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![handle is hein.slavery/ssactsengr0325 and id is 1 raw text is: JOBNSON V. DIAMOND
so, the loss was the consequence of the wrongful and negligent act of the defendant,
and for that he is responsible. There must therefore be judgment for the plaintiff.
POLLOCK, C. B., and PLATT, B., concurred.
Judgment for the plaintiff.
[431] JOHNSON v. DIAMOND. Nov. 24, 1855.-The costs of proceedings by writ of
garnishment under the 64th section of the Common Law Procedure Act, 1854,
are in the discretion of the Court; but if liberty is given to issue the writ,
without any order as to costs, the successful party is entitled to them.
[S. C. 25 L. J. Ex. 40; 1 Jur. (N. S.) 1093; 4 W. R. 115.]
The above-named plaintiff having obtained judgment in an action brought against
him by one Courtis, a rule was made absolute that he be at liberty to proceed against
the above-named defendant, garnishee, under the 64th section of the Common Law
Procedure Act, 1854. A writ was accordingly issued, and the plaintiff having declared,
the defendant demurred to the declaration, and obtained judgment, but no mention
was made of costs.(a) The defendant proceeded to tax his costs; but the plaintiff'
objected before the Master that he had no power to tax, inasmuch as the Court had
not awarded costs under the 67th section. The Master was of opinion that the
defendant was entitled to costs, and taxed them; whereupon
Maynard obtained a rule calling on the defendant to shew cause why the Master
should not review his taxation; against which
Kingdon shewed cause. The, defendant, having succeeded in the garnishment
suit, is entitled as of right to his costs. The 60th section of the Common Law
Procedure Act, 1854, enables a judgment creditor to obtain an order for the oral
examination of the judgment debtor as to what debts are owing to him. By section 64,
If the garnishee disputes his liability, the Judge, instead of making an order that.
execution shall issue, may order that the judgment creditor shall be at liberty to pro-
ceed against the garnishee by writ, calling upon him to shew cause why there should
not be execution against him for the alleged debt, or for the amount due to the,
judgment debtor if less than the judg-[432]-ment debt, and for costs of suit; and the
proceedings upon such suit shall be the same, as nearly as may be, as upon a writ of
revivor issued under 'The Common Law Procedure Act, 1852.' The 181st section
of that Act prescribes the mode of proceeding by writ of revivor, and declares that.
the pleadings and proceedings thereupon, and the rights of the parties respectively
to costs, shall be the same as in an ordinary action. Therefore, if those enactments.
had stood alone, the successful party would be entitled to costs. The plaintiff how-
ever relies on the 67th section of The Common Law Procedure Act,'1854, which-
enacts, that The costs of any application for an attachment of debt under this Act,
and of any proceedings arising from or incidental to such application, shall be in the,
discretion of the Court or a Judge. But that enactment only applies to proceedings.
which are preliminary to the suit, as, for instance, the examination of the judgment
debtor (sect. 60), the attachment of the debt, and rule calling on the garnishee to.
shew cause why he should not pay the judgment creditor the debt due from him to.
the judgment debtor (sect. 61), and the execution (sect. 63). When proceedings are
commenced against the garnishee by writ, under the 64th section, the right of the-
parties to costs is the same as in an ordinary action. If, however, it is necessary that
the Court should exercise its discretion as to giving costs, it has done so when it.
allowed the writ of garnishment to issue.
The Court then called on
Maynard to support the rule. The 131st section of The Common Law Procedure-
Act, 1852, says, that the pleadings and proceedings on a writ of revivor, and the,
rights of the parties respectively to costs, shall be the same as in an ordinary action.
The 64th section of the Common Law Procedure Act, 1854, merely says that the
proceedings in such sit shall be the same as on a writ of revivor, omitting all,
mention of costs. There must have [433] been some reason for the adoption of one.
portion of the previous enactment, and the exclusion of the other. In the 70th section.
(a) See the case, ante, p. 73.
900
11 EX. 431.](ViewImageLocal?handle=hein.slavery/ssactsengr0325&div=1&collection=&method=preview&ext=.png&size=3)