrs. Wetter ever heard one word on the subject. Under these circumstances, I think the justice of the case goes with the law. It BURROUGH J. I think there is no colour for calling this a payment; for no man can dispose of another person's money, without his consent, and, I am of opinion, that this is not a bona fide payment of the money. turned on a certain condition, and the whole manner and shape of the transaction appears to me to want bona fides. If this payment can be supported, it must be supported on a custom which, we know, is against the common law; it obtains in London, Bristol, and Exeter, and in no other places. We know that all the customs of London have been confirmed by act of parliament; and and a great number of those customs could not be sustained but for the act of parliament. This is a custom of a very extraordinary kind; and, therefore, must be watched and strictly adhered to. It is a custom to dispose of the property of men without their knowledge, and, therefore, we ought to see, that it has been correctly pursued. Now, we are bound by the report of the custom as certified by the Recorder; we cannot stir out of that, it is the same as an act of parliament to us. It was originally certified by Sterkey the Recorder, in the 22 Edward 4. (a); and that certificate is stated in the year-book, to be that the Plaintiff shall have judgment against him, and that the garnishee shall be quit against the other, after execution sued by the Plaintiff. I can see much reason for the custom being so; because, where execution has actually issued, there can be no collusion or management at all, but the whole effect of the payment is had. The money is then paid to the creditor, and the custom, as it is expressed, is," that he shall be quit of the other after execution sued by the Plaintiff." Now, looking at this record, we see, that execution never has been sued; but the attempt is to make out a payment in the same manner as if the execution had been sued. The custom must be strictly pursued, in order to make this a payment. Under these circumstances I agree entirely with my lord and my brother Park, that, as the custom has not been pursued, this is not a payment. RICHARDSON J.-I agree with the Court on both points: First, I think that this is not an actual payment. It is argued, that a transfer in account is equivalent to an actual payment of the money; I apprchend it must be such a payment as discharges the party paying, and binds the party receiving: but this is only a con VOL. I. (a) 30. b. ditional 1820. WETTER ข. RUCKER. 1820. WETTER V. ditional payment, that, if the proceeding fails, it shall go for nothing. The proceeding does fail, I apprehend, by the filing of the bail within the year and a RUCKER. day, and the attachment is dissolved. My brother Bosanquet argued, that the failing of the proceeding means a disprover, on putting in bail, of the existence of the debt. In my opinion such is not the meaning; but, the putting in bail and dissolving the attachment, and I think that the payment goes for nothing. I think it unnecessary, therefore, to consider how far in certain cases a payment may be made in account: - undoubtedly it may be so made, if all the parties concur in the payment, or in certain circumstances, where the party acting upon it has taken measures; but the money still continues in the hands of the Defendants, they will pay it to the Plaintiffs, and they will be discharged of that transfer in account, as against Reyer and Co. Secondly, I also think this is not a payment by compulsion within the meaning of the custom. There are many cases, in which payment by a man may be considered as compulsory, even without process of law issued against him, where the payment is made under a legal liability; but, here it is part of the custom, that there shall be not only an award but an actual execution issued. That appears to be the custom, as far back as it is traced in the year-books; and it is certified by Sterkey, that the party shall be discharged on execution issued. That, I apprehend, means execution executed, and the reason appears to me to be strongly in favour of considering that as part of the custom, namely, because it will appear upon the record, that there has been payment obtained from the garnishee, by virtue of which, and by the record, the original Defendant may be able to defend himself against any future demand on the part of the Plaintiff. Undoubtedly it appears from the authority cited from Dyer, that the mere judgment of the Mayor's court is no bar at all to the original cre ditor ditor proceeding, as he might have done, against his original debtor, and obliging him to pay; there must be something more than a judgment: What more, then, is necessary? An execution executed, and I think the custom requires that, in order to render the payment compulsory, and to discharge the garnishee; otherwise the original Defendant would be placed in this difficulty, that, being sued, he would have no means of proving that any thing had been done, but the original entry of judgment; and, perhaps, his only means of obtaining further knowledge would be, by a reference to the books of the garnishee, to which he might or might not have the means of access. I think, therefore, that, in this case, judgment ought to be for the Plaintiff. Judgment for the Plaintiff accordingly. 1820. WETTER v. RUCKER SELBY V. CRUCHLEY. Feb. 9. siding out of PELL Serjt. showed cause against a rule nisi ob- A defendant in tained by Lens Serjt., calling on the Defendant in replevin rereplevin, on distress for rent, to give security for costs, the jurisdiction on the ground of his residing abroad out of the juris- of the court diction of the Court, he having, on application made is liable to give to him, refused to give such security. The rule was resisted, on the ground, that the application to the Court was of the first impression, no such application having ever been made in the case of a Defendant; and that though a Defendant in replevin might, in some respects, be considered a Plaintiff, yet he was usually, as in this case, a landlord, whom the Court security for costs. |