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these energies: are they the same?

Glossary entry

English term or phrase:

garnished to appear ... / garnishers / garnishment

English answer:

called to appear/ summoned to appear

Added to glossary by Jenni Lukac (X)
Nov 2, 2011 23:07
12 yrs ago
English term

garnished to appear ... / garnishers / garnishment

English Law/Patents History English law, parliamentary records, 14th century petitions, Fitzpayn case
Its history begins with a petition presented to the king and his council early in the spring of 1328 by Robert Fitzpayn and his wife showing that, in a scire facias to execute a fine of lands brought against them by Robert Burnel the sheriff falsely returned that the Fitzpayns had been GARNISHED TO APPEAR IN THE KING'S BENCH. In consequence, the Fitzpayns did not appear and judgement went against them. Thereupon the petitioners state that they brought a writ of deceit against Burnel,the sheriff, and the GARNISHERS, and the falseness of the return was duly proved (...) The reply to the petition was a short sentence granting that a writ of deceit should where GARNISHMENT had been falsely returned, in the same way as it already lay where summons had been falsely returned.

Can anyone explain in plain language what actually happened? While I understand "garnishment" alone, I am particularly puzzled by "garnished to appear". Thanks in advance
Responses
4 +3 called to appear/ summoned to appear
Change log

Nov 16, 2011 08:57: Jenni Lukac (X) Created KOG entry

Discussion

Charles Davis Nov 3, 2011:
Further thoughts (IV) (http://books.google.es/books?id=_EQwAAAAIAAJ&pg=PA148&lpg=PA... ).

I conclude from this that the sense of “garnish” here is to serve notice of a requirement to appear in court and defend a suit for garnishment of debt, but I do not know enough about fourteenth-century English law to be able to say precisely what this process involved.
Charles Davis Nov 3, 2011:
Further thoughts (III) I now think that the meaning of “garnish” here probably is related to debt, but that it is being used in the sense of serving notice of a requirement to appear and defend in the suit. Webster’s 1828 dictionary offers some support here: under “garnish”, we find this definition: “4. In law, to warn; to give notice. [See Garnishee.]” ( http://1828.mshaffer.com/d/word/garnish ), and “garnishee” is defined thus: “In law, one in whose hands the property of an absconding or absent debtor is attached, who is warned or notified of the demand or suit, and who may appear and defend in the suit, in the place of the principal.” (http://1828.mshaffer.com/d/search/word,garnishee ).

Another indication along these lines occurs in John Bayly Moore’s Cases Argued and Determined in the Courts of Common Pleas & Exchequer (1834), p. 148: “In an action of debt, trespass, or the like, where the sheriff is to summon, attach or garnish the defendant, the sheriff is to summon, attach or garnish the defendant presently [i.e. without delay]”
Charles Davis Nov 3, 2011:
Further thoughts (II) The consequence of the sheriff’s false return was that the Fitzpayns did not appear and judgment went against them. This is plainly stated. The sheriff reported that they had been “garnished to appear”, but this was false; the “garnishment” required by the writ had not taken place -- “garnishment” had been falsely returned; the “garnishers” (presumably bailiffs), who should have “garnished” them, had not done so, and are therefore accused of deceit along with Burnel and the sheriff.

Since the “non-garnishment” resulted in the Fitzpayns’ non-appearance, it is natural to assume that “garnish” simply means “summon”. The trouble is that, in that case, the end of the passage doesn’t seem to make sense: “a writ of deceit should [lie] where garnishment had been falsely returned, in the same way as it already lay where summons had been falsely returned.” This draws an analogy between “garnishment” and “summons”, but clearly implies that they are not exactly the same thing.
Charles Davis Nov 3, 2011:
Further thoughts (I) I have been reflecting further on this very puzzling passage, because I am still not entirely confident of the precise meaning of “garnish” here.

The crux of the Fitzpayns’ complaint is that the sheriff made a false return. The meaning of this is clear enough: “Returns are nothing else but the sheriff’s answers, touching that which they are commanded to do by the king’s writ” (John Impey, The Practice of the Office of Sheriff and Under Sheriff (London, 1812), p. 282; http://books.google.es/books?id=kfBBAAAAYAAJ&pg=PA282&lpg=PA... . Therefore the Fitzpayns’ allegation here is that the sheriff falsely reported the execution of a writ which had not, in fact, been duly executed.
inmb (asker) Nov 3, 2011:
Thank you! Thank you both! I was so certain of comonnection of fine in land with the garnishment (= attachment) that I simply did not think about Burnel's conspiracy with summons. Now it is very clear indeed.
Jenni Lukac (X) Nov 3, 2011:
Yes, that would make sense. Nice deduction, Sherlock!
Charles Davis Nov 2, 2011:
The suit against the summoners makes sense, I think, because the summoners were supposed to summon them but apparently failed to do so, and the Fitzpayns lost their case as a result because they did not turn up. As I read it, this was a piece of skulduggery engineered by Burnel to make sure the Fitzpayns could not defend themselves.
Jenni Lukac (X) Nov 2, 2011:
Charles, you may very well be right. For lack of more information, I thought that the mention of the "garnishers" in this text might have been a reference to a party attempting to put a lien on the property. That was mere conjecture as there is nothing here to support it, and, in any case, I was primarily concerned with the question of the word's meaning relative to "to appear." Although, if they were not, in fact, summoned, it seems odd to me that they would bring a suit against the said summoners.
Charles Davis Nov 2, 2011:
I think Jenni's definition of "garnish" as "serve with notice of proceedings" (or "summon") is correct and applies to all three phrases. The key is that "garnishment", which means attachment of debt in modern legal language, does not mean that here.

The Fitzpayns were prosecuted by Burnel for a fine of lands. They were to appear at the King's Bench to answer the demand. The sheriff returned (reported) that they had been garnished (summoned) to appear, but this was false. They were not in fact garnished; notice was not served on them. Consequently they did not appear and therefore lost the case. The Fitzpayns then alleged that they were deceived by Burnel, the sheriff and the garnishers (those who were supposed to serve notice on them to appear but did not do so). The writ of deceit was granted, because garnishment had been falsely returned: it had been falsely reported (by the sheriff) that they had been summoned -- that notice had been served; the summons or service of notice (garnishment) was falsely reported.

Responses

+3
3 mins
Selected

called to appear/ summoned to appear

garnish [ˈgɑːnɪʃ]
vb (tr)
1. to decorate; trim
2. (Cookery) to add something to (food) in order to improve its appearance or flavour
3. (Law) Law
a. to serve with notice of proceedings; warn
b. Obsolete to summon to proceedings already in progress
c. to attach (a debt)
4. Slang to extort money from
n
1. a decoration; trimming
2. (Cookery) something, such as parsley, added to a dish for its flavour or decorative effect
3. Obsolete slang a payment illegally extorted, as from a prisoner by his jailer
[from Old French garnir to adorn, equip, of Germanic origin; compare Old High German warnōn to pay heed]
garnisher n
http://www.thefreedictionary.com/garnish

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Note added at 14 mins (2011-11-02 23:22:18 GMT)
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I understood that the word was used in two different senses in this fragment. Perhaps someone else will have a different interpretation.

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Note added at 17 mins (2011-11-02 23:25:17 GMT)
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In answer to your second question, I assume that they did not appear because they had not actually been summoned; the sheriff falsely stated that they had been summoned.
Note from asker:
Thanks for this answer, but I am still puzzled by the rest of it. It seems that garnishment (attachment of debt) took place under false grounds. What was actually false? Why Fitzpays did not appear "in consequence"?
Peer comment(s):
agree Charles Davis : You are right: the sense is "summoned" / "summoners" / "summons". I shall try to explain what I think it means in a discussion note.
27 mins
Thanks, Charles. As always, I'm looking forward to your notes!
agree B D Finch
10 hrs
Cheers and thanks from a dark and rainy Saragossa.
agree Lara Barnett : summoned
3 days 20 hrs
Thanks very much, Lara.
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4 KudoZ points awarded for this answer. Comment: "Selected automatically based on peer agreement."
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