Page images
PDF
EPUB

New Trial,

The Court of Error could, on the bill of excep- Motion for a tions, only award a venire de novo, or new trial, whereupon a third trial must have taken place before justice could finally be done.

It is difficult to believe that this extraordinary system of procedure should have been persisted in so long. The Common Law Commissioners could " see no reason why there should not be an "appeal on motions for new trials, on which the "most important and difficult questions are "decided;" and such an appeal has accordingly been given.

I shall endeavour to describe shortly, the nature of the proceedings.

Proceedings on Appeals on Motions for a New Trial or to enter a Verdict, &c. &c.

When a nonsuit or verdict has been directed by the judge at the trial, and leave reserved to move to enter a verdict or nonsuit, the rule, when moved for, is either refused at once, or, if granted, is a rule nisi, which, on cause being shown, is discharged or made absolute. have seen, the decision of the final; but now in all cases of verdict or nonsuit upon a point reserved at the trial, if the rule to show cause be refused;-or granted, and then discharged or made absolute, the party decided against may appeal (s. 34).

Hitherto, as we court has been rules to enter a

The party prejudiced by the ruling of the judge may always move for a new trial. The decision of the court in this case was formerly also final. Now, however, in all cases of motions for a new trial, on the ground that the judge has not ruled according to law*, if the rule to show

* Where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no appeal is to be allowed (s. 35).

New Trial,

Motion for a cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal,

&c.

Notice of appeal.

Bail.

Appeal case and proceedings.

provided any one of the judges dissent from the rule being refused, or, when granted, being discharged or made absolute, as the case may be, or,

provided the court in its discretion think fit that an appeal should be allowed (s. 35).

The Exchequer Chamber and the House of Lords are the Courts of Appeal (s. 36); they have power to adjudge payment of costs, to order restitution and to award process (s. 42).

No appeal is to be allowed unless notice be given in writing to the opposite party or his attorney, and to one of the masters of the court, within four days after the decision complained of, or within such further time as may be allowed by the court or a judge (s. 37).

Notice of appeal is to be a stay of execution, provided bail to pay the sum recovered and costs, or to pay costs where the appellant was plaintiff below, be given, in like manner and to the same amount as bail in error, within eight days after the decision complained of, or before execution delivered to the Sheriff (s. 38).

The appeal is to be upon a case to be stated by the parties, in which is to be set forth so much of the pleadings, evidence, and the ruling or judgment objected to, as is necessary to raise the question for the decision of the Court of Appeal (s. 39). In case of difference between the parties, the case is to be settled by the court, or a judge of the court appealed from.

The Court of Appeal is to give such judgment as ought to have been given in the court below (s.41). When the appeal is from the refusal of the court below to grant a rule to show cause, and

new Trial,

the court of appeal grants such rule, the rule is Motion for a to be argued and disposed of in the Court of &c. Appeal (s. 40). Further proceedings in the action are to be taken upon the judgment of the Court of Appeal, as if that judgment had been given by the court in which the record originated (s. 41).

D

CHAPTER VII.-EXECUTION BY THE
ATTACHMENT OF DEBTS.

THE remedy of the creditor against the property of his debtor seemed capable of being extended, by enabling the former, after judgment, to attach debts and monies of his debtor in the hands of third persons, and in this way to obtain satisfaction of his judgment. Hitherto there has been no process by which this could be done directly. The statute 1 & 2 Vict. c. 110, s. 12, extending the remedies of creditors against the property of their debtors, has proved of but limited use, by reason of its applying only to specific coin or bank notes, and debts secured by cheques, bills of exchange, promissory notes, bonds, specialties, and securities for money, which the debtor can easily secrete. The amount of these securities cannot be recovered by the creditor without their being actually seized, whilst debts not so secured, or the securities for which could not be actually seized, have not hitherto been available to creditors unless under a bankruptcy or insolvency.

It has accordingly been thought advisable to enable a judgment creditor to proceed against the debtors of his debtor, by a process similar to that of "foreign attachment," which, it is well known, has been long used in the cities of London and Bristol.

Order of Attachment.

A judge may now, upon the ex-parte appli- Attachment cation of any judgment creditor [upon affidavit of Debts. by himself or his attorney stating that judgment has been recovered, and that it is still unsatisfied, and that any other person is indebted to the judgment debtor, and is within the jurisdiction], order that all debts owing by such third person (who is called the Garnishee) to the judgment debtor shall be attached to answer the judgment debt (s. 61).

debts.

The judgment creditor, or his attorney, may, Discovery of however, be unable to make the affidavit necessary to obtain an order for the attachment of the debts owing and accruing to the judgment debtor. If so, a discovery may be obtained from the judgment debtor of what property he has, capable of being thus taken in execution; for any creditor, who has obtained a judgment in any of the Superior Courts, may apply to the court or a judge for, and the court or such judge may make, a rule or order, that the judgment debtor should be orally examined as to any and what debts are owing to him (s. 60).

This preliminary examination may be ordered to take place before a master of the court, or before such other person as the court or judge may appoint (s. 60). The production of books and documents may also be ordered.

Upon the discovery had by such examination, which is to be conducted in the same manner as the oral examination of a party to the cause (ante p. xxi), the necessary affidavit may be made, and the order for attachment obtained.

« PreviousContinue »