The above is the course of proceeding in the case of a judgment by default. Instead of following this course, however, the garnishee, who is commonly the ban ker, factor, or agent of the defendant, usually appears and pleads. As matter of defence, he may deny that any debt is due from himself to the defendant, or that he possesses any goods or money of his ; he may also show that he has a lieu upon the defendant's goods in his own right. The question thus raised between the plaintiff and the garnishee is then tried by a jury, and judgment is given upon their verdict, with or without appraisement, according to the nature of the property attached. According to the custom, the goods can never be actually seized in exe cution under the attachment; if the gar nishee refuse to deliver them, the only remedy of the plaintiff is to arrest him. The practice in the matter of Foreign Attachment has been here stated gene rally ; in practice many questions of law may arise.
A. difference of opinion prevails amongst mercantile men with respect to the utility of this proceeding. On the one side, it is said to be important, in a commercial community, to be readily able to apply the property of an absent debtor, wherever it may be found, to the payment of his creditor ; and this, it is contended, Is particularly advantageous in a city much frequented by foreigners for the of trade, who may contract debts abode in England, and then remove themselves to foreign parts, yond the reach of personal process : on the other hand, it is supposed to embarrass commercial operations, in consequence of the enormous power which it places in the hands of creditors—a creditor for 201. being entitled, if he pleases, to attach perty to the amount of 20,0001., or any larger sum, which cannot be applied in discharge of any commercial engagements which the debtor may have formed, until the attachment is disposed of. The prehension of this process is said to deter foreign merchants from consigning goes to London. It does not, however, appear to be likely that the existence of this custom should, under ordinary cir cumstances, have the effect of deterring the fair merchant from sending his goods to London ; though it may well happen that a trader, who has contracted debts in London which he does not intend to pay, or who suspects that claims will be set up which he . does not wish to afford the claimants any facilities in litigating, would hesitate to send a cargo to a port where, by means of this process, his cre ditors in that place might instantly seize it. Nor can much practical inconvenience arise from the power of attaching a large property for a small debt ; for the gar nishee, who is almost in all cases the agent of the defendant in some shape or other, may at any time dissolve the attachment, by appearing for the defendant and put ting in bail to the action ; or, if satisfied with the truth of the debt upon which the attachment issues, he May pay the plain tiff's demand, and take credit for the amount in his account with the defendant : for a payment under an attachment would be so far an answer to any demand against the garnishee by the defendant. The alleged objections do not, therefore, appear to be so formidable as has been represented ; but the advantage of a speedy and safe mode of recovering debts is obvious.
There are, however, many imperfec tions in this form of proceeding. In the first place, no costs are recoverable on either side ; and therefore when a small debt is contested, if the plaintiff succeeds against the garnishee, his costs may exceed the sum which he can recover ; and if the garnishee succeeds in showing himself not to be liable to the attachment, he may incur a considerable expense without the possibility of reimbursement. Secondly,
the efficiency of the custom is much im peded by the limited extent of its local jurisdiction. Thus, goods in a warehouse in Thames-street may be attached ; but if lying in a lighter on the river Thames within a yard of the warehouse, they are exempt. If a merchant keep his cash with a banker in the city, it is liable to the process ; but if his banker dwell a few yards beyond the limits of the city, no attachment can be made of his balance unless indeed the plaintiff should prepare himself with process, and be fortunate enough to serve it upon one of the part ners when accidentally within the juris diction; in which case, as he is supposed to carry with him all the debts and lia bilities of the house to which he belongs, the balance of any customer of the firm might be attached. But the most serious objection to the proceeding, as universally practised in London at the present day, arises from the palpable opportunity which it affords for fraudulent collusion between the plaintiff and the garnishee, to the injury of the defendant. By the letter of the custom, as above stated, the defendant must be sought in the first instance by the officer of the court ; and if not found in the city, and if he does not answer when openly called in court, the first process of attachment may issae against his goods. Still no step can be taken towards appropriating them until the defendant has been solemnly called at four several courts ; and then, and not till then, the garnishee may be summoned. In ancient times, therefore, when the cus tom was strictly adhered to, every possible precaution was taken to give notice to the defendant of the intended proceeding against his property ; and unless he was actually absent from the country (in which case he might, on his return within a year and a day, resort for his protection to the securities given by the plaintiff for restoring the goods), it was scarcely pos sible that he should not be informed of it. But the present practice is to give no notice of any kind to the defendant. The summons, the return of non eat inventus, the four separate defaults on being called in court, are indeed entered formally upon the record ; and unless they were so en tered in every case, the judgment against the garnishee would be erroneous ; for the custom would be contrary to law, if it sanctioned a proceeding against a man o,r his property without notice. But this principle is at present reduced to mere form, and there is in practice no protection whatever to the defendant against a frau dulent collusion between the garnishee and the plaintiff. It is quite within the range of possibility that a solvent de fendant may reside next door to the gar nishee with whom his goods are deposited; that the garnishee and plaintiff may agree to an attachment for a real or fictitious debt ; that execution may issue ; and even that the year and a day may expire, and consequently the property may be abso lutely lost to the defendant before he has any notice of the transaction. This ob jection, however, applies not to the cus tom itself, which is in this respect just and reasonable, but to the abuse and cor ruption of it in modern practice.